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DJ The Case for Plain Vanilla Gets its Day in Court

· 02/07/2021 14:03
By Corinne Ramey

The lawsuits started in 2019, when Spencer Sheehan puzzled over a can of A & W Root Beer stamped with the words, "MADE WITH AGED VANILLA."

"I looked at it and said, 'Yeah, I don't think it's correct, or completely truthful,' " said Mr. Sheehan, a lawyer in the Long Island suburbs of New York City who decided to sue Keurig Dr Pepper Inc., which owns the A & W brand.

Now a battle over vanilla is playing out in federal courts across the U.S., with more than 100 proposed class-action cases filed over vanilla flavoring, many by Mr. Sheehan, within the past two years. At issue is one question: Is vanilla really vanilla without vanilla beans?

On one side are plaintiffs' lawyers, like Mr. Sheehan, who argue in lawsuits that food manufacturers are duping consumers by implying products are made with vanilla when they contain at most a trace of the plant. On the other are companies -- McDonald's Corp., Wegmans Food Markets Inc., Trader Joe's and Chobani LLC among them -- that argue consumers don't expect to find real vanilla in their vanilla soy milk or vanilla Greek yogurt as long as it tastes like vanilla.

Spokespeople for Wegmans, McDonald's and Trader Joe's didn't respond to requests for comment. Chobani declined to comment.

A spokeswoman for Keurig Dr Pepper Inc. said the suit's claims have no merit and its products are truthfully marketed and labeled. The suit is ongoing.

Legal experts say that while food lawsuits typically come in waves, the vanilla lawsuits are unusual for both their specificity and their sheer number. In 2017, lawyers filed 33 cases over "all natural" claims, and in 2018, 23 lawsuits claiming food packages weren't full enough, according to law firm Perkins Coie LLP, which tracks food litigation.

Most food lawsuits are either dismissed or settled, though some result in changes to company labeling practices, said Tommy Tobin, an attorney at Perkins Coie focusing on food litigation.

"It's remarkable," Mr. Tobin said of the vanilla suits. "If I were holding dinner parties, it would be a subject of conversation."

Vanilla flavor historically came from beans found in the pods of a finicky tropical orchid, grown in countries including Madagascar, said Kantha Shelke, a food scientist who teaches at Johns Hopkins University. Due to high costs and fluctuating supply, many manufacturers now instead use "natural flavor," a catchall term for flavoring that uses ingredients including those derived from plants. Natural vanilla flavors are often made from wood pulp or using fermentation technology, Dr. Shelke said.

Pure vanilla extract has ranged from $100 to $200 a gallon in the past year, according to Daphna Havkin-Frenkel, a vanilla expert who owns New Jersey-based Bakto Flavors LLC. The common alternative, known in the industry as "natural vanilla flavor with other natural flavors," which largely doesn't come from vanilla beans, costs about $50 a gallon and is more concentrated, she said.

Mr. Sheehan compared real vanilla to a Chanel bag and its alternatives to knockoffs.

"Just because you can't tell the difference between something real and something fake, that doesn't make it OK," he said.

Several months after Mr. Sheehan's A & W suit, he filed another about cream soda. Then, plaintiffs' attorneys targeted companies producing much of the dairy aisle: vanilla yogurts, soy milks, almond milks, coffee creamers, ice creams with black specks masquerading as flavorful vanilla beans.

Most of the vanilla suits claimed manufacturers were violating federal labeling requirements, which they said allowed businesses to unfairly compete under state consumer-protection laws.

In one suit filed in California against McDonald's in September, a woman said she was deceived when she purchased vanilla cones that contained natural flavor. She had expected real vanilla, said her lawsuit, which was filed by Mr. Sheehan.

In court documents asking the judge to toss the case, McDonald's lawyers argued that vanilla is a flavor, much like Rocky Road or Tutti-frutti. The lawyers included roughly 50 comments on a Facebook post from Mr. Sheehan's firm as evidence that a reasonable consumer wouldn't expect real vanilla.

Under a photo of a perfectly twisted soft serve, the post from Mr. Sheehan's firm said: "Does your Vanilla Soft Serve Ice Cream contain real vanilla? Not according to class-action lawsuits and investigations."

The commenters mostly mocked the post or groused about broken soft-serve machines.

"Anyone else hear their root beer ain't got any beer in it either??" one wrote. Another pointed out that Goldfish crackers aren't made with gold. "No Duh!" wrote a third.

In a court filing, the woman's lawyers, who include Mr. Sheehan, called the Rocky Road and Tutti-frutti comparison off-base, saying those are flavors, not ingredients, like vanilla.

Mr. Sheehan, who filed most of these cases, usually in conjunction with other firms, isn't new to food litigation. He has also sued a company that makes the sweet bread known as Hawaiian rolls outside of Hawaii and another that makes carrot-cake doughnuts without real carrots. The cases are pending.

They haven't been near the scale of those over vanilla.

Mr. Sheehan might be best known for representing "Subway Vigilante" Bernhard Goetz in a 2015 eviction matter over whether he allegedly kept a three-legged pet squirrel in his Manhattan apartment. Mr. Goetz wasn't evicted after the squirrel dispute.

Most of the vanilla suits are still working their way through the legal system. Judges have dismissed six cases, according to Robert Guite, a lawyer at Sheppard, Mullin, Richter & Hampton LLP who represents clients sued over vanilla.

In August, U.S. District Judge Brian Cogan in Brooklyn declined to dismiss the A & W lawsuit, saying a reasonable consumer would expect the drinks were made with vanilla.

Another case, alleging Califia Farms LLC improperly labeled its vanilla nondairy beverages, settled for approximately $3 million in payments to consumers last year. Califia denied its products were mislabeled but agreed to change some packaging.

Mr. Sheehan said his sweetest victory came outside of court. Last April, he sued Wegmans, arguing the grocery chain's gluten-free vanilla-cake mix is misleading because its ingredient list includes natural flavor but not vanilla.

While the suit is pending, Mr. Sheehan recently noticed a change to the box. Above a picture of frosted yellow cake are two additional words: "Naturally flavored." Wegmans didn't respond to a request for comment.

Write to Corinne Ramey at Corinne.Ramey@wsj.com

(END) Dow Jones Newswires

February 07, 2021 14:03 ET (19:03 GMT)

Copyright (c) 2021 Dow Jones & Company, Inc.