Spooky season is upon us, but what do you do when you get the kind of jump scare you do not want? On October 4th, Walmart shopper Veronica allegedly experienced exactly that when she opened a package of Reese’s cups to find that mealworms and maggots had breached the batch. In the PSA video that Veronica posted to TikTok, she opened several Reese’s Cups on camera, demonstrating that she didn’t plant the worms herself. Comments on the video pose several questions: could it be last year’s leftover candy? Could there have been a packaging defect? The latter, of course, leads to the inevitable question: is this a Walmart problem, a Hershey problem, or will this become a mass consumer problem?
Calls for a product defect recall against Reese’s Peanut Butter Cups circulated the internet for the first time in 2014, when two men posted a video on Twitter alleging similar circumstances as Veronica’s. The same year, Fact-Checker David Mikkelson pointed out the indeterminable veracity of the video. Global insect-eating enthusiasts, on the other hand, find no problem mixing a little protein with their candy. In Bon Appetite magazine’s 2014 publication, Larry Peterman discloses not only that his company, Hotlix, creates exclusively insect-filled candies, but also that the Food and Drug Administration told him that he doesn’t have to clip the stingers off scorpions before adding them to lollipops! This, however, does not distract from the reality that in the average consumer’s preferred candy-to-insect ratio, there is such a thing as much too much, and the FDA is inclined to agree.
The FDA’s stance on insect contamination in food is that in order to be permissible, it must also be “natural or unavoidable.” The natural and unavoidable ratio of insect-to-chocolate is on average sixty or more fragments to 100 grams of chocolate, introduced or unfiltered during the processing stage of production. That’s more than a hundred bug fragments in every Hershey’s Candy Bar—and that’s before it even hits the shelves. Yet, these candy bars are still considered safe for consumption. Meanwhile, Trader Joe’s has pulled almond cookies and broccoli cheddar soup off the shelves due to insect contamination possibly too high for even the apparently insect-loving FDA. Most consumers are also unsurprised to find wasp heads in figs, as they play an essential role in pollination. So, could the line between “too much” and “much too much” be drawn depending on expectations? And what do consumers do when confronted with creepy-crawly tricks in their Halloween treats this October 31st?
Products liability may have an answer. The Civil Jury Instructions for products liability offer a consumer expectations test, which states that in order to prove a product is defective—or, in this case, too defective to eat—”a plaintiff must prove that the product failed to perform as safely as an ordinary user or consumer of the product would expect when used in an intended or reasonably foreseeable manner, including reasonably foreseeable misuse.” Thus, companies like Walmart and Hershey may not be liable if candy is improperly stored, is beyond its expiration, or contains maggots. In a case arising from Texas, plaintiff Peables Fowls experienced a shock upon finding maggots in the Almond Joy she purchased and popped into her mouth while sitting in the Walmart parking lot. Not only did she launch herself from the truck, but she also left it in reverse and nearly lost her car to oncoming traffic. Upon review of Ms. Fowls’ tort case, The District Court found that a vendor has no duty to inspect or test a product manufactured by another for latent defects like maggots or mealworms. On a wider scope, companies may conduct food recalls voluntarily or the FDA may request a recall. So, between FDA regulations, company candidness, and products liability, the message to candy consumers this Halloween seems be: if you don’t want to risk getting tricked, the safest bet is to avoid the treat.