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.

Candy Packaging Ethics: How Much Air Can A Candy Box Contain Without Being Deceptive?

Peeps Manufacturing

Stephanie Escobar is suing the makers of “Mike and Ike,”  claiming that it is misleading customers by filling nearly half the box with air rather than candy. She bought a box of “Mike and Ike” for  $4 at a Los Angeles movie theater, and was stunned  to find that  46 percent of the it  was filled air, what is known in the business as “slack-fill.”  She checked a box of Hot Tamale candy sold by the same company, and there was only 54% candy in that box too, disappointing her greatly.

Her suit argues candy maker “Just Born Quality” Confections is violating California’s false advertising law, unfair competition law and the consumer legal remedies act.

(This is a separate movie candy ethics issue from the apparently obscene $4 price, much on my mind since on my recent visit to the the theater to see “Fences,” a drink, hot dog and popcorn cost me $19. 85. Movies charge those prices to keep the prices of tickets down, and in the aggregate, that is better for consumers and the theater than charging 20 bucks for the movie and half as much for the junk food.)

Just Born vice president Matt Pye promised a vigorous defense to the “baseless allegations.”“Our products and labels comply with all FDA regulations and provide consumers with the information they need to make informed purchase decisions,” Pye said in a statement.

That rather ducks the issue, doesn’t it? How often have you been shocked that a container is mostly air? Many products, candy notable among them, have been reducing the size of the product sold rather than raising the price. That is fair enough, if one can see what one is purchasing. A box, however, doesn’t permit a consumer to see what’s inside. The argument that the labels are compliant isn’t the same as proving that it’s ethical to have a container that’s twice as large as the the contents require.

Fortunately, I’ve always hated Mike and Ike. AND Hot Tamale. But now I’m wondering about my Raisinettes…


Pointer: ABA Journal

Along With All The Other Critical Issues Ignored In This Presidential Campaign, What Completely Neglected Crime Robs American Consumers Of An Estimated $25 billion A Year?


Why it’s fish fraud, of course!

Ethics Alarms covered the problem way back in 2011, in a post called “Getting Scrod in Boston: The Ravages of Seafood Fraud. I just checked: almost nobody has read it, and those who have almost certainly have 1) forgotten about it and 2) been ripped off buying seafood since.

Now the guys at “Stuff You Should Know” have done an excellent  podcast about the issue. It really is infuriating that with all the regulations we pay for, and all the attention the government focuses on fads, politically correct crusades (how many Americans are affected by limitations on which public rest rooms can be openly used by transgender citizens?) , and out-and-out trivia, something like this goes not only unaddressed by officials, but ignored as well. The news media, meanwhile, would rather use its limited daily space to tell us how Stephen Colbert just skewered Donald Trump last night than to warn us about our pockets being picked.

Well, not me: I almost never buy seafood unless it’s raw oysters, whole shrimp or crab,  and if I’m in New England, Ipswich clams and lobster, all hard to fake. Continue reading

Getting Scrod* in Boston: The Ravages of Seafood Fraud

“Why, certainly that’s a red snapper, sir! Just came off the boat today!!”

If there is an opportunity for profitable dishonesty that nobody is paying attention to, the overwhelming likelihood is that it will flourish to the point of becoming standard practice.

Isn’t that discouraging? I hate to write that sentence, as I hate to think or accept the conclusion behind it. Yet when I come upon a topic like seafood fraud (or fish fraud), it is hard to deny.

The Boston Globe just published the results of a wide-ranging, five-month investigation into the mislabeling of fish in the Greater Boston area and other parts of Massachusetts. The shocking results showed that Bay State consumers:

“…routinely and unwittingly overpay for less desirable, sometimes undesirable, species – or buy seafood that is simply not what it is advertised to be. In many cases, the fish was caught thousands of miles away and frozen, not hauled in by local fishermen, as the menu claimed. It may be perfectly palatable – just not what the customer ordered. But sometimes mislabeled seafood can cause allergic reactions, violate dietary restrictions, or contain chemicals banned in the United States.

