Food Allergies And Pearl Spray/glitters

Business By Kitagrl Updated 17 Sep 2010 , 7:05pm by jason_kraft

Kitagrl Posted 12 Sep 2010 , 12:33am
post #1 of 47

I delivered a cupcake tower this weekend and the customer was very pleased with it. However she wrote to say that she wanted to ask about my ingredients because her sister is highly allergic to peanuts, shellfish, and other ingredients...and had a mild reaction to one of my cupcakes....but since she's never reacted to baked goods before, she wanted to know what I used. (She did NOT tell me beforehand of any allergies.)

I was like CRAP! I gently told her that if there are food allergies involved, she really needs to tell me ahead of time (she wasn't mad at me), because even if the actual cakes don't contain nuts, the chocolate is kept in a cabinet with nuts, and sometimes I put almond extract in my icings.

Then it dawned on me that I did use a light sheen of pearl airbrush spray...also some silver disco dust and some Wilton star shaped glitter over the cupcakes and cake. So I told her if her sister is really highly allergenic she could have reacted to that..so in the future I need to know if I need to omit this on her cakes.

Have any of you ever experienced someone reacting to the pearl sprays and glitters used on cakes? She knows its not my fault...she's ordering another cake from me soon and they loved this one...but she was just surprised that her sister reacted (mildly) to a cupcake....and I was somewhat dismayed that it happened and that she did NOT tell me. It had to either be the chocolate...a trace of possible almond that was in some of the chocolate icing leftover from another cake...or my biggest suspect is the pearl spray/glitters I used.

Which truthfully...if she HAD told me her sister was food allergic...I would not have thought to avoid the sprays/glitters...but maybe I should be more careful in the future IF someone warns me of a food allergy.

46 replies
jason_kraft Posted 12 Sep 2010 , 12:51am
post #2 of 47

I've never heard of allergic reactions to pearl sprays or glitters...other than ethyl alcohol and gum arabic, the main ingredients in these two products are chemical additives and food dyes. It is very rare to find someone who is allergic to any of those ingredients.

The reaction was probably due to cross-contamination, either at your kitchen and/or at the manufacturing site of one or more of your ingredients. If any porous surface comes in contact with an allergen, it will never be completely safe to use with foods that must be free of that allergen.

FYI, peanuts are actually legumes, not nuts. Almonds are tree nuts, which is a separate allergy -- although some people (including myself) have both allergies.

Kitagrl Posted 12 Sep 2010 , 1:03am
post #3 of 47
Quote:
Originally Posted by jasonkraft

I've never heard of allergic reactions to pearl sprays or glitters...other than ethyl alcohol and gum arabic, the main ingredients in these two products are chemical additives and food dyes. It is very rare to find someone who is allergic to any of those ingredients.

The reaction was probably due to cross-contamination, either at your kitchen and/or at the manufacturing site of one or more of your ingredients.

FYI, peanuts are actually legumes, not nuts. Almonds are tree nuts, which is a separate allergy -- although some people (including myself) have both allergies.




She mentioned peanuts and shellfish but then said "and other stuff too" and said she is highly sensitive....

I could NOT believe she did NOT tell me that ahead of time. She said the reaction was very mild so it must have just been cross contamination, or maybe I had a bit of leftover icing which contained some almond extract in it (sometimes I add leftover icing to a new batch to use it up and I have one recipe that contains almond extract).

I can't imagine if I had just decided to throw almond extract in the icing or in the cake for some reason and she had not told me about her severe allergies. *Sigh*

I guess it coulda been the chocolate....??? I dunno. Oh she said she's allergic to fruit, too, among other things.

jason_kraft Posted 12 Sep 2010 , 1:15am
post #4 of 47

You can't really do much until you get a complete list of food allergies and intolerances. Once you get that list, check the ingredients of everything you used in the cake and also watch for the phrase "made on shared equipment with". Usually "made in the same facility" is OK.

If there are no allergens in your ingredients, then it was cross-contamination. Note that it could have also happened at the venue...if someone ate something with peanuts in it and touched one of the cupcakes your customer's sister touched, that can be enough to cause a mild reaction.

I wouldn't worry about it too much though, the onus was on the customer to provide the allergy information when the order was placed. This situation is exactly why food allergy disclaimer clauses exist in wedding cake contracts.

