![]() But-especially in light of the dictionary definition of the term-that could have been explained as nothing more than an accurate estimate. The company had referred to its subs as being one foot in length in some of its ads. 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. But it may have opened the door to being sued after it botched its PR campaign after the "footlong" issue first came to light. Subway may not have done anything wrong, either. ![]() I don't think Nabisco did anything wrong in marketing its cookies.īut being right is no protection against lawsuits. Will Nabisco avoid a lawsuit over Oreos? It's tough to tell at this point. "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." "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.īut Stier cautions that even if a lawsuit were to proceed, it likely wouldn't prove a cash cow. 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. "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. ![]() "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. 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. That means the creme in a Double Stuf Oreo is 7 percent lighter than two times the creme in a regular Oreo. ![]() 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."īut 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. The plaintiffs allege, in fact, that Subway subs "are anywhere between 5 and 8.3 percent short." 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 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. But Anderson is not a class action attorney. To Anderson's credit, he appears to be little more than surprised by the findings. 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. The story does indeed make for some light summer reading. Even the gossip website TMZ got in on the action. In a particularly slow news week in the slowest news month, ABC News and other outlets came calling. 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 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. If this reminded you of yet another instance of life riffing on The Onion or Ron Swanson, you're not alone. Earlier this week a mini food scandal erupted under the following headline: "Double Stuf Oreos Don't Actually Have Double The Creme."
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