Last month, Chief Judge Waverly Crenshaw of the United States District Court for the Middle District of Tennessee largely denied Whole Foods’ motion to dismiss a complaint alleging negligence, negligent supervision, product liability, misbranding of food for consumption, and breach of express warranty. See Jones v. WFM-Wo, Inc., 17-cv-00749 (M.D. Tenn. July 17, 2017) (ECF No. 17). Though it arose in Tennessee, this case involves something near and dear to every New Yorker’s heart: pizza.
The Alleged Facts
According to the complaint, the plaintiff, Holly Lynn Jones, bought two slices of “Vegan Garden Pizza” from the bakery department of a local Whole Foods for her daughter, a minor. See id. at 1–2. The bakery department labeled each variety of pizza and further specified each pizza’s ingredients. See id. at 2. In the past, Jones had purchased the Vegan Garden Pizza for off-site consumption, specifically relying on the list of ingredients to determine that the pizza was nut free. See id. at 2.
After eating the pizza, the daughter—who is allergic to pecans, among other nuts—“suffered a severe allergic reaction, resulting in life-threatening injuries” that required hospitalization. See id. at 1. After her daughter suffered the allergic reaction, Jones contacted the store’s manager of the prepared foods department, who told her that the Vegan Garden Pizza was improperly labeled on the day in question. See id. at 2. Apparently, to make the Vegan Garden Pizza, a Whole Foods employee had used taco sauce from the burrito bar (what?), and the sauce contained crushed pecans. See id. at 2.
The Court’s Rulings
Under Tennessee’s Product Liability Act (“TPLA”), a plaintiff must prove that the product was defective or unreasonably dangerous. See id. at 3–4. Whole Foods argued that the Vegan Garden Pizza was not defective or unreasonably dangerous because nuts are a “common staple” of a vegan diet. See id. at 4. Relying on cases holding that an inadequate warning may meet the requisite standard, Chief Judge Crenshaw refused to dismiss the TPLA claim because the ingredients list failed to mention nuts. See id. at 6.
Whole Foods also argued that, while a reasonable consumer would objectively expect that vegan pizza would not contain meat, fish, fowl, or any other animal products, the same consumer would expect that the pizza could contain alternative sources of protein from pecans or other nuts. See id. at 5. Chief Judge Crenshaw “beg[ged] to differ.” Id. at 5–6 (“[T]he Court cannot say, as a matter of law, that the same consumer would understand that the pizza slice could contain pecan chips.”). As an aside, it’s unclear why a consumer might expect a slice of garden pizza to contain any protein at all.
Next, Whole Foods posited that it was exempt from the labeling requirements imposed by the Food Allergen Labeling and Consumer Protection Act (“FALCPA”) because the pizza was prepared on-site and served for immediate human consumption. See id. at 6–7. According to the court, dismissal of the FALCPA claim would be “premature.” Id. at 8. The complaint did not allege that the pizza was ready to eat and, in fact, Jones claimed that, in the past, she had purchased Vegan Garden Pizzas for consumption “off site.” Id. Therefore, based on the allegations, there was no way for the court to determine whether the pizza was exempt from the statutory scheme.
Moreover, the court held that Jones sufficiently stated her breach of express warranty claim under Tennessee law because Whole Foods described what was in or on the Vegan Garden Pizza, and Jones relied on that description when she purchased two slices for her daughter. See id. at 10.
Finally, the court granted Whole Foods’ motion to dismiss to the extent it clarified that Jones, individually, was not seeking to recover for the alleged personal injury and emotional suffering of her daughter. See id. at 11. But this was sort of a hollow victory; in opposition, Jones conceded that her individual recovery was limited to losses related to her daughter’s medical expenses. See id.
Pizza is delicious. Tacos are delicious. But maybe their respective sauces are not perfect substitutes. From a gastronomic perspective, your pizza might not taste as good. From a legal standpoint, mixing and matching might render your ingredient list inaccurate, which, as here, could expose you to potential liability.
We’ll keep an eye on this and other labeling issues here at the Monitor.