In Lemke v. Kraft, Case No. 21-cv-278-wmc (USDC WD WI May 6, 2022), the District Court bounced yet another one of plaintiff’s counsel Spencer Sheehan proposed classic actions. Here, Sheehan’s lawsuit against Kraft Heinz Food Company alleged that Bagel Bites have cheese that is a blend made with skim milk and tomato sauce that contains ingredients consumers wouldn’t expect. U.S. District Judge William Conley joined colleagues in Illinois and New York who similarly rejected Sheehan’s arguments, calling his claims “unreasonable and unactionable.” Dismissing the suit, the Court stated that the plaintiff did not prove the product’s labeling did not meet federal Food, Drug and Cosmetic Act standards. “Even viewing all of the allegations in the amended complaint in a light most favorable to plaintiff, the court concludes that the Bagel Bites’ label on its face is neither false, deceptive or misleading nor leads to consumer confusion more generally ? As such, the court agrees that plaintiff has failed to state a claim and will grant defendant’s motion.”
Conley also ruled that the product label does not claim to be 100% mozzarella cheese. In regards to the tomato sauce claims, he says the FDA Compliance Policy Guide has no standard of identity for tomato sauce, only requiring that the sauce and ingredients be included in the ingredient list. “Because Lemke has not plausibly alleged that a reasonable consumer won’t receive the ‘mozzarella cheese,’ ‘real cheese’ and ‘tomato sauce’ provided on the front of the package of defendant’s Bagel Bites, plaintiff has failed to state a claim for relief,” Judge Conley said.
Sheehan has drawn considerable media attention as an attorney taking on the food industry with novel ideas for class actions, like the fudge in cookies not adhering to the traditional definitions of fudge and the strawberry-flavored filling in Pop-Tarts being made from pears and apples and dyed red. His cases are often filed as prospective class actions, which leads some defendants to settle quickly to avoid lengthy and costly litigation. But those who fight point to the standard that must be proven in his claims ? that a reasonable consumer would be misled by a company’s claims.