Why A Container Of Peanuts Says “CONTAINS PEANUTS”

Over at Abnormal Use, insurance defense lawyer Stuart Mauney says something careless:

[W]hile I was eating those yummy, yummy peanuts, I noticed this disclaimer written on the container: “CONTAINS PEANUTS.” Really? I thought I was eating lima beans! Given that I had now seen the word “peanuts” written sideways, upside-down, and in six different languages, I decided to read further: “Manufactured on shared equipment in a facility that processes peanuts.” There it is again! Peanuts. (By the way, with whom do they “share” their equipment?)

You know what this means? Sometime, somewhere, somebody ate some peanuts that he did not know were peanuts, became ill, and almost died. Then he hired a lawyer. … Of course, consumers must be adequately informed of a product’s features and tendencies. But, come on, now! I really did know I was not eating lima beans. I don’t even like lima beans.

Yes, that old saw: blame the plaintiff’s lawyers for the evils of harmless labeling. Philip K. Howard has made a whole career out of claiming unnecessary warning labels are a cancer on American society, and has used silly anecdotes about peanuts and fishing lures to advocate laws that would provide complete legal immunity to companies that, you know, actually give Americans cancer. E.g., here he is moaning about people given cancer by asbestos. George Will is also fond of this idiocy, blaming warning labels for all the problems in our society.

You know what a “CONTAINS PEANUTS” label really means?

It has nothing to do with a lawsuit: there are no lawsuits anywhere claiming someone with a peanut allergy ate peanuts, got sick, and then complained that the peanut label should have also said “CONTAINS PEANUTS.” It means that, in 2004, the United States Congress found:

(1) it is estimated that—

(A) approximately 2 percent of adults and about 5 percent of infants and young children in the United States suffer from food allergies; and

(B) each year, roughly 30,000 individuals require emergency room treatment and 150 individuals die because of allergic reactions to food;

(2)(A) eight major foods or food groups—milk, eggs, fish, Crustacean shellfish, tree nuts, peanuts, wheat, and soybeans—account for 90 percent of food allergies;

(B) at present, there is no cure for food allergies; and

(C) a food allergic consumer must avoid the food to which the consumer is allergic;

(3)(A) in a review of the foods of randomly selected manufacturers of baked goods, ice cream, and candy in Minnesota and Wisconsin in 1999, the Food and Drug Administration found that 25 percent of sampled foods failed to list peanuts or eggs as ingredients on the food labels; and

(B) nationally, the number of recalls because of unlabeled allergens rose to 121 in 2000 from about 35 a decade earlier;

(4) a recent study shows that many parents of children with a food allergy were unable to correctly identify in each of several food labels the ingredients derived from major food allergens;

Faced with a serious problem, and a harmless way to fix it, Congress passed the Food Allergen Labeling and Consumer Protection Act (FALCPA), which took effect in January of 2006. Some of FALCPA is quite complicated, but some of it is quite simple. If a food “contains an ingredient that bears or contains, a major food allergen,” then it must include “the word `Contains’, followed by the name of the food source from which the major food allergen is derived, is printed immediately after or is adjacent to the list of ingredients (in a type size no smaller than the type size used in the list of ingredients).”

That’s it. That’s why your peanuts say, “CONTAINS PEANUTS,” and your milk says “CONTAINS MILK” and so on for eggs, fish, Crustacean shellfish, tree nuts, wheat, and soybeans.

Of course, this rule is eminently sensible. As every law student learned in their Torts class, the most common analysis of the “reasonable person” standard is Judge Learned Hand’s formulation from the Carroll Towing case,  in which the risk of harm times the gravity of the potential harm  is weighed against the burden of taking precautions. (Lawrence Solum explains a bit more here.) The “harm” of an unlabeled food allergen is quite grave; it can be, and often is, a dead child, and is at a minimum several dozen emergency room visits every day. Weighed against that potential for harm is the cost, burden, expense, and annoyance of the general rule under FALCPA occasionally producing a silly result, like a bag of peanuts that warns about the peanuts inside.

Is there any doubt that’s worth it?

[Update: Ted Frank at Point of Law seems to agree with me about the peanuts, but raises the problem of "overwarning" in general. See my comment there, too.]

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  • http://twitter.com/stuartmauney C. Stuart Mauney

    As the author of the post on peanuts, I appreciate your reminding us of the history of such warnings. It sounds like you have had experience explaining this to others in the past. Of course, I am one of the class of consumers for whom such warnings were designed–as I pointed out in my post, my son has a peanut allergy. I hope my readers did not misunderstand; I am aware of the importance of such things, but it still seems kind of, well, silly, as you acknowledge. Peanuts are peanuts.

