Judge Rules Family’s Lawsuit Against Publix Super Markets Can Proceed After Boy Dies From Eating Cookie Made with Tree Nuts

A lawsuit filed in the wake of the death of an Alabama boy who suffered fatal anaphylaxis from eating a cookie may profoundly affect supermarket bakeries and consumers suffering from food allergies.

Derek “Landon” Wood, 11, died June 3, 2014 after eating an unlabeled, ready-to eat “Chocolate Chew” cookie at a Publix grocery store in Clarksville, Tennesee. A bakery employee assured Derek’s mother, Beth Cline, that the cookie did not contain tree nuts, which Landon was allergic to. Cline alleges her son took three bites of the cookie and began complaining that his mouth was burning. Cline gave Landon a Benadryl, but his symptoms continued to worsen. Landon’s condition briefly improved after Cline gave him a shot of epinephrine, but his condition later worsened. Landon died at Vanderbilt Children’s Hospital in Nashville, Tennessee, later that same night, 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. On June 11, 2015, a U.S. district judge dismissed a motion by Publix to dismiss the lawsuit, which the company argued 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 agree or deny that Cline spoke to one of its bakery employees. The company has said that its staff was aware that the Chocolate Chew cookies contained tree nuts, and it denies that a bakery employee would have told Cline 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 says the Chocolate Chew cookie is exempt from FALCPA 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. Landon’s family says that exemption should not apply, since the Publix store that sold the cookie makes most of its finished baked goods at a regional facility, and products are then shipped 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 ultimately found that “the plaintiffs (the family) have sufficiently alleged that the Publix bakery was subject to the labeling requirements,” because the cookie that killed Landon did not appear to be served for immediate consumption, nor was it prepared fresh. AllergicLiving.com viewed a copy of the decision.

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