Class Calls McDonald’s Cheese Sticks a Fraud – Courthouse News Service

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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44 Responses

    • Glyph in reply to Burt Likko says:

      …I don’t understand. If the claim is correct, it IS false advertising, yes?Report

      • Burt Likko in reply to Glyph says:

        The 32-page lawsuit includes federal standards for cheese, and the methods by which McDonald’s allegedly violated them. It claims that testing of the sticks’ cores – without the breaded coating – showed they were 3.76 percent starch by weight.

        So these deep-fried fat sticks are, allegedly, only 96.24% cheese and therefore should be called “cheese-and-starch-and-partially-hydrogenated-soybean-oil sticks.” Assuming this is true, does this make you more or less likely to buy them than you were before? Really, is this what it means to dupe and deceive consumers?

        Better, I think, to complain that a certain percentage of the cheese sticks seem to come with no cheese at all and would be better described as “fried air tubes.”Report

        • Glyph in reply to Burt Likko says:

          I think if you say “100% cheese”, that’s a pretty clear and concrete claim.

          If they are consistently coming in well under 100%, that seems like a valid thing to ding them over – especially if, as the suit claims, there is no other logical reason for the discrepancy (like, say, starch is required as a binding agent to keep the breading adhered to the cheese or something) than cost-savings.

          If you bought a whiskey that was labeled at 40% alc/volume, and it was consistently-tested at only 37%, would that be a problem worth addressing?Report

          • Burt Likko in reply to Glyph says:

            Different kinds of consumable products will have different thresholds of what is a material impurity, and there’s no magic formula that applies to all consumable products uniformly. How much ground-up rat brain can we tolerate in a hot dog? One part per billion isn’t zero, but it isn’t that much. It’s disgustingly amazing how much non-food FDA regulations allow in food without a naming or ingredient list disclaimer.

            So yes, I would consider a difference between 76 proof and 80 proof to be a material quality difference between two different whiskies. However, I do not consider a 3.76% starch-and-other-edible-but-not-cheese content to be material to the purity of a deep fried cheese stick. Lots of cheese is sold with small amounts of non-cheese ingredients appurtenant to the cheese. Those darling little round cheeses my wife likes to eat in her lunch? They come in lots of wax. Sliced cheese wrapped in plastic comes with a thin film of oil and starch dust to let the cheese slice separate from the plastic wrap easily. And yes, cheese in a cheese stick contains some starch and is dusted with a starch powder to make it adhere to the wall of breading that absorbs the hot oil as the thing cooks. Every cheese stick you’ve ever eaten at the TGIFriday’s happy hour or been brought to you by a roller-skating Sonic drive-in carhop has been like this for as long as you’ve been eating cheese sticks (and don’t even try to tell me you haven’t eaten cheese sticks even though you know they’re about the worst thing imaginable from a health and weight control perspective short of mainlining lard).Report

            • Glyph in reply to Burt Likko says:

              If 3.76% isn’t material to something advertised/labeled as “100%”, what is?

              5%? 10%?

              Were all those other cheese sticks advertised as “100% cheese”? Because to me, that’s where McD’s have (potentially) gone wrong.

              Call them “Cheeze Sticks” and we have no issue. Everybody knows what’s up with that.

              Call them “Cheese Sticks”, but add some other stuff in there with the cheese to make them work, and we are still cool (this was, as you may recall, why I didn’t have a problem with the name “Vitamin Water”: because the bottle I found in the back of my fridge had appreciable amounts of both vitamins, and water – plus sugar and coloring, of course).

              Call them “100% Cheese” when they aren’t? Now we might have a problem.

              (And what frightens me most about McD’s “cheeze stix” is not the stick itself – but can you imagine how awful that marinara dipping sauce must be? Brrrr.)Report

              • Marchmaine in reply to Glyph says:

                As a maker of cheese directly from goats we milk, I’m biased against.

                But, even with my bias, I wouldn’t quibble over calling their adulterated cheese plain-old *cheese* (as long as the other ingredients were also available somewhere). Its the 100% that’s not really acceptable.

                To Burt’s point, different foods have different levels of disclosure… California wine only needs to have 75% of the primary varietal to call itself, say, Cabernet Sauvignon (which even in Napa is regularly blended with Petit Verdot, Cabernet Franc and other varietals) and does not need to disclose the blend (though often they do voluntarily). Still, it *would* be a violation to call something 100% cabernet sauvignon if it were 97% cabernet plus 3% blending grape.

                So too then is my reasonable stance on the great Cheese debate of 2016.Report

              • Glyph in reply to Marchmaine says:

                Yeah, it’s that specific percentage/number that trips them up.

                If we agree that I will hand you “a stack of US bills” (“cheddah”) and I do (any amount/denominations), I’ve held up my end of the bargain, even if there are a few business cards mixed in there.

