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Orange Juice Decision Shows the True Silliness of Many Food Lawsuits

Institute for Legal Reform, January 30, 2018

Last week, a New Jersey judge “squeezed out” lawsuits in multidistrict litigation alleging that Tropicana falsely represented its orange juice as “all-natural.”

The orange juice pun might be silly, but food litigation continues to serve a serious portion of stress and confusion—costing businesses time and money.

In 2017, the U.S. Chamber Institute for Legal Reform (ILR) released a research paper that documented the growing food litigation machine. That paper found the number of food class action lawsuits filed in federal court grew 750 percent between 2008 and 2016.

Food lawsuit filings continued at a steady pace throughout 2017, no matter how ridiculous they may be. Take the lawsuit against Krispy Kreme from last February, in which someone sued the doughnut company because their “raspberry-filed” doughnuts did not have actual raspberries in them, and deprived consumers of the related health benefits. That case sparked even more lawsuits against other doughnut companies.

Lawsuits like those might bring a laugh, but they also come with major consequences. As that report stated, it “costs virtually nothing, aside from a nominal court fee, for a plaintiffs’ lawyer to file a cut and-paste complaint.” The cost is on the business to defend itself.

Of course, the lawyers who file these copycat suits on the cheap are the only true beneficiaries, as they walk home with a big payday while consumers get almost nothing. For example, the lawyers took home $3.4 million in a 2013 suit against Red Bull because consumers didn’t literally grow wings, as promised by the slogan. Consumers? They got their choice of four free cans or $4.23.

Thankfully, judges have tossed a few ridiculous food lawsuits down the garbage disposal. The most egregious of these cases was litigation over Subway’s ‘Footlong’ sandwiches, which sometimes do not come out to exactly 12 inches in the baking process. The judge tossed the case, which would have given lawyers $500,000 of the $525,000, saying it was “no better than a racket.”

Similarly, a judge tossed 50 consolidated class actions over “100% Grated Parmesan” cheese that had a “trivial amount” of cellulose, which stops the cheese from clumping. The court said that if reasonable consumers wanted to see if there was anything other than cheese in there, they "would know exactly where to look to investigate- the ingredients list."

This orange juice lawsuit is the latest example of common sense besting litigation. In an opinion piece last year, ILR President Lisa A. Rickard laid out four simple fixes that all levels and branches of government should take up:

  • Congress should pass the Fairness in Class Action Litigation Act, which will alleviate many of the problems with food litigation eliminating “no-injury” class actions and requiring that the majority of settlement dollars go to the class members, instead of to the lawyers.
  • Courts should reject attorney fee awards that are disproportionate to the actual benefit to consumers.
  • State legislatures should amend consumer protection statutes to require that plaintiffs show actual injury, reliance, and out-of-pocket loss.
  • Regulatory agencies should provide clarity on common labeling terms, and closing off further litigation avenues.

The U.S. Supreme Court’s landmark Bristol Myers-Squibb decision could also help stop these ridiculous lawsuits. That decision last year limited the ability of plaintiffs’ lawyers to file lawsuits on behalf of out-of-state plaintiffs. ILR research found that more than three-quarters of 2016’s food lawsuits were filed in just four states. That trend will only continue unless jurisdiction rules are properly applied.

Reining in food litigation abuse should be a no-brainer. It is clear the system is being gamed by plaintiffs’ lawyers, who file copy-and-paste lawsuits and take home the lion’s share of any settlement. In the meantime, we’ll just have to hope that when plaintiffs’ lawyers dish out crazy food lawsuits, the courts serve them up a warm plate of common sense.