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LI lawyer now spars with food companies over smoke flavoring in products

Spencer Sheehan, who is seeking damages against a

Spencer Sheehan, who is seeking damages against a variety of food brands, has filed four cases involving smoked cheese and almonds in the past nine months. Credit: Howard Simmons

A Great Neck attorney who filed scores of lawsuits charging that food companies improperly labeled vanilla-flavored products has a new target: smoke flavoring.

Spencer Sheehan, who estimates he has filed more than 100 lawsuits related to vanilla flavoring since February 2019 — with more to come — filed four cases involving smoked cheese and almonds in the past nine months.

"The issue with all these products is they're labeled as smoked cheese or almonds, but they don't tell you on the [front] labels that there's no actual smoke," he said. "There's just smoke flavor."

Sheehan's lawsuits contend that disclosing smoke flavor on the back label does not satisfy labeling regulations of the Food and Drug Administration.

His food-related lawsuits generally are filed in federal district courts and seek class-action status, in which a large number of people with a common matter sue as a group.

In 2019, a record 177 food and beverage class action lawsuits were filed nationwide, almost four times the 45 filed in 2010, according to a report by Seattle-based Perkins Coie, a law firm that defends major food manufacturers.

Meredith R. Miller, who teaches contract and commercial law at Touro College's Jacob D. Fuchsberg Law Center, said there are two views related to such lawsuits.

One depicts an attorney filing "frivolous" claims and "milking the system," she said. In the other perspective, lawyers are ensuring that regulations "on the books to protect consumers" are respected.

In August, Sheehan filed a $5 million lawsuit in U.S. District Court against Philadelphia cold cuts manufacturer Dietz & Watson Inc. The case contends that the company's smoked Gouda cheese is not smoked with wood chips, but by the addition of "natural smoke flavoring."

Instead of being displayed on the front of the package as required by regulations, the "natural smoke flavoring" is disclosed on the ingredient list, Sheehan said.

An attorney for Dietz & Watson did not respond to a request for comment.

Miller said that if attorneys convince the court to grant class action status, "there's a huge incentive" for the food companies to settle.

"Legal costs can be astronomical," she said.

In the settlements, each class member may get $1 or $2, but the attorneys can get 25-30% of the total, Miller said. If a case is settled for $5 million, for example, the attorney might receive more than $1 million plus costs.

"There are a lot of instances where companies will seek a resolution," Sheehan said. "It's normally a private individual settlement and not typically disclosed to the court."

Sheehan, who declined to discuss specific settlements, said that in about 10 of the vanilla cases, there was a "notice of voluntary dismissal."

Observers generally surmise that a voluntary dismissal means that an outside settlement was reached, he said.

Sheehan's lawsuits against makers of yogurt, cookies, oatmeal, almond milk, soy milk, cream soda and ice cream allege that they should be labeled as "vanilla flavored" because the predominant flavoring ingredient is not costly botanically derived vanilla, but synthetic vanillin and other flavor enhancers.

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