Kitagrl Posted 12 Sep 2010 , 1:30am
post #5 of 47
Quote:
Originally Posted by jasonkraft

You can't really do much until you get a complete list of food allergies and intolerances. Once you get that list, check the ingredients of everything you used in the cake and also watch for the phrase "made on shared equipment with". Usually "made in the same facility" is OK.

If there are no allergens in your ingredients, then it was cross-contamination. Note that it could have also happened at the venue...if someone ate something with peanuts in it and touched one of the cupcakes your customer's sister touched, that can be enough to cause a mild reaction.

I wouldn't worry about it too much though, the onus was on the customer to provide the allergy information when the order was placed. This situation is exactly why food allergy disclaimer clauses exist in wedding cake contracts.




Thanks for the insight, especially regarding "made on shared equipment" and "made in the same facility"...seems like thats a big thing especially with chocolate. Its good to know the difference.

I went straight to my website on my cake flavor page and put a warning that my kitchen is basically not allergen-safe and that I must be told about allergies before ordering, and that in some cases I may not be able to fill an order. For instance if someone is so allergic to peanuts they can't be in the same room with peanut butter...I'll have to refuse the cake since I have kids that eat peanut butter in my house.

Just wish she had told me! Thankfully she said the reaction was very mild.

jason_kraft Posted 12 Sep 2010 , 1:46am
post #6 of 47

I would be careful about flat-out refusing to serve a customer because they have food allergies, as that would violate the ADA (food allergies are a covered disability):
http://www.aafa.org/display.cfm?id=9⊂=19&cont=255

Instead, I would have the customer sign a contract indicating they are aware that you may not be able to prevent cross-contamination. That way, the customer can determine whether or not they feel comfortable enough to place the order, instead of the decision already being made for them.

Kitagrl Posted 12 Sep 2010 , 1:50am
post #7 of 47
Quote:
Originally Posted by jasonkraft

I would be careful about flat-out refusing to serve a customer because they have food allergies, as that would violate the ADA (food allergies are a covered disability):
http://www.aafa.org/display.cfm?id=9⊂=19&cont=255

Instead, I would have the customer sign a contract indicating they are aware that you may not be able to prevent cross-contamination. That way, the customer can determine whether or not they feel comfortable enough to place the order, instead of the decision already being made for them.




Oh okay I should re-word it then...but...so if I say "My ingredients are stored with peanut butter and tree nuts" and they say "I'm allergic to peanuts and tree nuts" and I say "Then I don't know if I should make your cake" and they insist...then if they sign a paper saying they realize the risk...they can't sue me?

tsal Posted 12 Sep 2010 , 1:58am
post #8 of 47

I have severe food allergies (nuts being one of them) and I won't touch the Wilton stuff because some of the their products do say 'may contain traces of nuts'. I know for sure that the food coloring says this, but I'm not sure about the dusts.

It was most likely cross contamination if you don't have a nut-free kitchen, and if she didn't tell you beforehand and knew that you were not a nut-free baker, then it's all her fault (to be blunt).

As an allergic person, I take responsibility for everything that goes into my mouth - that means that unless I know what went into my food, I won't eat it. In fact, my husband and I were just at a wedding and I couldn't eat a thing because everything seemed to have nuts in it (we ended up driving to McDonald's drive-thru after the wedding because I was so starved!) It kills me when people aren't careful and then react and are taken aback.

jason_kraft Posted 12 Sep 2010 , 2:00am
post #9 of 47
Quote:
Originally Posted by Kitagrl

Oh okay I should re-word it then...but...so if I say "My ingredients are stored with peanut butter and tree nuts" and they say "I'm allergic to peanuts and tree nuts" and I say "Then I don't know if I should make your cake" and they insist...then if they sign a paper saying they realize the risk...they can't sue me?



Anyone can sue anyone else for any reason, but if you specifically disclaim liability from cross-contamination of allergens and they sign the contract, the suit would be thrown out of court in about 5 seconds. That's if the plaintiff can even find an attorney willing to take their case.

I would personally be insulted if I went to a restaurant fully informed about cross-contamination risks and was asked to leave because the chef didn't feel comfortable serving food to someone who might have an allergic reaction.

