The Lies in Your Grocery Store
Most People Accept the Gimmicks of Food Labelling. One Lawyer Canât Stomach Them.
â By Sarah Larson | September 4, 2023
Spencer Sheehan has sued the makers of Pop-Tarts, Trident chewing gum, and dozens of other companies, waging war against an industry. Illustration by Jordan Speer
In 2021, Duval Clemmons, a retiree from the West Bronx, went to his local BJâs Wholesale Club and discovered a pleasant surprise in the dairy aisle. Clemmons, sixty-eight, had a long career as a maintenance worker, but was disabled when he fell down some subway stairs, in 2009. âIâm trying to eat healthy when I can, and when I can afford it,â he told me recently. âSo when I seen plant-based butter, I said, âOh, this is real cool. This is what I need.â â What he saw was Country Crock Plant Butter Made with Olive Oil, a product with a green lid and a label showing a leafy olive branch floating above a buttered slice of toast, with the words âNew!â and âDairy Freeâ in delighted-looking cursive. âMost margarines, they donât put pictures of the ingredients,â Clemmons went on.
Clemmons, like many of us, had veered toward margarine in the late twentieth century, believing it to be a healthier alternative to butter. âMargarine was my go-to thing,â he told me. âMargarine was amazing. But when I found out that itâs also an artery clogger, in the early two-thousands, I switched over to olive oil.â Clemmons knows many people with heart disease; some of his friends have died from it. He bought the Country Crock and began to eat it on his toast. A few months later, he saw an image of the product online, in an ad looking for members of a class-action lawsuit. Reading, he made a startling discovery: the spread wasnât made of olive oil, or even mostly made of olive oil. The primary ingredient was a processed blend of palm and canola oils. âIâd been drawn in because of the picture,â Clemmons told me. âAnd they knew that. Iâm sure they knew that. Why wouldnât people be attracted to things that are natural?â
In 2022, the attorney who had placed the ad, Spencer Sheehan, of Great Neck, Long Island, named Clemmons as the lead plaintiff in a lawsuit against Upfield U.S., Inc., the makers of Country Crock. The complaint alleges that this âso-called plant butter,â as Sheehan described it to me, is margarine in disguise. âSince the dawn of recorded history, humans have enjoyed butter, made from fresh cream and salt, on a farm,â Sheehanâs complaint begins. âFor the past 150 years, imitators of butter have attempted to sell yellow-colored blends of beef tallow and vegetable oil to consumers as butter, through the product known as margarine.â Sheehan asserts, reasonably, that we seek out olive oil for its health benefits, which palm and canola oils lack. Also, Country Crock Made with Olive Oil had twice the calories of Country Crock Original, and was more expensive.
Sheehan, forty-four, specializes in consumer-protection class-action suits. Specifically, he focusses on packaged foods, and on the authenticity of their ingredients and flavors. Sheehan has sued the makers of frosted strawberry Pop-Tarts (dearth of real strawberries), Hint of Lime Tostitos (absence of lime), Snapple âall naturalâ fruit drinks (absence of natural juice), Keeblerâs fudge-mint cookies (lack of real fudge and mint), Cheesecake Factory brown bread (insufficient whole-grain flour), Trident original-flavor gum (lack of real mint, despite packageâs illustration of a blue mint leaf), and many more, generally seeking millions in damages from each. He also pursues class actions unrelated to food, involving subtle fraud in products such as toothpaste (Tomâs of Maine Fluoride-Free Antiplaque & Whitening, for containing no ingredient that fights plaque) and sunscreen (Coppertone Pure & Simple, for being neither). Sheehan emphasized this breadth of scope during our first phone conversation. âIt took Matthew McConaughey years after that movie he did with Sarah Jessica ParkerââFailure to Launchâ?âto be taken seriously as an actor,â he told me. âNo one likes to be typecast.â
But Sheehan has been typecast, with his tacit approval. Heâs a food-label zealot, and is especially relentless with vanilla cases. (Tabloids have called him âthe vanilla vigilante.â) âRealâ fruit and artificial smoke flavoring are in his crosshairs, too. Since 2018, Sheehanâs firm has filed more than five hundred consumer-protection class-action suits, making New York one of the top states for such cases. At annual food-law conferences, presenters displaying litigation trends provide two sets of statistics: one including Sheehanâs cases, one without. Some of his lawsuits, including one involving an âaged vanillaâ claim made by A&W Root Beer, have resulted in multimillion-dollar settlements; some make headlines; many are dismissed. Defendants and judges âmight roll their eyes at a case,â Sheehan said, âbecause, yes, it can be somewhat amusing. But I can proudly and honestly say Iâve never been sanctioned by a court for filing anything frivolous.â
To the outside observer, some of the quiet comedy of Sheehanâs work comes from the fact that we donât necessarily consider snack-food flavoring to be âreal,â and from the startling idea that anyone would. For Sheehan, though, the farce is the deception itself. â âSmokehouseâ almonds,â he muttered. âThese almonds have never seen a smokehouse in theirâ and Blue Diamond never owned a smokehouse, either.â He has sued the company eleven times.
