A Sense of Doubt blog post #3243 - Lies at the Grocery Store
Another article from The New Yorker to share as I navigate the first week of Winter quarter 2024.
It's time to rethink nutrition labels.
https://www.newyorker.com/magazine/2023/09/11/the-lies-in-your-grocery-store
You’ve Been Served
In 2021, Duval Clemmons, a retiree from the West Bronx, went to his local BJ’s Wholesale Club and discovered a pleasant surprise in the dairy aisle. Clemmons, sixty-eight, had a long career as a maintenance worker, but was disabled when he fell down some subway stairs, in 2009. “I’m trying to eat healthy when I can, and when I can afford it,” he told me recently. “So when I seen plant-based butter, I said, ‘Oh, this is real cool. This is what I need.’ ” What he saw was Country Crock Plant Butter Made with Olive Oil, a product with a green lid and a label showing a leafy olive branch floating above a buttered slice of toast, with the words “New!” and “Dairy Free” in delighted-looking cursive. “Most margarines, they don’t put pictures of the ingredients,” Clemmons went on.
Clemmons, like many of us, had veered toward margarine in the late twentieth century, believing it to be a healthier alternative to butter. “Margarine was my go-to thing,” he told me. “Margarine was amazing. But when I found out that it’s also an artery clogger, in the early two-thousands, I switched over to olive oil.” Clemmons knows many people with heart disease; some of his friends have died from it. He bought the Country Crock and began to eat it on his toast. A few months later, he saw an image of the product online, in an ad looking for members of a class-action lawsuit. Reading, he made a startling discovery: the spread wasn’t made of olive oil, or even mostly made of olive oil. The primary ingredient was a processed blend of palm and canola oils. “I’d been drawn in because of the picture,” Clemmons told me. “And they knew that. I’m sure they knew that. Why wouldn’t people be attracted to things that are natural?”
In 2022, the attorney who had placed the ad, Spencer Sheehan, of Great Neck, Long Island, named Clemmons as the lead plaintiff in a lawsuit against Upfield U.S., Inc., the makers of Country Crock. The complaint alleges that this “so-called plant butter,” as Sheehan described it to me, is margarine in disguise. “Since the dawn of recorded history, humans have enjoyed butter, made from fresh cream and salt, on a farm,” Sheehan’s complaint begins. “For the past 150 years, imitators of butter have attempted to sell yellow-colored blends of beef tallow and vegetable oil to consumers as butter, through the product known as margarine.” Sheehan asserts, reasonably, that we seek out olive oil for its health benefits, which palm and canola oils lack. Also, Country Crock Made with Olive Oil had twice the calories of Country Crock Original, and was more expensive.
Sheehan, forty-four, specializes in consumer-protection class-action suits. Specifically, he focusses on packaged foods, and on the authenticity of their ingredients and flavors. Sheehan has sued the makers of frosted strawberry Pop-Tarts (dearth of real strawberries), Hint of Lime Tostitos (absence of lime), Snapple “all natural” fruit drinks (absence of natural juice), Keebler’s fudge-mint cookies (lack of real fudge and mint), Cheesecake Factory brown bread (insufficient whole-grain flour), Trident original-flavor gum (lack of real mint, despite package’s illustration of a blue mint leaf), and many more, generally seeking millions in damages from each. He also pursues class actions unrelated to food, involving subtle fraud in products such as toothpaste (Tom’s of Maine Fluoride-Free Antiplaque & Whitening, for containing no ingredient that fights plaque) and sunscreen (Coppertone Pure & Simple, for being neither). Sheehan emphasized this breadth of scope during our first phone conversation. “It took Matthew McConaughey years after that movie he did with Sarah Jessica Parker—‘Failure to Launch’?—to be taken seriously as an actor,” he told me. “No one likes to be typecast.”
