Can I sue a restaurant for an allergic reaction caused by falsely representing the ingredients of a sandwich on their menu?

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Can I sue a restaurant for an allergic reaction caused by falsely representing the ingredients of a sandwich on their menu?

My husband ordered a sandwich based upon the ingredients listed on the menu. Rather than ham & salami as it stated, it contained turkey ham and turkey salami, which my husband it allergic to. I had to take him to the ER. We would like them to pay medical bills, damages and change the menu to be an honest description of their sandwich. What are our options?

Asked on April 24, 2009 under Personal Injury, Ohio

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Okay, have you spoken to an attorney? Did you take a picture of the menu or take a menu to show? Did he taste the difference? Did he have one bite or many? Did he ask them if it was ham and salami or turkey ham and salami? I have included some information I found for you.  You need to consult a personal injury attorney in Ohio.  Try the Ohio State Bar, www.attorneypages.com or county bar associations. http://74.125.47.132/search?q=cache:yux0Qu6xftUJ:business-law.freeadvice.com/trade_regulation/types_ftca.htm+%22ohio%22+and+%22false+advertising+of+food%22&cd=6&hl=en&ct=clnk&gl=us

§ 3715.68. False advertising.
 

(A)  An advertisement of food, drug, device, or cosmetic is false if it is false or misleading in any particular. 

(B)  For the purpose of sections 3715.01 and 3715.52 to 3715.72 of the Revised Code, the advertisement of a drug or device representing it to have any effect in albuminuria, appendicitis, arteriosclerosis, blood poison, bone disease, Bright's disease, cancer, carbuncles, cholecystitis, diabetes, diphtheria, dropsy, erysipelas, gallstones, heart and vascular diseases, high blood pressure, mastoiditis, measles, meningitis, mumps, nephritis, otitis media, paralysis, pneumonia, poliomyelitis (infantile paralysis), prostate gland disorders, pyelitis, scarlet fever, sexual impotence, sinus infection, tuberculosis, tumors, typhoid, uremia, venereal disease, is also false, except that no advertisement not in violation of division (A) of this section is false under this division if it is disseminated only to members of the medical, dental, pharmaceutical, or veterinary profession, or appears only in the scientific periodicals of these professions; provided, that whenever the director of agriculture determines that an advance in medical science has made any type of self-medication safe as to any of the diseases named above, the director shall propose regulations for adoption by the public health council authorizing the advertisement of drugs having curative or therapeutic effect for such disease, subject to such conditions and restrictions as the director may deem necessary in the interests of public health; provided, that this division shall not be construed as indicating that self-medication for diseases other than those named in this section is safe or efficacious. 
 

HISTORY: 128 v 819(832) (Eff 9-13-57); 129 v 582(811) (Eff 1-10-61); 130 v Pt.2, 192 (Eff 12-16-64); 138 v H 965. Eff 4-9-81.

§ 3715.60. Misbranded food.
 

Food is misbranded within the meaning of sections 3715.01, 3715.02, 3715.022 [3715.02.2], and 3715.52 to 3715.72 of the Revised Code, if: 

(A) Its labeling is false or misleading in any particular. 

(B) It is offered for sale under the name of another food. 

(C) Its container is so made, formed, or filled as to be misleading. 

(D) It is an imitation of another food, unless its label bears in type of uniform size and prominence, the word "imitation," and immediately thereafter the name of the food imitated. 

(E) When it is in package form, it does not bear a label containing: 

(1) The name and place of business of the manufacturer, packer, or distributor; 

(2) An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; provided, that reasonable variations shall be permitted, and exemptions as to small packages shall be established by rules adopted by the director of agriculture; 

(3) In the case of food subject to section 3715.023 [3715.02.3] of the Revised Code, the information specified in that section. 

(F) Any word, statement, or other information required by or under authority of sections 3715.01, 3715.02, and 3715.52 to 3715.72 of the Revised Code, to appear on the label or labeling is not prominently placed thereon with such conspicuousness as compared with other words, statements, designs, or devices, in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use. 

(G) It purports to be, or is represented as, a food for which a definition and standard of identity have been prescribed by statute, or by any rule adopted under an existing statute, or by rule as provided by section 3715.02 of the Revised Code, unless: 

(1) It conforms to such definition and standard. 

(2) Its label bears the name of the food specified in the definition and standard, and, insofar as may be required by such statute or rules, the common names of optional ingredients, other than spices, flavoring, and coloring, present in such food. 

(H) It purports to be or is represented as: 

(1) A food for which a standard of quality has been prescribed by rule as provided by section 3715.02 of the Revised Code and its quality falls below the standard unless its label bears, in the manner and form that the rules specify, a statement that it falls below the standard; 

(2) A food for which a standard or standards of fill of container have been prescribed by rule as provided by section 3715.02 of the Revised Code, and it falls below the standard of fill of container applicable thereto, unless its label bears, in the manner and form that the rules specify, a statement that it falls below the standard. 

(I) It is not subject to the provisions of division (G) of this section, unless it bears labeling clearly giving: 

(1) The common or usual name of the food, if any; 

(2) In case it is fabricated from two or more ingredients, the common or usual name of each ingredient; except that spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings, without naming each; provided, that, to the extent that compliance with the requirements of division (I)(2) of this section is impractical or results in deception or unfair competition, exemptions shall be established by rules adopted by the director; and provided that these requirements shall not apply to any carbonated beverage of which a full and correct statement of the ingredients, to the extent prescribed by division (I)(2) of this section, has been filed under oath with the director. 

(J) It purports to be or is represented to be for special dietary uses, unless its label bears such information concerning its vitamin, mineral, and other dietary properties as is provided by rules proposed by the director and adopted by the public health council, as necessary, in order to fully inform purchasers as to its value for such uses. 

(K) It bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact; provided, that to the extent that compliance with the requirements of this division is impracticable, exemptions shall be established by rules proposed by the director and adopted by the public health council. 
 

HISTORY: 127 v 819 (Eff 9-13-57); 129 v 582(803) (Eff 1-10-61); 147 v S 87 (Eff 10-21-97); 149 v S 136. Eff 11-21-2001.

 
 


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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