Parmesan cheese redux

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From Jonathan Weinberg:

An update to "'100% grated parmesan cheese'" (9/5/2017):

In which the court explains that it can blow off the affidavit of Anne Curzan and Ezra Keshet of the University of Michigan that only one interpretation of the phrase “100% grated Parmesan cheese” is plausible in context, and the affidavit of Kyle Johnson of UM-Amherst that the phrase has only one semantically and pragmatically salient interpretation, because “a reasonable consumer -— the touchstone for analysis under the consumer fraud statutes -— does not approach or interpret language in the manner of a linguistics professor.” Aargh.

The new decision has been covered by Rebecca Tushnet at the 43(B) blog ("Post-parmesan: 100% grated parmesan still doesn't have to be 100% grated parmesan, court reiterates", 11/2/2018). (The affidavits — indeed, the names of the experts — don’t appear in the decision or in Rebecca’s writeup, but I pulled them off Pacer.)

The new opinion is here.

Rebecca Tushnet's post about the earlier opinion is "'100% grated parmesan cheese' doesn't have to be all cheese, court rules" (8/30/2017), and the decision in the 2017 case is here.

PACER is the electronic public access system for the U.S. Federal District and Bankruptcy Courts. Much of the content of PACER is replicated for free at courtlistener.com, which recapitulates some of the content of PACER via RECAP ("PACER" backwards — "turning Pacer around since 2009"), in particular for this case here. (Though I did not find the linguists' affadavits there yet…)

As Wikipedia explains,

PACER has been criticized for being technically out of date and hard to use, and for demanding fees for records that are in the public domain. In reaction, non-profit projects have begun to make such documents available online for free.

A larger selection of Judge Feinerman's 11/1/2018 opinion is worth citing, since after asserting that "a reasonable consumer … does not approach or interpret language in the manner of a linguistics professor", he also dismisses a survey showing that "the  'vast majority' of consumers believe that '100% Grated Parmesan Cheese' means that the product contains only cheese", since "it is 'well settled' that a court, on its own, may 'determine as a matter of law' that 'an allegedly deceptive advertisement would not have misled a reasonable consumer'". In other words, apparently, the only "reasonable consumer" is a Federal District Court judge, aka himself:

As for applying the standard, the court’s earlier opinion held that “the description ‘100% Grated Parmesan Cheese’ is ambiguous,” reasoning that although “‘100% Grated Parmesan Cheese’ might be interpreted as saying that the product is 100% cheese and nothing else, it also might be an assertion that 100% of the cheese is parmesan cheese, or that the parmesan cheese is 100% grated.” Id. at 923. In challenging that conclusion, Plaintiffs cite two reports from linguistics professors opining that the phrase “100% Grated Parmesan Cheese” conveys only the message that the products consist entirely of cheese. Doc. 255 at 7-8. The linguists do not advance Plaintiffs’ cause. As an initial matter, a reasonable consumer—the touchstone for analysis under the consumer fraud statutes—does not approach or interpret language in the manner of a linguistics professor. See Rugg v. Johnson & Johnson, 2018 WL 3023493, at *2 (N.D. Cal. June 18, 2018) (noting that a “reasonable consumer need not be exceptionally acute and sophisticated,” and that “the reasonable consumer test focuses on the perspective of ordinary minds”) (internal quotation marks omitted).

In any event, the reports do not indicate that the professors examined the phrase “100% Grated Parmesan Cheese” in the context of shelf-stable, unrefrigerated containers of cheese. As the court explained, that context is important given that the “products are packaged and shelfstable at room temperature, a quality that reasonable consumers know is not enjoyed by pure cheese,” and that “reasonable consumers are well aware that pure dairy products spoil, grow blue, green, or black fuzz, or otherwise become inedible if left unrefrigerated for an extended period of time.” 275 F. Supp. 3d at 923. Even assuming (incorrectly) that reasonable consumers view language through the same lens as linguistics professors, because the linguists did not take account of that context, their opinions are valueless in deciding whether “100% Grated Parmesan Cheese” is ambiguous.

