One missing allergen disclosure on a food label can turn an everyday snack into a medical emergency. A manufacturer or processor may be liable when an undeclared allergen makes a product unsafe and causes an allergic reaction. Distributors and retailers may also bear responsibility, although Texas law generally protects sellers that did not manufacture the product unless a specific exception applies.
After a serious reaction, you may face medical bills and missed work while trying to understand what went wrong. At Hernandez Sunosky, LLP, we help you determine whether a defective food product caused your injuries and who may be responsible.
Who Could Be Liable for an Undeclared Allergen in Texas?
Determining liability starts with identifying how the allergen entered the food and who controlled its production or labeling. A manufacturer may face a product liability claim involving a manufacturing defect or inadequate warning. Depending on the facts, negligence or warranty claims may also apply.
A processor or contract manufacturer could be responsible for introducing an allergen during production or packaging food with an incorrect label.
A retailer is not automatically liable simply because it sold the product. Under Texas Civil Practice and Remedies Code Section 82.003, exceptions to protections for nonmanufacturing sellers include exercising substantial control over the content of an inadequate warning that caused the injury. Each exception has requirements that must be proven.
We investigate each business’s role rather than assuming every company in the supply chain shares responsibility.
What Allergens Must Be Declared on Food Labels?
Federal law recognizes nine major food allergens: milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, soybeans, and sesame.
For most FDA-regulated packaged foods, labels must identify the food source of major allergens used as ingredients, subject to certain exceptions. That information can appear in the ingredient list, including a parenthetical identification such as “whey (milk),” or in a nearby “Contains” statement. A separate “Contains” statement is not always required when the ingredients properly identify the allergens.
Different requirements apply to some food categories, so we first determine which rules govern the product involved.
How Do Undeclared Allergens Get Into Food Products?
An undeclared allergen may result from the wrong package being used, an ingredient substitution, or a recipe change that never reaches the labeling department. Ingredients supplied by another company can also introduce an unexpected allergen.
Cross-contact occurs when an allergen unintentionally transfers into another food, often through shared equipment or inadequate cleaning. It differs from intentionally adding an allergenic ingredient.
Advisory statements such as “may contain peanuts” are voluntary. Their absence alone does not establish a labeling violation, and using them does not replace proper manufacturing controls. An investigation must examine both the label and the production practices.
What Evidence Helps Prove an Undeclared Allergen Claim?
Your claim needs evidence connecting the food to your reaction and documenting the resulting harm. Preserve:
- Original packaging: Keep the ingredient list, allergen statements, lot number, and expiration date.
- Remaining food: Avoid discarding, consuming, or altering it. Ask us about appropriate preservation and testing.
- Purchase records: Save receipts, online orders, and payment records.
- Medical documentation: Keep treatment records, allergy evaluations, bills, and discharge instructions.
- Other supporting records: Preserve photographs, recall notices, and communications with the manufacturer or store.
Write down what you ate and when symptoms began. Information about other foods consumed can help medical professionals assess alternative causes. We can also seek production records and supplier documents that are unavailable to consumers.
Does a Food Recall Automatically Prove Liability?
A recall involving the same allergen and product lot can support your claim, but it does not automatically prove that the product caused your injuries.
You still need to connect the affected food to your reaction and establish your losses. Those losses may include medical expenses, lost income, and pain and suffering. A claim may also be possible without a recall if other evidence establishes a defect and causation.
Take Action After an Undeclared Allergen Injury
If you suffered a serious allergic reaction after eating a packaged food product, we can investigate how it was manufactured and labeled, identify potentially responsible businesses, and evaluate your options under Texas law.
Contact Hernandez Sunosky, LLP for a free consultation. Share any packaging, purchase records, and medical information you have so we can begin reviewing what happened.