Monday, April 2, 2012

Are We Nuts To Ask About Nuts?

I am back from a Spring Break involving 800 miles of driving and six college visits. So, of course, this post is about the local coffee shop.

It does make sense. After 10 days of 24-hour time with my children, love them though I do, I had earned my occasional-because-it's-too-expensive latte. I had even earned the cookie. I peered through the case, trying to figure out what the little white lumps were. White chocolate? Or nuts?

To be clear, I do not have a nut allergy, or any allergy. I'm just a picky eater. Plus, after years of worrying about cross-contamination and peanut-butter breath, I still hesitate to pick the peanut/nut choice. So I asked: "Do the cookies have nuts in them?"

The startled look on the face of the woman behind the counter said it all. "Well..." she started. "I used to say they were nut free because that's what our supplier told us. We have two kinds, and one of them is supposed to be nut free. But then, the other day, a mom came in and asked if the cookie had nuts. I said no. Her kid started eating it..."

What happened after that point in the story had clearly shaken her up. However, she didn't want to go into details so I couldn't tell if the boy had had a terrible reaction or if the mother had just reamed her out following a minor reaction. I reassured her that I did not have an allergy but she repeated two or three more times that she couldn't guarantee the cookies.

It was a bad cookie anyway. Waste of calories. But here's the thing - should we really have the expectation of nut-free cookies in this type of environment?

I don't know the answer to this. Because my son has multiple allergies, there has never been a bakery option for him (other than a very specialized Kosher bakery several towns away). But if there was a supposedly nut-free, milk-free, soy-free option baked in the same kitchen as other allergen-containing goodies, I can't imagine just handing it to my kid and saying "here you go - hope there's no cross-contamination."

Some parents of allergic kids I've met declare that their child has a "mild" allergy. I think they mean one of two things (and sometimes both):
  • Their child has a high threshold to allergens. In other words, it takes more than cross-contamination to trigger reactions in their children.
  • When their child does have reactions, the reactions tend to be limited to only hives.
Am I more conservative because my son has had reactions from cross-contamination and typically (now) has breathing difficulties during them? Or does the level of a parent's fear really not correspond to a child's reaction history?

Don't get me wrong - I think food service establishments could do a WHOLE LOT better with regard to these issues. (I did try to make a pitch for them to start carrying Divvies, but I could tell from her glazed-over look it wasn't going to happen.) However, label-less baked goods in the glass case are always going to be a risk.

Tort law in this area has not been kind to the allergic. The concept of "strict liability" - meaning that we can sue for injury without having to prove fault - is generally not upheld. Instead, liability requires proof of negligence.

It isn't negligent to have peanuts in a manufacturing environment as long as the manufacturer uses ordinary and reasonable care to prevent cross-contamination. It may not even be negligent to have "trace" amounts of an allergen in the food produced as long as a manufacturer can show an accepted process was followed and it would not be unexpected for the item to be in the food (i.e., nuts in a cookie). While the ADA was expanded in 2008 to provide a broader scope of protection for conditions like food allergies, there's been no test lawsuit brought to trial yet. When one finally is, there's no guarantee of success.  (This is a great article if you're interested in reading more on the topic.)

So, basically, the only absolute protection the allergic consumer has is to not eat the food. If, like my son, you're allergic to a common allergen like milk, you're on your own any time you eat out.

We all have to play the odds. I think it's reasonable to let my son have that cup of coffee or the cut fruit at the buffet. But clearly -- for us -- the bakery shop cookie is still on the NO side of the line.

I would love to hear from parents who consider their children's allergy mild and/or who DO eat the bakery shop cookie! If that's you, please leave me a comment!

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