Kitagrl Posted 12 Sep 2010 , 2:06am
post #10 of 47
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Originally Posted by jasonkraft

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Originally Posted by Kitagrl

Oh okay I should re-word it then...but...so if I say "My ingredients are stored with peanut butter and tree nuts" and they say "I'm allergic to peanuts and tree nuts" and I say "Then I don't know if I should make your cake" and they insist...then if they sign a paper saying they realize the risk...they can't sue me?


Anyone can sue anyone else for any reason, but if you specifically disclaim liability from cross-contamination of allergens and they sign the contract, the suit would be thrown out of court in about 5 seconds. That's if the plaintiff can even find an attorney willing to take their case.

I would personally be insulted if I went to a restaurant fully informed about cross-contamination risks and was asked to leave because the chef didn't feel comfortable serving food to someone who might have an allergic reaction.




Okay...I didn't mean it insulting...but I see what you mean. I already changed the wording to include signing a waiver for severe allergies.

I have had parents ask me about allergies and I did not refuse their order but did tell them the house contains peanut butter and tree nuts and that I would have them sign a waiver...and usually that's enough to scare them off anyway.

The customer wrote back and said the reaction of her sister was not severe, only a mild tingling of her lips and said she is still eating the leftovers so it wasn't bad and she's not worried about it...but still I asked her for a list of allergies for the next cake and will probably have her sign anyway...in case somehow the reaction is not so mild the next time.

Thanks for all your feedback!

lilyankee5688 Posted 12 Sep 2010 , 2:16am
post #11 of 47

I am highly allergic (this will sounds weird) to raw/fresh fruits and veggies. I can not touch them or eat them/drink juices. I just gained this allergic 3 years ago when I was pregnant, and Its getting worse, so I have a hard time going out to eat, trusting other food I don't make. When I go to family members houses, 9 times out of 10, they forget (since it is so new). Its tough, in order for me to touch or eat them they have to be 100% cooked. I couldn't imagine not telling someone (especially a cake decorator) ahead of time, because even if juices get on what I consume I get hives, throat swells and my breathing speeds up very fast within minutes of touching or eating.. I then am sick to my stomach for several days after.. its bad, and it is a tough allergy. I have a hard time going to grocery stores, I have to wear gloves to pick stuff up and push the cart, since I don't know if someone has cross-contaminated.

Good thing it was only mild! Atleast you learned this and it wasnt serious.

Kitagrl Posted 12 Sep 2010 , 2:20am
post #12 of 47
Quote:
Originally Posted by lilyankee5688

I am highly allergic (this will sounds weird) to raw/fresh fruits and veggies. I can not touch them or eat them/drink juices. I just gained this allergic 3 years ago when I was pregnant, and Its getting worse, so I have a hard time going out to eat, trusting other food I don't make. When I go to family members houses, 9 times out of 10, they forget (since it is so new). Its tough, in order for me to touch or eat them they have to be 100% cooked. I couldn't imagine not telling someone (especially a cake decorator) ahead of time, because even if juices get on what I consume I get hives, throat swells and my breathing speeds up very fast within minutes of touching or eating.. I then am sick to my stomach for several days after.. its bad, and it is a tough allergy. I have a hard time going to grocery stores, I have to wear gloves to pick stuff up and push the cart, since I don't know if someone has cross-contaminated.

Good thing it was only mild! Atleast you learned this and it wasnt serious.




Wow, that's tough!!!

Yeah the customer said she didn't even think about baked goods affecting her sister.

I had one of my children on a preservative and acid free (no citric or tomato) diet for a year to see if it would help a condition he has (it did at first but then didn't and eventually the diet was more trouble than it was worth) so I know how difficult it is to function with a strict diet! That's scary how dramatic your reaction is.

BlakesCakes Posted 12 Sep 2010 , 4:06am
post #13 of 47

Sorry, but I don't believe for one moment that the ADA info applies to eateries, bakeries, etc. when an allergic individual CHOOSES to eat in/purchase goods from a place like that.

If that were the case, any individual allergic to shellfish could walk into Red Lobster, request a meal be prepared "allergan" free, and then sue when they were told that it would be IMPOSSIBLE to do so in a kitchen virtually swimming in cross contamination, or sue when they had a reaction.

