Austin Food Allergy Attorneys

What Section 437.027 Requires

The Sergio Lopez Food Allergy Awareness Act added Section 437.027 to Chapter 437 of the Texas Health and Safety Code. You can read the enacted bill text directly.

It requires:

• Every food service establishment to display a food allergen awareness poster in an area regularly accessible to food service employees. The poster covers the major allergens, the symptoms of a reaction, and how to respond to one.
• Allergen awareness content in food handler and food manager certification — every state-accredited training program and examination must include it, for certificates issued or renewed on or after September 1, 2024.

The statute took effect September 1, 2023, with establishments required to comply with the poster requirement by September 1, 2024. It also generally preempts local rules that are inconsistent with or exceed the state requirements.

Why This Matters to Your Case

Texas has no law requiring allergen labeling on restaurant menus. What it has instead is a training and awareness duty, and that is directly relevant to the failure that hurt you.

Most restaurant allergy incidents are not deliberate. They happen because a server did not know that Worcestershire sauce contains anchovy, that a fryer is shared, or that a dairy-free dessert is finished with butter. Those are training failures.

So in any Texas restaurant allergy case, three questions follow immediately:

• Was the required poster displayed where employees could access it?
• Did the food manager on duty hold a current certification that included allergen awareness?
• Were the food handlers certified, and when were those certificates issued or renewed?

Those are documentary questions with documentary answers, and they are obtainable. That is a substantially better position than arguing about what a reasonable restaurant should have done in the abstract.

The Law Exists Because Someone Asked

It is worth sitting with the fact pattern the statute is named for. Sergio Alexander Lopez asked restaurant employees whether the food was safe for him. He was told it was. He died.

His mother spent nearly a decade getting the law passed. If a restaurant tells you a poster is just paperwork, that is the history behind it.

Restaurants and Packaged Food Are Two Different Cases

This distinction determines the theory, the defendant, and the evidence.

Packaged Food — A Labeling Case

The Food Allergen Labeling and Consumer Protection Act of 2004 requires packaged foods to identify major allergens in plain language. The FASTER Act of 2021 added sesame as the ninth major allergen, effective January 1, 2023.

The nine are milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, soybeans, and sesame.

When a packaged product contains an unlabeled major allergen, the claim runs against the manufacturer, frequently alongside a recall, and it is a product liability case with a documentary violation at its center.

Restaurants — A Negligence and Misrepresentation Case

Federal labeling law does not require restaurants to list allergens on menus. So a restaurant allergy claim is not a labeling violation. It rests on negligence, negligent misrepresentation, and in some circumstances breach of warranty.

The center of the case is the exchange. What you disclosed, to whom, what you were told, whether the kitchen was informed, and what controls existed. Texas layers the Section 437.027 training duty on top of that.

The Sesame Problem Nobody Anticipated

Here is a genuinely perverse consequence of the FASTER Act worth knowing about.

Rather than implement the allergen controls needed to keep sesame out of products, a number of manufacturers responded by intentionally adding sesame to items that never contained it — because labeling a product as containing sesame is cheaper and easier than preventing cross-contact.

The practical result is that some products became less safe for sesame-allergic consumers after a law designed to protect them. If you have a sesame allergy and reacted to a product you had eaten safely for years, that history is worth investigating rather than assuming you made a mistake.

“May Contain” Means Almost Nothing

Precautionary statements such as may contain, processed in a facility with, or made on shared equipment are voluntary and not standardized. No regulation requires them and none defines what they mean.

So the absence of a precautionary statement does not establish that a product is free of cross-contact, and its presence does not establish that any particular risk was actually assessed. That ambiguity cuts both directions, and it is a reason these cases turn on manufacturing records rather than package language alone.

How Restaurant Allergy Incidents Actually Happen

Almost none of these involve someone ignoring a customer on purpose. Understanding the failure mode is how you identify the defendant.

The Disclosure Never Reached the Kitchen

You told the server. The server did not enter it in the point-of-sale system, or entered it as a free-text note nobody read, or told the expo verbally during a rush.

Most modern restaurant POS systems can flag allergies on the kitchen ticket. Whether yours did, and whether the establishment’s procedure required it, is documentary evidence.

Someone Guessed

A server was asked whether a dish contained an allergen, did not know, and answered anyway rather than checking. This is precisely what the training duty exists to prevent.

Hidden Ingredients

Anchovy in Worcestershire and Caesar dressing. Milk in some breads and in butter-finished vegetables. Soy in many sauces. Egg in pasta and glazes. Nut flours and pastes in sauces and desserts. Sesame in buns, seasoning blends, and oils.

