In March last year Holly Jones – as she regularly did – purchased two slices of her daughter’s favourite pizza from her local Whole Foods store. But on this occasion, the Vegan Garden Pizza caused serious and life threatening injuries.
Jones phoned the store to alert them to the hospitalisation of her daughter – who was severely allergic to nuts.
The manager volunteered the pizza had been incorrectly labelled, declaring that “it did, in fact, contain nuts and/or ingredients containing nuts” and that an employee had mistakenly used a taco sauce made from crushed pecans.
On that basis, Jones brought an action against Whole Foods, alleging negligence, negligent supervision, misbranding of food for consumption, product liability and breach of express warranty, with Whole Foods subsequently lodging an application to dismiss all claims.
Whole Foods contended that the goods were not defective on the basis that vegans commonly eat nuts. Hence it should be expected that a vegan pizza might contain them.
The Tennessee (USA) court rejected that reasoning. Most notably, it relied on the consumer expectations test, which renders a product ‘unreasonably dangerous’ if an ordinary consumer would not reasonably expect the condition of the product or the risk of injury.
The court declared that omission of nuts on the pizza ingredients list rendered it immaterial that nuts might be vegan-friendly. Ms Jones could not have reasonably anticipated that the product contained pecans as an ordinary consumer would assume from the labeling, the product was nut free.
Whole Foods also argued they were exempt from stringent labeling requirements as the pizza had been made on site and was ‘ready to eat’. This contention too, was rejected.
Jones v. WFM-WO, Inc., 2017 WL 3017193 (M.D. Tenn. July 17, 2017).