Ethics Dunce: Federal Judge Gary Feinerman

(I am going to eschew cheese jokes in this post, and I expect some credit for it.)

We recently learned that grated parmesan cheese often contains  cellulose powder.  This icky fact spawned dozens of lawsuits against Kraft, Heinz, Walmart, Target, Albertsons, Publix, and others, alleging consumer fraud by selling products with labels claiming that the contents were “100% grated parmesan cheese,” or words to that effect.

Since the  lawsuits all made the same claims, they were consolidated into one multi-district litigation overseen by a federal judge Gary Feinerman in Illinois. Judge Feinerman dismissed the litigation last week, ruling that “100% grated parmesan cheese” is an ambiguous statement that is open to multiple interpretations.

Judge Feinerman doesn’t understand deceit.

“Although ‘100% grated parmesan cheese’ might be interpreted as saying that the product is 100% cheese and nothing else, it also might be an assertion that 100% of the cheese is parmesan cheese, or that the parmesan cheese is 100% grated,”he wrote in his ruling. “Reasonable consumers would thus need more information before concluding that the labels promised only cheese and nothing more, and they would know exactly where to look to investigate — the ingredient list. Doing so would inform them that the product contained non-cheese ingredients.”

Each of the products involved, the judge noted, listed cellulose and the other ingredients on the label, along with the fact that the cellulose is added ‘to prevent caking.’”

“100% Grated Parmesan Cheese” might also mean “I did not have sex with that woman,” I guess. The companies didn’t put that legend on the packages to let consumers know that the cheese is “100% grated.” They put it there to mislead consumers, and try to ensure that they didn’t read that there were wood chips in their cheese. This is classic deceit, and the judge is letting companies get away with it.

The judge smugly asserts that a reasonable consumer would know that pure cheese is not shelf-stable at room temperature and couldn’t sit in sealed packaging in a grocery store for long periods of time. “Cheese is a dairy product, after all, and reasonable consumers are well aware that pure dairy products spoil, grow blue, green, or black fuzz, or otherwise become inedible if left refrigerated for an extended period of time,” he writes, and thus “would still suspect that something other than cheese might be in the container, and so would turn it around, enabling them to learn the truth from a quick skim of the ingredient label.”

Except that the labeling was designed to hide the truth, mislead buyers, and gull them into believing that it was “100% grated parmesan cheese,” like  the package said.

The judge is coming perilously closed to the old, discredited “let the buyer beware” standard that opened the door for outrageous and often dangerous consumer fraud.  I guess the judge is saying I’m an idiot: when I saw a label that said “100% grated parmesan cheese,” I didn’t assume that it mean “8% other crap.”  I assumed that it meant “100% grated parmesan cheese.”

I always wondered how that Kraft box stayed in my mother’s cupboard so long, though. But my mom also kept catsup, mustard and other condiments for decades.

We used to get sick a lot, now that I think about it…

The ruling isn’t a breach of judicial ethics, just a bad ruling that encourages deception by excusing deceit.

34 Comments

Filed under Business & Commercial, Ethics Alarms Award Nominee, Ethics Dunces, Law & Law Enforcement, Marketing and Advertising

34 responses to “Ethics Dunce: Federal Judge Gary Feinerman

  1. Other Bill

    I’m going to side with the judge dismissing the case.

    I’ve been buying Paremesian (as we prefer to call it in our household as a joke) lately to sprinkle on our very elderly dog’s dog food to induce her to eat more. We buy reals Parmesian cheese, keep it in the fridge, and grate it onto anything WE eat that requires Parmesian cheese. The Kraft stuff (often relabeled and marketed as a Safeway brand) is just for the dog. It sits on the counter. It’s got a shelf life beyond that of plutonium. I grew up in a standard issue ’50s and ’60s household and we always had a little canister of Kraft Parmesian cheese on the door of the fridge. It would last for years.

