Plaintiff Amanda Kelly has a sixteen-month-old daughter who is allergic to milk and eggs. Before buying Walmart’s Rice Rusks, she carefully checked the package to make sure it did not contain either of these substances. However, the complaint claims that before Kelly’s daughter had even finished eating the first rice rusk, she had an allergic reaction, with itching and the emergence of red, raised hives all over her body.
The class for this action is all consumers who bought the Rice Rusks in packaging which did not disclose the presence of milk or eggs, anywhere in the US during the class period. (The class period is not specified in the complaint.) A New York subclass is also proposed.
The ingredient list of the package Kelly bought is reproduced in the complaint. It lists the ingredients as “organic rice flour, organic sugar, salt, organic strawberry flavor, organic strawberry powder.”
The complaint says that Kelly called Walmart the next day to ask about the contents of rice rusks. The representative she spoke to said that the product might contain milk or eggs and that the packaging said so. Kelly checked the Walmart website and found a different package depictured that did say, “May contain traces of milk, eggs and soy.” However, the package she had bought did not say this.
The representative offered Kelly a gift card refund of $1.84 for the rice rusks, but Kelly did not accept the offer.
Kelly monitored her daughter’s allergic reaction, the complaint says, noting that the child did not sleep for two nights, crying and trying to scratch herself.
The complaint claims that the company is responsible for disclosing the presence of allergens, including milk and eggs, in its products, and that this is required under the federal Food Allergen Labeling and Consumer Protection Act of 2004.
The complaint asks for injunctive relief and the requirement that the packaging disclose the contents of the product. It claims violations of New York’s General Business Law, its Agriculture and Markets Law, and strict liability, among other things.