Warning: Your Calories May Vary

Jacob Sullum | June 13, 2008

It's not often I get to praise class action lawsuits and simultanesously agree with litigation enthusiast John "Sue the Bastards" Banzhaf, so I guess I should seize this opportunity. Seattle attorney Daniel Johnson has filed a lawsuit against the Applebee's restaurant chain for misrepresenting the fat and calorie content of its dishes. The lead plaintiff is a Washington woman who was dismayed to find that the items on the chain's Weight Watchers menu were a lot more fattening than Applebee's claimed. Johnson also has filed a would-be class action against Chili's, On the Border, and Romano's Macaroni Grill, saying those chains are guilty of similar misrepresentations.

These suits follow, and seem to have been prompted by, an investigation by Scripps Television Stations that found a wide divergence between nutritional information advertised by these chains and the results of independent laboratory analyses. The Cajun Lime Tilapia, Steak and Portobello, and Garlic Herb Chicken at Applebee's, for instance, had twice the advertised fat, while the Macaroni Grill's Pollo Margo Skinny Chicken had twice the advertised calories. As Katherine Mangu-Ward suggested last month, this sort of thing is not just a bad business practice but a form of fraud: selling something under false pretenses, knowing that the buyer is counting on certain features of a product and either deliberately lying about them or not caring enough to make sure the information is accurate. In a case like this, where the injury to any particular consumer is neither negligible nor serious enough to make an individual lawsuit worthwhile, a class action is an appropriate remedy. Johnson stands to gain much more from this lawsuit than any of the class members, but that is his reward for performing a genuine public service: encouraging restaurant chains to be more honest by creating negative publicity and forcing them to pay the cost of defending or settling the case.

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|6.13.08 @ 1:34PM|#

Or the chain restaurants could just label the items "heart healthy" and not bother printing the supposed Calorie or fat content.

Except in NYC of course.

Naga Sadow|6.13.08 @ 1:34PM|#

Hmmmm . . . I'm torn between my hatred for lawyers and my hatred for Chili's. Conundrum . . .

Naga Sadow|6.13.08 @ 1:36PM|#

Caveat emptor, I suppose.

|6.13.08 @ 1:38PM|#

This could be a case of deliberate misrepresentation by the restaurant chains, or it could be a case of line cooks not following the recipe -- for whatever reason. It's also possible that many customers were simply unhappy with the low-calorie dishes as prepared to spec and that local managers, faced with repeatedly writing off losses instructed the line cooks to bump up the flavor.

What's really needed here is the Radley Balko approach -- actually interviewing people and getting to the bottom of the issue.

We clearly see a failure here in private companies operating in the "free market", as you call it, to provide advertised goods and services to the public. Obviously we need the government to step in and make sure this type of abuse of people by the corporations does not continue.

You libertarians are always talking about how the "free market" will provide good results, but then how do you explain stuff like this? Huh? HUH!?

M\'|6.13.08 @ 1:40PM|#

Do they have to mention anything about food being processed with machinery that was also used to process food containing peanuts?

|6.13.08 @ 1:42PM|#

It's 1:40 EDT. It's OK to drink, right?

Regis Carnifex|6.13.08 @ 1:46PM|#

Naga Sadow,

More like:

Caveat vendor: ne pedica emptores.

M\'|6.13.08 @ 1:48PM|#

Since the market seem to be viewed in some way as the 4th branch of government, why should there be no check and balance on it? The free markets will provide good results - for someone - but not nescessarily for who you think since the whole thing rests on the assumption that what's good for those holding the means of production will also act accordingly to the good of those that don't.

|6.13.08 @ 1:48PM|#

You libertarians are always talking about how the "free market" will provide good results, but then how do you explain stuff like this? Huh? HUH!?

We never said, cock vein, that the free market will ALWAYS provide good results. We do claim -- with ample evidence -- that the free market is superior to central planning and government intervention into supply, demand and pricing, and is the superior moral economic philosophy.
The free market, as you so obtusely deride, is actually at work here: Fraud, or at least the appearance of it, is remedied. Those who don't engage in fraud enjoy a market advantage over those who do.
Got it, you smarmy stick of fuck?
Christ on a four-wheeler, who let the retards out of the playpen?

|6.13.08 @ 1:49PM|#

This could be a case of deliberate misrepresentation by the restaurant chains, or it could be a case of line cooks not following the recipe

At a DECENT restaurant, it would almost certainly be the line cooks. At Applebee's there is a substantial chance that your food was prepared in a warehouse and came out of a bag. No excuse there.

