Food Cops and Lawyers Join Forces: New Superzero Team

FRIDAY 6-13-08…Well, it certainly didn’t take long for the food cops and trial lawyers to join forces for their latest money grab. Remember food labeling? Caloric counts on menus in restaurants? Once that idea gained traction, it was only a matter of time before the floodgates of litigation were opened and lawsuits filed against restaurants that don’t get the calorie count right.

According to the Center for Consumer Freedom, a Seattle law firm has filed a class-action lawsuit against a major casual-dining restaurant chain (Applebee’s) for “misrepresenting nutritional content of menu items.” Ever since food cops lobbied for the first menu-labeling legislation, it was only a matter of time before it would escalate into menu labeling litigation.

According to the law firm’s press release, the restaurant chain engages in “unfair and deceptive business practices by misrepresenting the nutritional information on its Weight Watchers menu.” Therein lies the open door to more targeted lawsuits. Why?

Restaurants have kitchens, not manufacturing plants. Chefs are people, not preprogrammed machines. Menu items aren’t pre-packaged foods. The ingredients for one menu option can be altered hundreds of different ways depending on the wishes of the chef, the customer, or anyone in between.

So as one of America’s favorite restaurants is learning this week, made-to-order may translate to “negligence” in the courtroom. A few hundred extra calories could become millions of dollars in settlements. Shortly after the suit was filed, the same plaintiff filed a second suit against another major casual-dining chain, Brinker International. According to the Center for Consumer Freedom, Brinker operates Chili’s.

If offering consumers nutritional information exposes restaurants to claims of “engaging in unfair and deceptive business practices by misrepresenting the nutritional information, the recent string of menu labeling laws will turn restaurants into a trial lawyer’s cash cow.

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2 Responses

  1. I’ve had this argument with state auditors on two occasions. Both of them tried to claim our retail establishment’s inventory constituted “raw materials” — and was thus subject to tax — despite the fact that all we do, like Applebee’s, is assemble products. We don’t “manufacture” anything. We are in the services sector, not manufacturing.

    There was no state statute for those auditors to fall back on, so they tried to use the “Subway” sandwiches example, claiming that the ingredients behind the glass were taxable inventory. Nice try, but it didn’t work out for them.

    I’m not a lawyer, but if I’m interpreting the official complaint document correctly, the “manufacturing” question isn’t even brought into play here and UCC Article 2 for the Sale of Goods doesn’t apply. Sounds to me like they’re arguing a material breach of contract under common law under the premise that lack of reality of consent makes the “contract” between Applebee’s & the customer voidable due to material misrepresentation. Thus, the customer would be entitled to compensatory damages.

    Only thing I see that Applebee’s can do is argue that the caloric values on the menu were made in good faith. Otherwise, they’re not going to win this.

    But again, I’m not a lawyer. I could be wrong.

    Sad that we’ve become such a litigious society. The court system has become a wealth redistribution machine and the lawyers are laughing all the way to the bank.

  2. Surprisingly, some people do not need food cops, lawyers, and government to tell them where and what to eat —

    http://apnews.myway.com//article/20080620/D91DVDV86.html

    QUINTON, Va. (AP) – A Virginia man lost about 80 pounds in six months by eating nearly every meal at McDonald’s. Not Big Macs, french fries and chocolate shakes. Mostly salads, wraps and apple dippers without the caramel sauce.

    Chris Coleson tipped the scales at 278 pounds in December. The 5-foot-8 Coleson now weighs 199 pounds and his waist size has dropped from 50 to 36.

    The 42-year-old businessman from Quinton says he chose McDonald’s because it’s convenient.

    His inspiration came from his two children and from the story of a blind war veteran who rode a tandem bicycle cross-country.

    Coleson says his goal is to get back to the 185 pounds he weighed when he married Tricia Summer. Their 10th anniversary is Saturday.

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