Food Allergy Lawyer

Each year, thousands of children suffer food allergy anaphylaxis due to an undisclosed allergen, mislabeled food product or a restaurant’s negligent service of a food or ingredient to which a child is allergic. And with the growing number of children with allergies on the rise, an unexpected life-threatening allergic reaction can happen at day care facilities and schools when teachers and others do not take care to protect the student.

Who Can Be Held Responsible When Your Child Has a Severe Allergic Reaction?

Sadly, there are multiple preventable serious injuries to children from anaphylaxis and in some instances even death.

Daycare and schools can be held responsible for your child’s serious allergic reaction when:

  • The administrators fail to set school policies and procedures in place to help manage allergies;
  • The school staff or other responsible caregiver fails to recognize anaphylaxis reaction and timely and appropriately responds with aid; or
  • A teacher or other caregiver, despite being aware that a child has an allergy, feeds that child the food containing the allergen

Food product manufacturers and distributors can be negligent by preparing and supplying food that is not accurately labeled and misrepresenting ingredients in a product, failing to disclose certain allergy prone ingredients such as nuts, or by failing to prevent cross-contamination.

In a restaurant, cafeteria, or deli setting, a food allergy lawsuit may arise when a child with a disclosed allergy is served food they are allergic to by an employee of that eating establishment.

If your son or daughter suffered a serious anaphylaxis reaction resulting in permanent brain injury, neurological impairment or death from a food allergy due to the potential negligence of daycare, caretaker, school, food service company, restaurant, cafeteria, deli or other individual or company, the child injury firm can investigate the circumstances and provide a no cost or obligation consultation.

Managing Food Allergies in Daycare/Schools

Food Allergy Research & Education (FARE) estimates that in the United States, there are roughly two children with food allergies in every classroom.  It requires a certain amount of trust that the daycare provider or school teacher will take your child’s food allergy seriously, recognize symptoms if there is an accidental exposure, and know how to act quickly to help your child in a life or death situation.

A parent of a child with food allergies who finally reaches school age has reason to be stressed. Especially because Centers for Disease Control and Prevention (CDC) studies show that 16%-18% of children with food allergies have had a reaction after they accidentally ate a food allergen while at school.  In addition, early care and education programs and preschools are at high risk for food allergy emergencies since children often experience their first allergic reaction between the ages of two and five.

Schools should not only be prepared to address the needs of children with known food allergies, but to also respond effectively to the emergency needs of children who are not known to have food allergies but who show allergic signs and symptoms.  In fact, 25% of the severe and potentially life-threatening reactions (anaphylaxis) reported at schools happened in children with no previous diagnosis of food allergies.

Food Allergies Are on the Rise

Over the past 3 decades, the increase in food allergy can only be described as explosive, according to a 2018 article in The Journal of Allergy and Clinical Immunology.  End Allergies Together, a non-profit organization which funds research for the growing food allergy epidemic, reports that there are more than 32 million Americans that have a food allergy. 1 in 12 children are diagnosed with food allergies in the U.S. and 40% of children with food allergies experience a life-threatening reaction.  The CDC found that between 1997 and 2011, the prevalence of food allergy in children increased by 50%.

The severity of the symptoms seems to be increasing too.  Food Allergy Research and Education (FARE) reports that between 2007 and 2016, there was a 377% increase in diagnosis of anaphylactic food reactions. Not surprisingly, it is estimated that every 2-3 minutes, a food allergy reaction sends someone to the ER.  And children with co-existing food allergy and asthma may be more likely to experience anaphylactic reactions to foods and be at higher risk of death.