Sheehanâs firm occupies a suite in a five-story office building in Great Neck, a well-off village about forty minutes from Manhattan. Itâs part of New Yorkâs Third Congressional District, the one that elected George Santos and wishes it hadnât. The villageâs quaint center has the vaguely Tudor design of Brookline or Forest Hills, and a giraffe-print bench emblazoned with the words âgreat neck.â When I first visited Sheehan, he was alone, in a windowed office next to some cubicles. The space was undergoing noisy renovationsâthe firm had grown from two employees to eight in three yearsâand everyone else was working from home. Sheehan, who has a boyish face and affect, wore a pink gingham shirt and a thick tan cardigan. It was a seventy-five-degree spring day, and a space heater that said Comfort Zone was on.
âSpecialization can be really nice, like a warm blanket,â Sheehan told me. The dayâs work included a Zoom call with an attorney representing Upfield, the margarine conglomerate; a meeting with a judge, involving a berry-flavored-Fanta case; updating a plaintiff about a Kroger apple-juice-cocktail situation (â âCocktailâ is one of those weasel wordsâ); and writing a complaint in a âslack-fillâ case, involving a too-empty box of Sour Jacks candy. Sheehan turned and smiled after typing â46% fullâ into a document. âI do some of my best work after everybody goes home,â he said.
Cases come to Sheehan via many sources, including leads from the public and his own observations. He gave me an example. âSo somebody contacted me about those little Fireball bottles,â he said. He was talking about Fireball Cinnamon, a beverage that looks like a tiny bottle of Fireball Cinnamon Whiskyâred cap, auburn-colored liquid, label bearing Fireballâs signature fire-breathing dragon. But Fireball Cinnamon doesnât contain whiskey; itâs a malt beverage with whiskey flavors, which it indicates in fine print. Sheehan was suing its parent company, Sazerac, for fraud. âWeâre used to seeing mini bottles of alcohol, and we expect it to be hard liquor,â Sheehan told me.
âLike, you wouldnât buy a tiny beer,â I said.
âThatâs right,â he went on. âWhen most people see it, especially in places like a gas station or convenience store, where they sell these âsin taxâ productsâtobacco, the lottery, itâs up there with all the bad stuffâbooze isnât so far-fetched. Youâre going to see something familiar and say, âHey, Iâll buy it.â â
He looked into the Fireball situation, discovered that he had a potential case, and took out an ad seeking class membersâpeople whoâd assumed theyâd been buying whiskeyâon social media. âAnd it asked them to contact me, sort of like, âHave you or your loved one spent time at Ground Zero after 9/11?â â he said. âIâm sure weâve all heard those ads on the radio or on TV.â
Sheehan pays a marketing company to handle the placement of his ads, primarily on Facebook, and to sometimes list them on Web sites such as Top Class Actions, where people can peruse cases. He follows up with those who respond, explains whatâs involved (âI tell people that itâs almost like jury duty or votingâdonât do this because youâre expecting any moneyâ), and files a lawsuit. Each case has a named plaintiff, someone who represents the class, and who typically gets an incentive award if thereâs a settlement. âUsually a few thousand dollars,â Sheehan said. Sheehan is paid through fees that accompany settlements; none of his clients are charged.
Sheehan views himself as a tribune of the masses. âWe are acting on behalf of the public,â he told me. âThatâs what the consumer-protection laws of each state are designed for.â Most regulations on food labelling and representation emanate from the federal government, namely the Food and Drug Administration. But states can supplement those lawsâNew Yorkâs proposed warning labels on sugary items, for exampleâand, more important, decide how to enforce them. In Sheehanâs opinion, they barely enforce them at all. âOne of the differences between our country and places like Europe, where they donât have as many lawsuits, is that they have much broader government enforcement and supervision,â Sheehan told me.
