Let’s Leave 911 Out Of Our Food Complaints, Shall We?

Product liability suits involving food products are not uncommon. In fact, one of the most famous product cases of all time, Stella Liebeck v. McDonald’s, involves a familiar beverage. (Don’t worry, dear readers, this is not another post about the Liebeck case.). While we here at Abnormal Use may not always agree with the outcome, we at least respect a plaintiff’s right to litigate legitimate matters in court. On the other hand, we have  little use for claimants who choose other means to air their grievances. Case in point: North Carolina woman Bevalante Hall recently used 911 to complain about her Subway order. According to a report from the Gaston Gazette, Hall called 911 after a Subway employee allegedly made her flatbread pizza with marinara rather than pizza sauce. In the 911 call, Hall stated that she wanted to make a report so she could call investigators with a local television news station. Hall didn’t get quite what she requested. As a result of the call, Hall was jailed for three minutes before being released on a $2,000 bond.

Had Hall taken to the court system, her claim undoubtedly would have been criticized (rightly) as frivolous. A marinara-sauced pizza is not exactly a defective product. After all, Subway clearly advertises its “flatizzas” as being made with marinara sauce. If suit had been filed, however, our focus would have at least been on the merits of the claim (or lack thereof). Unfortunately, Hall’s claim appears to be more about garnering publicity than resolving a grievance. Leave it to us to oblige.

Powdered Alcohol: A Topsy Turvy History

Recently, Arizona-based Lipsmark, LLC announced plans to begin marketing alcohol in powdered form under the name “Palcohol.” Since that time, the product has been on a roller coaster ride. Several weeks ago, the Alcohol and Tobacco Tax and Trade Bureau (“TTB”) approved the sale of Palcohol. Several days thereafter, the TTB reversed course and claimed that the approval was issued in error. Now, Senator Charles Schumer (NY-D) is asking the Food and Drug Administration (“FDA”) to make certain that the product never finds itself on store shelves, claiming it would become the “Kool-Aid of teen binge drinking.”

So, what is Palcohol, and why has it caused such a fuss? According to the company’s website, Palcohol is a powdered version of vodka, rum, and four cocktails. With the addition of 5 ounces of liquid, Palcohol allegedly becomes a standard mixed drink. The process is nothing new. A U.S. patent was issued for molecular encapsulated alcohol way back in 1974. While the product may seem harmless, Sen. Schumer fears that because it may be sprinkled on food, snorted, and easily concealed, it may appeal to underage drinkers much like Four Loko. We here at Abnormal Use appreciate the concerns. Nonetheless, we think that they may be premature. If it hits the market, Palcohol will be regulated and controlled the same as liquid alcohol. Even if it can be eaten, snorted, or concealed, we fail to see how this will have a significant effect on underage drinking. Whether it is breaking into a parent’s liquor cabinet or sprinkling Palcohol on a bowl of Fruity Pebbles, teens will find their way to alcohol if they want it bad enough. The problems and dangers remain the same. We do not know if Palcohol will make its way to stores. However, Lipsmark claims the TTB’s about-face was due to a labeling error rather than a change of heart on the product. Only time will tell. We expect the day will eventually come when we can all enjoy a shot of rum powder.

McDonald’s Gets A New Face

imageLast week, McDonald’s unveiled a new look for Ronald McDonald, the face of its vast fast food franchise. After sporting the same hair, makeup, and clothes for the past 51 years, Ronald has been given a much needed makeover. According to a report from by Yahoo! Finance:

The yellow jumpsuit Ronald’s worn for so long will be replaced with cargo pants and a vest, along with a red-and-white striped rugby-type shirt. That’s going to be the standard uniform. For “special occasions,” he’ll sport a red jacket, bowtie and yellow pants, the company says. At the same time, he’ll also get involved with the corporate office’s social media efforts.

While we here at Abnormal Use are fans of McDonald’s (and write about it often), we must admit that Ronald has always given us the creeps. As clowns go, his looks have always been more “Pennywise” than “Bozo.” Unfortunately, the new Ronald doesn’t look much better. Giving Ronald a bow tie and a rugby shirt can’t mask the fact that he remains a creepy clown. On the positive side, Ronald has decided to ditch one-piece jumpsuit. So, there’s that.

As excited as everyone is about the update, we are more interested in hearing new Ronald’s position on hot coffee. Under the leadership of the former Ronald, McDonald’s held strong in the midst of much coffee litigation, including the infamous Stella Liebeck suit. Much to the delight of millions of customers, Old Ronald followed the basic principle that coffee is meant to be served hot. In this regard, old Ronald emerged as a pillar of the coffee community regardless of his unfortunate appearance. We only hope the new Ronald can display the same strength and fortitude, but fear he may face challenges with the bow tie and Craig Sager-esque jacket. Only time will tell.