    Any idiot knows processed food, or anything made by Kraft (you know the R J Reynolds and Nabisco folks, I’m pretty sure) but I repeat myself, is chock full of all sorts of additives and preservatives. That’s why, since I’ve been an adult, we buy Parmesian cheese from, you know, Parma? I think a reasonable person could conclude the 100% refers to the kind of cheese, not the purity of the product. It is all Parmesian cheese, i.e., there’s no cheddar and no Gouda and no Brie. Yes sir, it’s pure, 100 percent American-made faux Parmesian Cheese. Yes sir. Step right up. And it’s also got potassium sorbate and salt enzymes and, lo and behold, powdered cellulose. All the good stuff. Better living through science. From the lab coated guys at the Kraft kitchens. I surpised it doesn’t feature emulsifiers, my personal favorite mystery ingredient in most processed foods.

    It could very well be categorized as sales puffery. Why waste the court’s time enriching a bunch of class action lawyers?

    I hope the decision holds up on appeal.

    Cheers.

    • Other Bill,
      You wrote one rationalization after another.

      It truly doesn’t matter what you think everyone else should know about the companies and the content of the Parmesan packages and what you do in your personal life regarding Parmesan is 100% irrelevant to the facts; the label should NOT read 100% Parmesan if what’s inside the container is not 100% Parmesan; it is intentional deception, period.

      Judge Feinerman’s ruling will be overturned on appeal.

      • “You wrote one rationalization after another.”

        Can you list them?

        • Without specifics, in my opinion the rationalizations that were touched on were;
          1A, Ethics Surrender, or “We can’t stop it,”
          2 A. Sicilian Ethics, or “They had it coming”
          10. The Unethical Tree in the Forest, or “What they don’t know won’t hurt them.”
          22. The Comparative Virtue Excuse: “There are worse things.”
          36. Victim Blindness, or “They/He/She/ You should have seen it coming.”
          36 B. The Patsy’s Rebuke, or “It’s not my fault that you’re stupid!”
          41. The Evasive Tautology, or “It is what it is.”
          50. The Apathy Defense, or “Nobody Cares.”
          53. Tessio’s Excuse, or “It’s just business”

          I think the only possible defense for this false claim of 100% Parmesan is some form of a rationalization or outright lies.

          Using Other Bill’s standards I could label a 5 five pound bag of flour “100% flour” if that 5lb bag only contained .01 oz of 100% flour; it’s bull shit. If they simply removed the “100%” off the front, it would no longer be deceitful.

          • You and I are on the same ethics page on this.

            • That’s the burden of “All” statements, they are falsified by even one exception. But I’m still sympathetic to Other Bill’s argument based on the direction I think he’s going:

              The hidden need here is there must be some “No Less Than” requirement before a product can claim to be what the product claims to be, less I sell “Parmesan Cheese” that is 50.1% Parmesan and 49.9% any other cheese or cheese-like filler to keep my costs low while convincing people they are getting Parmesan Cheese.

              The mere claim “Parmesan Cheese” is, of itself, an absolute claim that a product IS Parmesan Cheese, when we know there is a significant proportion of preservatives and other ‘ingredients’.

              If ‘Grated’ Parmesan Cheese literally cannot exist on its own without re-coagulating into a block, then the presence of something claiming to be “Grated Parmesan Cheese” does IMPLY there is an agent present that preserves it in a ‘Grated’ state. The industry gets in trouble because Grated Parmesan Cheese is so ubiquitous, no body knows that it doesn’t just stay grated, so they don’t know that grated Parmesan cheese must have some sort of physical-state preserving agent.

      • Other Bill

        Z-Man, I would also add that the labeling doesn’t say “100 percent pure” or “100 percent unadulterated.” As Jack says from time to time, “words matter.” Why doesn’t it matter what I think? The “reasonable man” is a very important figure in the Anglo-American legal tradition. He has a lot to say in the common law.

        What’s in the container IS 100% Paremesian. There’s just some extra stuff in there to enhance the shelf life of the product. If you want real Parmesan cheese, go to the cheese counter or the dairy case and stay away from the canned tomato aisle where they sell the faux grated cheese. I think your position verges on nanny state stuff.

        • So if the “other stuff” is, say, rat droppings or rat poison, it’s still a straightforward label? The cheese has the other stuff mixed into it, unlike when I grate my own cheese from a block. THAT is 100% grated parmesan cheese. When a label says that the equivalent is in a box and it isn’t, that’s consumer fraud.