Plaintiffs also cite consumer surveys purporting to show that the “vast majority” of consumers believe that “100% Grated Parmesan Cheese” means that the product contains only cheese. Doc. 255 at 7-9. Those surveys are valueless as well. As the Seventh Circuit has held, it is “well settled” that a court, on its own, may “determine as a matter of law” that “an allegedly deceptive advertisement would not have misled a reasonable consumer.” Fink v. Time Warner Cable, 714 F.3d 739, 741 (7th Cir. 2013). The Seventh Circuit has also recognized that “context is crucial” in that, “under certain circumstances, the presence of a disclaimer or similar clarifying language may defeat a claim of deception.” Ibid. Accordingly, consumer surveys do not assist the analysis where, as here, the court can determine as a matter of law that the challenged statement is ambiguous standing alone and particularly given its context. See Goldman v. Bayer AG, 2017 WL 3168525, at *10 (N.D. Cal. July 26, 2017) (denying leave to amend after dismissing statutory consumer fraud claims, even though the plaintiff wished to “arrange for consumer surveys to be conducted,” because surveys would not assist the plaintiff in plausibly “alleg[ing] that he was deceived by information that is plainly accurate”); cf. Groupe SEB USA, Inc. v. Euro-Pro Operating LLC, 774 F.3d 192, 201 (3d Cir. 2014) (in a Lanham Act suit, noting that “words may be used plainly enough and carry baseline meanings such that consumer survey evidence is irrelevant”). Moreover, it bears mention that the surveys find that some consumers do not believe that the products are 100% cheese; the disagreement between those consumers and those who do believe that the products are 100% cheese supports, rather than refutes, the notion that the label is ambiguous.

Update — According to Document #255 in the Pacer collection for this case (free copy here),

Consumer surveys are the gold standard for determining the advertising message conveyed to a reasonable consumer. See Suchanek, 764 F.3d at 753; see also Kraft, 970 F.2d at 318 (“The most convincing extrinsic evidence is a survey of what consumers thought upon reading the advertisement in question . . . .”). Based on a consumer survey conducted in this litigation, over 85% of purchasers of the Products understand the labels to mean the Products are 100% cheese and fully grated. See ECF No. 225 ¶¶3, 29; ECF No. 226 ¶¶3, 17; ECF No. 227 ¶¶3, 24; ECF No. 228 ¶¶3, 24; and ECF No. 229 ¶¶3, 25. This percentage greatly exceeds the 10–20% standard generally used in determining whether an advertising message misleads a reasonable consumer. See In re Telebrands Corp., 140 F.T.C. 278, 291 (2005) (10.5% to 17.3% “was sufficient to conclude that the challenged claims were communicated”), aff’d, 457 F.3d 354 (4th Cir. 2006); Firestone Tire & Rubber Co. v. FTC, 481 F.2d 246, 249 (6th Cir. 1973) (court unwilling to “overturn the deception findings of the Commission if the ad thus misled 15% (or 10%) of the buying public”); In re Novartis Corp., 127 F.T.C. 580, 685 (1999), aff’d, 223 F.3d 783 (D.C. Cir. 2000) (30-45% is “more than a significant minority”).

The judge's reasoning for dismissing the survey results as "valueless" seems to be "because I can", though perhaps some readers can elucidate further.

Update #2 — Thanks to Jonathan Weinberg, the linguists' affidavits can be found here and here.

 

 



29 Comments »

  1. J.W. Brewer said,

    November 3, 2018 @ 8:35 am

    Judge Feinerman was a college classmate of mine, and I can attest that like the overwhelming majority of my classmates (including, as best as I can recall, the other two are also now federal judges …) he did not join me, 34 fall semesters ago, in enrolling in the introductory LIng 110a. Or, as best as I can recall, in any other linguistics class. Because why should anyone getting a bachelor's degree or law degree from a high-brand-value institution think that even an introductory smattering of linguistics should be part of a general education? And I don't think things have changed much (in terms of the marginality of linguistics to a general liberal arts and/or pre-law education) in the intervening decades.

    FWIW, I thought Judge Feinerman's earlier opinion in this case was pretty good, at least when I read it with my working-lawyer hat on rather than my quondam-linguistics-major hat on. Haven't yet had a chance to review and consider the new one. As to the snarky remark about linguistics professors, it should have been the job of the lawyers for whichever side was offering the expert testimony to make clear to the court that the professors' expertise was not in their personal ability to English texts "better than" the average native speaker but in systematically and rigorously explaining how and why the average native speaker (or whatever sort of reader of English the "reasonable consumer" would be assumed to be) would interpret a particular text in a particular context in a particular way. The snarky remark suggests that the lawyers did not succeed in conveying that. (Maybe they tried hard and the court still didn't get it. A court failing to grasp arguments you thought you had made cogently and clearly happens to all of us in the trying-to-explain-things-to-judges business from time to time.)

