Food Allergies: Common Questions about Public Policy, Advocacy and the Law
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Food Allergy Public Policy & Advocacy
Labeling Policy & Issues
Restaurant Policy & Issues
Discrimination and the Americans with Disabilities Act
Travel Policy & Advocacy
School Policy & Issues
Food Allergy Public Policy & Advocacy
How does FARE get involved with food allergy advocacy?
FARE is the leading national organization working with, and on behalf of, individuals with food allergies, including those at risk for life-threatening anaphylaxis. FARE works with individuals and families, business and community leaders, and policymakers at all levels of government on regulations and laws focused on improving the safety and inclusion of people living with food allergies.
FARE is active in a variety of issues involving preparedness and accommodation by schools, colleges and universities, restaurants, public entities, and the travel industry (airlines, hotels, etc.), as well as emergency services and food manufacturing. Additionally, FARE is focused on improving access to care for those with food allergies and accelerating the development of therapies that may improve their lives.
What are FARE’s current advocacy initiatives?
FARE's advocacy work covers some of the most significant and challenging public policy issues facing the food allergy community. Presently, FARE’s advocacy initiatives include:
I would like to get more involved in state and/or national policy regarding food allergies. How do I start?
Volunteer advocates are essential to FARE's advocacy program. We need people willing to take action and/or share their stories and passion for change. FARE welcomes individuals to become advocates by getting involved in their local communities and beyond. If there is an issue important to you, FARE has resources to help you reach out to state and federal lawmakers. FARE’s Advocacy Toolbox can help get you started.
Additionally, you can join FARE’s Advocate Network to stay updated on national and state food allergy issues and important alerts. For additional questions about how you can get involved, email FARE’s advocacy team.
Where can I find information on federal laws that are relevant to people with food allergies?
There are a number of federal laws and/or guidelines that have been enacted to protect individuals with food allergies, including the following:
- The Food Allergen Labeling and Consumer Protection Act (FALCPA) took effect Jan. 1, 2006, and requires that the labels of foods (including conventional foods, dietary supplements, infant formula, and medical foods) containing the top eight major food allergens (milk, eggs, fish, crustacean shellfish, peanuts, tree nuts, wheat and soy) note the allergen in plain language, either in the ingredient list or via the word “Contains” followed by the name of the major food allergen or in the ingredient list in parentheses. View the FALCPA FAQ sheet for more detailed information.
- The Food Allergy & Anaphylaxis Management Act (FAAMA) was signed into law in 2011. The law required the U.S. Secretary of Health and Human Services to develop a voluntary policy to manage the risk of food allergy and anaphylaxis in schools. In 2013, those guidelines were published by the Centers for Disease Control and Prevention. FARE was a participant in the development of those guidelines.
- The federal School Access to Emergency Epinephrine Act was signed into law in 2013 and encourages states to adopt laws requiring K-12 schools to have on hand “stock” epinephrine auto-injectors (EAIs). In addition to protecting those whose EAI is not immediately accessible during a reaction, the legislation helps save the lives of those who experience a reaction, but don’t have a prescribed EAI. The law does not mandate that states require their schools to stock EAIs, but it does provide an incentive to those states that do. To date, nearly all states and the District of Columbia have enacted legislation, with the majority permitting stock EAIs, not requiring them.
- The Food Code is a summary of the U.S. Food and Drug Administration’s (FDA) best advice for uniform systems and practices that address the safety of food sold in food service and certain retail establishments. The Code is used by state, city, county, tribal, and territorial agencies to help regulate restaurants, retail food stores, and vending and food service operations in institutions such as schools, hospitals, nursing homes, and child care centers. The last revision, in 2013, included provisions designed to improve how restaurants address the needs of customers with food allergy, including a push for restaurant and retail food service managers to be aware of the serious nature of food allergy. Individual states must adopt the Food Code, and the status of adoption by state can vary.
Additional federal laws and regulations can been viewed on FARE’s Advocacy web page.
How do I find out what laws and/or guidelines my state has in place in regards to food allergy issues?
