Food allergen law and the Food Allergen Labeling and Consumer Protection Act of 2004: falling short of true protection for food allergy sufferers

Abstract

In 2004, Congress mandated labeling of food allergens on packaged foods for the first time by passing the Food Allergen Labeling and Consumer Protection Act (FALCPA). FALCPA requires that manufacturers of foods containing one of the eight major allergens responsible for 90 percent of food allergies either state on the food's packaging that the food contains the allergen, or refers to the allergen by a name easily understandable by consumers in the ingredients listing. Despite this important first step in protecting consumers with food allergies, FALCPA left unregulated the use of conditional precautionary statements (e.g., "may contain [allergen]"), which many manufacturers have used as a low-cost shield to liability. Further, FALCPA applies only to packaged foods, and does not mandate listing of food allergen ingredients in restaurants. This article discusses the history of food allergen litigation in the United States, highlighting the problems plaintiffs have faced in seeking recovery for allergic reactions to a defendants' food product, and some of the practical difficulties still extant due to the lack of regulation of precautionary statements. Also presented is a review of the Massachusetts Food Allergy Awareness Act, the first state legislation requiring restaurants to take an active role in educating employees and consumers about the presence and dangers of food allergens.