Introduction

Food is a source of nutrition, social bonding, and cultural ties, but for those with allergies, it can be deadly. About one in ten American adults, and one in five American children, struggle with a food allergy.¹ Exposure to a specific ingredient or food item can range from mild effects, including itching, watery eyes, and runny noses, to severe outcomes, including anaphylactic shock and possibly even death.² While these outcomes vary in severity, a food allergy is a chronic and sometimes even lifelong health condition, requiring extensive management, such as regular medical attention, limiting social activities, and being vigilant about avoiding certain ingredients and types of food. ³

Since the general diagnosis and management of food allergies are through treating symptoms and avoiding allergens, most individuals tend to focus on the latter as a form of preventative care.⁴ This means that people with allergies must take a variety of precautions before they eat, including reading food labels, avoiding prepared foods at social events, and ensuring that no cross-contamination has occurred.⁵ These experiences can be challenging and expensive for those with food allergies, but that’s before the restaurant experience is taken into consideration.⁶ Given the space for cross-contamination and lack of knowledge surrounding ingredients in the dining out experience, many individuals with allergies approach restaurants with trepidation.⁷ Diners may call restaurants in advance to inform them about specific allergies or even print cards with guidance for chefs to apply when preparing their meal.⁸ Restaurants can also help lower the risk of food allergy reactions by training staff, using separate equipment, and having a plan in place.⁹ Even then, the risk of triggering an allergy remains high, as information may be lost in the chain of knowledge, both in the kitchen and outside of it. What could potentially alleviate this issue is developing an understanding of how these allergens are managed in restaurants and implementing regulations to empower consumers to make safe, healthy decisions when it comes to dining out.

While many restaurants, especially those of the chain variety, can provide guides to allergens in their dishes, or even a gluten-free menu, they are not legally obligated to provide food allergen knowledge to consumers, even when a dish contains a clear allergen.¹⁰ For instance, a pizza restaurant is not obligated to tell a consumer that a cheese pizza made of two potential allergens (dairy and wheat) contains those ingredients, even if it is obvious. Therefore, diners usually rely on their own due diligence, potentially involving reading blogs and word-of-mouth, to determine if a restaurant is safe to eat at.¹¹ To put it briefly: the onus of knowing what potential allergens are in a dish should not be on the consumer. Rather, a restaurant should understand its demographic, and prepare responses accordingly. This is critical for chain restaurants, who form the bulk of American dining out.¹²

Part II provides insight into the current landscape of food allergen law, as applied in a restaurant setting. Part III introduces a potential solution to regulating food allergens in chain restaurants. Part IV outlines further steps for applying this solution but concludes that little research has been done on this topic.

Background

In 2004, Congress created the Food Allergen Labeling and Consumer Protection Act, which covered packaged food items, such as a prepared tray of sushi a consumer may purchase in a grocery store.¹³ These sorts of items have a defined ingredient list, usually contain more than one ingredient, and would have a required allergen list.¹⁴ For instance, a tray of tuna wouldn’t need an ingredient list, but a prepackaged tray of tuna and crab sushi would and would also need an allergen warning about the seafood in it, a potential allergen. Federal law does not require retail or food service companies that prepare food to order (such as restaurants or deli counters) to share ingredient lists or potential allergy triggers with consumers.¹⁵ Essentially, that means that any dining establishment that prepares food specifically for each consumer does not need to provide them with an ingredient list or inform them that a dish contains allergens. Of course, most restaurants can and will provide ingredient lists, warn consumers about cross-contamination, and have signs indicating that dishes with allergens will be served, but there is no guarantee that this will happen since they are not legally required to do so.

There’s one exception to this federal law. If a restaurant or food service company prepares food and sells it for home consumption, those packages are required to list ingredients with allergy warnings.¹⁶ For instance, the Chicago deep-dish pizza chain Lou Malnati’s ships pizza directly to consumers’ doors.¹⁷ A consumer may determine that because a prepackaged cheese pizza doesn’t contain any major allergens (based on the ingredient list and allergy warnings) that the same cheese pizza, in the restaurant, would contain the exact same ingredients. But this is a faulty assumption. Recipes vary across restaurants, and prepackaged food may be made off-site, where it could be subject to radically different regulations.¹⁸

Another exception is that while restaurants are not required to label allergens in food that they serve, including mentioning whether a dish is gluten-free, they are required to do so for a prepackaged dish that is “gluten-free”.¹⁹ As an example, if the fast-casual Italian dining chain Olive Garden was to sell prepackaged, gluten-free pasta, they would need to adhere to the FDA rule on gluten-free labeling and ensure that the dishes they’ve labeled “gluten-free” should contain less than twenty parts per million of gluten.²⁰ While this rule does not apply to labeling menu items, the FDA suggests that restaurants making gluten-free claims on their menus adhere to the standard for gluten-free labeling of packaged food.²¹ These two loopholes, despite having potential, are not well-known to consumers, and apply in only a handful of situations, indicating the need for more comprehensive law.