On its web site, FARE lists the current status of the following laws and policies and their respective states: stock epinephrine in schools, stock epinephrine in public entities, stock epinephrine in higher education, restaurant awareness/safety, and the Centers for Disease Control’s school guidelines.
How can I help enact laws requiring restaurants to be trained in food allergy awareness?
FARE works with individuals, policymakers and restaurant industry groups to advocate on behalf of families managing food allergies. New York City, St. Paul, MN and five states—Massachusetts. Michigan, Rhode Island, Maryland, and Virginia—have laws designed to make it safer for individuals with food allergies to dine out. The current laws, which range from posting an allergy poster for staff to requiring training, may serve as models for restaurant legislation in other states. For more information, click here.
FARE has also created a Volunteer Advocacy Toolkit for individuals to use in promotion of the SafeFARE Restaurant program—which offers tools for both those with food allergies and for restaurants to help create a safer dining experience. While this toolkit is specific to reaching out to local restaurants, the talking points highlight the importance of welcoming and accommodating diners with food allergies.
How can I find out if my state allows undesignated stock epinephrine in public entities, like amusement parks and stadiums?
Several states have laws that allow undesignated stock epinephrine to be stored and administered in public places. To learn more about these laws and to see which states currently have laws in place, please click here.
I live in a state that currently allows public entities to have undesignated epinephrine. How can I encourage a venue in my area to stock epinephrine?
FARE greatly appreciates your interest in raising awareness of these important laws that allow for access to life-saving epinephrine in public venues. The laws in each state vary in their definition of “authorized entity.” Laws pertaining to public access to epinephrine can be found here.
The laws may also define what’s required in terms of training, obtaining, storing and administering epinephrine in allergic emergencies. Once you’ve identified some potential entities covered under the law, consider reaching out directly to them to show your support for stocking life-saving epinephrine.
Tips on Reaching Out to Public Venues
- Make an appointment during non-peak hours so that the owner or manager has more time to speak with you.
- Bring a copy of the Food Allergy in the U.S. Infographic to highlight the prevalence of food allergies in the U.S. If possible, also bring information about your state’s access to epinephrine law and leave it with the owner/manager for continued review after you leave.
- Brief is best. Be respectful of time constraints.
With each conversation, you are planting a seed of knowledge about food allergy that has the potential to continue to grow. Some of the people you talk with will later consider stocking undesignated epinephrine. Others may not. Often, you will not know the direct outcome of your conversation in the short term, but your visit matters because it will have added to that establishment’s knowledge and information. FARE provides a toolkit to help families advocate for epinephrine in their schools. Email email@example.com for a copy.
Are colleges and universities considered “entities” in the states that have laws allowing public entities to have undesignated epinephrine?
The definition of entities varies from state to state, but for illustrative purposes, may include day camps, youth recreation programs, theme parks, daycare centers, restaurants, sports arenas and college campuses. You can find links to look up state entity laws here.
Are there specific stock undesignated epinephrine laws for college campuses?
Currently three states — Indiana, New Hampshire and New Jersey — have laws that allow, but do not require, post-secondary education institutions to stock undesignated epinephrine. The laws differ by state, but provide exemption from civil liability and outline specific requirements for training personnel, as well as how to maintain, store and administer the epinephrine.
Other states have passed broader legislation that allows public venues, referred to as entities, to stock undesignated epinephrine. Some states specifically name post-secondary institution as entities. To review currently passed entity legislation, click here.
I have an idea for a law regarding food allergies. What should I do next? ?
First, FARE recommends reviewing the links on its Advocacy Priorities web page to ensure your legislative idea isn’t already in place or in process (for example, you may want a law that requires stock epinephrine in schools in Virginia, but that law is currently in place). If your idea isn’t duplicative, email FARE’s advocacy team to share and a member of the team will respond.
Labeling Policy & Issues
Are food manufacturers required to include a statement on food labels that provides information on possible cross-contact with allergens?
The Food Allergen Labeling and Consumer Protection Act (FALCPA), which took effect Jan. 1, 2006, requires that the labels of foods (including conventional foods, dietary supplements, infant formula, and medical foods) containing the top eight major food allergens (milk, eggs, fish, crustacean shellfish, peanuts, tree nuts, wheat and soy) note the allergen in plain language, either in the ingredient list or via the word “Contains” followed by the name of the major food allergen or in the ingredient list in parentheses.
