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.]