Food Labeling

10 Ridiculous Recent Food-Marketing Lawsuits

And why these class-action endeavors are on the rise. (Hint: it's not consumer protection.)

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Everett Collection/Newscom

Class-action lawsuits over food marketing practices have skyrocketed in the past decade, from around 20 at the federal level in 2008 to 118 such suits filed in 2015 and 171 last year. The single most frequent complaint relates to foodmakers' use of terms like natural or nothing artificial, with suits challenging extra space in product packaging also common, according to a new report the Institute for Legal Reform (ILR). Yet far from signaling a wave of action in the consumer interest, these suits are often a sort of legal spam, mass-filed by attorneys and firms that specialize in the practice and collect significant fees for their work while plaintiffs might make out with a few product vouchers. And not only do they deal in frivolous issues far-removed from consumer safety or justice, they also threaten to drive up product prices and drive small companies out of business.

According to ILR, a nonprofit research affiliate of the U.S. Chamber of Commerce, this "surge" of class action food-marketing litigation is largely driven by "a small cadre of class action lawyers" and a small number of U.S. law firms. "There are now hundreds of active food class actions in the federal courts and more in state courts," states ILR's new report, The Food Court: Trends in Food and Beverage Class Action Litigation. "A few are so laughable that courts have quickly thrown them out. Some are withdrawn or dismissed, typically as a result of a private settlement." But "many more are litigated for years," culminating in "multi-million dollar settlements that line the pockets of lawyers, but provide little or no benefit to consumers."

Why no benefit to consumers? In part, it's beause many cases are ultimately settled out of court, leading to a payout for individual plaintiffs and their lawyers but no change to the allegedly underlying issues. Meanwhile, the price-tag to litigate and settle these cases can be huge for U.S. businesses, and get passed on to all consumers via higher product prices. And at the same time, the consumer "protections" at the heart of many food-marketing lawsuits are the sort most shoppers are likely to find silly, based more on technicalities and theoretical-confusion than any actual consumer objections or corporate intent to mislead.

Want an example? According to ILR's research, 50 class-action suits were filed in 2016 over Parmesan-cheese bottles labeled "100% grated Parmesan cheese" that also contain a small amount (2-4 percent) of cellulose, a natural, FDA-approved food-additive that keeps cheese from clumping and is listed on label Ingredient sections. Here are nine more complaints from ILR's catalogue of food-marketing cases gone wild:

  • A lawsuit against small Florida-based cookie company Lenny & Larry's complains that consumers can't really know if their purportedly vegan cookies are actually vegan because they're made in a facility that also processes meat and eggs (which the label notes).
  • One complaint argues that sour cream shouldn't be advertised as natural if it's made with milk that comes from cows who were fed genetically-modified corn or soy
  • A lawsuit against Tito's Handmade Vodka faults the company for advertising its vodka as made in an "old fashioned pot still." While no one disputes that it's made in a pot still rather than the now-more-common column still, the plaintiffs say Tito's pot stills are too modern to qualify as "old fashioned."
  • Fourteen lawsuits allege that bottles of McCormick & Company's ground black pepper are slightly under-filled
  • Sixteen lawsuits fault 5-Hour Energy drinks for not providing a full five hours of energy
  • Two lawsuits allege that Starbucks' cold beverages contain too much ice
  • A suit filed against Krispy Kreme claims the company's raspberry-filled donuts are misleading as they don't contain real raspberries, depriving consumers of a "rich source of Vitamin C, Vitamin K, Potassium, and dietary fiber" and nutrients that "help fight against cancer, heart and circulatory disease, and age-related decline."
  • Nearly-identical lawsuits allege that boxes of Sour Patch Kids watermelon candy, Bit-O-Honey, various fruit snacks, Junior Mints, and waffle mixes are slightly under-filled. Filed by the same law firm, the suits sometimes forgot to swap in or out the right product names.
  • A suit against Naked Juice complaints that the company's fruit- and vegetable juice labels mislead consumers by featuring pictures of fruits and vegetables and the statement "no sugar added" because even though the juice does not contain added sugars, its sugar content is still similar to that found in some soft drinks.

Even complaints that are untrue or lack evidence may prove cheaper for big companies to settle than fight in court, leading to large payouts for lawyers but little in the way of benefits to either the plaintiffs or consumers at large. For instance, in one 2013 case, StarKist was accused of under-filling five-ounce tuna cans and denied the charge but, after two years of litigation, agreed to a $12 million settlement, approved in September 2016. The firm representing the class-action suit was awarded $3.6 million in fee compensation. American consumers who purchased a 5-ounce can of Starkist tuna between February 2009 and October 2014 were eligible for a $1.97 or $4.43-worth of tuna vouchers.

