News of at least two class-action lawsuits challenging the accuracy of dietary data on restaurant menus has operators wondering if trendy menu-labeling mandates will open the floodgates for similar litigation.
In complaints filed this month in Washington state and California, plaintiffs alleged misrepresentation and false advertising by Applebee’s and the Brinker International Inc.-owned Chili’s, Romano’s Macaroni Grill and On the Border chains. The lawsuits contend the fat and calorie contents of several diet-oriented dishes were sometimes double or triple the amounts stated on menus.
Legal experts said the lawsuits, which seek court validation as class actions, could prompt a wave of copy-cat litigation, especially given lawmakers’ nationwide push for more on-menu nutrition disclosure.
Some of the pending and proposed menu-labeling statutes across the country have attempted to include protections against such lawsuits. Even still, those liability buffers are likely to be tested in court before restaurateurs can be assured of protection.
New York City in May became the first municipality to enact a menu-labeling requirement, though the state restaurant association is continuing a legal challenge against required on-menu calorie disclosures.
San Francisco and Seattle-anchored King County, Wash., are scheduled to begin requiring nutrition information posting by certain chain restaurants later this year, and similar proposals are being considered in Chicago, Philadelphia and Washington, D.C. Statewide mandates also are being considered in California and New York.
As more restaurants reveal nutrition analyses, many operators say consumers—and creative plaintiffs’ attorneys—will no doubt question the numbers.
“If you pass a statute like this, you’re just setting up a company to get sued,” said Robert Wallan, an attorney with Pillsbury Winthrop Shaw Pittman in Los Angeles.
However, attorneys for plaintiffs in the Applebee’s and Brinker cases say their argument is different. In those suits, the dishes in question were promoted as lower in fat or calories as part of voluntary marketing initiatives, said Daniel Johnson, an attorney with the Seattle law firm of Breskin, Johnson & Townsend, which represents the plaintiffs in both cases. “We’re concerned that the public should be fairly informed of the truth in marketing their product,” he said.
In one case, Washington resident Anne Paskett alleged in filing with the U.S. District Court in Dallas that Brinker enjoyed an unjust enrichment through deceptive trade practices. Officials of Dallas-based Brinker declined to comment.
Paskett also sued Applebee’s in U.S. District Court in California, but that litigation was later dropped in deference to another lawsuit with similar allegations by Maria Jones in California Superior Court in Alameda County. Applebee’s parent DineEquity Inc. of Glendale, Calif., also declined to comment.
Both lawsuits refer to lab testing of recipes done for eight Scripps TV Station Group-owned television stations in various cities. The tests looked at samples from Applebee’s “Guiltless Grill” menu selections, the “Sensible Fare” dishes at Macaroni Grill, “Border Smart” dishes at On the Border, and low-calorie salads from The Cheesecake Factory.
The results, as reported by the TV stations, were that the Guiltless Grill salmon from Chili’s had 664 calories and 35.5 grams of fat, instead of the 480 calories and 14 grams of fat posted on the menu. On the Border’s chicken fajitas were found to have 654 calories and 26.5 grams of fat instead of the 570 calories and 9 grams of fat listed.
Applebee’s section of Weight Watchers dishes were close to accurate on calorie counts, but fat levels were sometimes double or triple the stated amounts, according to the reports.
The Cheesecake Factory’s salads did fall under the promised 590 calories or less, according to the report, but some dishes had as much as 50 grams of fat. But The Cheesecake Factory was not sued because it makes no claims about fat levels.
Scott Fisher, an attorney with the firm of Neal Gerber and Eisenberg in Chicago, who specializes in class-action defenses but is not involved in the two lawsuits, said the defendants likely would question the science behind the lab tests.
“The complaint doesn’t say how many dishes were tested and where,” Fisher said. “Is it possible that, in the dish that was tested, a pat of butter happened to slip in? Surely.”
But if the cases survive inevitable motions to dismiss and the courts grant class-action status, “there will be tremendous pressure to settle,” he said. “There’s a threat to public relations, and there’s the expense of defending oneself.”
Such threats explain why the California Restaurant Association is supporting a menu-labeling bill that would offer some liability protections to operators in that state. As one of two pending nutrition disclosure bills, the CRA-supported measure was written in a way that attempts to head off potential civil lawsuits by establishing that statutory compliance falls solely in the jurisdiction of local health officials and barring private citizens from taking any enforcement action.
Sponsored by state Assembly-woman Nicole Parra, D-Hanford, the bill also would allow nutrition data disclosure by various passive means, such as posters, brochures or computer kiosks, and not only through on-menu postings.
A competing bill by state Sen. Alex Padilla, D-Pacoima, doesn’t include such language and is virtually the same measure vetoed last year by Gov. Arnold Schwarzenegger.
The Padilla bill, requiring postings on menus and menu boards, calls for operators to post a disclaimer on menus noting that data are subject to possible variances, depending on portion sizes or customization. However, Lara Diaz Dunbar, the CRA’s senior vice president for government affairs, said a disclaimer is unlikely to prevent operators from being sued.
The regulation in New York City also has no language protecting operators from liability. Health officials there said operators must have a “reasonable basis” for developing the calorie counts disclosed and that the nutrition data must be accurate within a certain fairly broad range.
In Washington state’s King County, chains with 15 or more units must comply with a menu-labeling requirement by Jan. 1.
The draft statute had allowed only a 20-percent range of error for data posted, but Washington Restaurant Association officials lobbied hard against such accuracy demands. “We had to explain that we’re not sitting on a manufacturing floor with robots preparing food,” said WRA president and chief executive Anthony Anton.
As a compromise, the statute now requires that operators document how they develop their nutrient calculations, like in New York, and says they must use a “reasonable basis” for their results.
Anton also recommended the use of a disclaimer on menus noting possible variations. But whether such efforts will protect restaurant operators remains to be seen, he conceded. “We won’t know for sure until it’s in court,” Anton said.