A multi-million dollar class action law suit against Little Caesars for twice selling a pizza it had misrepresented as containing no pork, and therefore as acceptable to Muslims (halal) – a suit the company claims is “without merit” – is actually based upon several strong legal precedents, more recently backed up by a Supreme Court decision, says public interest law professor John Banzhaf.
Banzhaf helped put together a class action law suit against McDonald’s for selling french fries which it had misrepresented as being free of beef fat, and therefore appropriate for devout Hindus. Although it likewise initially derided the suit as without merit, this fast food giant was forced to pay out over $12.5 million, make a public apology, and begin making a clear disclosure that its fries did in fact contain beef fat.
And, in a proceeding which was closer to home both literally and geographically, McDonald’s in Dearborn, sued for selling chicken which it had represented as halal when in fact it was not, had to pay $700,000 for its wrongful actions. Interestingly, the Little Caesars outlet sued over its pizza is also in Dearborn, a city which has one of the nation’s largest Arab and Muslim communities. Overall, the Detroit area is home to about 150,000 Muslims of many different ethnicities.
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“My law suit against McDonald’s for misrepresenting the ingredients in its french fries began an entirely new movement of using legal action as a weapon against obesity, just as legal action was used so successfully and effectively against the public health problem of smoking,” says Banzhaf, who noted that at least ten so-called fat legal actions have already been successful.
Moreover, the McDonald’s-fries law suit created a powerful new precedent permitting consumers to sue companies which misrepresent, in many ways, the ingredients in their food offerings.
Banzhaf notes that recently a unanimous U.S. Supreme Court ruling made it easier to succeed in law suits targeting food products for various kinds of deceptions.
It drove a stake into the heart of a key argument being used by defendants, in what lawyers for large corporations are calling the so-called “next wave” of class action law suits, based upon deceptive and misleading food claims, and provided a strong boost to dozens of such pending actions, says Banzhaf.
In that decision the Court ruled – as it did in 2009 regarding drug labeling – that claims based upon faulty food labeling are not preempted by federal regulations.
Defendant’s argument that its Pomegranate Blueberry juice blend wasn’t illegally misleading – even though it contained only an eyedropper (0.6%) of such juices – because it met FDA labeling requirements, which allegedly trump state consumer protection laws, was unanimously rejected by all of the Supreme Court justices.
Thus, Fortune magazine’s prediction that food might become the “next tobacco” appears to be coming true, with litigators who helped wrest multi-billion dollar settlements from big tobacco having turned their guns on big food – including ConAgra, PepsiCo, McNeil Nutritionals, Heinz, General Mills, and Chobani – and are seeking to recover billions, says Banzhaf.
John Banzhaf has been called “The Law Professor Who Masterminded Litigation Against the Tobacco Industry,” “a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars,” the lawyer “Who’s Leading the Battle Against Big Fat,” and “The Man Big Tobacco and Now Fast Food Love to Hate.”
In a case involving whether ConAgra should have included on its labeling the sodium content from sunflower seed shells, even though the shells were not edible, the 9th Circuit ruled that federal statutes related to labeling do not preclude suits brought under state consumer protection statutes.
Interestingly, to win such consumer law suits, plaintiffs may not necessarily have to show that the claim is demonstrably false, and/or that some identified plaintiffs were in fact mislead to their detriment.
Under many state statutes, all the plaintiff must show is that the ad or label has a propensity or tendency to mislead. In applying this standard, even statements which are technically true can nevertheless be illegal, and the judgment obviously isn’t based on the brightest and most educated consumers, but rather on those who, because they may not be quite as smart or as educated, may be deceived by the wording, and are therefore even more in need of legal protection, says Banzhaf.
Also, both a court and the FDA held Chobani should have told consumers that its yogurts contain sugar, rather than hiding that fact by listing as an ingredient only “evaporated cane juice,” a term the Food and Drug Administration [FDA] has determined is both “false” and “misleading.”
Nutella settled out of court for $3 million, and its ads calling the food a healthy breakfast staple were ordered off the air, because the product contained as much as 21 grams of sugar and 11 grams of fat, 3.5g of which are saturated, in every two-tablespoon serving.
These class action law suits are being filed, and upheld by judges, against companies including PepsiCo Inc., Kellogg, Coca-Cola, ConAgra, Ben & Jerry, Breyers, and others over the allegedly deceptive use of words including “natural” and “all natural” to describe food products – a development likely to both increase transparency in food advertising, and ultimately to reduce obesity, predicts Banzhaf.
Indeed, the FDA issued a warning that a food product labeled as “natural’ or “all natural” may be “false and misleading, and therefore . . misbranded” if it contains anything “artificial or synthetic . . . [something] not normally to be expected to be in the food”; a move lending support to and encouraging an ever-growing number of major class action law suits being filed on these grounds, says Banzhaf.
Recently, courts have upheld suits charging that Coke-Cola’s mere use of the name Vitaminwater is deceptive, that claims by both Ben & Jerry’s and Breyers that their ice creams were “natural” were fraudulent because the products contained alkalinized cocoa powder, and suits alleging that ads by Cargill, Inc. and Archer-Daniels-Miland claiming that high-fructose corn syrup is “natural” “corn sugar” – and that “your body can’t tell the difference” – violate the Lanham Act’s false advertising provisions.
Falsely passing off food as acceptable to people’s deeply held religious belief is obviously far more serious and harmful than many of these misrepresentations, argues Banzhaf.