“Unfortunately, we are buying these cookies from a company who never told us they changed the ingredients” … or did they?
The 25-year-old dancer who had come to New York from the UK to pursue her career was at a social gathering in a house being rented for her dance troupe when she picked up a vanilla lace Florentine cookie. Because of her severe peanut allergy, the dancer was always “beyond careful” about checking labels and avoiding nuts. But her vigilance was let down this time, because the cookie was misbranded, with no mention of the peanuts it contained. Although she used her EpiPen and was transported to the hospital, the misbranding led to her death.
The small grocery chain, whose brand was on the label, did not manufacture the cookies; and stated that it had “very strict food safety practices,” one of which was proper ingredient labeling and that it sold the cookies in good faith. However, the supplier retorted that it had sent a notice to the grocer about the addition of peanut, and it emailed several employees about the change.
As a result of the misbranding, the companies not only faced a recall investigation, but the grocer received an FDA warning letter citing “significant misbranding violations tied to undeclared allergens in its cookie products”; the Connecticut Department of Consumer Protection (DCP) launched a probe into the incident; and both the grocery and the manufacturer are named in a wrongful death lawsuit, with the family seeking a “substantial amount” of compensatory and punitive damages.
A year after the incident, which occurred in January 2024, the family’s lawsuit is still pending. The DCP probe concluded in June 2024 with the grocer accepting a voluntary compliance agreement for which it is required to:
- Designate an internal compliance manager responsible for food safety, training and reporting.
- Establish written storewide policies and procedures for proper, accurate labeling of supplier-provided foods that are relabeled and for onsite-produced foods that bear the store label.
- Establish written protocols for handling customer complaints and include instructions for escalation to senior management and the internal compliance manager.
- Conduct annual reviews of the policies and procedures, making revisions as needed, and provide annual training for all employees with any food-handling responsibility.
- Contract with an independent third-party compliance monitor for a period of three years.
- Pay $50,000 to DCP to be used for consumer education and outreach.
Although the “fault” is still being disputed, with the grocer/supplier communication at odds, there’s no question that the store chain did not have a sufficient supplier management program. If it actually did not receive notice of the ingredient change, it needs to work more closely with its suppliers to ensure that all changes are communicated. If it did receive notice, it needs to work on its internal processes and management of supplier communication.
- Does the grocer have written supplier requirements both on communicating changes and on how, and to whom, those changes are to be communicated?
- How are supplier communications handled? Would an email have been read and discarded or left to sit in the inbox without further action?
- Are paper statements properly documented, filed, and communicated to all who need to know and maintained in such a way as to be available – and checked – when related products are handled?
- Do workers understand the seriousness of food allergies and importance of proper labeling?
There’s any number of questions that should be asked of both the grocer and supplier (and likely are and will be asked in the lawsuit). And such incidents should be seen as very serious lessons for the rest of the industry – and a reason to take a new, impartial look at your own supply chain management processes. Do you have complete confidence, with validation, that your company could not be caught up in a similar situation, due to internal or supplier error? Regardless of fault, a death occurred due to mis-practice somewhere along the supply chain.
It’s often said that it’s not a matter of if a recall will occur, but when one will. The better you know and control your supply chain, the further you can likely push out that when, and the less impact you can anticipate it to then have.
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