          • Other Bill

            So every product has to have all it’s additive listed not only in the ingredients list on the back but on the title on the front. “Stewed Tomatoes” on the front of the can is deceptive because it doesn’t list emulsifiers and salt and chemical coloring and various other multi-syllabic preservatives?

            Rat dropping and rat poison. Straw rodent! That’s not a tort, that’s a crime.

            • The point is, which you are gradually obscuring, is that the label intentionally suggests that there are no additives. 100% does that. The judge ignores and spins it by saying it might not apply to the cheese. Amusingly, his “100% parmesan” spin is also undercut by some of the packages I saw, which said “100% parmisan cheese’ while the label said that the package contained Romano cheese as well.

              The claim is a lie, Bill.

              • Other Bill

                If there’s Romano in there, it’s not 100 percent Parmesan and the label is wrong and arguably deceptive. That’s an easy one.

                Saying 100 percent means unadulterated or pure or all natural or no additives is another thing given the state of the food processing industry and modern housekeeping.

                “Pure” is another term we see on labels. Does it mean no additives or preservatives? I don’t think so.

  2. When I lived in England for a year (40 years ago), I frequently bought (sterilized) milk, a “pure dairy product” that was good sitting on a shelf for months. It needed refrigeration only after opening. I may have been young and naive, but I suspect that I would have noticed “blue, green, or black fuzz.”

  3. JP

    Speaking of dismissed cases, did you see the NYT/Palin case was dropped?

  4. Chris

    Grate post, Jack. I think I saw a similar case on “The Gouda Wife.” How dairy this judge rule in favor of deceit. This judge needs to be put out to pasture.

  5. That deceit has riled me for years. Removing the “100%” would make me have more faith in their honesty and their products. Alas, there seems to be little consequences for practicing deceits on the consumer these days as the big businesses have big war chests when people object. We call it sawdust when we can’t afford 100% parmasan.

  6. Ban products like this. The industry should sell only blocks of cheese, the buyer can do their own work at home.

    Make America Grate Again.

    • Other Bill

      Hell, let’s get back to basics. Let’s prohibit the sale of any processed milk. Let’s make everyone drive to the dairy and pick up their own fresh, whole, unpasteurized milk each morning and then they can churn their own butter and make their own cheese and pasteurize it all themselves! Buttermilk for all. When they’re not spinning their own yarn and weaving their own rugs and knitting their own sweaters. Who wants ease and economy in the kitchen, not Walmart shoppers.

      • Rusty Rebar

        I would think there might be some middle ground between fraudulent claims on the part of manufacturers and everyone having to operate their own dairy farm.

        • Other Bill

          Agreed, Rusty. I think the line is at all Parmesan with non-toxic standard industrial additive: Okay. Parmesan with Romano: Not okay.

          • Rusty Rebar

            Well in either case, like you, I buy my Asiago in blocks and grate it myself. I rarely buy Parmesan.

            • Other Bill

              And then there’s Reggiano.

              You know, I wonder why the various cheese producing regions of the world don’t go after the American cheese producers in the way the Champagne people went after anyone who used to use “Champagne” to describe their carbonated wines even though they were produced in Napa or anywhere other than the Champagne AOC. Smoked Gouda from Wisconsin? What is that? I’m not even sure it’s fair to label the stuff “Gouda-styled cheese food.”

              Another thing that bothers me about this case is the forum. Shouldn’t there be some sort of administrative FDA or FTC hearing? If it’s fraudulent labeling of a food, you’d think those entities would be the ones to apply their regulations. Class action is just so cumbersome. What are the damages? Who’s in the class? How do you get in touch with the members? Everyone who’s lived in a country where Kraft has sold their Parmesan cheese (so-called)? If the plaintiffs prevail, the lawyers will be paid a huge fee, the affiliated servicing companies they hire to administer the settlement will make hundreds of thousands hiring temporary workers to stuff envelopes and the members of the class will get a certificate for two canisters of re-labeled “Parmesan Cheese.” This judge may have decided to just pull the plug ASAP looking at the bigger picture, as Federal judges are very often wont to do.

