Sun. Apr 14th, 2024

In 2021, Duval Clemmons, a retiree from the West Bronx, went to his local BJ’s 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. “I’m trying to eat healthy when I can, and when I can afford it,” he told me recently. “So when I seen plant-based butter, I said, ‘Oh, this is real cool. This is what I need.’ ” 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 “New!” and “Dairy Free” in delighted-looking cursive. “Most margarines, they don’t put pictures of the ingredients,” 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. “Margarine was my go-to thing,” he told me. “Margarine was amazing. But when I found out that it’s also an artery clogger, in the early two-thousands, I switched over to olive oil.” 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 wasn’t made of olive oil, or even mostly made of olive oil. The primary ingredient was a processed blend of palm and canola oils. “I’d been drawn in because of the picture,” Clemmons told me. “And they knew that. I’m sure they knew that. Why wouldn’t people be attracted to things that are natural?”

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 “so-called plant butter,” as Sheehan described it to me, is margarine in disguise. “Since the dawn of recorded history, humans have enjoyed butter, made from fresh cream and salt, on a farm,” Sheehan’s complaint begins. “For 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.” 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 “all natural” fruit drinks (absence of natural juice), Keebler’s 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 package’s 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 (Tom’s 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. “It took Matthew McConaughey years after that movie he did with Sarah Jessica Parker—‘Failure to Launch’?—to be taken seriously as an actor,” he told me. “No one likes to be typecast.”

But Sheehan has been typecast, with his tacit approval. He’s a food-label zealot, and is especially relentless with vanilla cases. (Tabloids have called him “the vanilla vigilante.”) “Real” fruit and artificial smoke flavoring are in his crosshairs, too. Since 2018, Sheehan’s 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 Sheehan’s cases, one without. Some of his lawsuits, including one involving an “aged vanilla” claim made by A&W Root Beer, have resulted in multimillion-dollar settlements; some make headlines; many are dismissed. Defendants and judges “might roll their eyes at a case,” Sheehan said, “because, yes, it can be somewhat amusing. But I can proudly and honestly say I’ve never been sanctioned by a court for filing anything frivolous.”

To the outside observer, some of the quiet comedy of Sheehan’s work comes from the fact that we don’t necessarily consider snack-food flavoring to be “real,” and from the startling idea that anyone would. For Sheehan, though, the farce is the deception itself. “ ‘Smokehouse’ almonds,” he muttered. “These almonds have never seen a smokehouse in their— and Blue Diamond never owned a smokehouse, either.” He has sued the company eleven times.

Sheehan’s firm occupies a suite in a five-story office building in Great Neck, a well-off village about forty minutes from Manhattan. It’s part of New York’s Third Congressional District, the one that elected George Santos and wishes it hadn’t. The village’s quaint center has the vaguely Tudor design of Brookline or Forest Hills, and a giraffe-print bench emblazoned with the words “GREAT NECK.” When I first visited Sheehan, he was alone, in a windowed office next to some cubicles. The space was undergoing noisy renovations—the firm had grown from two employees to eight in three years—and 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.

“Specialization can be really nice, like a warm blanket,” Sheehan told me. The day’s 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 (“ ‘Cocktail’ is one of those weasel words”); and writing a complaint in a “slack-fill” case, involving a too-empty box of Sour Jacks candy. Sheehan turned and smiled after typing “46% full” into a document. “I do some of my best work after everybody goes home,” he said.

Cases come to Sheehan via many sources, including leads from the public and his own observations. He gave me an example. “So somebody contacted me about those little Fireball bottles,” he said. He was talking about Fireball Cinnamon, a beverage that looks like a tiny bottle of Fireball Cinnamon Whisky—red cap, auburn-colored liquid, label bearing Fireball’s signature fire-breathing dragon. But Fireball Cinnamon doesn’t contain whiskey; it’s a malt beverage with whiskey flavors, which it indicates in fine print. Sheehan was suing its parent company, Sazerac, for fraud. “We’re used to seeing mini bottles of alcohol, and we expect it to be hard liquor,” Sheehan told me.

“Like, you wouldn’t buy a tiny beer,” I said.

“That’s right,” he went on. “When most people see it, especially in places like a gas station or convenience store, where they sell these ‘sin tax’ products—tobacco, the lottery, it’s up there with all the bad stuff—booze isn’t so far-fetched. You’re going to see something familiar and say, ‘Hey, I’ll buy it.’ ”

He looked into the Fireball situation, discovered that he had a potential case, and took out an ad seeking class members—people who’d assumed they’d been buying whiskey—on social media. “And it asked them to contact me, sort of like, ‘Have you or your loved one spent time at Ground Zero after 9/11?’ ” he said. “I’m sure we’ve all heard those ads on the radio or on TV.”

“No, it’s not your fault. I’ve secretly always known there was the possibility of a hat.”

Cartoon by Joseph Dottino

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 what’s involved (“I tell people that it’s almost like jury duty or voting—don’t do this because you’re expecting any money”), and files a lawsuit. Each case has a named plaintiff, someone who represents the class, and who typically gets an incentive award if there’s a settlement. “Usually a few thousand dollars,” 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. “We are acting on behalf of the public,” he told me. “That’s what the consumer-protection laws of each state are designed for.” Most regulations on food labelling and representation emanate from the federal government, namely the Food and Drug Administration. But states can supplement those laws—New York’s proposed warning labels on sugary items, for example—and, more important, decide how to enforce them. In Sheehan’s opinion, they barely enforce them at all. “One of the differences between our country and places like Europe, where they don’t have as many lawsuits, is that they have much broader government enforcement and supervision,” Sheehan told me.

He tidied up some file boxes, which were full of empty bottles and wrappers: Haribo, Annie’s, Hall’s, Perrier, Ice Breakers spearmint Ice Cubes, Kellogg’s Harvest Wheat Toasteds, Twizzlers, and so on, all waiting to be scrutinized. “People send me these things,” 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. “He’s an egghead, an intellectual,” 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 Horvath’s name appeared onscreen.

“Hello!” Sheehan said. “August, you’re not on video?”

“I’m not having a great hair day,” Horvath said. Sheehan warned me not to talk much: “These guys love to fight about everything.”

It’s 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 not—that we’ve been hoodwinked, even if subtly, for the benefit of the seller. (Think of Ralphie, in “A Christmas Story,” 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 “edible food-like substances,” 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 Sheehan’s investigations, expend considerable effort trying to convince consumers that their products are healthy, “natural,” and desirable, and we expend some effort believing them, often so that we can enjoy the products’ deliciousness. “The field is all about connotation, whether verbal or visual,” Jacob Gersen, the director of Harvard Law School’s Food Law Lab, told me. “Traditionally, private market gets the front of the package, and government gets the back.” Front labels give us images of farms and fields, and talk of antioxidants, fibre, omega-3s, vitamins, and probiotics; on back labels, we find “natural and artificial flavors,” high-fructose corn syrup, carrageenan, soy lecithin, and xanthan and guar gums.

The gap between these realms is Sheehan’s 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. “Potato rolls,” he said, picking up a package and looking skeptical. “It might be impossible to make a roll that is predominately potato flour.” 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. “I had a case against this product,” he said. “It’s not all fruit, because it has citric acid and natural flavor. I even let them slide on the pectin.” He paused, then added, “There is no technical barrier to selling a product that actually is all fruit.”

link

By admin