TallDave|6.13.08 @ 1:51PM|#

Misrepresentation seems very likely.

Classic fraud in the inducement.

Matt Moore|6.13.08 @ 1:52PM|#

Jamie - I'm pretty sure that was satire. The email points to Reinmoose.

Also: Cock vein?

|6.13.08 @ 1:53PM|#

Can I sue Applebee's for leading me to believe that "riblets" might approximate the taste and/or texture of actual ribs? Or, better yet, can I pay for said "riblets" with "dollarlets" that I print from my own computer? I mean, they'll look and feel kind of like real dollars.

Rimfax|6.13.08 @ 1:53PM|#

I also view it as punishment for attempting to pander to the scolds. They'll fuck you for not doing what they say, but they'll fuck you even harder if you try to appease them.

Nonetheless, I agree with Sullum. It is consumer fraud, tailor made for a class action remedy. All part of the market, as adeptly pointed out by the Reinmoose's "Energized Democrat" strawman above.

|6.13.08 @ 1:58PM|#

Dear ED

"Free market" means the absence of force or fraud. The government has a legitimate role in preventing fraud and this is a good example of how it should be done.

Indeed, this is the preferable way do it. This is not the government "stepping in". This is customers taking action using the state as a neutral referee. When the government "Steps in", it is usually at the demand of competitors trying to protect their market share at the expense of consumers.

I know you Demoblicans cling to the delusion that Libertarians are anarchists but you should learn the difference before making belligerent demands.

Also: Cock vein?

Sorry, my insults are largely derived from whatever I'm currently looking at.

Whoops.

|6.13.08 @ 1:59PM|#

Excellent post. I'm in agreement with Jacob here. One caveat, I still believe in the "opt-in" rule for class action. Daniel Johnson shouldn't be allowed to represent clients that haven't authorized him to do so. I for one would be happy to add my name to his list, no share of the settlement necessary.

That's how the free market works. Sellers might misrepresent their products, but when that becomes known the market punishes them, in addition to the legal penalties for fraud.

What's the best thing about eating at Applebees?
It's not Bennigans.

What's the best thing about eating at 99% of restaurants?
They are not Bennigans.

anon|6.13.08 @ 2:00PM|#

I'm pretty suspect of the calorie information presented to me at the local hot dog stand. Oh, that's right, only chain restaurants have to submit this information.

Now who could dare say that this policy is "anti-business"?

Episiarch|6.13.08 @ 2:01PM|#

Sorry, my insults are largely derived from whatever I'm currently looking at.

That literally made me LOL, and I'm at work, shithead. Also, how do you post on the internet while sucking dick?

|6.13.08 @ 2:02PM|#

The free market, as you so obtusely deride, is actually at work here: Fraud, or at least the appearance of it, is remedied.

But not without substantial damages! They probably drove local restaurants out of business - restaurants that have to be more honest to their customers, provide good service, and keep money in the local economy. How long did Applebee's deceive their customers before they got caught? The Bush-cronies will likely either rule in favor of the restaurant or not give a harsh enough penalty! I've never eaten at an Applebee's, but I'm guessing they had to add all the extra fat in order to make their bland food palatable.

Those who don't engage in fraud enjoy a market advantage over those who do.

See, this is what I'm talking about. You have so much faith in the "free market," you just loooooooooove it so much. In this case, those who engaged in fraud stole business from those who did not, so no - they are the ones with the advantage in the "free market."

M\'|6.13.08 @ 2:03PM|#

What's the best thing about eating at Applebees?

No salad bar...?

|6.13.08 @ 2:03PM|#

Fraud seems clear in this case, but c'mon, you should know not to eat at shitty sprawl-chain restaurants if you don't want to be a fatass like the rest of the fatasses eating there.

