PF Chang’s Being Sued Over $1 Surcharge on GF Meals:

Yes, you read that right.  It’s OK, I was shell shocked for about 30 seconds, then when I read the story; I was still shell shocked.  Normally there would be something in the article that made some sense.  I searched the article several times; trying to figure out where the common sense was. Where was the “law breaking”  that could lead to a viable law suit? Well, I came up empty handed every single time that I re-read this article.

“Wow,” is all I could muster, but I rallied my brain and believe I can give you a common sense synopsis of this “catastrophe waiting to happen” from the perspective of the owner of a  completely GF restaurant and as a Celiac.
California woman says that “PF Chang’s violates the civil and disability rights by forcing gluten-free diners to pay higher prices and does not add surcharges for accommodations on it’s regular menu items and that because a gluten-free diet is medically necessary for individuals with celiac disease, gluten-free patrons have no choice but to order at higher prices”. Then it goes on to state that “surcharges for gluten-free items are claimed to occur even where the items at issue may be naturally gluten-free, such as vegetable dishes”.  ” This is arbitrary and unequal treatment and they are discriminating against consumers with Celiac Disease and gluten intolerance and violating the Americans with Disabilities Act”.

*Let’s look at this according to each claim, I am not a lawyer (“but I play one on TV”), so I am going with common sense 101 on this one: 

 1) “Civil and disability rights violation; by forcing GF customers to pay higher prices”:

Where is she shopping for her GF groceries? Well, GF items cost more.  It is supply and demand and we all learned about that in school. Right now, by my calculations, wheat flour and other products containing gluten are 93% more in demand than GF products.  Only about 7% of the population needs to eat GF (Celiac, Wheat Allergy & Gluten Sensitivity).  Less demand means fewer companies making GF products, which means less competition and that means higher prices for raw materials. The company making the GF product needs to make sure it is GF and has to have stringent manufacturing and testing procedures in place that also equate into higher production and final product cost.

2) “Because GF diet is medically necessary, patrons have no choice but to order at the higher price”.

Well, the plaintiff may be barking up the wrong tree here. In many countries (Ireland is one of them), the GF Diet is the only prescription for Celiac Disease, so they order their GF Food from a pharmacy and it is covered by insurance!  This customer obviously pays more at her local grocery store for GF items, has she sued them? In what restaurant fantasy land can anyone ask for items that cost more and not pay more for them? Back to supply and demand or she can just stay home. $1 is nothing.  GF soy sauce and noodles cost about 5x what the regular version is.  There is also extra training, special plates, extra prep to make special GF Sauces and special prep areas and precautions that happen to make sure the meal is GF and not contaminated when it gets to her.  $1 surcharge is nothing for them to charge for this service and I think she should be happy that PF Chang’s wanted to go to this trouble to serve her a GF meal.

3) “Charges $1 surcharge for GF item but doesn’t add surcharges for regular menu items”.

The charge is for the gluten free aspect and replacing sauces and noodles, etc.; is quite an expense. If someone makes a change to a regular menu item it is usually, “No onions” that means they just leave them out if they are not already in the sauce.  This is a lot different then saying “I have celiac disease and can’t have any gluten or get cross contaminated”.  A whole new ball game begins to unfold when you have to make a GF accommodation in a kitchen that is full of gluten. This claim makes no sense.  Does she mean they aren’t charging people who say “give me extra gluten” or “I can have gluten”?   A special GF request also involves additional labor, special sauces and pastas and additional steps to make sure the item is still gluten free when it gets to her.  I think she should be happy they wanted to make her a GF meal!

4) “Surcharges for GF items even where items at issue may naturally be gluten free, such as vegetable dishes”.

Fantasy Land!  Newsflash: Ordering plain steamed veggies is a special order.  The restaurant probably uses a special seasoning or soy sauce and other custom sauces on them that contain gluten and they are probably prepped up at 10am before lunch and at 4pm before dinner and then cooked to order. When you need them to be made differently they have to use special GF sauces that cost more or stop and prep it without gluten to your order and they have to make sure it is not contaminated.  She may steam plain veggies at home, but that is not the norm in a restaurant! Wake up, again she should be happy they wanted to make sure her veggies were GF.

