Ouch! I have been called out by Max Kennerly of the Litigation and Trial law blog for perpetuating myths about plaintiff’s lawyers. I recently wrote about the “CONTAINS PEANUTS” disclaimer on my container of delicious peanuts. But, doggone it, I did not make reference to the federal statute which resulted in such warnings. Max, a friend of the blog, reminded me that the Food Allergen Labeling and Consumer Protection Act (FALCPA) took effect in 2006 and requires the word “contains” when a food contains an ingredient that is a food allergen. Kennerly correctly points out that this federal statute is why my container of peanuts says that it “CONTAINS PEANUTS” and not, at least presumably, because of some pre-legislation frivolous lawsuit.
Indeed, the FALCPA was enacted for consumers such as myself, the father of a young man who is allergic to peanuts, as I pointed out in my original post. As Kennerly suggests, the rule is very sensible, at least generally. But speaking of sensibilities, how about some common sense? Sometimes, these warnings defy common sense, and as a result, the average consumer does not take them seriously. Certainly, we here at Abnormal Use appreciate that it may have been “worth it,” as Kennerly says, to enact such legislation. Yet we, as lawyer commentators ourselves, certainly reserve the right to comment on the occasional “silly result” and unintended consequences of even the most well-intended statutes and regulations. After all, it is one thing to warn consumers, who may not know the specific ingredients of a product, to a component of the purchased food product. But it is quite another to require that a separate “contains” warning be placed on the product’s packaging when the allergen is caused by the very product itself – not some component thereof. A peanut is a peanut is a peanut, and if you buy peanuts, which are clearly labeled as such by virtue of the fact that they are, in fact, peanuts, then it seems silly to require a federal warning that the package of peanuts – already clearly marked as such – contains peanuts.
On a side note, I must say that no one appreciates the consequences of allergens more than myself. In my original post, I mentioned that I had my own anaphylactic reaction to fire ant bites several years ago. I hopped into a hot tub at a resort in South Carolina with my son, the same one with the peanut allergy. Upon entering the hot tub, I immediately began experiencing a burning and itching sensation and noticed that a number of fire ants had trailed down into the hot tub. There was a small mound of fire ants just several feet away from the hot tub, and some of them had actually gotten into the water. My son and I immediately went inside to take a shower. My eyes began to water, my lips swelled, my mouth felt funny, and I became quite dizzy. I knew instantly that I was having a life-threatening reaction to the fire ant bites. We rushed to the car and headed to the local convenience store to buy some Benadryl. Before I could pay the cashier, the room started spinning, and down I went! While I did not pass out, I also could not stand up. While I was laid out on the cold hard floor, with my son standing over me, wondering what was going on, the cashier called 911. The fire department arrived first and they tried unsuccessfully to get a blood pressure reading. When EMS arrived, the paramedic asked the first responder about my blood pressure. He said he could not get a reading. At that point, I thought it was important to let them know I was alive and conscious! When the paramedic did get a blood pressure reading, it was 60/40. By the way, none of these folks were making jokes or even smiling. This was serious business.
EMS loaded me into the back of the ambulance, and rushed me to the local emergency room, lights flashing and sirens blaring. My son rode in the front seat of the ambulance, and an EMS attendant was in the back with me. I received two injections of Epinephrine. After four hours in the emergency room, and a course of steroids, I made a full recovery.
While we are on the subject, I wonder if that resort should have had a warning sign next to the hot tub: “CONTAINS FIRE ANTS!”.