Episiarch|6.13.08 @ 2:04PM|#

Everyone is missing the point here. People who would eat at Applebee's are so dumb they probably can't read, so how could they can't read mislead them?

|6.13.08 @ 2:04PM|#

Also, how do you post on the internet while sucking dick?

Bwat aw voo thalking abouth?

how could what they can't read

Episiarch|6.13.08 @ 2:05PM|#

Bwat aw voo thalking abouth?

Now you're giving a handjob? You are a dirty, dirty whore.

|6.13.08 @ 2:06PM|#

ED,
You stink like Democratic shit, but I know you're wearing a libertarian thong.
Nice try, though!

|6.13.08 @ 2:09PM|#

I've been outted by my own email handle - that and the fact that I've used this name before. I always try to leave some sort of transparency

|6.13.08 @ 2:11PM|#

How did I do? I never even got to the part where Applebees is in suburbia! There was so much more ridiculous restaurant/market hatred to go around!

|6.13.08 @ 2:16PM|#

We have come a long way, with a libertarian magazine endorsing the class action lawsuit. I can't wait to see how far we progress with speech codes in the coming decade!

H. L.|6.13.08 @ 2:22PM|#

my hatred for lawyers and my hatred for Chili's.

OTOH, baby backed lawyers are delicious.

Kolohe|6.13.08 @ 2:27PM|#

We have come a long way, with a libertarian magazine endorsing the class action lawsuit. I can't wait to see how far we progress with speech codes in the coming decade!

May be falling for a troll myself, but you gotta make a choice. either
1) regulatory apparatus where the state controls harm mitigation.
2) civil actions to compensate for harm.
3) shooting each other when people cause harm.

robc|6.13.08 @ 2:35PM|#

One caveat, I still believe in the "opt-in" rule for class action.

Ditto. Been pushing that for years.

robc|6.13.08 @ 2:40PM|#

One question for the lawyer types out there. Lets say Lawyer A wins a class action lawsuit and Im part of the class. Ive never been contacted or anything and now they are sending me a check for my bit. Can I sue the lawyer and request the full amount of my winnings without his cut taken out since I never contracted with him to be my lawyer?

Well, not "can I do it", but do I have any legal backing?

|6.13.08 @ 2:47PM|#

Just curious how they're going to get any of the settlement (even a coupon) to the class memebers. I suppose they can track down customers from credit card receipts, but (since the only possible victims are those who ordered off the Weight Watcher menu), can they really figure out who ordered what, years after the fact?

And nobody's referenced

PR|6.13.08 @ 2:49PM|#

robc,
there won't be a check for you. just a coupon for half off an entree with the purchase of another entree at full price*

*entree contains between 1 and 10,000 calories.

|6.13.08 @ 2:53PM|#

Well, not "can I do it", but do I have any legal backing?

No, the award is made via an order of the court also specifying the ~~parasite's~~ attorney's fees.

|6.13.08 @ 2:55PM|#

Sorry, posted too quick. Nobody referenced this first? Am I getting old?

robc|6.13.08 @ 3:00PM|#

RC Dean,

Okay thats what I figured. I still support changing class action lawsuits to opt-in.

|6.13.08 @ 3:03PM|#

I agree that the class action suit is on firm ground. However, I think the notion that restaurants, even if they are chains, can accurately present calorie contents of plated means. McDonald's can do this because the ingredient contents are strictly controlled. I know that chain restaurants also dictate content to an extend, but I imagine that the variability is much higher because of the differences in the way individuals cooks may prepare items (even if they are trained to do things in a very specific manner).

Anyhow, if you're going to advertise low calorie dishes, then it's clearly fraud if you can't back that up. Even if you were pressured into doing this advertising in the first place.

|6.13.08 @ 3:19PM|#

Anyone consider that the restaurants used a different testing firm than the ambulance chaser? Different testing methods can result in different conclusions. This isn't hard physics, it's chicken and pasta and cilantro and other squishy stuff.

|6.13.08 @ 3:23PM|#

The class action suits have no merit, because the restaurants almost always place a dislaimer on the bottom saying "these values were calculated based on standard portion size with an idealized recipe. Actual values may differ based on the particular recipe or portion size in the particular store, etc. etc. "

|6.13.08 @ 3:35PM|#

"Actual values may differ" should be by a few percent, not double or triple. That disclaimer won't protect them from the apparent gross discrepancies.

|6.13.08 @ 3:38PM|#

Disclaimers might cover, say, 10 or 20 calories one way or the other. Not "as much as twice the calories and eight times the grams of fat." For the same reason, I don't think "different testing firm" is going to cut it, either. Seems like pretty clear fraud to me.

