Peanut butter - may contain peanuts

Question

Some products have disclaimers that serve no apparent purpose or which are obviously redundant. For example, a peanut butter jar that lists the ingredients as peanuts, and then provides a warning right under it which says may contain peanuts.^*

If a company sells a product without such a warning, what arguments could be used in court against them by a person who claimed that they read the ingredients, understood that it listed peanuts, but consumed it anyway because they weren't warned that it may contain peanuts and was injured?

_{* I'm aware that it usually says may contain nuts because peanuts are technically legumes, but this is just an example.}

Answer 1

When the dangerous nature of a product is or should be known to a manufacturer and the product is being used in the usual and expected manner, the manufacturer has a duty to warn of the danger. Breach of that duty can lead to liability. The case Billiar v. Minnesota Mining and Mfg contains some useful precedent for understanding the issue.

It is well settled that New York law holds the supplier of a product which it knows or should know is dangerous if used in the usual and expected manner to a duty adequately to warn users of the product of the danger unless the danger is obvious or well known.

...

When the user is fully aware of the nature of the product and its dangers, however, the supplier cannot be held liable for failure to warn him.... The rationale for this "knowledgeable user" exception is that knowledge of the danger is equivalent to prior notice; no one needs notice of that which he already knows.

In this particular case, plaintiff was injured mixing an electrical resin at work, but was (deemed to be) an unskilled worker. The court recites various cases where individuals with some relevant knowledge were nevertheless harmed (and won their cases), because the warnings were insufficient.

Food allergies have a special treatment, thanks to the Food Allergen Labeling and Consumer Protection Act of 2004. Peanuts (and other things) are "mandatory warning" substances, where the label must say "Contains peanuts". Omitting the warning makes the food misbranded. Also note that warnings carry a "prominence" requirement, which does not exist for ordinary ingredients which are typically in illegible microprint. Paragraph (w) spells out the labeling requirement, which is well worth reading for its complexity. The law does include the escape clause that if the name of the product contains the name of the allergen, you have been warned.

If plaintiff is suing the manufacturer pro se and stipulates, in lieu of competent legal advice, that they knew that peanut butter contained peanuts and that they were allergic to peanuts, but they ate it anyhow, the manufacturer will not be liable.

Answer 2

canada

I think you misunderstand the liability that the manufacturers are seeking to avoid by providing these specific labels when they appear clearly redundant: the liability would likely come from regulatory enforcement or prosecution, not a private cause of action.

Private cause of action

Maybe it is obvious, but in the case where a plaintiff brings an action in negligence, product liability, or failure to warn, the plaintiff would have to make out the elements of the specific cause of action they are alleging. I think you are correct that it would be quite a hurdle for a plaintiff to show that they were not informed that peanut butter contained peanuts.

Regulatory requirement

But a standalone allergen notice is required by regulation. Failure to provide the notice is an offence. This explains the presence of a label, even in the case of clear redundancy.

The Food and Drug Regulations say:

A food allergen source, gluten source and added sulphites statement on the label of a prepackaged product shall ... be introduced by a title that shall (i) consist of the term ... "Contains" or "Contains:"; (ii) be shown in bold type; and (iii) be shown without any intervening printed, written or graphic material appearing between the title and the rest of the statement.

The understanding of the consumer is irrelevant to the labelling requirement. Failure to provide the label is the violation. This avoids any uncertainty about what a manufacturer's obligation is. It does not matter that the presence of an allergen might already be clear from the nature of the product or other features of the labelling; the prescribed allergen label is always required.

A person or organization who contravenes the Food and Drug Regulations is guilty of an offence (see Food and Drugs Act: ss. 31, 31.1). These offences would be enforced by the state; they do not create a private cause of action.

Answer 3

I happen to agree that this is a bit strange, and I think it is basically "government says do it, so you do it even if it doesn't make a whole lot of sense." But here are some additional examples that may shed some light on things:

• Kosher certification - Union of Orthodox Jewish Congregations of America - OU - Symbols explained

On the one hand, Oreo cookies are commonly listed with an OU-D certification. This normally indicates "contains dairy". But the OU has publicly stated that, at least for the time being, as long as there is no "May contain milk" or "Contains milk" or any milk-based ingredients listed, these can be considered dairy-free from a Kosher perspective such that they can be eaten following a meat meal. Trust me, for Orthodox Oreo-loving Jews this was big news when it came out several years ago. As I understand it, the OU asked the manufacturer to put an OU-D on the package instead of OU (indicating no dairy or meat by default) or OU Pareve (clearly stating no meat or dairy) because this allows the manufacturer to change the ingredients (as long as they are Kosher) and manufacturing processes (e.g., baking in the same equipment used for products containing dairy) by changing the labels as required by government regulations (e.g., adding "Contains milk" or "May contains milk" as appropriate) without requiring a recertification by the OU to determine the labeling. In other words, OU-D covers all the likely scenarios from a Kosher perspective.

And on the other hand, several years ago I saw a Passover product which stated "May contain wheat, milk and nuts" and next to it a line "This has no Kosher concern." (or similar, I can't remember the exact phrase). That was important because the item was certified as Pareve (so no milk) and Kosher for Passover (so no wheat, or rather any wheat had to be special for Passover which gets to be a very big deal, and in this case no wheat intentionally included).

So there is one situation where the allergen statement is used to clarify the Kosher statement (is it really dairy or not) and in the other the allergen statement is essentially minimized (because Kosher rules are rather strict, especially for Passover) but the manufacturer felt the need to still include it based on their understanding of FDA regulations.

