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    Jefferson Adams

    P.F. Chang's Pesky Gluten-free Disability Lawsuit Won't Go Away Just Yet

    Caption: P.F Chang continues to seek the dismissal of a lawsuit claiming that they discriminate by charging more for gluten-free food. Photo: CC--Mark Crowley

    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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    This lawsuit is going to make it more difficult for those of us with celiac to go out to eat. What restaurant in it's right mind should have to lose money on me whenever I eat there. We all know it costs more to eat gluten-free. Therefore it costs more for restaurants to provide me with gluten-free pasta, buns, soy sauce, pizza dough, etc. Therefore if I want to eat gluten-free foods, I will need to pay more to do so. Restaurants are in business to make money. They provide a service to customers. They name their price. If you do not like the price, then don't eat there. You have no RIGHT to expect the same price for gluten-free food when it costs more for the restaurant to buy and prepare for you than it's non gluten-free counterpart. If you don't want to pay for that luxury, then eat elsewhere.

     

    All this lawsuit is going to do is decrease the number of restaurants that offer us gluten-free options when we dine out. I for one and ecstatic to have the opportunity for myself and my daughter to get to eat at a restaurant and have a semblance of a "regular" meal. I for one do not expect someone else to subsidize my celiac disease. I for one am rational and am happy to pay for the privilege of eating a yummy gluten-free burger with an actual bun -- not lettuce wrapped around it. Or to eat a great tasting pizza. Or to eat excellent Chinese food with gluten-free soy sauce prepared at a good restaurant.

     

    What I am NOT happy about is that people like Anna Marie Phillips could ruin this for the rest of us who live in the real world. The rest of us need to speak up and let restaurants know we are delighted they offer gluten-free options and for $1 more we will pay for those.

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    If PF Chang's were providing the exact same food and service, but charging more because someone asks for it to be gluten-free, that would be discrimination. If it is providing something different--for instance, using a different preparation process to ensure non-contamination, using different ingredients--then it's hard to understand how one can claim discrimination based on a medical condition. While a store or restaurant might choose to price different offerings the same, I don't see how they can legally be compelled to do so. Should other diners be compelled to pay the cost of higher-priced ingredients for my benefit? Won't this just discourage restaurants to accommodate special needs? Be careful what you wish for; you might get it.

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    I'm afraid of what's going to happen with gluten-free menus all over the country if P.F.Chang's doesn't win again. In many places, you are getting a $1 or $2 overcharge for the gluten-free option. I'm afraid that restaurants will stop giving a gluten-free option if they can not charge for the trouble. I'd rather pay $2 more than my wife and be able to dine out than being forced of eating home because there's no gluten-free option. I know that celiac disease is not a choice. However, it's the restaurant owner's choice to give us a chance to eat out or not. Don't give them a good reason to quit offering it.

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    Anna Marie Phillips is doing a huge disservice to the celiac community. Restaurants will just quit offering gluten-free items in response to this. She should reconsider this lawsuit.

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    I don't mind paying a bit more for gluten-free choices and frankly, going to court over a few dollars is what's wrong with this country. However, what I would support is a ruling that said all restaurants must provide gluten-free alternatives for 20% of their main courses.

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    I agree with the comments everyone has made. I have been gluten-free for 5 years and have been to PF Chang's many times. They are the BEST Chinese food around and I appreciate the fact that I can go out and eat and not have to worry about contamination. I wish people would just accept the fact that you are going to pay more for gluten-free food.

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    Great, what we need is someone litigating so as to dampen the motivation for restaurants to be helpful to those of us who require gluten-free.

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    Oh for.goodness sake. Get a life. Yes, we pay more for a gluten-free meal. Thank you for taking the extra time and care with my meal. Yes, I gladly pay a couple extra dollars for your trouble. And no, you are not that disabled. Either eat at home or go somewhere else. You choose to eat where you want. I have no patience or this kind of person!

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    What would follow a win for Phillips would be devastating to all people with celiac disease; as similar law suits would certainly start to appear against manufacturers and grocery stores for charging more for a gluten free version of the same products. This would result is a lack of availability and take us back 25 years to when almost nothing gluten free was available; and even pasta had to be made from scratch by hand.

     

    We were one of those families; and trust me Ms. Phillips, you do not want to go there.

     

    We are more than happy to pay the extra few dollars for gluten free options; and are thrilled that restaurants like P. F. Chang's are willing to accommodate us.

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    This lawsuit is going to make it more difficult for those of us with celiac to go out to eat. What restaurant in it's right mind should have to lose money on me whenever I eat there. We all know it costs more to eat gluten-free. Therefore it costs more for restaurants to provide me with gluten-free pasta, buns, soy sauce, pizza dough, etc. Therefore if I want to eat gluten-free foods, I will need to pay more to do so. Restaurants are in business to make money. They provide a service to customers. They name their price. If you do not like the price, then don't eat there. You have no RIGHT to expect the same price for gluten-free food when it costs more for the restaurant to buy and prepare for you than it's non gluten-free counterpart. If you don't want to pay for that luxury, then eat elsewhere.

