His Pop-Tarts lawsuit failed. But this lawyer keeps suing over snack food ingredients

Spencer Sheehan has become the go-to lawyer for folks who aren’t convinced their fudge sundae contains any actual fudge, or who detect a distinct lack of fruit in their fruit filling.

The New York-based lawyer makes a living launching class-action lawsuits against companies that he claims are dishonest in their packaging and advertising — and he has a particular penchant for snacks and beverages.

According to an NPR profile last year, he’s filed hundreds of these cases, more than 120 centring on vanilla — or, more specifically, a lack thereof.

Most recently, he made headlines for a lawsuit that alleged Kellogg Co., defrauded consumers about the content of its Frosted Chocolate Fudge Pop-Tarts. The plaintiff in the case said the toaster pastries contained no milk and butter, or milkfat, which she called “essential to fudge.”

Lawyers for Kellogg argued that milk and butter are not the “defining ingredients” of fudge. They also said “fudge” referred to the Pop-Tarts’ flavor, and that a reasonable consumer “would interpret it to mean that the product tastes like chocolate (which it does).”

The judge agreed, and dismissed the proposed class action.

This wasn’t Sheehan’s first time facing up against Kellogg over his famous breakfast snack. In the last year alone, at least three US federal judges have dismissed lawsuits filed by Sheehan claiming that Kellogg did not use enough strawberries in its Strawberry Pop-Tarts.

Sheehan spoke to As It Happens guest host Tom Harrington about why he does this kind of work. Here is part of their conversation.

How does a case like that even come to you to begin with?

In instances like these fudge cases, they start from people contacting me about it.

Then I will take a look into the issue. And [I take it on] if it is something that I believe could be viable — or even if it is likely not to be viable or maybe it may not succeed, [but] still raises significant and important issues that should be addressed.

How often do you win a settlement in these cases?

Using terms like “winning” and “settlements,” they have a lot of different meanings. What most people want to know about is how often are these cases resulting in what’s called a class settlement. That’s what most people understand about class actions — a situation where the general public is able to submit claims through a third-party website and receive some monetary or other benefit as a result of purchasing their product.

Now, those types of settlements are very hard to come by. That’s our goal in every case, to have that. However, because of a lot of technical reasons and the legal landscape in this country, that’s something that’s very difficult.

However, we have certified classes over the past few years related to vanilla products. And we’re hoping to do more — not just about vanilla, but about other products as well. Not just food and beverages.

Those may seem like small things. I’ll admit we’re not curing cancer. But it is equally important to any other cause of action that a court may address.– Spencer Sheehan, lawyer

In class action suits like these, even when the plaintiffs win, it’s possible the people you represent may only receive a little bit of money, from what I’ve read, while the fees that go to you could be substantially more than that. So who’s really benefiting with these cases?

Let’s say somebody, an individual person who’s a class member, they spent $2 on a product. And as a result of the settlement, they receive $3 back. So I would say that person received everything back that they spent.

Now, the reason why the fees are a lot higher than the individual plaintiffs’ is because the class action is not designed to benefit an individual plaintiff. It’s designed to provide benefits to millions of thousands, sometimes millions, of people.

And also when you consider the amount that is distributed to all of the plaintiffs, that amount is often three or four times the amount received by the attorneys.

A US judge has dismissed a proposed class action accusing Kellogg Co. of defrauding consumers about the content of its Frosted Chocolate Fudge Pop-Tarts, one of several lawsuits challenging how it markets its toaster pastries. (Zety Akhzar/Shutterstock)

People will say you’re clogging up the courts. People have complained about “nuisance lawsuits” in the United States for years. So how do you counteract that charge?

That is a baseless charge…. I’ve been to the courts. And when I’ve been there, I’ve noticed that they’re quite empty. So I’ve not really seen any courts that are clogged up based on these cases.

If, in fact, these are nuisance lawsuits, then there are mechanisms in place for courts and parties to seek substantial penalties against attorneys and the plaintiffs that filed that.

Nobody’s ever done that against me, because all of my cases are viable based on substantive allegations, factual allegations, legal standards.

And, frankly, these types of cases are the only mechanism by which an individual person or consumers in general are able to say to a company, “Hey, this isn’t right. You need to fix this. You need to disclose that this product is flavored or this product doesn’t really have butter or that the vanilla is not real vanilla.”

Those may seem like small things. I’ll admit we’re not curing cancer. But it is equally important to any other cause of action that a court may address.

I have some experience in holding corporations accountable for what they do to consumers. But changing their behavior is something else. What have you seen in your experience about big corporations changing their marketing because of the legal efforts that you’re mounting?

With respect to changing behavior, I don’t really believe that that is something that I or any attorneys are capable of doing.

I believe that on a much smaller scale … ​​there will be changes to their labeling. And I definitely see that. And while I don’t know that I’m responsible for it, I have a feeling it has something to do with the work that I’ve been doing.

But I recognize, and I tell people often, that legal action through lawsuits is not really the way to affect the type of change and the type of practices that customers — and society, I believe — should receive.

So I’m aware of our role and I just want to do the best that I can on the cases that I can.

Written by Sheena Goodyear with files from Reuters. Interview produced by Chris Trowbridge. Q&A has been edited for length and clarity.

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