August 23, 2011
The plaintiff, Kevin Shenkman, is both Jewish and vegetarian, so the presence of pork in the beans is doubly offensive to him.
According to the complaint, Shenkman specifically asked and was assured by several Chipotle employees that the beans “were not prepared with and did not contain bacon and/or pork.”
Induced by this response, Shenkman purchased and consumed the beans on several occasions and from several different locations.
If this allegation by itself turns out to be true (which could easily be the case), Shenkman, suing only as an individual, has a pretty strong argument.
However, only as an individual, Shenkman probably wouldn’t see a particularly significant amount in damages (although that could change if extensive injuries were alleged, as was the case with another pork lawsuit).
The complaint is also seeking class action certification, claiming that the deception is widespread, and either done intentionally or negligently.
I don’t know how stores operate nationwide, but I’ve known almost as early as I had started patronizing Chipotle eight or nine years ago that the pinto beans were not vegetarian and contained pork.
I uncovered this information not through any extraordinary investigations, but simply by asking the food preparer.
Since I never asked again, I don’t know whether other locations would have given me a different answer.
Nevertheless, Thomson Reuters News & Insight’s piece on the topic seems to suggest that the presence of bacon in Chipotle’s pinto beans is a relatively new revelation, pointing to a July 29, 2011 tweet by a senior Maxim editor:
“After more than a decade of ordering Chipotle pinto beans, I was told they have bacon. As a non-pork eater, I feel ill. cc: @ChipotleMedia.”
Also according to the article, Shenkman’s lawyer said that “the suit will come down to whether a reasonable consumer would expect the pinto beans to contain pork.”
While that’s probably true, the exact parameters of “reasonable consumer” here are tricky to pin down.
The average, reasonable consumer probably wouldn’t expect to find pork in the beans, though nor would they expect to find it in marshmallows, which normally contain pork as well.
Of course, these revelations probably wouldn’t matter to average consumers.
They do matter to those with dietary restrictions, such as Jews and vegetarians.
The difference is that the vast majority of those with dietary restrictions are accustomed to asking about the content of any questionable food, just as Shenkman did with the beans.
Unfortunately, Chipotle gave him the wrong answer.
Consequently, the suit will instead probably come down to whether a reasonable consumer would be expected to inquire into whether there’s pork in the beans, and if “yes,” then to the frequency of Chipotle’s misrepresentations.
It wouldn’t have taken much effort for Chipotle to disclaim the content of the beans in its menu, though, and its failure to do so may raise questions in court as to their intentions.
By the same token, the problem is easy to fix, and the lawsuit will probably get settled out of court.
In the end, this is, unfortunately, another suit that could have been prevented with better trained restaurant staff.