    • http://www.litigationandtrial.com/ Max Kennerly

      Understood – the part that made me take offense was the reflexive blaming of plaintiff’s lawyers, and the implicit claim that these warnings were somehow harmful or unwarranted. It’s silly to see “contains peanuts” on the bag of peanuts, but it’s also harmless and better than the alternative, in which a quarter of foods contain a common allergen without disclosing it.

  • Guest

    As Max notes, many right-leaning commentators are quick to blame tort law and the plaintiffs’ bar for the proliferation of ridiculous warning labels in America; however, the more likely culprit (perhaps at the prodding of the plaintiffs’ bar) is the ever-expanding regulatory state. In the case of the bag of peanuts, the federal warning requirement produces an absurd warning label: The peanuts you are eating CONTAIN PEANUTS.

    The necessity of warning in any given situation is a fact sensitive question, ill-suited for broadly-applicable, prospective regulation. In other words, it’s one of those areas where the common law should be permitted to develop. In the case of peanuts or peanut butter or peanut oil or peanut brittle, no one could be heard to complain that they did not know those foods contain peanuts. In other cases (maybe if your bubble gum contained peanuts), the question of whether a warning of the allergen was called for (or whether the warning given was adequate) is closer, best for a judge or jury.

    I see no reason why the federal government couldn’t have left this area to state tort law, which provides more than an adequate incentive for a food manufacturer to warn of the (presumably) unknown presence of a common allergen within its food product — the fear of legitimate, multi-million dollar lawsuits.

    Why did Congress believe that a comprehensive allergen warning regime was required? Because 25% of allergen-containing foods had no warnings? How do we know that the 25% of those foods weren’t the ones that most obviously contained the allergen in question? In other words, did we really need more warnings? Was the increased incidence of food recall due to an increased incidence of allergic reactions caused by foods that were not known to the consumer to contain the allergen? Or was it due to our own hyper-sensitivity to these issues? And, the hyper-sensitivity of food makers to these issues (likely caused by their fear of allergen-related litigation)? Doesn’t the uptick in recall mean that state tort law (and other existing requirements) was more than adequately addressing the area, i.e. the industry response to the problem was growing, not receding?

    • http://www.litigationandtrial.com/ Max Kennerly

      I think this is a classic example of where you don’t want state law to govern, because you don’t want different states to pass varying, potentially conflicting warning requirements. I think that’s part of why states had not acted on this question.

      Unlike, say, a prescription drug case, where the question is if the manufacturer should have warned, for an allergen case it’s quite obvious that any maker that failed to warn of one of those common allergies should be liable – the real question is exactly how they should make that warning, and it makes sense to have uniform federal guidance on that.


      • Guest

        Food manufacturers may appreciate uniform federal guidance, since it leads to lots of preemption arguments in tort suits. In fact, I wouldn’t be surprised if some industry associations pushed for this type of measure. I’d prefer to just leave this to state tort law. I don’t think there’s going to be hugely varying guidance from state courts on whether a company should warn its customers of the inclusion of a common allergen in their product, which is not commonly understood to be an ingredient of that product. As for the cases in between, that’s why the world needs guys like you and me.

  • David M. Nieporent

    To a round approximation, zero people die annually from food allergies in the U.S. Note that this includes all people — not just children — and includes people eating non-prepackaged food and people who don’t know they’re allergic to something. So, no, the harm of an unlabeled food allergen is not “often” a “dead child.”

    • http://www.litigationandtrial.com/ Max Kennerly

      “To a round approximation,” zero people have died in terrorist attacks on the U.S. Indeed, in the second week of September 2001, more people died from smoking than from terrorist attacks. If you want to argue from statistics, setting some sort of arbitrary limit for “rounding,” then you’ll find that heart disease, cancer, and car accidents cause half of all deaths, which under your reasoning means we should ignore everything else, including homicide, which kills an insignificant fraction of the population.

      Rational people reply weigh the cost versus the benefit. It’s of course indisputable that food allergies are a serious problem. It is also indisputable that an additional two words on your bag of peanuts don’t do anything to hurt anyone; they don’t even add to the cost. There’s thus no question about the right course of action here.

  • http://www.endoftenancycleaning.com/page-cleaning-company.html Harold

    These explanations do make sense, but COME ONE! Contains peanuts, written on e bag/can of PEANUTS>!? Whats next : giant “TV” stickers on TV sets, just in case, if somebody decides to use it as a microwave>!? Use your common sense, people…

  • Tom Murin

    The absurdity is that peanuts don’t “contain” peanuts – they are peanuts! The label makes perfect sense for a Snickers bar, of course. I remember many years ago in RI who died after eating chili that contained peanut butter in a restaurant. Apparently, it is not unusual for chili to include this secret ingredient. It certainly isn’t common knowledge.