    If myl can't otherwise obtain the linguists' affidavits by Monday morning, he should say so in a comment here, and I can probably have one of my paralegals pull them from pacer and email them to him.

  2. Pedant said,

    November 3, 2018 @ 10:23 am

    So it’s possible to buy partially grated Parmesan cheese?

  3. han meng said,

    November 3, 2018 @ 10:54 am

    Link to original 9/5/2017 post: http://languagelog.ldc.upenn.edu/nll/?p=34349

  4. mae said,

    November 3, 2018 @ 2:39 pm

    I am looking forward the new book "Linguistics: Why It Matters" by Geoffrey Pullum, which amazon is supposed to send me next Monday on its first day available in the US. I obviously haven't read it, but maybe someone should send the judge a copy.

  5. Theophylact said,

    November 3, 2018 @ 3:27 pm

    As I understand it, under Italian (and EU) law, none that crap could be called "Parmesan" (the official translation of "Parmigiano-Reggiano").

  6. KevinM said,

    November 3, 2018 @ 3:38 pm

    <>
    OK, he had it coming, after the implied (though probably unintended) snark of "linguistics professor," but you're overstating your point. What he's saying, in context, is that not every dispute over the meaning of a label requires a jury trial.

  7. Lawrence said,

    November 3, 2018 @ 4:15 pm

    It's actually the argument about the context of refrigeration that bothers me most, here. My family, growing up, purchased this grated cheese and then, one we had opened it, refrigerated it. I have fetched parmesan from the fridges of others. There are many products which one purchases shelf-stable and then refrigerates after opening — including milk, if it is UHT! If I had ever bothered to wonder why a fully-cheese product could last on the shelves in the store, I would likely have assumed that it was because parmesan is a very dry cheese, or because the cheese was lightly baked in some fashion. Shelf-stable crisps that actually *are* made of 100% cheese do exist! (The brand name I know is Whisps; they're delicious.)

    Maybe I was an unreasonably gullible consumer, or simply too young during my parmesan years — maybe my parents knew better! — but I believed it was all cheese until Language Log first posted about it.

  8. Andrew Usher said,

    November 3, 2018 @ 5:35 pm

    I have to point out that I don't think linguistics professors should really be considered to have special expertise on this – the question should not be what it means in some technical sense but what it means to consumers. I don't think anyone seriously disputes what the average consumer would think, out of context, '100% grated parmesan cheese' to mean, and hearing that testified to by linguistic professors makes it easier for some people to discount.

    At least some of these companies are willfully misleading consumers with this label, and as we can't single out any (due to competitive pressure) we have to judge for all: any significant, intentional addition of a non-cheese ingredient renders the product impossible to label as '100% … cheese'. It's straightforward fraud, and I posted essentially the same argument the first time, but have no trouble repeating it, because I think this is one non-linguistic issue that should not be politically controversial.

    Of course if such a judgement were made the companies could simply remove the '100%' and be in compliance with the law, and consumers would barely notice.

    I fully agree with the previous commenter; I certainly would not consider him 'gullible' and that's not something a consumer should be expected to know, anyway.

    k_over_hbarc at yahoo dot com

  9. Kyle Johnson said,

    November 3, 2018 @ 8:06 pm

    I managed to look at pictures of all the packages that Kraft had put this "100% grated parmesan cheese" label on, thinking perhaps that the use of font-sizes or the like could invite a reader to bracket "100%" with "grated." The fonts and sizes varied across packagings. But, interesting I thought, was that one package had this variation on the theme: "100% real grated parmesan cheese." "100% real"? I thought this was rather clear evidence that the intent of the packaging was to deceive.

  10. Ran Ari-Gur said,

    November 3, 2018 @ 11:39 pm

    @Andrew Usher:

    > […] I don't think linguistics professors should really be considered to have special expertise on this – the question should not be what it means in some technical sense but what it means to consumers.

