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The Rise of the Food-Related Lawsuit

Here's how to tell a productive food-related lawsuit from a frivolous one.

Photo credit: NACHO DOCE/REUTERS/NewscomPhoto credit: NACHO DOCE/REUTERS/NewscomFood lawsuits are on the rise. At first glance, most are terrible, some are good, and others require a closer look. It's not easy to tell the difference between each type, which is why it's important to look at who stands to benefit from these lawsuits and what they might accomplish for consumers.

Most food lawsuits (at least the ones that interest me) exist under the broad umbrella of tort law, which—in contrast to criminal law—"addresses private wrongs and has a central purpose of compensating the victim rather than punishing the wrongdoer."

What makes a food lawsuit "good" or "bad"? For one, we can ask if a defendant did exactly what the suit alleges, was the defendant wrong to do so? If the court rules in the plaintiff's favor—and against the defendant—will the plaintiff be better off and will the defendant be sufficiently discouraged from behaving similarly in the future? In the case of larger lawsuits (larger either in terms of monetary damages or because the suit is filed on behalf of more than one plaintiff), would society benefit if the court were to find in favor of the plaintiffs?

We must also consider the unintended consequences of such lawsuits. We should seek to understand whether a suit harms society (say, through added costs, decreased availability of products or services, or encouraging frivolous litigation) in any way.

Some cases immediately check all the right boxes for a "good" food lawsuit.

For example, a lawsuit filed this month by a Florida woman alleges she was sickened by salmonella (a potentially fatal bacteria) contained in eggs she bought and ate. She's one of 35 people in nine states allegedly sickened by eggs from an Indiana farm. More than ten people, including Judy Roberts of Florida, required hospitalization. Here, if the farm in question did exactly what the suit alleges and the court rules in favor of compensating Ms. Roberts at the farm's expense, Roberts will be better off and the farm will likely behave better in the future.

In another case reported this month, a Florida butcher sued the Publix grocery store chain this month after the company fired her because she reported alleged food-safety violations at the store location where she worked. Society benefits from (and should encourage) whistleblowers, even if their actions might result ultimately in higher consumer prices. If Publix did exactly what the suit alleges and the court rules in favor of compensating the plaintiff, the plaintiff and society will be better off and the Publix will likely be discouraged from behaving similarly in the future.

Staying in Florida, at least one other food-related lawsuit filed there this month is of the "closer look" variety.

In that case, Florida's attorney general filed an action in civil court under the state's Deceptive and Unfair Trade Practices Act, alleging Ice Box, a restaurant with two Florida locations, profited "from the increased demand for locally-sourced or sustainable products [by] including false and misleading claims about their menu items." Florida seeks to enjoin the restaurant from continuing to make such claims and is asking the judge to award civil penalties and attorney's fees.

The state claims Ice Box, a longtime Oprah Winfrey favorite that has locations on South Beach and at Miami International Airport, "represents that its food products were locally grown and markets meals... as 'farm to terminal' options for travelers. In reality, few of the meals, if any, offered and sold at [the airport...] were made with products from local farms and nearby sources." More damningly, the state also claims the Miami Beach location stated "it purchased products from specific Florida farms and suppliers when such was not the case." And the state claims the restaurant's falsely touted some fish wild or fresh-caught when the fish was allegedly frozen or farm-raised. The state claims Ice Box harmed both consumers—who willingly paid more for food they believed to be fresh, local, and/or sustainable—and competing restaurants.

Ice Box owner Robert Siegmann, who is also named in the suit, told the Miami Herald that "he relies on his vendors for information about the source of ingredients [and that i]f items aren't locally grown... his suppliers are the ones doing the misrepresenting."

Why the focus this week on Florida? For one, the state is home to more lawsuits a growing category—food class-action lawsuits (FCAs)—than all but two other states, according to a 2017 report by the U.S. Chamber of Commerce's Institute for Legal Reform, which has sounded the alarm over what it labels a "surge" of FCAs. (A class-action suit is a lawsuit brought by a members of a class of consumers on behalf of all consumers in the class.)

In one such case, also filed this month in Florida, a pair of plaintiffs sued McDonald's, claiming the burger chain "is forcing customers to pay for cheese on its signature Quarter Pounder and Double Quarter Pounder burgers, even if they only want plain burgers." The plaintiffs are seeking class-action status for their suit, which for some reason brings to mind a scene from Five Easy Pieces.

