ADA case in court: surcharge for "free of" food service

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Yeah, I don't even know which forum to start this in.  It's not about food allergy - it's about gluten intolerance but since the premise is both a food "free of" ingredient and it invokes ADA the application is a close enough match.  I'm not sure it will hold up, nonetheless it's an interesting argument.

Woman Sues P.F. Chang's for gluten free surcharge.  Claims under ADA violation.

It might open the door on costs for avoidance and what is medically NECESSARY to practice avoidance as opposed to self-diagnosis because there will be a threshold to establish under ADA.  I actually support P.F. Chang's on this matter because they have not added a surcharge for food allergies.  From all that I have heard through the IgE-mediated grapevine they have been one of the first to accommodate LTFA with grace and consistency.

Turning towards GF (and remember we do deal with wheat/barley ALLERGY in our household) the ingredient sourcing is different and that would account for some difference in pricing.  Rather than arbitrary pricing the surcharge is equal across the board for specialty ingredients.  Keep in mind we with LTFA who have eaten there are never charged for allergen management or assistance because we don't typically need specialized sourcing to avoid a wide-category allergen.

In my opinion, this is a money-maker by P.F. Chang's taking advantage of the self-diagnosed pseudoallergic crowd who follow GF as a fad diet.  Chang's problem is that they have advertised this purposely conflated with Celiac disease--which does meet the criteria for ADA protections. 

Then if we who avoid for LTFA do not get surcharged (and we shouldn't) why should someone with Celiac be subject to surcharge?  That is arbitrary.  However, I think Chang's should be able to charge what the market will bear for fad diets especially if there is a difference in ingredient cost.  How is Chang's supposed to be able to tell with GF requests?  They can't, therefore they'll have to go with treating self-diagnosed woo as if it's Celiac.

Chang's will end the surcharge, and I believe they should for the sake of Celiac.  Then again for the sake of us all there really should be a huge flush to run out the self-diagnosed pseudoallergy woo from the hard medical reality.

[Macabre]

Oooh--yikes.  Yeah they can't tell the difference. 

I think PF Chang's should just eat the cost--but I'm glad someone is standing up to the GF fad.  And I am grateful to them for their policies and procedures for dealing with FA.  We've not gone in several years, but it was so cool that DS got to eat egg rolls. 

Now I am getting hungry for them. 

[guess]

I suggest we watch this and chat it up about it.  It moved to federal district court (lowest level) the claim is under ADA.  I'd love to read the complaint to see if they do indeed try to make a claim for "gluten sensitivity" as opposed to actual celiac, and what does the court say or do with regard to ADA and food service.  The plaintiff isn't asking for the practice to be stopped but for all sorts of damages.  I'm also going to keep my eye on the corporate response.

It could be chock full of useful observations for us depending on the arguments made.  What was successful, what failed, what is the company's response, who is going to try enter the class action, does sensitivity get ADA protection or do they smartly hold up the threshold of substantial limitation of a major life activity, fundamental alteration, undue burden, etc., etc.

FAS mock court!!

[LinksEtc]

"That’ll Be a Dollar – Suit Alleges Surcharge on Identical Items for Gluten Free Patrons at P.F. Chang’s"

http://allergylawproject.com/2015/02/20/thatll-be-a-dollar-suit-alleges-surcharge-on-identical-items-for-gluten-free-patrons-at-p-f-changs/

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Celiac Disease Foundation doesn't back class action over gluten-free menu at P.F. Chang's

Marilyn G. Geller, the CEO of the Celiac Disease Foundation, was asked by Legal Newsline if she had a comment on the claim.
“Celiac Disease Foundation recognizes that restaurants bear a financial burden for the employee training and other accommodations that are required to serve meals that are safe for those with celiac disease,” Geller said.

major celiac organizations the National Foundation for Celiac Awareness (NFCA) and the Celiac Disease Foundation have both voiced their concern over the implications of the lawsuit.“While it can be frustrating to pay more for food that we need in order to be healthy, we can’t overlook the fact that making safe gluten-free food comes with a cost," Alice Bast NFCA’s president and CEO, told Allergic Living. “We would not want to deter other restaurants from purchasing gluten-free ingredients or pursuing training programs, [like those offered by NFCA], that can make them better equipped to serve gluten-free food to those with a medical need.”

[guess]

I'm going to take a couple of stabs at this while I take a break from reading a long paper.

The blowback from this will reach the LTFA community despite that we are not part of it, have been accommodated without any surcharge whatsoever. 

The rigor involved in the GF certification process is a step above reasonable accommodation.  That threshold for reasonable accommodation may be at best vague, inconsistent practices for product and service nominally free of cross-contact outside of a specific state laws that may apply.

This will further endanger individuals with LTFA who have had to combat public misperception that GF=LTFA, or food allergy.  That celiac is a debilitating disease does nothing to illuminate or demonstrate to the court of public opinion what LTFA means, and how it differs from a fad gluten free diet that is not related to the gold standard medical diagnosis for celiac.

What is likely to disappear is the rigor in certification beyond reasonable modification to nominal, vague practice that is not consistent among restaurants or geographies.  I believe the rigor in certification beyond reasonable accommodation defines the difference between Chang's accommodation of GF as opposed to allergy.  Not a single one of us with allergy/anaphylaxis will get accommodations by a restaurant with the same rigor of a certified process. 

I do suspect that the LTFA community will get stuck with this bill of public backlash.

[guess]

P.F. Chang's Canada responds on gluten free menu cost.  No surprise here by explaining the costs associated with avoiding cross contact to maintain certified levels.  I'm not holding my breath waiting for a certified peanut free menu.

http://www.eater.com/2015/2/3/7971473/p-f-changs-charges-more-for-gluten-free-menu-economics

Noting this is Canada not directly affected by ADA.