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--:-- Noel King: It's Today Explained. I'm Noelle King. In 2021, a record was set. And when 2022 ends in a few weeks, that record will likely be broken yet again.
--:-- Noel King: Last year, lawyers filed a record-breaking 325 class-action lawsuits against food and beverage companies for misleading consumers, according to Perkins Coie, a law firm that keeps track of such things.
--:-- Noel King: A woman has filed a lawsuit against Kellogg's. New York resident Elizabeth Russett claims the strawberry Pop-Tarts do not contain, well, enough strawberries.
--:-- Noel King: An Illinois woman is suing after finding out the mozzarella sticks sold with the TGI Friday's branding does not actually contain mozzarella.
--:-- Noel King: The man who filed many of these lawsuits has earned the nickname the Vanilla Vigilante.
--:-- Noel King: Yeah, I would say I'm wired a little bit different. Coming up, we ask this man, Spencer Sheehan, what motivates him on a quest that may seem absurd.
--:-- Noel King: And we dig into what consumers, you and me, get out of it.
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--:-- Noel King: It's Today Explained. I'm Noelle King. Spencer Sheehan is a lawyer based in New York who specializes in consumer protection cases.
--:-- Noel King: What is he protecting consumers from? A thing that might seem minor to you, to me, but to him is a very big deal.
--:-- Noel King: Misleading food and beverage labels.
--:-- Noel King: 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 elementary school birthday party.
--:-- Noel King: For 50 years, people have been coming to A&W drive-ins for our rich, natural-tasting, old-fashioned root beer.
--:-- Noel King: And for many years, A&W and on the root beer and cream soda advertised it as made with aged vanilla.
--:-- Noel King: A&W root beer is crafted with premium ingredients like aged vanilla. For a straight from the barrel taste.
--:-- Noel King: And in fact, there's practically no real vanilla, aged or non-aged, in the product.
--:-- Noel King: Instead, the only vanilla taste is due to artificial vanillin.
--:-- Noel King: Ramirez versus Kraft. This big lawsuit is about Kraft's Velveeta shells and cheese cups, and the company's claim that it takes only three and a half minutes to make it a microwave.
--:-- Noel King: The plaintiff from here in South Florida says that's a lie, and she's suing for false advertising.
--:-- Noel King: 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.
--:-- Noel King: And it's our intention that the label should be changed to reflect the time that it actually takes.
--:-- Spencer Sheehan: 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.
--:-- Spencer Sheehan: And while, of course, this macaroni and cheese is, you know, an example that, you know, 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.
--:-- Spencer Sheehan: And that's, you know, where I come in, or at least, you know, where my work is relevant.
--:-- Spencer Sheehan: 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?
--:-- Spencer Sheehan: What do you think is going on here? What feelings does this evoke in you?
--:-- Spencer Sheehan: Yeah, I would say I'm wired a little bit different. And, 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.
--:-- Spencer Sheehan: Just the smallest little things I'd see at the corner of my eye that, you know, bother me.
--:-- Spencer Sheehan: And sometimes I wish that I could just, you know, go past them.
--:-- Spencer Sheehan: Maybe it's a table. It's not even at a restaurant that I'm at. Or maybe it's a glass that, you know, has a crack in it.
--:-- Spencer Sheehan: So things like that, I just, it's hard for me to look away from those things.
--:-- Spencer Sheehan: But I also recognize that there is humor in these types of things and they don't challenge that.
--:-- Spencer Sheehan: And I'm never going to, you know, be so serious and say, oh, this is the most serious thing.
--:-- Spencer Sheehan: And, you know, this is more important than curing cancer or, you know, giving equal rights to underprivileged groups.
--:-- Spencer Sheehan: It's not a choice between one or the other.
--:-- Spencer Sheehan: Just by writing, you know, many of these cases off, as, you know, many people who might click on an article might do.
--:-- Spencer Sheehan: Absolutely.
--:-- Spencer Sheehan: I mean, I don't blame them for thinking, oh, this is so silly.
--:-- Spencer Sheehan: And, you know, making comments or just thinking, well, that's so zany.
--:-- Spencer Sheehan: I mean, I completely understand that.
