For people with food allergies, restaurants are a potential minefield. Gluten. Peanuts. And then there’s the health code.
Can you run afoul of it if you bring food into an eating establishment, because you have a condition such as a gluten allergy?
It’s an issue with some resonance in the Historic Triangle.
In July, the parents of an 11-year-old boy with a severe gluten allergy sued Colonial Williamsburg for discrimination in federal district court. They allege the Foundation violated the Americans with Disabilities Act when the boy, identified as “J.D.” was removed from Shields Tavern after his father served him his own “safe food” during a May visit by his fifth-grade class.
Colonial Williamsburg was made aware of the boy’s condition before he arrived at the tavern, according to an email from Mary C. Vargas, his attorney. Joe Straw, public relations manager for the Colonial Williamsburg Foundation, declined to comment for this story due to pending litigation.
“The Americans with Disabilities [Act] provides that places of public accommodation cannot discriminate on the basis of disability,” wrote Vargas. “A disability is defined by the law as a substantial impairment to a major life activity. Eating and breathing are major life activities. A person with a serious autoimmune response to ingesting gluten…has a substantial impairment to major life activities including eating, breathing and standing.”
As for state health code that governs compliance with food laws (section 5-421-270 of Virginia Code), it does contain a provision that prevents restaurants from using or selling food prepared in an un-inspected home kitchen.
It says: “Food prepared in a private home shall not be used or offered for human consumption in a food establishment unless the home kitchen is inspected and regulated by the Virginia Department of Agriculture and Consumer Services.“
The provision does not say, however, that restaurants can block customers from bringing in food for their own consumption that was prepared elsewhere — such as their own home kitchens.
Two state health officials, neither of whom commented directly on the litigation, echoed that view, saying the health code doesn’t address whether a customer can or can’t bring food into an establishment.
“This is not a health-department matter,” said Gary Hagy, the Virginia Department of Health’s environmental health manager for the Peninsula and Hampton.
State food regulations deal with food safety and help ensure safe and proper meal preparation in restaurant kitchens, he added. And state law and regulations are silent about whether a restaurant can refuse service to someone, according to Hagy, who said he’s been with the health department for 30 years.
“Any action by the restaurant to not serve someone is their decision,” Hagy said.
A state official in Virginia Beach shared his colleague’s assessment.
“We have always left that up to the operators to make that decision,” said George Khan, environmental health manager for the Virginia Beach district. “But that ultimately comes from the restaurant itself. Not from us.”
