June 16, 2011
Well, maybe not “easy,” but it’s possible.
Look no further than a recently-filed lawsuit as proof.
Jeannette Ford-Soon, a California grandmother, is suing Kraft Foods, owner of Nabisco, over alleged misleading labeling and marketing of Teddy Grahams.
By stating that Teddy Grahams “Help Support Kids’ Growth and Development.”
On its own, that statement probably doesn’t amount to the kind of deception actionable under any of the legal theories Ford-Soon is suing under.
The phrase is too vague to reasonably attribute specific characteristics to a product carrying it.
Luckily, the complaint has a photograph of a box of Teddy Grahams that expands on the phrase.
In full, the text on the front of the box reads, “A good source of Calcium, Iron, Zinc to Help Support Kids’ Growth and Development.”
That phrase actually attributes a more specific quality to the product, and the absence of such a quality would probably constitute deception.
The complaint alleges both that Nabisco has marketed the product without any scientific data to support its assertions, and that the amounts of calcium, iron, and zinc in Teddy Grahams are insufficient to meet dietary guidelines for children.
Hot Doc: Ford-Soon v. Kraft Foods
If these assertions turn out to be supported by sufficient evidence, damages would be within reach for Ford-Soon.
What would the damages be, though?
Curiously, Ford-Soon does not ask for a full refund from all of the boxes purchased.
Instead, she claims Kraft has artificially inflated the price of Teddy Grahams by using the false claim of the crackers’ nutritional value.
As damages, she seeks the difference in value between the inflated and unadjusted price, although the complaint specifies neither an unadjusted price nor any method of calculating it.
It does, however, request attorneys’ fees and punitive damages, both of which will far exceed any actual damages awarded.
While that may make more than a few people think that Ford-Soon is only looking for a payout, this case strikes me more as a “policy suit,” meaning that the lawsuit aims to affect public policy areas typically reserved for a legislature.
Specifically, it is going after companies that try to market their product as health food when it is probably closer to junk food.
While this is a legitimate concern, it’s probably better directed at the legislature to tackle than the courts.
However, this case’s legal merits are stronger than other “policy suits,” namely a certain lawsuit against Chuck E. Cheese’s, so it may yet succeed on its legal merits.
More broadly, though, why does it seem like these suits are getting to be more common?
It could be that the increase is only indicative of a general increase in lawsuits.
Conversely, I think that it’s because legislatures are increasingly hesitant to regulate industries, for whatever reason.
So while it used to be a citizen’s best recourse for changing public policy rested with the legislature, courts seem to be more responsive to the individual citizen nowadays.
How’s that for irony: the judiciary, long-heralded as the least democratic of the three government branches, is becoming the most responsive to the citizenry.