Classless Actions

Feb. 12, 2021

Wasting the time of the justice system.

A couple of class action lawsuits relating to food illustrate how the justice system can get silly or worse.

On the silly side, we have the Case of the Missing Vanilla Beans. Spencer Sheehan, a lawyer from Long Island, has filed numerous lawsuits across the country, against processors like Keurig Dr Pepper, taking them to task for using the word “vanilla” in products that are flavored with nary a vanilla bean. (Keurig’s transgression was A&W Root Beer, a can of which got Sheehan started on his quest.)

Talk about a fat target. Most “vanilla” processed foods and beverages use artificial flavoring, because the world doesn’t have enough vanilla beans to go around. Using true vanilla would make almost everything that is now vanilla-flavored prohibitively expensive.

Sheehan presumably knows this; I don’t believe he’s on a crusade to bring true bean-derived vanilla to the masses. The point of this suit is the same for every other such suit: To get a fat settlement for the lawyer, while the consumer “class” gets maybe a coupon for 50 cents off. The most extreme remedy available would maybe be to force a processor to add the word “artificial” to its ingredient label. The American justice system has served more noble purposes than this.

Turning from the silly to the sordid, we have the phenomenon of lawyers taking on baby food.

A committee of the U.S. House recently issued a report highlighting a chronic problem: Unacceptable levels of heavy metals in baby food. Investigators reported finding concentrations of arsenic, cadmium, and lead in popular brands of baby food that were far in excess of what the FDA allows for other products. Bafflingly, the FDA does not set limits on heavy metals in baby food, with the exception of arsenic in rice-based cereal – and even that limit was exceeded in several cases. This isn’t the first time this situation has received attention: a 2019 report from a consumer group detailed much the same thing.

Enter the personal-injury law firm of Baum Hedlund Aristei & Goldman, based in Los Angeles, which is now soliciting clients for a class-action lawsuit it hopes to bring in the wake of that Congressional report.

For a class-action suit, you need plaintiffs who allege to have been harmed by the product or conduct in question. BHA&G is trying to sign up parents of children who deal with autism, ADHD or related disorders. The legal theory is that consumption of heavy metals is “associated with” those disorders.

Well, autism has also been “associated with” childhood vaccines, and we all know how that turned (and is still turning) out. You can “associate” autism with just about anything you like, because no one knows what causes it.

Yes, it’s weird and arguably scandalous that the FDA has done next to nothing to regulate heavy metals in baby food. But the courts are not set up to adjudicate just how much cadmium in strained peas is too much. Trying to resolve issues like this by making a plaintiff class out of thin air is foolish.

Worse than foolish, because it exploits the anguish of parents of autistic children. This issue is a little personal for me, because my late brother struggled with autism throughout his life. Maybe that’s why I resent seeing the emotions of these parents whipsawed as people try to tell them that this, that or the other thing is to blame for their child’s condition.

Baby foods with excessive levels of heavy metals deserve opprobrium, to be sure; there’s no comparison between them and measles vaccine. But it’s just as despicable to use the specter of childhood autism against the former as against the latter.

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