Gasp! Cheese Dogs Accidentally Find Themselves in the Marketplace

Not wanting to be outdone by Hebrew National, Kraft has seized its opportunity to corner hot dog related legal news. According to a CNN report, Kraft has recalled 96,000 pounds of Oscar Mayer hot dogs due to a package labeling error. On April 18, a consumer opened his package of Oscar Mayer Classic Wieners only to discover that the package contained cheese dogs. In a statement issued by the U.S. Department of Agriculture’s Food Safety and Inspection Service, the classic label is said to “not reflect the ingredients associated with the pasteurized cheese in the cheese dogs.” In other words, milk is not a standard ingredient in the average dog.

This recall comes just in time. We here at Abnormal Use can not imagine the horror of discovering that our hot dogs had been replaced by those horrid cheese dogs. Not even an April Fool’s joke could be that cruel. Cheese has no place inside of a hot dog. On top, maybe. Inside, never. Thankfully, we have governmental agencies like the Department of Agriculture to facilitate swift remedies to these types of ills.

In all seriousness, we understand the purpose of the recall. For business purposes, Kraft obviously does not want mislabeled products in the stream of commerce. For legal reasons, we assume the company wanted to protect itself from claims arising out of the accidental ingestion of milk, a known allergen. Or, from angry consumers who accidentally took a bite of such vile food products. The latter is a failure to warn claim even we could get behind.

Casino Loses Millions, Sues Card Manufacturer

Recently, we wrote about a man suing a Las Vegas casino after he lost $500,000 gambling while intoxicated.  As ridiculous as that suit may be, the Borgata Hotel Casino and Spa in Atlantic City is now vying for silliest casino lawsuit of the year.  In a new suit filed in federal court, the Borgatta is suing Phillip Ivey, Jr., a big time professional gambler, and Gemaco, Inc., a card manufacturer, claiming Ivey won $9.6 million in a baccarat card-cheating scheme.

We imagine the nearly $10 million in winnings was  against the house edge.

The real kicker is not that Ivey won such a large amount of money but, rather, how he was able to do so.  According to the complaint, Ivey exploited a defect in the cards that allowed him to improperly sort and arrange them using a technique called “edge sorting” – illegal under the New Jersey casino gambling regulations.  The cards, manufactured by Gemaco, were allegedly defective in that the pattern on their backs was not uniform.  Where the cards were supposed to have a row of small white circles designed to look like the tops of diamonds, some of the cards apparently only had half or quarter diamonds.  Allegedly, Ivey was able to sort desirable cards from undesirable ones after observing the defect.

We have to wonder when the Borgatta discovered this alleged defect. In an industry so heavily controlled and regulated, we find it hard to believe that any deck of cards would ever see the light of a casino floor without first being inspected and approved by the casino.  With so much money on the line, casinos have never been shy about self-policing.  If this “defect” was an obvious one, we imagine these cards would have been sent right back to Gemaco.  If there actually was a defect, then it was most likely so slight that it was undetected by even the most careful inspectors.  The fact that Ivey was able to notice the flaw is impressive. Sure, it is easy for the Borgatta to point the finger at Gemaco.  After all, its alleged flaw may have cost the casino nearly $10 million.  But, why did Borgatta use a card with a decorative card backing in the first place?  It seems like such cards would be more susceptible to non-uniformity and enable these types of situations.

We suppose a simple solid design would have been too tacky for the Borgatta.  A casino’s extravagance is what draws the gamblers in to throw away their money.  Unfortunately, this time it backfired.

Hot Dogs: New Standard for Food Purity

When we here at Abnormal Use think of “pure” food products, we think of mountain spring water or fresh fruits and vegetables.  Never do we think of hot dogs. Never (despite our love of hot dogs). However, the Hebrew National brand of hot dogs claims to be just that. Kosher beef. No fillers. No byproducts. No artificial flavors. In other words, Hebrew National claims to be as “pure” as a hot dog can get. We have nothing against the brand, but we still are skeptical about placing “pure” and “hot dog” in the same sentence. A class of consumers has taken such skepticism a step further and filed suit against ConAgra Foods, Inc., the manufacturer of the Hebrew National brand, claiming that these hot dogs were not, in fact, “kosher.” Last year, a federal district court in Minnesota dismissed the suit on the grounds that the First Amendment barred him from addressing the underlying religious questions. Recently, the Eighth Circuit nixed the dismissal and remanded the case back to the Minnesota court. The case is captioned Wallace v. ConAgra Foods Inc., No. 13-1485 (8th April 4, 2014).

