May Contain Peanuts, Eggs, and a “Natural” Solution: How to Challenge Food Manufacturers’ Harmful Use of Precautionary Allergen Labels
By JJ MARK. Full Text.
Food allergies are one of the most pressing health issues of our time. Around thirty-three million Americans currently have food allergies, thirteen million of which are severe or life-threatening. These numbers continue to increase at alarming rates, with an estimated one in thirteen children being diagnosed with food allergies every year. Despite this surge, much is still unknown about food allergies, including, most notably, the underlying causes and potential cures. Currently, the only recommended treatment method is strict avoidance, leaving those with food allergies almost completely dependent on food labeling.
Despite the importance of food labels for those with allergies, Congressional action in the area fails to properly protect those with food allergies. In 2004, Congress passed the Food Allergen Labeling Consumer Protection Act (FALCPA), which mandates clear disclosure of the eight major allergens on food labels. Without question, this requirement made life easier for those with food allergies. Nevertheless, the FALCPA still falls short because it does not cover precautionary allergen labels (PALs). These advisory labels are below the ingredient list and state something like “may contain [allergen].”
PALs were originally intended to warn consumers of the risk of cross-contamination, but their current use has strayed far from this intended purpose. Because of the economic incentive they provide—applying a PAL is cheaper than adhering to stringent manufacturing hygiene—food manufacturers are applying PALs in a pervasive, haphazard way. This has caused PALs to lose all credibility amongst those with food allergies. In fact, most consumers now ignore them, creating the potential for an allergic reaction— the very thing PALs were intended to prevent. This Note provides a path to challenge food manufacturers’ haphazard PAL use through litigation. This Note first urges Congress and the FDA to standardize them. Since this is unlikely, the Note then urges consumers to act by filing lawsuits. Though PALs seemingly shield manufacturers from liability under traditional common law theories, this Note articulates an alternative approach through California’s consumer protection statutes. This approach draws heavily on one taken by consumers challenging manufacturer use of the term “natural,” which is similarly unregulated. Most “natural” lawsuits settled, but consumer action created a powerful deterrent effect that caused a sharp decrease in the use of the term. This Note concludes that this litigation approach is the best—and perhaps only—way for consumers to reduce PAL use and return them to their intended purpose.