Thanks For The Gluten Free Menu, See You In Court

A friend sent this article to me recently. It seems that P.F. Chang’s has gotten into hot water over the issue of gluten free offerings. But first, a little background. A lot of people suffer from a disease called celiac. It’s a stomach disorder that causes pain and discomfort to those afflicted by it. People with celiac have an intolerance to gluten, a protein found in wheat, rye and barley. My sister has it and it’s no fun. It’s tough to find foods that don’t include gluten, so it can severely limit the diet of people who have it.   

The good news is that many restaurants are offering gluten free menu items. And that’s where P.F. Chang’s comes in. You might think the chain’s legal problems stem from not offering gluten free items. But that’s not the case. In fact, Chang’s was one of the first chains to offer gluten free choices. My sister is a loyal customer. So, where’s the gluten free beef exactly? It seems that Chang’s charges a $1.00 surcharge for gluten free items. 

And according to a lawsuit filed by Anna Marie Phillips, that surcharge violates the Americans With Disabilities Act. She’s filed a complaint in Scottsdale Arizona (where Chang’s is headquartered) asking the court to convert the case to a class action on behalf of all similarly situated diners who have been socked for the $1.00 fee. Chang’s operates 204 restaurants in 39 states. So, damages in a class action would be . . .  a lot (I went to law school to avoid math).

But do Ms. Phillips and her “class” mates have a case? According to my partner Dan Burke, who knows ADA law far better than me, there are two important issues. First, to make an ADA claim, an individual has to have a “disability.” So a person with celiac disease likely is protected by the ADA, but a person who simply prefers a gluten-free diet for general health reasons is likely not. That might limit the size of the class right off the bat. Second, Chang’s will need to show that the $1 surcharge is a “business necessity” to provide a gluten-free menu item. What that means, very simply, is that Chang’s will need to prove that it costs a dollar extra to prepare items gluten free.  

I have no idea how this case will play out. But it will surely be filed under the heading “No Good Deed Goes Unpunished” or possibly “Why People Hate Lawyers.”