But Sheehan has been typecast, with his tacit approval. He’s a food-label zealot, and is especially relentless with vanilla cases. (Tabloids have called him “the vanilla vigilante.”) “Real” fruit and artificial smoke flavoring are in his crosshairs, too. Since 2018, Sheehan’s firm has filed more than five hundred consumer-protection class-action suits, making New York one of the top states for such cases. At annual food-law conferences, presenters displaying litigation trends provide two sets of statistics: one including Sheehan’s cases, one without. Some of his lawsuits, including one involving an “aged vanilla” claim made by A&W Root Beer, have resulted in multimillion-dollar settlements; some make headlines; many are dismissed. Defendants and judges “might roll their eyes at a case,” Sheehan said, “because, yes, it can be somewhat amusing. But I can proudly and honestly say I’ve never been sanctioned by a court for filing anything frivolous.”To the outside observer, some of the quiet comedy of Sheehan’s work comes from the fact that we don’t necessarily consider snack-food flavoring to be “real,” and from the startling idea that anyone would. For Sheehan, though, the farce is the deception itself. “ ‘Smokehouse’ almonds,” he muttered. “These almonds have never seen a smokehouse in their— and Blue Diamond never owned a smokehouse, either.” He has sued the company eleven times.
Sheehan’s firm occupies a suite in a five-story office building in Great Neck, a well-off village about forty minutes from Manhattan. It’s part of New York’s Third Congressional District, the one that elected George Santos and wishes it hadn’t. The village’s quaint center has the vaguely Tudor design of Brookline or Forest Hills, and a giraffe-print bench emblazoned with the words “great neck.” When I first visited Sheehan, he was alone, in a windowed office next to some cubicles. The space was undergoing noisy renovations—the firm had grown from two employees to eight in three years—and everyone else was working from home. Sheehan, who has a boyish face and affect, wore a pink gingham shirt and a thick tan cardigan. It was a seventy-five-degree spring day, and a space heater that said Comfort Zone was on.
Specialization can be really nice, like a warm blanket,” Sheehan told me. The day’s work included a Zoom call with an attorney representing Upfield, the margarine conglomerate; a meeting with a judge, involving a berry-flavored-Fanta case; updating a plaintiff about a Kroger apple-juice-cocktail situation (“ ‘Cocktail’ is one of those weasel words”); and writing a complaint in a “slack-fill” case, involving a too-empty box of Sour Jacks candy. Sheehan turned and smiled after typing “46% full” into a document. “I do some of my best work after everybody goes home,” he said.
Cases come to Sheehan via many sources, including leads from the public and his own observations. He gave me an example. “So somebody contacted me about those little Fireball bottles,” he said. He was talking about Fireball Cinnamon, a beverage that looks like a tiny bottle of Fireball Cinnamon Whisky—red cap, auburn-colored liquid, label bearing Fireball’s signature fire-breathing dragon. But Fireball Cinnamon doesn’t contain whiskey; it’s a malt beverage with whiskey flavors, which it indicates in fine print. Sheehan was suing its parent company, Sazerac, for fraud. “We’re used to seeing mini bottles of alcohol, and we expect it to be hard liquor,” Sheehan told me.
“Like, you wouldn’t buy a tiny beer,” I said.
“That’s right,” he went on. “When most people see it, especially in places like a gas station or convenience store, where they sell these ‘sin tax’ products—tobacco, the lottery, it’s up there with all the bad stuff—booze isn’t so far-fetched. You’re going to see something familiar and say, ‘Hey, I’ll buy it.’ ”
He looked into the Fireball situation, discovered that he had a potential case, and took out an ad seeking class members—people who’d assumed they’d been buying whiskey—on social media. “And it asked them to contact me, sort of like, ‘Have you or your loved one spent time at Ground Zero after 9/11?’ ” he said. “I’m sure we’ve all heard those ads on the radio or on TV.”Sheehan pays a marketing company to handle the
placement of his ads, primarily on Facebook, and to sometimes list them on Web
sites such as Top Class Actions, where people can peruse cases. He follows up
with those who respond, explains what’s involved (“I tell people that it’s
almost like jury duty or voting—don’t do this because you’re expecting any
money”), and files a lawsuit. Each case has a named plaintiff, someone who
represents the class, and who typically gets an incentive award if there’s a
settlement. “Usually a few thousand dollars,” Sheehan said. Sheehan is paid
through fees that accompany settlements; none of his clients are charged.
