Allergic individuals must strictly monitor every bite they eat because accidental ingestion of even a tiny amount of an allergen can trigger a severe, life-threatening reaction. For many allergic individuals, this means that all food must be prepared away from allergens to reduce the risk of cross contamination. It means bringing your own food wherever you go.
But what if the venue our friends, families, or schools have chosen to attend has a policy of not allowing in outside food? As an attorney and the mother of a severely food-allergic child, I get this question often. Can an allergic person bring outside food to a place that has a policy of not allowing outside food? The short answer is: maybe. It depends on the facts.
The Americans with Disabilities Act (ADA) is designed to ensure that people with disabilities are not isolated, segregated, or discriminated against due to their disability. Although some courts have been reluctant to extend ADA protections to food allergic individuals, the US Department of Justice now takes the position that severe food allergies and autoimmune disorders such as celiac disease may qualify as a disability under the ADA. (see http://www.ada.gov/q&a_lesley_ university.htm.). Sensitivities and preferences probably do not rise to the level of a disability. Individuals with severe food allergies, however, likely do qualify as having a disability within the meaning of the ADA.
Under the ADA, all “places of public accommodation” are required to make reasonable accommodations to allow equal access for people with disabilities. (See 42 U.S.C. § 12181.). Restaurants, museums, zoos, preschools, schools, theaters, stadiums, water parks, spas, bowling alleys – basically any place that is not a religious institution and that allows the public to attend – are considered “places of public accommodation” without limitation based on their size or number of employees. Organizations receiving federal funding are also bound by Section 504 of the Rehabilitation Act which also requires programs and activities be accessible to people with disabilities.
Under the ADA, places of public accommodation must make reasonable accommodations to allow people with disabilities to have full and equal access, unless doing so would create an undue burden or unless it would fundamentally alter the nature of goods or services offered. (See 42 U.S.C. § 12182). For an individual with severe food allergies, a reasonable accommodation would often be allowing in outside food. For example, if your family is having a birthday party at a venue that doesn’t allow in outside food, but none of the food available for purchase is safe, the venue would be hard pressed to show that bringing in a safe cupcake would be an undue burden or that it would change the fundamental nature of the goods and services offered.
It is common for places that serve food to justify their policy forbidding outside food by stating it is a health code violation or a food safety issue. While that may be legitimate, state and local laws must give way to federal law. The ADA—federal law—requires reasonable accommodations for people with severe allergies. And the ADA overrides the local health code requirements.
More often than not, discrimination against people with allergies comes from a lack of understanding, rather than malice. If you need to bring your own food in order to participate in an event or to allow your child to participate, chances are you can find an accommodation by discussing your situation with the venue.
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