The Poison of the Pepper
As my colleague, Dr. Josh, predicted, the first line of defense in these cases are the lawyers. The lawsuit, brought by Lois Lama Wolobah, the mother of the deceased 14-year-old, names not only Pacqui but its parent-manufacturer, Hershey; Walgreens, where the product was purchased; the store manager and the clerk who made the sale. The action claims negligence, gross negligence, recklessness, and breaches of various warranties of merchantability, which include product liability assertions that the chip was unreasonably dangerous and defective, as well as unsafe for the ordinary and foreseeable use for which it was intended. While the complaint also alleges negligent failure to warn – warnings galore are plastered on the package. Whether they are effective and, therefore, valid is another question. Indeed, the warning clearly notes the product is not intended for consumption by children.
So, how did this travesty happen?
Portrait of a Pacqui-Eater
One spring-like late summer day in a Massachusetts suburb, a schoolmate of Harris Wollobah visited the local Walgreens in Worcester, Mass. There, he spied the product associated with the advertising spiel for the 2023 “One-Chip Challenge.” In allegedly easy reach of the young teen was an arguably seductive display of the chips, packaged inside a small coffin-like box, picture-branded with a skull and fanged snake and a cartoonish “Grim Reaper .”The label dared the consumer to “Face the Reaper. Any Last Words?” alongside “One Chip Challenge.” It also contained cautionary language, including “intended for adult consumption,” “do not eat if you are sensitive to spicy foods… or have any medical conditions.” Reportedly, Harris’ buddy was charged $10.00 for the chips. Allegedly, no request was made by the check-out clerk for age verification. The next day, the buddy brought the chip to school, where Harris ate them. It does not appear he ever saw the warnings.
Shortly after that, Harris collapsed. He was brought to the nurses’ office and then sent home. He died not long afterward.
Cause of Death: You Don’t Get to Pick Your Plaintiffs
According to the medical examiner, the cause of death is listed as “Cardiopulmonary arrest in the setting of recent ingestion of food substance with high capsaicin concentration in a person with cardiomegaly and myocardial bridging of the left anterior descending coronary artery.”
Allegedly, the Pacqui Chip contained Carolina Reaper Pepper and Naga Viper Pepper, two of the hottest peppers in the world - a thousandfold hotter than a Jalapeno. The active ingredient of these peppers is capsaicin, a compound described as more irritating than mace.
It is anticipated the defendants will claim that the boy’s congenital heart defect and enlarged heart caused his death, not the chips. It would also appear that capsaicin, a known toxin in high enough doses, aggravated a previously existing heart condition. That Harris did not have a “normal” heart will not shield the defendants. “One takes the plaintiff as one finds them,” goes the oft-touted legal mantra, lovingly titled by lawyers as the “eggshell plaintiff doctrine.” (If you negligently knock over a pedestrian and the only reason they die is because they have an eggshell cranium, that’s just too bad on you – you don’t get to pick your plaintiffs).
The Dangers of the Come-On
According to the complaint, the One Chip Challenge, promoted on Tik/Tok and other social media sites, invites consumers to film their eating experience – daring the consumer to test their capacian capacity by refraining from consuming food or drink after chip-eating, preventing the body’s natural response to eating hot chili pepper. This challenge set off a “viral” chain reaction, even among children who are not supposed to consume the product.
Not surprisingly, kids do get the stuff. Since 2021, dozens of children have been hospitalized after consuming a “One Chip Challenge” Chip. Some may not have even known they had “medical conditions.”
In seeking damages for pain and suffering, wrongful death, and the mother’s loss of companionship, no specific amount is asked – leaving the door wide open. Additionally, punitive damages, which need bear no relation to the harm sustained, are demanded. As we’ve seen in medical malpractice and toxic tort contexts, these can range upwards of hundreds of millions and have some deterrent effect on future manufacturing decisions.
Products Liability Law
Liability under product liability law is in a state of flux. Some states hold manufacturers (and anyone in the distributive chain) liable for the design or manufacture of a product deemed defective or unreasonably dangerous; some use a risk-utility analysis, others use a determinant of whether a reasonably acceptable designs (RAD) alternative exists.
What makes this case unique and not standard product liability fare is the marketing strategy, which incorporates an SM (social media) element (which also might be called sadomasochistic). The publicity come-on (the chance to be filmed as you subject yourself to this torture, thereby inviting the accolades of one’s peers), the dare component, titillating dopamine production, and the entertainment value of the challenge goes beyond standard food production, taking the elements of liability outside traditional confines.
Under any acceptable product liability analysis rubric, the Pacqui-chip fails as a foodstuff. It has no social utility and is neither nutritional nor a delicious treat; its potential for harm is enormous. Unless the product is kept behind locked counters, sold only on showing of valid age (like tobacco, alcohol, or cold medicines), the danger of getting into the hands of the young or even into the mouths of the older who have not seen product warnings, is too great (and easily foreseeable) to justify production.
However, the product has an allure or value, which lies in its entertainment component and the -addictive element furnished by a social media challenge. A ready-made addiction stoker is a keen motivator for manufacturers. This feature also confounds governmental decisions to ban it entirely.
Regulatory Jurisdiction
While the FDA has jurisdiction over most foodstuffs, the entertainment value of the product defies this singularized categorization. Here is a product that is both a foodstuff and entertainment device/product when coupled with the social-media-fostered consumption Challenge. Since, at least for now, regulation of social media content is verboten, regulation of products associated with social media consumption needs careful consideration, and maybe two agencies need to be involved.
While its manufacturer removed Pacqui chips shortly after Harris died and discontinued the One Chip Challenge, future regulatory jurisdiction of such mixed-use products has not been re-examined. It’s time it should be. Meanwhile, the lawyers act as private attorneys general, regulating the use of these dangerous consumables via litigation and high-damage awards.