The Most Common Food Allergy Signs and Symptoms

The Mayo Clinic lists the most common food allergy signs and symptoms to include:

  • Tingling or itching in the mouth
  • Hives, itching or eczema
  • Swelling of the lips, face, tongue and throat or other parts of the body
  • Wheezing, nasal congestion or trouble breathing
  • Abdominal pain, diarrhea, nausea or vomiting
  • Dizziness, lightheadedness or fainting

Whether you have a toddler or teenager with life-threatening food allergies, worrying about whether your child will be given an allergen-containing food can be overwhelming.  Even exposure to a very small amount of the offending food can cause an allergic reaction for kids with a food allergy.  The symptoms usually develop within a few minutes to two hours after being fed or eating the allergen.  For some people, an allergic reaction to a particular food may be uncomfortable but not severe. For other people, an allergic food reaction can be frightening and even life-threatening.

A Severe Reaction:  Anaphylaxis Requires Immediate Medical Attention!

Anaphylaxis is a severe and potentially life-threatening allergic reaction that can impair breathing and affect more than one body system such as the heart, circulation, airways and skin.  A person in anaphylactic shock, can experience a dramatic drop in blood pressure, heart failure, swelling of the tongue and breathing tubes.

Symptoms of anaphylaxis include:

  • Constriction and tightening of the airways
  • A swollen throat or the sensation of a lump in your throat that makes it difficult to breathe
  • Rapid pulse
  • Nausea with or without vomiting
  • Abdominal pain
  • Swelling of the lips
  • Swelling of the skin anywhere on the body
  • Hives or rash
  • Dizziness, lightheadedness or loss of consciousness

Anaphylaxis represents one of the most urgent of medical emergencies, in which rapid diagnosis and prompt and appropriate treatment can mean the difference between life and death.  It requires immediate medical treatment, including a prompt injection of epinephrine (adrenaline) and a trip to a hospital emergency room.  In order to ensure appropriate access to medical treatment for anaphylaxis, The School Access to Emergency Epinephrine Act was signed into law on November 13, 2013 by President Obama.  This federal law encourages states to adopt laws requiring schools to have “stock” epinephrine auto-injectors (epi-pens) for use by any student.

The 8 Most Common Food Allergies

Although it is possible for any food to cause an allergy, the Food and Drug Administration (FDA) has identified the following 8 allergens most responsible for food allergy reactions in the United States:

  • Milk
  • Eggs
  • Wheat or gluten products
  • Soybeans and soy product
  • Peanuts
  • Tree nuts (i.e. almonds, walnuts, hazelnuts, pinenuts, etc.)
  • Fish
  • Shellfish

There are More Kids with Peanut Allergies Now Than There Used to Be

The prevalence of peanut allergies has more than tripled between 1997 and 2008, according to the results of a nationwide survey published in the Journal of Allergy and Clinical Immunology in 2010.  There are 3 million people in the United States who report having an allergy to peanuts, tree nuts or both.   Peanut allergy is the most common food allergy in children and is a leading cause of allergy-related deaths in children.  Accidental exposure to peanuts has also led to brain injury, coma, and paralysis.  The severity of the potential reaction in the growing number of children with peanut allergies and the fear of a potential lawsuit has driven some schools and even airline companies to ban peanuts.

Other Federal and State Laws to Help Families with Food Allergies

Fortunately, with the purpose of improving food safety in the United States, Congress took action in 2011 by passing the FDA Food Safety Modernization Act.  Afterwards, the Centers for Disease Control and Prevention of the U.S. Department of Health and Human Services, together with the U.S. Department of Education, published “Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Education Programs” – the first national comprehensive guidelines for school food allergy management.

The ADA Includes Children with Allergies

Some food allergies can be so physically and mentally debilitating that sufferers may qualify for protection under the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973.  The Americans with Disabilities Act Amendments Act (ADAAA) mandates that all public and private childcare centers and schools make certain accommodations and safety measures for students with severe food allergies.

The Legal Responsibility to Protect All Students

Day care administrators, pre-school teachers, specialists, paraeducators, student and substitute teachers, summer camp counselors, field trip chaperones, bus drivers, classroom aides or volunteers, school nurses and nutritionists should all know how to help students with food allergies be safe and supported at school.