Not every food preparer can accommodate special dietary requests. It's not discrimination. It's a fact of life. An allergic person needs to, as said by a previous poster, take full responsibility for everything they consume. Their allergy doesn't superceed the right of the baker to choose what they can/will bake or how they'll bake it.

I absolutely will not make ANY cake if the words "allergy", "food sensitivity", or "special dietary needs" are mentioned. I have the right to protect myself from the worry that someone will have a reaction to something--perhaps not even my cake--and then go on to require medical attention. No one can force me to buy special ingredients, attempt to eliminate cross contamination, or steal my peace of mind because I've been forced to do something that I choose not to do. There are bakers who specialize in this field--god bless them--and they are the one's who need to be making these cakes.

As for the woman who had the mild reaction--I seriously doubt that it was the blingy decos. Sorry that she frightened you, but you're not a mindreader. I'm sure she called for "future reference" so that her sister could add something to her "list", if you KNEW what it might have been. You don't, so don't worry about it. It doesn't sound like she is, if she's still eating your product.

Rae

jason_kraft Posted 12 Sep 2010 , 4:37am
post #14 of 47
Quote:
Originally Posted by BlakesCakes

Sorry, but I don't believe for one moment that the ADA info applies to eateries, bakeries, etc. when an allergic individual CHOOSES to eat in/purchase goods from a place like that.



The ADA applies to all public accommodations, including restaurants and retailers. That's why all restaurants have wheelchair-accessible entrances.

I'm not sure if custom-order bakeries have been tested in the courts in terms of ADA applicability, but a business that accepts orders from the general public and serves consumers would seem to apply. Read the link below for more info.

http://www.justice.gov/crt//drs/faqada.php

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An allergic person needs to, as said by a previous poster, take full responsibility for everything they consume. Their allergy doesn't superceed the right of the baker to choose what they can/will bake or how they'll bake it.



I think you're misinterpreting how the ADA works. It does not say that someone with allergies is entitled to march into a bakery and demand an allergy-free product. The intent is to allow the disabled person to make up their own mind about whether or not they want to purchase a product or service, and not have the choice already made for them.

If you do business with the general public, you are free to refuse to do business with whoever you wish, as long as you do not discriminate based on a protected class. It is usually difficult to prove discrimination, but posting a message on your web site saying that people with allergies are not welcome is pretty clear in that respect. It's really all about the wording...you can't take away someone's choice, but you can make that choice very easy by stating allergen information, strongly recommending against placing orders, and requiring disclaimers.

Will you be sued under the ADA if you post a message like that? Probably not. But it's still a smart idea to avoid potential liability by changing the message's wording to be more inclusive.

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No one can force me to buy special ingredients, attempt to eliminate cross contamination, or steal my peace of mind because I've been forced to do something that I choose not to do.



Again, exactly right. On the contract you are free to explicitly say to a peanut-allergic consumer "this product contains peanuts and our products are cross-contaminated with XYZ". If the consumer still goes ahead with the contract that disclaims risk, you have nothing to worry about.

You are also free to tell the customer with food allergies that you can't fit their order into your schedule because you're too busy, but refusing to serve all food-allergic customers violates the letter of the ADA.

You may be confusing the ADA as it applies to businesses with the steps schools have to take to accommodate food-allergic children (i.e. banning peanuts from the classroom). IIRC schools are held to a higher standard (section 504) than retail businesses, who do not have to make such accommodations.

jason_kraft Posted 12 Sep 2010 , 5:00am
post #15 of 47

More information at the link below:
http://www.peanutallergy.com/awareness-and-advocacy.html

"ADA says, "A customer with a food allergy may ask a restaurant if it is possible to omit a sauce or ingredient from a dish he or she wishes to order. When it is easy to do, the request should be honored." However, the ADA protects restaurants from having to make so-called "fundamental alterations", meaning changes in their food, products, or services that are sufficiently significant to alter the nature of the product they offer. Therefore, it is reasonable to ask for peanut products to be removed from certain dishes, but a restaurant does not have to comply with a request for a special dish that has no such products and is not remotely part of their menu. The ADA only requires them to make "reasonable modifications."

BlakesCakes Posted 12 Sep 2010 , 5:21am
post #16 of 47

I see it as an "undue burden" to be asked to provide such items. I am not a public business, I have no employees, and I don't receive Federal funds.

