A Tennessee federal court has ruled that a personal-injury lawsuit against Whole Foods Market can proceed because the plaintiffs did not plead that they were “practicing vegans” and therefore could not be expected to know that a vegan pizza product might contain nuts. Jones v. WFM-WO, No. 17-0749 (M.D. Tenn., order entered July 17, 2017). The plaintiff alleged that she bought two slices of “Vegan Garden Pizza” from a Whole Foods bakery, relying on the label indicating that the pizza “did not contain certain nuts and/or ingredients derived from nut products.” After her daughter ate the pizza and suffered an allergic reaction requiring hospitalization, the plaintiff called the store and talked to the department manager, who reportedly told her the pizza was “mislabeled” and that an employee had prepared it using a taco sauce containing crushed pecans.

Whole Foods argued that the pizza was exempt from the warning-label requirements of the Food, Drug and Cosmetic Act and the Food Allergen Labeling and Consumer Protection Act because it was a pre-packaged food not intended for consumption on the premises. The court rejected the claim as premature, finding the facts alleged in the complaint did not establish whether the pizza could have been eaten on the premises. However, the court did limit recovery for the plaintiffs’ claims to medical expenses and loss of services, dismissing the mother’s claims for her own emotional suffering.