Sheehan views himself as a tribune of the masses. “We
are acting on behalf of the public,” he told me. “That’s what the
consumer-protection laws of each state are designed for.” Most regulations on
food labelling and representation emanate from the federal government, namely
the Food and Drug Administration. But states can supplement those laws—New
York’s proposed warning labels on sugary items, for example—and, more
important, decide how to enforce them. In Sheehan’s opinion, they barely
enforce them at all. “One of the differences between our country and places
like Europe, where they don’t have as many lawsuits, is that they have much
broader government enforcement and supervision,” Sheehan told me.
He tidied up some file boxes, which were full of empty
bottles and wrappers: Haribo, Annie’s, Hall’s, Perrier, Ice Breakers spearmint
Ice Cubes, Kellogg’s Harvest Wheat Toasteds, Twizzlers, and so on, all waiting
to be scrutinized. “People send me these things,” he said. It was time for his
Zoom call with August Horvath, a partner at the law firm Foley, Hoag, which
represents Upfield in the Country Crock Made with Olive Oil case. “He’s an
egghead, an intellectual,” Sheehan said. He and Horvath have squared off many
times, and their dynamic recalls the Looney Tunes wolf and sheepdog, who
exchange pleasantries before punching in for a day of battle. A blank box with
Horvath’s name appeared onscreen.
“Hello!” Sheehan said. “August, you’re not on video?”
“I’m not having a great hair day,” Horvath said.
Sheehan warned me not to talk much: “These guys love to fight about
everything.”
It’s a common experience in
consumerhood, and in life itself, to imagine that how something is presented at
least approximates its reality, and to be disappointed to discover that it does
not—that we’ve been hoodwinked, even if subtly, for the benefit of the seller.
(Think of Ralphie, in “A Christmas Story,” when his long-coveted decoder pin
from an Ovaltine-sponsored radio show finally arrives, only to reveal a secret
message that tells him to drink his Ovaltine.) Americans, especially,
understand the compact of commerce, and rarely begrudge our role in that
near-patriotic process. But nobody wants to be a sucker.
Salesmanship becomes particularly complex in the vast
middle of the supermarket, where “edible food-like substances,” as the writer
Michael Pollan has described them, are sold, between fresh produce on one end
and chilled dairy on the other. Makers of processed foods, which are the main
target of Sheehan’s investigations, expend considerable effort trying to
convince consumers that their products are healthy, “natural,” and desirable,
and we expend some effort believing them, often so that we can enjoy the
products’ deliciousness. “The field is all about connotation, whether verbal or
visual,” Jacob Gersen, the director of Harvard Law School’s Food Law Lab, told
me. “Traditionally, private market gets the front of the package, and
government gets the back.” Front labels give us images of farms and fields, and
talk of antioxidants, fibre, omega-3s, vitamins, and probiotics; on back
labels, we find “natural and artificial flavors,” high-fructose corn syrup,
carrageenan, soy lecithin, and xanthan and guar gums.
The gap between these realms is Sheehan’s wheelhouse.
On a humid day in August, Sheehan and I visited King Kullen, a supermarket in
Manhasset, Long Island. Sheehan approached its terrain the way a finely tuned
metal detector approaches a beach. “Potato rolls,” he said, picking up a
package and looking skeptical. “It might be impossible to make a roll that is
predominately potato flour.” He talked about the F.D.A. and its establishment,
in the nineteen-forties and fifties, of thousands of pages of standards, and
the particular challenges of artisanal bread. In the jelly-and-jam section, he
palmed a jar of Polaner All Fruit. “I had a case against this product,” he
said. “It’s not all fruit, because it has citric acid and natural flavor. I
even let them slide on the pectin.” He paused, then added, “There is no
technical barrier to selling a product that actually is all fruit.”
