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    Jefferson Adams

    P.F. Chang's Dodges Lawsuit Over Gluten-Free Surcharge

    Celiac.com 5/23/2016 - Plenty of people have followed the news of the woman who sued Chinese food chain P.F. Chang's, claiming that they discriminated against her by charging more for gluten-free dishes than for other non-gluten-free options.

    Celiac.com covered P.F. Chang's efforts to have the suit dismissed, and also P.F. Chang's failure to prevent the woman from modifying the lawsuit, thus keeping it viable, if only for a time.

    U.S. District Judge Ronald Whyte, of the Northern District of California, had dismissed the original complaint in August, but reinstated the suit once plaintiff Anna Marie Phillips amended her complaint. On Nov. 23, 2015, Whyte ruled that Phillips had sufficiently pleaded her claims in that amended complaint.

    Many in the restaurant industry were watching the suit carefully since it was first filed in December 2014, as the claim of discrimination, based on higher charges for gluten-free items at P.F. Chang's, could have serious repercussions for the industry as a whole.

    Phillips has now asked the judge to dismiss her lawsuit.

    At least for now, the question to whether surcharges or higher charges for gluten-free food options constitute some form of discrimination against those with celiac disease or gluten-intolerance, remains un-litigated.

    The position of the Department of Justice is that celiac disease is not a disability in every case, and that there are plenty of cases in which it is not a disability.

    Read more at Legal News Line.


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    gluten-free eaters who want options should welcome reasonable charges for gluten-free food in restaurants. True gluten-free preparation requires significant resources in a restaurant kitchen. To say nothing of potential liability in case of cross contamination. If they aren't allowed to recoup their costs, gluten-free options will quite reasonably decrease. P.F. Chang's has wonderful gluten-free choices and we should support them, not sue them.

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    As someone who dramatically reacts to gluten, food costs whatever people want to charge for it. Gluten-free food is more expensive to make, so it makes sense that those costs would be passed down to the consumer. I'm just glad we have any gluten-free options at all in restaurants.

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    Did the menu price mislead the customer? Did the restaurant tack on an additional charge after ordering? If not, then the customer chose to pay the price for a gluten-free meal. There are extra costs incurred by restaurants like PF Chang's to assure food safety, and as those with celiac disease know, the ingredients are more expensive in general. I applaud restaurants for going the extra mile to provide certified gluten-free menus. I do disagree with the DOJ statement that celiac disease is not always a disability. It is a disability, but it can be managed through strict adherence to a gluten-free diet.

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    Did the menu price mislead the customer? Did the restaurant tack on an additional charge after ordering? If not, then the customer chose to pay the price for a gluten-free meal. There are extra costs incurred by restaurants like PF Chang's to assure food safety, and as those with celiac disease know, the ingredients are more expensive in general. I applaud restaurants for going the extra mile to provide certified gluten-free menus. I do disagree with the DOJ statement that celiac disease is not always a disability. It is a disability, but it can be managed through strict adherence to a gluten-free diet.

    This person knows what they are talking about celiac disease, it's a disability. What are the gluten-free foods they're using in place of the non gluten-free foods to charge extra money? What like rice/corn flour, gluten-free soy sauce which can be used in non gluten-free foods as well. Most same restaurants use cornstarch in their foods. All the non gluten-free items can be used in all their foods, the taste is not very different. It's Just another way to cheat a customer. Their food needs quite a bit of improvement whether it be gluten-free or non gluten-free.

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    Sandy, the term "disability" has a specific definition when used in most legal contexts, such as the Americans with Disabilities Act: "a physical or mental impairment that substantially limits one or more 'major life activities'" or a history or perception of such impairment. Celiac disease does not substantially limit eating, even though it does limit what one can eat. I'm not aware of any successful litigation to require a restaurant to serve particular kinds of food to meet someone's dietary limitations, even though some of them could well reach the legal definition of "disability"--the son of a friend of mine can only eat about 4 foods due to severe multiple food allergies. Restaurants do, of course, need to be accessible to those with mobility impairments and the like.

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    The policy of charging more is quite reasonable given the additional ingredient cost and effort the restaurant incurs in preparing the gluten free meals, including maintaining a gluten free prep area. As a long time Celiac sufferer I remember when restaurants did not make this accommodation and this ill conceived lawsuit may cause restaurants to choose not to accommodate us. I enjoy the food at PF Changs and I appreciate that they are one of the few chains that have made a genuine effort to reach out to us enabling me to eat out with my family. This could cause more restaurant chains to put a disclaimer on their menu about all allergens and not bother to accommodate any allergies. If this person does not relent in their attack of PF Changs perhaps we can start a go fund me site to help them afford the extra $20-$40 per year for food...

