Ben & Jerry's Chocolate Nougat Crunch Ice Cream

With the Summer Solstice only days away, and peak ice cream eating season upon us, Unilever,PLC, the company which owns Ben & Jerry’s, is voluntarily recalling pints of Ben & Jerry’s Chocolate Nougat Crunch Ice Cream because the container label does not include a statement which warns that the product was manufactured on equipment also used to process peanuts and tree nuts.  In its press release concerning the recall, the Food & Drug Administration (“FDA”) warned that individuals who have an allergy to nut products would “run the risk of serious or life-threatening allergic reaction if they consume” this Ben & Jerry’s product.  The ice cream was distributed to retailers nationwide and it appears that the pints reached shelves for consumer purchase. Luckily, no illnesses have been reported to date.

In 2004, Congress passed the Food Allergen Labeling and Consumer Protection Act (“FALCPA),” which mandates the labeling of food allergens on packaged foods.  The Act was added to the Federal Food, Drug and Cosmetic Act and became effective in 2006.  21 U.S.C.  § 321.  FALCPA requires that manufacturers of foods which contain one of the eight major allergens responsible for 90 percent of food allergies (which includes peanuts and tree nuts) either:

  1. state on the food’s packaging that the food contains the allergen; or
  2. refer to the allergen in the ingredients listing.

According to the Food Allergy and Anaphylaxis Network, 4 percent, or 9 million adults, and about 8 percent or 6 million infants and young children in theU.S., suffer from food allergies. Every 3 minutes a food allergy sends someone to the emergency room in theUnited States.  In fact, more than 200,000 consumers require emergency room treatment each year.  According to the FDA approximately 150 Americans die each year from food allergies.  This is a large pool of potential claimants and you can rest assured that plaintiff firms are well aware of the statistics and track labeling related recalls closely.

We continually advise our manufacturing and processing clients that proper labeling, especially with respect to allergens is critically important.  We help insure that they have appropriate checks and balances surrounding food production and labeling.  Furthermore, we remind our retail (i.e. grocery stores and restaurants) and food services clients that they are held to the same FALCPA labeling standards if they package food for consumption at their facilities.

The Ben & Jerry’s recall is the perfect example of a situation that could result in serious food borne illness claims, and even wrongful death claims.  These claims can be difficult to defend if the labeling practices of a company violated FALCPA, and a claimant can provide proof that they consumed the mislabeled product and suffered an adverse reaction.  In cases such as the Ben & Jerry’s recall, an experienced plaintiff firm’s first step will be to attempt to preserve the food item and any packaging.  As such, any company conducting a recall for mislabeling should not destroy the product at issue, or risk a spoliation claim from future claimants.  Allow this latest recall to serve as a reminder to both attorneys who represent food companies and the food companies themselves that they must constantly evaluate labeling practices to ensure compliance with FALCPA.