Who is Spencer Sheehan and why are his fingers in my ice cream? It’s complicated. Batman protects Gotham City. Superman protects Lois Lane. Attorney Spencer Sheehan protects ground vanilla beans in New York. I guess everyone needs a purpose.
You see, Spencer has filed a whole bunch of Federal Court class actions against deep-pocket food companies (Walmart, Nestle and others) claiming the public is being cheated when they buy vanilla ice cream when its flavor doesn’t come from vanilla beans. Spencer thinks that everybody will be protected if the ice cream label says “vanilla flavored” rather than “vanilla.” But it gets weirder than that. Some of the lawsuits say two of his clients are “John Doe” and “Jane Doe.”
Our firm knows how food label class actions work. We are defending them all the time against self-appointed, self-anointed protectors of the public good. Based on my 30 years in food law, I can tell you Spencer’s cases have some problems.
Truth is, the vanilla molecule from the plant is identical to the one made by numerous U.S. flavor producers. So the vanilla flavors in the various products start with an identical substance and an identical taste, whether it comes from a plant or not. So everyone is getting what they bargained for: vanilla. No one’s getting cheated. But that doesn’t stop Spencer from protecting you, me and the dignity of vanilla beans.
And you know, vanilla beans are happy Spencer is protecting their good name because he’s a learned historian. A case he filed in federal court teaches us that, “According to ice cream lore, Thomas Jefferson may have discovered vanilla ice cream when a bottle of vanilla extract accidentally spilled into the frozen milk and cream dessert he was preparing during the summer he wrote our Constitution.” How quaint. Only problem is that James Madison wrote our Constitution and Thomas Jefferson “discovered” vanilla ice cream when he ate some while living in France, where it had been made for almost 100 years. But don’t let facts get in the way of a good story when you’re protecting the public.
Spencer’s zeal for protecting us is such that he has filed 27 lawsuits regarding vanilla in ice cream, yogurt, cookies, oatmeal, almond milk, soy milk and cream soda – – asking for damages of as much as 5 million dollars – – earning him the title “The Vanilla Vigilante.”
I for one think Spencer is missing some big opportunities. What about Denver Omelets – – they certainly don’t come from Colorado. Same goes for Philadelphia Cream Cheese and Eskimo Pies. And then there’s the big one: Mars Candies. They’ve been fleecing us for years. Why isn’t Spencer protecting us from these obvious rip-offs?
Someone might point to the brown specs of vanilla in ice cream as evidence of “the real thing.” Nope. Those are almost always vanilla pods that are ground up after the vanilla flavor has been extracted. They are in the ice cream just to make it look like vanilla. Why isn’t Spencer protecting us from that?
Spencer is placing his bet on the fact that FDA has defined vanilla as coming from the plant. A big problem with Spencer’s cases is whether anyone is being cheated when the vanilla molecule from the plant is the same as the vanilla molecule from U.S. flavor producers. In both cases, the consumer is getting exactly the same vanilla flavor. So is anyone being cheated? I don’t think so. Another problem for Spencer is whether people are being misled – – or even care. The truth is that people buy vanilla ice cream based on taste. So where does that leave Spencer’s cases?
The Bottom Line: Spencer knows that no food labeling class action has ever been decided by a jury in the history of the United States because the stakes are so high that no plaintiff or defendant wants to take the chance of losing. So the cases are either knocked out by defendants’ motions before trial (The Food Lawyers have done that) or the case is settled. So Spencer knows he doesn’t have to file a case he can win, just one that’s not so rotten a judge will throw it out of court. And if it’s not that rotten, it’s a payday for Spencer.
Are his cases that rotten? Stay tuned.