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WHO'S HIDING MY M&MS?

More than thirty years ago, as Assistant Chief Counsel at the Wisconsin Public Service Commission, I came across a decision by an Oklahoma court that considered the issue of a dress code at the old Fred Harvey restaurants. Because the restaurant was at a railway station, it came under the jurisdiction of the state regulatory commission. Thus began my fascination with food and the law.

Today food law is more complicated and more contentious than ever. As we grapple with the broad policy issues surrounding food, one thing has become painfully clear: it’s all about the lawyers. More and more food cases are being brought by the private bar than ever before.

In theory, federal and state oversight of the food supply should ensure that our meals and snacks are safe, nutritious, and honestly labeled. In practice, the regulators often fall short. Whether it be due to neglect, lack of resources, or the influence of corporate interests doesn’t matter. The result is the same: private lawsuits are going after the food industry as never before.

The issues may be new but the tools are the same. Class actions against major food companies have become so numerous that the Food Institute, a leading advocacy group for the food industry, has described it as an “epidemic.” Is this a fair characterization?

In a recently filed class action, the plaintiff has alleged that Mars Candy is deceptively marketing two of its M&Ms products by packing them in opaque tubes in which the candies do not adequately fill the containers. I purchased these items and the M&Ms come about 80% of the way up the tubes. Is that fraud or is it what consumers have come to reasonably expect?

I think the plaintiffs missed the worst deception. Here is box of M&Ms that I bought the other day. As you can see, it measures 6 ½ inches high. How far up do you think the M&M’s reach? If you expect them to go even 80% up the sides of the box, you will be disappointed. Inside the box is a bag and if you pour the M&M’s from the bag into the box, they go up only 2 inches. (I suspect that the plaintiff’s lawyers will be amending their complaint).

The question I have is not whether this is fraudulent packaging (probably) but why isn’t the FDA doing something about it? The FDA has the authority to stop this kind of fraud (“alleged” fraud) but it is doing nothing. Lawyers in private practice are doing what the FDA is failing to do. The law firm may well receive a windfall in the way of attorneys’ fees while consumers may get very little. That’s the price we pay for the inactivity of the agencies we expect to protect us from fraud.