The New Food Allergy Law – Important Information You Need to Know

Man preparing food in a commercial kitchen

An egg. A walnut. A slice of bread. These may sound like harmless foods, but they can be risky for people with food allergies.

A food allergy is an immune system reaction that occurs soon after eating a particular food. For some people, even a tiny amount of food can trigger reactions such as hives, digestive problems, or anaphylaxis.

Today, an estimated 32 million Americans have a food allergy. The numbers continue to rise, and the list of common food allergens is growing too.

We’ll tell you some important things to know about the new food allergy law.

What is the New Law and What Does it Cover?

President Biden signed into law a new food allergy bill named the Food Allergy Safety, Treatment, Education, and Research (or FASTER) Act of 2021.

The FASTER Act adds sesame to the list of major food allergens identified in the Federal Food, Drug, and Cosmetic Act (FD&C Act). There are currently eight foods on the list, and sesame will become the ninth.

Beginning January 1, 2023, sesame — or an ingredient that contains protein derived from it — must be clearly labeled as a major food allergen on all packaged food regulated by the FDA.

This brings us to another law and yet another acronym. (Sorry!)

FALCPA is the Food Allergen Labeling and Consumer Protection Act. In 2006, Congress passed FALCPA as a way for consumers to easily recognize the presence of allergens in packaged foods, including almost everything you buy at a supermarket.

FALCPA requires food companies to list, on their packaging, each of the major food allergens the food contains. The information must appear in the ingredients list or at the end of the list.

For example, if you purchase a package of sesame bagels, the food source (sesame) must be clearly labeled as an ingredient. You also may see a statement showing “Contains Sesame.”

In some cases, it’s not apparent that a product contains sesame. Tahini is a great example. It’s often used as an ingredient for hummus, but many people may not realize that tahini is a paste made from sesame seeds.

With the FASTER act, the labeling requirements for tahini may change. Sesame must be declared on the food label in one of two ways:

1. In parenthesis, following the name of the ingredient.

For example: Tahini (sesame)

2. As an advisory statement, immediately after or next to the list of ingredients.

For example: Contains sesame.

What Small Businesses Need to Know About the New Food Allergy Law

The Faster act of 2021 will affect how food companies label their products, but it won’t apply to businesses that make food to order. So your restaurant, catering company, or food truck is likely not required to list ingredients or include allergy warnings on food that isn’t prepackaged.

However, selling food to customers without listing food allergens is risky. Here’s why. Every three minutes, a food allergy sends someone to the emergency room — and many people with food allergies report having their reactions at a restaurant. You don’t want to be the business known for sending a customer to the hospital.

To avoid being “that business,” one thing you can do is to develop a plan for serving customers who may have food allergies.

Here are a few steps you can take to promote a safe environment:

Train your staff on food allergies. Many inexperienced servers lack knowledge regarding allergens and need to be informed about ingredients and preparation. It’s essential to train staff on food allergens and ensure that new employees receive training.

Use separate equipment and prep areas. Peanut butter is one of the most serious food allergens, and it’s the messiest. Cross-contamination is a common occurrence in kitchens. When you create separate zones for food allergens, you’re less likely to spread that peanut butter to another food item.

Provide ingredients or recipes for menu items. While the Faster Act does not require you to list food allergens on your menu, you should check the laws in the state where you operate. In any case, it’s best to be clear about the food you serve. You can list all the ingredients or call attention to the major allergens. Some restaurants use icons to indicate which foods are nut-safe, dairy-free, etc.

What Are the 8 Major Food Allergens?

While more than 160 foods are known to cause allergies, about 90 percent of allergic reactions in the United States come from the eight major food allergens.

If you know someone with a food allergy, chances are they are allergic to one of these ingredients:

1. Milk

Cow’s milk is one of the most common childhood allergies. Fortunately, around 80% of children will outgrow their cow milk allergy by 3-5 years of age.

2. Eggs

An egg allergy is the second-most common cause of food allergy in children. However, many children outgrow their egg allergy before adulthood.