• Margarine

Margarine is basically vegetable oil, flavoring, coloring and other chemicals made as a butter substitute. People who keep Kosher look for margarine that is 100% dairy-free. Many margarines (and similar products) contain dairy. Many do not. It may not be obvious from the ingredients. While Kosher symbols work for those who keep Kosher, the allergen statement or lack thereof can be vital for those who don't keep Kosher (or on a product that is not Kosher certified). As an example, I can't believe it's not Butter may not have butter but it does have milk ingredients based on the allergen statement (and the OU-D) even though there is nothing obviously dairy in the ingredients.

• Non-Dairy Creamer

This is the exact reverse of the peanut butter question. Many "non-dairy" creamers are actually made partly from dairy products! Really. Blindly following the name would be a problem for someone with a serious allergy problem. Looking at Coffee-Mate the label says: non-dairy but the ingredients include SODIUM CASEINATE (A MILK DERIVATIVE) and the allergen statement says CONTAINS: A MILK DERIVATIVE.

So what is in a name? If non-dairy creamer can include dairy, and "it's not butter" include dairy, who is to say that peanut butter must have peanuts?

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Some comments on the original question got me hunting on the internet for what each manufacturer says as far as allergens. All are from manufacturer web pages. Except as noted, all are Creamy, the only type of peanut butter that matters.

• Jif "Contains peanuts"
• Peter Pan: "Contains: Peanuts"
• Smuckers: "Contains peanuts"
• Trader Joe's: "CONTAINS PEANUT"
• Smart Balance (not sure if this one counts, it is Chunky not Creamy): "This product contains peanuts."
• Skippy seems to be the lone holdout - it has "Ingredients & Allergens" which just lists the ingredients, the first one being Roasted Peanuts.

However, I just checked some of my actual real Jif Creamy Peanut Butter - and I can't find the allergen list anywhere! But the ingredients have PEANUTS in bold - I don't know if that is for emphasis or if it somehow satisfies an FDA requirement.

And just for fun, I pulled out a container of Lactaid Milk and sure enough, after the ingredients is CONTAINS MILK.

Answer 4

A peanut butter jar that lists the ingredients as peanuts, and then provides a warning right under it which says may contain peanuts.

They don't, unless the manufacturer messed up. The allergy warning typically says something like Contains peanuts. May contain nuts. The two allergies are separate conditions and are thus marked separately.

What arguments could be used in court against them by a person who claimed that they read the ingredients, understood that it listed peanuts, but consumed it anyway because they weren't warned that it may contain peanuts and was injured?

None, if they readily admit they knew it contains peanuts. But why would they intentionally undermine their own case? It is as if you admit you saw a drunk driver wasn't going to stop at crosswalk and intentionally walked in front of their car.

Instead the person would claim the label was not clear enough and they thought it didn't contain peanuts. For example, consider that the allergy warning said merely:

Allergy warning: May contain milk and shellfish.

Then the person could argue they read the allergy warning and it said nothing about peanuts.

If the manufacturer has a need to add an allergy warning (for the "may contain" ingredients), it makes sense to list all allergens there, even if some should be obvious. As user6726 says, it can be sufficient for the product name to include the allergen, but that depends on local laws.

Answer 5

Writing "may contain peanuts" on a jar of peanut butter appears to be an error and a violation of FDA rules. According to the FDA's Food Allergies information sheet:

Consumers may also see advisory statements such as “may contain [allergen] or “produced in a facility that also uses [allergen].” Such statements are not required by law and can be used to address unavoidable “cross-contact,” only if manufacturers have incorporated good manufacturing processes in their facility and have taken every precaution to avoid cross-contact that can occur when multiple foods with different allergen profiles are produced in the same facility using shared equipment or on the same production line, as the result of ineffective cleaning, or from the generation of dust or aerosols containing an allergen.

So according to the FDA the phrase "may contain peanuts" is appropriate only if the manufacturer has "taken every precaution" to exclude peanuts from the product. It is a warning that they may still be present as a contaminant.

The allergy warning should read "Contains: Peanuts". These warnings appeared on food packaging in the USA after the passage of the Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA). This law defines the format of the notice. This law specifies which allergens have to be called out, standardizes their names, and requires the word "Contains" at the start of the list.

The situation would be less confusing if the list were preceded by the world "Allergens". I suspect food manufacturers objected and the confusing heading "Contains" was chosen as a compromise.

This odd choice has two unfortunate consequences. One, product labels seem to have two lists of ingredients. And second, the required notice sometimes is perceived as an inane statement of the obvious.

The framers of the law could have made an exception for cases where the presence of an ingredient should be obvious. But that would have complicated the law. As other have pointed out, what is obvious to one person may not be obvious to another. Drawing up a list of exceptions would have required considerable research into public understanding of the nature of food items, followed by public comments and other lengthy and expensive bureaucratic procedures to arrive at the final list. The savings would have been only in ink.

Answer 6

south-africa

Allergy warnings are mandated by government on all mass produced foodstuffs. It is mandatory regardless of how redundant such warnings may be.

It is also generally useful. I'm lactose intolerant and have to read labels attentively. You would be surprised how sneaky some allergens could be in things you would not expect.

If they did not have labels then that could lead to litigation on a scale I could probably not comprehend. Not just civil case but government knocking on your door as well.

Answer 7

what arguments could be used in court against them by a person who claimed that they read the ingredients

None that would be seen meritorious by the court.

Product manufacturers simply prefer to comply with any applicable legal requirements for labelling and, in any event, err on the side of caution. Sometimes it turns out to be looking bizarre, but so long as it doesn't negatively affect sales there's nothing for the manufacturer to worry about.