One of my goals is to distinguish between "good" and "bad" food lawsuits, and I'll be exploring the issue further in an article for the Loyola Consumer Law Review.

Many of these lawsuits appear frivolous at first glance (and, perhaps, even more so on closer inspection). But some are anything but frivolous. They're filed to redress one or more examples of actual harm suffered by one or more plaintiffs.

We should applaud cases where the judicial branch makes injured parties whole while discouraging similar bad actors and actions in the future without the need for new laws and regulations.

Photo Credit: NACHO DOCE/REUTERS/Newscom

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  • TwelveInchPianist||

    If the McD plaintiffs settle their suit for next to nothing, can we call them cheese eating surrender monkeys?

  • MatthewSlyfield||

    No, you will have to call them imitation-cheese-like-substance eating surrender monkeys.

  • TangoDelta||

    Wait, I thought they weren't getting the cheesy-food-like-whatever-it-is just paying for it.

  • Fist of Etiquette||

    First of all, any lawsuit filed by a politician should be suspect. Secondly, no one cares if their food is actually locally sourced. That consumer just wants to feel good about herself by instagramming friends how much better she is than everyone else by eating at a place that's farm-to-table or whatever the current buzz phrase happens to be.

    Verdict: bad lawsuit.

  • Earth Skeptic||

    So sue the Florida AG for emotional distress?

  • Jerryskids||

    Instead, the lawsuit claims, McDonald's listed only the Quarter Pounder with cheese and Double Quarter Pounder with cheese as menu items, including their availability to purchase as part of a value meal.

    "A customer who wanted a Quarter Pounder was required to order and pay for a Quarter Pounder with cheese, which was given to the customer without cheese,"

    Yeah, no shit, the same way a customer who wants a dish of shrimp al fredo ain't gonna get what he wants at McD's - because it's not on the menu. Who gives a shit if you want a Quarter Pounder, there's no Quarter Pounder on the menu. You can custom-order the sandwich be made without some of the ingredients but it's not a per-item price on the sandwich. They're not going to knock off 2 cents for no ketchup or 5 cents for no tomato or whatever, their efficiency lies in making all the sandwiches the same way every time and your customizing the sandwich slows them down and costs them more. They should be charging you extra for a Quarter Pounder with Cheese with no cheese.

  • Jerryskids||

    Reminds me of a few years back when Wendy's was running a promotional special on their bacon cheeseburgers where the bacon cheeseburger was like 2 for $3 while the regular cheeseburger was $1.89 and I'd always have to explain to the counter girl why I was ordering two bacon cheeseburgers with no bacon instead of two cheeseburgers.

  • AdamJ||

    "You see, I'm a cheap-ass and need to save 80 cents."

  • Jerryskids||

    I'm eating at Wendy's, it should go without saying that I've only got $5 in my pocket. If I could afford to just throw away 80 cents, I'd be eating lunch at the Hardee's across the street.

  • AdamJ||

    I used to love that sourdough burger at Hardee's. Is Hardee's still around? Don't see them in TX.

  • susancol||

    Tons of them in north central FL.

  • Jerryskids||

    They might be called Carl's Jr. in Texas. Hardee's in the East, Carl's Jr. in the West, but it's the same restaurant. Hardee's has the best, closest to homemade, big ol' sloppy burgers if you ask me. We recently got a 5 Guys near us so I had to try one, Hardee's is better. If you're doing construction work though, Wendy's is better for cheap skimpy burgers that you won't get stuffed on because you wind up making yourself sick if you try working on a full stomach.

  • Ornithorhynchus||

    Here in Oklahoma all the Hardee's were changed to Carl's Jr. It might be the same in Texas. It's the same company, and as far as I'm aware, the menu is pretty much the same. I know they run the exact same TV commercials in different markets (and at least some of the ads nowadays will say both Hardee's and Carl's Jr).

  • bvandyke||

    It's Carl's Jr in TX - Hardee's in other parts of the country. Almost the exact menu. There was a naming issue in Texas I beleive.

  • Don't look at me.||

    Also, I get to Instagram how I got a special sandwich without bacon and how that makes me double special.

  • Frank White||

    Just happened to me at Smashburger. A triple-double is $6.08. The pub burger is a special burger for $4. You can order the pub burger and add/change the condiments to turn it into a triple-double for the $4 price.

