Nearly twenty percent of consumers self-identify as suffering from a food allergy or sensitivity, and over 30 million people in the United States have medically proven food allergies. Food allergies cause over 200,000 emergency room visits annually in the United States alone. Among these severe allergen-related food incidents, nearly threequarters arise at restaurants. In spite of this, there is not a single federal or state law regulating written allergen disclosures in restaurants.

Food safety laws have come a long way in the past century. The Federal Food, Drug, and Cosmetic Act (FDCA) established food safety standards in 1938, the Nutrition Labeling and Education Act (NLEA) created nutrition labeling on packaged foods in 1990, and the Food Allergen Labeling and Consumer Protection Act (FALCPA) established allergen labeling on packaged foods in 2004. The Affordable Care Act (ACA) expanded the NLEA to include nutrition labeling in chain restaurants in 2010. However, the FALCPA has not extended allergen labeling to include restaurants.

This Note proposes universal allergen labeling on restaurant menus as a solution to the lack of allergen labeling. The proposal includes all nine of the major food allergens. This proposal covers all restaurants, great and small. Restaurants would be required to label their menus through negative disclosures using “does not contain” or “free from” language, and would use categorical disclosures that all foods within a given category on the menu do not contain a certain allergen. The Note analyzes the political feasibility of the proposal, the legal feasibility of employing this policy through federal or state laws, and the First Amendment constitutionality of mandatory allergen disclosures in restaurants.