"If the consumer still goes ahead with the contract that disclaims risk, you have nothing to worry about"--that's not true if you have conscience and take the allergies of others seriously icon_cool.gif

I'm sorry, but I find it utterly ridiculous that I now have to worry about someone making a poor choice by ignoring my statement that I can't accommodate special dietary needs cakes and possibly trying to force my hand by telling me that I'm being discriminatory??????????? icon_mad.gif So in the worst case scenario, I'm damned if I do and damned if I don't????????

I would rather "discriminate" against someone with an allergy that I KNOW I can't accommodate than get a phone call telling me that the person had a reaction to my baked goods--sorry.

Last year, I donated a certificate to a charity for a cake. I stated clearly on the certificate that I "cannot" (same as "would not", to me) provide a cake if food allergies are an issue. The winner called and asked for a birthday cake for her nut allergic husband. Clearly, she either didn't read the certificate, or didn't care about my position.................

I told her that I was sorry, but that I could never guarantee no cross contamination. She sicced her LAWYER husband on me to DEMAND that I make the cake icon_eek.gif He stated that he'd "even sign a waiver saying that he wouldn't eat HIS OWN BIRTHDAY CAKE". I told him to draw up the waiver and I'd have my attorney look at it..............never heard from them again.

Now, if ever someone was going to bring up the ADA, I'd think it would have been that lawyer.... Then again, in a court of law, waivers are construed AGAINST the person who constructs them...............

How can it be better to dance around the truth or lie about availability?

Is it really that "awful" to tell someone that I simply cannot do what they want? I'm not being mean or hateful--just honest and practical. So, I guess honesty is no longer the best policy..............

I know I'm venting--and I'm sorry. Your responses have been very level headed, but you have to see how hideously convoluted this is--to raise the rights of one so high above the rights of the other that the other either has to become evasive, disingenuous, or potentially liable.............

Rae

jason_kraft Posted 12 Sep 2010 , 5:30am
post #17 of 47
Quote:
Originally Posted by BlakesCakes

I see it as an "undue burden" to be asked to provide such items. I am not a public business, I have no employees, and I don't receive Federal funds.



In the context of the ADA, "public" means that the business serves the general public and is not an exclusive club. It has nothing to do with whether shares in the company are privately held or publicly traded.

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"If the consumer still goes ahead with the contract that disclaims risk, you have nothing to worry about"--that's not true if you have conscience and take the allergies of others seriously icon_cool.gif



There could be any number of reasons a food-allergic person would order cake, you are not the customer's babysitter. Adults are free to make their own decisions. Maybe the customer is only mildly allergic, or perhaps the cake is for someone else, who knows? Cakes also tend to be high in fat, would you also refuse to sell cakes to people who are overweight?

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I'm sorry, but I find it utterly ridiculous that I now have to worry about someone making a poor choice by ignoring my statement that I can't accommodate special dietary needs cakes and possibly trying to force my hand by telling me that I'm being discriminatory



There is a big difference between saying that you don't make allergen-free cakes and saying that you will not sell cakes to people with allergies.

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Is it really that "awful" to tell someone that I simply cannot do what they want? I'm not being mean or hateful--just honest and practical. So, I guess honesty is no longer the best policy..............



You are still missing the point. If you can't make a nut-free cake, you should absolutely tell the customer that the cake will not be nut-free. If they still want to order the non-nut-free cake, they are entitled to do so, and you as the business owner cannot refuse to sell it to them "for their own good", because food allergies are a protected disability. Now if the customer is rude, you can refuse to sell them a cake, since rudeness is not a recognized disability. icon_smile.gif

In your example, you would have sold the cake if the customer had signed the wavier, correct?

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I know I'm venting--and I'm sorry. Your responses have been very level headed, but you have to see how hideously convoluted this is--to raise the rights of one so high above the rights of the other that the other either has to become evasive, disingenuous, or potentially liable.............



The straw man you've built is indeed hideously convoluted, luckily the actual provisions of the ADA are not. icon_wink.gif

BlakesCakes Posted 12 Sep 2010 , 5:48am
post #18 of 47

I have built no "straw man".

