Today, Explained - Suing big food

Episode Date: August 11, 2023

Tostitos chips without real lime. Root beer made with fake vanilla. Instant mac and cheese that isn’t so instant. These products are among the hundreds targeted by lawyer Spencer Sheehan. We talked to him last year about why he wants Big Food to stop misrepresenting its products. This episode was produced by Victoria Chamberlin, edited by Matt Collette, fact-checked by Laura Bullard, engineered by Paul Robert Mounsey with help from Patrick Boyd, and hosted by Noel King. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

A New York man has some beef with Taco Bell. He's filed a lawsuit against the fast food chain, accusing it of false advertising. New York man is suing Taco Bell for $5 million. He claims the ads make it look like the menu items are more full of meat and veggies than they actually are. The bigger, beefier, triple-double crunch wrap. Now, the same law firm filed a suit in Florida last year against Burger King, alleging the company's ads make the burgers look bigger than they really are. Starting in 2020, we saw a spike in these types of lawsuits.

And late last year, we reached a man who filed many of them. They call him the vanilla vigilante. Yeah, I would say I'm wired a little bit different. Coming up on Today Explained, we will ask this man, Spencer Sheehan, what motivates his possibly absurd quest, and we dig into what consumers, you, me, New York man, actually get out of it.

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Gambling problem? Call 1-866-531-2600. Visit connectsontario.ca. It's Today Explained. I'm Noelle King. Spencer Sheehan is a lawyer based in New York, and I talked to him last December. Spencer specializes in consumer protection cases. What is he protecting consumers from? A thing that might seem minor to you and to me, but to him, it's a big deal. Misleading food and beverage labels. One of the cases that I like the best is against A&W, which is the company that produces root beer

and cream soda, the staple beverage of every, you know, elementary school birthday party. For 50 years, people have been coming to A&W drive-ins for our rich, natural-tasting, old-fashioned root beer. And for many years, A&W, and on their root beer and cream soda, advertised it as made with aged vanilla. A&W root beer is crafted with premium ingredients like aged vanilla for a straight-from- taste. And in fact, there's practically no real vanilla, aged or non-aged, in the product. Instead, the only vanilla taste is due to artificial vanillin. Ramirez versus Kraft. This big lawsuit is about Kraft's Velveeta shells and cheese cups,

and the company's claimed that it takes only three and a half minutes to make it a microwave. The plaintiff from here in South Florida says that's a lie, and she's suing for false advertising. Some might say, well, it is ready in three and a half minutes, but our case says that the ancillary steps that are not listed as part of those three and a half minutes render the three and a half minute claim not exactly truthful. And it's our intention that the label should be changed to reflect the time that it actually takes. Ramirez says the claim is false, since microwaving for three and a half minutes is one of several steps needed.

Spencer, why are you doing this, this type of lawsuit, this type of thing? I enjoy these things. I've always enjoyed marketing. I always enjoy especially smaller things that the types of things that if, let's say, one were to call a customer service line and complain about, nobody would really take what you say seriously. And while, of course, this macaroni and cheese is an example that has garnered a lot of attention, it's just one of many cases that deal with similar types of issues where companies go a little bit farther than I believe they should. And that's, you know, where I come in, or at least, you know, where my work is relevant. Do you think you are wired a bit differently than other people to look at this and say, Kraft macaroni and cheese takes longer than three minutes to cook, even though the label says three

minutes, and that's a serious thing? What do you think is going on here? What feelings does this evoke in you? Yeah, I would say I'm wired a little bit different. You know, I noticed the smallest of small things in a way that sometimes if, you know, I didn't resist those impulses could prevent me from having a productive day or productive life. Just the smallest little things I'd see at the corner of my eye that, you know, bother me. And sometimes I wish that I could just, you know, go past them. Maybe it's a table that's not even at a restaurant that I'm at. Or maybe it's a glass that, you know, has a crack in it. So things like that, I just, it's hard for me to look away from those things. But I also recognize that there is humor in these types of things, and

they don't challenge that. And I'm never going to, you know, be so serious and say, oh, this is the most serious thing. And, you know, this is more important than curing cancer or, you know, giving equal rights to underprivileged groups. It's not a choice between one or the other. Just by writing, you know, many of these cases off, as, you know, many people who might click on an article might do, absolutely. I mean, I don't blame them for thinking, oh, this is so silly. And, you know, making comments or just thinking, well, that's so zany. I mean, I completely understand that. Do you get tips from people or are these things that you notice when you're in the grocery store?

