On September 1,  2023, 14-year-old Harris Wolobah ate an unreasonably spicy tortilla chip as part of the social media “One Chip Challenge.” He complained to his mother that he was experiencing searing stomach pain long after ingesting the chip. His mother brought him to the hospital and he died later in his home.

The chip company issued a voluntary recall following the death.

While the autopsy has not been completed yet, the Wolobah family blames the one chip challenge for their son’s death.

The One Chip Challenge is marketed by Paqui, a subsidiary of Hershey’s. The chip is 6 grams and contains two of the worlds hottest peppers – the Naga Viper, and the Carolina Reaper. The product debuted in 2016 and exploded over social media – particularly TikTok, an app that hosts a majority teenage user base.

The chip comes in a single package containing various marketing materials and a warning.

The 2023 package challenges consumers to eat the chip in one go, further encouraging them to wait as long as possible before drinking water and to post their reactions on social media (TikTok having the largest One Chip presence with hashtags used over 100 million times).

There is a picture of the grim reaper on the inside of the packaging asking the consumer if they have “any last words,” and other icons that promise “senses recoil,” “hypnosis,” and “abdomen attack.” – stomach aches were a common ailment users were hospitalized for.

It also comes with a banner questioning “how long can you go until spiraling out of control?”

The package ups the pressure by claiming “1 minute” without water is harmless, and only after 1 hour of enduring its intense heat are you decidedly an “Apex Predator.” Studies show that teens are a high risk demographic for caving to peer pressure.

On the flip side of the banner is a memento acknowledging that you “slayed” the challenge – a teenage colloquialism used on social media to signify triumph.

Although Paqui says the chip was intended for adults, all of its branding and marketing was marketed towards teens.

On the back of the coffin shaped package, there is a blood red warning label written with tattered impact font and cartoony warning stripes. The warning advises consumers that the product is intended for adults. It’s accompanied alongside red, demonic looking pepper cartoons.

Given the inherent challenge of the product (it’s in the name), and the accompanying scooby-doo influenced monster theme, it’s hard to tell what warning you should take seriously. Especially when you have the grim reaper asking you “any last words” on the back.

How the chip started

Doug Lyon, founder of the Paqui brand, got the idea for the chip after meeting Ed Currie, a famous pepperhead known for breeding the two hottest peppers in the world – Carolina Reaper and Pepper X.

The two peppers that Currie bred are new to “natural” food realms because they have been genetically engineered since 2013 to contain extraordinarily high levels of Capsaicin (the chemical that makes food spicy.) Other products, such as bear mace, use capsaicin as an active ingredient to ward off 600lb bears. Standard pepper spray ranks 1 million on the scoville scale while bear mace is an astounding 3 million.

Lyon had the idea to take pepper spray levels of capsaicin heat and introduce them into a concentrated, single food product. In a 2016 Forbes article, Currie recalled the first time that Lyon interacted with the Carolina Reaper: “Lyon wet his fingers in the powdered peppers, got incapacitated for a moment, and decided that it’d make the perfect ingredient for what would eventually become, the world’s spiciest chip.” Currie also recalled that while developing the first One Chip Challenge, the team at Paqui “brought out gas masks when handling the peppers.”

was it dangerous?

So the chip is obviously extremely spicy, but does it pose an unreasonable risk to the consumer market?

To that I’d say given what Hershey’s knew from 2020 to 2023, the chip did pose a known risk to the public.

In the years leading up to the 2023 One Chip Challenge, hospitalizations nationwide were increasing and schools and city boards routinely issued warnings to parents.

In 2020, doctors were issuing warnings about the chip after a 15-year old lost consciousness and had a seizure. Convulsions from high capsaicin conentrates have been seen in rats, and can cause also cause complications in the brain. Furthermore, complications involving the exact same peppers used in this product (Carolina Reaper) have been shown to long lasting migraines that require hospitalization.

In 2021, when Paqui dared to “raise the bar once again” by making the chip even hotter than its predecessors, schools across the country started banning the chip.

The 2022 chip used the Scorpion pepper, which was replaced by the Napa Viper in 2023 to make the chip EVEN hotter despite nationwide concerns and hospitalizations.

I spoke with the president of another top hot sauce company (who wished to remain nameless) and he said:

“It’s stupid, it’s irresponsible. Do people look really happy when they’re shot by mace, imagine bear mace, that’s the kind of level going into capsaicin going into these products. Who would want to eat that? That’s to repel a wild animal that’s trying to kill you. I wouldn’t be a part of a company like that.”

Legal Implications

Nobody has sued Paqui or Hershey’s yet… but the family should.