--:-- Spencer Sheehan: Do you get tips from people? Or are these things that you notice when you're in the grocery store?
--:-- Spencer Sheehan: Certain cases yes
--:-- Spencer Sheehan: There are things that I become aware of on my own
--:-- Spencer Sheehan: And like any other attorney I can then inform others of that
--:-- Spencer Sheehan: And then they can tell me yes that something that I experienced
--:-- Spencer Sheehan: And I'd like to do something about that.
--:-- Spencer Sheehan: For many of the cases, that's how they originate.
--:-- Spencer Sheehan: But for many, like this macaroni and cheese, it's legitimately from a third party or, you know, somebody who I don't know who contacts me.
--:-- Spencer Sheehan: And while the macaroni and cheese one was filed, I would say at least 90 percent 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.
--:-- Spencer Sheehan: You probably wonder, wow, what does he think is silly?
--:-- Spencer Sheehan: Yeah, I got to say that does come to mind.
--:-- Spencer Sheehan: What what counts as silly for you?
--:-- Spencer Sheehan: Something that I often get is when people come to me about the pictures on a package not looking like the contents.
--:-- Spencer Sheehan: And that happens every week.
--:-- Spencer Sheehan: We all know what pictures on a box of food look like, and especially in the area of microwave and frozen meals.
--:-- Spencer Sheehan: They look very delicious.
--:-- Spencer Sheehan: But we also know that after we microwave that food or heat it up, it's not going to look like that.
--:-- Spencer Sheehan: That's one of them that I believe is, you know, unfortunately not at the top of my list for cases to do.
--:-- Spencer Sheehan: What changes have your lawsuits brought?
--:-- Spencer Sheehan: We are responsible, although it won't be publicly disclosed, for the removal of the A&W made with aged vanilla claim from their root beer and cream soda.
--:-- Spencer Sheehan: Also, I would point you to the Frito-Lay case against the hint of lime Tostitos.
--:-- Spencer Sheehan: This time, Tostitos is in the hot seat over its lime-flavored tortilla chips.
--:-- Spencer Sheehan: 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.
--:-- Spencer Sheehan: I thought that case was kind of interesting because they were selling these tortilla chips advertised as, you know, hint of lime.
--:-- Spencer Sheehan: And there was a transparent lime-shaped window on the front of the package.
--:-- Spencer Sheehan: You're probably wondering, what makes these chips taste so good?
--:-- Spencer Sheehan: Here's a hint. It's lime.
--:-- Spencer Sheehan: They taste like lime.
--:-- Spencer Sheehan: 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.
--:-- Spencer Sheehan: It says they're, you know, flavored.
--:-- Spencer Sheehan: 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.
--:-- Spencer Sheehan: Nobody likes to say that word flavored. It's a four-letter word when it comes to labeling products because if you have to get into the flavor of something, then you lack the something that you're seeking to impart the flavor of.
--:-- Spencer Sheehan: So that's why the flavor word is often obscured and sort of placed in locations that render it inconspicuous.
--:-- Spencer Sheehan: Is this just a form of, and forgive me for the expression, is this just a form of ambulance chasing?
--:-- Spencer Sheehan: You can make a consistent living as long as you find these small ways in which food and beverage companies are screwing up.
--:-- Spencer Sheehan: And they will. They will reliably screw up.
--:-- Spencer Sheehan: 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.
--:-- Spencer Sheehan: 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 reviewed.
--:-- Spencer Sheehan: And that companies would know that they should be more conservative with the way they represent it, lest the government not allow it to be distributed.
--:-- Spencer Sheehan: The same thing about the small benefits that can be said about a lot of different areas of law.
--:-- Spencer Sheehan: It's small, but it's multiplied by millions of people who see these things.
--:-- Spencer Sheehan: Yes, it's hard to measure.
--:-- Spencer Sheehan: 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?
--:-- Spencer Sheehan: 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.
--:-- Spencer Sheehan: It's impossible to envision a scenario where everybody is going to follow what we believe are the accurate regulations and guidelines for representing their products.
--:-- Spencer Sheehan: 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.
--:-- Spencer Sheehan: And that's just the nature of laws.