Considering your own quoted source,

Since I do not have nut free ingredients or a nut free kitchen, I do not have to comply with a request for a special dish that has no such products and is not remotely part of my menu. The ADA only requires me to make "reasonable modifications".

I DO have the right to protect myself against the....."entitlement" of others who can, and will, make poor choices for themselves and then attempt to hold me responsible for the outcome.

If I "can't make a nut free cake", it means I WON'T be forced to make a cake for someone who NEEDS a nut free cake.

No, I never would have made that cake because I'm certain that there would have been no meeting of the minds. As soon as I was made away of the issue, I recommended that they call a local pediatric allergist who would most likely be able to direct them to a specialty bakery.

No one can tell me that I have to risk my peace of mind or my family's well-being for any cake.

Rae

jason_kraft Posted 12 Sep 2010 , 6:01am
post #19 of 47
Quote:
Originally Posted by BlakesCakes

Since I do not have nut free ingredients or a nut free kitchen, I do not have to comply with a request for a special dish that has no such products and is not remotely part of my menu. The ADA only requires me to make "reasonable modifications".



Absolutely correct. No one is asking you to change your recipes or your baking processes.

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I DO have the right to protect myself against the....."entitlement" of others who can, and will, make poor choices for themselves and then attempt to hold me responsible for the outcome.



To an extent. The civil rights granted by the ADA to protected classes supersede a business owner's right to refuse service, but only when dealing with protected classes. By entering the marketplace you implicitly agree to follow all laws, even ones you may not agree with.

I certainly understand where you are coming from, but I must say I'm surprised that people are so scared of being sued they will still refuse to sell a food-allergic customer a cake even when the customer waives all liability.

What would happen if a diabetic tried to order one of your cakes? If they eat too much cake they could end up in a coma...do they need to sign a pledge that they'll only eat a small piece? icon_wink.gif

If you really aren't comfortable selling the cake, referring the customer to another business on a case-by-case basis is one way to deal with the issue...certainly better than explicitly telling all food-allergic customers they are not welcome in your establishment.

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No one can tell me that I have to risk my peace of mind or my family's well-being for any cake.



If you have liability insurance and an LLC you won't have to risk your peace of mind or your family's well-being. Without those safety nets, every product you make is a potential risk, even when dealing with people without allergies.

BlakesCakes Posted 12 Sep 2010 , 6:26am
post #20 of 47
Quote:
Originally Posted by jasonkraft




I certainly understand where you are coming from, but I must say I'm surprised that people are so scared of being sued they will still refuse to sell a food-allergic customer a cake even when the customer waives all liability.




So, tell me, have you ever been sued??? Or do you represent those who do the suing???

If you've been sued, and you're not fearful of having to defend yourself against a frivolous lawsuit, or even one with some merit, then you must have incredible hubris or be a glutton for punishment.

I was sued by my neighbor when we built a perfectly legal, by the code addition on our house. His grounds?? Our addition altered HIS VIEW OF MY BACK YARD. He lost, but it cost me a lot of sleepless nights and BIG BUCKS.

US judges are afraid to throw out frivolous lawsuits like this BEFORE the innocent have already spent thousands on their defense--in my case, $10,000.

Now, in OH, I could have sued my neighbor in small claims court for a whopping $3,000 of that $10,000, citing the frivolous claim..............fair, really, really, fair--NOT--or had my lawyer do it and probably just put lots more $$ in HIS pocket.......!

Now, if we had a system like the British--where the loser pays the costs of the other party-- it might not be such a big deal. There'd be a lot less of this lunacy.

As for most waivers, they're generally not worth the paper they're written on. A good lawyer can bust a waiver in no time. Like I said, the only waiver that protects someone like me is the waiver drawn up by the CUSTOMER, not by me. That way, if something goes to court and the waiver is at the crux of the issue, the customer has to defend the verbage, etc.

I do not have the capability to make cakes for ANY special dietary needs, including diabetics. I have no "establishment". Liability insurance and LLCs do not insulate you from having to defend yourself in the event that someone brings suit.

Rae

jason_kraft Posted 12 Sep 2010 , 4:33pm
post #21 of 47
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Originally Posted by BlakesCakes

So, tell me, have you ever been sued??? Or do you represent those who do the suing???



Nope and nope.

