Food Allergy Labeling Woes

I never used to be a label reader until food allergies.  Now I find myself reading labels even when I’m not with my daughter.  As dependent as I’ve become on labels, there are situations where we have to accept what we’re told about a food or go without any indication of ingredients at all.

There’s a sliding scale of comfort – if I can talk to a chef or baker I can feel out their level of awareness of food safety.  I recall talking to  Chef Keith Norman at the South Point and learning once that someone with celiac disease can’t even assume shredded cheese is gluten free because flour can be used to make pre-shredded cheese not stick together.  They’re cautioned to ask for freshly grated cheese.  Or someone with a dairy allergy can’t just order hummus because maybe food service has added milk powder.  Still, these details can be teased out the closer you get in the hierarchy to the person who actually made the food in question.

I’ve been trying to put together a draft of a piece about a fairly recent food allergy case involving the grocery store Publix.  I have the pleadings printed out and on my desk and keep reading and re-reading them.  The ultimate goal was to discuss the case on the Allergy Law Project but the time doesn’t feel quite right as the case is still playing out.

It is incredibly difficult to even write out the facts of what happened in the case because when an allergic individual or their family demands better treatment and uses the law for assistance, invariably there are those who would pick the facts and pass judgment.  I’ve written before about the dangers in doing so. Further, it is simply heartbreaking to consider the loss of a loved one, let alone to anaphylaxis.  That said, I’ll try because I think this highlights the complexity of the road ahead for labeling.

Derek Landon Wood died after eating an unlabeled cookie at a Publix grocery store after being assured that it did not contain nuts.  In the family’s complaint filed in the Middle District of Tennessee Nashville Division, they do not simply ask for compensation for the negligence alleged against Publix, they seek “to raise awareness of potential fatal food allergies in American children.”  (See the Complaint at pg. 1).

Derek, along with his mother and aunt, was at a Publix Store in Clarksville, Tennessee when his aunt purchased a cookie for him at the bakery counter on June 3, 2014.  He requested the Chocolate Chew cookie and, given his diagnosis of a tree nut allergy 7 years prior, his aunt inquired of the store clerk whether or not the cookie of Derek’s choice had tree nuts.  Assured that it did not contain tree nuts, she purchased the cookie.  Breaking off a piece and eating it, she saw there were no nuts and gave the cookie to Derek but shortly thereafter he experienced anaphylaxis and ultimately (and tragically) died.

Derek was 11 years old.

A suit in Tennessee Federal court ultimately ensued, brought by Derek’s legal guardian (his grandfather) as well as his aunt and mother.  Publix attempted to have claims brought dismissed by stating that the case was one meant to attack the unlabeled nature of bakery counter products while Derek’s family had alleged that the misrepresentation of the clerk was what they had to rely on for lack of ingredient information.

Disturbingly, the case implies that though Publix creates the illusion that products are baked on site, products like the cookie Derek consumed are not baked on site.  It bears repeating, though the sales clerk purported to know about ingredients in the cookie based on the implication that they were backed in that area, “no Publix bakery products offered for retail sale are made fresh or prepared in the store locations where they are offered for sale.”  Id. at 3.  Even the batter used to prepare the few items that are made to order is mixed at a bakery plant. Id. at 3-4.

What does this mean?  When Publix takes a product that may be sold elsewhere in the store and places it in the bakery display, they are removing any ingredient information and simply placing the item in an unmarked bag when selected by a customer.  Id. at 4.

Derek’s mother carried epinephrine but despite best efforts of his mother and medical professionals, 11 year old Derek was pronounced dead at 10:19 p.m., about 4 hours after he and his family had entered the Publix store in Clarksville.

The suit alleged negligent training of the employee that assured the family that there were no tree nuts present, failure to warn consumers of allergens, violation of the Tennesse consumer protection act, as well as strict liability claims and a breach of implied warranty of fitness.  The suit also sought declaratory relief under FALCPA.

