Explicit menus protect restaurants, patrons
Waitstaff should also be familiarized with ingredients of dishes so as to avoid potential repercussions from food allergies
Two years ago, a teenager named Ruby Scott ordered a chicken korma from a restaurant in the north of England. She asked the server if the dish contained peanuts and received assurances it did not. She took a bite.
“My throat started to swell and I started getting very panicky,” she later told the BBC. Fortunately, paramedics arrived in time to administer a lifesaving shot. Still, when her mother saw her in the hospital, “she didn’t recognize me at first because I was covered in hives and purple by this point.”
Shortly after Scott’s harrowing experience, the restaurant received a visit from an officer of the local Trading Standards office, the English agency tasked with policing retail sales. The officer ordered a dish, requesting that it be peanut-free, and was served a dish containing peanuts, according to a story in The Telegraph. That was enough to trigger an official warning to the restaurant that customers must be clearly informed whenever a dish contained peanuts.
That particular restaurant was one of six owned by Mohammed Zaman. A week after Zaman received the official warning, Paul Wilson ordered a take-out chicken tikka masala from another of Zaman’s restaurants. Wilson, who had a lifelong severe allergy to peanuts, specifically requested no nuts. The restaurant staff dutifully wrote “no nuts” on his order and again on the outside of his take-out container. Despite Wilson’s precautions and the restaurant’s reassurances, the dish contained ground peanuts. Wilson’s body reacted as violently as Scott’s had done, but he was eating alone in his flat. No one called an ambulance.
After Wilson’s death, another Trading Standards officer went to one of Zaman’s restaurants and once again ordered a meal without nuts. Laboratory testing established that, after everything that had happened, the “no nuts” dish still contained ground peanuts.
As the Journal reported last May, Zaman created English legal history by becoming the first restaurant owner ever prosecuted for killing a customer. A jury convicted him of manslaughter and he was sentenced to six years in prison. (Given the novelty of the prosecution and severity of the sentence, it’s reasonable to expect an appeal, and so Zaman’s case is probably not over yet.)
What would happen if the same sequence of events occurred in New Mexico? If a restaurant owner who exhibited Zaman-like levels of unconcern about his customers’ wellbeing even after repeated warnings could plausibly be charged with involuntary manslaughter. That’s the lowest degree of criminal homicide recognized in New Mexico, reserved for unintentional killings.
As occurs with surprising frequency in this state, the statute enacted by the Legislature and the jury instruction approved by the Supreme Court disagree as to the essential elements of the crime. Because the judiciary always has the last word in criminal cases, the court’s version of involuntary manslaughter is the only one that counts.
To establish involuntary manslaughter, the Supreme Court requires proof that the killer “should have known of the danger involved” and acted “with a willful disregard for the safety of others.” Both standards seem easily met in Zaman’s case, always assuming he was informed and gave the orders. After a medical emergency in one of his restaurants followed by an explicit warning from a government official, his staff continued to misrepresent the contents of the dishes they served. It’s difficult to exhibit disregard for the safety of customers more willfully than that.
Most food allergies and sensitivities don’t kill, thankfully. The autoimmune condition known as celiac disease produces a long list of symptoms ranging in severity from unpleasant to chronic, but sudden death upon exposure to gluten is not one of them. Even when a customer survives the ingestion of misrepresented food, however, criminal charges remain a theoretical possibility under New Mexico’s Food Act, which makes it a special penalty misdemeanor to sell adulterated or misbranded foods. A creative prosecutor might even figure out a way to classify the act as battery.
Realistically, though, a restaurant owner who falsely represents dishes as nut-free or gluten-free or anything else-free probably has more to worry about from regulatory agencies. State regulations and Albuquerque ordinances prohibit the sale of adulterated and mislabeled food, and the city’s Environmental Health Department provides an online complaint form.
A civil lawsuit is also a possibility. A person who runs up medical charges as a result of eating a misrepresented restaurant dish may have a good legal claim under any number of legal theories, ranging from products liability to breach of warranty to the Unfair Trade Practices Act, with plain old negligence always available as a backup. If the worst comes to pass, the person’s survivors can sue for wrongful death. But if medical costs haven’t been incurred, a civil claim is unlikely to be economically viable unless it can be combined with others in a class action.
Luckily, it’s easy for restaurants to avoid all such risk. All they need to do is make sure their menu descriptions match reality and their servers answer patrons’ questions fully and honestly. As long as restaurants meet those undemanding standards, the rest of us can count ourselves lucky to be living in an era of informative menus. It makes life so much easier for patrons when frequently troublesome ingredients such as peanuts are clearly identified.
The existence of Yelp listings for “best gluten-friendly restaurants in Albuquerque” and the like suggests honest labeling is also good for business, bringing in customers who might otherwise never learn of a restaurant’s existence. Printing little letters such as “V” and “GF” next to the description of a dish is an easy way for a restaurant to earn customers’ goodwill. Just so long as they’re accurate.