Products Liability Law Reporter

The Fifth Circuit Court of Appeals held that Whole Foods may be liable to a child who suffered a severe allergic reaction after eating a cupcake allegedly mislabeled as vegan.

Doe, 7, suffered from life-threatening food allergies, including to dairy and tree nuts. After eating a Whole Foods cupcake labeled as vegan, he suffered a severe allergic reaction, which necessitated administration of epinephrine. After the incident, Doe experienced psychological challenges related to social situations and food consumption. His mother, individually and on his behalf, sued Whole Foods, Inc., alleging negligence, strict liability, manufacturing and marketing defects, and breach of warranties. The district court granted the defendant’s motion to dismiss, holding that the plaintiffs’ claims were impliedly preempted by the Food, Drug, and Cosmetic Act (FDCA).

Reversing, the Fifth Circuit held that although there is no private right of action under the FDCA, an independent state law duty may form the basis of a tort claim that includes an FDCA violation as evidence of a breach, as long as the state law claims do not add additional federal requirements or impinge on the FDA’s authority over food labeling. Here, the court said, the plaintiffs’ allegations are based on state law and reference violations of FDA regulations as evidence of the defendant’s breach of its legal duty. Thus, the court concluded that the plaintiffs’ claims have an independent state-law basis and are not preempted by the FDCA.

Consequently, the district court’s conclusion was improper.

Citation: Spano v. Whole Foods Inc., No. 22-50593 (5th Cir. Apr. 14, 2023).

Plaintiff counsel: David D. Rapp and Jonathan A. Cone, both of Weatherford, Texas; and William D. Taylor, Arlington, Texas.