Health

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When Boneless Wings Had Bones And Caused Injury, A Consumer Sued

Back in 2016, an Ohio consumer went to a family-owned restaurant and ordered his usual — boneless wings. After eating some of them, one bite went down the wrong way and got stuck in his throat. A few days later, still having the problem and now a fever, he went to the emergency room. There, doctors discovered that a 1-3/8th inch chicken bone had pierced his esophogus causing an infection and other medical issues.

So the consumer sued the restaurant, the restaurant supply house, and the farm where the chicken came from.

The lower court and appeals court both ruled against the consumer. And last week, the Ohio Supreme Court did the same thing.

It its decision, the high court applied two tests to help determine fault. One is the foreign-natural test: “whether the injurious substance found in the food was foreign to or natural to the food.” Ohio courts have determined that if a foreign object like a stone or piece of glass is unexpectedly found in food, then the restaurant may be liable. In this case, finding a piece of a bone in a slice of breaded chicken breast is naturally occurring and would not rise to the level of negligence in their view.

The second test that the court applied is the reasonable expectation test. Ohio courts say they use both these tests to determine liability.

*MOUSE PRINT:

To determine whether a supplier of food breached its duty of care by failing to eliminate an injurious substance from the food, we look to whether the presence of the substance was something that the consumer could have reasonably expected and thus could have guarded against. And whether the substance was foreign to or natural to the food is relevant to determining what the consumer could have reasonably expected.

The consumer had claimed that since the restaurant advertised its food as boneless wings, they should have been boneless. The Supreme Court, going a bit off the rails, replied:

… it is common sense that that label [boneless wings] was merely a description of the cooking style. A diner reading “boneless wings” on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating “chicken fingers” would know that he had not been served fingers. The food item’s label on the menu described a cooking style; it was not a guarantee.

The majority of the judges ultimately ruled that the consumer could have reasonably expected and guarded against the naturally occurring object (the bone). But the minority was very vocal in their disagreement. They said just because an object is natural doesn’t mean it could be anticipated by the average consumer in the finished product.

The minority categorized the majority’s assertion that “boneless wings” was merely a cooking style as “jabberwocky.” They believed that a jury should have been given the opportunity to determine if this consumer could reasonably have expected there to be bones in his boneless wings, and whether the restaurant and its suppliers were negligent.

What do you think?

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This Coppertone Sunscreen Is Not So Special

A while back, a California consumer sued the makers of Coppertone sunscreen for deceptive practices alleging she overpaid for their product.

In her complaint, the consumer said she bought Coppertone Sport Mineral “Face” at twice the price of the regular version believing it was specially formulated for use on one’s face. The label said “Won’t Run Into Eyes” and “Oil Free.” Sometime thereafter she learned that the “face” product was identical to the regular Coppertone Sport Mineral product but cost twice as much.

Coppertone[Not to scale… Enlarged for readability]

*MOUSE PRINT:

Her lawyers assert:

Based on the prominent “FACE” marking and face-specific representations on the front label of the Coppertone Sport Mineral FACE products, reasonable consumers believe that the lotion is specifically formulated for use on the face. In other words, reasonable consumers believe that there is something different about the Coppertone Sport Mineral FACE lotion that makes it better suited for use on the face, as compared to regular Coppertone Sport Mineral lotion.

The pricing of Coppertone Sport Mineral FACE reinforces this reasonable belief. Per ounce, Coppertone Sport Mineral FACE costs twice as much as regular Coppertone Sport Mineral.

In short, Defendant is tricking consumers into thinking they are buying sunscreen lotion specially formulated for the face, when in reality, they are just buying Defendant’s regular Sport Mineral sunscreen in a smaller—and far more expensive bottle.

For its part, the company admits that the formulation of the two products is identical but marketed in two different packages. They say everything they state on the package is absolutely true, there is no deception, and the case should be dismissed.

The case has not been resolved yet.

We have previously reported how Excedrin sells several versions of its pain relievers all with the exact same ingredients but markets them for various different uses, such as for migraines or menstrual cramps.

So what do you think? Is it deceptive for a company to market the exact same product in two different ways, and charge twice the price for the one presented as a specialty use?

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Fish Fillets Plumped Up With Water

MrConsumer was always suspicious that store brand frozen, unbreaded fish fillets were somehow plumped up with water to add to the package weight because after pan frying they would shrink to a fraction of their original size.

Now, in a lawsuit just filed by consumers from three states, food giant, Conagra, is accused of doing just that to two big brands of breaded fish fillets — Van de Kamp’s and Mrs. Paul’s.

fish fillets

While the package says “100% whole fish filtets,” the ingredients statement tells a different story.

*MOUSE PRINT:

ingredients

According to the lawsuit:

The truth is, Defendant pumps up those fish with an industrial filler called sodium tripolyphosphate (“STPP”) and extra water to artificially add weight, which may then ooze out as a white goo when the fish is cooked. STPP, a suspected neurotoxin, is typically used to manufacture things like rubber, paint, and antifreeze. STPP also is used by unscrupulous businesses in the seafood industry to engage in short weighting.

The disclosure in tiny print on the back of the products’ labels about the presence of STPP does not dispel or disclaim to reasonable consumers the bold, prominent statements on the front and back of the products suggesting that the products are composed of ‘100% whole fish

The consumers’ lawyers say the fish is soaked in a solution of STPP which encourages the absorption of water. On average, they say, this adds 13-percent of extra weight to the fish.

Here is a video demonstration of how much a fish fillet shrinks when pan fried by exuding the water it had been plumped up with.

In the lawsuit, the lawyers allege a variety of unfair and deceptive practices under various consumer laws and seek a stop to the practices charged. Conagra has not commented on the pending litigation. And a consumer lawyer told MrConsumer that using STPP may be legal.

What do you think of the practice of bulking up the weight of fish products with water and chemicals?