February 2017 Update: An undisclosed settlement was reached in this case and it did not go to trial.
A lawsuit in the death of an Alabama boy, who suffered fatal anaphylaxis from eating a cookie, could have broad implications for supermarket bakeries and food-allergic consumers.
The family of 11-year-old Derek “Landon” Wood filed the lawsuit, in which a crucial aspect is whether a grocery store’s bakery should be required to label all of its products, since many of them are made, either entirely or mostly, off the bakery premises.
Publix Super Markets, which sold the cookie, takes issue with that interpretation of the U.S. food allergen labeling law, known as FALCPA (Food Allergen Labeling and Consumer Protection Act). It had filed a motion to get the case dismissed.
But on June 11, 2015, a U.S. district judge denied that motion, finding that the family’s case has sufficient merit, and allowing the case to proceed.
One thing that no one disputes is that Landon’s death was a tragedy and a traumatic experience. The boy, who had multiple food allergies and asthma, and his mother Beth Cline were visiting family in Clarksville, Tennessee on June 3, 2014 when, along with his aunt and cousin, they stopped at a Publix store.
In the bakery section, Landon asked his mother to buy him an unlabeled, ready-to-eat “Chocolate Chew” cookie. In the lawsuit, Cline says she spoke to the bakery employee and was assured that the cookie did not contain tree nuts – one of Landon’s allergens. (In its legal response, Publix denies a bakery employee would have told Cline this.) Cline says it is based on this information that she bought her son the cookie, and a sugar cookie for his cousin.
After returning to the aunt’s house, the suit says that Landon had three bites of the cookie, and began saying that his mouth was burning. His mother gave him Benadryl, but the symptoms progressed, with Landon finding it harder to breathe, and his face turning red. His mother administered his epinephrine auto-injector as her sister called an ambulance.
The boy’s condition improved briefly during the ambulance ride, but in hospital, even with further medication, his breathing worsened, and he suffered extreme swelling and plummeting blood pressure. Landon was airlifted to Vanderbilt Children’s Hospital in Nashville, but his condition could not be stabilized; he died at 10:19 that evening.
The family’s lawsuit against the grocery chain calls for “compensation for Publix’s negligence and to raise awareness of potential fatal food allergies in American children.”
Publix, for its part, denies the negligence claims. The grocery chain has yet to either agree or deny that a conversation took place between Cline and one its bakery employees. But Publix does say that the Chocolate Chew cookies were known by staff to contain tree nuts as an ingredient, and it denies that a bakery employee would have told Cline that these cookies were free of nuts.
As the case moves forward, a key element is the legal interpretation of FALCPA, which requires manufacturers to list the Top 8 allergens on the labels of packaged foods, but exempts foods that are placed in a wrapper or container or prepared on a made-to-order basis – like a deli sandwich. Further, FALCPA does not cover foods “served in restaurants or other establishments in which food is served for immediate human consumption”.
In Landon’s death, however, the family argues that these exemptions should not apply, since the Publix supermarket that sold the cookie makes most of its finished baked goods at a regional facility, and products are then shipped to in-store bakeries. (Publix has not yet answered how Landon’s specific cookie was prepared.)
In its response, Publix contends that the Chocolate Chew Cookie does not require ingredient labeling because it is “prepared and displayed in a bakery setting and then placed in a wrapper or similar package in response to a consumer’s order.”
U.S. District Court Judge Aleta Trauger noted that, in attempting to have the family’s case dismissed, Publix had argued that the cookies that were sold fell within this exception in FALCPA as well as within a similar “immediate consumption” clause in the federal Food, Drug and Cosmetic Act. The judge summarized that the supermarket chain also suggested that the cookie could be considered “made-to-order”, making it exempt from labeling requirements.
“Publix appears to contend that, because products sold from behind the display case are not packaged and can be sold individually, the products are indistinguishable from cookies sold at a mall cookie counter or a muffin sold at a coffee cart,” Trauger wrote.
But in denying the Publix motion, she found that, because the cookie did not appear to be served for immediate consumption, nor prepared fresh such as from a food truck, “the plaintiffs (the family) have sufficiently alleged that the Publix bakery was subject to the labeling requirements”.
“From my perspective, Publix the retail store is not operating a bakery,” Eddie Schmidt, the attorney representing Landon’s family, told Allergic Living. “It’s simply a section of the grocery store.” Publix would not comment directly to Allergic Living on the continuing lawsuit.
“Part of this lawsuit seeks a declaratory judgment from a federal court that Publix cannot use this FDA-interpreted exception to bakeries for not labeling its bakery products,” Schmidt said. “If that is accomplished, that will require Publix, as well as all other grocery stores who are selling bakery products, to identify the food allergens within its products.”
Donna Rosenbaum, a consultant with Food Safety Partners, has given the plaintiffs some advice in this suit. She views the in-store bakery labeling issue as an example of how FALCPA has “eroded and evolved over time”.
“I would love to see movement from within the industry, and not just from the consumer base; I would love to see people come together on this,” she said. “Stores don’t want to get sued and consumers certainly don’t want to get sick from store products, so it should be a win-win.”
She acknowledges, however, that any significant changes will take time. For now, she says the allergic community should look at grocery store bakery products with an added layer of suspicion, and she encourages parents to raise these concerns with grocery store managers, to let them know it’s an important issue.