    But linguists do not just study language "in some technical sense"; they study it in practice, including what people mean by things and how people interpret those things. If the consumers in question are humans, then linguists are exactly the right people to suss out how they would and do interpret something.

    (And as for the judge's conclusion — I agree with Lawrence. Reasonable consumers probably assume that the makers of 100% grated Parmesan cheese know their business, and that if it's shelf-stable somehow, then it must be somehow possible to make 100% grated Parmesan cheese that's shelf-stable. Only someone with no faith in consumer protection laws would assume instead that the phrase "100% grated Parmesan cheese" must actually denote something other than 100% grated Parmesan cheese.)

    [(myl) In this case the judge also chose to treat as "valueless" the results of consumer surveys showing that the "'vast majority' of consumers believe that '100% Grated Parmesan Cheese' means that the product contains only cheese".]

  11. Jon W said,

    November 4, 2018 @ 1:24 pm

    Fwiw, I’ve stuck the affidavits up on dropbox:

    https://www.dropbox.com/s/latwyt6h51fxrz6/linguist1.pdf

    and

    https://www.dropbox.com/s/v6sbel1lkshh9oy/linguist2.pdf .

  12. Philip Taylor said,

    November 4, 2018 @ 1:55 pm

    I found "linguist1.pdf" 100% convincing; "linguist2.pdf" I found a little laboured. Neither left me in any doubt that professional linguists would interpret "100% grated Parmesan cheese" as anything other than 100% Parmesan cheese that has been grated (the interpretation that I, as a consumer, would also place on it), and were I to purchase a product so- described, I would have no hesitation in returning it under the Sale of Good Act as "not as described" if it turned out not to be 100% Parmesan cheese that had been grated (modulo epsilon, for small epsilon, to allow small but indiscernible quantities of stabilisers, preservatives, etc).

  13. James Wimberley said,

    November 4, 2018 @ 2:40 pm

    We've established that it wasn't cheese but cardboard (cellulose) and almost certainly not AOC Parmesan. Was the useless stuff actually grated, or flocculated like instant coffee?

    My take is that anyone who buys yellow sawdust to add to food, be it cardboard or cheese, has no claim to human sympathy. Hard cheese has to be grated immediately before use, or it loses all taste and odour. For best results, you should use a very coarse grater that yields curled shavings rather than a powder; the crunchiness adds greatly to the quality of a carpaccio. ( I actually learned this celebrating a birthday at a good restaurant in Parma.)

    What is the linguistic reach of the EU's elaborate rules of origin? I suggest that in Europe it's quite a lot, as they penetrate the labels on everyday products. The "Parmesan" on sale in my local Spanish supermarkets in in fact labelled "Grana Padano AOC", made in the same way in a wider region in the Po plain. Real "Parmigiano AOC" is rarer and more expensive, and not IMHO worth the extra. This situation is stable, and SFIK there have not been the exciting lawsuits that have arisen over feta.

    I imagine, without real evidence, that very many European shoppers are aware of the AOC system, and of some major applications: champagne, Roquefort, parmesan, bellota ham. Cognosceni will know that "brie" is a generic like "cheddar", and you can make and sell your own from the milk of elephants, mice, or humans, but not so "Brie de Meaux AOC".

  14. Andrew Usher said,

    November 4, 2018 @ 3:56 pm

    Ran Ari-Gur:

    I was not trying to demean linguists, just point out that it doesn't seem their expertise is needed. For me, their testimony adds nothing to the consumer surveys, and common sense, that '100% … cheese' means just that. And honestly the suggestion that one should need a professional linguist to be sure seems a little insulting.

    And given some of the above comments, I will add that we don't need or want any of this European or pseudo-European snobbery. Americans know what we mean by 'Parmesan cheese' and are willing to use pre-grated cheese; that does not mean they are poor ignorant slobs undeserving of the protection of the law.

    And really, it's the most natural thing, linguistically, to use words like 'Parmesan' the way Americans do – how better to refer to the type of cheese whose production originated in the Parma region? A reasonable person should be more interested in what characteristics to expect of the product than exactly where it was made.

