California restaurant allergen law sparks business concerns nationwide
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California’s restaurants are accustomed to drowning out the unpleasant. They have endured lengthy pandemic shutdowns, skyrocketing food costs and a slow exodus of customers fleeing high prices and high taxes.
Now, Sacramento has prepared another component of its entrepreneurial misery: a law that would make California the first state in the nation to require restaurants to list major food allergens on their menus.
The new law requires restaurants to indicate on their menus whether each dish contains any of the nine major allergens: milk, egg, fish, shellfish, tree nuts, peanuts, wheat, soy or sesame. After small businesses protested, the bill was amended to only apply to businesses with at least 20 locations.
No one disputes that allergies are serious. But the solution lies not in micromanaging each menu, but in empowering customers through innovation and encouraging transparency. (iStock)
It sounds logical; Who doesn’t want their diners to be safe? But in practice, this guidance does little to prevent cross-contamination, one of the biggest risks of allergic reactions.
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A printed menu does not protect the diner; A trained and alert staff does this. As the California Restaurant Association and the Food Allergy Research and Education group jointly noted in opposition, such laws can inadvertently create a false sense of security even if cross-contamination risks remain.
Instead, the law imposes new compliance costs and legal penalties on businesses that already operate on very low margins. For independent restaurants, every new regulation means another reissue, another lawyer, and another hour off the line. That’s time and money that needs to be spent on hiring, training, and sourcing better materials.
Moreover, restaurants need to adapt to constantly changing conditions. For example, a supplier may switch brands, or seasonality and other constraints may force chefs to make last-minute changes. But under the proposed new law, a last-minute change could mean printing new menus or a lawsuit.
In addition to being a logistical nightmare and liability trap for businesses, the proposed allergy law also has constitutional costs. The First Amendment frowns on government-coerced speech. While the government can mandate strictly factual and uncontroversial messaging to prevent deception when necessary, courts have struck down laws that were overly burdensome or did not adequately serve consumer safety.
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In one case, for example, the Ninth Circuit Court of Appeals invalidated San Francisco’s mandate that sugar-sweetened beverage ads included warnings that they could contribute to obesity, diabetes and tooth decay. The U.S. Supreme Court also rejected a requirement that crisis pregnancy centers disclose the availability of government services and resources. In both cases, courts recognized that while the government has broad ability to push its own message, it cannot force individuals to do the same.
Californians are already bombarded with government-mandated information. The state requires Prop 65 warnings for possible carcinogens. Since the government has given anyone the power to act as a “private attorney general” and sue to enforce the law, businesses are now slapping warning labels on everything from Christmas lights to parking lots, bikinis, and even coffee.
The result is a situation plastered with signs no one reads and warnings no one heeds. While everything “can cause cancer,” the public believes that nothing can cause cancer. Proposition 65 has become a cash machine for trial lawyers rather than an effective public health measure.
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New York has tried to ban “high-calorie” drinks over 16 ounces and even placed restrictions on popcorn in major movie theaters. And regulators are forcing foods to bear the words “genetically modified” while reserving the term “all natural” for others, even though scientists agree that GMO foods are safe and the government’s definitions of “natural” are misleading.
Each of these efforts stems from the same impulse: the belief that citizens cannot be trusted to make choices without government oversight. But the result isn’t healthier or smarter consumers. Research shows that consumers still order high-calorie products despite mandatory calorie disclosures. And when there is too much information, consumers start to become distracted. The result is infantilized consumers who live under a regime of ever-shrinking personal responsibility.
No one disputes that allergies are serious. But the solution lies not in micromanaging each menu, but in empowering customers through innovation and encouraging transparency.
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Restaurants already have strong incentives to welcome customers safely; It’s called keeping your customers coming back. As the California Restaurant Association notes, even without government mandates, it is already working to “promote technology-driven, systems-based approaches that enable restaurants to provide real-time allergen transparency.”
California’s chefs already feed, employ and care for their communities every day. They just need the freedom to keep doing it; Not another recipe for government failure.
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Anastasia Boden is a senior attorney at the Pacific Legal Foundation, where she represents entrepreneurs pro bono in constitutional cases.