Staff frequently do not know these, which is a training and recipe-documentation failure rather than a customer’s failure to ask well enough.

Cross-Contact in the Kitchen

Shared fryers, shared grills, shared cutting boards, shared utensils, gloves not changed, and airborne flour. Cross-contact is different from the contamination concept in illness cases: the allergen protein transfers, and it does not need to be visible or abundant.

A restaurant that told you a fried item was safe while cooking it in the same oil as a breaded allergen made a specific, identifiable error.

The Recipe Changed

A supplier substitution, a new sauce, a seasonal menu change, or a corporate reformulation. Regular customers with allergies are at particular risk here, because they stopped asking about a dish they had eaten safely for two years.

The Order Was Wrong

A modification was entered but not made, plates were switched at the pass, or a to-go order was assembled incorrectly. Delivery adds another layer, since the person handing you the bag has no idea what you disclosed.

Buffets, Catering, and Shared Service

Shared serving utensils, unlabeled dishes, and items moved between trays. At a catered event the caterer, the venue, and the host may each have had a role, and the event contract frequently documents what was requested.

Anaphylaxis, and Why Aftercare Matters Legally

Anaphylaxis is a rapid, systemic allergic reaction that can obstruct the airway and drop blood pressure. It can be fatal in minutes.

Epinephrine and Then Emergency Care

Epinephrine is the first-line treatment, and using it is followed by emergency evaluation — not by going home because the symptoms resolved.

That is a medical point first. It is also a legal one, because a biphasic reaction — a second wave of symptoms hours after the first appears to resolve — is a recognized phenomenon. People who felt better and went home have been seriously harmed by the second reaction.

Why the Records Matter

An emergency department visit creates the documentation that a reaction occurred, what it involved, and what was administered. Someone who used an auto-injector at the table, recovered, and never sought care has a far harder claim — not because the reaction was not real, but because nothing independent recorded it.

If you or your child had a reaction and did not go in, that is worth discussing rather than assuming the claim is gone. But get evaluated first if it just happened.

What the Reaction Costs Beyond the Emergency

Survivors frequently develop genuine anxiety around eating out, and children can develop lasting fear of food. That is a real and compensable harm that adjusters routinely dismiss, and it should be documented rather than minimized.

Evidence That Decides These Cases

Allergy claims are won on the record of the exchange and the establishment’s systems, both of which degrade quickly.

• The point-of-sale ticket and kitchen ticket, showing whether an allergy flag was entered and whether it printed to the kitchen. This is the closest thing to a smoking gun in these cases.
• Server and manager identity, and who was on shift. Restaurant turnover is fast.
• The Section 437.027 poster — whether it was displayed and where.
• Food handler and food manager certification records, including issue and renewal dates, which determine whether allergen training was required for those certificates.
• Written allergen procedures, recipe documentation, and ingredient specifications, including whether the kitchen had access to accurate ingredient information.
• The menu and any allergen guide as it existed that day, including online versions. Menus change, and archived versions matter.
• The dish itself, if any remains. Refrigerate it. Testing can confirm allergen presence.
• Delivery app records, which capture allergy notes in the order and are held by the platform rather than the restaurant.
• Text messages and photos from the table, including anything you sent to family before the reaction.
• Witnesses, including everyone at your table who heard the exchange with the server.
• Prior complaints to the establishment about allergen handling, obtainable in litigation.
• Medical records, including the emergency evaluation and any allergy testing before and after.

A preservation letter should reach the establishment within days, demanding the tickets, the shift records, the certification documentation, the recipe and allergen procedures, and any surveillance video.

Write It Down Tonight

The single most valuable thing you can create is a contemporaneous account of the conversation — exactly what you said, exactly who you said it to, exactly what they said back, and who else heard it.

Written the same night, that account is powerful. Reconstructed in a deposition eighteen months later, it is considerably less so.

Children, Schools, and Camps

A large share of serious allergy cases involve children, and the setting changes the analysis.

Schools

Claims arise from cafeteria service that ignored a documented allergy, classroom food activities, field trips, and failures to administer epinephrine promptly.

Texas addresses school epinephrine and student health in the Education Code, and individual students frequently have written health or accommodation plans documenting the allergy and the response protocol. Those plans are central evidence — they establish that the school knew.

Critically: if a public school or governmental entity was involved, notice deadlines can be as short as 45 days to six months rather than two years. Tell an attorney immediately who operated the program.