5) “Arbitrary and unequal treatment discriminates against consumers with Celiac, and Gluten Intolerance and by adding a surcharge it violates the Americans with Disabilities Act (ADA)”.
Newsflash: The ADA applies to those with Celiac Disease, Autism and Food Allergies, etc.; it does not cover gluten intolerance!  A few years ago the students filed suit against Lesley University and won because the students were being forced to pay room and board but could not eat in the dining facilities and the university was a recipient of federal funds. The students were forced to pay for food they could not eat and won and were awarded damages.  I agree with that ruling.  In this case she saw the $1 surcharge on the menu, ordered the food and ate it. (I am not sure how she “choked” the food down; knowing her civil and ADA rights were “being violated”)
-In summary this case is basically saying:
“I went to PF Chang’s, saw the $1 surcharge on the menu for GF Items, I ordered the GF Food and ate the GF food; but they violated my rights by serving me what I ordered by charging me the $1 that I agreed to pay for the food when I placed the order for it!”
She is asking for injunction against further surcharges, restitution for the surcharges paid for GF items, civil penalties, compensatory damages and punitive damages.
Oh, how I wish I lived in California and could get called for Jury Duty! I wonder if I could file suit against the plaintiff in this case for the pain and suffering I had to endure while reading about it?
Maureen Burke, Owner, One Dish Cuisine Cafe, Deli and Bakery, Gluten-Free & Allergy Friendly, Welcome Back to the Table!
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8 thoughts on “PF Chang’s Being Sued Over $1 Surcharge on GF Meals:

  1. I think the lawsuit is frivolous but I would argue that since I get sick every time I eat at PF Changs, that for them to charge me for the extra care, (they obviously don’t take, like you do) is just wrong. Every time I go; they get the order wrong. I do not go any more. This is the same with other restaurants that say they have a Gluten Free menu and charge more. The small print often says they can’t guarantee non contamination. To me that is just wrong.

    Liked by 1 person

    1. I understand, but they, the restaurant, still pays more for the GF Pasta or GF Sauces! It costs more, so they can charge more. The diner takes the chance “if it is safe or not”.

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  2. Worse, I worry that restaurants like PF Chang’s will get tired of nonsense like this and stop offering GF menus. I am grateful that, between Maureen’s One Dish and a handful of other restaurants, I have a livable amount of dining options. This stupid lawsuit (and the mindset from which it derives) potentially destroys the option to enjoy eating away from our GF homes. Very sad, and very disappointing. Let’s hope the suit fails.

    Liked by 1 person

  3. I disagree completely with this article. I can understand how $1 would seem like nothing. However, it’s the principle of the whole claim that you seem to miss. Here is an example: Law states that a business must have a handicap ramp to access their business. Workers and special materials (cement, rebar..) are used to make the ramps. Would you charge a handicapped person $1 to use it? The government pushes healthier meals. Where does the government make most of it’s money and invest most of it’s money? In corn which is the foundation for every processed food out there. They invest 60% less into other commodities that are healthy for us. Rice is not a rare ingredient. This claim is actually trailblazing the way.

    “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” This is a direct quote from Title III of the Americans with Disabilities Act. I am not sure how this is misunderstood. I understand that you take great care when serving at your small establishment and I commend you on that. I also understand that you make your living based on the supply and demand and the overcharging of gluten. You are scared of losing money if things become fair. Thus why your article is anything but compassionate. However, places that are a national chain and claim to be allergy friendly are not. They actually take little to no care when preparing food. Frying in the same wok that you just cooked gluten in because your “busy” is a common occurrence. I guess you get to pay the price of your meal plus an extra $1 just to be completely ill later. Making the excuse that it takes more time to prepare food in a clean and sanitary environment is troubling. Are you telling me that I need to pay extra to have my food prepared with care in a toxic free environment? If I don’t pay does that mean my food will be prepared with less care? Do people with peanut or dairy allergies have to pay more? No they don’t and yet any restaurant will cater to that at no extra cost.

    I understand that there are quite a few far fetched lawsuits in the world. This is not one of them. No one should ever be discriminated against or treated differently because of their disease. It’s troubling that people look after the safety of their wallet instead of the safety of our fellow Americans.