It is still ongoing but the encouraging thing for advocates has been that the judge in the case could see something concerning about taking a labeled good and removing it from its immediate packaging to effectively package it under the guise of an on-site bakery.

Going back to the way we tend to trust communication the closer we get to a perceived source such as a chef or baker, it is one thing to have an unlabeled good.  Most people would pass on that.  It is another thing to remove labeling information and substitute it with verbal assurances.

 

Yesterday I came across a cookie that had me snapping a photo because instead of an actual ingredient list they just had a “may contain” statement.

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The label reads: “May contain the following: flour, sugar, brown sugar, margarine, butter, oatmeal, eggs, cream, chocolate chips, raisins, craisins, eggs [sic], vanilla chips, peanut butter, peanuts, almonds, walnuts, pecans, coconut, cocoa, baking powder, baking soda, salt, vanilla, and various extracts.”

First of all, the kind part of me sees this as interesting because they’ve gone to the trouble of letting us know everything they use in their kitchen.  This is just a small local bakery and they don’t have the FALCPA requirements at play.  I also chuckled at the fact that eggs made an appearance twice.  The skeptic (aka lawyer) in me wonders if this is not a label but a disclaimer.  A label tells us something about the product, a disclaimer tries to make it our fault if we eat it anyway and come to harm.

The cookie looked like a sugar cookie with frosting, sprinkles, and a candied cherry of some sort.  I showed a photo to my daughter (aged 7) and asked her what she thought it was made of.  She said “I think it is flour, sprinkles, sugar, jam, and water.”

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I read the label to her and she looked concerned.  “May contain?” she asked, her brow furrowed, “Not good.”  She went on to say it wasn’t good because “it has all the allergies.”

Even in commercially labeled products “may contain” statements aren’t regulated or mandated but this cookie made me think of Derek.  How delicious the cookie must have looked, how his family asked questions and even checked the cookie.  How they might have turned away from the counter if the employee had said “I don’t know what is in our cookies, we don’t make them.”

Allergy advocates talk a lot about epinephrine, I know I have spent my fair share of time doing that, but reactions are what we want to avoid in the first place.  Sometimes epinephrine fails.  Sometimes epinephrine isn’t given in time.  Sometimes epinephrine isn’t nearby.

Allergen avoidance isn’t a perfect strategy, true, but I find communication one half of so much in the allergy world.  Working with a school to keep your child safe, the label on a food, the assurances of a waitress at a restaurant. . . .  The other half is a disparity of power.  The look of an enticing treat, the pressure of a social situation, the clout of organizations trying to downplay the allergic storm, and even the cost of epinephrine.

Where does all of this leave us in the day to day?  Sometimes I think things are getting better but perhaps I’m just brushing off the things I’m used to – like all the food fundraisers at school (I can’t fathom how cookie dough sales are more helpful than buying some paper and pencils for the classroom directly, for example, or how being invited to buy McDonald’s products served by teachers is as useful as volunteering in the classroom).  I’m laughing at labels like the one I featured above as a coping mechanism because it just is a signal of a greater disregard for the complex relationship between people and food.

There’s so much more to food than nourishment.  It can comfort, welcome, and include.  It can also be a part of anxiety, dysfunction,  and exclusion.  We can’t rely on those who have the upper hand, be it drug or food companies, to “do the right thing.”  We can’t prepare for all contingencies but we can work together and not judge one another in our own personal battles.  We can speak softly.  We can push for labeling of one allergen while knowing there are many more in need of disclosure.

Most of all, we can try to be compassionate and inclusive of others outside our allergy sphere.  As usual, I don’t have answers.  I can share how I frame the question to unpack ways to help any way I can.  The irony of fighting for labeling of allergens while not wanting people to label my child simply as food allergic is not lost on me.  However, the example of consideration and kindness we show will shape the next generation and the balance of the bargains they must make.