NEW YORK (Legal Newsline) – The lawyer who has filed more than 100 lawsuits over what it means to actually be vanilla is facing a fight from one of his biggest targets.
On Jan. 15, McDonald’s asked a federal judge to throw out a lawsuit filed by Spencer Sheehan of New York, who is suing dozens of companies over their vanilla products. He says because they don’t contain enough flavoring from actual vanilla plants, they shouldn’t be characterized as vanilla.
His lawsuit against McDonald’s concerns vanilla soft serve ice cream cones. The company notes a group of recent decisions that says no “reasonable consumer” would require vanilla products to be made the way Sheehan says they should be.
“Plaintiff alleges, based only on the words ‘vanilla cone’ on some McDonald’s menus, that consumers believe the product is ‘flavored only with vanilla’ derived from the vanilla plant,” the motion to dismiss says.
“No reasonable consumer would make that leap. A reasonable consumer ordering a soft serve cone at a quick-service restaurant understands, based on experience and common sense, that the term ‘vanilla’ on the menu board refers only to the flavor, not the ingredients.”
Five judges have thought the same, McDonald’s says. The company cites a California decision in a case against Wegmans over its ice cream, as well as rulings over protein shakes, almond milk and soy milk.
“The Complaint does not allege that McDonald’s makes any other vanilla claims with respect to the Product,” the motion says.
“McDonald’s does not, for example, claim that the Product is ‘made with’ vanilla. Under these circumstances, no reasonable consumer would understand the word ‘vanilla’ to mean that the product is flavored exclusively with vanilla beans or vanilla extract.”
Referencing the Wegmans decision, McDonald’s argues “And any consumer who is ‘interested in the actual ingredients’ can ask for that information at the point of sale or check McDonald’s website for the ingredient list, ‘which mentions neither vanilla beans nor extracts, but [does list] Natural Flavor.’”
Sarah Brew of Faegre Drinker in Minneapolis is representing McDonald’s and says another amendment to the complaint would be futile.
Vanilla lawsuits are only one facet of Sheehan’s assault on the food industry. He’s also filed suits alleging Keebler Fudge Stripes cookies don’t contain real fudge, King’s Hawaiian rolls aren’t actually made in that state and consumers are wronged by coupons on packaging that expire before the food inside does.