Judge Denies Publix Super Market’s Motion to Dismiss Lawsuit Filed Over Allergens in Cookie That Killed Young Boy

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Judge Denies Publix Super Market’s Motion to Dismiss Lawsuit
Judge Denies Publix Super Market’s Motion to Dismiss Lawsuit

Judge Denies Publix Super Market’s Motion to Dismiss Lawsuit
Judge Denies Publix Super Market’s Motion to Dismiss Lawsuit

The family of an 11-year-old boy who died after having an allergic reaction to a cookie his mother purchased for him at a Publix grocery store is suing the supermarket chain.

Derek “Landon” Wood, of Alabama, died June 3, 2014 after eating an unlabeled, ready-to eat “Chocolate Chew” cookie at a Publix grocery store in Clarksville, Tennessee. Wood’s mother, Beth Cline, claims a bakery employee told her the cookie did not contain tree nuts, but it did. Three bites into the cookie, however, Landon’s mouth began to burn. Despite Benadryl and a shot of epinephrine, Landon died that evening after being airlifted to Vanderbilt Children’s Hospital in Nashville, Tennessee, according to AllergicLiving.com.

Landon’s family filed a lawsuit against Publix Super Markets, saying the chain should be required to label all of its products, since many of them are made, either entirely or mostly, off the bakery premises. U.S. District Court Judge Aleta Trauger dismissed a motion by Publix Super Markets to dismiss the lawsuit in June 11, 2015. The company had argued the suit is a misrepresentation of the U.S. Food Allergic Labeling and Consumer Protection Act (FALCPA), AllergicLiving.com reports.

The family’s lawsuit against Publix calls for “compensation for Publix’s negligence and to raise awareness of potential fatal food allergies in American children.” The chain denies the negligence claims and has yet to either confirm or deny that Cline spoke to one of its bakery employees. The company has said that its staff knew the Chocolate Chew cookies contained tree nuts, and it denies that a bakery employee would have stated otherwise, according to AllergicLiving.com.

FALCPA requires manufacturers to list the Top 8 allergens on the labels of packaged foods, but exempts foods that are placed in a wrapper or prepared on a made-to-serve basis such as deli sandwiches. The law does not cover foods “served in restaurants or other establishments in which food is served for immediate human consumption,” AllergicLiving.com writes.

Publix claims the Chocolate Chew cookie is exempt from FALCPA because “prepared and displayed in a bakery setting and then placed in a wrapper or similar package in response to a consumer’s order”. But Publix’s cookies and the majority of its finished baked goods are prepared at a regional facility, and the products are then distributed to in-store bakeries, AllergicLiving.com reports.

U.S. District Court Judge Aleta Trauger wrote in her decision to dismiss Publix’s motion that “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.” Judge Trauger added that “the plaintiffs (the family) have sufficiently alleged that the Publix bakery was subject to the labeling requirements,” because the Chocolate Chew cookie that caused Landon to have a deadly allergic reaction did not appear to be served for immediate consumption, nor was it prepared fresh. AllergicLiving.com viewed a copy of the decision.

“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,” Donna Rosenbaum, a consultant with Food Safety Partners, told AllergicLiving.com.