Judge Trims Wrongful Death Suit Claims Over Spicy Chip Challenge

A federal judge in Massachusetts has dismissed claims against Walgreens but allowed some claims against the The Hershey Co. and its affiliate food manufacturers Paqui and Amplify Snack Brands, Inc. to proceed in a wrongful death lawsuit brought by the mother of a teen who died after eating a very spicy tortilla chip.

Harris Wolobah, 14, died in September 2023 after eating a Paqui chip containing high levels of capsaicin, the chemical compound found in chili peppers that makes them hot. Capsaicin can cause mouth, throat, stomach and intestinal pain, shortness of breath, chest pain, heart palpitations, nausea and vomiting, and heart attacks or strokes.

The Paqui chip was promoted by the manufacturers in a “One Chip Challenge” (OCC) social media campaign that went viral by daring participants to eat the chip and then see how long they could tolerate the heat and go without other food or water. Online videos of participants in the challenge show people begin crying, turning red, choking, vomiting, fainting, and needing to drink water or milk.

The chip was packaged inside of a box resembling a coffin. A warning label on the back advised that the product should be kept out of reach of children and was intended for adult consumption, and the label cautioned people not to eat it if they are sensitive to spicy foods, allergic to peppers, night shades or capsaicin, or are pregnant or have any medical conditions. It also advised people to seek medical assistance should they experience difficulty breathing, fainting or extended nausea.

According to court records, between 2021-2022, prior to the lawsuit, there were approximately 40 minors who were hospitalized due to negative physical reactions to the OCC chip throughout the country.

Wolobah did not purchase the chip. A schoolmate who bought it at a Walgreens in Worcester, Massachusetts shared the chip with him and other classmates.

The lawsuit cites various theories of negligence and product liability in its claims that the companies manufactured and Walgreens sold an “unreasonably dangerous” product and used social media to target children, leading to the teenager’s death.

U.S. District Judge Margaret R. Guzman dismissed a number of claims but ruled that design defect and breach of an implied warranty of merchantability claims against Hershey, Paqui, and Amplify Snack Brands could proceed.

The court found that under Massachusetts law, the manufacturers owed a duty to the deceased even though he was not the purchaser of the product. Under Massachusetts law, a manufacturer’s duty extends to even remote users who are affected by its products; direct purchase or privity is not required. The court allowed the claim of design defect to proceed on this basis but dismissed claims related to failure to warn.

However, the court let Walgreens off the hook. The court noted that Walgreens did not design or manufacture the chip but only acted as the final seller to the classmate who shared the chip. The judge said the facts alleged fail to demonstrate that Walgreens knew or should have known that the chip was a dangerous product. In Massachusetts, “a seller of a product manufactured by another party is not liable in an action for negligence, unless it knew or had reason to know of the dangerous condition that caused the accident.” The court found that since Walgreens was not under a legal duty to prevent the purchase by the classmate, neither did Walgreens have a duty to the deceased.

Wolobah ingested the portion of one chip, aware of the OCC and the social media trend. Shortly afterward, the teen began sweating and tearing, then he fainted in class. After regaining consciousness, he complained of stomach pain and exhibited confusion. Later that afternoon he lost consciousness again and suffered respiratory distress. He died at the hospital that same evening from cardiopulmonary arrest.