--:-- Spencer Sheehan: 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: Lying to or misleading consumers on food labels seems like a thing that shouldn't be happening all that often, and yet it is.
--:-- Spencer Sheehan: Coming up, why it's taking lawsuits to get food companies to stop.
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--:-- Noel King: Today Explained, we're back with Helena Bademiller-Evich, who's the founder and editor-in-chief of Food Fix, a newsletter about food policy.
--:-- Helena Bademiller-Evich: They can kind of be both at the same time.
--:-- Helena Bademiller-Evich: I mean, it's a really good question.
--:-- Helena Bademiller-Evich: Are consumers really harmed by maybe being confused about vanilla flavoring, right, which is what those lawsuits are about?
--:-- Helena Bademiller-Evich: Is that an important question?
--:-- Helena Bademiller-Evich: I think a lot of consumers would probably say it isn't.
--:-- Helena Bademiller-Evich: But a lot of litigation like this, similar litigation around questions like, you know, calling something natural, is that misleading?
--:-- Helena Bademiller-Evich: Those lawsuits have really changed industry practices.
--:-- Helena Bademiller-Evich: They've led to less labeling of natural on food products because there were so many lawsuits.
--:-- Helena Bademiller-Evich: So it does change behavior and it does rein in some of this marketing.
--:-- Helena Bademiller-Evich: But whether or not there's a real public health issue, I think, is a separate question.
--:-- Helena Bademiller-Evich: I was surprised when the attorney told me that he has filed hundreds of these lawsuits over the past couple of years.
--:-- Helena Bademiller-Evich: That seems like a lot.
--:-- Helena Bademiller-Evich: Is the pace of this kind of litigation increasing?
--:-- Helena Bademiller-Evich: Are we seeing more of these?
--:-- Helena Bademiller-Evich: It is absolutely increasing.
--:-- Helena Bademiller-Evich: 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.
--:-- Helena Bademiller-Evich: Oh, you know him.
--:-- Helena Bademiller-Evich: 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?
--:-- Helena Bademiller-Evich: And he's specifically named in that report.
--:-- Helena Bademiller-Evich: That's how prolific he is.
--:-- Helena Bademiller-Evich: But there's no question overall these lawsuits have increased.
--:-- Helena Bademiller-Evich: 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.
--:-- Helena Bademiller-Evich: And they've really increased in the last year or two.
--:-- Helena Bademiller-Evich: And I think a lot of that increase is lawsuits specifically from that attorney.
--:-- Helena Bademiller-Evich: Why do you think we're seeing more litigation?
--:-- Helena Bademiller-Evich: Is there something other than this one man?
--:-- Helena Bademiller-Evich: Over time, consumers have gotten a lot more interested in their food, where it comes from, you know, marketing claims surrounding it.
--:-- Helena Bademiller-Evich: They are more interested in healthy eating.
--:-- Helena Bademiller-Evich: 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?
--:-- Helena Bademiller-Evich: Because they might feel frustrated when a claim they thought was being made maybe doesn't match up with reality.
--:-- Helena Bademiller-Evich: So there's that.
--:-- Helena Bademiller-Evich: And then I think also money.
--:-- Helena Bademiller-Evich: 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.
--:-- Helena Bademiller-Evich: So there's a lot of money at stake.
--:-- Helena Bademiller-Evich: And I think the food industry in some ways has made itself sort of an easy target.
--:-- Helena Bademiller-Evich: I mean, there's a lot of ridiculous labels out there.
--:-- Helena Bademiller-Evich: I'm a reporter who covers food policy and I am confused about food labels, right?
--:-- Helena Bademiller-Evich: Like I get duped.
--:-- Helena Bademiller-Evich: I am just as confused as I think a lot of consumers find themselves.
--:-- Helena Bademiller-Evich: There's just a lot of claims being made and it's really hard to tell what's real and what's not sometimes.
--:-- Helena Bademiller-Evich: In what way do you get duped?
--:-- Helena Bademiller-Evich: I find the egg section particularly fraught, like the claims around eggs, cage-free, pasture-raised, you know, on pasture.
--:-- Helena Bademiller-Evich: Some of them actually give space requirements 108 square feet per bird.