He tidied up some file boxes, which were full of empty bottles and wrappers: Haribo, Annieâs, Hallâs, Perrier, Ice Breakers spearmint Ice Cubes, Kelloggâs Harvest Wheat Toasteds, Twizzlers, and so on, all waiting to be scrutinized. âPeople send me these things,â he said. It was time for his Zoom call with August Horvath, a partner at the law firm Foley, Hoag, which represents Upfield in the Country Crock Made with Olive Oil case. âHeâs an egghead, an intellectual,â Sheehan said. He and Horvath have squared off many times, and their dynamic recalls the Looney Tunes wolf and sheepdog, who exchange pleasantries before punching in for a day of battle. A blank box with Horvathâs name appeared onscreen.
âHello!â Sheehan said. âAugust, youâre not on video?â
âIâm not having a great hair day,â Horvath said. Sheehan warned me not to talk much: âThese guys love to fight about everything.â
Itâs a common experience in consumerhood, and in life itself, to imagine that how something is presented at least approximates its reality, and to be disappointed to discover that it does notâthat weâve been hoodwinked, even if subtly, for the benefit of the seller. (Think of Ralphie, in âA Christmas Story,â when his long-coveted decoder pin from an Ovaltine-sponsored radio show finally arrives, only to reveal a secret message that tells him to drink his Ovaltine.) Americans, especially, understand the compact of commerce, and rarely begrudge our role in that near-patriotic process. But nobody wants to be a sucker.
Salesmanship becomes particularly complex in the vast middle of the supermarket, where âedible food-like substances,â as the writer Michael Pollan has described them, are sold, between fresh produce on one end and chilled dairy on the other. Makers of processed foods, which are the main target of Sheehanâs investigations, expend considerable effort trying to convince consumers that their products are healthy, ânatural,â and desirable, and we expend some effort believing them, often so that we can enjoy the productsâ deliciousness. âThe field is all about connotation, whether verbal or visual,â Jacob Gersen, the director of Harvard Law Schoolâs Food Law Lab, told me. âTraditionally, private market gets the front of the package, and government gets the back.â Front labels give us images of farms and fields, and talk of antioxidants, fibre, omega-3s, vitamins, and probiotics; on back labels, we find ânatural and artificial flavors,â high-fructose corn syrup, carrageenan, soy lecithin, and xanthan and guar gums.
The gap between these realms is Sheehanâs wheelhouse. On a humid day in August, Sheehan and I visited King Kullen, a supermarket in Manhasset, Long Island. Sheehan approached its terrain the way a finely tuned metal detector approaches a beach. âPotato rolls,â he said, picking up a package and looking skeptical. âIt might be impossible to make a roll that is predominately potato flour.â He talked about the F.D.A. and its establishment, in the nineteen-forties and fifties, of thousands of pages of standards, and the particular challenges of artisanal bread. In the jelly-and-jam section, he palmed a jar of Polaner All Fruit. âI had a case against this product,â he said. âItâs not all fruit, because it has citric acid and natural flavor. I even let them slide on the pectin.â He paused, then added, âThere is no technical barrier to selling a product that actually is all fruit.â
Much of Sheehanâs workâand the work of the judges and lawyers he spars withâinvolves parsing the mind of the âreasonable consumer,â a figure who, in her mystery and authority, can seem nearly mythical. As Sheehan sees it, the reasonable consumer isnât necessarily a highly educated professional, or âLinkedIn typeâ; sheâs a regular person with a regular job. She trusts that a productâs name and packaging imagery closely resemble its contents. In the view of most courts, she isnât overly credulousâshe expects fruit in her jam, but not in her Froot Loopsâand, to Sheehanâs repeated frustration, she probably knows that âvanillaâ denotes a flavor, not an ingredient.
We passed a rack stocked with Sheehanâs old foe, Blue Diamond Smokehouse Almonds. In one pending case, a court agreed that the bagâs color scheme evoked fire, suggesting, wrongly, that the flavor was drawn from a natural smoking process. Nearby, at the butter-and-margarine cooler, Sheehan noted another layer of deception. âIf itâs more than eighty per cent fat, they have to call it margarine,â he said. âSo they make it seventy-nine per cent. Nobody wants to be called margarine.â He picked up a container of Country Crock with Olive Oil; his suit is ongoing, but the company had already removed the word âMade.â (Beside it: Country Crock with Avocado.)