Camps, Daycares, and Youth Programs

Enrollment forms and health records document the disclosed allergy. The question is usually whether the disclosure reached the person who actually served the food.

Claims Involving Minors

Limitations are generally tolled for a minor until adulthood, though a parent’s own related claims may run sooner. Settlements involving a minor require court approval in Texas, and a guardian ad litem may be appointed.

Expect a supervision defense in child cases. Where a parent disclosed the allergy in writing on an enrollment form and the program served the allergen anyway, that argument has very little to work with.

Allergy Is Not the Same as Intolerance — and Both Can Support a Claim

Restaurants conflate these constantly, and the distinction affects both the medicine and the case.

Allergy

An immune system response that can escalate to anaphylaxis and can be fatal. Trace amounts matter, and cross-contact matters.

Intolerance and Sensitivity

A digestive or metabolic response — lactose intolerance is the common example. Generally not life-threatening, but capable of causing genuine illness and lost time.

Celiac Disease

An autoimmune condition, not an allergy and not an intolerance. Gluten exposure causes intestinal damage in people with celiac disease, and repeated exposure has long-term consequences.

This matters practically because kitchens frequently treat gluten-free as a dietary preference rather than a medical requirement. A restaurant that assured a celiac customer a dish was gluten-free and then prepared it on a shared surface has made the same category of error as one that mishandled a peanut allergy — the mechanism differs, the failure does not.

Why the Distinction Cuts Both Ways

A defendant will sometimes argue that a customer described a preference rather than a medical condition. What you actually said matters, which is another reason to write down the conversation.

But the reverse is also true: a restaurant that treats every dietary request as a preference, with no procedure for distinguishing the ones that are medical, has a systems problem rather than a communication problem.

Who Can Be Held Responsible

• The restaurant, bar, food truck, or caterer that prepared and served it.
• A restaurant group or franchisor, depending on control over training, recipes, and procedures.
• A food manufacturer, in packaged product cases involving undeclared allergens.
• A supplier or distributor, where a substituted ingredient introduced the allergen without notice.
• A grocery or retailer, subject to the nonmanufacturing seller analysis covered on our food negligence page.
• A delivery platform, where allergy information was captured in the order and not transmitted.
• A school district, camp, daycare, or institutional food service provider.
• A venue or event host, in catered event cases.

Identifying every party early determines the total available coverage, which is the practical ceiling on any recovery.

What the Defense Will Argue

• You never told us. The reason the contemporaneous written account and the POS ticket matter so much.
• You should have asked more specifically, or should not have eaten there at all.
• The menu had a disclaimer, which is a real argument and frequently a weaker one than it looks.
• You assumed the risk by dining out with a known severe allergy.
• You did not carry your epinephrine, or delayed using it.
• It was not our food that caused it.
• Your reaction was not anaphylaxis, particularly where no emergency evaluation occurred.
• Parental supervision, in child cases.
• Comparative responsibility, under proportionate responsibility — at 50 percent or less you recover reduced by your share; above 50 percent you recover nothing.

Against most of these, the Texas training statute is useful precisely because it shifts the frame. The question stops being whether you asked well enough and becomes whether the establishment met a duty the Legislature wrote down.

Damages

A mild reaction treated at home produces modest damages, and we will tell you when a claim is not worth your time.

Serious cases can include emergency and intensive care, hospitalization, treatment for complications including airway and cardiac injury, ongoing allergy and immunology care, lost wages, physical pain and mental anguish, and the anxiety and food avoidance that frequently follow.

Cases involving lasting injury are handled as catastrophic injury claims. Fatal anaphylaxis proceeds as a wrongful death and survival action under Chapter 71.

Where conduct rises beyond ordinary negligence to gross negligence, exemplary damages may be available under Chapter 41. An establishment that was told about a severe allergy, assured a customer the food was safe, and had no allergen procedure and no certified staff at all is not making an ordinary mistake.

Deadlines

• Hours to days — the POS and kitchen tickets, and surveillance video. No statute governs this. It is the practical window before records cycle.
• Tonight — your written account of the conversation. Nothing replaces it later.
• Days — leftover food, refrigerated and not discarded.
• Two years — the statute of limitations for personal injury and wrongful death claims in most cases.
• Minors generally have limitations tolled until adulthood, though a parent’s own related claims may not be.
• As short as 45 days to six months where a public school or governmental entity was involved. This is the deadline families miss.
• Product claim timing rules, where a manufacturer is named.

Deadlines depend on your facts and must be confirmed by an attorney reviewing your case.