Certain cases, yes. There are things that I become aware of on my own. And like any other attorney, I can, you know, then inform others of that. And then they can tell me, yes, that's something that I experienced and I'd like to do something about that. For many of the cases, that's how they originate. But for many, like this macaroni and cheese, it's legitimately from a third party or somebody who I don't know who contacts me. And while the macaroni and cheese one was filed, I would say at least 90% of the things that people submit to me, I don't file because I would think that or I just think that they're kind of silly. Or not that they're kind of silly. You probably wonder, wow, what does he think is silly? Yeah, I got to say that does come to mind.

What counts as silly for you? Something that I often get is when people come to me about, you know, the pictures on a package not looking like the contents. And that happens every week. We all know what pictures on a box of food, you know, look like, and especially in the area of microwave and frozen meals. They look very delicious, but we also know that after we microwave that food or heat it up, it's not going to look like that. That's one of them that I believe is, you know, unfortunately not at the top of my list for cases to do. What changes have your lawsuits brought? We are responsible, although it won't be publicly disclosed, for the removal of the A&W made-with-age vanilla claim from their root beer and cream soda.

Also, I would point you to the Frito-Lay case against a hint of lime Tostitos. This time, Tostitos is in the hot seat over its lime flavored tortilla chips. A new class action lawsuit argues that there's hardly a hint of lime in the snack food and that Frito-Lay is deceiving customers. I thought that case was kind of interesting because they were selling these tortilla chips advertised as, you know, hint of lime and there was a transparent lime shaped window on the front of the package. You're probably wondering what makes these chips taste so good. Here's a hint. It's lime. They taste like lime. And only at the very bottom of the product, all the way down in

the corner, did it say that, you know, basically that there wasn't in fact a hint of lime. It says they're, you know, flavored. A few months after my case was filed, their new packaging that gets rolled out is pretty clear that the hint of lime is actually a hint of lime flavor, which is qualifier to the hint of lime. Is this just a form of, and forgive me for the expression, is this just a form of ambulance chasing? You can make a consistent living as long as you find these small ways in which food and beverage companies are screwing up, and they will.

They will reliably screw up. In a better world where we would have stronger enforcement and regulations from a government and the state and federal regulatory agencies, I wouldn't be doing this. And lawyers like me wouldn't have the opportunity to do this because it would be something that before the product even got to the shelf, there would be a process whereby it's, you know, reviewed and that companies would know that, you know, they should be more conservative with the way they represent it, you know, lest the government, you know, not allow it to be distributed. The same thing about the small benefits that can be said about a lot of different areas of law.

It's small, but it's multiplied by millions of people who see these things. Yes, it's hard to measure. And that's one of the issues that lawsuits like this typically struggle with, or at least the courts may struggle with it, because how do you define what that value is? To think that somehow there's going to be a day where, you know, this job is somehow complete, or you win, or that everything is going to be, you know, accurate and truthful and honest, that day will never come when we're dealing with a society where we have, you know, all different companies, independent, competing against each other. It's impossible to, you know, envision a scenario where everybody is going to follow what we believe are the accurate regulations and guidelines for representing their products. And even in some instances, if it can be argued that everybody follows the law,

which will be argued today, there's always going to be interpretations. And that's just, you know, the nature of laws. And that is the purpose of courts, to identify, you know, where those interpretations are correct and where they, you know, should be pushed back a little bit.

Spencer Sheehan. Since this show aired last winter, Spencer has gotten some pushback from judges of all people. His Velveeta lawsuit was dismissed earlier this summer, and a federal judge in Syracuse, New York, is threatening him with sanctions. Whether you consider these lawsuits nuisances or serious, lying to or misleading consumers about what's in their food seems like a thing that just shouldn't be happening that often. And yet it is. Coming up, why is it taking lawsuits to get food companies to stop lying to us? Support for Today Explained comes from Aura.

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time for the holidays. Term terms and conditions do apply. Plus, with super simple live betting, lightning fast bet settlement and instant withdrawals, FanDuel makes betting on the NFL easier than ever before. So make the most of this football season and download FanDuel today. 19 plus and physically located in Ontario. Gambling problem? Call 1-866-531-2600 or visit connectsontario.ca. It's live. Today Explained, we're back with Helena Bottemiller-Evich, who's the founder and editor-in-chief of Food Fix, a newsletter about food policy. And Helena, earlier in the show, we talked to a class action lawyer who has made suing food and beverage companies for misleading packaging his thing. Do you think these lawsuits are effective or are they a waste of time? They can kind of be both at the same time.

