For families impacted by food allergies, the ability to be a part of the world – to eat out socially, to go to the theater, to visit amusement parks – is almost as important as safety and often hinges on the ability to have access to safe food. Because many restaurants, amusement parks, and stadiums do not offer safe dining options, allergic individuals must be permitted to bring safe food with them in order to have an equal opportunity to participate.
Guidance – “Places of Public Accommodation”
What happens when a water park says “No Outside Food Allowed” or a restaurant says, “The health department does not allow customers to bring in outside food?” Does the ADA require such entities to permit an allergic individual to bring in their own safe food? This is the question we are asked at the Allergy Law Project (ALP) more than any other. While it is not possible to give an across-the-board answer that will cover every circumstance, it is possible to offer some guidance.
Many venues that offer food for sale are considered to be places of public accommodation pursuant to the Americans with Disabilities Act and therefore must be accessible to all. See 42 U.S.C. § 12181. Restaurants, zoos, movie theaters, gymnasiums, amusement parks, and sports stadiums are considered places of public accommodation under federal and often state law. See 42 U.S.C. §12181; 28 C.F.R. § 36.104. Therefore, these entities must make modifications to permit individuals with disabilities to have full and equal access unless doing so would create an undue burden, a fundamental alteration, or a direct threat to health or safety. See 28 C.F.R. § 36.302.
Outside Food Policies (and Health Codes)
Places of public accommodation that have policies prohibiting customers from bringing in outside food may need to make modifications to allow allergic individuals equal access and take steps to ensure individuals with a disability are not excluded from participation and access. See 42 U.S.C. §12181(b)(2). For example, children’s recreation centers and gymnasiums that offer birthday parties may need to make modifications to “no outside food” policies in order to allow allergic children to safely attend and participate in birthday parties. Such modifications are likely required by federal law. Movie theaters and amusement parks also are likely required to permit allergic individuals to bring in outside food if there is no safe food option available for purchase.
Whether there are some circumstances where requiring a venue to permit outside food would result in a fundamental alteration and therefore not be required remains to be seen. Whether an allergic individual must be permitted to bring outside food to a restaurant will depend on the facts and circumstances in each specific situation. It is not true in most cases that health codes prohibit patrons from bringing in their own food – this will be a question of state and local laws. Even so, the goals and intents of such local codes and regulations may be related to safety concerns that could still be met while providing accessibility to the allergic individual. Health codes do, after all, allow for service animals to be present in restaurants even when they might otherwise not be permitted.
In the United States there is a legal concept of preemption where local or state laws which overlap and conflict with federal laws don’t control. If a local authority makes a “no outside food” rule that conflicts with federal discrimination laws such as the ADA, it is likely that the ADA would win out. This is a highly individualized analysis, however, even as it regards the allergic individual and the nature of their disability classification in a specific case.
In determining whether an entity must permit you to bring in outside food, consider whether other diners are permitted to bring in outside food. For example, many restaurants permit families to bring in bottles and baby food for infants who are in the restaurant with paying customers. If a restaurant permits families of infants to bring in baby food, the restaurant likely could not refuse a family’s request to bring in safe food for their allergic child.
Restaurants may have other concerns besides food safety. There may be a profit motive (a venue covers its overhead through sales of food), a safety motive related to packaging (concerns about litter or even broken glass), or their own allergy concerns (a nut free bakery would probably take issue with attempts to bring pastries that contained nuts for consumption on-site). Whether such concerns trump the right to equal access for food allergic individuals will be a fact-based determination made in each individual circumstance.
While the law does not always provide clear answers when assessing what food must be permitted for allergic diners, two things are clear. First, in many circumstances, the law will require places of public accommodation to permit outside food. Second, the ability to bring in safe food is critical to the inclusion of allergic individuals and their families in social and recreational settings.
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