Consumer Protection or Product Disparagement? The Secret To KFC’s “Eleven Secret Herbs and Spices” Is That There Are Only Four Not-So-Secret Ingredients

Colonel Sanders was accused in a book of a culinary court-martial with the release of William Poundstone’s “Big Secrets.” Poundstone looked at the claim regarding KFC’s secret ingredients (as well as claims from other companies regarding secret recipes). In the case of Kentucky Fried Chicken (KFC), he did not find “eleven secret herbs and spices.” Indeed, he did not find eleven herbs and spices at all. Just four: flour, salt, monosodium glutamate (MSG), and black pepper. The allegation raises interesting questions over either consumer protection or product disparagement in torts. While it was first published in 2009, I thought (since we just covered this in class) it would be interesting to post.

Poundstone is quite clear in his book. There are no other ingredients beyond flour, salt, MSG, and black pepper. There were no unidentified ingredients. Others have “reversed engineered” the recipe and come up with their own 11 herbs and spices.

If this is true, the question is whether it constitutes false advertising and a violation of consumer protection laws. It is not clear what the injury to the consumer is if the chicken “tastes so good.” Yet, they were promised something special . . . and secret.

The federal code is quite general and broad in scope:

15 U.S. Code § 52 – Dissemination of false advertisements

(a) Unlawfulness
It shall be unlawful for any person, partnership, or corporation to disseminate, or cause to be disseminated, any false advertisement—
(1) By United States mails, or in or having an effect upon commerce, by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly the purchase of food, drugs, devices, services, or cosmetics; or
(2) By any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase in or having an effect upon commerce, of food, drugs, devices, services, or cosmetics.
(b) Unfair or deceptive act or practice
The dissemination or the causing to be disseminated of any false advertisement within the provisions of subsection (a) of this section shall be an unfair or deceptive act or practice in or affecting commerce within the meaning of section 45 of this title.

State consumer protection laws are equally broad. For example, New York’s law simply states (N.Y. GBS. LAW § 350): “False advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state is hereby declared unlawful.”

However what are the damages. Is this a deceptive practice designed to get people to buy chicken? If Poundstone is correct, KFC is clearly advertising the 11 secret ingredients for a reason. I am not sure whether the company is still claiming the 11 secret ingredients but I could not find any lawsuit for product disparagement. Industry groups and companies will sometimes bring the common-law product disparagement claim in conjunction with state laws on disparagement and tortious interference. The two leading examples both ended in losses for the Plaintiffs, though these lawsuits are often motivated by a desire to educate the public through litigation.

The first such case that comes to mind is Auvil v. CBS, 67 F.3d 816 (9th Cir. 1996). Sixty Minutes was showed after airing “A is for Apple,” a story criticizing the growers for their use of Alar, a chemical sprayed on apples. The shows devastated apple sales, but both the district court and the appellate court ruled for CBS. In a statement with obvious bearing on the current case, the Ninth Circuit stressed:

We also note that, if we were to accept the growers’ argument, plaintiffs bringing suit based on disparaging speech would escape summary judgment merely by arguing, as the growers have, that a jury should be allowed to determine both the overall message of a broadcast and whether that overall message is false. Because a broadcast could be interpreted in numerous, nuanced ways, a great deal of uncertainty would arise as to the message conveyed by the broadcast. Such uncertainty would make it difficult for broadcasters to predict whether their work would subject them to tort liability. Furthermore, such uncertainty raises the spectre of a chilling effect on speech.

The second case that comes to mind is Texas Beef Group v. Winfrey, 201 F.3d 680 (5th Cir. 2000). The case is based on a show involving Oprah Winfrey called the “Dangerous Food” show, which dealt with “Mad Cow Disease.” Winfrey discussed the new-variant CJD in Britain. After hearing from various experts on the dangers of Mad Cow Disease, Oprah stated that she would not eat ground beef. Showing the power of Oprah, the court reported that “following the April 16, 1996, broadcast of the “Dangerous Food” program, the feed cattle market in the Texas Panhandle dropped drastically. In the week before the show aired, finished cattle sold for approximately $61.90 per hundred weight. After the show, the price of finished cattle dropped as low as the mid-50’s; the volume of sales also went down. The cattlemen assert that the depression continued for approximately eleven weeks.” The industry sued but lost before a Texas jury.

Notably, there are also no lawsuits that I could find on a consumer class action or other lawsuit based on false advertising claims.

KFC appears to be moving on with its new Chicken Corsage, a truly tasty and tasteful addition to any prom dress this season.

Source: Live Science