California restaurants choke on new allergen menu mandate amid compliance concerns and costs

California’s restaurants are used to choking down the unpalatable. They’ve endured prolonged pandemic shutdowns, skyrocketing food costs and the slow exodus of customers fleeing high prices and higher taxes. 

Now, Sacramento has cooked up another ingredient for entrepreneurial misery: a law that will 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 menu whether each dish contains any of nine major allergens — milk, eggs, fish, shellfish, tree nuts, peanuts, wheat, soy or sesame. After small businesses protested, the bill was amended so that it only applies to businesses with at least 20 locations. 

It sounds reasonable — who doesn’t want diners to be safe? But in practice, this mandate does little to stem one of the biggest risks of allergic reactions: cross-contamination.

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A printed menu doesn’t protect a diner; a trained and alert staff does. As the California Restaurant Association and Food Allergy Research & Education group noted jointly in opposition, laws like this can inadvertently create a false sense of safety, even when cross-contamination risks remain. 

Instead, the law heaps new compliance costs and legal exposure onto businesses that are already running on razor-thin margins. For independent restaurants, every new regulation means another reprint, another attorney retainer, another hour off the line. That’s time and money that should go toward hiring, training and sourcing better ingredients.

What’s more, restaurants must adapt to constantly changing conditions. For instance, a supplier might swap out brands, or seasonality and other constraints might force chefs to make last-minute changes. But under the proposed new law, a last-minute change can mean printing new menus or facing a lawsuit. 

Apart from being a logistical nightmare and liability trap for businesses, the proposed allergy law has constitutional costs. The First Amendment frowns upon government-compelled speech. While the government can mandate purely factual and noncontroversial messages when necessary to prevent deception, courts have invalidated laws that are overly burdensome or that don’t 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 ads for sugar-sweetened drinks contain warnings that they may contribute to obesity, diabetes and tooth decay. And the U.S. Supreme Court struck down a requirement that crisis pregnancy centers disclose the availability of state services and resources. In both cases, the courts recognized that while the government retains ample ability to spout its own message, it can’t force individuals to do the same.

Californians are already bombarded by government-mandated information. The state famously requires Prop 65 warnings for possible carcinogens. And because the state empowers anyone to act as a “private attorney general” and to sue to enforce the laws, businesses now defensively slap warning labels on everything from Christmas lights to parking garages, bikinis and even coffee. 

The result is a state plastered in signs no one reads and warnings no one heeds. When everything “may cause cancer,” the public believes that nothing does. Rather than serving as an effective public health measure, Prop 65 has become a cash machine for trial lawyers.

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New York tried to outlaw “high-calorie” beverages over 16 ounces and even floated restrictions on large movie theater popcorn. And regulators have pushed forcing foods to bear the words “genetically modified” while reserving the term “all-natural” to others, even when scientists agree that GMO foods are safe and the government’s definitions of “natural” are misleading.

Each of these efforts springs from the same impulse: the belief that citizens can’t be trusted to make choices without government supervision. But the result isn’t healthier or wiser consumers. Studies show that consumers still order high-calorie items even in the face of compelled caloric disclosures. And when there’s too much information, consumers start tuning out. The result, then, is infantilized consumers, living under a regime of ever-shrinking personal responsibility.

No one disputes that allergies are serious. But the solution lies in empowering customers and fostering transparency through innovation, not micromanaging every menu. 

Restaurants already have strong incentives to accommodate diners safely — it’s called keeping your customers coming back. And as the California Restaurant Association has noted, it’s already working to “promote technology-driven, systems-based approaches that enable restaurants to deliver real-time allergen transparency,” even without government mandates. 

California’s chefs already feed, employ and care for their communities every day. They just need the freedom to keep doing it — not another government recipe for failure.

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CLICK HERE TO READ MORE FROM ANASTASIA BODEN

Anastasia Boden is a senior attorney at Pacific Legal Foundation, where she represents entrepreneurs in constitutional lawsuits free of charge.

By mfnnews