Early care and education centers, along with public or private school staff members are legally responsible to provide a safe and nurturing environment for all youth – including those with known food allergies. Every student in elementary, middle and high school – whether in the classroom or cafeteria, deserve to be protected.  Even if an early education center and school has a policy in line with federal and state laws, or makes accommodations for students with food allergies, there are still many risks children with allergies face.  Many employees from daycares, pre-schools, or private/public schools may not follow the proper procedures and guidelines required to protect children with food allergies.  Often times, the staff is not trained properly on how to prevent injuries, recognize the symptoms, and treat the allergic reaction.  Even the lunchroom worker at a school may not follow proper food safety guidelines.  Cross-contamination of prohibited foods can result in injuring children with food allergies by inadvertently mixing allergens into supposedly “allergy free” foods.  The results can be devastating to a child who unknowingly ingests the contaminated food.

What Parents Can Do to Protect their Child with a Food Allergy at School?

A parent of a child with food allergy should first check that the school’s policies are in line with federal and state laws that protect children who live with food allergies.

School policies and guidelines should include:

  • Daily management of food allergies, allergen avoidance measures, emergency response, how to address bullying of and discrimination against students with food allergies.
  • Strategic placement of medication, identifying the locations for school staff and ensuring the medication is easily accessible and unlocked.
  • Informing staff of all students who self-carry medications.
  • Training school personnel in the administration of medications in accordance with governing laws or having a full-time nurse in any school where there are students with life-threatening allergies.
  • Providing food allergy education for staff, students, parents, caretakers, and others who have contact with the student throughout the day.

The American Academy of Pediatrics recommends that schools require an  AAP’s Allergy & Anaphylaxis Emergency Plan (signed by the student’s doctor) for every food-allergic student and two auto-injectable epinephrine devices that are readily accessible, unlocked (or self-carried), and in a location known by every staff member in the school.  Parents of children with food allergies should file an Emergency Action Plan with their child’s school and daycare, specifying the actions to take when anaphylaxis or ingestion of an allergen is suspected.

It is imperative that parents provide written documentation to the school identifying the foods that must be avoided and appropriate substitutes for those foods.  Once the school has received this notice, the school is  required to accommodate the child’s dietary requirement.

Parents that are aware of their child’s food allergy should work with childcare facilities or school to develop a 504 plan that outlines the specific needs for their child.  The 504 plan can outline specific preventive measures such as:

  • Restrictions on exposure to known allergens
  • Hand washing procedures
  • Emergency response procedures
  • Field trip protocols
  • Safe environment procedures
  • Regular contact with school administrators and nurses, teachers, and aides can ensure these safety measures are in place

Parents must take many safety precautions before sending their child with known food allergies to school. Unfortunately, there are times when a school fails to protect a child from exposure to a food allergen which could result in a wrongful death or personal injury lawsuit against the daycare facility or school.

If your child has been injured as a result of a food allergy at a school or day care provider, contact food allergy attorney  Jeffery Killino at 877-875-2927 for dedicated and experience assistance with your case.

Parents of children with food allergies need to be vigilant and serve as advocates for their children to ensure that schools, family members, and other people who provide care for the children know how to keep them safe.  Unfortunately, despite the best efforts of adults and children who are affected by food allergies, many youngsters have died due to an accidental exposure to an allergen, which could have been avoided if certain laws were in place.  Some states continue to adopt laws to protect the growing number of children with food allergies and to prevent other children from dying.

Sadly, these laws  are often passed after a child tragically dies.

Not only must parents with kids who have food allergies worry about protecting their child in home or at school, other establishments where a food allergy reaction can occur are at hospitals, hotels, airplanes, cruise ships, colleges or Universities, stadiums, movies, and restaurants.