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  • About Me

    Jefferson Adams earned his B.A. and M.F.A. at Arizona State University, and has authored more than 2,000 articles on celiac disease. His coursework includes studies in biology, anatomy, medicine, science, and advanced research, and scientific methods. He previously served as Health News Examiner for Examiner.com, and devised health and medical content for Sharecare.com. Jefferson has spoken about celiac disease to the media, including an appearance on the KQED radio show Forum, and is the editor of the book "Cereal Killers" by Scott Adams and Ron Hoggan, Ed.D.

  • Related Articles

    Scott Adams
    P.F. Chang's is Sued for Extra Charges on Gluten-Free Menu Items
    Celiac.com 02/02/2015 - On December 9th, 2014, Anna Marie Phillips filed a lawsuit in Santa Clara County Superior Court against P.F. Chang's China Bistro, Inc., headquartered in Scottsdale, Arizona, for discrimination and violation of the Americans with Disabilities Act. The suit claims that P.F. Chang's forces people with celiac disease to pay higher prices for gluten-free versions of their menu items. According to the complaint, P.F. Chang's charges one extra dollar per gluten-free item, however, they do not add these surcharges on to their regular menu items.
    The lawsuit is seeking class action status, and claims that over the past four years more than 3,000 people in 39 states have been affected at P.F. Chang's 204 restaurants. The plaintiff claims that the gluten-free diet is medically necessary for those with celiac disease, and those who eat at P.F. Chang's are forced to pay higher prices for gluten-free dishes, even if the dishes they order are naturally gluten-free. The plaintiff asserts that this arbitrary and unequal treatment constitues discrimination against consumers who have celiac disease and gluten intolerance, and that the added surcharge is a violation of the Americans with Disabilities Act.
    In the lawsuit Ms. Phillips and her attorneys, Anthony J. Orshansky and Justin Kachadoorian of Counselone, P.C. in Beverly Hills, California, seek an immediate injunction against any further surcharges on gluten-free items, civil penalties, compensatory damages and punitive damages. P.F. Chang's is represented by Jon P. Karbassakis and Michael K. Grimaldi of Lewis Brisbois Bisgaard & Smith LLP, in Los Angeles, California.
    On January 23, 2015, P.F. Chang's removed the case to U.S. District Court for the Northern District of California (case number 5:15-cv-00344).
    Source:
    legalnewsline.com

    Jefferson Adams
    P.F. Chang's Temporarily Dodges a Gluten-free Bullet
    Celiac.com 08/05/2015 - Should restaurants be required to provide gluten-free food at the same prices it charges for regular gluten-containing items? That question is at the heart of a lawsuit brought by a woman who claims P.F. Chang's has violated federal anti-discrimination laws by charging more for gluten-free items. A federal judge has now "tentatively" dismissed that lawsuit.
    P.F. Chang's had asked the judge in February to dismiss Anna Marie Phillips' class action lawsuit, claiming that her celiac disease does not make her a disabled person under the Americans with Disabilities Act. At that time, lawyers for Chang's urged U.S. District Judge Ronald Whyte to dismiss the suit to prevent what they termed a 'negative impact' upon restaurant industry as a whole.
    Phillips originally sued P.F. Chang's in a California state court in December, but the case was later moved to U.S. District Court for the Northern District of California. According to the motion, the dismissal rests largely on the failure of the plaintiff "to plausibly allege that she is disabled under any applicable statute since her condition constitutes only a minimal limitation on the major life activity of eating."
    In words that may raise the eyebrows of many people impacted by celiac disease, the judge goes on to say that the plaintiff can "still consume all gluten-free foods. No authority supports plaintiff's baseless position that she is disabled." P.F. Chang's also maintained that, because it charges the same price to all customers of its gluten-free items, it is charging based on the food cost, not adding a surcharge based on the gluten-free status of the customer, and is thus not discriminating on the basis of disability.
    The class action suit states that because a gluten-free diet is medically necessary for individuals with celiac disease, gluten-free patrons have no choice but to order at the higher price.
    Phillips brought suit on behalf of persons with celiac disease or gluten intolerance who ordered items from P.F. Chang's gluten-free menu in California within four years prior to the suit.
    In an interesting legal wrinkle, the CEO of the Celiac Disease Foundation said in a February Legal Newsline article that it did not agree with Phillips' claims.
    "Celiac Disease Foundation recognizes that restaurants bear a financial burden for the employee training and other accommodations that are required to serve meals that are safe for those with celiac disease," Marilyn G. Geller said.
    P.F. Chang's cited the article in its motion to dismiss.
    What do you think? If P.F. Chang's provide gluten-free food in accordance with the law, must it provide the food at the same price as its non-gluten-free items, or can it charge more to reflect its costs?
    Read more at: Legalnewsline.com