--:-- Helena Bademiller-Evich: 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.
--:-- Helena Bademiller-Evich: To that end, when Frito-Lay claims that their chips have a hint of lime that is, in fact, a hint of lime flavoring.
--:-- Helena Bademiller-Evich: Why does it take a lawsuit to make them stop doing that?
--:-- Helena Bademiller-Evich: Isn't there a government agency that regulates this kind of marketing?
--:-- Helena Bademiller-Evich: So FDA, for sure, is on the lead for the labeling of at least the products they oversee, right?
--:-- Helena Bademiller-Evich: So that's about 80 percent of the food supply, a lot of packaged foods, fruits, vegetables, basically everything except for meat.
--:-- Helena Bademiller-Evich: That's USDA, right?
--:-- Helena Bademiller-Evich: So USDA actually pre-approves labels.
--:-- Helena Bademiller-Evich: They have a much more hands-on approach, yes.
--:-- Helena Bademiller-Evich: They have to approve all labels for meat and poultry products.
--:-- Helena Bademiller-Evich: And so FDA is in a much more passive position, right?
--:-- Helena Bademiller-Evich: So they do set rules.
--:-- Helena Bademiller-Evich: But FDA as an agency has a ton on its plate.
--:-- Helena Bademiller-Evich: They're also in charge of food safety for 80% of the food supply.
--:-- Helena Bademiller-Evich: And a lot of experts would tell you they are, you know, they don't necessarily have the resources to really fully do that job as consumers expect them to.
--:-- Helena Bademiller-Evich: And so things like food labeling, you know, is everything exactly as it should be?
--:-- Helena Bademiller-Evich: It's not necessarily the top priority of FDA to be out there like policing labels.
--:-- Helena Bademiller-Evich: 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?
--:-- Helena Bademiller-Evich: 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.
--:-- Helena Bademiller-Evich: Let me ask you about a big one.
--:-- Helena Bademiller-Evich: What does it take for something to be called healthy?
--:-- Helena Bademiller-Evich: 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.
--:-- Helena Bademiller-Evich: FDA has spent seven years trying to update this standard and we just came out with a proposed rule to do that.
--:-- Helena Bademiller-Evich: Essentially it you know making sure right now we have a limit on fat total fat It has to have a certain amount of iron, calcium.
--:-- Helena Bademiller-Evich: It has to have some of the good stuff, right?
--:-- Helena Bademiller-Evich: So FDA has rules around what can, I guess we would say, nutrients of, you know, with health benefits, right?
--:-- Helena Bademiller-Evich: So there's some rules around that.
--:-- Helena Bademiller-Evich: FDA is proposing adding some criteria to that to actually make it stricter and to include a cap on added sugar.
--:-- Helena Bademiller-Evich: Under the existing healthy definition, oily fish like salmon would not be allowed to carry the healthy claim on its label.
--:-- Helena Bademiller-Evich: But cereals, get this, sweetened with sugar and packed with sodiums could.
--:-- Helena Bademiller-Evich: 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.
--:-- Helena Bademiller-Evich: So cereals, they take off certain boxes that meet current standards, whereas salmon naturally contains high levels of fat, which are considered bad back in 1994.
--:-- Helena Bademiller-Evich: 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 percent of their total calories.
--:-- Helena Bademiller-Evich: So actually not that much in the grocery store is right now labeled healthy.
--:-- Helena Bademiller-Evich: Only 5 percent of products in a grocery store have that label.
--:-- Helena Bademiller-Evich: And that's before FDA makes the definition more strict.
--:-- Helena Bademiller-Evich: How are misleading claims on labels brought to the attention of the FDA, if not for lawsuits?
--:-- Helena Bademiller-Evich: Does the FDA have like super shoppers that go around and look themselves?
--:-- Helena Bademiller-Evich: That's a really good question.
--:-- Helena Bademiller-Evich: And if they do, I want to profile them.
--:-- Helena Bademiller-Evich: I think a lot of it, frankly, is competitors that raise concerns.
--:-- Helena Bademiller-Evich: So, 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.
--:-- Helena Bademiller-Evich: I think that's a big way the FDA gets certain things on their radar.