The use of advisory labeling (i.e., precautionary statements such as “may contain,” “processed in a facility that also processes,” or “made on equipment with”) is voluntary and optional for manufacturers. There are no laws governing or requiring these statements, so they may or may not indicate if a product contains a specific allergen. According to the FDA’s guidance to the food industry on this issue, advisory labels “should not be used as a substitute for adhering to current good manufacturing practices and must be truthful and not misleading.”
This may mean that such precautionary statements (or absence of such a statement) may or may not truly indicate if a product is at risk for cross-contact. Additionally, the term “allergen-free” is not defined by the FDA or other regulatory body. We realize this creates confusion for our community, and are continuing to pursue this as part of our food industry initiatives. With this in mind, if someone is unsure whether or not a product could be contaminated, we recommend calling the manufacturer with questions in relation to your specific allergens and the manufacturer’s ingredients/practices.
In September 2015, the FDA announced new regulations that include several provisions related to food allergen cross-contact. While previously the FDA urged manufacturers to be careful to avoid the unintended presence of allergens in foods, now the industry is required to avoid the unintended presence of allergens in foods through a series of specific preventive controls. If they don’t follow these controls, the food will be considered adulterated and misbranded by the FDA and subject to new enforcement tools, including the authority to mandate recalls for unsafe food (recalls in the past have been voluntary).
Food companies are now required to keep records for each preventive control step, including food allergen preventive controls. Those records must be accurate and must be made available to the FDA upon request. Access to the required food safety records will help the FDA identify companies that have not implemented preventive control protocols.
FARE provided input to the FDA during the creation of the regulations; specifically on six components of the provisions. Read more about the regulations at FARE’s blog post New FDA Requirements on Food Safety Elevate Allergen Controls.
The new regulations were developed as a result of the passage of the Food Safety Modernization Act (FSMA), which was signed into law in January 2011. This is a major food safety amendment to the federal Food, Drug and Cosmetic Act. The purpose of the law is to put much more emphasis on preventing all types of food safety problems. FSMA includes provisions intended to prevent the inadvertent presence of food allergens in most foods that are sold in grocery stores.
I would like to see an additional item(s) added to the list of allergens currently required to be highlighted on food labels. Who do I contact?
While more than 160 foods have been identified in the scientific literature as triggering food allergies, the Food Allergen Labeling and Consumer Protection Act (FALCPA) limits the labeling requirements to eight food allergens that account for the vast majority of all food allergies in the U.S. These eight foods/food groups are milk, egg, fish (e.g., bass, flounder, cod), crustacean shellfish (e.g., crab, lobster, shrimp), tree nuts (e.g., almonds, pecans, walnuts), wheat, peanuts, and soybeans, or an ingredient that contains a protein derived from one of these foods.
The Food and Drug Administration (FDA) oversees FALCPA. Since taking effect in 2006, no additional foods have been added. However, in June 2015, U.S. Sen. Chris Murphy (CT) sent a letter to the FDA regarding the expansion of FALCPA to include sesame, which has become an increasingly common food allergen. You can read more about this on FARE’s blog post, FARE Supports Calls for Addition of Sesame as a Major Food Allergen.
In November 2015, an updated version of the Food Labeling Modernization Act (FLMA) of 2013 was introduced by U.S. Reps. Frank Pallone (NJ) and Rosa DeLauro (CT) in the House of Representatives (H.R. 4061) and by U.S. Sens. Richard Blumenthal (CT) and Ed Markey (MA) in the Senate (S. 2301). The bills include the addition of sesame to FALCPA.
Letters and calls to members of Congress may garner additional support of sesame labeling. To find the contact information for your elected officials, click here. Additionally, let FARE know if the inclusion of a particular food allergen in the labeling law is important to you by emailing firstname.lastname@example.org.
My child had an allergic reaction to a product that did not have any of his allergens listed on the label. Where do I file a complaint?
