The U.K. Restaurant Food Allergy Trial - Implications in the U.S.

By Mary Vargas  

maryvargas-150x150It was days before Christmas this past December and we were at a café in London, hoping to enjoy our first international meal. We had already by-passed two other restaurants without any safe options for our peanut and tree nut allergic son to eat. We were jet-lagged and hungry. When I asked about the ingredients in the pizza, the waitress answered, “It isn’t worth me going to jail over.” She didn’t say this unkindly. “Let me get you the manager and an allergen menu,” she concluded.

As a parent simply asking about the ingredients in my child’s food, this open acknowledgement by a restaurant server that my question was one of life and death was startling to me. Certainly we have dined at restaurants in the United States where our questions were taken seriously and answered fully, but never before had a server expressed concern that in answering our question wrong, they might risk criminal prosecution. This is the legacy of the criminal prosecution of Mohammed Zaman in the United Kingdom, even before the final bell of his conviction had rung.

In January 2014, Paul Wilson ordered curry from an Indian take-out restaurant in North Yorkshire owned by Zaman where Wilson had safely eaten before. According to the extensive news coverage the case received, Wilson informed the server – as he always had - that he was allergic to peanuts and asked if there were any peanuts in the curry. The restaurant workers assured Wilson that there were no peanuts in the curry and when his order was handed to him, it even said, “No nuts” on the lid. Hours later, Wilson was dead of an anaphylactic reaction, caused by peanut flour the restaurant owner had used to replace the more expensive almond flour in his curries. Journalists covering the case reported that this was not the first customer to suffer for Zaman’s use of peanut flour – just weeks before another peanut-allergic customer had suffered an anaphylactic reaction and had informed Zaman of the consequences of his actions. Despite knowledge of the risk, Zaman took no steps to protect peanut allergic customers, and he was convicted of manslaughter. This week, Zaman was sentenced to six years in jail for Wilson’s death.

What impact Zaman’s prosecution and conviction will have on restaurant policies and practices in the United States remains to be seen. In the United States there have certainly been criminal prosecutions of people who have knowingly exposed people with food allergies to their allergens, but surprisingly both the accused and the victims in cases where criminal charges were filed have more typically been children. For example, in 2008 a teen in Washington State was jailed for smearing peanut butter all over the face of a classmate. Likewise, a middle school student in Kentucky was arrested on felony endangerment charges after putting peanut butter cookie crumbs in an allergic classmate’s lunchbox.

However, the criminal prosecution in 2011 of the owner of Great Specialty Bread, Co., Paul  Seelig, in North Carolina, bears some similarity to the conviction of Zaman. At trial, Seelig admitted that he purposely mislabeled bread as gluten-free and sold it to customers at the North Carolina State Fair who had celiac disease. Seelig was convicted of 23 counts of fraud and sentenced to 9 to 11 years in jail for intentionally misleading customers into believing they were eating bread that was gluten-free with the result that many customers with celiac disease and gluten sensitivities became ill.

Given the appalling statistics on food allergy bullying and anecdotal reports of deliberate exposure to allergens by both children and adults who know better, it is surprising that there have not been more criminal prosecutions in this country. Perhaps the explanation for the paucity of criminal prosecutions lies in a culture that is only beginning to view food allergies with the seriousness the topic merits. When news anchors, talk radio hosts, and employers, still see food allergy as a joke, it is hardly surprising that the police would not investigate reports by food allergic individuals who have experienced deliberate exposure.

In the wake of Zaman’s prosecution, restaurants in the United States should certainly be re-examining their policies and practices with respect to food safety, including food allergy safety, and should be ensuring that they are satisfying the duty of care owed to their food allergic customers.

Mary C. Vargas is a partner at Stein & Vargas, LLP, a civil rights law firm that focuses on nationwide impact litigation to ensure equal access for individuals with disabilities. Vargas has won critical victories in significant disability discrimination litigation and has a special interest in food allergy law. In 2015, Vargas joined Laurel Francoeur and Homa Woodrum in founding the Allergy Law Project, a free resource that provides balanced and responsible information about the intersection of food allergy and law.  Vargas previously was a guest speaker for FARE’s “Food Allergies in the Workplace” webinar, which discussed the rights of applicants and employees with disabilities, with special focus on food allergies.