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They say everything is bigger in Texas and when it comes to cowboy boots – they are actually correct.  Built by Bob “Daddy-O” Wade in 1979, the largest cowboy boots in the world measure 35 feet tall and 33 feet long and purportedly can hold 300,000 gallons of beer.  They stand in front of a Saks Fifth Avenue at the North Star Mall in San Antonio, Texas – only about an hour away from where Spano v. Whole Foods, Inc. 2022 U.S. Dist. LEXIS 123291 (W.D. Tex. Jun. 9, 2022) was decided.  So, when you get the boot in Texas, it’s no small thing.

In Spano, Plaintiffs filed the usual slate of products liability claims against Whole Foods alleging that cupcakes manufactured and packaged by the store were mis-labeled as vegan when they were not and that the non-vegan cupcakes contained nuts which also was not disclosed on the label.  Plaintiffs’ minor son, who is allergic to nuts, suffered an anaphylactic reaction after eating one of the cupcakes.

While this is not a drug or device case, the section of the FDCA that covers allergen food labeling has a preemption provision that is directly analogous to the one applicable to medical devices.  In addition to the FDCA’s prohibition on private rights of action, 21 U.S.C. § 343-1(a)(2) prohibits states from imposing any allergen food-labeling requirement that “is not identical to” that imposed by federal law.   So, as with medical devices, for plaintiffs to survive preemption on their food labeling claim, they must assert an independent state law duty that mirrors FDCA’s requirements but does “not solely and exclusively rely on violations of the FDCA’s own requirements.”  Id. at *9.  Plaintiffs have to thread the needle.

But when the court examined the allegations of each of plaintiffs’ causes of action – it found the critical element of each claim was an attempt to enforce privately the federal food labeling requirements.  Plaintiffs’ negligence claim was premised on allegations that defendant breached its duty of care by violating FDCA requirements regarding accurate identification of ingredients and employee training.  Id. at *10-11.  Plaintiffs’ strict liability claims were misbranding claims; that the label “deviated from planned specifications.”  Id. at *11.  Their warranty and consumer protection claims were based on similar mislabeling allegations.  Id. at *12-13.   To sum it up, “the only reason [defendant’s] cupcakes were allegedly unlawful or deceptive were because they failed to comply with FDCA labeling requirement for food allergies.  This theory of liability is impliedly preempted by federal law.”  Id. at *13.

Because plaintiffs had already amended their complaint once after defendant filed its motion to dismiss, the court denied their request to amend again, but dismissed the clams without prejudice.  A seemingly incongruous set of rulings.  Defendant had also moved on statute of limitations grounds which the court did not need to reach, so it seems unlikely that the dismissal without prejudice will allow these claims to be resurrected.

Now, if the boots aren’t your thing – about 9 hours due north you’ll find the 76-foot Golden Driller in Tulsa, OK and just another 3 hours farther north and you’ll have made it to the largest ball of twine in Cawker City, KS. If you’re on the west coast, head to Baker, CA for the world’s largest thermometer standing 134 feet tall.  Or, if you are on the east coast, no trip to Atlantic City is complete with a visit to the original US roadside attraction – Lucy the Elephant.