I mean, it's a really good question. Are consumers really harmed by maybe being confused about vanilla flavoring, right, which is what those lawsuits are about? Is that an important question? I think a lot of consumers would probably say it isn't. But a lot of litigation like this, similar litigation around questions like, you know, calling something natural, is that misleading? Those lawsuits have really changed industry practices. They've led to less labeling of natural on food products because there were so many lawsuits. So it does change behavior and it does rein in some of this marketing. But whether or not there's a real public health issue, I think, is a separate question. I was surprised when the attorney told me that he has filed hundreds of these lawsuits over the past couple of years. That seems like a lot.

Is the pace of this kind of litigation increasing? Are we seeing more of these? It is absolutely increasing. That lawyer is so prolific that he is actually named specifically in, like, the roundup reports that are done about the state of litigation in the country targeting the food industry. Oh, you know him. I don't know him personally, but, you know, I recently read the Perkins Coie, you know, update on food litigation, which is basically the map for the food industry of, like, you know, what's the state of play. And he's specifically named in that report. That's how prolific he is. But there's no question overall, these lawsuits have increased really over the past, you know, decade plus. We've seen a more than tripling of the

number of class action lawsuits targeting food companies. And they've really increased in the last year or two. And I think a lot of that increase is lawsuits specifically from that attorney. Why do you think we're seeing more litigation? Is there something other than this one man? Over time, consumers have gotten a lot more interested in their food, where it comes from, you know, marketing claims surrounding it. They are more interested in healthy eating. And so I think as the food industry has tried to meet that demand and really market products as more healthful or more natural or more simple, I think it's easier for lawyers to find consumers who are willing to sue food companies, right? Because they might feel frustrated when a claim they thought was being

made maybe doesn't match up with reality. So there's that. And then I think also money. This comes down to, you know, if you win one of these lawsuits or you get a settlement, attorneys take a percentage of the settlement. So there's a lot of money at stake. And I think the food industry in some ways has made itself sort of an easy target. I mean, there's a lot of ridiculous labels out there. I'm a reporter who covers food policy, and I am confused about food labels, right? Like, I get duped. I am just as confused as I think a lot of consumers find themselves. There's just a lot of claims being made, and it's really hard to tell what's real and what's not sometimes. In what way do you get duped?

I find the egg section particularly fraught, like the claims around eggs, cage-free, pasture-raised, you know, on pasture. Some of them actually give space requirements 108 square feet per bird. And, you know, if you really pressed me on like which one of these has something behind it and which one doesn't, I think I would have trouble. To that end, when Frito-Lay claims that their chips have a hint of lime, that is in fact a hint of lime flavoring, why does it take a lawsuit to make them stop doing that? Isn't there a government agency that regulates this kind of marketing? So FDA for sure is on the lead for the labeling of at least the products they oversee, right? So that's about 80% of the food supply, a lot of packaged foods, fruits, vegetables,

basically everything except for meat. That's USDA, right? So USDA actually pre-approves labels. They have a much more hands-on approach, yes. They have to approve all labels for meat and poultry products. And so FDA is in a much more passive position, right? So they do set rules. But FDA, as an agency, has a ton on its plate. They're also in charge of food safety for 80% of the food supply. And a lot of experts would tell you they don't necessarily have the resources to really fully do that job as consumers expect them to. And so things like food labeling, is everything exactly as it should be? It's not necessarily the top priority of FDA to be out there, like, policing labels. I think these lawsuits in some ways do provide a check on the industry because, you know,

if you work for a food company, you know that there are plaintiff's attorneys out there who are looking to catch you on something, right? And if they can get traction in a court and if they can get a settlement, that's, you know, that's a significant cost to the industry. Let me ask you about a big one. What does it take for something to be called healthy? Yeah, healthy is such an interesting one because I recently went to the store and tried to find like how many products are actually labeled as healthy because FDA is in the process of updating the definition of healthy. FDA has spent seven years trying to update this standard, and we just came out with a proposed rule to do that. Essentially, it's, you know, making sure right now we have a limit on fat,