It will be interesting to see what becomes of this suit now that it has gained new life. As we discussed above, we understand the skepticism surrounding claims of hot dog purity. But, these plaintiffs have taken things beyond mere skepticism and actually challenged the religious nature of the process. Here, the plaintiffs take issue with whether ConAgra followed proper religious procedures, despite packaging that claims to “meet a higher standard,” being made by people who “answer to a higher authority.” Interestingly, according to the Chicago Tribune, the plaintiffs do not claim to eat kosher themselves. We guess they are just looking out for those that do. Or, just want a better hot dog.

We are no experts on kosher foods and do not know exactly which part of the hot dog-making process to which these plaintiffs object.  We do know that these issues are to be taken seriously. Had these plaintiffs actually followed kosher practices, then we would find some merit behind the claims and understand the trial judge’s reasons for dismissing the matter on religious grounds. But that is not what we have here. What we have are plaintiffs that must have some other standard for their hot dogs. Even if Hebrew National’s claims are not 100 percent accurate (and we have no reason to believe they are not accurate, despite our general hot dog purity skepticism), where have these non-kosher practicing plaintiffs been damaged? Certainly, a 75 percent kosher hot dog must be better than any other hot dog. When it comes to hot dogs, standards are low, anyway, right?

We imagine the plaintiffs are claiming that they paid a premium for the kosher hot dogs. Even if they did, let the plaintiffs tour any other company’s hot dog making plants and they will see that they still got a bargain.

Music Re-Recordings: Inferior or New Classics?

Most of us consider music to have reached its prime during the days of our youth.  Be it the 60′s, the 70′s, or even the 80′s, music of one’s formative years is arguably the best a person will ever hear.  Today’s music just doesn’t cut it.  Instead, we download the songs of yesteryear on iTunes or have our Sirius/XM radios perpetually set on the 90′s channel.  (Those were the days.). Others go so far as to purchase “as seen on TV” compilations like “We Love the 80′s” or, better yet, “Monster Ballads.”  After all, who could ever complain about having the world’s greatest music in one accessible CD?  Believe it or not, there is actually a proposed class of angry music-lovers who have filed a new lawsuit in a New Jersey federal court against Tutm Entertainment (d/b/a Drew’s Entertainment), the producer of the monumental “Hits of the 80′s” and “Hits of the 90′s” albums. Why is the proposed class so angry? According the the complaint filed by Celeste Farrell, the named plaintiff for the proposed class, purchasers of these albums aren’t getting the classics they grew to love but, rather, “poorly re-recorded songs.” Specifically,Farrell alleges:

Instead of conveying the source of the recording to allow the consumer to make an informed purchase decision, Tutm provides no information on the Albums’ cover or back label to indicate to the consumer that the songs are not the original songs.

We here at Abnormal Use have not listened to these albums, so we cannot comment on the quality of the re-recordings and cover versions contained on them. But, we don’t see how anyone could really complain about any recording of “Ice, Ice Baby,” whether it be the original or a new version? That said, when people fall in love with a song, they fall in love with a particular version of that song (usually the first version of it they ever heard which, of course, is typically the original version). Anything else might as well be “new music.” We can understand purchasers hoping to get the same when buying these compilation albums.

Whether Tutm’s conduct in selling these albums without a disclosure is fraudulent, however, is another question. Sure, Tutm may have known purchasers would expect the original recordings. But, they also may have thought people could be equally as excited about new recordings of the classics? After all, isn’t Motley Crue still touring? Whatever the case, we’re not sure that covers of “Jessie’s Girl” or “Take on Me” should be litigated in federal court.

Coffee: The Next Great Humanitarian

 Exo-Reaction-Housing-System-Easy-to-Assemble-Flat-Pack-Emergency-Shelter-7-537x340

We here at Abnormal Use have written about coffee numerous times in recent years.  Typically, those posts have addressed whether hot coffee presents an “unreasonably dangerous” condition for which merchants can be held liable.  It is a topic oft-debated and one that can elicit some negative responses.  Rather than rekindle the hostility, we here at Abnormal Use would now like to educate you on the more noble, altruistic side of coffee.  The side that can serve as a support system for thousands of displaced people.  Prepare to be amazed. Watching thousands of people crowded into shelters in the aftermath of Hurricane Katrina, Michael McDaniel developed the Exo Housing System -  a  portable sheltering system, light enough to be moved by hand but “strong enough to stop bullets” according to the website of McDaniels’ company, Reaction.  The Exo provides living and sleeping quarters with a climate-controlled environment for a family of four following a disaster.  So, what does this have to do with coffee you might ask?  Well, coffee was the motivation for it all.

The design of the Exo is based on none other than an upside down coffee cup.  According to McDaniels:

The Exo design stems from a very simple premise. Four people are able to lift it by hand and set it up in under 2 minutes without the need for any tools or heavy machinery. And the idea came from, literally, your basic coffee cup.