  15. Philip Taylor said,

    November 4, 2018 @ 4:42 pm

    There's nothing "snobbish" about AOC, VDQS, Appellation (d'origine) contrôlée, etc., Andrew — it is vitally important legislation that ensures that (for example) when a consumer buys something labelled Brie de Meaux, he or she can be 100% confident that the cheese will have been matured in the (Meaux) regions of Seine-et-Marne, Loiret, Aube, Marne, Haut-Marne, Meuse and Yonne. Where such legislation does not exist, or where precedent allowed what should have been an AOC name to be used generically, one gets such travesties as "Cornish brie", "Canadian cheddar" and so on, none of which bear more than a passing resemblance to the authentic product whose name they have intentionally usurped.

  16. Ran Ari-Gur said,

    November 4, 2018 @ 7:08 pm

    @Andrew Usher: The problem is that different people interpret things differently, but they tend to assume that everyone else interprets things the same way they do. (This applies not just to semantics, but also to other aspects of language; for example, I'm sure you've encountered things like "[word] is pronounced [phonetic respelling]", where the pronunciation respelling is hopelessly unclear to anyone but the person who wrote it.)

    In this case, you seem to agree that the judge got this wrong, and you're appealing to "common sense" to support your interpretation; but obviously the judge's "common sense" does not agree with yours, and the judge himself points out that not all of the surveyed consumers agreed with you, either.

    So I don't think it's "insulting" for professional linguists, who can examine the issue methodically, and who have a conceptual vocabulary for the relevant ideas, to weigh in. If you read the affidavits that Jon W linked to, I think you'll agree that they make various relevant points that are only obvious once pointed out.

  17. J.W. Brewer said,

    November 4, 2018 @ 7:45 pm

    James Wimberley touches upon a point that linguistics professors as such may or may not be the best ones to address. When "common sense" understandings of what does or does not count as a particular sort of foodstuff or beverage meet ubiquitous and complex modern laws and regulations governing food and beverage labeling, what happens? There is a sense in which "parmesan cheese" in AmEng has as its referent "anything falling within whatever range of cheese-like products are frequently retailed under that designation in the U.S.," which in turn depends on what range of cheese-like products can be lawfully sold under that designation in the U.S., which may be a different range of possibilities than those that could be sold under that designation in some other jurisdiction, whose local variety of English would presumably tacitly incorporate the local regulations and thus mean something different by the same NP. Now, often ordinary consumers don't know in detail and/or affirmatively misunderstand, what the labeling rules do/don't permit and do/don't require. How are we to assess the impact of such misunderstanding, either for semantics or for pragmatics?

  18. J.W. Brewer said,

    November 4, 2018 @ 10:10 pm

    Separately, to Jonathan Weinberg's point that the names of the professors found irrelevant or unpersuasive as proffered experts do not even appear in the opinion, one plausible hypothesis, given the admittedly variable conventions of judicial opinions as a literary genre, is that the judge was being comparatively polite. Judges who really react negatively to particular putative experts and think their purported expertise is bunkum and charlatanry may go out of their way to use their names when saying so, in order to ensure that anyone who googles them when they pop up as potential experts in a future case finds the negative commentary quickly.

  19. Andrew McKenzie said,

    November 5, 2018 @ 3:51 pm

    I'm perplexed at the judge's reasoning that a product can be labeled contrary to reality so long as it's stored in a manner that is obviously incompatible with the properties of the claimed product.

    So if you put cans of creamy turkey gravy on an unrefrigerated US shelf, could you sell it as "milk" because any reasonable American would know that milk doesn't keep on a shelf?

  20. Gwen Katz said,

    November 6, 2018 @ 11:44 am

    So far everyone's been working from the assumption that "100%" modifies one specific word and not the others. But couldn't "100%" be meant to modify all the following words? I, for one, would be disappointed if I discovered that he product wasn't 100% cheese, wasn't 100% Parmesan, or wasn't 100% grated.

  21. ajay said,

    November 6, 2018 @ 12:21 pm

    I'm perplexed at the judge's reasoning that a product can be labeled contrary to reality so long as it's stored in a manner that is obviously incompatible with the properties of the claimed product.
    So if you put cans of creamy turkey gravy on an unrefrigerated US shelf, could you sell it as "milk" because any reasonable American would know that milk doesn't keep on a shelf?

    More worryingly, could you be guilty of mislabelling if you have a can of milk labelled "milk" on the shelf, because the same reasonable American would therefore assume that the can did _not_ contain milk, and would be (perhaps unpleasantly) surprised when he found that it did?