A packet of tortillas reminded Sheehan of a suit in which the companyâs âuse of a Mexican flagâ overdid its supposed Mexicanness; a row of flavored Poland Spring sparkling waters made him light up. âIâm responsible for the change of this label, but nobody will ever admit that,â he said, picking up a bottle of its lemon variety. âIt used to say âa twist of lemon.â Thisââlemon flavorââis a little better, but not technically compliant.â Sheehanâs case was dismissed, and the labels looked a little haphazard, as if someone had added the word âflavorâ under duress. (Poland Spring attributes the change to âa brand refresh.â) In the dairy section, he pointed out a dubiously Icelandic yogurt heâd sued (âIt was made in Brooklyn or something. I thought our case was very goodâ), mentioned cases heâd filed against various creamers, and shook his head at a box of milk-chocolate-covered Dove ice-cream bars. âThese should say âmilk chocolate and fat or vegetable-oil coating,â â he said.
âThat sounds disgusting,â I said.
âIt might sound patrician, but it enables people to make decisions of quality,â he said.
As we strolled the aisles, Sheehan, who hadnât planned to buy anything, picked up a basket and began to fill it. He rooted around a floor-level canned-tomato shelf, telling me about San Marzano certification standards, and noted a brand that was noncompliant: âThatâs good, because now I can sue them again.â He feistily observed that Kind granolaâs large-font â10 grams of proteinâ claim assumes that youâll be eating a cereal bowl full of it. At self-checkout, Sheehan rang up several products to examine for potential lawsuits, as well as a packet of dried apricots. âThe problem with dried apricots is, you eat the whole bag,â he said. Then we went for pizza, his usual dinner; Sheehan doesnât cook.
Sheehan, the son of a speech therapist and a carpenter, grew up on Long Island, and on our drive he pointed out his boyhood home, a tidy gingerbread-style house on a pleasantly appointed street. Sheehan is unmarried and close to his family. (His mother lives across town.) A vegetarian, he volunteers with local animal-rescue groups, and he travels with a Havahart trap in his car, for capturing strays. He set up heated sheds for feral cats in his motherâs back yard, opposes societyâs âanti-cat bias,â listens to the pro-cat radio personality and Republican eccentric Curtis Sliwa, and does pro-bono work for people with ânontraditional animal companions,â including the eighties subway shooter Bernhard Goetz, in an eviction case involving an alleged pet squirrel. (The case was settled out of court.) When I was in his office, he occasionally interrupted himself to reach out to his parentsâcalling his mom âjust to say hiâ mid-discussion of wheat labelling, sending his dad a video of a baby raccoon. âI love raccoons,â he said, as the raccoon made squeaky noises.
Sheehan did well in school, but he didnât have any particular passions. He studied history at Georgetown and spent time in the U.S. Marine Corps Reserve. He eventually went to law school, at Fordham, but he didnât have any particular ambitions there, either. After winning a class-action suit against a streaming serviceâits subscriptions were un-cancellableâhe took on some food-related cases, and enjoyed them. He opened his practice in 2013. âI take what I do very seriously,â he told me. âI enjoy the intellectual aspects of it.â
Some would argue that he takes it too seriouslyâthat heâs a hammer searching for nails. I asked an attorney who has represented several food companies about Sheehanâs work, and cases like it. âIâve seen some honestly good cases that Spencer has filed,â he said. At the same time, he went on, âI think one of the necessary characteristics of a lawyer is a clientâyou know, lawyers should be representing the interests of a party that is genuinely aggrieved.â Sheehanâs clients are occasionally unsolicited, but many of them are enlisted through ads. âAnd lawyers running around doing their thing without clients is bad for society,â the attorney said. âI donât want to romanticize it too much, but in Japan, when the warlords collapsed, there were these samurai just running aroundâthey were just warriors with no masters, right? And they were causing all kinds of trouble in nineteenth-century Japan.â
Sheehanâs warrior zeal is not entirely unrestrained. At his office, a prospective client called, railing against the forces that sold him a deconstructed Ping-Pong table. The man, a retired music producer (âHarry Chapin, Bette Midlerâ), had ordered the table online, from Walmart, but it was made by an overseas manufacturer. Reviews said that it was easy to set up; it wasnât. âIt says âfour-piece,â but there are over three hundred pieces,â the man said. âThere is no manufacturing. The company is an absolute lie.â Heâd spent several days trying to put the table together, called Walmart (âAll they offer to do is send you another bag of parts!â), and thrown the whole thing out in disgust. âThis is gross,â he said.