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I was sued by my neighbor when we built a perfectly legal, by the code addition on our house. His grounds?? Our addition altered HIS VIEW OF MY BACK YARD. He lost, but it cost me a lot of sleepless nights and BIG BUCKS.



Apple and oranges, my friend. I'm not a lawyer, but I did take a class in contract law in business school, and a plaintiff suing over something they specifically waived liability for in a contract doesn't have a chance to get to trial. Your case did not involve a contract and there was no waived liability, so the judge/jury had to weigh the facts of the case and come to a decision.

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A good lawyer can bust a waiver in no time. Like I said, the only waiver that protects someone like me is the waiver drawn up by the CUSTOMER, not by me.



We are not talking about a complicated contract here. Lawyers are not magic, and they can't "bust" a waiver that says something like "customer agrees to release baker from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to any loss, damage or injury, including death", with the additional disclosure that the customer has said they are allergic to X and the cake may contain X. If you're really concerned about the legalese you can find templates for liability waivers online that were drafted by real lawyers.

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Liability insurance and LLCs do not insulate you from having to defend yourself in the event that someone brings suit.



Of course not, but business liability insurance does cover the full cost of your defense. That's what it's there for. And in the unlikely event of a settlement or judgment against you, the liability insurance company will pay for it (assuming no malice on your part). In the even more unlikely event of a judgment over and above liability insurance limits, your personal assets are protected by the LLC.

BlakesCakes Posted 12 Sep 2010 , 6:19pm
post #22 of 47

Well, all I can say is read my second signature line...............

You're operating under a best case scenario and believing everything you were told in your class.

I've been there as far as being sued--and I've sued. No, they weren't liability cases, but I sure as hell can tell you that it's no cakewalk. It eats at your soul and no waiver, policy, or expensive legal assurances can replace your lost sleep or the damage done to your psyche and your ability to trust.

You're assuming WAYYYY too much about the legal system doing right by the person who has followed the rules. I'm sorry to tell you that it doesn't work that way.

If the "other party" has the time, money, and inclination to fight, they can, and will, make the other person's life hell. Insurance companies will only go so far when it comes to defense. They're quick to settle--to save themselves as much as possible--and then drop the insured party like a hot rock. If there's a whisper of the words malice or negligence, the whole paradigm shifts.

I graduated to the school of "Fool me once shame on you, fool me twice, shame on me." a long, long time ago. When you've walked a mile in my shoes, give me a call....................

Rae

Kitagrl Posted 12 Sep 2010 , 6:33pm
post #23 of 47

Wow. Sorry this turned into an argument.

The bottom line is that this lady ordered a cake from me without letting me know the recipient had multiple food allergies... she's ordering another cake and I'm going to make sure I try to avoid any nut extracts. Also going to have her sign in the contract saying she understands the possibility of cross contamination in my kitchen.

Usually people with severe allergies (especially parents of kids with them) are going to see that possibility and go somewhere else to order cake, and not take a risk.

I was just glad in this situation that her oversight did not turn out badly.

momma28 Posted 12 Sep 2010 , 7:09pm
post #24 of 47

Our products may contain or come into contact with milk, wheat, nuts, soy, berries, chocolate and other allergens. It is your responsibility to notify your guests of this risk and hold us harmless for allergic reactions.

This statement is directly above the line where I have my customers sign off on their cake delivery. I point it out so they definately read it. Also this statement is on my contracts and invoices.

I simply cant guarantee no allergens because I do not have seperate equipment.

jason_kraft Posted 12 Sep 2010 , 8:03pm
post #25 of 47

Cheerfully ignoring your veiled insult... icon_wink.gif

Quote:
Originally Posted by BlakesCakes

If the "other party" has the time, money, and inclination to fight, they can, and will, make the other person's life hell.



Which is why it's always a good idea to remain on good terms with your customers.

Quote:
Quote:

Insurance companies will only go so far when it comes to defense.



Since the underwriter of your liability policy is on the hook if you lose, you'd better believe they will do their best to win the case. I would be very surprised if a customer who signed the waiver we've been discussing actually brought a suit (unless they were antagonized) and I would be even more surprised if such a suit made it past the motion for summary judgment filed by your insurance company.

