California’s restaurants are used to stifling the unpalatable. They have weathered prolonged pandemic closures, skyrocketing food costs and the slow exodus of customers fleeing high prices and higher taxes.
Now, Sacramento has come up with another ingredient for entrepreneurial woes: a law that will make California the first state in the country 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 one of the 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 companies with at least twenty locations.
No one disputes that allergies are serious. But the solution lies in empowering customers and promoting transparency through innovation, not micromanaging every menu. (iStock)
It sounds reasonable: who doesn’t want guests to be safe? But in practice, this mandate does little to counter one of the biggest risks of allergic reactions: cross-contamination.
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A printed menu does not protect a diner; trained and alert staff do. As the California Restaurant Association and the Food Allergy Research & Education group jointly noted, these types of laws can inadvertently create a false sense of security, even if the risk of cross-contamination remains.
Instead, the law piles new compliance costs and legal risks on companies already operating on razor-thin margins. For independent restaurants, every new regulation means a new reprint, a new lawyer and another hour off the line. That’s the time and money that needs to be spent hiring, training and sourcing better ingredients.
In addition, restaurants must adapt to constantly changing circumstances. For example, a supplier may switch brands, or seasonality and other restrictions may force chefs to make last-minute changes. But under the proposed new law, a last-minute change could mean printing new menus or filing a lawsuit.
The proposed allergy law is not only a logistical nightmare and a liability trap for companies, but also imposes constitutional costs. The First Amendment frowns on government-mandated speech. While the government can impose purely factual and non-controversial messages when necessary to prevent deception, courts have invalidated laws that are too burdensome or do not adequately serve consumer safety.
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For example, in one case, the Ninth Circuit Court of Appeals invalidated San Francisco’s mandate that ads for sugar-sweetened beverages include warnings that they could contribute to obesity, diabetes and tooth decay. And the U.S. Supreme Court struck down the 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 power to spread its own message, it cannot force individuals to do the same.
Californians are already bombarded with government-mandated information. The state is known to require Prop 65 warnings for potential carcinogens. And because the state gives anyone the power to act as a “private attorney general” and sue to enforce the laws, companies are now defensively slapping warning labels on everything from Christmas lights to parking garages, bikinis and even coffee.
The result is a situation full of signs that no one reads and warnings that no one heeds. While anything “can cause cancer,” the public believes that nothing does. Instead of serving as an effective public health measure, Prop 65 has become an ATM for trial lawyers.
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New York tried to ban “high-calorie” drinks over 16 ounces and even placed restrictions on large movie theater popcorn. And regulators have insisted that foods carry the words “genetically modified” while reserving the term “all-natural” for others, even when scientists agree that GMO foods are safe and government 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 is not a healthier or wiser consumer. Research shows that consumers still order high-calorie products even when forced to report their calories. And if there is too much information, consumers will drop out. The result is therefore an infantile consumer, living under a regime of ever-decreasing personal responsibility.
No one disputes that allergies are serious. But the solution lies in empowering customers and promoting transparency through innovation, not micromanaging every menu.
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Restaurants already have strong incentives to welcome diners safely. This is called keeping your customers coming back. And as the California Restaurant Association has noted, it is already working to “advance technology-driven, systems-based approaches that enable restaurants to provide real-time allergen transparency” even without government mandates.
California’s chefs already feed, work 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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Anastasia Boden is a senior attorney at Pacific Legal Foundation, where she represents entrepreneurs in constitutional lawsuits for free.