--:-- Helena Bademiller-Evich: But lawsuits do, I think, affect the industry behavior in a way that is much broader and also, frankly, quicker.
--:-- Helena Bademiller-Evich: 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.
--:-- Helena Bademiller-Evich: And after a ton of lawsuits, food companies are much less willing, I think, to go out on that limb, right?
--:-- Helena Bademiller-Evich: Because if you know you're going to face litigation over it, it's sort of like, why deal with it?
--:-- Helena Bademiller-Evich: But on the flip side, FDA has been totally unwilling to define what is natural, right?
--:-- Helena Bademiller-Evich: Because if FDA had a definition, then you wouldn't be able to get traction in the courts, right?
--:-- Helena Bademiller-Evich: Because it's a decided issue.
--:-- Helena Bademiller-Evich: Yeah.
--:-- Helena Bademiller-Evich: And there's rules.
--:-- Helena Bademiller-Evich: So the food industry for a long time really wanted to see FDA, like, define natural so that it would be a safe term for them to use.
--:-- Helena Bademiller-Evich: And the agency never did and probably never will because it's just it's a really hard thing to define.
--:-- Helena Bademiller-Evich: How has the food and beverage industry responded to these lawsuits, especially to the increase in these lawsuits?
--:-- Helena Bademiller-Evich: Well, it is certainly keeping defense lawyers employed.
--:-- Helena Bademiller-Evich: There's a lot of work, right?
--:-- Helena Bademiller-Evich: So as these lawsuits have exploded, it's not only been work for the plaintiff's bar, but also the defense bar.
--:-- Helena Bademiller-Evich: So, you know, they're defending them, right?
--:-- Helena Bademiller-Evich: And they are in some of these getting a lot of traction.
--:-- Helena Bademiller-Evich: I think the vanilla lawsuits have been mostly dismissed.
--:-- Helena Bademiller-Evich: There's not, not every issue is going to get traction in the courts.
--:-- Helena Bademiller-Evich: And so even when they don't get traction, however, though, it's a big expense.
--:-- Helena Bademiller-Evich: This is just a prime example of what we call lawsuit abuse.
--:-- Helena Bademiller-Evich: 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.
--:-- Helena Bademiller-Evich: You now have a food industry that is very mindful of lawsuits, right?
--:-- Helena Bademiller-Evich: 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?
--:-- Helena Bademiller-Evich: I think that is a much bigger factor in the decisions that food companies make now.
--:-- Helena Bademiller-Evich: What's the biggest thing these lawsuits accomplish?
--:-- Helena Bademiller-Evich: I think they do rein in marketing a tad on food labels.
--:-- Helena Bademiller-Evich: I think looking at things like, you know, the baby food lawsuits.
--:-- Helena Bademiller-Evich: 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.
--:-- Helena Bademiller-Evich: Those could potentially have more of an impact because they do push the food industry, the baby food manufacturers, to then push FDA harder to set standards, right?
--:-- Helena Bademiller-Evich: We don't have heavy metal limits for most baby foods.
--:-- Helena Bademiller-Evich: And therein lies the issue here, right?
--:-- Helena Bademiller-Evich: Without clear federal standards, there's more gray area.
--:-- Helena Bademiller-Evich: And I think more gray area leads to more litigation.
--:-- Helena Bademiller-Evich: 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.
--:-- Noel King: Today's show was produced by Victoria Chamberlain and edited by Matthew Collette.
--:-- Noel King: It was engineered by Paul Robert Mounsey and fact-checked by Laura Bullard.
--:-- Noel King: The rest of our team includes Amanda Llewellyn, Halima Shah, Avishai Artsy, Hadi Moagdi, Miles Bryan, Victoria Chamberlain, Afim Shapiro, Siona Petros, and my co-host Sean Ramosveram.
--:-- Noel King: Our supervising producer is Amina El-Sadi.
--:-- Noel King: We use music from Breakmaster Cylinder and Noam Hassenfeld.
--:-- Noel King: I'm Noelle King.
--:-- Noel King: Today Explained is part of the Vox Media Podcast Network, and we are distributed to public radio stations across the United States by WNYC.
--:-- Noel King: Thank you.
--:-- Noel King: Thank you.