Much of Sheehan’s work—and the work of the judges and
lawyers he spars with—involves parsing the mind of the “reasonable consumer,” a
figure who, in her mystery and authority, can seem nearly mythical. As Sheehan
sees it, the reasonable consumer isn’t necessarily a highly educated
professional, or “LinkedIn type”; she’s a regular person with a regular job.
She trusts that a product’s name and packaging imagery closely resemble its
contents. In the view of most courts, she isn’t overly credulous—she expects
fruit in her jam, but not in her Froot Loops—and, to Sheehan’s repeated
frustration, she probably knows that “vanilla” denotes a flavor, not an
ingredient.
We passed a rack stocked with Sheehan’s old foe, Blue
Diamond Smokehouse Almonds. In one pending case, a court agreed that the bag’s
color scheme evoked fire, suggesting, wrongly, that the flavor was drawn from a
natural smoking process. Nearby, at the butter-and-margarine cooler, Sheehan
noted another layer of deception. “If it’s more than eighty per cent fat, they
have to call it margarine,” he said. “So they make it seventy-nine per cent.
Nobody wants to be called margarine.” He picked up a container of Country Crock
with Olive Oil; his suit is ongoing, but the company had already removed the
word “Made.” (Beside it: Country Crock with Avocado.)
A packet of tortillas reminded Sheehan of a suit in
which the company’s “use of a Mexican flag” overdid its supposed Mexicanness; a
row of flavored Poland Spring sparkling waters made him light up. “I’m
responsible for the change of this label, but nobody will ever admit that,” he said,
picking up a bottle of its lemon variety. “It used to say ‘a twist of lemon.’
This—‘lemon flavor’—is a little better, but not technically compliant.”
Sheehan’s case was dismissed, and the labels looked a little haphazard, as if
someone had added the word “flavor” under duress. (Poland Spring attributes the
change to “a brand refresh.”) In the dairy section, he pointed out a dubiously
Icelandic yogurt he’d sued (“It was made in Brooklyn or something. I thought
our case was very good”), mentioned cases he’d filed against various creamers,
and shook his head at a box of milk-chocolate-covered Dove ice-cream bars.
“These should say ‘milk chocolate and fat or vegetable-oil coating,’ ” he
said.
“That sounds disgusting,” I said.
“It might sound patrician, but it enables people to
make decisions of quality,” he said.
As we strolled the aisles, Sheehan, who hadn’t planned
to buy anything, picked up a basket and began to fill it. He rooted around a
floor-level canned-tomato shelf, telling me about San Marzano certification
standards, and noted a brand that was noncompliant: “That’s good, because now I
can sue them again.” He feistily observed that Kind granola’s large-font “10
grams of protein” claim assumes that you’ll be eating a cereal bowl full of it.
At self-checkout, Sheehan rang up several products to examine for potential
lawsuits, as well as a packet of dried apricots. “The problem with dried
apricots is, you eat the whole bag,” he said. Then we went for pizza, his usual
dinner; Sheehan doesn’t cook.
Sheehan, the son of a
speech therapist and a carpenter, grew up on Long Island, and on our drive he
pointed out his boyhood home, a tidy gingerbread-style house on a pleasantly
appointed street. Sheehan is unmarried and close to his family. (His mother lives
across town.) A vegetarian, he volunteers with local animal-rescue groups, and
he travels with a Havahart trap in his car, for capturing strays. He set up
heated sheds for feral cats in his mother’s back yard, opposes society’s
“anti-cat bias,” listens to the pro-cat radio personality and Republican
eccentric Curtis Sliwa, and does pro-bono work for people with “nontraditional
animal companions,” including the eighties subway shooter Bernhard Goetz, in an
eviction case involving an alleged pet squirrel. (The case was settled out of
court.) When I was in his office, he occasionally interrupted himself to reach
out to his parents—calling his mom “just to say hi” mid-discussion of wheat
labelling, sending his dad a video of a baby raccoon. “I love raccoons,” he
said, as the raccoon made squeaky noises.