     

    All this lawsuit is going to do is decrease the number of restaurants that offer us gluten-free options when we dine out. I for one and ecstatic to have the opportunity for myself and my daughter to get to eat at a restaurant and have a semblance of a "regular" meal. I for one do not expect someone else to subsidize my celiac disease. I for one am rational and am happy to pay for the privilege of eating a yummy gluten-free burger with an actual bun -- not lettuce wrapped around it. Or to eat a great tasting pizza. Or to eat excellent Chinese food with gluten-free soy sauce prepared at a good restaurant.

     

    What I am NOT happy about is that people like Anna Marie Phillips could ruin this for the rest of us who live in the real world. The rest of us need to speak up and let restaurants know we are delighted they offer gluten-free options and for $1 more we will pay for those.

    I agree 100%. This woman is doing the gluten free community a disservice by continuing with this lawsuit.

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    Very clear that most with celiac disease or gluten sensitivity/intolerance do not agree with the plaintiff. I'm grateful for having PF Chang's as a safe option for dining out. We should have some dine in/take out nights where we can band together to show our support for PF Chang's and other restaurants that offer safe options.

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    This lawsuit is going to make it more difficult for those of us with celiac to go out to eat. What restaurant in it's right mind should have to lose money on me whenever I eat there. We all know it costs more to eat gluten-free. Therefore it costs more for restaurants to provide me with gluten-free pasta, buns, soy sauce, pizza dough, etc. Therefore if I want to eat gluten-free foods, I will need to pay more to do so. Restaurants are in business to make money. They provide a service to customers. They name their price. If you do not like the price, then don't eat there. You have no RIGHT to expect the same price for gluten-free food when it costs more for the restaurant to buy and prepare for you than it's non gluten-free counterpart. If you don't want to pay for that luxury, then eat elsewhere.

     

    All this lawsuit is going to do is decrease the number of restaurants that offer us gluten-free options when we dine out. I for one and ecstatic to have the opportunity for myself and my daughter to get to eat at a restaurant and have a semblance of a "regular" meal. I for one do not expect someone else to subsidize my celiac disease. I for one am rational and am happy to pay for the privilege of eating a yummy gluten-free burger with an actual bun -- not lettuce wrapped around it. Or to eat a great tasting pizza. Or to eat excellent Chinese food with gluten-free soy sauce prepared at a good restaurant.

     

    What I am NOT happy about is that people like Anna Marie Phillips could ruin this for the rest of us who live in the real world. The rest of us need to speak up and let restaurants know we are delighted they offer gluten-free options and for $1 more we will pay for those.

    Christine, that was beautifully and accurately said. I agree with you completely. The woman who is suing PF Changs for them charging $1 more for a gluten-free dish is a complete IDIOT!. This is going to only cause more restaurants for not be troubled with providing gluten-free foods. gluten-free foods DO COST MORE MONEY ! IT'S A FACT! Restaurants need to make money not lose money!

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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
    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
    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.
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    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
    Celiac.com 12/16/2015 - Just a month after General Mills recalled nearly two million boxes of gluten-free Cheerios from store shelves and warehouses due to "inadvertent" gluten contamination, the company and its flagship brand Cheerios are facing yet another public relations challenge.
    General Mills is being sued for false advertising by a major consumer watchdog over its Cheerios Protein cereal, introduced in March, 2014, as a "healthy alternative" to both classic Cheerios and other breakfast cereals. According to an official complaint filed with the Northern California District Court by the Center for Science in the Public Interest (CSPI), "General Mills falsely and misleadingly markets Cheerios Protein to children and adults as a high protein, healthful alternative to Cheerios."
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    When you crunch the numbers, Cheerios Protein only has just 7/10 of a gram more protein than regular Cheerios, hardly a major source of protein, or a major improvement over regular Cheerios.
    In their complaint, CSPI is accusing General Mills of engaging in what amounts to marketing sleight-of-hand, to trick consumers into paying an average of 70 cents more per box than other brands of Cheerios, for a product that contains an insignificant amount of extra protein, but 17 times more sugar than classic Cheerios.
    Yes, even though they have about the same amount of protein by weight, a serving of original Cheerios contains just 1g of sugar, while a serving of Cheerios Protein will give you a whopping 17g of sugar; about the same as half a can of Coke. Basically, eating two bowls of original Cheerios will give you about the same amount of protein as Cheerios Protein, but with far less sugar, and at a lower cost. 
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    Stay tuned for the latest developments on this and related stories.
    Read more at Inquisitr.com
     

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