If you believe that a product is mislabeled or contaminated, contact your state FDA consumer complaint coordinator. You can also contact the FDA’s Center for Food Safety and Applied Nutrition Adverse Event Reporting System by phone at (301) 436-2405, by email at CAERS@cfsan.fda.gov, or by mail at FDA, CAERS, HFS-700, 2A-012/CPK1, 5100 Paint Branch Parkway, College Park, MD 20740.
FARE is not a regulatory body, but rather a patient advocacy organization, and it works to connect consumers with FDA to report potential issues.
Restaurant Policy & Issues
I had an allergic reaction while eating out, even though the waiter said the food I ordered would be safe. What are my legal rights against the restaurant?
If you have an allergic reaction after disclosing your allergy and being told the food would be safe, the restaurant may be liable, depending on your state’s laws. If a restaurant voluntarily agrees to serve an “allergy-safe” meal, there is an implied warranty that the meal is safe. Some states hold businesses strictly liable for breach of warranty, some do not. Please note that FARE is neither able nor qualified to provide legal advice and cannot intervene in individual cases.
As a reminder, diners should always disclose a food allergy to restaurant staff before ordering. For more information, as well as tips on how to have a safer dining experiences, we encourage you to check out FARE’s Dining Out web page. There, you will find tools and resources for both those with food allergies and restaurants. The information on the Dining Out web page is intended to help reduce the risk of a food allergic reaction; however, eliminating all risk is not always possible even with training and open communication between diners and restaurant staff. FARE applauds restaurants that recognize the importance of educating staff and making sure diners with food allergies remain safe and keep coming back to their restaurants
Discrimination and the Americans with Disabilities Act
What is the Americans with Disabilities Act (ADA) and how does it apply to people with food allergies?
The Americans with Disabilities Act (ADA) prohibits discrimination and ensures equal opportunity for persons with disabilities in employment, state and local government services, public accommodations (e.g., restaurants, hotels, theaters, retail stores, museums, libraries, parks, daycare centers), commercial facilities (e.g., privately owned office building, factories, warehouses), and transportation (with the exception of commercial airplanes; see Travel Policy & Advocacy below).
Under the ADA, a disability is defined as a physical or mental issue that seriously limits one or more major life activities. Life activities include things like your heart and circulatory system, eating and your digestive system, breathing and your respiratory system, and more. All of these life activities are at risk for a person with a life-threatening food allergy. For more information about food allergies and the ADA, view:
Can a child be turned away from a camp or child care center because of a food allergy?
Children with food allergies may have protection under the Americans with Disabilities Act (ADA). Public and private child care centers and camps must provide reasonable modifications of their policies, practices and procedures when necessary to enable students/campers with disabilities to participate fully in programs, unless the organization can demonstrate that the necessary modifications would fundamentally alter the nature of the services and activities offered. Please note that camps and child care centers runs by private religious schools or institutions are sometimes exempt from the ADA.
The ADA has an information line you can call (1-800-514-0301) for guidance on a specific situation. ADA Specialists, who assist callers in understanding how the ADA applies to their situation, are available on Monday, Tuesday, Wednesday, and Friday from 9:30 a.m. until 5:30 p.m. (Eastern Time) and on Thursday from 12:30 p.m. until 5:30 p.m. (Eastern Time). Calls are confidential. Additional resources:
Are restaurants required to comply with Americans with Disabilities Act (ADA)?
A restaurant may have to take some reasonable steps to accommodate individuals with disabilities where it does not result in a fundamental alteration of that restaurant's operations. By way of example only, this may include: 1) answering questions from diners about menu item ingredients, where the ingredients are known, or 2) omitting or substituting certain ingredients upon request if the restaurant normally does this for other customers.
The ADA has an information line you can call (1-800-514-0301) for guidance on a specific situation. ADA Specialists, who assist callers in understanding how the ADA applies to their situation, are available on Monday, Tuesday, Wednesday, and Friday from 9:30 a.m. until 5:30 p.m. (Eastern Tim
Travel Policy & Advocacy
Are airlines required to comply with the American Disabilities Act (ADA)?