Sheehan wasnât optimistic. Walmart wouldnât be liable, and suing a foreign company would likely be fruitless. âI hate to tell people this, especially when they have a legitimate complaint, but not everything that is wrong can or should be fixed through a lawsuit,â he said.
âThese guys are laughing at us!â the man said. âThey gather some material, they throw it in a box . . .â he trailed off. âImagine if you bought a car and they put a thousand pieces in your driveway.â Sheehan suggested that the man âpolitelyâ write a review on Walmartâs site, with pictures, then asked him to keep Sheehan in mind for potential mislabelling cases, whether âa TV or a certain cosmetic product.â He gave similar advice to a woman who wanted to sue the Post Office over a P.O.-box imbroglio.
In the cases that Sheehan pursues, plaintiffs and class members provide depositions, often over Zoom, in which they are sworn in, pledge to tell the truth, and proceed to answer questions from an attorney representing a multinational corporation about their experience with a can of butter spray, a wedge of cheese, or a loaf cake. These can be strangely poignant. The class members donât evoke the snack-food equivalent of a neck-brace-wearing personal-injury firebrand; theyâre regular people describing consuming a grocery item, with softly disappointing results. In the case of Williams et al. v. Molson Coors, the defending attorney had one of Sheehanâs clients, a gym-membership manager, recount her experience buying a twelve-pack of Vizzy Hard Seltzer, which stressed the presence of âantioxidant vitamin C.â
âAnd when you saw the statement about antioxidant Vitamin C, what did you take away from it?â the attorney, Chris Cole, said.
âBeing in the health-and-fitness field, knowing antioxidants play a good role in your daily life style and whatnot, I figured they would be beneficial in, you know, negating some of the negative things about alcohol,â the client said. They werenât; she didnât like the flavor, either.
Cole asked how sheâd expected to notice the effects of the antioxidants. âYou mean that thereâs no immediate obvious feeling you get after consuming Vitamin C?â he asked. No, she said. That cosmic detail notwithstanding, the case proved successfulâthe seltzer was made with citric acid, which is low in Vitamin Câand it resulted in a $9.5-million settlement. Vizzy no longer makes claims about antioxidants.
Most Sheehan cases assert that a buyer would have forgone purchasing a product, or expected to pay less, if it had been marketed accurately. In May, I watched him prepare a named plaintiff, Stacey Castle, for a deposition about Krogerâs Private Selection brand of smoked Gouda. Castle, on a Zoom call from Wisconsin, had her hair in a loose bun, and her iPad camera was angled up from below her chin. When she bought the cheese, sheâd understood it to be a justifiable splurge, because the Gouda was actually smoked. When she realized it was not, she was sitting in her dining room. âIâm reading the back label, âcause I had the cheese sitting on the table,â she said. âMy exact thought was, You have to be shitting me.â She looked fired up.
âWere you injured?â Sheehan asked, playing opposing counsel.
âMy pocketbook was!â she said.
The 1933 Worldâs Fair, in Chicago, featured an exhibit known as the American Chamber of Horrorsâa kind of food-and-drug freak show of products that were up to no good. Strawberry Bred-Spred was a jar of what appeared to be strawberry jam but was actually pectin, red food coloring, and hayseeds. Noodles packaged in yellow cellophane, to resemble egg noodles, were displayed alongside noodles in honest, untinted wrapping. A bottle of vanilla extract, an expensive commodity, had deviously thickened glass, creating an illusion of abundance. The Great Depression had strained food sources to the limit, and producers, like many Americans, were desperate to stay afloat. But the F.D.A., which had emerged after the passage of the 1906 Pure Food and Drugs Act, didnât yet have the authority to recall products such as Bred-Spredâor even some lethal drugs. So it created the Chamber of Horrors, which travelled the country to raise awareness.
