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
Many years ago, I remember seeing a cartoon in a magazine. Two police officers are leading Col. Sanders out of one of his restaurants in handcuffs. Two bystanders are watching, one saying to the other, “They just found out what those eleven herbs and spices are.”
Lol – Charlton – that brought a smile to my face as I am trying to get through my first cup of coffee. 🙂
2013 was a good vintage
See I thought there was a sesame seed bun involved. 🙂
http://www.examiner.com/article/year-old-happy-meal-hasn-t-decomposed-photos
no wonder nobody liked my big macs. 🙂
I remember the day McDucks opened up in my hometown back in the 70’s. The restaurant was packed beyond belief. Someone locked a side door to keep more people from coming in. Bet the fire department would have had an issue with that.
We only had two chain burger joints before : 2 A&Ws and an Arctic Circle. One of the A&Ws was next to McDucks and it went out of business sadly. It had better burgers and the waitresses came on rollerskates to your car.
Eventually all but two of the mom and pop burger joints went out of business. Now the town is overrun with chain restaurants. It gets boring to see the same corporate food over and over. Too bad people can’t think outside the burger box.
Almost:
two all beef patties, special sauce, lettuce, cheese, pickles, onions, on a sesame seed bun 🙂 , er, I mean
two all beef patties, special sauce, pickles, onions, on a sesame seed bun
my first job when i turned 16 was mcd’s. only about a month ago i ate my first big mac since then. it was just 75 cents when i worked there and if it was still six bits it would still be over priced.
I bet you remember what makes up a Big Mac!
I think there was a sesame seed bun involved.
Prof. Turley – we can’t all have fun. Not sure what KFC is up to and I am horrible at reading labels or listening to ads. I vaguely remember the 11 spices thing but that could have been a lifetime ago. I remember when the Col was doing all the ads for the company, he made it seem like he was personally cooking the chicken.
Paul: Naw, fifty something years ago for Christ sake. Not proud of it. Just thought you would wanna know. Gee. We cant all be prudes. Its not fried chicken daddy, its Shake N Bake. An all that.
Al – even though the statute of limitations is surely up, I would not admit I did or had a part in something like that. 🙂
Actually, the statute of limitations may be a reason for the lack of lawsuits. I am not sure if KFC simply dropped the slogan after the book. I could not find a recent reference. If they dropped the slogan, there might have been a bar on filings. However, it would have made for an interesting case either as a disparagement lawsuit or as a consumer protection case.
my nephew worked at kfc a number of years ago. he recommended that we not eat there. he didn’t and we don’t either.
bettykath – having worked in a couple of restaurants in my younger (former) life, I can say that you do not want to know what goes on in the kitchen. 🙂 However, I never worked where I wouldn’t eat as well.
marijuana is an herb. use before going to kfc.
and paul, give al some credit for remembering
Having worked at KFC, I can tell you there are a bunch of ingredients. They are listed on the packaging, like they should be. The amounts? Nobody could ever tell you – but they are listed as ingredients in the mix. And there are definitely more than 4. Or there were in 1999 when I stopped working there, anyway.
Paul, The type of water used in pizza dough is crucial. I have horrible tap water in Wi. and so I use bottled water. The shit is undrinkable. San Diego has great tap water and the dough comes out even better than bottled. I’m told the same holds true for bagels. Both are very basic ingredients, w/ each ingredient being important.
Back in the early to mid 80’s I was given a cookbook as a joke. The book had recipes for all the then popular fast food items/ Some of them came pretty close, most I never tried. The author of the book spent a lot of time trying to identify what gave the foods their particular flavor. I remember very clearly her saying that the only thing they could find in KFC was salt and pepper. There may have been an uproar about it at the time, I seem to remember one but none of the particulars. I think KFC apologized & promised to never do it again, they would go back to the original 11, but I could be wrong about that.
There is a whole thing about restaurant advertising and the latitude they have. Every had homemade pie at a cafe? Every ask whose home it was made in?
Samantha, You are absolutely correct about our Western diet. However, my diet was never really that bad in relative terms. Genetics play a BIG part. There were 13 kids in my mom’s family. At least 8 of them ended up w/ Type 2 diabetes. We all surmise 1 other was undiagnosed. They were all SKINNY! They are a beanpole family, tall and skinny Irishmen. They all were diagnosed before the ubiquity of fast food and carb crazy menus. I know a lot about this stuff. So, please don’t lecture me. I’m happy to discuss, but I am paying the price for my sins and I have repented. There’s another food lecturer here who I expect soon!
Well, being religious is better than being dead. At least you woke up before everyone who ended up on a bypass table. The KFC sins, however, guarantee that you will never recover from diabetes. The high-fat, low-fiber Western diet is extremely toxic to the pancreas. It’s why immigrants, who’ve never known Western food, end up diabetic after eating one Big Mac.
Samantha, thanks. I have diabetes and got religion. I lost my gallbladder before I made radical lifestyle changes. My blood sugars, cholesterol, are all very good. I walk 8-10 miles a day. I drink 4-5 drinks a week. My BP is ~118/68. I quit smoking in 1989. I’ve been “religious” for about 10 years now.
Nick, everything in moderation, but you lost your gallbladder anyway? It’s not too late to change course and stay off the bypass table.
My cholesterol is perfect, w/ very high HDL. I’m a walker and eat a close to Mediterranean diet. Fried chicken on occasion being a variation. Everything in moderation.