  • Adans smith||

    No bacon!!!? I can even.

  • Hell Hound||

    I did it at Papa Johns when they had a special with the "Johns Favorite" pizza.
    I wanted a pepperoni so I ordered the favorite and had them hold the sausage and Italian seasoning. BTW I don't call it being cheap, I like to be politically correct so I use frugal.

  • Dan S.||

    Yeah, they can offer what they want to on the menu. The thing is, they did used to sell Quarter Pounders (without cheese) as a separate menu item. They came in white boxes instead of the yellow ones used for Quarter Pounders with Cheese. This was back in the 1970s, maybe into the 1980s, when they sold their larger hamburgers in styrofoam clamshell-style packages. [That's a genericized usage, they probably weren't actual Styrofoam™.] I used to order them all the time. I think they were eliminated around the same time as the "styrofoam" packaging.

  • Jerryskids||

    Remember the McDLT where they had the double-size styrofoam package with the split-apart burger, supposed to keep the hot burger patty hot and the cold lettuce and tomato cold? Bombed about like the New Coke, providing yet more evidence that corporate advertising does not in fact brainwash consumers into buying whatever crap the eeevil kkkorporations shove down our throats. Consumers are actually kinda picky about the crap they'll shove down their gullets.

  • Griffin3||

    The McDLT was awesome, except for the tomatoes not actually being ripe [like all other fast-food burgers; see 'orangemato']. I'm pretty sure demand was there, but it was killed by the wave of anti-styrofoam hysteria that swept the nation around that time.

  • Brett Bellmore||

    I don't think it actually bombed; They had to give it up due to political pressure over the packaging being styrofoam.

    (Say, is there a specific noun for somebody who engages in "genericide"?)

  • ||

    I remember those. If I wanted a DIY cheeseburger, I'd make one at home on my gas grill (and it would be better than anything McDonalds can make). The entire point of buying their food is it's quick, easy and comes already assembled.

  • Robert||

    No, actually they eliminated the cheeseless hamburgers on the menu only recently. I'd say it's less than 3 yrs. It might've been when they instituted the kiosks, where "no cheese" customiz'n is parallel to "extra salt", "no pickle", etc.

  • Rich||

    "I want you to hold the cheese between your legs."

  • Robert||

    It's true. They used to list the hamburgers & cheeseburgers separately at different prices, now they just list them as cheesburgers, which you can get w/o cheese same as you can get them w/o ketchup, etc. But as long as the customer knows the price in advance, what's the basis for the suit? I don't see why Baylen Linnekin thinks this even deserves a closer look. It doesn't even appear to be clickbait, since he didn't supply a link to his further analysis.

  • Rich||

    Many of these lawsuits appear frivolous at first glance (and, perhaps, even more so on closer inspection).

    Obviously the solution is Federal food *lawsuit* inspectors.

  • MatthewSlyfield||

    FDA or Dept of Agriculture?

  • ||

    Going by Trump's appointees, it would probably be the FTC.

  • Ken Shultz||

    Animal rights groups seem especially keen to file lawsuits just for the headlines they generate. I thought it was silly back when PETA sued the California Dairy Association for false advertising in their slogan, "Great cheese comes from happy cows, and happy cows come from California"--claiming that California's cows aren't actually happy.

    Since then, I've heard of animal rights groups suing over "Dolphin Safe Tuna" (because the tuna isn't "tuna safe" . . . um, yeah, tuna are killed in the production of tuna). I've read about such groups suing Whole Foods for labels claiming their animals are treated humanely--when in fact, they're forced into pens at their end of their lives and butchered, etc.

    Much of that is about getting their cause in the news and generating donations for their group. Seems to me they're making their cause seem frivolous.

  • Earth Skeptic||

    Akaska bumper sticker:

    PETA (People Eating Tasty Animals)

  • ||

    There used to be a website for that -- seems PETA didn't register the PETA site. They sued and even though there was no confusion, the judge ruled there was and confiscated the site from People Eating Tasty Animals and awarded it to People for the Ethical Treatment of Animals.

  • ||

    PETA operates immediate-kill animal 'shelters' and always has. They're not pro-animal, they're anti-human. If they could kill every human alive but at the cost of killing all the animals too, they'd consider it a win. That's NOT an animal-rights group!

  • SIV||

    Somebody with standing should sue that vegan "mayo" company that tReason keeps gay-marrying.

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