It takes a seismic jolt in mass consciousness to regulate American commerce. One jolt arrived in 1905, when Upton Sinclairâs âThe Jungleâ revealed the terrors of the meatpacking industry, and suggested that a readerâs sausage might be flecked with rat feces or sawdust. (The book had helped marshal support for the Pure Food and Drugs Act.) Another came in 1937, when more than a hundred people died after taking Elixir Sulfanilamide, an antibiotic that hadnât been tested for safety. The response was the 1938 Federal Food, Drug, and Cosmetic Act, a sweeping and robust set of laws, and the basis of U.S. food regulations ever since.
The government has often been gung ho in its health-education efforts: the U.S.D.A.âs nutritional guides and food pyramids, seventies Saturday-morning-cartoon P.S.A.s, Michelle Obamaâs Letâs Move! campaign. But the arc of progress has been long. Nutrition labels werenât required until 1990, per-cent-juice labelling wasnât widely introduced until 1994, and trans-fat labelling began in 2006. âOther countries have figured it out,â Michael Pollan told me: front-of-package junk-food warnings in South America, Asia, and Europe; a red-yellow-green stoplight system in the U.K. It can take something like the F.D.A.âs fast-food-disclosure regulation of 2016, in which McDonaldâs customers were forced to contend with the calorie count of their Big Macs, to remind us that the nature of what weâre eating could be conveyed in a startlingly clearer way.
In the absence of such clarity, some of Sheehanâs cases can make him seem like the boy observing that the emperor is naked. Consider his whole-wheat-flour cases, which point directly to nutrition. âWhole wheat,â Sheehan explained, means âwhole grain,â which includes the three parts of the wheat grain: the fibre-dense bran, the nutrient-rich germ, and the starchy endosperm. Itâs widely acknowledged to be better for you than white flour, which contains only the endosperm, but all wheat-flour products, including white, can legally be called âwheat,â and are often dressed up to seem healthier than they are. Sheehan walked me through the tricks: adding caramel color; adding oats to the outside of bread; giving bread a heartier, richer, or mottled appearance. Companies âuse vague terms like âmultigrainâ or âhoney oatâ or âhoney wheat,â with an image of a stalk of wheat,â Sheehan said. He looked philosophical. âSome might say, you know, âBig Food has a conspiracy to make us all fat and lazy.â I donât know if thatâs the case, but I think they might say people donât like the taste of whole wheat as much.â
I asked Gersen, of Harvard, about how to regulate ambiguous labelling. âItâs actually a much harder problem than I originally thought,â he said. âLike, thereâs a really strong incentive to over-claim and deceive. Even if you say a reasonable consumer wouldnât be tricked, itâs almost certainly the case that somebody would. Thatâs why the company is doing it. And across a lot of food products, across a lot of brands, across a lot of the population, thatâs actually not a trivial number of people.â In Sheehanâs Country Crock complaint, he observes that consumer-research organizationsânamely Mintel, one of the largest in the worldâadvise companies on how to respond to shifting demands, including by lending margarines and spreads a healthier, more ânaturalâ profile. When I talked to some Mintel employees, they seemed to agree with Sheehanâs characterization, without taking credit for it. âThe one thing I find funny is this revolutionary new product thatâs been talked about the last couple of years: plant butter!â Lynn Dornblaser, a product-trend analyst since 1986, said. She laughed. âI think thatâs margarine. But that has revitalized some brandsâbecoming âplant butter,â or talking about being âplant-based,â because plant-based is the hot, cool thing.â
Defendants usually try to have Sheehanâs cases dismissed, âwhich I always find to be somewhat offensive,â Sheehan said. âIt often feels like theyâre trying to gaslight you.â He read Horvathâs response to the Country Crock complaint. âWhat chutzpah! He says, âHas no basis to allegeâ? I mean, no basis? Thatâs a little crazy.â Sheehan was bullish on the caseâs prospects, citing a precedent involving âwhole-grainâ Cheez-Its; and, indeed, the Country Crock judge had scoffed at the defendantâs claim that âMade with Olive Oilâ was merely meant to convey âa flavor note.â âItâs fallen to lawyers like this to offer any kind of accountability,â Pollan told me. âI donât think itâs the ideal way to do it. But itâs the way the government has left us to do it.â
Around the time that Sheehan was marvelling at Country Crockâs response, Democrats in Congress introduced the Food Labeling Modernization Act, a bill that would dramatically change regulations for food labels. âWeâve all struggled at times to navigate todayâs opaque food labels and âhealthyâ marketing claims during trips to the grocery store,â Representative Frank Pallone, Jr., of New Jersey, said. The legislation, he continued, would make it easier for consumers to determine âthe right food choices for their families.â The billâs co-sponsor, Senator Richard Blumenthal, of Connecticut, said that the legislation would reform âantiquatedâ rules and include âfront of package labels, clearly marked allergens, and clarified guidelines to deter misleading claims.â If enacted, the bill could be a boon for consumers and disrupt the processed-food industry. For that reason and others, it has little chance of becoming law.
