The Centers for Disease Control and Prevention estimates that 48 million people or 1 in 6 Americans experience a foodborne illness every year as a result of consuming contaminated food or drink and roughly 128,000 people in the US are hospitalized due to foodborne illness. There are many different pathogens or disease causing microbes that can cause illness. Currently, there are 250 known pathogens that are responsible for 20% of the reported foodborne cases and the root cause of the remaining 80% of all cases are many unknown pathogens. Additionally, chemical contaminates such as pesticides can cause foodborne illness. In the US, the top five pathogens that cause foodborne illnesses are norovirus (58%), salmonella (10%), Clostridium perfringes (10%), and campylobacter (9%). However, salmonella infections are responsible for the most hospitalizations and for the most deaths out of any of the foodborne pathogens.

What is a Pathogen?

Foodborne pathogens can cause several different types of illness. Salmonella and noroviruses can cause illness by consumption of live pathogens that replicate and grow in the intestinal tracks which is called a foodborne infection. An organism like Bacillus cereus (a pathogen found in rice and grains) can cause illness through foodborne intoxication through the production of toxins and the live bacteria does not need to be consumed. These microorganisms typically do not make the food look, taste or smell bad so it impossible to determine if the food is contaminated.

For a pathogen to grow and proliferate, certain conditions must be met. The first one condition is that the pathogen or its toxin must be in the food. Many raw foods have naturally occurring background levels of pathogen contamination. These pathogens can thrive when the temperature and the nutrients are suitable for the pathogenic growth. Foods that are high in protein such as eggs, meat, fish, and milk can provide appropriate nutrient levels for pathogens. Additionally, foods that are slightly acidic (pH levels 4.6-7.6) also support microbiological growth. Additionally, foodborne pathogens grow best in foods that have a temperature of 70-104° F. It is essential that hot foods must be kept hot and cold foods must be kept cold to prevent growth. Common food service foods that have a higher risk of foodborne illness are rice, cooked or raw animal products, cooked or raw vegetables, raw seed sprouts, raw shell eggs or water cooled hard boiled eggs, cut melons, and garlic and oil mixtures.

Once a pathogen has been allowed to proliferate in a food, foodborne illness can set in following consumption of the contaminated food. Most foodborne illnesses can occur with 2-24 hours following consumption of the contaminated food but symptoms have been reported as far out as 30 days post-contaminated food consumption. The time of onset of foodborne illness symptoms can be pathogen dependent. The most common symptom is diarrhea but symptoms can include vomiting, cramping, fever, and flu like symptoms.

Prevent the problem before it happens

To avoid potential problems in foods, it is very important to control or eliminate pathogens in food products. HACCPS or hazard analysis and critical control points are your quality assurance and risk assessment steps. They include coming up with preventative measures; evaluating critical control points and preventing, eliminating or reducing risk; evaluating and establishing critical limits such as cooking temperatures; monitoring CCP’s with temperature measurements; corrective action; record keeping systems; and verification.

SOPs and employee education are essential in preventing foodborne illnesses. The SOPs should address everything from where the product can be ordered from to how it is received, how it is stored, how long it is stored, how it is prepared, where it is prepared, by whom it is prepared, how it is transported and how it is served. Comprehensive SOPs go a long way to not only preventing foodborne illness, but also defending claims. However, that is only if they are adhered to. Employee training should be conducted on a continuous basis and management should continually verify SOPs are being followed. There are also several training certifications in food handling such as those offered through ServSafe and Learn2Serve. These can be done online and provide management with valuable education in developing safe food handling protocols.

Summary

While a foodborne illness outbreak can be devastating to a restaurant there is no restaurant that in a single night can serve as many individuals as a hotel during a large conference banquet or buffet. Many foodborne illness claims originate from that exact setting. Often times there are numerous individuals who become ill. The assumption is that there must have been some adulterated food item they all consumed that made them sick. It could not possibly be a coincidence… but it could be something other than a foodborne illness! Reaction time and record keeping is crucial in defending these claims.

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Authors

Allison Stock – Principal Consultant/Toxicologist & Epidemiologist, Rimkus Consulting Group
astock@rimkus.com
504-832-8999

Dr. Allison Stock is an internationally known toxicologist and epidemiologist with 25 years of toxicological, epidemiological, regulatory, and environmental experience. Her background is supported by experience in the federal and state government and industry (small and Fortune 500 companies).

Dr. Stock specializes in human health risk assessments combing both toxicological and epidemiological data. She has expertise in petrochemicals, oil and gas, environmental permitting, property transfer, environmental, social, and health impact assessments, inhalation toxicology, renal toxicology, toxicological and epidemiological risk assessment, communicable and foodborne illnesses such as Legionellosis, E. coli infections, and Salmonellosis, rapid needs assessments, emergency response, ambient and indoor air exposure assessments including mold, particulate matter, and asbestos, occupational health and safety plans, drug and alcohol intoxications, and stakeholder communications.