Difficulties When Dining Out with a Food Allergy – The Role of Restaurants and Food Manufacturers

For a parent who has a child with food allergies, navigating a safe restaurant to feed the family can be challenging and pose a significant risk.  Research published in the Journal of Allergy and Clinical Immunology suggests that more than half of fatal food allergy reactions are triggered by food eaten outside the home. To help Americans avoid the health risks posed by food allergens, FDA enforces the Food Allergen Labeling and Consumer Protection Act (FALCPA) of 2004 (the Act).  The Act applies to foods regulated by FDA and requires that food manufacturers and distributors label ingredients that are “major food allergens” to inform consumers and potentially protect people suffering from food allergies.  Since there is no cure for food allergies, avoiding the allergen is the only way consumers can protect themselves from potentially severe reactions. Since food labels help allergic consumers identify offending foods or ingredients so they can more easily avoid them, clear warnings and proper labeling by packaging companies is important.

While the law does not require food service companies (including a restaurant, café, food cart that make food to order or a takeout establishment) to give ingredient lists or allergy warnings to customers, more companies in the foodservice industry are accommodating patrons with food allergies.

What Can a Parent Do to Protect Their Child with a Food Allergy While Eating Out?

Protecting a child who has a food allergy involves alerting the server at the restaurant about the specific allergy and asking the right questions to ensure the selection of a safe meal on the menu.  Many restaurants even have specific language on their menu, warning “Before placing your order, please inform your server if a person in your party has a food allergy”.  However, even if a mother takes the diligent steps to safeguard her son or daughter who has a food allergy, it may be difficult to avoid potential errors. Negligent conduct or mishaps by the restaurant staff can occur in the process of ordering, preparing and delivering a meal, ultimately resulting in an allergic reaction.   Restaurant employees generally receive little or no training on the serious nature of food allergy.  Even if they do, sometimes information about food allergies are not communicated from wait staff to the chef.  Other times, the waiter or waitress believe they know all of the ingredients in a dish, and they are mistaken.  In other situations, foods may become cross-contaminated with allergens because they are present in the same place and the food preparer is careless.

Informing the Restaurant of the Allergen or Food Restrictions Before Consuming Any Food/Beverage is Key

Every company preparing and serving food has a responsibility to protect the health of individuals that are allergic to specific foods.  However, it is important that the restaurant is notified of the food allergy.  Whether a restaurant can be liable for your child’s allergic reaction could depend on disclosure.  As a customer, you must disclose your child’s allergy to the wait staff or food preparer in order to expect reasonable precautions when the meal is prepared. However, the restaurant may also need to disclose food ingredients containing major allergens.

Tips for Dining Out:

  • Consider using a “chef card” that identifies your allergy and what you cannot eat.
  • Always tell your server about your allergies and ask to speak with the check, if possible
  • Stress the need for preparation surfaces, pans, pots and utensils that haven’t been contaminated by your allergen and clarify with the restaurant staff what dishes on the menu are safe for you.

According to  some of the highest-risk foods for people with peanut or tree nut allergy include:

  • Cookies and baked goods
  • Candy
  • Ice Cream
  • African, Thai, Chinese, Indian, Mediterranean and Mexican Food
  • Sauces

Legal Action Against Negligent Food Companies and Restaurants That Cause Anaphylactic Food Allergy Reactions

Food allergies are becoming more commonplace, and food service operators will need to take this into consideration.  There are multiple ways in which the negligence or mismanagement of restaurant staff can result in foods containing allergens being served to allergic customers:

  • Cross contamination and accidental allergic reactions
  • Failing to protect consumers and inform them about common allergies like peanuts
  • Incorrectly informing customers about ingredients in their products
  • Giving incorrect information when customers ask questions about allergens
  • Responding inappropriately when a person has an adverse reaction

If your son or daughter suffered food allergy anaphylaxis due to an undisclosed allergen, misleading product label, or the negligent service of a food allergen by a restaurant, daycare or school that failed to take precautions of your child’s food allergy safety, call the Law Firm at (877) 875-2927 to understand your legal rights and options.  Jeffrey Killino is a highly experienced lawyer with cases involving injuries to children.