Having a food allergy is legally considered a disability that must be accommodated in Canadian schools, but food bans are not legally required, according to a new University of Alberta-led study.
“Given the prevalence of childhood food allergies and the amount of time kids spend at school where they may be exposed to allergens, we set out to better understand Canadian laws and policies that apply to managing food allergies in the school setting,” said Tim Caulfield, research director of the U of A’s Health Law Institute, who led the study.
“Since food allergy is a disability, it triggers a legal duty for schools to ensure that food-allergic students receive fair treatment and are not discriminated against due to an allergy,” he explained.
“Despite this duty to accommodate, our research also found that in most relevant human rights cases concerning banning food allergens, it was concluded that such bans are not legally required."
The researchers looked at the Canadian Charter of Rights and Freedoms, Supreme Court of Canada rulings, recent federal and provincial human rights legislation, and case law to identify instances where Canadian courts clearly determined food allergy was a disability.
Research has shown food bans in public settings may not be effective in helping reduce the number of severe allergic reactions, said co-author Eric Adams, an associate professor in the U of As Faculty of Law.
“Some schools have implemented food bans, but recent scientific evidence does not consistently support bans as the most effective way to protect allergic children from accidental exposure to allergens,” he said.
In most cases, avoiding total bans is in the best long-term interest of all parties—including allergic students, according to the researchers.
“Important protections for allergic students and the school community will continue to include education about food sharing, vigilance and adequate emergency response mechanisms,” said Blake Murdoch, a research associate at the Health Law Institute and first author of the study. “Of course, if the scientific evidence changes in the future, the law around food bans could change with it.”
“We hope these findings will help to inform students, parents, teachers and school boards involved in discussions, decision-making or controversies about the allergy policies of schools in their communities,” added Caulfield.
He said there is no need for one definitive model to deal with allergies.
“We feel that the best policy advice for schools looking to craft sensible, effective and rights-sensitive policies around allergies is to consider the particular context of their own setting, as well as the best available scientific research on best practices for allergy safety and management.”
The study, The law of food allergy and accommodation in Canadian schools, was funded by AllerGen NCE and published today in Allergy, Asthma & Clinical Immunology.