total fat. It has to have a certain amount of iron, calcium. It has to have some of the good stuff, right? So FDA has rules around what can, I guess we would say nutrients of, you know, with health benefits, right? So there's some rules around that. FDA is proposing adding some criteria to that to actually make it stricter and to include a cap on added sugar. Under the existing healthy definition, you know, oily fish like salmon would not be allowed to carry the healthy claim on its label. But cereals, get this, sweetened with sugar and packed with sodiums could. And that's because current standards only look at what? Individual nutrients like vitamin A, C, calcium, iron, protein, dietary fiber, and saturated fat on food products. So cereals, they tick off certain boxes that meet current standards, whereas

salmon naturally contains high levels of fat, which are considered bad back in 1994. One of the reasons FDA wants to update the definition of healthy is to have it be more in line with the current dietary guidelines, which does recommend consumers limit their consumption of added sugars to no more than 10% of their total calories. So actually not that much in the grocery store is right now labeled healthy. Only 5% of products in a grocery store have that label. And that's before FDA makes the definition more strict.

How are misleading claims on labels brought to the attention of the FDA, if not for lawsuits? Does the FDA have like super shoppers that go around and look themselves? That's a really good question. And if they do, I want to profile them. You know, I think a lot of it, frankly, is competitors that raise concerns. So, you know, if you notice your competitor, let's say you're a bar company and they're making claims saying that they're healthy and they don't meet the definition, that would be, I don't know, an example of something you might flag to the FDA. I think that's a big way the FDA gets certain things on their radar.

But lawsuits do, I think, affect the industry behavior in a way that is much broader and also, frankly, quicker. So going back to the natural example, for a long time, we saw food companies using natural as a very common sort of positive word on their labels. And after a ton of lawsuits, food companies are much less willing, I think, to go out on that limb, right? Because if you know you're going to face litigation over it, it's sort of like, why deal with it? But on the flip side, FDA has been totally unwilling to define what is natural, right? Because if FDA had a definition, then you wouldn't be able to get traction in the courts, right? Because it's a decided issue. And there's rules. So the food industry for a long time really wanted to see FDA like define

natural so that that would be a safe term for them to use. And the agency never did and probably never will because it's just it's a really hard thing to define. How has the food and beverage industry responded to these lawsuits, especially to the increase in these lawsuits? Well, it is certainly keeping defense lawyers employed. There's a lot of work, right? So as these lawsuits have exploded, it's not only been work for the plaintiff's bar, but also the defense bar. So, you know, they're defending them, right?

And they are, in some of these, getting a lot of traction. I think the vanilla lawsuits have been mostly dismissed. There's not, not every issue is going to get traction in the courts. And so even when they don't get traction, however, though, it's a big expense. This is just a prime example of what we call lawsuit abuse. The evidence is very clear that in these types of consumer class actions, that the consumer gets little, if anything, but that the lawyers do quite well. You now have a food industry that is very mindful of lawsuits, right? And very

mindful of marketing claims and not going too far or not going too far in their marketing claims without thinking, like, what is the litigation risk here? I think that is a much bigger factor in the decisions that food companies make now. What's the biggest thing these lawsuits accomplish? I think they do rein in marketing a tad on food labels. I think looking at things like, you know, the baby food lawsuits. The lawsuit alleges one serving of Gerber baby food will expose a six-month-old to three times the amount of lead an adult is allowed to have in one day. Those could potentially have more of an impact because

they do push the food industry that, you know, the baby food manufacturers to then push FDA harder to set standards, right? We don't have heavy metal limits for most baby foods. And therein lies the issue here, right? Without clear federal standards, there's more gray area. And I think more gray area leads to more litigation. And so I think it does create some more pressure on FDA to set clearer standards and to, you know, be more of a cop on the beat. Today's show was produced by Victoria Chamberlain and edited by Matthew Collette. It was engineered by Paul Robert Mounsey and fact-checked by Laura Bullard.

The rest of the team includes Amanda Llewellyn, Halima Shah, Avishai Artsy, Hadi Mouagdi, Miles Bryan, John Aaron, Siona Petros, Patrick Boyd, David Herman, and my co-host, Sean Ramosfer. Our supervising producer is Amina El-Sadi, and our EP is Miranda Kennedy. We use music from Breakmaster Cylinder and Noam Hossenfeld. I'm Noelle King. If you like the show, please leave us a review on Apple Podcasts or Spotify. Leave a nice one. Sean reads all of the reviews. Today Explained is part of the Vox Media Podcast Network, and we are distributed to public radio stations across these United States

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