At the federal-court level, the vast majority of these suits are brought in just four states: California (with 36 percent of all such suits), New York (22 percent), Florida (12 percent), and Illinois (7 percent). "Typically, lawyers who bring food class actions draft the complaints first, and only later find a client," according to ILR's research. "It is not uncommon for the named plaintiffs in food class action lawsuits to be family members, employees, or others with close ties to the network of lawyers and law firms that file the complaints." Overall, the copycat complaints and practices ILR uncovered led its researchers to conclude that these lawsuits are primarily "driven by lawyers as a money-making enterprise," and do "not respond to consumer concerns."

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  1. What does it take in California, New York, Florida, and Illinois for the courts to declare someone a vexatious litigant?

    1. What we need is for some ambitious lawyer to gin up a class action lawsuit against the courts and legislators in these states, complaining that there is no loser pays, that there is no easy way to declare someone a vexatious litigator, that they are raising food prices for no good reason.

      I’ll sign on as a plaintiff.

      1. I bet all the food companies harassed this way would jump on board such a suit.

    2. What does it take to file a class action suit against the law firms that are making their money this way on the grounds of the financial harm they do to consumers?

  2. I’m still awaiting my settlement against O’Houlihan’s where it turns out their “bottomless” drink special does in fact have a bottom. And don’t get me started on their “grilled cheese” sandwich where they grill the bread but the cheese never even touches the grill.

    1. How about genuine ersatz Spanish fly?

    2. I’ve got a similar one about bottomless mimosas from being kicked out of a restaurant for not wearing pants.

  3. In libertopia you can sue for whatever you damn well please. Don’t you tell me that we’re going to gut the regulatory state and then do “tort reform” on top of it. I might start thinking you’re unprincipled shills for existing corporate interests.

    1. I don’t see ENB arguing that individuals should be forbidden from suing whomever they wish.

      1. Nope, people should be free to sue, and we should be free to point at and shame them when they bring stupid frivolous lawsuits

        1. Think of it this way, Tony: it’s exactly like how you’re free to post whatever pig-ignorant comments you want, and the rest of us are free to point out that you are morally and mentally an imbecile.

        2. People do an infinite number of dumb things every day. Why focus on this unless it’s part of the tort reform propaganda effort?

          1. People comment an infinite number of things every day? Why does Tony focus on just a few articles and comments?

            Tony is bigoted and biased. A true equality-minded Tony would comment on every article and comment.

          2. Maybe because it’s fun to every once in a while list out some really stupid things that people get away with doing?

  4. A suit filed against Krispy Kreme claims the company’s raspberry-filled donuts are misleading as they don’t contain real raspberries, depriving consumers of a “rich source of Vitamin C, Vitamin K, Potassium, and dietary fiber” and nutrients that “help fight against cancer, heart and circulatory disease, and age-related decline.”

    Yes, because when I think about fighting cancer, I think “Krispy Kreme donuts”.

    1. the last line is hilarious. I understand some lawsuits over sketchy terms but common….its fucking common sense its probably fake. I could agree with the suit if they claimed real raspberry flavor and it was not even raspberries…that would at least be a real lie to deceive. But that lawsuit is as ridiculous as suing McDonalds over cheap cups that break and spill coffee on you….actually it is even worse :/

    2. I guess that tequila with lime is health liquor.

      1. +1 scurvy-fighting portion

  5. Loser pays would stop this shit in its tracks.

  6. the plaintiffs say Tito’s pot stills are too modern to qualify as “old fashioned.”

    What a quaint lawsuit! Dismissed.

    *** pounds gavel ***

    1. yea that’s ridiculous.

      1. If i made an old fashion bread in an oven with gas instead of wood am i liable? Fuck i hate people.

        I get if i claimed it was baked in a wood fire stove but used gas but fuck judges need to slap this garbage down.

        I dont get why judges pass joke suits against corps and people but real claims again the government get thrown out….staters going to state?

        1. Bread should be flat and cooked on a hot stone over an open fire like our ancient ancestors did. Anything more modern and it’s not old-fashioned.

    2. Hell they ain’t even old timey!

  7. A suit filed against Krispy Kreme claims the company’s raspberry-filled donuts are misleading as they don’t contain real raspberries, depriving consumers of a “rich source of Vitamin C, Vitamin K, Potassium, and dietary fiber” and nutrients that “help fight against cancer, heart and circulatory disease, and age-related decline.”

    I can’t help but think that anyone who eats Krispy Kreme for the health benefits deserves whatever disappointments life sends their way.