                If we agree I will hand you “100 US dollars” and I hand you $97 dollars and three business cards, I haven’t.Report

              • Mike Schilling in reply to Glyph says:

                Does Ivory Soap still advertise “”99 44?100% Pure”? And, if so, what the hell is the other .56%?Report

              • Go talk to @kazzy about that. The truth is too awful for me to repeat.Report

            • Oscar Gordon in reply to Burt Likko says:

              and don’t even try to tell me you haven’t eaten cheese sticks even though you know they’re about the worst thing imaginable from a health and weight control perspective short of mainlining lard

              Dude, I’m from Wisconsin. Them’s fighting words!Report

            • El Muneco in reply to Burt Likko says:

              “And yes, cheese in a cheese stick contains some starch and is dusted with a starch powder to make it adhere to the wall of breading that absorbs the hot oil as the thing cooks.”

              Some of these starch powders being better known as flour?

              So when the cooks on “Chopped” dredge fish filets before frying, they’re adulterating them?

              (Seriously dudes, plain wheat flour is 1% fat, 10% protein, and a few percent fiber. The rest is almost all starch.)Report

              • Jaybird in reply to El Muneco says:

                I tend to agree with this. 100% cheese sticks, to my mind, is talking about the cheese in the cheese stick. It’s not talking about the breading. Of course the breading doesn’t have cheese in it.

                If I got a cheese stick that was deep-fried but not breaded and I complained about it (because I *WOULD* complain about it) and the person said “We told you on the menu that it was a 100% cheese stick”, I would flip the table.

                Or, at least, give them a two star review on Yelp.Report

              • Marchmaine in reply to El Muneco says:

                No, none of us, including the law suit are talking about that.

                It claims that testing of the sticks’ cores – without the breaded coating – showed they were 3.76 percent starch by weight.


              • Jaybird in reply to Marchmaine says:

                Oh. Well then.

                That’s a two star yelp review for McDonald’s.Report

      • Kazzy in reply to Glyph says:

        I’m with @glyph . The claim of 100% cheese is erroneous and likely intentionally misleading. They know most people are going to look at a McDonalds cheese stick and figure, “That’s probably rat semen.” But label is 100% cheese and people are going to think, “Well, they couldn’t say that if it was actually rat semen.”

        Now, 97% cheese and 3% starch is closer to cheese than rat semen. But when you’ve earned yourself a reputation as maybe serving rat semen, you don’t get to earn it back by lying. You kind of have to lie in the bed you’ve made for yourself. There were myriad ways they could have touted the lack of rat semen in their cheese without an outright lie.

        There needs to be a threshold somewhere. And given that McDonalds voluntarily offered the claim of “100%”, I see no reason to not set the threshold where they themselves set it.Report

        • Glyph in reply to Kazzy says:

          Yeah, I’ve allowed some flexibility in the past, to cover what I consider to be irrelevant/immaterial/well-known info being excluded, or to allow for marketing hype.

          But IMO, “100%” needs to mean “100%”, or we are kind of screwed.

          “100%” is basically shorthand for “the truth, the whole truth, and nothing but the truth, so help me God.” A numeric claim is a very specific claim, and should be held to a very specific standard.

          “A dozen eggs” can’t mean 11 this week, and 13 the next. It needs to mean 12, even though occasionally one will arrive broken or missing.Report

          • Burt Likko in reply to Glyph says:

            I’m all done sparring about the cheese/100% thing. Also, thanks for making me think about rat semen. Could have gone all day without that and probably have been happier for it.

            Now I’m just curious. Sounds like, if you bought a dozen eggs and found 11 whole eggs and 1 cracked egg, you’d still be satisfied. But what if all 12 were cracked?Report

            • Kazzy in reply to Burt Likko says:

              I’m in NYC… Rat semen is a reality for us!Report

            • Kazzy in reply to Burt Likko says:

              All that said, I can empathize with Burt here. Are these lawyers fighting the good fight? Eh. I’m not sure anyone was harmed. McD’s should be barred from and penalized for using falae advertising. It’s why I’d rather see these cases be criminal than civil (at least until harm can be proven).Report

              • Burt Likko in reply to Kazzy says:

                Bingo. Or better yet, an administrative action, backed up by monetary sanctions payable to the government to recoup investigation costs. This is the sort of thing that the Federal Trade Commission is supposed to be doing.

                Something like this should escalate to the level of criminal sanctions only if the administrative action results in an order that is willfully disobeyed — or upon a demonstration of non-trivial harm to a consumer.Report

              • Glyph in reply to Burt Likko says:

                Well, “this isn’t the best way to handle this issue” is a bit of a different take than “ha-ha, there is no issue because everyone knows McD’s is crappy food.”Report

              • Kazzy in reply to Glyph says:

                I didn’t read Burt as saying it was no issue but that these are the types of suits that make lawyers look bad.