“The Globe collected fish from 134 restaurants, grocery stores, and seafood markets from Leominster to Provincetown, and hired a laboratory in Canada to conduct DNA testing on the samples. Analyses by the DNA lab and other scientists showed that 87 of 183 were sold with the wrong species name – 48 percent.” Continue reading

Stupid Ethics Tricks: Buns, Mascots, Mottos and Maher

Advertising Ethics: KFC is marketing its new “Double Down” chicken sandwich by paying college co-eds—who must  meet some secret standard of butt-comeliness—to wear sweat pants with “Double-Down” printed on the seats. The National Organization of Women objects: “It’s so obnoxious to once again be using women’s bodies to sell fundamentally unhealthy products,” says Terry O’Neill, NOW’s president. What an odd comment: is it all right in NOW’s view to use women’s body to sell healthy products? Is O’Neill saying that (not to give KFC any ideas) paying buxom co-eds to wear tight T-shirts advertizing fried chicken breasts would be wrong, but the same campaign for healthy, broiled breasts would be just fine?

I am tempted to say that any ethical condemnation of the “buns as billboards” method is attributable to the “Ick Factor,” not ethics. Continue reading

Vanity Size Ethics

Esquire has revealed the result of its investigation, and it is this: many manufacturers of men’s pants routinely mislabel their products’ waist measurements, representing waist sizes as less, and sometimes considerably less, than they really are. Old Navy, by far the most outrageous of the size-liars, sells pairs of trousers with a 41 inch waist band as a 36. Other companies, like Hagar and The Gap, play the same game, though not as egregiously.

The practice is intentional, apparently, and even has a name in the industry—“vanity sizing.” The theory is that pants with smaller waist measurements make men feel better about their pot-bellied bodies, and thus have a competitive advantage over truthfully labeled pants. All other things being equal, a man is more likely to buy a comfortable pair of jeans that have a 36″ label on the waist than ones with a 38″ label. Continue reading

Book Publicity Ethics

Author Jennifer Belle felt that her new book, The Seven Year Bitch, needed a more creative publicity campaign than her publicist was providing. The placed an ad in “Backstage” requesting actresses with “compelling and infectious laughs,” to read her book on the subway and at New York City landmarks for $8 an hour. This was enough to interest the New York Times  in sending a reporter to cover the auditions, and then Belle sent the actresses she selected out in teams of two to the steps of the Metropolitan Museum of Art, the steps of the TKTS booth in Times Square, Washington Square Park, and the subways. They read the book out loud, laughing their infectious laughs, and when asked, told onlookers about the wonderful book they were reading. Continue reading

Rebate Ethics

I  hit the roof yesterday when I found out that we had missed the deadline to apply for the promised $100 rebate on my son’s fancy cell phone. To make myself feel better, I checked with Consumers Reports and some other sources: sure enough, the Marshalls are not alone. It is estimated that 40%-60% of all rebates go unclaimed, to the tune of 4 billion dollars. What a deal for retailers! They lure you to the store with low prices. When you get there, you discover that the price will only truly be low after you mail in a rebate request and get a check in return. But you’re in the store, and have made the emotional commitment to buy. Later, you may find out that the various hoops you have to jump through to get the rebate back are annoying and time-consuming, and easy to botch. If you are busy, you may put it aside—and ninety, sixty, thirty, or even just seven days later, the rebate offer expires.

Are rebates ethical, or are they a particularly insidious form of consumer fraud, using the well-document human characteristics of impulse buying, inattention to detail, short attention span and procrastination against consumers to make millions of dollars in money that was supposed to be discounted but never was? Continue reading

TGIF Ethics Round-up: Killer Whales, Palin-Hatred, MagicJack and More

Brief ethics notes on a wild week…

  • How dare the killer whale be a killer?…Tilikum, the killer whale who either playfully or maliciously killed his trainer at Orlando’s Sea World this week, will apparently stay in the facility. Some pundits (the ones I have heard were of the foaming-at-the-mouth conservative fanatic variety) regard it as absurd not to put down a murderous whale when a dog, bear or tiger that similarly ended a human life ( Tilikum may have ended three) would routinely be destroyed. One doesn’t have to be a PETA dues-payer to see this as advocacy for blatantly unfair retribution. Let’s see: Sea World takes a top-of-the-food-chain predator out of the oceans out of its natural environment, earns admission fees by making it perform tricks for the amusement of humans in a theme park, pays relatively tiny and fragile trainers to interact with the three ton beast, and when the predators does what it is naturally designed to do—kill—we blame the whale? Continue reading

The F.T.C. vs. the Singing Pirate’s Not-So-Free Credit Reports

What does it say about the futility of federal regulators when the Federal Trade Commission thinks the best way to combat misleading commercials for “free credit reports” is to use taxpayer funds to produce and run a parody of  those ads? That’s right: the government is running TV commercials designed to look like the commercials that try to confuse consumers into using  a costly credit service rather than the government’s free service. Continue reading