‘It's terrifying!' Who is responsible for food allergies at restaurants and who is protected

“How many more people have to die, before something seriously changes?”

It’s the question Amy Markland asks herself day in, day out.

This mother tells NBC6 that she has ben living in fear for years, after her daughter has had several allergic reactions while eating out.

It’s a concern for millions of parents of kids living with food allergies.

So, we want to know: What are the rules? And what happens if something goes wrong?

Markland shares, “It’s a terrifying, horrifying, very anxiety provoking thought.”

Markland says her daughter Sarah, was four years old when she found out she had a life-threatening food allergy to dairy.

“She was anaphylactic to anything containing the milk protein found in cow’s milk, whey and casein, those proteins.”

She says there have been multiple scary moments throughout the years at different restaurants where her daughter’s throat closed up, her lips and nose swelled, or she spent days in the Emergency Room.

The most recent one, she says, happened last summer during a trip to celebrate Sarah’s 21^st birthday. She says her daughter ordered a grilled chicken sandwich and explained she has a severe food allergy.

Upon reviewing a copy of the receipt used at the time of purchase, the meal is described as “milk allergy friendly”

But Markland says when Sarah started eating "she immediately had a reaction starting.”

She says she spoke to the chef of the restaurant and was told the food was cooked on surfaces that had dairy products.

“The things that people take for granted that are so easy to do, to run out and get food. Just to have that luxury to be able to do something special outside of the norm. Even vacation, and people need to realize that for severely allergic anaphylactic people, it’s a terrifying situation to be in,” Markland said.

She says that the E-M-T came to their hotel room after the incident to evaluate her. Sarah had taken Benadryl which helped to keep her hives at bay and had her EpiPen on standby, but didn’t need to use it this time.

A RECENT LAWSUIT

Most recently, a lawsuit claims that a doctor from New York died from a severe allergic reaction after eating at a restaurant in Disney Springs.

That doctor’s family is suing Walt Disney Parks and Resorts, as well as the restaurant for negligence, alleging staff “guaranteed that the food was allergen free”.

NBC6 didn’t hear back from Disney Springs, the restaurant and their attorneys, but responding to the lawsuit, Disney Springs says they are not responsible for the staff’s actions and the food served at the restaurant, which it’s owned by a different company.

In court filings, the restaurant denied the allegations, writing in part, “the alleged incident or damages were caused by conditions beyond” their control.

Dr. Paul Moore, an FIU Professor and expert in Hospitality Law, says to prove negligence in these cases, first, you have to determine if the person or establishment had a duty to do something, if there was a breach of that duty, and if there are any damages as a result.

In general, he says that there are some responsibilities restaurants have to uphold.

“Restaurants are responsible for a duty of what we call reasonable care. And what that means is because they're open to the public at large, they have to inform the public of any risk that might not be unreasonably foreseen, though, to establish causation.”

This is how he explains it:

If someone with allergies is going to order food, the legal burden is on the customer because the restaurant doesn’t know the customer has an allergy. But the moment, they notify the restaurant, the burden falls on the restaurant’s staff who now needs to properly inform the customer if they can make accommodations, and act “reasonably” if something goes wrong.

“So, it doesn't mean they would be required, per se, to administer a medication like an EpiPen. However, they would have a legal obligation because she's within their care, if you will, to call 911. That's a reasonable thing to do,” Dr. Moore said.

FLORIDA LEGISLATION

According to the Florida Department of Business and Professional Regulation:

While food service operators and establishments are not required to offer allergen-free foods, managers and employees are required to be educated on basic food allergen knowledge, including:

• Naming the nine major food allergens.
• Recognizing and describing common symptoms of an allergic food reaction.
• Knowing to call 911 if an allergic reaction is suspected or observed.

A department’s spokesperson says that food safety training is provided to food service staff but what that looks like was not explained.

The United States Department of Agriculture (USDA) says that while all packaged foods in the U.S. are covered by the FDA’s allergen labeling requirements:

“These labeling requirements do not apply to foods provided by a retail or food service establishment that are placed in a wrapper or container in response to a consumer’s order”.

“We want to have an experience of eating out where it’s safe,” said Sung Poblete, CEO of Food Allergy Research and Education (FARE), who says she developed life threatening food allergies as an adult and has experienced improper food handling at restaurants before.

She says Florida laws need to be stronger and she blames the state legislature.

According to FARE, only seven states currently require food allergen training and certifications for food operators. Illinois has made it mandatory to always have on duty a manager who has been trained by national standards.

There was a bill introduced in Florida this year with similar standards, including a mandatory course for food service managers on allergies and requiring restaurants to post signage addressing allergic reactions and what actions to take.

But that bill died in session.

“As a culture we need to do better, you shouldn’t be in the food and beverage industry and not take into account people’s lives like this,” states Markland.

Parents and those affected say they have seen different strategies to try and alert staff of the allergen, such as posters or flags on food.

But without more measures in place, Markland worries about the future.

“Just the fear of everyday life and entrusting other people to your safety.”