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Explaining the “Frosty” Reception of Vanilla Litigation
 

Spencer Sheehan, Esq.

Sheehan & Associates, P.C.

60 Cuttermill Rd Ste 409

Great Neck, NY 11021

spencer@spencersheehan.com

 


Why have so many challenges to deceptive labeling of vanilla run into legal road blocks?
The first reason for difficulty in court is general hostility towards cases brought by plaintiffs, especially in federal courts, regardless of the type of case.

Second, courts have often said, “Does anyone really care?” In other words, whether it’s vanilla from vanilla beans or from artificial vanillin, what is the difference in the taste of the food? Of course
consumers care, but judges are given a lot of discretion in making such determinations, in their “gatekeeper” function.

Third, these cases are dissimilar to many of the food labeling cases which courts have been faced with over the past 20 years. Typical food labeling cases deal with subjects like “natural” and “artificial”
ingredients, and GMOs. These are issues about which there has been a considerable amount of public debate, and recent FDA/USDA rule-making on.

Fourth, and somewhat related to the third reason, is that the context of real vanilla vs “vanillin from natural, non-vanilla sources” is viewed in light of the “natural vs artificial” debate. As this is an
issue courts have confronted, they unfortunately have generally said, “Even if vanillin is not from vanilla, it is still from a natural source, so what is misleading about it?”

Efforts at drawing attention to the vanilla regulations and trade correspondence which address these issues have fallen flat. These arguments show that vanilla is not like other flavors, which is what
the FDA regulations require.

There are certain things which may be helpful. An FDA warning letter against a company which uses vanillin – from non-vanilla sources – with vanilla. Such a pronouncement could have several effects. This would result in more attorneys filing cases on this subject. Right now, the fact that I’m the only one doing it makes it seem like this is some obscure issue, only believed by one person. The FDA deciding
to post informal guidance on its website about the labeling of vanilla products would also be useful. While the FDA has clearly expressed its position in correspondence, this information is not readily or
publicly available.