Sheehan did well in school, but he didn’t have any
particular passions. He studied history at Georgetown and spent time in the
U.S. Marine Corps Reserve. He eventually went to law school, at Fordham, but he
didn’t have any particular ambitions there, either. After winning a
class-action suit against a streaming service—its subscriptions were
un-cancellable—he took on some food-related cases, and enjoyed them. He opened
his practice in 2013. “I take what I do very seriously,” he told me. “I enjoy
the intellectual aspects of it.”
Some would argue that he takes it too seriously—that
he’s a hammer searching for nails. I asked an attorney who has represented
several food companies about Sheehan’s work, and cases like it. “I’ve seen some
honestly good cases that Spencer has filed,” he said. At the same time, he went
on, “I think one of the necessary characteristics of a lawyer is a client—you
know, lawyers should be representing the interests of a party that is genuinely
aggrieved.” Sheehan’s clients are occasionally unsolicited, but many of them
are enlisted through ads. “And lawyers running around doing their thing without
clients is bad for society,” the attorney said. “I don’t want to romanticize it
too much, but in Japan, when the warlords collapsed, there were these samurai
just running around—they were just warriors with no masters, right? And they
were causing all kinds of trouble in nineteenth-century Japan.”
Sheehan’s warrior zeal is not entirely unrestrained. At
his office, a prospective client called, railing against the forces that sold
him a deconstructed Ping-Pong table. The man, a retired music producer (“Harry
Chapin, Bette Midler”), had ordered the table online, from Walmart, but it was
made by an overseas manufacturer. Reviews said that it was easy to set up; it
wasn’t. “It says ‘four-piece,’ but there are over three hundred pieces,” the
man said. “There is no manufacturing. The company is an absolute
lie.” He’d spent several days trying to put the table together, called Walmart
(“All they offer to do is send you another bag of parts!”), and thrown the
whole thing out in disgust. “This is gross,” he said.
Sheehan wasn’t optimistic. Walmart wouldn’t be liable,
and suing a foreign company would likely be fruitless. “I hate to tell people
this, especially when they have a legitimate complaint, but not everything that
is wrong can or should be fixed through a lawsuit,” he said.
“These guys are laughing at us!” the man said. “They
gather some material, they throw it in a box . . .” he trailed
off. “Imagine if you bought a car and they put a thousand pieces in your
driveway.” Sheehan suggested that the man “politely” write a review on
Walmart’s site, with pictures, then asked him to keep Sheehan in mind for
potential mislabelling cases, whether “a TV or a certain cosmetic product.” He
gave similar advice to a woman who wanted to sue the Post Office over a
P.O.-box imbroglio.
In the cases that Sheehan pursues, plaintiffs and
class members provide depositions, often over Zoom, in which they are sworn in,
pledge to tell the truth, and proceed to answer questions from an attorney
representing a multinational corporation about their experience with a can of
butter spray, a wedge of cheese, or a loaf cake. These can be strangely
poignant. The class members don’t evoke the snack-food equivalent of a
neck-brace-wearing personal-injury firebrand; they’re regular people describing
consuming a grocery item, with softly disappointing results. In the case of
Williams et al. v. Molson Coors, the defending attorney had one of Sheehan’s
clients, a gym-membership manager, recount her experience buying a twelve-pack
of Vizzy Hard Seltzer, which stressed the presence of “antioxidant vitamin C.”
“And when you saw the statement about antioxidant
Vitamin C, what did you take away from it?” the attorney, Chris Cole, said.
“Being in the health-and-fitness field, knowing
antioxidants play a good role in your daily life style and whatnot, I figured
they would be beneficial in, you know, negating some of the negative things
about alcohol,” the client said. They weren’t; she didn’t like the flavor,
either.