Trials are about the finding of facts. A signed contract that disclaims the baker from liability is an indisputable fact. Your experience with a trial involving neighbor law is not unusual, as they can sometimes be messy (which is usually why arbitration is recommended instead) but that has no bearing on the complexity of the type of case we're talking about.

It's obvious that we have differing views on this subject so we'll have to agree to disagree on this one. But I think we can both agree that it's important for bakers to:

- Ask their customers about food allergies
- Make it clear whether or not the products will be safe for people with food allergies
- Specifically disclaim liability for loss, damage, injury, or death from exposure to food allergies
- Carry liability insurance and form an LLC as an added safety net

If you'd like to continue to debate the merits of the legal system please feel free to send me a private message.

BlakesCakes Posted 12 Sep 2010 , 8:15pm
post #26 of 47

Sorry, Jason, no meeting of the minds on this one, either.

You write it.

I've lived it. Big difference when real people are involved.

Real experience is the best teacher.

The best way to limit liability is to simply not make a product that doesn't fit into one's own reasonable capabilities, resources, etc. Not making it leaves no grey areas--no one can have an allergic reaction to it.

Enough mental "massaging"............

Rae

ziggytarheel Posted 12 Sep 2010 , 8:26pm
post #27 of 47

As a person with a severe food allergy, I would like to point out that I have no legal obligation to inform you of my food allergies or of any other medical condition. It is my understanding that it is the baker's duty to inform of potential allergens and my job to determine what is best for me. Just like with any other medical issue.

My allergy is life threatening and has caused several scares in my life, so I do take it most seriously and I really appreciate food providers who also take it seriously. But just like I can walk in the grocery store and buy anything I want, I should also be able to buy bakery item I want, yes? I understand that you don't want to be sued, but legally I think you have a bigger issue if you refuse to serve than if you sell a well-labeled product to a customer who medically shouldn't consume it.

At least, that's the way it seems to me. icon_smile.gif

jason_kraft Posted 12 Sep 2010 , 8:38pm
post #28 of 47
Quote:
Originally Posted by BlakesCakes

The best way to limit liability is to simply not make a product that doesn't fit into one's own reasonable capabilities, resources, etc. Not making it leaves no grey areas--no one can have an allergic reaction to it.



That would be true in an ideal world, but it would also require asking everyone who could potentially consume your products if they have food allergies. There's simply no way to know if and when someone with food allergies will be exposed to your products...and since 6% of children and 2% of adults have some type of food allergy, chances are your food has already been served to someone with allergies.

Quote:
Quote:

I've lived it. Big difference when real people are involved.



So you have been involved in a product liability case? I would be interested to hear your experience.

Wendl Posted 12 Sep 2010 , 9:23pm
post #29 of 47

So, on top of everything else, 'we' have to see about allergies from the get-go? We aren't doctors or healthcare professionals. We make cakes for special occasions. Are bakers/cake artists now having to contend with following HIPPA regulations and make sure the records of allergies the client has are safely stored from view?

To the OP - what else did they serve at the party? A friend of mine gets tingly lips from avocado (he's mildly allergic) but eats guac like it's going out of style... Maybe she had something else that reacted...and it wasn't even the cupcake? Maybe it was something in the coffee or cocktails served...?

To Momma28: "Our products may contain or come into contact with milk, wheat, nuts, soy, berries, chocolate and other allergens. It is your responsibility to notify your guests of this risk and hold us harmless for allergic reactions.

This statement is directly above the line where I have my customers sign off on their cake delivery. I point it out so they definately read it. Also this statement is on my contracts and invoices.

I simply cant guarantee no allergens because I do not have seperate equipment."

Sounds great to me.

jason_kraft Posted 12 Sep 2010 , 9:31pm
post #30 of 47
Quote:
Originally Posted by Wendl

Are bakers/cake artists now having to contend with following HIPPA regulations and make sure the records of allergies the client has are safely stored from view?



HIPAA only applies to health care providers, health insurance companies, and government programs.

Quote:
Quote:

So, on top of everything else, 'we' have to see about allergies from the get-go? We aren't doctors or healthcare professionals.



Exactly...let the healthcare professionals tell people what they should and should not eat. A baker's job is to make and decorate a cake, while providing the customer with as much information as possible regarding the ingredients and the chance of cross-contamination so the customer can make an informed decision.

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