In my view, there’s a compelling enough case to make the argument that Hershey’s was reckless in the ideation and distribution of this product.

Even if the lawsuit lost, it’s still an opportunity for the family to use the media attention as a national platform to voice their concern over food safety advocacy (which by the way goes way deeper than just spicy chips.)

Overview of FDA rules

There’s a lot of confusion over how food and food additives are regulated. FDA, through federal statutory law, requires that all food and all additives be “Generally Recognized As Safe” (GRAS) for their “intended use”.

Both those terms are important because GRAS is a legal standard which basically means that if you were to ask the average expert in food about a particular product they’d say “yeah, that’s safe.” Like water for example.

Most foods and additives have already been shown to be GRAS, as described below. Capsaicin is an additive that has been used in food products and so have Carolina Reapers and Naga Vipers (the peppers used in the One Chip Challenge. Capsaicin has been deemed GRAS at various levels by the Flavor Extract Manufacturers Association (FEMA), which is the most notable industry recognized organization that tests whether food is GRAS or not based on expert board evaluations.

That’s not the only way to determine a food as GRAS. Companies can do it internally with their own expert panels.

And a food company’s panel can say here’s our GRAS evaluation. If a company accepts that, then it’s OK.

Another option is FEMA. A lot of flavor manufacturers don’t have the budget for the GRAS system, so they’ll submit it to FEMA and if enough companies are interested, FEMA will send it to their internal GRAS panel. Then you’ve got at least a step up from doing it internally, it’s a body that has recognition among the industry so that might give people a little more comfort using a FEMA GRAS determination instead of another company’s.

That’s about as far as I can take you there, I don’t know anything more about FDA food labeling laws besides a general overview so I asked a lawyer (who did not want to be named) at one of the country’s top FDA compliance firms.

Here’s what he said:

What do you think about the one chip challenge and potential liability?

One chip – a single chip, takes a conscious effort to divorce themselves and look at it as a concept of a novel product. The way they presented it as one chip, adult only type label on it. The idea is they’re only going to eat one, they’re going to know it’s incredibly hot. The individuals who are going to consume it are already prepared. You could say well it’s not safe if you had chips like that hot in a giant bag and the serving size was several chips I’d say that’s not a great idea. But the presentation and the warnings you could argue balance out the hazard.

A single package, where we warn against children consuming I can see someone saying “you’ve thought about the risks and took appropriate steps.” How likely was a fatality? That would be a question to be determined.

Either way…It probably would’ve been warranted to have a competent FDA attorney review.

What about the argument that the chip was targeted toward children, that there were hospitalizations nationwide, etc?

You pretty much called it – I mean they were definitely taking risk with that. And a competent FDA attorney would advise them of these risks and if they wanted to move forward on it – you can only advise them.

This is the funny thing – if you’ve got a product out there that’s hazardous, you can be sued to anyone who’s been injured by it. If the product has a label claim, you have to worry about everyone who read it and buys it. Your liability for a product that’s actually hazardous is potentially less than the risk of having a claim that you can’t substantiate. If it said 400% vitamin A and had non, they’d lose more money on that than the 400 people that had to go to the ER.

If everyone was having these chips and only 400 people had reported incidents, if you sold a million chips and 400 went to the hospital? I dunno… The problem is, this stuff is common it just happens… you have to understand there’s always going to be these problems. If it’s a food safety hazard where everyone is at risk of being sick… If a lot of people are eating it and not having these types of effects you can take comfort in the fact its not that high. If we compared it to other food products we market, the complaint amount of other products is less.

I would wager they did some analysis.

They issued a voluntary recall, can you talk about that?

Most recalls, almost all are voluntary, I mean it might involve FDA calling the company and saying hey we have questions  or concerns and company will stop selling it. Or FDA might say well what about the products already on the shelves, they’ll say we’ll recall them. Most of the time you work collaboratively with FDA.

The majority of recalls don’t have to go through FDA, you tell FDA to avoid action against you. It’s strict liability statute. Whether you intended to hurt people or not, they can punish you for violating FDCA

With recalls, once you decide to pull it off the shelf it’s a question for FDA, did they do enough that it makes it difficult for us to do something to the company? There are certain situations where FDA has pursued à the peanut corporation of America where they were contaminated. They pursued criminal action against him.

Do you think the FDA can/should do more about food products?

Candidly I think FDA could be a lot more aggressive. I think it’s forgotten how to regulate. There have been a number of situations where I’ve counseled clients thinking FDA was going to drop the hammer on certain issues but they only take half-measures. If there was a stricter regulatory body, you’d have less incidents of problems. When you see an egregious case and you bring it, there are few times when things turned out right.