Cole asked how she’d expected to notice the effects of
the antioxidants. “You mean that there’s no immediate obvious feeling you get
after consuming Vitamin C?” he asked. No, she said. That cosmic detail
notwithstanding, the case proved successful—the seltzer was made with citric
acid, which is low in Vitamin C—and it resulted in a $9.5-million
settlement. Vizzy no longer makes claims about antioxidants.
Most Sheehan cases assert that a buyer would have
forgone purchasing a product, or expected to pay less, if it had been marketed
accurately. In May, I watched him prepare a named plaintiff, Stacey Castle, for
a deposition about Kroger’s Private Selection brand of smoked Gouda. Castle, on
a Zoom call from Wisconsin, had her hair in a loose bun, and her iPad camera
was angled up from below her chin. When she bought the cheese, she’d understood
it to be a justifiable splurge, because the Gouda was actually smoked. When she
realized it was not, she was sitting in her dining room. “I’m reading the back
label, ’cause I had the cheese sitting on the table,” she said. “My exact
thought was, You have to be shitting me.” She looked fired up.
“My pocketbook was!” she said.
The 1933 World’s Fair, in
Chicago, featured an exhibit known as the American Chamber of Horrors—a kind of
food-and-drug freak show of products that were up to no good. Strawberry Bred-Spred
was a jar of what appeared to be strawberry jam but was actually pectin, red
food coloring, and hayseeds. Noodles packaged in yellow cellophane, to resemble
egg noodles, were displayed alongside noodles in honest, untinted wrapping. A
bottle of vanilla extract, an expensive commodity, had deviously thickened
glass, creating an illusion of abundance. The Great Depression had strained
food sources to the limit, and producers, like many Americans, were desperate
to stay afloat. But the F.D.A., which had emerged after the passage of the 1906
Pure Food and Drugs Act, didn’t yet have the authority to recall products such
as Bred-Spred—or even some lethal drugs. So it created the Chamber of Horrors,
which travelled the country to raise awareness.
It takes a seismic jolt in mass consciousness to
regulate American commerce. One jolt arrived in 1905, when Upton Sinclair’s
“The Jungle” revealed the terrors of the meatpacking industry, and suggested
that a reader’s sausage might be flecked with rat feces or sawdust. (The book
had helped marshal support for the Pure Food and Drugs Act.) Another came in
1937, when more than a hundred people died after taking Elixir Sulfanilamide,
an antibiotic that hadn’t been tested for safety. The response was the 1938
Federal Food, Drug, and Cosmetic Act, a sweeping and robust set of laws, and
the basis of U.S. food regulations ever since.
The government has often been gung ho in its
health-education efforts: the U.S.D.A.’s nutritional guides and food pyramids,
seventies Saturday-morning-cartoon P.S.A.s, Michelle Obama’s Let’s Move!
campaign. But the arc of progress has been long. Nutrition labels weren’t
required until 1990, per-cent-juice labelling wasn’t widely introduced until
1994, and trans-fat labelling began in 2006. “Other countries have figured it
out,” Michael Pollan told me: front-of-package junk-food warnings in South
America, Asia, and Europe; a red-yellow-green stoplight system in the U.K. It
can take something like the F.D.A.’s fast-food-disclosure regulation of 2016,
in which McDonald’s customers were forced to contend with the calorie count of
their Big Macs, to remind us that the nature of what we’re eating could be
conveyed in a startlingly clearer way.
In the absence of such clarity, some of Sheehan’s
cases can make him seem like the boy observing that the emperor is naked.