The Food and Drug Administration (FDA) has created a Food Code, which is updated and published regularly.²² The 2022 Food Code mandates that the person in charge of a restaurant demonstrate knowledge of the nine major food allergens regulated by the FDA, and the symptoms of a food allergy reaction.²³ The person in charge (i.e., retail and food service managers) be made aware of the seriousness of food allergies, including the potential for anaphylaxis and death, understand food allergen ingredients and labeling, and learn to avoid cross-contamination in food preparation and service.²⁴ Food managers must also ensure that employees are trained in food safety, including food allergy awareness as it relates to their positions. The 2022 Food Code also encourages the industry to “to develop and implement operational-specific training programs for food employees.”²⁵

At the state level, laws have been adopted which have made it safer and easier for those with allergies to dine at restaurants. Massachusetts, the first state to enact a food allergy awareness law, has required restaurants to display a food allergy awareness poster in staff area, and include notices on menus reminding consumers to let their servers know if a person in their party has a food allergy.²⁶ Massachusetts has also required food allergy training for certified food protection managers, who are mandated to be on each restaurant’s staff, and issued a certificate by the state health department.²⁷ In Illinois, restaurants are required by law to have “at least one manager on duty who has had training in nationally recognized standards for food allergen safety and allergen awareness available at all times that the food service establishment is in operation.”²⁸

In Maryland, restaurants are required to prominently display a food allergy awareness poster in the staff area.²⁹ The state of Michigan compels food safety managers to take a training course with an allergen awareness component.³⁰ Rhode Island has followed in Massachusetts’ steps by passing similar legislation requiring a food allergy awareness poster and creating a public database for restaurants that are “Food Allergy Friendly.”³¹ Virginia mandated the state Board of Health to provide training standards that address food allergy awareness and safety in restaurant regulations, and the state’s Health Commissioner must also provide materials on food allergy awareness to all restaurant staff.³² New York City, and St. Paul, Minnesota, have also required posters with information on food allergies to be placed in food service establishments. ³³

While these efforts are valiant, the Food Code itself indicates that a vital tool in “controlling risk factors inherent in a food establishment is the development and implementation of written procedures or plans.”³⁴ Without a specific structure, restaurants, especially chain ones which may have allergen awareness strategies depending on the location, can struggle to meet consumer needs.

This is where the HACCP comes in. Short for Hazard Analysis and Critical Control Points, this is a system of process control designed to prevent food safety problems.³⁵ Introduced in 1995 by the FDA, the adoption of these procedures was initially mandated for seafood processors.³⁶ The Food Safety and Inspection Service of the U.S. Department of Agriculture (USDA) applied it a year later for meat and poultry processors.³⁷ What HACCP critically does, in comparison to the legislation already mentioned, is delineating the role that government plays in food safety.³⁸ With regards to production and processing, only restaurants can make food safe, requiring responsibility and accountability through each step of the process.³⁹ The government’s duty, as facilitated by HACCP, is to ensure that companies understand their responsibility towards those with food allergens by expressing it in the law, establishing standards based on available public health policy and research, and providing accountability for restaurants through appropriate oversight and enforcement.⁴⁰ Since HACCP has the potential to resolve many of the issues associated with allergen management in restaurant chains, it is worthy of research.

Method

Our research was divided into two steps: determining whether chain restaurants had restaurant-wide allergen management policies, and whether these restaurants had HAACP plans in their U.S. Securities and Exchange Commission reports. The latter step was included to demonstrate the organization’s commitment to allergen management. First, a list of fast-casual chain restaurants was compiled. We selected fifty fast-casual American restaurants, serving a variety of cuisines. “Fast-casual restaurant” was defined as those with a self- or limited-service format, an average meal price between eight to fifteen dollars, offering made-to-order food in a more upscale setting without a drive-through. We primarily looked for national outreach (how many locations did each restaurant have?) and sales (how many individuals did each chain serve?). Thus, our list ranged from big players including Chipotle and Panda Express, to up-and-coming chains such as Sweetgreen. We reviewed restaurants’ websites and spoke to staff members at various locations (primarily in Illinois) to determine that most chains did not have a strategic allergen management plan in place. While most restaurants had online menus mapping nutrition information and allergens, those were less prominent in-person. For example, one fast-casual chain restaurant mentioned that a dish had nuts on the menu in-person and informed consumers that the dish contained nuts. However, we were informed that this was not a chain-wide policy, and subject to manager discretion.

Our research also determined that while many chain restaurants demonstrated a commitment to allergen management, through posting signs and informing consumers about allergens, there was no mention of HACCP plans in any of the SEC disclosure reports that we reviewed. Given that many of these chain restaurants were linked to larger parent companies, the parent companies’ reports did not provide any references to HACCP plans as a form of allergen management, and minimal references to allergen management at all.

Further Steps

The Food Code states that before implementing a HAACP plan, “a strong foundation of procedures that address the basic operational and sanitation conditions within an operation” must be implemented. This could, of course, include allergen management. Though the Food Code encourages “implementation of food safety management systems based on HACCP principles," this is strictly “voluntary” at the “retail level.”⁴¹ Encouraging restaurants to adopt allergen-specific HAACP plans could provide greater peace of mind to consumers. But further research is necessary regarding the economic costs/benefits of HACCP from a restaurant’s operational perspective as well as benefits to consumers. In addition, a deeper understanding and comparison of chain restaurant allergen policy is necessary, along with an analysis of HACCP references in other applications. From a biological/medical perspective, food allergens are complicated and the subject of increasing research effort to better understand the reported increase in diagnosed food allergens.⁴² With this initial research effort described above, we aim to contribute to a better understanding of the regulatory landscape and how it can encourage more proactive measures in the restaurant context.