The death of an 11-year-old Alabama boy, who died after eating a supermarket bakery cookie, raises the question of whether these bakeries should be required to label their products for possible allergens.
A crucial aspect of the lawsuit is whether a supermarket bakery should be required to label all of its products, many of which are made, either entirely or mostly, off premises, Allergic Living reports. Publix Super Markets, which sold the cookie, takes issue with that interpretation of the Food Allergen Labeling and Consumer Protection Act (FALCPA) and filed a motion for the case to be dismissed. In June, a U.S. district judge denied the Publix motion, finding that the family’s case has sufficient merit to allow the case to proceed.
The boy who died had multiple food allergies and asthma. In June 2014, on a visit to Tennessee, he ate a bakery department cookie purchased at a Publix store in Clarksville. His mother says she asked a bakery employee if the cookie contained tree nuts, one of the boy’s allergens. Based on the employee’s response, the mother bought the cookie for her son. After the boy ate three bites of the cookie, he said his mouth was burning. His mother gave him Benadryl, but the symptoms worsened, and he developed difficulty breathing. His mother administered his epinephrine auto-injector and his aunt called an ambulance. The child’s condition improved briefly during the ambulance ride, but in the hospital, his breathing worsened, he suffered extreme swelling, and his blood pressure plummeted, according to Allergic Living. He was airlifted to Vanderbilt Children’s Hospital in Nashville, but he died that evening.
The family seeks “compensation for Publix’s negligence and to raise awareness of potential fatal food allergies in American children.” Publix denies negligence but has neither acknowledged nor denied that a conversation took place between the mother and a bakery employee. But Publix says employees know that the Chocolate Chew cookies contain tree nuts, and the store denies that a bakery employee would have said the cookies were free of nuts, according to Allergic Living.
A crucial element in the case is the interpretation of FALCPA, which requires manufacturers to list the Top 8 allergens on the labels of packaged foods. But the law exempts foods that are placed in a wrapper or container or prepared on a made-to-order basis, for example, a deli sandwich. FALCPA does not cover foods “served in restaurants or other establishments in which food is served for immediate human consumption,” according to Allergic Living. The family argues that these exemptions should not apply, since most of the supermarket’s finished baked goods are made at a regional facility and shipped to in-store bakeries. Publix has not yet said how the cookie in question was prepared. 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.”
An attorney for the family said they seek “a declaratory judgment from a federal court that Publix cannot use this FDA-interpreted exception to bakeries for not labeling its bakery products.” Such a judgment would “require Publix, as well as all other grocery stores who are selling bakery products, to identify the food allergens within its products.”