                And I like Burt’s solution. Make a mistake? Fix it and move on. A pattern of behavior? Real punishment. Harm done? Criminial and civil liability.Report

          • Troublesome Frog in reply to Glyph says:

            There’s also the matter of how any shortcoming crept in. No cheese product is 100% cheese because there’s probably an ant leg or two in every batch. But that’s accidental and likely insignificant. If there’s an ingredient that you intentionally put into your cheese batch that isn’t cheese, then there’s no way you can claim with a straight face that it’s 100% cheese. It’s not even an attempt at 100% cheese that ran up against the hard reality of contamination.

            I’ll give you a pass on a little contamination. But if you literally place non-cheese into a the cheese vat and still call it 100% cheese, I’m calling shenanigans.Report

            • McDonald’s maintains that they use 100% low-moisture part-skim mozzarella. Most of the news stories note that plaintiffs have not said where they got their samples or how the tests were conducted (discovery should be fun). Myself, I’m inclined to think that if you take a hunk of pure cheese, coat it in something starchy, deep-fry the whole thing so the coating browns and the cheese melts, at least some of the stuff from the coating and oil are going to make it into the melted cheese.Report

              • Troublesome Frog in reply to Michael Cain says:

                That sounds about right. I seriously doubt that McDonald’s is just straight up lying about their ingredients. There’s surely some annealing going on. Especially when this is happening. It seems like with that much flow going on, it’s going to be hard to take a core sample that isn’t at least partially contaminated with surface materials.Report

        • Oscar Gordon in reply to Kazzy says:

          Crossing off “Visit NYC” from my bucket list – reason: disturbing amounts of rat semen in food chain…Report

          • Woman: Well there’s rat semen cake … rat semen sorbet… rat semen pudding… or strawberry tart.
            Man: Strawberry tart?!
            Woman: Well it’s got some rat semen in it.
            Man: How much?
            Woman: Three quarts, rather a lot really.
            Man: … well, I’ll have a slice without so much rat semen in it.Report

          • And it doesn’t all go into food, so there’s still plenty left over for your bucket.Report

          • El Muneco in reply to Oscar Gordon says:

            Jeremy: And it’s a good job your car doesn’t run on bull semen.
            Richard: Well it is, yes. But why?
            Jeremy: Because you know how much bull semen is?
            James: Do you know? I can’t remember off the top of my head.
            Jeremy: 24,000 pounds a litre.
            Richard: No way!

            Jeremy: I filled my car up with petrol a couple of months ago, do you know how much that cost?
            James: Well no. 90 quid.
            Richard: 85.
            Jeremy: No, £35,000.
            James: You filled it up with bull sperm, you idiot!
            Jeremy: No, somebody nicked my… The garage did that credit card thing where they sell it to somebody. Somebody’s been running around in California spending my money on stuff.
            James: I reckon they spent it on bull sperm.
            (AUDIENCE LAUGHS)
            Richard: Did you not notice the pump was different?Report

  1. greginak says:

    Breach of warranty?? I can’t believe in a True Cheese Stick from Micky D’s so i favor this stupid guys ridiculous law suit. He should win and be paid in a life time supply of McD’s cheese sticks. Dips are extra, get yer own ya free loader.Report

  2. Will Truman says:

    I thought this was why you use the “Cheeze” or “Chieze” or “Cheeeeese” spellings… more of a legal disclaimer rather than trying to be cute.Report

  3. LeeEsq says:

    This is why people hate lawyers. The class action suit exists for a good reason but too many of my brothers and sisters of the Bar have decided to use it as a money making scheme. This causes courts and legislatures to put restrictions on class actions suits and ordinary people end up getting hurt more than others because an important mechanism in allowing the small to challenge corporations disappears.Report

    • Don Zeko in reply to LeeEsq says:

      Oh man, I was involved tangentially in a really dumb one at work last month, and I really really wish I could tell y’all about it. Suffice it to say there are people out there that have gotten extremely creative with anti-telemarketing statutes.Report

      • Burt Likko in reply to Don Zeko says:

        You and me both, @don-zeko : I have a FDCPA case going to jury trial next Monday and it looks like I’m going to have to put jurors in a box to ask them whether eight phone calls in five months constitutes “intentional harassment.”Report

        • Don Zeko in reply to Burt Likko says:

          Fun. I just got to help with discovery for a lawsuit that, if they got what they were asking for, would bankrupt a nationally recognized retail chain over behavior that almost certainly wasn’t illegal, and if it was illegal, was absolutely not what the drafters of the statute had in mind.Report

      • Kim in reply to Don Zeko says:

        It’s the people getting creative with the anti-pornography statutes that bother me.Report

    • Francis in reply to LeeEsq says:

      Legislatures are mostly putting restrictions on class action lawsuits because they were too damn successful. Judges are not exactly known for being pushovers when it comes to certifying classes.Report

  4. nevermoor says:

    Seems almost exactly like the big “Made in the USA” case.

    The locks were exactly the quality offered, but they advertised as made in the USA when in fact they were largely assembled in Mexico. That’s illegal.Report