  8. 1. Go with loser pays. Avoids the “lawsuit as blackmail” issue.
    2. Prohibit settlements; if you file the suit, you have to go to trial. (see number 1)
    3. Lawyers get paid by the hour, not a percentage of anything. And the billing is reviewed by the court.
    4. All court data is public record, no undisclosed payments or “side deals”.

    1. 1 alone is good enough.

      2. interferes in a normal business decision. What if a real defendant n a real (not ginned up like these examples) case admits guilt and agrees to everything — do you still think they should waste everybody’s time and drive up the costs for a literal show trial? Maybe you really mean that all related documents should be public as if they had gone to trial, (#4) and I could get behind that.

      3. Lawyers getting a percentage or commission goes hand in glove with loser pays to bring justice to poor people. Any lawyer can judge the odds of success and decide for himself what commission he’d need to wager on to make taking a case worthwhile. If he wins against great odds, he deserves extra, and his client will surely be happy.

      4. See #1.

      I would add a coupel of things.

      5. Updated version of outlaws. Whatever amount you owe in unpaid verdicts is your outlaw limit — you cannot file complaints for anything less than that amount. Thus if you owe $100K, it basically means people can steal you blind — car, money, whatever — and you cannot get redress for that.

      6. Perjury, forged evidence, anything of that sort (I call it “authoritative obstruction”) punishes you as if you were guilty of whatever your perjury was in support of. If you falsely allege you found a dead mouse in your corn chips and want $1 million, then you owe $1 million, plus loser pays costs.

  9. Declare class-action lawyers to be terrorists and have them rendered to Gitmo.
    Problem solved.

  10. Great article, ENB. Class-action abuse is an issue that’s gone unremarked for a long time, even by libertarians; it’s great to see some light shed on it. I’m not a lawyer but I actually work in class action administration and frankly, the number of consumer class-action cases that are clearly ginned-up nonsense to give the lawyers a payday is mind-boggling.

    There was a rash of cases a few years ago where a bunch of companies in California ran afoul of some law–have you ever been in a store and had the clerk ask you for your zipcode when they ran your credit card? That’s illegal in California. So these companies were sued (all by the same small group of law firms, imagine that), and settled for millions of dollars, up to 2/3 of which goes straight to the lawyers. Part of the settlement was also earmarked to go to something called the “California Workforce Development Agency”, because the government has to get its cut of the action, too (this element, the cy pres abuse, could be something to look into if you ever write a follow-up article).

    Oh, and the consumers who were supposedly harmed by these nefarious stores asking for people’s zipcodes? They got coupons. Coupons to use at the store they were suing. It’s quite a racket.

    1. WARNING: Asking for my zip code contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm

    2. There oughta be a law! –libertarian

  11. This is a sick culture problem, not a legal problem. Too many ethically bereft dirtbags want to become lawyers. They need to be steered into other positions, like used car salesman or Amway distributor.

    1. Or steered into wood chippers?

    2. Top flight positions in the food service industry….no, wait

    3. A friend of mine who was a lawyer and my son (probably 8 or 9 at the time) used to get into really good conversations about D&D and the like. I was talking to him one day and mentioned something in passing about Chuck being a lawyer. My son got this stricken look on his face and said “But, but … Chuck’s too nice to be a lawyer.”

  12. This wood-chipper is not old-fashioned enough!
    And My latte was less-than pipping hot!

    JUSTICE!

  13. These are amusing (if depressing) examples, and it easy to cast aspersions on the larger practice of class action litigation using them. However, for every goof troop lawsuit there are many more designed to rectify legitimate examples of companies unfairly or fraudulently profiting from consumers.

    1. But they do piss-all for those who suffered. Class action suits only benefit the lawyers.

      1. That’s correct. Had a Chevy pickup with “defective” gas tanks. Class action suit didn’t replace the tanks, but I did get a coupon towards a new truck. So I sold the truck with a “dangerous defect” to someone else. /Problem solved.

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  15. How about a “Dumb Ass” rule. If only a dumb ass would think it or do it, the lawsuit gets thrown out. Pretty sure that would cover these 12 and most others. Including my two favorites 1) too hot coffee and 2) using a lawn mower to trim your hedges.

  16. Problem is due to an excess of lawyers seeking to earn a living any way that they can.

  17. Bout time for some of the producers to fight back, trounce the barstids doing this, then go after them for the company’s own legal costs, defamation, loss of busines, etc.. Time to break a few of these bounty hunters. Maybe researsh who is filing which, who the plaintiffs are (close relative? How convenient… and corrupt)/
    fight the fire with fire.

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