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    1. I understand your point of view. However, I don’t feel that you are well informed on the subject. I operate a completely gluten-free and mostly allergen-free cafe deli and bakery. There is no way I can sell a person a turkey club at the same price that subway sells a turkey club for; I would lose money on every sandwich and I would be out of business in a week. We are not in the same class as restaurants who serve regular food and then offer GF Items on a separate menu. When someone has a peanut or dairy allergy in a normal restaurant; there are some meals that just can’t accommodate them by virtue of ingredients. Some things are naturally free of those allergens. However, with Gluten, it is different; it is often hiding in 165 or more ingredients and often there needs to be a major change because of all the items that Gluten is actually in. So, the pasta they have to substitute or the specials sauce costs about 5x more. I have two kitchens and have to charge more if someone orders from our Blue Kitchen (No Milk), because the substitute “cheeses” cost a fortune ($5.99 for 11 slices!)

      We walk the walk and talk the talk; our facility is free of gluten and the top allergens to keep people safe. It is not about if things “become fair” for me, it is about making SAFE gluten and allergen free food from scratch so that we know the meals are SAFE so we don’t get anyone sick or kill someone! We have to look at the actual cost to produce the goods and the ability to sell the product and make some profit. We work at a far lower profit margin than regular restaurants. I self funded the company and then took out a loan in order to open the cafe. I have not taken a pay-check in 5 years and my husband has not taken a paycheck in his 2.5 years with the company. In our cafe, deli and bakery; we have to make everything; breads, condiments, salad dressings, slice our meats, etc. This just can’t be done at the same price as a regular restaurant because the cost of my supplies is so much higher. Also, Celiac Disease and food allergies were not specifically mentioned in the ADA, however some rulings have recognized them under the act.

      Although I understand your point of view’ it appears that you don’t live with Celiac Disease or Food Allergies, because if you did, you would understand this. What you are saying is that everyone making a special gluten free or allergen free item has to charge the same as it’s gluten or allergen filled counterpart and that is not possible. Every specialty food producer would be out of business because they would lose money on each and every product they produce; leaving those in need with absolutely no choices. My facility is the only completely Gluten-Free and Allergen-Friendly Cafe, Deli and Bakery in the US and in the World and the reason for that is because it is so difficult to safely do this, so labor intensive and so expensive. Someone like me with Celiac Disease and Food Allergies had to come along and have the passion and just do it. I am truly looking after the safety of my “fellow Americans” and have sacrificed my wallet for my fellow Americans for more than 5 years; so they and I may safely eat without fear of illness or death. May I ask you what you have done that sacrificed your wallet for the safety of your fellow Americans?

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      1. One of the main differences is that your restaurant charges the same price to those people gluten free or not gluten free. It is the choice of the customer to walk in. You do not discriminate. Just as if the customer decides between fast food or sit down. They know the difference in price and the care taken to prepare the food. Your restaurant is a known safe place to eat and has delicious food. The places that charge extra money may have good food but they do not guarantee safety for that extra charge. There are many restaurants including yours that do not charge a surplus above what other customers pay when the wait staff and kitchen go out of their way to handle an allergy situations.

        Liked by 1 person

      2. I understand what you are saying Cindy, but if someone comes in and orders from our Blue Menu (milk-free) there is often an up-charge because of the higher cost of the non-dairy cheese we use in that kitchen and it is expensive. Nobody is suing me for charging more for Milk Free Meals from our Blue Kitchen, they know when they come in the door that it won’t be cheap. I am free of most allergens and have to segregate milk products and non milk products to their own kitchens for safety. There is a cost associated with this service, more equipment and more expense for Milk-free substitutes. So, a regular restaurant faces this issue and also charges more for Gluten-Free Substitutes. It is the same thing. I don’t want someone trying to sue me because I have to charge more for milk free cheese (cost is 5.99 for 11 slices), just like a regular restaurant pays $1 for regular pasta and $4 or $5 for GF Pasta, etc. Non GF or Non Allergy Diners pay the same and they don’t have a choice at my restaurant, it is all GF and Allergen Free. Everyone pays the higher price and the Milk Free people, like me, often pay more.

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