So just a few days after Hurricane Katrina, the idea dawned on us. So if you take a coffee cup and turn it upside down, essentially you have a 2-part design that literally snaps together. Your floor snaps onto your roof and walls, and it’s an insulated, rigid structure. They actually sleeve together, so we can actually put a tremendous amount of shelter in a very small volume for efficient transportation and shipment. The reaction: we get calls literally every day from around the world with people needing shelter now. We’re ramping up our capabilities to respond, but we need your help.

It is hard to believe that a Styrofoam cup and lid, often criticized in hot coffee litigation for not being secure enough, can form the foundation of living quarters.  Obviously, the Exo bears little resemblance to an actual coffee cup, but amazing nonetheless.

housing_example

 While this is not really an example of coffee itself saving the world, it is a reminder that a coffee cup is not merely a combination of Styrofoam and plastic.  A great deal of design and innovation goes into the way coffee is served.  And, it is all done to protect consumers, assuming the lids are appropriately attached to the cups.

Steak Dinner In Florida Turns Into Acid Trip

When you buy steaks at Wal-Mart, you expect Grade A quality beef.  A Florida family, however, claims the steaks they purchased weren’t exactly worthy of Gordon Ramsey’s kitchen.  According to a report from The Smoking Gun, Ronnie Morales and Jessica Rosado, Morales’ 9-month pregnant girlfriend, along with Rosado’s two children, were hospitalized after allegedly consuming LSD-laced bottom round steak purchased from a Florida Wal-Mart.  After eating dinner, Morales allegedly became violently ill.  Rosado drove him to the hospital where she, too, became ill, forcing her to be admitted to the Women’s Hospital, where physicians induced labor.  Shortly thereafter, Rosado’s children allegedly began hallucinating and fell ill.  All have now been released from the hospital.  The report is silent as to whether the family will demand a steak dinner anytime soon.

An incident of this type is obviously traumatic, especially when a pregnant woman is involved.   At this point, it is too early to tell who is to blame.  Tampa Police Chief Jane Castor has said that there was “no indication” of any involvement by Morales or Rosado.  So, if not them, then who?  A neighbor?  A friend?  Wal-Mart?  The packing house?  Could it just have been an LSD-addicted cow?  These questions are yet to be determined.

Certainly, this Florida Wal-Mart will be forced to attempt to clear its name.  Despite the police’s assertion the there was “no indication” that the victims were involved, Wal-Mart would be wise to do more investigation.  We are by no means experts in LSD, but we do find it suspicious that the effects of LSD can be so severe after the drug has been exposed to heat.  Moreover, we also find it interesting that those effects were violent illness for the adults rather than hallucinations.  Something sounds suspicious. There are obviously more questions than answers at this stage.  We don’t know who, what, where, when, or how this family ingested LSD.  But, certainly it couldn’t have been from a high quality Wal-Mart steak.

Toothpaste Brand Loyalty Fails To Deliver Girlfriend, User Of Same Sues

As loyal readers of Abnormal Use, you know it is no surprise that product manufacturers often get drug into court over baseless allegations.  A new suit against Unilever Nigeria Limited, however, takes things to a whole new level.  According to an Emirates 24/7 report, a 26-year old Nigerian man has sued Unilever, claiming that the company’s Close-Up toothpaste brand failed to score him a girlfriend.  Apparently, the man began using the toothpaste seven years ago after watching Close-Up television commercials depicting women being attracted to the Close-Up-scented breath of men.  Despite extended brand loyalty, the man claims:

No girl ever agreed to even go out for a tea or coffee with me, even though I’m sure they could smell my breath. I always brush my teeth with so much close up gel to make sure the girls get turned on by my fresh breath as they usually show on TV.

The man has submitted seven years of toothpaste tubes into the court as evidence.

We here at Abnormal Use feel for the guy.  We really do.  It was not too long ago that we, too, could have used some help with the ladies.  Nonetheless, as much as we may have wanted that Axe body spray to work like a magnet, we didn’t really expect it to camouflage our less desirable qualities. Sometimes, advertising content is grossly over-exaggerated.  Did those new Calloway irons take 10 strokes off of our handicap?  Unfortunately, we were disappointed yet again.  Aggravation and disappointment, however, provide us with no legal basis for relief. We have not seen the specific Close-Up commercials at issue in this case.  Unless they stated something like, “Guaranteed to get you a girlfriend regardless of your laundry list of unattractive qualities,” we doubt Unilever breached any implied contract or engaged in deceptive practices.  Do people like fresh breath?  Sure.  Can it help you get a date? It’s better than the alternative.