Center for Consumer Freedom

Alright. Everyone who put their money on “June 2008” can step forward to claim their winnings. The outcome has been decided in the betting pool for when (not if) trial lawyers would leverage calorie counts on menus for their next obesity cash-grab. This week, a Seattle law firm filed a class-action lawsuit against a major casual-dining restaurant chain for “misrepresenting nutritional content of menu items.” As of this moment, all bets are off.

Ever since food cops lobbied for the first menu-labeling legislation, we knew it was only a matter of time before it escalated into menu labeling litigation. In 2007, the Center for Science in the Public Interest (CSPI) began laying the groundwork for civil suits targeting restaurant nutrition. The group investigated the accuracy of calorie counts currently posted on menus and found that the actual dishes varied from menu tallies by as much as 350 calories. That’s a 53 percent difference—far outside the 20 percent “safe harbor” variance included (grudgingly) in many menu-label laws.

Yesterday’s lawsuit follows the same vein. According to the bounty-hunting law firm’s press release, its target “engages in unfair and deceptive business practices by misrepresenting the nutritional information on its Weight Watchers menu.” But this divergence is expected, and simple enough to explain.

Restaurants have kitchens, not manufacturing plants. Chefs are people, not programmed machines. And menu items are not pre-packaged foods. The ingredients for one menu option can be altered hundreds of different ways depending on the wishes of the chef, the customer, or anyone in between. So unlike the identical contents of TV dinners, the nutrients in each restaurant order are as distinctive as the customers requesting them. This opens the door for trial lawyers and their lawsuits.

As one of America's favorite eateries is learning this week, made-to-order may translate to “negligence” in the courtroom. And a few hundred extra calories could easily become millions of dollars in settlements.

Perhaps food cops and trial lawyers need to sample a taste of their own medicine. Here’s a little labeling about these self-righteous groups: 34% Junk Science, 14% Sensationalism, 29% Threats, and 23% Greed. Warning: “Special interest group with litigious agenda. Take recommendations with a grain of salt (not too much of course).”