By: Karen Piso Nadeau, Esquire

It may not be safe to eat out when you have food allergies. I devoted a previous blog to food allergies and the law in Massachusetts requiring the food industry to take proper precautions with food safety to benefit those with food allergies to make sure eating out is safer. At my law firm, we are surprised to receive so many phone calls and inquiries from those who suffered allergic reactions due to the careless practices of food establishments such as restaurants or cafes. Most of the time, the food establishment failed to take the proper steps to make sure the food served was safe for the customer who communicated their allergies to the server or cashier. Some of the most common allergies we see include eggs, tree nuts, dairy, and shellfish.

Unless you know someone, who has a food allergy, you may not understand what it means to live with a food allergy and how dangerous it can be if the allergic food ingredients are consumed. I do not have a memory growing up of any family members or friends with food allergies. My first real experience with food allergies was when my own children went to daycare and preschool, and classmates had food allergies. There were strict rules about food safety and what was and was not allowed in the daycare or school environment. Peanut butter and nut products were forbidden. It was at this time I learned that if a child consumed any allergic ingredients, they could die. I saw parents pack Benadryl and Epi pens the way I packed diapers and band aids. This was more than 2 decades ago. Now, I see college students navigating food allergies away from their parents and family.

Given the harm that ingesting allergic ingredients could cause to a customer, wouldn’t you expect the food service industry to have safety plans and training to make sure a human being with a food allergy -that could kill them- is served safe food without the allergic ingredients?  Unfortunately, this is not the case in Massachusetts, and it does not matter if you are a high-end restaurant to a fast-food chain to ordering take out or using a food delivery service.  We see across all the food service industry in MA an alarming high rate of customers with food allergies communicating their severe allergies when ordering and still being served the allergic ingredients. This is despite voicing their allergies several times and being reassured the food is safe by employees of the food establishment.

Typical Reasons Allergic Ingredients Are Negligently Served by Food Establishments:

Why is this happening so often in our food industry even though Massachusetts is one of the first states to implement food safety surrounding allergies and the service to customers with food allergies? Based on representing many individuals who have suffered severe allergic reactions to food negligently served to them, we find several recurring bad practices in restaurants that lead to allergic ingredients getting onto the plate of a customer with a known food allergy that was clearly communicated to the food establishment when placing their order:

1. Lack of training of employees and staff dealing with the food from the server to the chef to the one running the food to the tables or placing the food in the takeout container. They lack the knowledge, or they ignore the fact that they can kill someone if they give them allergic ingredients.
2. No procedures and guidelines in place for serving those with food allergies.
3. Staff that reassures customers that the food is safe and that they noted their allergy when in fact the employee has no clue what is in the food.
4. Placing food in allergy safe packaging or using allergy sticks when in fact the food is not safe and in fact has the allergic ingredients, giving a false sense of security to the customer with food allergies.
5. Staff fails to note allergy on order. Some waiters write down the order; some use a handheld computer device; or some try to remember the order in their head.
6. Cooks and food preparers fail to note allergy on order and serve wrong food.
7. Not knowing the ingredients in menu items yet reassuring a customer that a menu item is safe when it is not.
8. Giving the wrong order to a customer with known allergies.
9. Using equipment and cooking tools that are cross contaminated with allergic ingredients.

Another common theme we hear a lot from our clients who have suffered allergic reactions dining out is a family having faith and trust in certain restaurants or take-out food places based on prior experience. Then, they have a nightmare experience where a family member is given the allergic ingredients in error. In one case, the family felt safe going to a particular restaurant given the fact it specifically advertised that it catered to those with food allergies and they had dined there before on several occasions. They went back to celebrate a birthday. There was an allergy stick in the food for the family member with food allergies giving a sense of security and reassurance. In fact, it was not allergy safe and contained the allergic ingredients. The family member suffered a severe anaphylactic reaction requiring emergency medical attention and follow up care. Of course, the birthday celebration was ruined. The impact of this event remained with this family whereby they no longer enjoyed going out and having a meal together. It was filled with worry and anxiety that this could happen again.

Real-life Examples of Food Industry Serving Allergic Ingredients to a Customer with a Known Food Allergy:

Here are some real-life examples of the alarming high number of allergic ingredients being served and consumed despite the food establishment’s reassurance that the food was safe and allergy free:

1. Receiving a breakfast sandwich in an allergy container providing our client with reassurance the allergy was noted. However, the sandwich in fact contained the allergen, a slice of cheese, causing a severe allergic reaction. The dairy and cheese allergies were communicated to the cashier when ordering yet ignored.
2. Ordering the same meal from a high-end restaurant that the client always ordered with allergies noted and having the same server who was aware of the client’s allergies to certain seafood. She was then served the dish with the allergic shellfish and unknowingly consumed it necessitating emergency medical care and follow up treatment for her severe allergic reaction.
3. Ordering from a Chinese food menu items that were allergy free per the waiter. Consuming the food that unknowingly contained nuts causing an anaphylactic reaction.
4. Ordering specific allergy free cookies and being given a peanut butter cookie by mistake causing a severe allergic reaction requiring hospitalization.
5. Another high-end restaurant reassuring a menu item had no nuts. Client suffered a severe allergic reaction with inpatient hospitalization as the meal contained nuts in the sauce apparently unknown to the waiter.

These incidents are just a small sample of what is happening in Massachusetts restaurants, cafes, and food service industry. It is the reality people with allergies must face every time they order food.

What You Can Do to Try and Minimize the Risk of Being Served Allergic Ingredients:

What can you do to minimize the risk of being served allergic ingredients when you eat out or order take out? Here are some things that you can do to protect you and your family members with food allergies. Keep in mind that there is risk no matter what or where. Once the trust is broken, it is not easy to repair based on my experience representing individuals harmed by ingesting allergic ingredients.

1. Be proactive and communicate your allergies multiple times to the server before ordering.
2. Check out the menu ahead of time if possible.
3. When ordering your food, communicate your allergies again to the server.
4. When food arrives, make sure server again confirms allergy free ingredients.
5. Choose food establishments that recognize food allergies and have a reputation for providing safe allergy free food. Note this does not guarantee safe food.
6. Dine out or place your order during slower times and when the food establishment is not typically busy.
7. Use an allergy card listing all your allergies for restaurant staff and chef.
8. Be prepared with medication if you experience an allergic reaction. Some of my clients had Benadryl, Zyrtec, or Epi Pen with them to use when they experienced allergic reaction symptoms.
9. Seek medical attention as soon as possible if you have symptoms of an allergic reaction such as tingling of mouth, throat irritation, hoarse voice, abdominal pain, lip or tongue swelling, or difficulty breathing. Your condition can get worse quickly.

At Nadeau Harkavy LLC, we have over 60 years combined experience representing injured people and their families when they have been involved in an accident such as experiencing an allergic reaction, motor vehicle accident, trip and fall or other type of accident. We have recovered millions of dollars in compensation for our clients over the years to help them get on with their lives after suffering the consequences of a serious accident.  We make sure everything is done to protect your interests while you and your family concentrate on getting better. We handle all types of car accident cases including wrongful death and brain injury. We represent drivers, passengers, pedestrians, bicyclists, as well as other types of car accident cases such as scooter, motorcycle, and skateboard cases. We also handle other types of injury cases such as trip and fall, slip and fall, food allergy, dog bite, construction site, and catastrophic , life altering injury accidents. If you or a loved one has been harmed through no fault of your own, call us today for a free consultation about your legal rights at 617-674-7640.