Food Allergies and the Law

[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.