NPR recently reported that a sushi chain owner in Japan paid $1.76 million for just one (489 pound) bluefin Tuna. Per pound, that is more than the price of “the very best connoisseur cannabis” in California. With such strong economic motivation and weak criminal penalties, is it any wonder that 39 percent of fish sold in the U.S. is mislabeled?
Bruce Smith has postponed indefinitely a press conference to announce his book, How Pink Slime Ate My Job, and his lawsuit apparently arising out of the LFTB/pink slime controversy.
BPI Former Employee: “Pink Slime Ate My Job.” Or was It BPI’s Decision Not to Disclose LFTB on Labels?
Former Beef Products, Inc. (BPI) employee Bruce Smith has filed a lawsuit concurrently with publishing his new book, “How Pink Slime Ate My Job.” (Apparently, Mr. Smith alleges that media publicity concerning the widespread, unlabeled addition of Lean, Finely Textured Beef (LFTB) to ground beef decreased BPI’s sales and resulted in company layoffs.) Free copies of Smith’s book and his lawsuit will be available at his June 26, 2012 press conference.
Iowa Rep. Steve King has stated he supports Mr. Smith’s use of the court system to “get to the bottom of this” alleged controversy, but why? And why has he stated that the federal government should order public schools to buy LFTB for their discounted lunch programs? (Only three states have chosen to purchase LFTB next year due to public demand to curtail its use.)
Do these have anything to do with the fact that BPI is one Rep. King’s top 20 campaign contributors? For other social issues, Congressman King has raised a concern that the nation’s “runaway judiciary” plays an “active role in the lives of our children.” Rep. King also contends he is “a firm believer in states’ rights” and the need to “protect parental rights from being infringed by the federal government.” Why is the LFTB/pink slime controversy any different?
Another unanswered question for Mr. Smith and Rep. King: if LFTB is so great, why did BPI make a concerted effort to avoid labeling it instead of just disclosing it on product packaging? The free market Rep. King supports requires freely-available information so consumers can make intelligent buying decisions. Two LFTB producers have submitted labeling requests to the USDA, because some consumers who have learned more about the product want to buy it. Good for them. As Marion Nestle (quoting Carolyn Scott-Thomas) noted, if companies selling this product had proactively disclosed its presence in the first instance, they might have minimized customer outrage (and BPI job losses) from its recent publicity.
Your food processing company or restaurant may be sued even if it sold perfectly safe food, and even if your customers incurred no physical injury. Recently, a New Jersey state appellate court ruled that Hindu restaurant patrons could sue a restaurant for serving them a dish containing meat, after they expressly told the staff they were strict vegetarians.
The customers claim they incurred spiritual and emotional injuries. They seek damages to recover the cost of traveling to India to cleanse their souls.
The purpose of this posting is not to question anyone’s religious beliefs or comment on any factual support for the plaintiffs’ allegations or the restaurant’s possible defenses.
Rather, this litigation should serve as a reminder that “labels matter.” As discussed in Kwikset v. Sup. Ct. (Benson) 51 Cal.4th 310, 330 (2011), companies that incorrectly represent that their product is, for example, Kosher, when it is not, may not cause any physical harm to a customer who follows Kosher dietary laws. However, a customer that pays for food that a company misrepresents is Kosher likely has standing to sue the company for an economic injury based on that misrepresentation (at least in California). It appears that the New Jersey courts are following similar reasoning in this recent case.
The takeaway message: your customers take your representations seriously, and misrepresentations can be very costly. Just ask McDonald’s. In 2009, it paid $10 million to resolve claims arising out of allegedly mislabeling its french fries as vegetarian, even though no plaintiff incurred any physical injury (although the company represented that “vegetarians can enjoy” its french fries, they contained beef flavoring; nonetheless, McDonald’s denied plaintiffs’ allegations).