(CN) — The parents of a boy who was hospitalized after eating a cupcake Whole Foods mislabeled as vegan urged a Fifth Circuit panel Thursday to revive their lawsuit against the grocer.
Debbie and Jeff Spano say their then 7-year-old son C.S., who is severely allergic to dairy, tree nuts and fish, went into anaphylactic shock after eating part of a vanilla cupcake at his friend’s birthday party in September 2018.
Someone called 911 and Debbie gave him a shot of epinephrine with an EpiPen before paramedics took him to a hospital, where he was treated and released that night.
The day before the party, the mother of the birthday child had purchased the cupcakes at a Whole Foods store in Port Chester, New York. They were in the vegan section of the store’s bakery.
But the Spanos say the store’s bakery manager later admitted staff had mislabeled nonvegan cupcakes.
The couple says in court filings the incident made their son extremely paranoid about his diet.
They say he stopped eating at restaurants. He had to observe the preparation of all his meals and would only eat food he had safely consumed in the past.
The stress and anxiety caused him to fall behind in school and his parents hired tutors for him.
He became estranged from his friends, no longer having playdates with them because their parents feared he would have another severe allergic reaction, and he feared adults would not know how to administer his medication.
His mother quit her high-paying fashion sales executive job with Vera Wang to take care of him.
He grew so concerned about cross-contamination he would no longer kiss his parents.
In August 2021, they filed a federal lawsuit against Whole Foods, a subsidiary of Amazon, in Austin, Texas, where the company, then called SaferWay, was founded in 1978 and is headquartered.
Suing for themselves and on behalf of C.S., the Spanos asserted claims of negligence, product liability and breach of warranty in a January 2022 first amended complaint.
Senior U.S. District Judge David Ezra, a Ronald Reagan appointee, granted Whole Foods’ motion to dismiss in June 2022.
He determined the case boiled down to the Spanos’ contention Whole Foods had failed to comply with the allergen labeling requirements set out in the federal Food, Drug and Cosmetics Act.
It mandates manufacturers must disclose on packaging if their products contain a “major food allergen,” encompassing “milk egg, fish, crustacean shellfish … tree nuts … wheat, peanuts, soybeans and sesame,” and ingredients that contain protein or refined oil derived from these foods.
Ezra decided the family’s claims were impliedly preempted by the FDCA – which only allows the federal government, not individuals or states, to sue for labeling violations specified by the statute – because they were “entirely dependent upon an FDCA violation” and “could not exist based solely on traditional state tort law.”
The Spanos appealed to the Fifth Circuit and a three-judge panel of the New Orleans-based court heard arguments Thursday.
Imploring the judges to affirm dismissal, Whole Foods’ counsel, William Palmer of the Austin firm DeShazo and Nesbitt, said federal courts had also applied implied preemption to dismiss similar cases in which plaintiffs had alleged Nestlé Waters North America had fraudulently labeled their bottled water “spring water,” Trader Joe’s canned tuna had a different weight than what its labels stated and Costco had failed to properly disclose the weight of its packaged shrimp.
But U.S. Circuit Judge Kurt Engelhardt questioned if the Spanos’ negligence claims could survive independently of the FDCA.
“In this case isn’t this claim … negligence on the part of Whole Foods in swapping labels and somehow there’s a mix-up in terms of what Whole Foods did?” the Donald Trump appointee asked.
Palmer started to answer, “Yes, sir …”
Engelhardt cut in: “How is that preempted by someone who does not conform with an FDCA required label?”
The Spanos’ attorney, William Taylor, founding partner of the Arlington, Texas-based firm Taylor & Taylor Law, leaned heavily on precedent from the Fifth Circuit’s January 2011 order in Hughes v. Boston Scientific.
In that case, a Mississippi woman named Jan Hughes sued Boston Scientific after she was burned by its medical device designed to treat heavy uterine bleeding, alleging a failure-to-warn negligence claim under Mississippi state law.
A federal judge granted Boston Scientific summary judgment, finding all of Hughes’ claims were preempted by the Medical Device Amendments of 1976 to the Food, Drug and Cosmetics Act, which was enacted in 1938.
But a Fifth Circuit panel determined her failure-to-warn claim was not preempted.
Summing up his arguments with a pun, Taylor said of Whole Foods: “They want to have their cupcake and eat it too. They want to say if we comply with federal labeling provisions then all state claims are preempted; if we violate the federal law, state law claims are preempted.”
“And if we allege other types of claims that aren’t covered by the federal law those claims are still preempted because they’re in the same pleading. That’s not the law,” he added.
U.S. Circuit Judges Jerry Smith and Patrick Higginbotham, appointees of Ronald Reagan and Gerald Ford, respectively, joined Engelhardt on the panel.
The judges did not say when they rule on the appeal.Follow @@cam_langford
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