‘Made with Real Cheese’ Claims Curdling in Federal Courts

Spencer Sheehan and his firm of Sheehan Associates P.C. may have found their new vanilla.

The notorious law firm has led a crusade against hundreds of food and beverage products. The multiyear litigation filing spree caught the eye of the mainstream media, which dubbed him the Vanilla Vigilante.

We’ve been tracking “Made with Real Cheese” claims popping up in courts across the country, with many filed by none other than Spencer Sheehan himself. It’s still too early to tell whether the Vanilla Vigilante will gain the affinity for cheese-related claims that he once held for all things vanilla flavored, but if the past two months are any indication, these recent filings could signal a new trend in the industry.

One of Sheehan’s early targets was the popular pretzel filled snack Combos, which advertises its cheddar cheese flavor as having filling “Made with Real Cheese.”

Is real cheese included as an ingredient in the filling? Well, yes, but that’s not the point, according to the Sheehan-filed complaint. The plaintiff claims that snack manufacturers recognize that “made with real cheese” claims add value to snacks previously written off by consumers as unhealthy because of the healthful nature of cheese and its healthy “indulgent properties” for consumers looking to still “treat themselves” a bit.

The complaint also claims that despite the front-of-package representation that the product is made with real cheese sitting atop a “freshly shredded block of bright orange cheddar cheese.”

The truth is that the product contains less than 2% of a four-cheese blend, and that it is instead predominantly composed of “vegetable fats and cheese byproducts.”

The plaintiff alleges that based on the “made with real cheese” representation, he expected the product’s filling to be made predominantly or exclusively of real cheese, and that he had known the truth, he would have paid less for the product or would not have purchased it at all. The plaintiff seeks to certify a class of Florida consumers who also purchased the Combos cheddar cheese products and pursues claims under Florida’s consumer protection statute and false advertising law.

It remains to be seen which of the litigating parties will end up saying “cheese” while smiling.

Referenced case: Pistorio v. Mars Wrigley Confectionery US LLC, No. 2:24-cv-00090 (M.D. Fla. Jan. 29, 2024). This article appears in an Alston & Bird debriefing in the international law firm’s just-published 16-page Food & Beverage Digest March 2024 online issue that includes this and other articles on New Lawsuits Filed, Motions to Dismiss, Class Certification, Appeals, and Voluntary Dismissals.