Mar 20, 2007

Food Allergies and the Law

11 Comments · Posted by Robert Ambrogi in General

[Note: The following column originally appeared elsewhere in print. Response was so strong that I decided to republish it here. -RJA]

One recent day, an unlabeled peanut-butter cookie nearly killed my teenaged son. We’ve known of his peanut allergy since he was an infant and thought we had it pretty well in hand. But one taste of an unmarked treat from his school cafeteria sent him into critical anaphylactic shock and required him to be taken by helicopter to a critical care unit in Boston.

Thankfully he survived. But I can’t help but worry about the risk both my sons face for the rest of their lives. Nor can I help but think of the children – and the parents of the children – who may not be so lucky.

As someone whose children have been allergic to nuts their entire lives, I should be better informed about this than I am. And as a lawyer, I should better understand legal and legislative efforts to protect those with peanut and other food allergies. Scariest about peanuts is how invisibly pervasive they are, used as additives and thickening agents in a host of unlikely foods, from pasta sauce to egg rolls.

As a lawyer, this crisis got me to thinking: What can lawyers and policy makers do to help protect others from what happened to my son? Towards finding that answer, I devote this column to exploring online resources relating to peanut allergies and the law.

Given the ubiquity of the peanut-butter-and-jelly sandwich among children, a logical place to start in safeguarding those with peanut allergies is our grade schools. Policymakers in a handful of states have set guidelines – voluntary for the most part – on how schools should deal with life-threatening food allergies, but they’ve fallen short of regulating this in any meaningful way.

On a public-policy level, the questions are more complex than simply whether to make schools peanut free. That question, alone, is controversial, but there are others that are equally debatable. Should we require schools to label foods in their cafeterias? To provide peanut-free tables or areas? To allow students to carry and self-administer epinephrine pens?

The importance of this as a legal and public-policy issue will continue to grow. A 2003 report from The Food Allergy & Anaphylaxis Network found that the number of children with peanut allergies had doubled over the preceding five years and that 79 percent of children with the allergy had experienced severe reactions.

FAAN’s Web site is an excellent resource for general information on food allergies. A section of the site is devoted to legal advocacy. It contains information on federal and state legislative and regulatory initiatives related to food allergies. Specific topics include food labeling, schools and camps, emergency medical services, restaurants and airlines.

A good resource for information on federal laws and policies relating to food allergies is the U.S. Food and Drug Administration, Center for Food Safety & Applied Nutrition. The site has extensive information about the Food Allergen Labeling and Consumer Protection Act of 2004, which the FDA oversees. It includes the full text of the act as well as numerous documents related to compliance and exemptions. It also has a collection of links to food allergy resources elsewhere in the federal government, primarily relating to health and nutritional issues.

Other sites with information on law and policy related to food allergies include:

  • AllergicChild.com. A support group for parents, teachers and others who deal with allergic children, its site includes a page devoted to food allergy legislations. The information is fairly minimal and it appears that there have been no updates since 2005.
  • Asthma and Allergy Foundation of America. The AAFA is an asthma and allergy patient advocacy group whose mission is to help improve the lives of people with asthma and allergies through education, advocacy and research. Its Web site includes sections on various food allergies as well as sections on legal protections for allergy sufferers under the Americans with Disabilities Act and food labeling laws.
  • Food Allergy Initiative. A public policy section has information on federal labeling laws, current legislation, and 504 plans for schools to accommodate students with food allergies.
  • The Food Allergy Project. This is a coalition of parents, researchers, educators and others aimed at increasing federal and private funding for food allergy research. In its news section, the site has some information on legislative initiatives related to its work.
  • Kids with Food Allergies.com. This nonprofit organization is dedicated to improving the lives of children with food allergies by sharing resources and tips. Access to most of the site’s resources requires payment of an annual $25 membership fee. These resources deal mostly with non-legal issues, but also include information on the federal food labeling laws.
  • PeanutAllergy.com. Although this site has pages for “issues of concern” such as food labeling and schools, they are virtually empty. However, the site has a number of active discussion boards. Of interest to legal professionals, these boards contain numerous stories of legal challenges faced by those with peanut allergies in seeking accommodations in their schools and elsewhere. A number of postings relate directly to negotiating and drafting 504 agreements with schools.
  • Peanut Aware. The site is intended to serve as a resource for information on allergy books, allergy-safe foods and restaurants, and more. It has no direct information on legal or public-policy matters, although its discussion forum has a section with some postings on 504 plans and other school issues.

Lawyers have a critical role to play here. We can help bring about laws, regulations and policies to protect the lives of children with food allergies. We can lobby for clearer labeling. We can support – rather than block – scientific research. We can push for accountability and education.

We can’t cure these allergies, but we can help prevent needless, life-threatening situations such as the one that almost killed my son.

11 comments

  • Legal Eagle · March 21, 2007 at 7:31 am

    Excellent post. I have an allergy to all nuts except peanuts (which are actually a legume, not a nut). I have had some bad situations myself.

    Reply

  • Legal Eagle · March 21, 2007 at 9:20 am

    Have now been inspired to write a post of my own, venting similar frustrations to your own.

