When you think of plaintiff's lawyers, two images probably come to mind: Consumer crusaders like Erin Brockovich or grubby ambulance-chasers in John Grisham novels. But where in this spectrum should we insert the top attorneys representing plaintiffs in the recent wave of food labeling lawsuits?
Talk to big food brands slapped with lawsuits because they've used caramel color and citric acid in ‘natural’ products, or listed cane sugar syrup as 'evaporated cane juice' and they will argue that these are ‘frivolous’ cases without genuine ‘victims’ filed by opportunistic plaintiffs' attorneys.
Not surprisingly, plaintiff's attorneys beg to differ, and say consumers are sick of being duped by food companies peddling their products as healthy and natural when a closer inspection of the ingredients list suggests they are anything but.
I’m a small part of the effort to provide truth in labeling so consumers can make healthier choices
One of the top plaintiff's attorneys taking aim at the food and beverage industry is Pierce Gore of Pratt & Associates, who has sued scores of big brands from Kraft and Nestle to Frito-Lay, Hershey's, Chobani and ConAgra over the past 18 months.
And while he doesn’t claim to be Erin Brockovich, Gore reckons he’s fighting the good fight.
Speaking to FoodNavigator-USA from his office in San Jose, CA, yesterday, he said: “I don’t look much like Julia Roberts, but I’m a small part of the effort to provide truth in labeling so consumers can make healthier choices.
“People will always say that these cases are frivolous. But when you really look at what’s on food labels you start to arrive at the conclusion that the food industry needs to clean up its act.”
We’re eating all this sugar without even realizing it because it’s hidden behind terms like ‘evaporated cane juice’
He added: “Our kids are swimming in sugar; there’s an epidemic of type two diabetes, and part of the problem is that we’re eating all this sugar without even realizing it because it’s hidden behind terms like ‘evaporated cane juice’.
"My clients are typically Soccer Moms, mothers of young children in the Santa Cruz mountains that just want to know what they are eating.”
And while cynics might argue that the only people who really stand to benefit from such cases are lawyers (if defendants settle, attorneys rake in serious cash while consumers might get a $5 coupon), it clearly benefits consumers if firms agree to modify labels as part of these settlements, he said.
“That’s our one fundamental requirement, that companies modify their labels to comply with the law.”
My clients are soccer Moms
As for the allegation that aggrieved consumers are not really the driving force behind all this civil litigation, but are instead cynically sought out and co-opted by attorneys that have scoured labels for technical violations of labeling rules, Gore is dismissive.
"I don’t have to go out looking for clients, they find me.
“I’ve got more than 50 cases [against food industry clients] now and 25 more cases scheduled for next year, and none of my cases have been dismissed with prejudice yet.”
We allege not only consumer deception, but actual regulatory violations. If I exceed the speed limit I might get a ticket
He added: “But these cases are not just about consumer deception. We allege not only consumer deception, but actual regulatory violations. A violation of the law is a violation of the law. If I exceed the speed limit I might get a ticket.
“Before we launched our first cases [vs the food industry] in April 2012, we’d spent almost two years reviewing labels and regulations and we saw a sea of lies.
“The Sherman Law [the California law that adopts and incorporates the federal Food Drug & Cosmetic Act] is a strict labeling statute, and you can violate it without deceiving anyone.”
Complaints allege that Trader Joe’s et al have violated binding food labeling regulations, not just ignored non-binding FDA guidance, by using term ‘evaporated cane juice’ on labels
In the case of all the evaporated cane juice lawsuits filed by Gore against firms from Blue Diamond Growers to Trader Joe’s, the plaintiffs are not just alleging that these firms ignored (non-binding) FDA guidance advising companies not to use the term ECJ on labels, he pointed out.
They are in fact alleging that Trader Joe’s et al have violated binding food labeling regulations which say ingredients must be described by their common or usual names, and that to call something “juice” it should be “the aqueous liquid expressed or extracted from one or more fruits or vegetables”, he explained.
And judges handling these cases have acknowledged this in recent orders by accepting that the plaintiffs have made “plausible allegations that the use of the term evaporated cane juice violates the Sherman Law”, he noted.
“I think to start with, judges were not really familiar with the Sherman Law, but now they are more comfortable with it. In the recent case against Blue Diamond Growers over ECJ, judge [Lucy] Koh denied the defendant’s motion [to dismiss the case] in its entirety.”
We know exactly what the FDA’s position on evaporated cane juice is
Meanwhile, most federal judges with the exception of Yvonne Gonzalez Rogers have also rejected attempts by plaintiffs to dismiss ECJ cases on primary jurisdiction grounds (whereby the matter is referred to the FDA to make a determination), he said.
In the specific case of whether GMOs belong in ‘natural’ products, the doctrine of primary jurisdiction may well be applicable because there is no existing regulation or guidance to which to refer and the FDA is probably going to have to rule on this at some point anyway, he added.
“But this is not the case for evaporated cane juice. We know exactly what the FDA’s position on ECJ is.”
Click here to read more about some of the recent court orders on evaporated cane juice lawsuits filed by Pierce Gore.