The scandalous headline, courtesy The Huffington Post, is the result of the efforts of Dan Anderson, a high school math teacher in upstate New York who had his students weigh three types of Oreo cookies and report their findings.
The students determined that the creme in the Double Stuf Oreos they tested weighed less than twice as much as the creme in regular Oreos they tested.
The story does indeed make for some light summer reading. But it piques my interest because, as a food lawyer who’s very often not a fan of lawsuits targeting food companies, I fear the next step might be litigation.
To Anderson’s credit, he appears to be little more than surprised by the findings. But Anderson is not a class action attorney.
The prospects of an Oreo lawsuit might have appeared slim were it not for a series of lawsuits that were launched just this year against the sandwich chain Subway. In those cases, now consolidated in federal court, several plaintiffs sued Subway over claims the chain’s “footlong” sub is not a full 12 inches long. The plaintiffs allege, in fact, that Subway subs “are anywhere between 5 and 8.3 percent short.”
That may seem like hairsplitting—especially given the fact that dictionaries define the word “footlong” not as “exactly 12.00 inches” but, rather, as “approximately one foot in length.”
But consider that Anderson’s students determined that the filling in a Double Stuf Oreo weighs only 1.86 times more than does the filling in a regular Oreo. That means the creme in a Double Stuf Oreo is 7 percent lighter than two times the creme in a regular Oreo. That places Double Stuf Oreos in the same range as the Subway sub that’s the subject of a lawsuit because it’s “between 5 and 8.3 percent short” of a foot long.
“The case is about holding companies to deliver what they’ve promised,” said New Jersey attorney Stephen DeNittis, who filed the first lawsuit against Subway, in remarks I suspect would sound dramatically similar to comments an attorney might make in announcing a lawsuit against Oreos.
Others see the possibility of a lawsuit.
“I’m not sure a class action on this would be a whole lot sillier than the actual class actions that have been filed claiming that the Subway ‘footlong’ sandwich was only 11 inches,” says Walter Olson of the Cato Institute and the great legal blog Overlawyered—whose readers also fear a lawsuit—in an email to me.
Jeff Stier, a lawyer and senior fellow with the National Center for Public Policy Research who would oppose any lawsuit against Nabisco, agreed nevertheless to play devil’s advocate for me and explain in legal terms how a plaintiff might justify suing Oreos.
“Regarding the Double Stuf, a reasonable consumer would in fact justifiably believe that there was double the stuff in there,” Stier said in an email to me.
But Stier cautions that even if a lawsuit were to proceed, it likely wouldn’t prove a cash cow.
“Damages should be very small,” he writes, “since the damage is calculated as the difference between double the creme and the creme actually provided, which while not precisely double, is not far from it.”
Will Nabisco avoid a lawsuit over Oreos? It’s tough to tell at this point. I don’t think Nabisco did anything wrong in marketing its cookies.
But being right is no protection against lawsuits. Subway may not have done anything wrong, either. But it may have opened the door to being sued after it botched its PR campaign after the “footlong” issue first came to light.
Rather than speak with one smart voice, Subway acted as if it had no idea whether the company’s own subs were a standard 12 inches long.
The company had referred to its subs as being one foot in length in some of its ads. But—especially in light of the dictionary definition of the term—that could have been explained as nothing more than an accurate estimate. But after word that Subway’s subs were coming up short of 12 inches, Subway put its foot firmly in its mouth when it referred in a statement to new “efforts to ensure consistency and correct length in every sandwich we serve [and] to ensure that every Subway Footlong sandwich is 12 inches at each location worldwide.”
Subway later backtracked, claiming the company used the term “footlong” as nothing more than “a descriptive name for the sub [that was] not intended to be a measurement of length.”
This latter quote was the right one to make. But it was too little too late.
Sadly, Oreo appears to be building its PR campaign on bad ideas from the Subway playbook.
“I can confirm for you that our recipe for the Oreo Double Stuf cookie has double the stuff, or creme filling, when compared with our base, or original Oreo cookie,” said Oreo spokeswoman Kimberly Fontes to CNN.
No. No. No. That’s all wrong.
Stuf is not creme filling under any circumstances. Because if stuf is creme and Nabisco claims that Double Stuf has double the stuf, then Nabisco loses.
Doesn’t Nabisco have lawyers who clear statements like Fontes’s beforehand? Where the hell is Olivia Pope when you need her?
Here’s my stab at what Nabisco should have said:
We love what Mr. Anderson and his students did with Nabisco’s Oreo cookies. Oreos have been an American classic for more than 100 years and are a great addition to a student’s lunch. And Mr. Anderson and his students showed Oreos are also a great tool for learning.
Nabisco has never claimed Double Stuf Oreos contain exactly two times of any comparable measure of regular Oreo cookies—neither of creme nor cookie, nor of weight, volume, or density. But we stand behind the fact they do contain double the stuf.
“Stuf,” in case you need to be reminded, is a made-up word. “Stuf” doesn’t refer to creme or cookie in whole or in part or in any combination thereof. To Nabisco Double Stuf means double the enjoyment in every bite, and for about the same price as regular Oreos. So “Stuf” means great taste, fun, and value. Who wouldn’t want that?
Alas, that’s not what Nabisco said. And so now the potential for litigation hangs heavier in the air.
If a lawsuit against Nabisco does materialize, one bright spot is that its hasty defeat may help discourage future suits along the same lines.
“I’d rather these disputes be resolved (quickly!) through litigation than having government inspectors coming in to weigh the creme before giving a permit to sell it,” says Stier.
Thankfully, not everyone thinks the Oreo revelation has what it takes to spur a lawsuit.
“Even in California, this would probably be considered puffery and most lawyers won’t waste their time,” says public health lawyer Michele Simon, president of Eat Drink Politics by email. “It wouldn’t even pass the laugh test.”
I’d like to think so. But the laugh test isn’t made of quite the same stuf as it used to be.