    Reply

  • Anonymous · March 21, 2007 at 7:36 pm

    Mr. Ambrogi,

    I am so sorry to hear your son had such a serious reaction at school. I am glad he is okay!

    My son (17 yrs) had an anaphylactic reaction at school that required epinepherine and a trip to the emergency room for additional treatment. I know how scary that is.

    I’m the Founder of Kids With Food Allergies. Thank you for mentioning that we are a nonprofit here to help families online. We do offer peer support for parents with school age children on our support forums and our quarterly publication includes school planning information in the fall issues.

    Thanks again for letting families know we are available online. We are now the second largest member- based nonprofit in the U.S. for those dealing with food allergies.

    Lynda Mitchell
    http://www.kidswithfoodallergies.org

    Reply

  • David[at]childfoodallery.com · March 26, 2007 at 11:27 pm

    As a parent of a food allergic child, you understand the safety and emotional issues. As an attorney, you understand the legal issues.

    Us, non-legal types, are providing support and advice for practical parenting of a food allergic child. We appreciate you fighting the good fight and making it safer for all of us. Keep up the good work!

    Reply

  • Gary@FoodAllergyAction · April 11, 2007 at 10:19 pm

    Robert,

    I’d also like to add another site to your list of references.

    Education and Advocacy Solutions is a site which is an educational resource for parents, advocates, and school personnel who seek accurate and current information about advocacy strategies.

    http://www.foodallergyadvocate.com

    Rhonda Riggott Stevens, who runs the site, was an early pioneer in the application of Section 504 law to the management of life-threatening food allergies. Several years ago, she developed a comprehensive 504 Plan outline (available for free on her site) which is often looked to as the “gold standard” for parents seeking guidance for considering critical areas for potential accommodations in a school environment.

    Reply

  • Anonymous · May 14, 2007 at 10:16 pm

    Great comments. The Illinois Food Allergy Education Association is another very informative website which explains Illinois law and food allergies. Visit http://www.illinoisfaea.org.

    Reply

  • Anonymous · February 7, 2008 at 10:06 am

    I can understand the difficulty parents must face with children that have food allergies. However, I think that it is unreasonable to impose restrictions on the ast majority of persons regarding their food choices. My children’s school is trying to impose a peanut free school environment on 300+ kids for one young girl. This is an unreasonable burden on parents and children both as food choice and the potential guilt should something slip through that has peanuts or peanut oil in it. There are reasonable situations acommadated in public places such as wheel chairs, but to place this medical burden on the population at large goes too far.

    Reply

  • For My Daughter! · May 24, 2008 at 11:37 pm

    Dear anonymous,
    You are ignorant! God forbid you have a child that you have to worry about accidentally coming in contact with food that could KILL them. Is it so much to ask my child’s school to protect her? Put yourself in our shoes!!!!

    Reply

  • Jessica · September 10, 2008 at 4:02 pm

    I have a question and a comment.

    First, I know that public schools, because they are federally funded are required to create a 504 plan for children with food allergies at the request of a parent…if a summer camp, YMCA etc is federally funded are they also required to implement a 504 at the request of a parent…?

    Second, I find it hard to believe that there is only one peanut allergy in 300 children at Anonymous’ school…her parents may be the only ones making a stink about the current policy. Regardless, the guilt you feel when you accidentally slip something into school w/ peanuts or peanut oil on it is nothing compared to the guilt a child will have when they accidentally cause a reaction or death of a classmate. This is not a one sided coin.

    Reply

  • melissa huston · May 24, 2010 at 10:38 pm

    Dear anonymous,

    I’m shocked at people like you, you are selfish and very self centered. You have no idea what it is like to have a child with a severe allergy, if you did you would not make such an ill informed statement as this. My daughter has lived with this condition her entire life and to be honest most people have accomodated her, helped, self sacrificed for her, without giving it a second thought. Unfortunately there are those few people such as yourself, that make me fear for my daughters very life. Maybe it is you that should not be allowed to live and have freedom in this society.

    Reply

  • Tito · February 4, 2014 at 10:00 am

    This column is the problem with America today! One persons problem becomes a Nations burden. I have had Celiac (Gluten allergy) my entire life (40yrs) and no one tried to impose a gluten free school…it’s ridiculous. Gluten is in everything!! My diet was managed by my MOTHER, not by relying on someone else to raise her child or deal with her family issues. She packed my lunch everyday and we adapted and overcame the inability for me to “dine” on the delicious school pizza and chicken nuggets that were being served and consumed by my grade school friends. Questions were difficult to answer for me as a child, and of course i got made fun of when i had hot dogs in boiling water in a thermos, but what we didn’t do is whine and cry and attempt to make my health issue everyone elses problem! Ban peanut butter and jelly from grade school kids??…give me a friggen break!! Lets cancel christmas because i know some children that have allergies to pine tree needles….you people are friggen ridiculous! Stop bringing EO into everything you do and adapt and overcome lifes problems..its people like you that are weakening our Nation from top to bottom! Disgusted with everyone ..Woman/ Man up, deal with the hand God gave you, and quit looking for the easy way out!

    Reply

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