A jury has awarded a boy and his mother more than $1 million in a federal lawsuit over cookies that contained hazelnut, but weren’t labeled for it. It is a huge decision in support of the consumer’s right to know allergen ingredient information.
Colorado mom Maria Vitale sued confectionary distributor Solen USA, LLC, after her then 10-year-old son suffered anaphylaxis after eating a Biscolata Dark Chocolate Rolled Wafer.
The jury found Solen USA liable on all claims in the case on November 5, 2026. The boy (referred to as A.C. in the complaint) is allergic to tree nuts. Solen is the distributor of the chocolate wafers.
The verdict helped Vitale realize that she has a voice to make change. “I feel more powerful,” she tells Allergic Living. “I’m happy that my son could help other kids like him. He feels empowered, too.”
A.C. suffered a severe allergic reaction after eating the cookie on November 30, 2020. The ingredient information online and on the product packaging did not include hazelnuts. Initially, company denied hazelnut could be in the cookies, then later said it must have been cross-contact. In 2021, Vitale arranged to have the cookies tested – and that proved the wafers contained a substantial amount of hazelnut.
The jury awarded $1.2 million in punitive damages and $350,000 in compensatory damages. It also supports tripling the damages portion under the state consumer protection law. That could put the total award around $2 million, depending on attorney fees and court adjustments.
Cookies Found to Be ‘Misbranded’
The verdict found Solen liable for negligence, misrepresentation, and violations of the Colorado Consumer Protection Act (CCPA). It could have a wide impact.
“We’re really happy they gave us the punitive damages award to show they can’t do this to people. They can’t hurt people and call it ‘a bad afternoon,’ and walk away,” attorney Laurel Francoeur says. Francoeur of the Francoeur Law Office near Boston represented Vitale with attorney Matthew Fenicle of the firm Kontnik Cohen based in Denver, Colorado.
“One of Maria’s big goals here was to stop them from doing this and to show that this is not right,” Fenicle says. “That goal has well been accomplished.”
Colorado food safety laws were key in the verdict against the chocolate wafer distributor. The CCPA prohibits the sale of food that is “adulterated or misbranded”.
That law formed the basis for the judge’s summary judgment ruling in favor of Vitale on the negligence claim before the jury’s verdict. The complaint contended that Solen had failed to disclose the presence of hazelnut in the cookie.
The judge’s order referred to the Colorado law that reads, “food is deemed to be misbranded” when “its labeling is false or misleading in any particular.”
Days before the jury trial began, Solen changed its assertion that hazelnut was not present in the wafer. The company conceded that the tree nut was in the product, the Amazon listing’s ingredient description and product label were misleading, and the wafer caused the allergic reaction.
But the cookie distributor argued it should not be held liable since it did not manufacture the chocolate wafer, nor create the inaccurate label.
The court rejected Solen’s defense. The “Defendant did have a duty to provide an accurate label,” the judge’s order states. “That failure to do so constitutes negligence.”
Can’t Say: ‘We Just Sell It’
“The judge’s order here and the jury verdict really show that, at least in Colorado, you can’t just put your hands up and say, ‘not our fault, we just sell it,’” Fenicle says.
The decision also resulted in a new legal interpretation that affects how the Colorado common law duty not to sell unsafe food will be applied in the state. The judge ruled as a matter of law that companies that don’t disclose the presence of an allergen through cross-contact could be held liable, Francoeur explains.
Francoeur notes that, “The Colorado law is more stringent than federal law.”
Vitale’s complaint pointed to the Federal Food, Drug, and Cosmetic Act (or FALCPA) labeling law regarding the unlabeled allergen.
The defense countered during trial that hazelnut was only present in the Biscolata chocolate wafer because of cross-contact during manufacturing. The company said the manufacturer did not intentionally include hazelnut in the product. Because federal regulations do not “require” precautionary allergen warnings on labels for cross-contact, the judge rejected that part of Vitale’s argument.
It is still not clear how the allergen ended up in the product. The Biscolata product was pulled from shelves during the trial and is no longer available on Amazon.
Allergic Reaction to Hazelnut
Vitale ordered the Biscolata Dark Chocolate Rolled Wafer from Amazon on Nov. 28, 2020. Before placing her order, she read the ingredient description that did not include any mention of hazelnut, the complaint states. When the box of wafers arrived two days later, her son A.C. was excited to try a new safe treat.
But within five minutes after eating the wafer, his mouth and throat felt itchy and his lips started the swell. Vitale gave her son antihistamine and his albuterol inhaler, according to the lawsuit.
A.C. would go on to suffer a stomachache, the complaint states. Soon, his face, eyes, ears and lips were red and swollen, and he had hives across his back and stomach. While driving her son to the hospital about seven minutes from the home, the symptoms intensified and he experienced difficulty breathing.
Looking back, Vitale says she realizes she should have administered the epinephrine auto-injector she had when they arrived at the emergency room. Her son did not receive a dose of the medication. Hospital healthcare workers gave him an IV with antihistamine and steroids. After a few hours of monitoring, he was discharged.
Seeking Allergen Accountability
Vitale sat up all night watching her son sleep after his reaction. “She kept going over in her mind how quickly he went from feeling fine to almost dying,” the complaint states.
She was determined to understand what led to her son’s allergic reaction and how to prevent future reactions to undisclosed allergens. “I felt defeated, angry, sad and scared,” she tells Allergic Living.
She started with Amazon, which began an investigation and refunded her for the wafers. When she called the phone number on the wafer package, she was told there could not have been cross-contact. She had no luck getting in touch with anyone else at Solen USA.
Vitale says she also filed a complaint with the FDA about the product – with no result.
Vitale sent the cookie to the Food Allergy Research Resource Program (FARRP) at the University of Nebraska for allergen testing. Her suspicion about hazelnut was strongly confirmed.
The testing laboratory found the wafer contained 5,000 parts per million (ppm) of hazelnut. One part per million is equivalent to 1 milligram per kilogram of the product, according to the lab’s report. Vitale was surprised by the amount.
Lawsuit Brings Hopes
A year after her son’s reaction, Vitale had hope for accountability when she called Francoeur and decided to take legal action. The lawsuit was filed on October 25, 2022, in U.S. District Court in Colorado.
Vitale and A.C. were able to share their experience through testimony during the jury trial. Fenicle thinks the way they described how the boy’s life went from being careful to being traumatized resonated with the jury.
“He’s no longer a kid with allergies, he’s a kid with allergies who has lost trust in the system, lost trust in the labels,” he says.
Vitale’s attorneys are hopeful that the verdict will have wider implications in other states with laws that similarly can hold companies accountable.
Francoeur hopes that manufacturers get the message from the Colorado verdict that they must be transparent. She says the onus is on them, not the consumer, when it comes to what’s in a product. “They have a duty to make sure that they protect the public,” she says.
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