              • I don’t feel like a essay on the nonsense of legally defining food types and styles by geographic region. In summary, European-style food purity laws are simply an attempt to control the market and stifle competition.

                • Other Bill

                  I think in wine and food, there’s a lot to be said for it. If you can steal a name and get an undeserved price premium for your inferior product, doesn’t that disincentivize a producer from taking the time and expense necessary to deliver a better product?

                  • Name of the product catches the eye. Name of the producer indicates reputation for quality. If Melvin Shlubknuckles’ Black Forest Ham (produced in Kansas) is outright awful compared to Hans Schinkenmacher’s Black Forest Ham (produced in THE Black Forest) is absolutely excellent, the general market is informed enough which brand produces a better quality than the others.

                    On the FLIP SIDE, if Melvin’s Black Forest Ham (from Kansas) is 10,000 times better than Hans’ (from the actual Black Forest), I could care less that it’s from Kansas…

                    I have no problem with there being legally defined *processes* that must be adhered to and legally defined *ingredients* that must be present before a food can be labelled a specific way. I draw a line at Geographic requirements (among other lines outside of this discussion). Unless there can be a difference shown that specifically relates to geography…who knows, maybe the specific climate causes pigs to taste differently in the actual black forest…I doubt it…then making a legal requirement that people living OUTSIDE the Black Forest are incapable of producing ham of the same quality and flavor as people INSIDE the Black Forest…it’s just competition stifling protectionism.

                    • Other Bill

                      Why would anybody in Kansas want to call their ham “Black Forest Ham” other than to unethically trade on other people’s reputation? I doubt bad ham from the Black Forest would be purchased and resold by wholesalers or exporters.

                      The quality of wine is, to a very large extent, determined by where the grapes are grown. If you want to know the quality of a wine, you need to know where the grapes were grown. For some guy in Ojai California to call his wine Bordeaux or Burgundy or Champagne is preposterous. You’re going to say this is snotty snobbishness, but wine is mostly about the soil and the micro climate within which it is grown. Of course, there are different grades of wines in Europe. The less expensive ones are not from any particular area and are therefore less expensive. But at least you get a really good idea of what you’re paying for.

                      I think the same can apply to cheeses. I just don’t think Gouda grown and processed in Wisconsin is the same thing as Gouda produced in and around a little town in The Netherlands. Different soil, different climate, different grass, maybe the same breed of cow, maybe not. Same process? Maybe, maybe not. Just call it a soft cheese from Wisconsin. Or make up a whole new name.

                      Certainly Dutch ice cream is richer than American because the FDA has lowered butter fat content requirements to such an extent that US ice cream is essentially what used to be sold as ice milk. What did ever happen to ice milk?

                      By the way, we discovered our favorite type of ground beef while living in The Netherlands. It was labeled as Black Angus. I asked the butcher where it was from. He went in back and got the packaging. It was from Kansas. Hah.

                    • “Why would anybody in Kansas want to call their ham “Black Forest Ham” other than to unethically trade on other people’s reputation?”

                      If it’s made using the exact same process and the exact same pig species, fed the exact same way…

                      For the rest of your comment, I had already said this:

                      “Unless there can be a difference shown that specifically relates to geography…who knows, maybe the specific climate causes pigs to taste differently in the actual black forest…I doubt it…then making a legal requirement that people living OUTSIDE the Black Forest are incapable of producing ham of the same quality and flavor as people INSIDE the Black Forest…it’s just competition stifling protectionism.”

                      So yeah, if the specific geographic conditions create such a difference in the chemical composition of a product enough that the reasonable consumer given reasonable experience with a product can tell the difference in the products, then I don’t mind a legally defined geographic qualifier. My gut says that this occurs far less often than certain food industries claim when they seek regional protectionist policies.

  7. Pennagain

    No! No! No! You’re misreading the label! The “100%” doesn’t refer to the cheese; it represents the the pulverizing, the granulating, the veritable particulation of that which was ground to the finest, most correct melt-in-the-mouth specifications of cheese GRATING.

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