Food Policy

Class Action Food Lawsuits Are Booming

Too much foam in your Starbucks latte? Don't worry, be litigious!


Francis Joseph Dean /Deanpicture/Newscom

Class-action litigation targeting food companies is still a growth industry. That's the conclusion reached by attorneys with Perkins Coie, a law firm that defends many food companies facing class-action lawsuits, in its annual report on class-action food litigation, published last month. The report, Food Litigation: 2018 Year in Review, notes 2018 was "one of the most active years on record" for food class actions (or "FCAs" as I've dubbed them).

That's not a good thing. Last year, the U.S. Chamber of Commerce's Institute for Legal Reform (ILR) reported that food "class actions result from lawyers shopping for cases, not consumer fraud."

Over the years, I've written columns about some rather bizarre FCAs, including ones filed over the origins of Poland Spring water, the number of calories in Starburst candies, and the length of Subway's "footlong" subs. Too much foam in your Starbucks latte? File a lawsuit.

The Perkins Coie report shows FCAs grew in number by 9 percent last year—from 145 in 2017 to 158, tied for the highest number of suits in a year to date. The report highlights FCAs involving claims of false labeling, slack fill, and "natural" labeling, plus suits filed under Prop 65, an absurd California law that (and I'm oversimplifying only slightly) requires cancer and birth-defect warnings to appear on nearly everything and everyplace in the state.

In terms of trends, the Perkins Coie report indicates false labeling claims have grown steadily since 2015, while suits targeting slack fill (airy space in packaging) and "natural" label FCAs are down slightly. The report also notes California and New York continue to lead the way as the leading forums for filing such suits, accounting for more than three out of every four FCAs filed last year. Many of the California suits have been filed in California's so-called "Food Court," which helped spur the Orange County Register editorial board last year to dub the state America's "judicial hellhole."

Coincidentally, the same week the Perkins Coie report came out, my latest law review article, which discusses how to assess consumer perceptions of FCAs, was published in the Loyola Consumer Law Review, the only U.S. law journal dedicated solely to examining consumer-law issues. In the short article, Using Online Tools to Assess Consumer Perceptions of Class-Action Food Litigation, I study several recent FCAs around the country, starting with the aforementioned Subway lawsuit. In a methodology I repeat for each of the cases I discuss, I identified and studied a mainstream news outlet's social-media coverage of an FCA and studied consumers' stated impressions of the lawsuit.

I'd initially hoped that my research would establish guidelines that could be used to distinguish between what makes for a "good" or "bad" lawsuit. That turned out to be a far more ambitious challenged than I'd hoped. It also threatened to be an exercise in subjectivity masquerading as objectivity. With that in mind, I set out instead to assess whether and how consumers distinguish between what makes for a "good" or "bad" FCA.

That's important question for several reasons. First, FCAs—and calls to reform or limit them—are proliferating. Second, no one—scholars, judges, attorneys, or policymakers—really has a good idea what consumers think about class-action lawsuits. Third, since FCAs (and class actions generally) are intended in large part to benefit consumers by compensating a broad class of similarly injured persons while penalizing those who have harmed this class and discouraging others who might have one day cause similar harms, it's worth studying whether or not most consumers believe they are benefiting from (or being harmed by) such suits.

Finally, understanding consumer perceptions can help us better understand the famed and fabled "reasonable consumer." As the Perkins Coie report notes, "the 'reasonable consumer' defense remained at the forefront in decisions on motions to dismiss" FCAs. That defense, according to the relevant caselaw, considers whether or not "a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled."

Based on my research, consumers are openly skeptical of FCAs. While a handful of the hundreds of social-media comments I read supported the various FCAs I studied, most commenters sided with the defendant, and many openly criticized plaintiffs' attorneys and the American judicial system that allows FCAs to flourish.

The reasonable consumer can be a powerful tool for good. Consider that a federal court dismissed that FCA targeting Starbucks, noting that a "reasonable consumer would not be misled into believing that foam does not count toward some portion of the volume of their Latte." So studying and better understanding the reasonable consumer is paramount. Doing so can and should yield better results in FCA cases. My article is a first step toward that understanding.

"As calls for class-action reforms grow," I conclude in my Loyola Consumer Law Review article, "those who establish and amend rules for; study; and participate in such litigation—among them policymakers, judges, attorneys, and scholars, respectively—should consider the perceptions and wishes of consumers to help inform the basis, shape, and parameters of any such reforms."

Perhaps only then can we fulfill the ILR's clarion call to "restor[e] common sense to food class action litigation."

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

23 responses to “Class Action Food Lawsuits Are Booming

  1. Thanks, now I am suffering from foamo.

      1. Google is now paying $17000 to $22000 per month for working online from home. I have joined this job 2 months ago and i have earned $20544 in my first month from this job. I can say my life is changed-completely for the better! Check it out whaat i do…..

        click here =====??

        1. THINK ABOUT IT?..
          Earning in the modern life is not as difficult as it is thought to be. God has made man for comfort then why we are so stressed. We are giving you the solution of your problems. Come and join us here on just go to home TECH tab at this site and start a fair income bussiness


        2. This is a paid reason ad.

    1. Google is now paying $17000 to $22000 per month for working online from home. I have joined this job 2 months ago and i have earned $20544 in my first month from this job. I can say my life is changed-completely for the better! Check it out whaat i do…..

      click here =====??

      1. This is a paid reason ad.

  2. Many of the California suits have been filed in California’s so-called “Food Court,” which helped spur the Orange County Register editorial board last year to dub the state America’s “judicial hellhole.”

    You can pull out “judicial” and still be accurate.

  3. If you want a milkshake, go to a kids’ hangout. Stop holding up the coffee line with your stupid mocha latte skinny decaf bullshit.

    1. If you want coffee, don’t go to the mocha latte skinny decaf shop.

      1. Alphabet douche, we tell you what s what, not the other way around.

        Got it?

  4. We should feed lawyers into woodchippers.
    That would solve about half of America’s problems right there.

    1. Lawyers who turn to politics go first!

    2. One of my favorite movie quotes ever — “Without lawyers, old boy, we wouldn’t need lawyers.”

  5. I just began Seven weeks back and I’ve gotten Three check for an aggregate of $4,175?this is the best choice I set aside a few minutes! “Much obliged to you for giving me this phenomenal chance to profit from home. This additional money has changed my life in such huge numbers of ways, much obliged!

    This is what I’ve been doing?..

    1. This is a paid reason ad.

  6. I have received cards to be included in many stupid class action suits. I always refuse. Why? Because I might receive $20 dollars if I am lucky and they win, and the lawyers will receive $20 million if they have more people in the suit. I have no desire to see lawyers get rich and prices rise because stupid class action lawsuits. Consumers always pay the price of these suits.

  7. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to tech tab for work detail.

  8. on Saturday I got a gorgeous Ariel Atom after earning $6292 this ? four weeks past, after lot of struggels Google, Yahoo, Facebook proffessionals have been revealed the way and cope with gape for increase home income in suffcient free time.You can make $9o an hour working from home easily??. VIST THIS SITE RIGHT HERE

  9. Too much foam in your Starbucks latte? Don’t worry, be litigious! Drink espresso and bourbon, like a man.

  10. Your confusion is understandable, but this blog is called The Volokh Conspiracy.

  11. just before I looked at the paycheck four $6755, I accept that my friend could realey making money in there spare time online.. there friend brother haz done this less than 22 months and resently cleard the morgage on their appartment and purchased a great new Acura. I went here,

Please to post comments

Comments are closed.