Two recent putative food labeling class actions highlight the lengths to which the plaintiff’s bar is willing to go in hopes of striking pay dirt.  But, even assuming the claims have merit, and that’s a very big assumption, what damages can the plaintiffs claim to have suffered?  Where’s the beef?

For instance, in Laura Dana v. The Hershey Co.,4:15-cv-04453 (N.D. Cal.), plaintiff brought false advertising and consumer protection claims alleging that she wouldn’t have bought Hershey’s chocolate products if she had known that cocoa beans used to make Hershey’s chocolate was harvested by African child slaves.  Hershey countered by arguing, among other things, that the plaintiff’s claims were not based on any material misrepresentation, but rather that Hershey omitted mention of slave labor on its product packaging.  (Although still pending, the case’s future remains doubtful in light of a recent decision dismissing a similar putative class action filed against Mars.  See Robert Hodson et al. v. Mars Inc. et al., 3:15-cv-04450 (N.D. Cal.))  Similarly, in a putative false advertising class action filed last week,  plaintiff alleged that a food maker’s representation about “100% Grated Parmesan Cheese” was false because it mischaracterizes the amount and percentage of Parmesan cheese in the container.  See Lewin v. Kraft Heinz Foods Co., case number 3:16-cv-00823 (N.D. Cal.).  Specifically, plaintiff asserted that the presence of at least 3.8% cellulose — a filling agent — in the cheese, rendered the manufacturer’s 100% claim misleading.   Had the plaintiff known about the cellulose, she would not have paid a “premium price” of $3.99 for the cheese.  Or so she claims.

These suits beg a fundamental question: what are the plaintiffs really after?  Do they want a refund (as appears to be the suggestion on Lewin)?  Or do they want to effect some sort of corporate policy change (as appears to be one of the goals in Dana)?   These “deceptive” advertising cases highlight a significant problem with some class action litigation: frivolous issues driving massive costs.  Never mind the slim likelihood that other class members have kept proof that they purchased the products in question during the relevant time frame, if ever.  There may not be much a manufacturer can do to avoid these suits — can’t stop people from suing in America — but courts should take a long, hard look at these types of cases and whether they can be disposed of before costs pile up.  We’ll continue to monitor developments in this area of consumer products litigation.