We’ve all had that big night out when we mixed all the wrong drinks, stayed up far too late, and ended up losing a wrestling match with gravity. We’ve all woken up the next morning feeling awful, cursed our stupidity, and sworn never to drink again.
This is something that can happen when you drink liquid nitrogen too quickly. Yes, liquid nitrogen, the thing that is increasingly being used as an ingredient to make your drinks look like they were brewed by a warty witch on a full moon night, or to make eating ice cream look like a supervillain experiment.
In a Hole in a Stomach, Lived a Potential Lawsuit
With its increasing use, also comes the potential for accidents. If you happen to be a victim of such an accident, the first order of business is obviously to get immediate medical attention. But, as Gaby Scanlon found out, the ordeal doesn’t end there. Her stomach was removed and she had to deal with continuing pain, and numerous medical costs.
Our own Delhi chap who got a hole in his stomach had to be put on ventilator, and the damaged portion of his stomach removed. Luckily, two months after the incident, he appears to have recovered.
But what if this happens again? Are there any rules about using liquid nitrogen? Who is responsible if a dish or beverage causes harm like this? And, coming to the question that will get the ambulance-chasers salivating, can someone be sued for this?
My Liquid Nitrogen (Legally?) Brings All The Boys to The Yard
Fortunately for pretentious bartenders and molecular gastronomists, using nitrogen as a freezing agent is legal.
The Food and Safety Standards Regulations 2011, as everyone knows, are real page-turners, with breath-taking sections on the product standards and ingredients permissible for ‘partially hydrogenated soyabean oil’ and other exotic things. The real magic happens in the appendices, of course, where, if you search hard enough, you will find obscure entries regarding nitrogen as an additive and freezing agent.
But that’s basically it. No rules on how it can be used, how much can be used, no guidelines on how long you need to wait before you can consume the ridiculous looking drink which has been made with it.
So What Options Are There to Sue?
A person who has suffered an injury like this has a couple of options for redressal.
They could try to make complaints to the Food Safety and Standards Authority of India (FSSAI) and file complaints under the Food Safety and Standards Act 2006.
This Act punishes a number of things like using banned substances or harmful substances in food or drink. Nitrogen, however, is permitted for usage. So to complain under this Act they would need to show that it is a harmful substance.
This can prove to be tricky, because liquid nitrogen before it evaporates can be harmful, as the recent case shows. It expands inside the stomach, and can also cause frostbite or cryogenic burns. But this doesn’t happen if the nitrogen is allowed to evaporate – and none of the cocktails made with it are meant to be consumed till this happens.
However, a claim before the FSSAI would also only be punitive towards the provider of the food or beverage, not compensatory. To claim compensation, a claim could instead be filed under the Consumer Protection Act 1986, before the National Commission (as the claim is likely to exceed Rs 20 lakhs) or the civil courts.
Such a claim would have to argue that the bar/restaurant was negligent in either preparation of the drink, or in providing instructions to the consumer for drinking it.
The Key Issues For a Negligence Claim
In 2016, Gaby Scanlon won a lawsuit against the English bar that served her a nitrogen cocktail.
The judge found that the bar had failed to fulfil its duties towards her in terms of telling her when it would be safe to drink the cocktail. The liability of the bar was also based on the fact that the bartenders were not provided with any guidelines about the use of liquid nitrogen, and a failure to act on the recommendations of a health and safety officer who had raised concerns about this.
As the English and Indian laws on negligence in such circumstances are similar, we can speculate on what would be the main issues in a case about this in India.
First, did the bar inform the victim of the dangers of consuming a cocktail like this?
Secondly, did the bar inform the victim that they should wait for some time to let the nitrogen evaporate before drinking the cocktail?
Thirdly, did the bar have a previously-defined policy for using nitrogen in its drinks, and informing consumers about the risks and dangers?
Fourthly, was the bar’s policy reasonable and based on an accurate understanding of the use of nitrogen in such a way?
Regardless of FSSAI guidance, a bar should certainly be informing its patrons of any hazards relating to a drink it serves, as should a restaurant inform patrons of the risks of eating something which could be harmful. To be serving a drink with what can be a harmful substance, without explaining how to ensure you remain safe, would clearly be a failure of a bar’s duty of care to its customers.
Of course, this requires that the bartenders also need to know the risks of what they’re serving. With bartenders in India undergoing no formal training for the most part, it is unlikely that many of them have any idea what instructions or warnings to give. Contrast this with the situation abroad, where although it is not a legal requirement, most bartenders now get a certification from a mixology school.
This gives them a much better idea of what to advise in such situations. For instance, while being served a liquid nitrogen-finished drink at Lounge Bohemia in London, the bartender came to my table personally and explained what they were doing, only allowing me to drink the cocktail after sufficient time had passed.
One way to start improving this is to start getting Food Safety Officers from the FSSAI to visit the premises of every bar/restaurant and provide guidance on safety instructions for things like using liquid nitrogen. Though once again, this requires the FSSAI to know what to say, and for bar owners to specify what they’re serving. Of which there are no guarantees.
Bottom Line: Don’t be an Idiot
Without further information, which is unavailable at this time, it’s not possible to determine which way a case would go.
The bartender could well have explained to a customer to wait till the nitrogen had evaporated, but it’s alcohol, and where alcohol is concerned, people’s decision-making tends to be a bit on the idiotic side. The Delhi victim, for instance, went on to have another drink despite feeling discomfort.
The bartender could also very well have forgotten to say anything, or not been told what to warn customers of.
In Gaby Scanlon’s case, the bar owners had no idea what advisory to give their bartenders or customers, settling on a random waiting time of 10 seconds, which was found to be baseless.
At the end of the day, it’s up to both parties to not be idiots, and be a little cautious before doing something they don’t know enough about. It’s also important for the FSSAI to define some guidelines for using substances like nitrogen in food and drinks.
Till then, perhaps it’s best to just stick to something safe like OMR and coke that’s absolutely effective at getting you drunk as a skunk, without turning you into a living hookah.
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