Food Allergy Tort Claims Not Preempted

The plaintiffs in Spano v. Whole Foods, Inc. contended that a child with severe allergies was injured after eating a mislabeled cupcake. The district court dismissed the claims as preempted by the Federal Food, Drug, and Cosmetic Act, and the Fifth Circuit reversed, stating that “[t]he question is whether Appellants have pled tort claims which have an independent state law basis,” and concluding that “[t]ey have”:

Each of their tort claims is ‘a recognized state tort claim’ rather than ‘a freestanding federal cause of action based on violation of the FDA’s regulations.’ Appellants ably lay out in their brief that each of their allegations is based in state law. In response, Whole Foods contends that “[e]very one of the … causes of action is specifically based on federally mandated allergen warnings under the FDCA.” While each of the causes of action does reference violations of FDA regulations, violations can only be, and only are, presented as evidence to “prove [Whole Foods’] breach of the state duty by showing that [Whole Foods] violated the FDA’s [food labeling] regulations.’ If, as the case develops, it becomes clear that there is no independent state duty upon which the Spanos can hang a particular claim, that claim will be preempted. On the pleadings, none appear to contain that fault.” 

No. 22-50593 (April 14, 2023) (citations omitted).