    Jefferson Adams
    Celiac.com 11/16/2015 - P.F. Chang's seeking to dismiss an amended complaint filed by a woman who claims the restaurant chain violated federal anti-discrimination laws by charging higher prices for gluten-free items than for non-gluten-free items.
    Plaintiff Anna Marie Phillips initially sued P.F. Chang's in California state court in December, but P.F. Chang's got the case moved to U.S. District Court for the Northern District of California.
    Lawyers for P.F. Chang's first moved to dismiss Phillips' class action in February, claiming her celiac disease does not make her a disabled person under the Americans with Disabilities Act. Federal Judge Ronald Whyte heard oral arguments in May, and "tentatively granted" the motion to dismiss, with a final ruling to be issued later.
    In August, the federal judge granted P.F. Chang's motion to dismiss Phillips' original complaint. The court ruled that the plaintiff failed to allege facts showing that the restaurant chain discriminated against her and other guests with celiac disease or a gluten allergy/intolerance, by charging $1 more for some gluten-free menu items compared to non-gluten-free versions of menu items with a similar name but prepared and handled much differently.
    However, Whyte did grant Phillips a leave to amend, while expressing his "reservations" that she could ever mount a viable claim using her discrimination theory.
    P.F. Chang's, in its Sept. 24 motion to dismiss the amended complaint, contends the new complaint asserts the same disability-discrimination claims and offers "few additional facts" and "none that warrant a different result."
    The plaintiff asserts, P.F. Chang's notes, that the gluten-free menu items are "essentially the same" and are "not truly different dishes" because they have the same basic ingredients.
    What do you think? Are restaurants wrong to charge more for gluten-free food? Share your thoughts and opinions below.
    Read More: Legalnewsonline.com

    Jefferson Adams
    P.F. Chang's Pesky Gluten-free Disability Lawsuit Won't Go Away Just Yet
    Celiac.com 01/04/2016 - Does P.F. Chang's Asian Bistro discriminate against people with celiac disease by charging more for gluten-free dishes than for their non-gluten-free counterparts? A complaint filed in federal court says it does, and a ruling by a federal judge means that the lawsuit against P.F. Chang's over its gluten-free menu won't be dismissed just yet.
    That means a class action lawsuit against P.F. Chang's for allegedly charging more for gluten-free menu items can continue. Judge Ronald Whyte's Nov. 23 order denied the company's motion to dismiss plaintiff Anna Marie Phillips' first amended complaint.
    "Neither party has cited, and the court has not found, any case specifically discussing whether celiac disease constitutes a disability under the ADA (Americans with Disabilities Act) or Unruh Act," Whyte wrote in his 13-page ruling. "However, accepting the additional detail in the FAC (first amended complaint) about the consequences of ingesting or being exposed to gluten, which plaintiff must guard against, plaintiff has pled sufficient facts to support her claim that she has a disability that impacts a major life activity.
    "The court notes that on a more complete factual record, the court might reach a different conclusion."
    Phillips sued P.F. Chang's in a California state court last December. Chang's then successfully moved the case to U.S. District Court for the Northern District of California. Basically, the outcome of the move to dismiss hinges on whether or not celiac disease constitutes a disability under the state's Unruh Act.
    In his order last month, Whyte concluded that Phillips, in her new complaint, pled sufficient facts to claim that the immune reaction to eating gluten meets the definition of a "medical condition" under the state's Unruh Act for people with celiac disease.
    The law specifically outlaws discrimination based on sex, race, color, religion, ancestry, national origin, age, disability, medical condition, marital status or sexual orientation. In her amended complaint, Phillips also claims that celiac disease is an "inheritable and hence genetic characteristic."
    P.F. Chang's argues that the plaintiff must allege that she actually inherited characteristics known to cause disease under the second prong of the "medical condition" definition.
    At stake in the lawsuit is whether or not P.F. Chang's, and, by extension, other restaurants can charge more money for gluten-free food than they do for similar, non-gluten-free menu items.
    The restaurant chain first moved to dismiss Phillips' class action in February, claiming her celiac disease does not make her a disabled person under the ADA. It urged Whyte to dismiss the lawsuit before the entire restaurant industry was impacted.
    Whyte heard oral arguments in May. According to the case's docket, the motion to dismiss was "tentatively granted" at the hearing, with a final ruling to be issued by the court later.
    In August, the judge granted P.F. Chang's motion to dismiss Phillips' original complaint. Whyte ruled that the plaintiff failed to allege facts showing that the restaurant chain discriminated against her and other guests with celiac disease or a gluten allergy/intolerance, by charging $1 more for some gluten-free menu items compared to non-gluten-free versions of menu items with a similar name but prepared and handled much differently.
    However, Whyte granted Phillips a leave to amend. In doing so, the judge expressed his "reservations" about whether the plaintiff could ever state a viable claim under her discrimination theory. Phillips filed her first amended complaint soon after.
    In September, P.F. Chang's filed a motion to dismiss the new complaint, arguing that it asserts the same disability-discrimination claims and offers "few additional facts" and "none that warrant a different result."
    But a detailed list of Phillips' symptoms and reactions when ingesting gluten forced the judge to change his mind.
    As to whether or not the lawsuit will gain traction, stay tuned.

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