Kari Jacobson – Shareholder, La Cava & Jacobson
kjacobson@lacavajacobson.com
(813) 209-9611

Kari Katzman Jacobson is a shareholder of La Cava & Jacobson, P.A. Born in Miami, Florida in 1967 she graduated from the University of Florida with a B.A. in 1989 and from the University of Miami School of Law with a J.D. in 1992. Ms. Jacobson began her career as a prosecutor, and then went on to defend self-insured companies, insurance companies and those whom they insure.

Ms. Jacobson was admitted to The Florida Bar in 1992 and has been admitted to the U.S. District Court, Middle District of Florida since 1994. She is a member of The Florida Bar Association; American Bar Association, Hillsborough County Bar Association, Collier County Bar Association and the Claims and Litigation Management Alliance. She is also a member of The Federation of Defense & Corporate Counsel. She is A.V. Peer Review Rated by Martindale-Hubbell.

Ms. Jacobson is certified by the Florida Supreme Court as a Circuit Civil Mediator. Her practice is primarily concentrated in the areas of general liability, premises liability, negligent security, construction litigation, professional liability, trucking and commercial freight defense litigation claims.

One issue that can lead to a recall is “mislabeling.” Mislabeling occurs when a food product’s label does not accurately reflect its ingredients. A common reason for a recall is improper identification of allergens. There are more than 160 foods that can cause allergic reactions in people with food allergies. The FDA recognizes the eight most common allergenic foods, which account for 90 percent of allergic reactions to food. Those are milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat and soybeans. These eight foods and any ingredient that contains protein derived from one or more of them are designated “major food allergens” by the Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA) and require specific labeling.

If a product is not properly labeled, the consequences could be life-threatening. A person with severe food allergies could experience anaphylaxis, which could lead to constricted airways, severe lowering of blood pressure and suffocation by swelling of the throat. Sometimes symptoms start out mild and can become more serious in a very short time. Allergic reactions can include hives, flushed skin or rash; a tingling or itchy sensation in the mouth, face and tongue; lip swelling; vomiting and/or diarrhea; abdominal cramps; coughing or wheezing; dizziness and/or lightheadedness; swelling of the throat and vocal cords; difficulty breathing; and loss of consciousness.

Many instances of mislabeling are caused by cross-contamination, which occurs when an allergenic or undesired product comes into contact with the product but is not listed on the label. Food product producers, manufacturers and distributors must take care to accurately label their products that contain allergens and to prevent cross-contamination. If contamination is discovered, a recall is likely on the horizon. It is imperative to notify the FDA, USDA and consumers promptly to prevent injury and contain the problem.

The FDA and the USDA have helpful guidelines and reporting links on their websites. For more information, see https://www.fda.gov/Food and https://www.fsis.usda.gov.

Social media has endless and valuable opportunities for the hospitality industry. From “valuable marketing” to connecting on a more personal level with consumers, social media can make or break a brand. However, in order to “maintain a positive reputation” on a world-wide platform like Twitter, it is important to take proactive measures. Completely controlling a wild beast like social media is an impossible feat. In this article, Charles Spitz and Benjamin Shechtman analyze a case involving Chipotle and a disgruntled employee and offer insight on the nuances of social media and the NLRA.

Read the full article here.

The first food allergy case I consulted on involved a man who told his server that he was allergic to seafood. She recommended that he order the French fries. The restaurant was extremely busy, which means the kitchen was very busy too. She eventually served him the French fries. The patron consumed them. Within 10 to 15 minutes he began to feel uncomfortable and made his way to the ER. Shortly after he arrived, the man expired. The cause of death was attributed to anaphylactic shock due to a seafood allergy. The fries were cooked in the same oil as the calamari. The restaurant had written policies in place which stated that the food for anyone with a seafood allergy was supposed to be fried in a separate pot with fresh oil. However, no one enforced or followed the rules. The restaurant was so inundated that there isn’t a clear idea of how or when the policy was violated. Either way, the lack of communication between the staff on food allergies probably resulted in the death of the man. Since the man was 72 years old, his family agreed to settle for $1.2 million. If the person had been younger, the settlement would have been considerably larger. All in all, had the restaurant followed the established allergy program, this tragedy could have been avoided.

The major food allergens to watch out for include: milk, eggs, peanuts, tree nuts (such as almonds, walnuts and pecans), soybeans, wheat, fish and shellfish (such as crab, lobster and shrimp). The latest allergy trend appears to be guests that request gluten-free products.

