Fifth Circuit revives lawsuit against Whole Foods over mislabeled cupcake

(CN)  — The Fifth Circuit sided Friday with a New York couple who sued Amazon-owned Whole Foods after a cupcake made by the grocer hospitalized their son.

Jeff and Debbie Spano's son C.S., who was already a finicky eater due to his severe allergies to dairy, tree nuts and fish and about 14 other things, according to the family’s attorney, is now food neophobic – he refuses to eat anything he has not tried before – thanks to a traumatic experience caused by a Whole Foods cupcake.

They claimed in a federal lawsuit filed in Whole Foods’ home city of Austin, Texas, that C.S., then 7, had a life-threatening reaction and was hospitalized from eating a vanilla cupcake at his friend’s birthday party in 2018. The incident occurred about a year after Amazon bought Whole Foods for $13.7 billion in August 2017.

The birthday child’s mother had bought the cupcakes at a Whole Foods store in Port Chester, New York, thinking they were vegan because the packaging said so and they were in the vegan section of the store’s bakery.

The store’s bakery manager later admitted it was a mistake and they were nonvegan cupcakes.

C.S.'s parents say the experience stunted his social development as he stopped having playdates with his friends out of fear that if he had another reaction adults would not know how to administer his EpiPens, which contain epinephrine, the medication used to treat anaphylactic shock.

Suing for themselves and their son, the Spanos asserted Texas state law claims of negligence, product liability and breach of warranty against Whole Foods.

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.

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. After hearing arguments on April 6, a three-judge panel of the New-Orleans based appellate court reversed the dismissal order Friday and remanded the case to Ezra.

In a unanimous order, U.S. Circuit Judge Kurt Engelhardt, a Donald Trump appointee, found the Spanos “have pled tort claims which have an independent state-law basis.”

And though each of their causes of action references violations of FDA's food labeling regulations, Engelhardt wrote, the family should be allowed to make their case that Whole Foods had breached a duty under Texas law.

Whole Foods’ attorneys did not immediately respond Friday to a request for comment.

The family’s lead attorney, Whitney Davis, a partner in the firm Eggleston King Davis, said the boy’s angst has not diminished although it has been four years since the episode. He continues to avoid kissing his parents goodnight due to cross-contamination concerns.

“And he still will not eat if someone else prepares his food if he’s not watching them the whole time,” Davis said in a phone interview.

But Davis said C.S. is eager to overcome his allergies. He is trying to enroll in a desensitization program wherein immunotherapists expose patients to small amounts of substances that trigger reactions to slowly acclimate their immune systems to them.

“It’s where they poison you just a little bit every day,” the attorney explained. “Just like the Covid vaccine. It gives you a little bit of it to create an antibody. … The hope is that the body will get desensitized if you increase that allergen consumption a little every week and it takes years to do it.”

So far, no program has accepted C.S. because his allergies are so severe, according to Davis. “They don’t want him checking out on them because sometimes anaphylactic shock you can’t come back from it,” the attorney said.

Davis said the experience even led C.S. to testify before Congress about the Food and Drug Administration’s labeling requirements.

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