The ‘Vanilla Vigilante’ is now taking aim at essence waters. This week, Spencer Sheehan, an attorney who has led several legal campaigns alleging deceptive advertising by food manufacturers, has recently filed a pair of class-action lawsuits on behalf of consumers who he claims are being misled by water brands. A suit filed this week against Poland Springs’ parent company Nestle Waters North America Inc., (now BlueTriton Brands) joined another recent filing by Sheehan against Whole Foods over label claims featured on a store brand of flavored sparkling water.
It’s the latest twist in an eclectic legal career for the former Marine, who has also worked on behalf of at least two clients fighting to keep unconventional animals as pets – one, a squirrel kept by New York “Subway Vigilante” Bernhard Goetz, another a motorcycle-riding alligator named “Rambo” owned by a woman in Florida. While the pet cases brought the Long Island-based attorney a few headlines, it appears that Sheehan has really hit his stride with food class actions. He claims to have filed more than 100 lawsuits over the use of “vanilla” as a flavor descriptor on products that use vanilla flavoring as opposed to vanilla extract. He has also filed a new set of cases over the use of artificial smoke flavoring in products like cheese and almonds.
Sheehan’s managed to reach settlements with food companies over some of the vanilla suits, but many of the cases are still going through the courts. He’s found a space that allows careful parsing of ingredients and label copy to lead to potential class-action windfalls.
This week’s filing alleges that Poland Springs’ use of the phrases “Taste the Real” and “Real RASPBERRY LIME flavor,” accompanied by images of these fruits, lead consumers to an expectation that an “appreciable amount” of these ingredients are used to flavor the product. Poland Spring uses natural flavors that mimic the taste of the fruit to flavor their sparkling water, something that is noted and disclosed on the ingredients label.
“When you look at stuff really closely like I’ve done with vanilla and with many of the other food cases, and you learn these regulations thoroughly, you can see things that others really can’t see,” said Sheehan. “Nobody is saying that the product doesn’t necessarily have any lime or raspberry. We are saying that it is misleading to make flavor disclosures the way they are.”
Justin Prochnow, a Colorado-based lawyer whose practice focuses on regulatory and business issues primarily in the food and beverage industries, has litigated against Sheehan on numerous occasions. He said these cases are not driven by grieving plaintiffs, but rather as an easy, cost-efficient model for attorneys to generate steady cash flow.
“This is the mode of doing business for these guys. They find a particular claim or issue and if they get any level of success, then they go and find every other company making the same claim,” said Prochnow. “They use the same complaint and they switch out the name of the company and the name of the products and now they have a new complaint that they didn’t have to spend much time on”
Both class actions claim that due to the negligible quantity of the ingredient used to flavor the product, companies should not be permitted to portray images and language associated with real fruit if it is too insignificant to list as an ingredient. In both suits, the complaints cite a New York State regulatory requirement that companies disclose whether a food or beverage contains the ingredients pictured on the label.
A spokesperson for BlueTriton Brands, formerly Nestle Waters North America Inc. as of April 2021, said in a statement that: “Poland Spring Brand Sparkling Water is made with real fruit flavors, 100% natural spring water and bubbles. The claims made in this lawsuit are without merit. Our product labeling complies with all United States Food and Drug Administration regulations for natural ingredients and we stand behind the safety and quality of our products. BlueTriton Brands is highly confident in our legal position and will defend ourselves vigorously.”
In this filing, Sheehan is focused on the use of the word “real” and the assumed health benefits of consuming real food ingredients. While the FDA allows products to use the term “real,” even if there’s a negligible amount of the fruit, the additional imagery and language, he says, goes too far.
“I think there’s so much reliance on those magic words that somehow, they bring you within compliance of FDA labeling or flavoring regulation,” said Sheehan. “Just because you can have those words on there doesn’t mean that you can write anything else on the product with respect to the fruit ingredient or the flavor.”
According to Sheehan, Poland Springs’ use of the language “with a twist of lime,” implies there is a significant amount of citrus added to the beverage directly from the fruit because of the imagery associated with the phrase. Without this language present on the label, Sheehan said he does not believe the case would be as solid.
Sheehan said he hopes these class actions will encourage water brands to either put real fruit in the product, or not imply there is real fruit in the product at all. The suit also calls for the removal of labels that mislead consumers about the health benefits associated with real fruit, monetary damages relative to the purchase of this product, and compensation for the legal fees incurred from the suit.