Can a restaurant be liable for allergens in food ingredients?
The Independent in Britain recently published an article reporting on the death of Owen Carey, a teenager who died after eating a burger in a restaurant. According to the report, Owen had warned staff in the restaurant that he had an allergy to dairy products but was served grilled chicken coated in a buttermilk basting. The dairy ingredient was not listed on the restaurant menu.
The case has called into question whether laws requiring restaurants to disclose potentially allergenic ingredients in dishes are adequate, and Owen’s family have initiated a campaign to reform the law in Britain to require full disclosure of any allergenic ingredients.
In South Africa, labelling and advertising of food stuffs, and disclosure of the ingredients is governed by the Foodstuffs, Cosmetics and Disinfectants Act, 54 of 1972 (“the FCD Act”).
Section 15 of the FCD Act authorises the Minister of Health to make regulations, inter alia:
prescribing the manner in which any foodstuff, cosmetic or disinfectant or its package, or the box from which it is taken for sale, shall be labelled, the nature of the information to be reflected on any label, the manner or form in which such information shall be so reflected or shall be arranged on the label, or the nature of information which may not be reflected on any label; and
exempting any food stuff, cosmetic or disinfectant specified or of a specified nature or class, from the requirements of the Act relating to labelling and prescribing the conditions or pre-requisites (if any) in connection with any such exemption.
The regulations passed by the Minister require that where “common allergens” are present in any product or its packaging material, its presence must be indicated. The definition of “common allergens” includes egg, cow’s milk, crustaceans and molluscs, fish, peanuts, soybeans, tree nuts and any significant cereals, as well as ingredients derived from these foodstuffs that that have retained their allergenicity in the final product. The regulations exempt certain foodstuffs from the labelling requirements. These include “any ready-to-eat foodstuff prepared and sold on the premises of a catering establishment for consumption, except for information on the list of ingredients, including allergens, which must be available at the point of sale on request.
In summary, restaurants in South Africa are not obliged to volunteer information on allergens that may be present in prepared foods, unless they are requested to do so, and would not be in contravention of the law if they did not volunteer the information.
Despite this, however, a restaurant may nevertheless find itself liable for injury to, or death suffered by, a customer as a result of an allergen present in dishes that it serves. Section 61 of the Consumer Protection Act, 68 of 2008 (“the CPA”) provides that any supplier, at any level in a supply chain (including the producer, importer, distributor or retailer of any goods) is liable for any harm, including the death of injury to or illness of any person, caused wholly or partly as a consequence of, inter alia, a “hazard” in any goods. The section imposes strict liability on the supplier, in other words, the supplier is liable irrespective of whether the harm resulted from any negligence on the supplier’s part.
In other words, the mere presence of a “hazard” in any foods served in a restaurant would render the establishment liable for any illness, death or injury suffered by a customer.
It does not matter whether the restaurant owner or his employees foresaw, or ought to have foreseen, that harm would arise to the specific customer concerned. The question to be answered is simply whether there is a “hazard” in the product concerned. This is a question of fact dependent upon the specific circumstances.
Section 53(1)(c) of the CPA defines “hazard” as “a characteristic that has been identified or declared as a hazard in terms of any other law” or that presents a significant risk of personal injury to any person when the goods are utilised. There has been little or no litigation around sections 53 and 61 to date, and it remains to be seen whether a Court would interpret the existence of an allergen in a product (which is in every other respect perfectly produced and in no way “defective”) as a “hazard”. However, statistically, the “common allergens” identified by the regulations to the FCD Act account for 90% of all allergic reactions to food and therefore, we would suggest that their presence in any dish can reasonably be considered to constitute a risk or, in the words of Section 61 of the CPA, a “hazard”. Restaurateurs should therefore be meticulous in ensuring that customers are made aware if there is even a slight trace of one of these allergens in any dishes they serve. Staff should be trained to enquire of all customers as to any foods or ingredients to which they may be allergic. It may also be advisable to indicate on the menu whether a dish contains one of the “common allergens”.
Although section 61 provides for strict liability, it also empowers the court to assess whether the harm proven has been adequately mitigated and to apportion liability jointly and severally among all persons who are found to be liable. If the restaurateur takes precautions to put the customer on his guard, the customer will also be under a measure responsibility to mitigate or prevent the harm from eventuating, and, despite the strict liability imposed by section 61, the damage for which the restaurateur will be liable may be reduced.