Consider his whole-wheat-flour cases, which point directly to nutrition. “Whole
wheat,” Sheehan explained, means “whole grain,” which includes the three parts
of the wheat grain: the fibre-dense bran, the nutrient-rich germ, and the
starchy endosperm. It’s widely acknowledged to be better for you than white
flour, which contains only the endosperm, but all wheat-flour products,
including white, can legally be called “wheat,” and are often dressed up to
seem healthier than they are. Sheehan walked me through the tricks: adding
caramel color; adding oats to the outside of bread; giving bread a heartier,
richer, or mottled appearance. Companies “use vague terms like ‘multigrain’ or
‘honey oat’ or ‘honey wheat,’ with an image of a stalk of wheat,” Sheehan said.
He looked philosophical. “Some might say, you know, ‘Big Food has a conspiracy
to make us all fat and lazy.’ I don’t know if that’s the case, but I think they
might say people don’t like the taste of whole wheat as much.”
I asked Gersen, of Harvard, about how to regulate
ambiguous labelling. “It’s actually a much harder problem than I originally
thought,” he said. “Like, there’s a really strong incentive to over-claim and
deceive. Even if you say a reasonable consumer wouldn’t be tricked, it’s almost
certainly the case that somebody would. That’s why the company is doing
it. And across a lot of food products, across a lot of brands, across a lot of
the population, that’s actually not a trivial number of people.” In Sheehan’s
Country Crock complaint, he observes that consumer-research
organizations—namely Mintel, one of the largest in the world—advise companies
on how to respond to shifting demands, including by lending margarines and
spreads a healthier, more “natural” profile. When I talked to some Mintel
employees, they seemed to agree with Sheehan’s characterization, without taking
credit for it. “The one thing I find funny is this revolutionary new product
that’s been talked about the last couple of years: plant butter!” Lynn
Dornblaser, a product-trend analyst since 1986, said. She laughed. “I think
that’s margarine. But that has revitalized some brands—becoming ‘plant butter,’
or talking about being ‘plant-based,’ because plant-based is the hot, cool
thing.”
Defendants usually try to have Sheehan’s cases
dismissed, “which I always find to be somewhat offensive,” Sheehan said. “It
often feels like they’re trying to gaslight you.” He read Horvath’s response to
the Country Crock complaint. “What chutzpah! He says, ‘Has no basis to allege’?
I mean, no basis? That’s a little crazy.” Sheehan was bullish on the case’s
prospects, citing a precedent involving “whole-grain” Cheez-Its; and, indeed,
the Country Crock judge had scoffed at the defendant’s claim that “Made with
Olive Oil” was merely meant to convey “a flavor note.” “It’s fallen to lawyers
like this to offer any kind of accountability,” Pollan told me. “I don’t think
it’s the ideal way to do it. But it’s the way the government has left us to do
it.”
Around the time that Sheehan was marvelling at Country
Crock’s response, Democrats in Congress introduced the Food Labeling
Modernization Act, a bill that would dramatically change regulations for food
labels. “We’ve all struggled at times to navigate today’s opaque food labels
and ‘healthy’ marketing claims during trips to the grocery store,”
Representative Frank Pallone, Jr., of New Jersey, said. The legislation, he
continued, would make it easier for consumers to determine “the right food
choices for their families.” The bill’s co-sponsor, Senator Richard Blumenthal,
of Connecticut, said that the legislation would reform “antiquated” rules and
include “front of package labels, clearly marked allergens, and clarified
guidelines to deter misleading claims.” If enacted, the bill could be a boon
for consumers and disrupt the processed-food industry. For that reason and
others, it has little chance of becoming law.
Acouple of weeks after
Sheehan proudly and honestly told me that he’d never been sanctioned by a court
for filing something frivolous, a court threatened him with sanctions for
filing something frivolous. Judge Steven Seeger of the Northern District of
Illinois, after dismissing a complaint of Sheehan’s about the lack of lemon in
Polar lemon seltzer (“The complaint fizzles, and has no juice,” Seeger wrote,
in an opinion densely fortified with food zingers), issued an order requiring
Sheehan to provide the court with a list of all his firm’s class-action filings
since 2020, accompanied by explanations of their results.