3. Fish

Unlike other allergies, it’s not uncommon for a fish allergy to surface later in life. A fish allergy can cause a severe and potentially fatal allergic reaction, so fish-allergic individuals usually carry an EpiPen.

4. Shellfish

A shellfish allergy may involve a reaction to shrimp, prawns, crayfish, lobster, squid, or scallops. A shellfish allergy may not resolve over time, so most people must remove shellfish from their diets forever.

5. Tree nuts

Tree nuts include Brazil nuts, almonds, cashews, macadamia nuts, pistachios, pine nuts, and walnuts. People with a tree nut allergy are often advised to avoid all tree nuts, even if they are allergic only to one or two types. They are also advised to steer clear of nut-based oil and nut butter too!

6. Peanuts

You may be surprised to learn that a peanut is not a nut — it’s a legume. Still, many people with peanut allergies are often allergic to tree nuts. A peanut allergy is a serious condition that can cause severe allergic reactions.

7. Wheat

Wheat allergies are often confused with celiac disease. A true wheat allergy causes an immune response to one of the hundreds of proteins found in wheat, whereas celiac disease is a reaction to gluten. The difference is significant, since a wheat allergy reaction can be life-threatening, while celiac disease is not.

8. Soybeans

Soy allergies are most common in infants and young children. They’re triggered by a protein in soybeans and soybean-containing products. Since soy is in so many foods, people with soy allergies need to check the labels on everything they eat.

How sesame became number 9.

According to the National Institutes of Health, more than 1.1 million people in the United States are allergic to sesame. Consumers, advocacy groups, and dozens of legislators have been working for years to have sesame added to the list. And they succeeded.

Sesame will gain its official number 9 status when the FASTER Act of 2021 takes effect on January 1, 2023. At the same time, supermarkets will have updated packaging on their shelves.

How Insurance Can Help with the New Allergen Law

The FASTER act is an excellent reminder that you need to stay abreast of allergy updates and changes that may affect how you run your business. Food allergies should not be taken lightly, especially if you’re running a small business that serves food.

With the rapid rise of food allergies, you also can expect an uptick in insurance claims associated with food reactions. Food allergy negligence can be a devastating mistake for your business. That’s why you need the right business insurance.

Get covered with general liability insurance.

You can protect your business from various risks and unexpected events with general liability insurance coverage.

Here’s what general liability (GL) typically covers:

  • Third-party property damage
  • Personal and advertising injury
  • Claims arising from product defects
  • Medical expenses

There are many ways your small business can be at risk for a lawsuit resulting from a food allergy mistake.

Let’s say you own a food truck that sells gourmet burgers, and a customer with a severe sesame allergy orders a Mediterranean burger with French fries.

He asks your employee if any of the food items contain sesame. Your employee assures him that his order is sesame-free, and your customer assumes the food is safe to eat.

Your employee isn’t aware that the tahini sauce on the burger contains sesame paste. Your customer returns to his office, where he eats his lunch and suddenly has trouble breathing. He’s rushed to the hospital, where he is given epinephrine and kept overnight.

In this scenario, that customer could sue your food truck business for the employee failing to inform him of a major food allergen.

If you don’t think a lawsuit is likely, think again. A report conducted by the Small Business Administration (SBA) estimated that between 36% to 53% of small businesses are involved in a lawsuit in a given year. And the average claim is around $30,000.

If you had to pay your customer’s claim out of pocket, it could put your food truck out of business. With general liability insurance, you can rest easy. You won’t be held financially responsible for any medical charges. And your legal fees from any resulting lawsuit may be covered up to your policy’s limits.

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Keep Your Business Healthy

Food allergies are tricky, but there are many ways to prevent incidents and their consequences to your business. Be aware of current allergy laws, train your employees with safe food handling practices, and protect your business with liability insurance.

Susan Hamilton

I’ve always loved to write and have been lucky enough to make a career out of it. After many years in the corporate advertising world, I’m now a freelance writer—running my own show and contributing to Simply Business. Fun fact: I have three desks in my house, but I still do my best thinking walking in the woods.

Susan writes on a number of topics such as workplace safety, customer sales, and workers’ compensation insurance.