No. The Air Carrier Access Act is the federal law that protects the rights of people with disabilities in air travel. Under the Act, domestic and foreign passenger airlines are prohibited from discriminating against people with mental or physical disabilities. The Act only covers passenger airlines that are open to the public.
Does an airline have to ban peanuts/tree nuts on a flight if someone with such an allergy is on board?
Airlines are not required by law to ban any food allergen from a flight due to a passenger’s allergy, and the federal Department of Transportation (DOT) does not have the authority to direct airlines to do so. In 2010, the DOT considered restricting peanuts from airlines, but was told by Congress that it could not do so because it would violate Section 346 of the DOT and Related Agencies Appropriations Act of 2000, which mandates a scientific study before requiring an air carrier to ban peanuts.
Depending on the airline, accommodations may be made at the passenger’s request, such as making a pre-flight announcement requesting that passengers not consume peanuts, pre-boarding to wipe down the seating area, replacing peanut snacks with another item (like pretzels) and/or creating a nut-free “buffer zone” a certain number of rows in either direction from the passenger with the allergy. It is important that the passenger notify the airline when booking the flight, arriving at the departure gate and boarding the plane. Policies of large U.S. airlines on the serving of peanuts/tree nuts are available on the DOT’s web site. Allergic Living also provides a review of most U.S. and many international airlines on its web page, Comparing the Airlines’ Allergy Policies.
Airline safety is a top priority for FARE. Currently, FARE is working with other food allergy organizations and several members of Congress to pass the Airline Access to Emergency Epinephrine Act. This bill directs the U.S. Government Accountability Office (GAO) to generate a national report examining airline policies for accommodating passengers with food allergies, and would require airlines to carry epinephrine auto-injectors for use in allergic emergencies. (Let your legislators know this issue is important to you by vising FARE’s Action Center and sending a letter.)
School Policy & Issues
Are there laws regarding nut-free classrooms and/or schools?
There are no federal or state laws regarding nut-free classrooms and/or schools; rather, policies/guidelines as to whether or not a school restricts nuts, or any other allergen, are implemented at the school or district level. Because of this, school-wide allergen restrictions, such as a nut-free policy, can be very difficult to implement and enforce in a technical, standard way. The CDC addresses this topic on page 37 of its Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Education Programs.
Federal laws are in place to address the needs of students with food allergies, which may be considered a disability under Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act. Likewise, FARE maintains a position that allows for safety, inclusion, and good management/emergency response practices for all students with food allergies. The CDC Guidelines state that any student at risk for anaphylaxis should have an individual written accommodation plan. In public schools, this plan will often be a Section 504 plan. In private schools, a similar written plan will serve the same purpose. CDC Guidelines also provide that every school should have a Food Allergy Management and Prevention Plan that outlines the school or district’s overall policy and procedures for managing food allergies and schools are encouraged to consider using food-free constructive classroom rewards as an overall best practice.
Avoiding the use of identified allergens in classroom activities and celebrations, as well as reducing allergen exposure risk in cafeteria settings through cleaning, hand-washing, and safe seating options, may be requested as accommodations for a written plan.
I want my child to carry his epinephrine auto-injector, but the school nurse says he can’t. Is there a law that says he can?
Every state in the country has legislation in place allowing students, with appropriate consent (typically from a physician), to carry prescribed epinephrine at school. Depending on the wording of the law, the permission to carry may also extend to activities held on school property, and during transportation to and from school or school-related events. Click here to access information about the law in your state.
Where can I find out if my state allows undesignated stock epinephrine in schools?
Nearly every state has passed legislation or guidelines regarding stocking undesignated epinephrine auto-injectors. Click here to view a map of the current status of undesignated stock epinephrine in states across the U.S.
My state allows stock epinephrine in schools, but my child’s school doesn’t have any in the building. Is that legal?
While almost all states have passed legislation or guidelines regarding stocking undesignated epinephrine auto-injectors in schools, the rules differ by state. Some states require schools to stock epinephrine and other states allow schools to stock epinephrine. If a state allows schools to stock epinephrine, they are not required to do so. Click here to view a map of the current status of stock epinephrine in states across the U.S. FARE provides a toolkit to help families advocate for epinephrine in their schools. Email email@example.com for a copy.