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Best Practices: Labeling of “Gluten-Free” Menu Items and Allergen-Containing Menu Items

Contributed by attorneys Christine Coleman and James Foster of McMahon Berger, PC

The number of Americans suffering from food allergies has been increasing over the years. Tens of thousands respond to emergency rooms every year for treatment of food-allergy reactions, some of which can result in a fatality. Preventing such food-allergy reactions should be of significant concern to those serving food to the public.

The most common food allergies are to eggs, fish, milk, nuts from trees (including hazelnuts, coconuts, walnuts, almonds, and Brazil nuts), peanuts (groundnuts), shellfish (including shrimps, mussels, and crab), soya and wheat. It goes without saying that restaurant employees – both front of house and back of house – must be educated on common allergens and the restaurant’s policies and abilities to accommodate allergy sufferers.

While many restaurants wish to serve those who suffer from common food allergies, much care and consideration should take place before labeling an item as “free” from any particular allergen.

For instance, sufferers of celiac disease have an intolerance or reaction to gluten which can be found in wheat, barley, rye, spelt, and cross-breeds of those grains. The FDA has set forth a standard for labeling products as “gluten-free,” “free of gluten,” “no gluten, and “without gluten.” Such a food may not contain a gluten-containing grain, or be derived from a gluten-containing grain that has not been processed to remove gluten (e.g., wheat flour), and may not be derived from a gluten-containing grain that has been processed to remove gluten (e.g., wheat starch), if the use of that ingredient results in the presence of 20 parts per million (ppm) or more gluten in the food. In addition, any unavoidable presence of gluten in the food must be less than 20 ppm.

Though the FDA’s standard for “gluten-free” labeling does not presently apply to in-house made restaurant menu items, it is highly advisable to adhere to it in order to protect against adverse public health reactions, liability, and potential future trouble with the FDA. Practically speaking, most restaurants that serve gluten containing food items will have difficulty producing a “gluten-free” food item in the same kitchen. Restaurateurs who wish to serve the gluten-intolerant community should consider labeling menu items intended for the gluten-intolerant as “made with no gluten-containing ingredients” so that consumers are aware of the possibility of cross-contamination.

In preventing allergic reactions, communication among staff and with the public is absolutely vital. Menus items that contain a common food allergen should be labeled as such. Menus should also contain a conspicuous warning outlining which common food allergens are used in the kitchen and may have come into contact with other food being served. Also, guests should be instructed to let wait-staff know, before placing their order, if they, or someone in their party, suffer from an allergy.

For more than twenty years, Jim Foster and the attorneys at McMahon Berger, PC have provided complimentary assistance to MRA members through the MRA Labor Law Hotline.  The hotline remains the most utilized MRA member benefit.  For over two decades, our members have known that expert legal advice is just a phone call away.  Access the hotline by calling (314) 567-7350.

Author: MRA
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