In recent months, judges and defendants have begun to
challenge Sheehan’s suits more broadly. Illinois is home to Mondelēz
International, one of the world’s biggest producers of snack foods, which
encompasses brands from Oreo and Chips Ahoy! to Ritz, Triscuits, Cadbury, Sour
Patch Kids, and Tang—and, until 2022, Trident, Dentyne, Bubblicious, and other
gum brands. Sheehan had sued several of them, including Trident, a case that
Judge Iain D. Johnston, also of the Illinois Northern District, had
dismissed in February. (“When gum gets stuck somewhere it does not belong,
conventional wisdom provides a host of remedies: ice cubes, peanut butter,
vinegar, or olive oil,” Johnston wrote. “When a federal case gets stuck
somewhere it does not belong, the Federal Rules of Civil Procedure provide a
different, cleaner remedy.”) That month, Mondelēz, in response to the dismissal
of the Trident-gum case, requested sanctions against Sheehan, including payment
of its attorneys’ fees. Its request described him as a prolific filer of
“copy-and-paste” complaints; in May, Judge Johnston chose to remind Sheehan
that “spaghetti is best eaten, not thrown at walls,” and requested a copy of
the document that Judge Seeger had demanded.
That document, which Sheehan attached as a
thirteen-page spreadsheet in his response, “provides extraordinary insight into
the track record of most prolific consumer class action attorney in the United
States,” the lawyer Chris Cole wrote on his firm’s blog. Cole has defended clients
against Sheehan’s suits, including in the Vizzy Hard Seltzer case. “By my rough
count, between January 1, 2020 and April 7, 2023, Mr. Sheehan filed 553
complaints,” he wrote. “Of those, 120 (21.6%) were dismissed outright and 35
(6.3%) survived a motion to dismiss at least in part. The remaining 398
(roughly 72%) were either settled or are still pending.” Cole estimated,
conservatively, that since 2020 defense costs for Sheehan’s cases could have
amounted to forty-two million dollars.
Several reports stressing the frivolity of Sheehan’s
suits, and cases like them, have been generated by firms that represent
food-and-beverage companies. The New York Civil Justice Institute, which
describes itself as nonprofit and nonpartisan, published a paper in 2021 called
“Class Action Chaos,” by Cary Silverman, a partner at the firm Shook, Hardy
& Bacon, which represents food-and-beverage companies. “Class Action
Chaos,” which says that the suits are “making a mockery of the state’s
civil-justice system,” has been cited in national-news stories about Sheehan;
other lawyers I talked to in the food-law realm, including on the defendants’
side, disputed that characterization. They saw Sheehan’s suits as a product of
the failures of the tort system, or as a necessary corrective in an era of
gray-area regulation. Several skeptics admitted to me that some of his suits
have “some there there.” “Spencer won’t reject a case just because it has
merit,” one said, chuckling.
Though judicial scolding for Sheehan has increased,
sanctions, so far, have not. And this summer, Judge Seeger, of the copious
zingers and admonishments, directed his ire not toward Sheehan but toward his
opponent, B&G Foods, in a case concerning Crisco’s No-Stick Butter Cooking
Spray. In August, as we finished eating at the pizza parlor, I asked Sheehan
whether judges’ warnings would affect his behavior in the future. “No!” he
said. “Why should it? The only thing it affects is that I have to take time to
respond to those demands, rather than doing work.” He pointed at my plate. “Do
you want another slice?” ♦
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
- New note - On 1807.06, I ceased daily transmission of my Hey Mom feature after three years of daily conversations. I plan to continue Hey Mom posts at least twice per week but will continue to post the days since ("Days Ago") count on my blog each day. The blog entry numbering in the title has changed to reflect total Sense of Doubt posts since I began the blog on 0705.04, which include Hey Mom posts, Daily Bowie posts, and Sense of Doubt posts. Hey Mom posts will still be numbered sequentially. New Hey Mom posts will use the same format as all the other Hey Mom posts; all other posts will feature this format seen here.
No comments:
Post a Comment