Some tips to manage allergy accommodation include having a written policy that has been fully communicated to the entire staff. All allergy training should be documented and employees should be evaluated for competency. The wait staff should be trained on how to effectively listen to the allergy concerns of their patrons and how to communicate their allergy needs to the kitchen staff. The restaurant needs to have a master menu that lists all of the ingredients required for that dish in case a patron inquires. The days of “Secret Recipes” are long gone. Transparency is the new standard. All servers should know who the most knowledgeable (PIC) about food allergies or ingredients on any given day if a patron has any questions.

Any allergy training should include a section that reviews the signs and symptoms of allergic reactions. It’s important that the staff understands that the symptoms of a food allergy tend to develop within minutes of exposure, but may take as long as two hours. The most frequent signs include: a) hives, itching, or skin rash; b) swelling of the lips, face, tongue and throat, or other parts of the body; c) wheezing, nasal congestion or trouble breathing; d) abdominal pain, diarrhea, nausea or vomiting; e) dizziness, light-headedness or fainting.

Of all the issues that a restaurant must deal with, it can seem like allergy accommodation is not a priority. However, this can be a life threatening matter. There are roughly between 200 to 300 reported deaths due to food allergies. In addition, there are over 30,000 ER admissions, half of which are due to restaurant related situations. One way to combat this situation is to purchase and provide kitchen staff with a purple allergy tool prep kit. Another way is to have an advisory notice on the menu that states if you have a medical condition or food allergy please inform your server. One best practice to institute would be to designate one person in the front of the house to deliver allergy safe orders to patrons and one person in the back of the house to prepare it. Since there are many issues to be confronted in regards to allergy accommodation, allergy programs should be reviewed by a food health and safety expert before training and implementation begins.

When the inevitable happens call 911 and report that a guest is having an anaphylactic shock at your establishment.

Food allergies are as unique as each individual who has them. To avoid problems in the future, food safety and allergy training are imperative to the success and safety of your restaurant.

Title III of the ADA requires hospitality operators to maintain facilities that are accessible to individuals with disabilities, and make their goods and services available to and usable by individuals with disabilities on an equal basis with members of the general public. This includes making reasonable modifications to policies, practices, and procedures when necessary to serve customers/guests with disabilities.

Lesley University had required all students living on campus to participate in, and pay for, its meal service plan, even if some students with severe allergies could not eat the food available through the plan without risk of illness. Several students complained that the school’s food services were inadequate for their needs, and alleged that the university had violated the ADA by neither addressing the needs of students with food allergies nor ensuring them an equivalent dining experience.

The DOJ commenced an investigation, and charged that the university violated the ADA by failing to accommodate the special food needs of these students, reasoning that they could not fully and equally enjoy the university’s dining services. On Dec. 21, 2012, the DOJ announced its settlement with Lesley University, which required the university to provide allergen-free options in its food lines, and develop individualized meal plans for students with food allergies.

While the DOJ settlement agreement refers only to universities and students, it has now, for the first time, identified all severe food allergies as disabilities, which could trigger reasonable accommodation requirements of the ADA. This settlement makes it possible that when this issue is litigated, the courts will broadly apply the terms of this agreement to all employers that serve food in the workplace. As a result, the settlement is likely to have wide-ranging implications for all businesses that serve food, either as a primary or secondary practice. Thus, hospitality operators should evaluate their practices for offering and providing accommodations for food allergies to minimize any potential exposure to disability discrimination charges under the ADA.

While there may not be a “one size fits all” solution to this issue, hospitality companies can take prudent steps to ensure that guests with allergies have the ability to fully and equally enjoy the dining services and the social benefits that accompany such services (see list below).

Depending on the size and resources of your company, many strategies to provide alternatives may not be practical or feasible. However, to ensure compliance with the ADA and avoid a civil lawsuit or DOJ investigation, hospitality operators that serve food to the public must be proactive in at least considering, if not implementing, some of the allergen protective measures.

Tips to Accommodate Food Allergies

There are many practical strategies that hospitality operators can implement to reduce Americans with Disabilities Act exposure regarding allergens:

• Display signs concerning food allergies and identify foods that contain specific allergens.
• Evaluate the feasibility of providing gluten- and allergen-free food options.
• Provide a dedicated alternative space to store and prepare foods to avoid cross-contamination, or if space does not allow for that, use different utensils, cutting boards and other preparation materials.
• Use vendors who offer food without allergens.
• Alert customers with food allergies via marketing materials and your website to notify you in advance so that you can make every effort to accommodate their particular allergies and other dietary needs.
• Create internal policy and procedures for manufacturer recalls and customer complaints.
• Educate your staff about common food allergies and provide ongoing training to your staff so they can appropriately respond to questions about food ingredients and requests for alternatives.

Co-Authored By:  Jordan Schwartz