Earlier this week a mini food scandal erupted under the following headline: "Double Stuf Oreos Don't Actually Have Double The Creme."
The scandalous headline, courtesy The Huffington Post, is the result of the efforts of Dan Anderson, a high school math teacher in upstate New York who had his students weigh three types of Oreo cookies and report their findings.
The students determined that the creme in the Double Stuf Oreos they tested weighed less than twice as much as the creme in regular Oreos they tested.
The story does indeed make for some light summer reading. But it piques my interest because, as a food lawyer who's very often not a fan of lawsuits targeting food companies, I fear the next step might be litigation.
To Anderson's credit, he appears to be little more than surprised by the findings. But Anderson is not a class action attorney.
The prospects of an Oreo lawsuit might have appeared slim were it not for a series of lawsuits that were launched just this year against the sandwich chain Subway. In those cases, now consolidated in federal court, several plaintiffs sued Subway over claims the chain's "footlong" sub is not a full 12 inches long. The plaintiffs allege, in fact, that Subway subs "are anywhere between 5 and 8.3 percent short."
That may seem like hairsplitting—especially given the fact that dictionaries define the word "footlong" not as "exactly 12.00 inches" but, rather, as "approximately one foot in length."
But consider that Anderson's students determined that the filling in a Double Stuf Oreo weighs only 1.86 times more than does the filling in a regular Oreo. That means the creme in a Double Stuf Oreo is 7 percent lighter than two times the creme in a regular Oreo. That places Double Stuf Oreos in the same range as the Subway sub that's the subject of a lawsuit because it's "between 5 and 8.3 percent short" of a foot long.
"The case is about holding companies to deliver what they've promised," said New Jersey attorney Stephen DeNittis, who filed the first lawsuit against Subway, in remarks I suspect would sound dramatically similar to comments an attorney might make in announcing a lawsuit against Oreos.
Others see the possibility of a lawsuit.
"I'm not sure a class action on this would be a whole lot sillier than the actual class actions that have been filed claiming that the Subway 'footlong' sandwich was only 11 inches," says Walter Olson of the Cato Institute and the great legal blog Overlawyered—whose readers also fear a lawsuit—in an email to me.
Jeff Stier, a lawyer and senior fellow with the National Center for Public Policy Research who would oppose any lawsuit against Nabisco, agreed nevertheless to play devil's advocate for me and explain in legal terms how a plaintiff might justify suing Oreos.
"Regarding the Double Stuf, a reasonable consumer would in fact justifiably believe that there was double the stuff in there," Stier said in an email to me.