A couple of weeks after Sheehan proudly and honestly told me that heâd never been sanctioned by a court for filing something frivolous, a court threatened him with sanctions for filing something frivolous. Judge Steven Seeger of the Northern District of Illinois, after dismissing a complaint of Sheehanâs about the lack of lemon in Polar lemon seltzer (âThe complaint fizzles, and has no juice,â Seeger wrote, in an opinion densely fortified with food zingers), issued an order requiring Sheehan to provide the court with a list of all his firmâs class-action filings since 2020, accompanied by explanations of their results.
In recent months, judges and defendants have begun to challenge Sheehanâs suits more broadly. Illinois is home to MondelÄz International, one of the worldâs biggest producers of snack foods, which encompasses brands from Oreo and Chips Ahoy! to Ritz, Triscuits, Cadbury, Sour Patch Kids, and Tangâand, until 2022, Trident, Dentyne, Bubblicious, and other gum brands. Sheehan had sued several of them, including Trident, a case that Judge Iain D. Johnston, also of the Illinois Northern District, had dismissed in February. (âWhen gum gets stuck somewhere it does not belong, conventional wisdom provides a host of remedies: ice cubes, peanut butter, vinegar, or olive oil,â Johnston wrote. âWhen a federal case gets stuck somewhere it does not belong, the Federal Rules of Civil Procedure provide a different, cleaner remedy.â) That month, MondelÄz, in response to the dismissal of the Trident-gum case, requested sanctions against Sheehan, including payment of its attorneysâ fees. Its request described him as a prolific filer of âcopy-and-pasteâ complaints; in May, Judge Johnston chose to remind Sheehan that âspaghetti is best eaten, not thrown at walls,â and requested a copy of the document that Judge Seeger had demanded.
That document, which Sheehan attached as a thirteen-page spreadsheet in his response, âprovides extraordinary insight into the track record of most prolific consumer class action attorney in the United States,â the lawyer Chris Cole wrote on his firmâs blog. Cole has defended clients against Sheehanâs suits, including in the Vizzy Hard Seltzer case. âBy my rough count, between January 1, 2020 and April 7, 2023, Mr. Sheehan filed 553 complaints,â he wrote. âOf those, 120 (21.6%) were dismissed outright and 35 (6.3%) survived a motion to dismiss at least in part. The remaining 398 (roughly 72%) were either settled or are still pending.â Cole estimated, conservatively, that since 2020 defense costs for Sheehanâs cases could have amounted to forty-two million dollars.
Several reports stressing the frivolity of Sheehanâs suits, and cases like them, have been generated by firms that represent food-and-beverage companies. The New York Civil Justice Institute, which describes itself as nonprofit and nonpartisan, published a paper in 2021 called âClass Action Chaos,â by Cary Silverman, a partner at the firm Shook, Hardy & Bacon, which represents food-and-beverage companies. âClass Action Chaos,â which says that the suits are âmaking a mockery of the stateâs civil-justice system,â has been cited in national-news stories about Sheehan; other lawyers I talked to in the food-law realm, including on the defendantsâ side, disputed that characterization. They saw Sheehanâs suits as a product of the failures of the tort system, or as a necessary corrective in an era of gray-area regulation. Several skeptics admitted to me that some of his suits have âsome there there.â âSpencer wonât reject a case just because it has merit,â one said, chuckling.
Though judicial scolding for Sheehan has increased, sanctions, so far, have not. And this summer, Judge Seeger, of the copious zingers and admonishments, directed his ire not toward Sheehan but toward his opponent, B&G Foods, in a case concerning Criscoâs No-Stick Butter Cooking Spray. In August, as we finished eating at the pizza parlor, I asked Sheehan whether judgesâ warnings would affect his behavior in the future. âNo!â he said. âWhy should it? The only thing it affects is that I have to take time to respond to those demands, rather than doing work.â He pointed at my plate. âDo you want another slice?â âŚ