Sam Grove|6.13.08 @ 4:01PM|#

Can we sue CSPI for slandering Olestra off the market?

Rhywun|6.13.08 @ 4:11PM|#

Applebees is in suburbia

And Times Square. Oh, right.

|6.13.08 @ 4:33PM|#

I wonder how much variability there is between different sites. It would certainly strengthen the case if they are all within 5% of twice the stated amount, versus ranging between 20-100% more than the stated amount.
I can very easily see a cook grabbing the full fat sauce versus the tasteless sauce in order to bring some life into the dish. To what degree the national organization should be expected to police its franchises for such things, I have no idea.
I would find it hard to believe that the national organization is sending out microwave bags that are already that much out of whack. What is their incentive? 'Lets give them more than what they asked for'?

|6.13.08 @ 4:55PM|#

I like the way Applebee's has handled this.
I can think I'm eating healthy based on the bogus fat/calorie stats, but I'm actually getting something bigger and tastier. It's a win/win.
Pull the wool over your own eyes.

The Wine Commonsewer|6.13.08 @ 5:08PM|#

Can I sue Applebee's for leading me to believe that "riblets" might approximate the taste and/or texture of actual ribs?

What the hell are those things, anyway?

I have only eaten at Applebees a couple of times. The last time was out of desperation but the steak I had was actually good. I was stunned. The Boy's riblets? Not so much. Mrs TWC's shrimp? Right out of a freezer bag somebody picked up at Sams Club. The House Blond had something decent, but I don't recall.

The Wine Commonsewer|6.13.08 @ 5:15PM|#

I doubt if this is fraud. It is more likely to be careless cooking. In the lab, under perfect conditions, Applebees created what they claim they're serving.

It's like looking at the picture of the perfect Mickie Dees Big Mac in the TV ad and then comparing that to the slopped together shit dripping with secret sauce and sopping wet pureed lettuce that you actually are served (the extra sauce that turned your bun into mush is responsible for a 20% bump in calories from what McDonalds claims, btw).

I'm not saying Applebees is right, but anybody who is paying attention would realize that eating coffee shop food isn't likely to be all that low fat or low cal, regardless of what the menu says.

|6.13.08 @ 5:43PM|#

If Scripps Howard can randomly sample Applebees food and test it, Applebees HQ can do the same. It's called quality control. I'm calling BS on the claim that the national chain had no way of finding this out.

Also, the corporation is responsible for what the line cooks are doing. I mean, if a restaurant was getting people sick from E. coli due to unsanitary practices by the cooks, you can bet the national corporation would be held responsible for not catching that. I don't see why they should get off of this type of thing either.

|6.13.08 @ 6:10PM|#

Chris,
I am not sure if you were referring to me, but I wasn't saying they couldn't do it.

I looked up this site where the bottom line seems to be:

A franchiser's potential for vicarious liability for the acts of its franchisees is wholly dependent on the level of control it has of exercises over its franchisees.

So without knowing the particulars of the franchise agreement, we can't say what the corporate liability might be. Ironically, the more a corporation tries to keep the franchisees in line, the more liable they are. On one level, I think that makes sense that if they are essentially agreeing with certain practices, that introduces liability. But, what if the franchisee is able to pass inspection while dishing out sub-standard goods other times? In that case the franchiser was acting in good faith, but has their liability increased.

Famous Mortimer|6.13.08 @ 6:20PM|#

I've always been an advocate of the very basic, calories in/calories out philosophy of weight loss that most people seem incapable of grasping, or accepting. Apparently, people would rather try and wipe out entire food groups in order to induce weight loss, and make any long term effort hat much more unlikely.

However, do we really need that accurate of a calorie count for people to be able to make intelligent decisions about their overall calorie intake?

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