What to Do Right Now

Immediately

• If a reaction is happening, use epinephrine and call 911. Go in even if symptoms resolve, because of the risk of a second reaction hours later.
• Keep the food if any remains, refrigerated.
• Keep the receipt, the order confirmation, and any delivery app record.
• Photograph the dish and the menu, including any allergen guide or disclaimer.

Tonight or Tomorrow

• Write down the conversation — what you said, who you said it to, what they said, and who heard it. Do this before anything else fades.
• Get names of everyone at your table who witnessed it.
• Note the server’s name and description and the time you were seated.
• Save the online menu as it appeared that day, since menus get updated.
• Do not sign anything from the restaurant or its insurer. A comped meal is fine; a release is not.
• Do not give a recorded statement before getting advice.
• Do not post a review yet. Reviews written the same night become prior inconsistent statements.
• Call a lawyer within days, so a preservation letter reaches the establishment before the tickets and video cycle.

How These Cases Proceed

Week One

Preservation letter demanding POS and kitchen tickets, shift records, certification documentation, allergen procedures, and video. Medical records collected. Your written account secured.

Compliance Investigation

Whether the Section 437.027 poster was displayed, whether the manager on duty held a current certification including allergen training, and whether food handler certificates were current. Health inspection history reviewed.

The Exchange

Witness statements, server and manager identification, POS records, and any delivery platform data establishing what was disclosed and what was transmitted.

Expert Development

In serious cases, an allergist on causation and reaction severity, and a food safety or restaurant operations expert on allergen controls and training standards.

Resolution

Suit is filed where warranted, often in the district courts served by the Travis County District Clerk. Most cases resolve at mediation. Timelines commonly run twelve to twenty-four months, longer where a child is involved and court approval is required.

How We Handle Food Allergy Cases

1. Free Case Review

We take the full account of the exchange first, because that is the case. If it just happened, we will tell you to write it down tonight before anything else.

2. Same-Week Preservation

Written demands for POS and kitchen tickets, shift and scheduling records, certification documentation, allergen and recipe procedures, and surveillance video.

3. The Statutory Compliance Check

Poster, food manager certification, and food handler certificates. Most claims never request these, and a documented failure changes the posture of the case substantially.

4. Building the Exchange

Witnesses, POS data, delivery platform records, and the menu as it existed that day.

5. Straight Assessment

If there is no record of the disclosure and no witness, we will tell you the case is difficult. That is an honest outcome and you should hear it early.

6. Resolution

Most cases resolve through negotiation or mediation. Serious cases are built for trial, because restaurant groups and their carriers settle seriously only when that preparation is visible.

Questions Worth Asking Any Lawyer You Consider

• Do you know about the Sergio Lopez Act, and will you check compliance? If a lawyer has not heard of Section 437.027, they are handling this as a generic negligence case.
• Will you request the POS and kitchen tickets? That record is frequently decisive and it cycles.
• Will you request the food manager and food handler certification records?
• How do we prove what the server was told?
• Does the menu disclaimer defeat my claim? The answer should be nuanced, not a shrug.
• If a school was involved, what is my deadline? This should be answered in the first conversation.
• What are the weaknesses in my case?
• Who will actually work my file, and can I reach an attorney?

Why Families Choose Kelley Wolff Injury Attorneys

• We know the Texas statute and check compliance with it in every case. Most firms do not know it exists.
• We go after the POS ticket immediately, because whether the allergy flag printed to the kitchen is frequently the whole case.
• We tell you to write down the conversation tonight, which is advice that helps you whether or not you hire us.
• We understand the difference between a restaurant case and a packaged food case, and we plead them differently.
• We take the aftermath seriously, including the food anxiety that follows a serious reaction and that adjusters routinely dismiss.
• We flag school deadlines immediately, because a 45-day notice period is nothing like two years.
• Honest screening. If there is no record of the disclosure, you will hear that early.
• Local practice across Travis, Williamson, Hays, Bastrop, and Bell counties.
• Contingency representation. No attorney’s fee unless we recover, and we advance case costs.
• Direct attorney access. You will be able to reach Travis S. Kelley and Colin Wolff about your case.

Talk to an Austin Food Allergy Attorney

Texas passed a law because a young man asked a restaurant whether the food was safe, was told yes, and died. Since September 2024, every food establishment in this state has been required to post allergen information where staff can see it and to train certified staff on allergens.

Whether the place that hurt you did either of those things is a question with a documentary answer. Almost nobody asks it.

Consultations are free. If there is no record of your disclosure and no witness, we will tell you the case is difficult rather than take a year of your time. And if it just happened — write down the conversation tonight, before you do anything else.