Family Will Sue in Dancer’s Fatal Reaction to Mislabeled Cookies

in Food Allergy, Food Allergy News
Published: February 1, 2024
Photo: @orla_baxendale

Órla Baxendale’s family will be filing legal action against Stew Leonard’s and Cookies United over the dancer’s fatal allergic reaction to mislabeled cookies, their attorney says. 

“I am pursuing punitive damages to punish them to make sure that this never happens to anyone else again,” attorney Howard Hershenhorn tells Allergic Living.

The lawsuit against the Stew Leonard’s supermarket chain and the cookie supplier has not yet been filed. If the legal team’s investigation finds anyone else at fault, they too may be part of the legal action, Hershenhorn says. 

Baxendale, 25, suffered anaphylactic shock then died on January 11, 2024. All because she ate a cookie that turned out to contain peanut, says the attorney. The New York City-based dancer had a severe peanut allergy. 

The package of Vanilla Florentine Cookies did not show peanut in the ingredients list. The supplier Cookies United made the cookies, which were purchased at a Stew Leonard’s store in Connecticut. The label also had a “contains” statement showing allergens, but peanut wasn’t there either. 

Hershenhorn says Baxendale was vigilant about her allergy, always carrying two epinephrine auto-injectors, and being careful about what she ate. He adds that she taught anyone she spent time with how to use her auto-injectors. 

“She did everything in her power to avoid this from happening,” says Hershenhorn. He’s a partner with the New York City firm Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman, and Mackauf.

Baxendale had two EpiPens, which were used on the night of her reaction, Hershenhorn says. But they were not enough to save her.

“The horror behind this is it never had to happen if the supermarket took the care and caution to make sure the labels were correct,” Hershenhorn says. Stew Leonard’s declined to comment for this article, while Cookies United did not respond.

Outrage over Mislabeled Cookies

Baxendale was a talented dancer who moved to New York City in 2018 from England to pursue her performance career. At the time of her death, she was performing as Alice in Wonderland in a production of “Alice”. She was with the Momix Dance Company, based in Washington, Connecticut.

Food-allergic consumers are expressing outrage in social media that an inaccurate allergy label led to the her death. There are calls for accountability and efforts to prevent another tragedy.

Allergic Living asked the U.S. Food and Drug Administration for its response related to the tragedy. “The FDA takes seriously reports of adverse events from regulated products,” said a spokesperson. “We are following this situation closely.” 

U.S. labeling law requires that packaged foods state on the ingredients label if any of nine top allergens are present.

So are grocery cookies sealed in a clamshell container, such as Baxendale had, subject to the Federal Food, Drug, and Cosmetic Act labeling law? “Allergen labeling requirements apply to all FDA-regulated foods in packaged form, including ‘bakery-type cookies,’” the spokesperson told Allergic Living. 

Investigation into Cookies, Tragedy

It’s yet to be decided whether there will be consequences at the state or federal level for the supermarket or the supplier over the mislabeled cookies. 

Recalled Cookies Photo: CT Dept. of Consumer Protection

In Connecticut, an investigation has been launched by the Department of Health and Department of Consumer Protection’s food and standards division, along with the FDA.

“The outcome of the investigation will determine any possible repercussions,” said Kaitlyn Krasselt, communications director for that division.

An FDA spokesperson declined to provide any updates on the investigation. “The FDA does not discuss ongoing matters and open investigations pertaining to specific firms,” the spokesperson says.

Cookies United and Stew Leonard’s are each blaming the other for the inaccurate cookie labels. 

Stew Leonard Jr., company CEO, said in a video statement that the supplier failed to tell the supermarket the Florentine cookies’ ingredients had changed to include peanut. But Cookies United said in its statement that it sent notice of the recipe update to Stew Leonard’s in July 2023. The company says it emailed several employees to let them know “soy nuts” would change to “peanuts” in the Florentine holiday cookies.

The cookies are shipped to Stew Leonard’s facilities, where they are repackaged and relabeled, the supplier said.

It is upsetting that the supermarket chain received emailed notification of the ingredient change in July, Hershenhorn says. But for months, they “somehow ignored the label change that clearly indicated peanuts,” he says.

Consumers rely on the people who put labels on the products to be accurate, he says. “There’s no room for error.”

The Vanilla Florentine Cookies and Chocolate Florentine Cookies sold at Connecticut locations were recalled on January 23 for undisclosed peanuts. The recall was later updated to say they contained both peanut and eggs. Neither allergen was listed.

Mislabeled Cookies and the Law

Some readers asked Allergic Living whether the Florentine cookies would be covered under the allergen labeling law, given its clam-shell packaging. 

There are some exemptions in federal labeling law for food sold at deli and bakery counters. However, the FDA made clear to Allergic Living that labeling rules apply to cookies such as Baxendale got. This is because they were sold as a pre-packaged product, not ordered at a bakery counter.

A November 2022 FDA guidance document explains instances when the requirements do not apply. For example, foods “that are placed in a wrapper or container in response to a consumer’s order, such as the paper or box.” 

The recall is the only repercussion so far in the mislabeling that led to Baxendale’s death. The FDA spokesperson said in cases where food products are misbranded, enforcement measures can include recalls and seizures. “Food facilities making such food may be issued warning letters or put on FDA’s import alerts,” the FDA spokesperson says.

When inspectors look into the processes of companies in violation of the regulations, they expect the errors to be fixed, says food safety consultant Dr. Steven Gendel. If it is something that can be corrected with a one-time remedy, there might not be regulatory action, he says. 

“Lawsuits from consumers have the biggest effect,” Gendel tells Allergic Living. 

Gendel is hoping for answers about where the system broke down. He says it’s important that the community “encourages the industry to look at this, and see what it can do to make sure that it doesn’t happen again.” 

What Failed in Control Process?

The mislabeled cookies appear to be the result of a breakdown in the protocols, Gendel says. An allergen control process should be employed and communicated by both companies, he says.

“Was this a systematic failure of a process that was in place, or a failure to have a process in place?” he wonders. 

The FDA offers guidance for companies on how to avoid labeling errors through proper allergen control processes. The agency issued new advice in October 2023 that specifically addresses ensuring proper labels for allergen information. 

“We recommend that you apply such label controls to pre-printed labels that you receive, as well as to labels that you generate yourself,” Chapter 11 of the advice reads.

More than 70 percent of food allergen recalls with known causes were due to errors associated with allergen labeling, according to an April 2023 FDA research paper. The study analyzed 1,471 food recalls from October 2012 to September 2019. 

It is not yet exactly clear how the cookies that caused Baxendale’s tragedy ended up on the shelf with inaccurate allergen information. “A statement of exactly what the root cause was is needed to help other companies avoid the same mistake,” says Gendel says.

Related Reading:
Dancer Dies of Severe Reaction to Cookie Not Labeled for Peanut
FDA Issues Guidance to Reduce Allergy Label Errors
How to Read a Label When You Have Food Allergies