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

200px-Harland_Sanders220px-KFC_Original_Recipe_chicken_in_bucketColonel 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.

UnknownIf 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

61 thoughts on “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”

  1. Oh, Stroud’s is in KC. People make fun of red states here a lot but they do MUCH better in MANY types of food, fried chicken being near the top of the list.

  2. Stroud’s restaurant[not fast food[ has the best fried chicken I have ever eaten.

  3. I worked at a KFC when I was a kid. We had a secret recipee for the green beans. That is no spulling error in the last sentence. My pal’s name in the kitchen was Pee Steamer. I forget the exact street but the KFC was in Ferguson, MO.

  4. Samantha, I retrieved it for you.

    Folks, Samantha’s comment is above at 11:04

    1. My brother worked for KFC before the Col. sold out to “The Man.” He was convinced there was a secret recipe that they used.

  5. Maybe they are talking about the ingredients on a molecular level. That surely would be more than 11.

    I wonder if the original, original recipe Harlan Sanders made at his restaurant actually had 11 ingredients and much later corporate got a hold of it and wanted to save half a cent a chicken so 11 became 4

    Reverse engineering a recipe for chicken you ask? This is how it’s done:

  6. You’re right, butter is better than trans fat.

    The Center for Science in the Public Interest (CSPI) is the organization responsible for the push to ban animal fats in the 80s and 90s. It’s yet another one of hundreds of socialist outfits that have sprung out from academia, virtually every one of them getting their science wrong every time.  CSPI executive director Michael Jacobson, the number one person who pushed to replace animal fat with trans fat, is responsible for lethally damaging the health of billions of humans worldwide, in my opinion.  In fact, he’s indirectly caused premature death of more people than have all despots and wars since the beginning of time.  That cholesterol of children has improved, points to the decline in use of trans fat, though I’m not at all impressed by alternatives.  It’s why we should stick with only natural foods, the hell with anything processed.

  7. Samantha, You probably know it was the Nanny Food Police who made butter, coconut oil, etc. HORRIBLE killers. They were the ones who pushed trans fats. Well, well, it turns out they were flat ass wrong and butter is better than margarine and coconut oil is healthy, LOWERING bad cholesterol. I don’t know that there was any sinister profit motive, just bad science. We have a lot of bad science out there now.

  8. One ingredient that isn’t mentioned is trans fat, a poison that replaced animal fat sometime during the 90s. Who knows what is substituted for trans fat today, if at all.

    What is astounding to me, given widespread, readily available scientific nutritional studies, that anyone would eat KFC-like food at all, especially by the educated and affluent. Also, if you do not know that protein overload is as toxic as deep-fat frying itself, which in turn is every bit as dangerous as smoking, then surely you must have heard that one dollar out of every 5 in the US economy is earmarked for healthcare, stuff like bypass and gallbladder surgery, both of which are epidemic and 100 percent preventable. But if you’re holy grail is Madison Avenue, then go right ahead and duck-step into KFC, be the obedient consumer you were destined to be. You’ll be pissing away not just your disposable income but your good health, too, or what is left of it.

    There’s a huge disconnect in a nation that discourages cigarette smoking while at the same time promotes, even subsidizes, food fare that is every bit as toxic and dangerous as tobacco.

  9. My body has a low tolerance for MSG. I tend to throw up anything that MSG has been used on, however I can eat KFC Chicken. So, I am leery of this claim. Only a month ago or so, someone said they had found the original recipe for Coke. When I hear this sort of thing red flags go up all over.

  10. The Mad Cow case introduced Oprah to Dr. Phil. She was sitting in a hotel room ordering room service desserts by the cartload and having a pity party. Dr. Phil gave her a metaphorical slap on the head. He was just another run of the mill ham n’ egger therapist @ that point. The rest is history.

  11. Does the case report the date MSG (isolated for us in Japanese cooking in 1908) was first used in Col. Sanders’ recipe? Is it possible MSG replaced 8 other ingredients some time after 1952, or that, chemically, it combines with something else, like the oils in the chicken, to produce myriad other savory ingredients? Those would certainly qualify as secret, in that case. Too, it’s possible the oil in which it’s cooked could be considered an ingredient… couldn’t it?

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