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Hey Breyers, Where Are the Vanilla Beans?

MrConsumer is lactose intolerant and therefore is limited in his choice of ice creams. His go-to bargain brand has been Breyers Lactose Free. But he was in for a surprise a couple of weeks ago when he switched back to the vanilla variety after having been buying the chocolate version for about a year.

Breyers has advertised on TV for years that it uses real vanilla beans in its natural ice cream:

Note: this ad is not for their lactose-free product

Although a large scoop with flecks of vanilla beans was prominently pictured on the top, front and back panels of the Lactose Free Vanilla carton that MrConsumer bought, upon opening it, none was to be found. This is contrary to past practice for this variety.

*MOUSE PRINT:

Breyers lactose free Vanilla package
Breyers lactose free vanilla open container

There has been a huge run-up in the price of vanilla in the past year. Could Breyers be cutting corners by leaving out the flecks? We asked Unilever, the maker of Breyers, about that as well as why the container depicts the flecks but there were seemingly none inside. Neither the company nor its PR firm has responded to three inquiries.

From a consumer standpoint, showing one thing on the packaging but delivering something different inside is a pictorial misrepresentation, and can be considered an unfair or deceptive practice under state consumer law.

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Lawyers Drop Claims of “No Tuna” in Subway’s Tuna Sandwiches

In January, two consumers (and their law firms) made international headlines when they claimed in a class action lawsuit that there was no tuna in Subway’s tuna sandwiches. They even said they had lab tests to prove it. (See our original story and our follow-up story.)

Subway Tuna Headlines

We asked the law firms for their test results at the time, but they would not provide them nor answer any questions. When news of the lawsuit broke, Subway launched an extensive advertising campaign denying the claim and saying that their tuna was 100% tuna.

Subway 100%

Now, five months after the original bombshell complaint was filed, the consumers’ lawyers filed an amended complaint on June 7 backing off their original contention that there was no tuna in Subway’s tuna sandwiches. (Gee, what happened to all their damning test results?)

The suit is now claiming, among other things, that Subway’s tuna is “not 100% sustainably caught skipjack and yellowfin tuna” and thus customers are being misled.

But how was this claim about the type of tuna used communicated by Subway to customers or prospective customers to influence their purchase decision? The only reference we could find was buried in the social responsibility section of the Subway website.

We posit that most consumers were probably never misled by the website’s skipjack/yellowfin claim (if in fact it is false) because most people stepping up to the food counter don’t check the social responsibility section of the Subway website first before placing their sandwich order. We also checked a couple of Subway locations, and there were no handout menus with that claim nor any reference to the types of tuna used on the wall menu. So on this point, we think this claim may be a little fishy unless the type of tuna purportedly used was widely advertised by Subway and was not true.

*MOUSE PRINT:

The complaint goes on to allege that Subway knows or should know about:

‘vulnerabilities in the [overseas] tuna supply chain’ and have not taken ‘sufficient measures to control or prevent the known risks of adulteration. On the contrary, they actively perpetuate actions and steps that encourage mixing non-tuna ingredients into the Products.’ … ‘Defendants lack a reliable and standardized protocol to ensure that the contents of these sealed vacuum bags are actually tuna.’

The lawyers claim that Subway tuna is adulterated but do not say they have tests to prove the packaged tuna that Subway uses has other ingredients or other species of fish mixed in with the actual tuna. However, if they can prove it is not 100% tuna, and it contains more than just some inconsequential amount of other fish, then they have a point.

We asked Subway at least three times to comment on the plaintiffs’ new complaint and the dropping of the original “it contains no tuna” claim. The company did not respond. And checking with one of the consumers’ law firms that brought the case yielded no answers as to why they dropped the “no tuna” claim and if they have test results to back up their new claims.

Subway presumably lost a ton of money and suffered damage to its reputation when the original case was filed claiming that there was no tuna in Subway’s tuna sandwiches. So, you might wonder if Subway could sue the lawyers for defamation. Generally speaking the answer is no because of what is known as the “litigation privilege” that generally exempts claims in court filings from being the subject of a libel suit.

We’ll keep an eye on this case and report any significant future developments.

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Hefty Recycling Bags Not Recyclable

A class action lawsuit was filed earlier this month against the makers of Hefty Recycling bags alleging that their bags are not recyclable.

Hefty recycling bags

On the back of the box, the company claims the “bags are perfect for all your recycling needs.” And in a commercial on the Hefty website, they show that the bags can be filled with recyclables and put out at the curb or in your recycle box.

Hefty recycling
Click above to watch ad

*MOUSE PRINT:

The disclaimer, which is only on the screen for two seconds, says you need to check with your locality if you are actually allowed to put recyclables in plastic bags for pickup curbside. And an inconspicuous statement on the back of their boxes says that the product was developed for use in municipal recycling programs where applicable.

According to various recycling information sites, only a small number of cities and towns allow it because plastic bags tend to get caught in the sorting machines.

Don't recycle in bags

Although neither the product box nor the advertising explicitly says the bags themselves are recyclable, the lawyers contend that because the bags are explicitly used for recycling purposes that consumers will reasonably infer that the bags themselves are recyclable too. They also say that bags are made of a type of plastic that for practical reasons is not recyclable and may wind up in a landfill along with their contents.

Under the FTC’s Green Guides, sellers cannot claim directly or indirectly that their products are recyclable when such is not the case.

§ 260.12 Recyclable Claims.

(a) It is deceptive to misrepresent, directly or by implication, that a product or package is recyclable.

Reynolds, the maker of Hefty bags, did not respond to a request for comment in published stories.

We will have to wait to see if the company is able to get the case tossed out.