  22. ajay said,

    November 6, 2018 @ 12:27 pm

    145. Let us suppose that I have accidentally released a bloodthirsty hyena into an American supermarket. How am I to warn the shoppers?

    146. If I shout "Look out! A bloodthirsty hyena!" the Americans will reason "it is unlikely that there is a hyena in this supermarket. This man is therefore lying and I will ignore him."

    147. They will then be devoured by the hyena.

    148. Or at least mauled a bit, depending on the sizes of the shoppers and the hyena.

    149. I do not wish this to happen.

    150. But if I instead shout "Look out! There is no bloodthirsty hyena!" they will believe me, and continue shopping, and be devoured or mauled as above.

    151. Is there any utterance which will persuade them of the hyena?

    152. Perhaps I could begin by saying in a conversational voice: "Friends, it is possible that there might be a hyena in a supermarket somewhere."

    153. If a hyena were to start laughing at this point, we would understand him.

  23. Jim said,

    November 6, 2018 @ 12:46 pm

    When I have observed this before, the container was NOT labeled as "100% grated Parmesan cheese". It was labelled as "Parmesan cheese" with a banner elsewhere on the package that said "100% grated."

    I can't speak for a "reasonable" consumer, but as a cynical one who knows way too many Stupid Marketing Tricks, a separate banner like is a clear indicator of "You are suppose to think of these as one label phrase, but technically, they are not — each means only what that one says." And in this case, "separate banner" means "not on the same line and in the same font, even if they are right next to one another." (Google the phrase and look at the image results.)

    Plausible Deniability is how marketing works. Reasonable consumers should know this.

  24. Ellen K. said,

    November 6, 2018 @ 6:16 pm

    No reason milk can't be canned. And evaporated milk and sweetened condensed milk are sold in cans. (And for any unfamiliar with evaporated milk, it's still a liquid product; only some of the water is evaporated away.) Parmesan cheese, though, is not canned.

  25. Kaleberg said,

    November 7, 2018 @ 12:00 am

    I think that Gwen Katz is on to something:

    "So far everyone's been working from the assumption that "100%" modifies one specific word and not the others."

    Perhaps it is 33 1/3% grated, 33 1/3% parmesan and 33 1/3% cheese. That would add up to 100%.

    Unless there is a specific labeling law applicable, there is a lot of leeway in commercial speech. There are an awful lot of "best" products around and most consumers have learned to take such claims lightly. There are some categories of products where claims are subject to the force of law, for example statements about dairy products or anything containing alcohol are heavily regulated. In Europe, especially, origins are effectively trademarks and their use can be enforced similarly. Sometimes the producers take the law into their own hands as in Mexico where only Michoacán avocados are certified for export to the US. Down there it's up to the growers, the local police, and the real force in the area, the Knight's Templar criminal gang.

  26. tangent said,

    November 7, 2018 @ 5:43 am

    The judge is naive, shelf-stable "refrigerate after opening" cheese absolutely exists. And my family was another one who kept the parmesan powder in the fridge door. Perhaps a consumer survey of storage location would hoist the judge on his own petard.

  27. chris said,

    November 7, 2018 @ 10:24 pm

    Unless there is a specific labeling law applicable, there is a lot of leeway in commercial speech.
    There is very little leeway in "100%", though. 0% of it, in fact.

    If it just said "Grated Parmesan Cheese" I don't think anyone would be too shocked if it was 98% grated parmesan cheese and some kind of anti-bacterial agent or anti-clumping agent or whatever.

    But it's precisely because of public awareness of deceptive packaging laws that something as absolute and unambiguous(-seeming?) as "100%" may be taken at face value even if it otherwise seems unlikely. They aren't weaseling, which is unusual in an advertiser, so it must mean it's literally true. Otherwise they would be legally required to weasel.

    Also, add 1 to the people who thought "since it's cheese, of course once you unseal it you'll have to refrigerate it". Lots of foodstuffs in airtight packaging work that way. I'm not about to move my half-full grated parmesan cheese container out of the fridge even *after* this discussion.

    Even more so if it's explicitly stated to be 100% cheese and therefore by definition doesn't have preservatives.

    Sometimes the producers take the law into their own hands as in Mexico where only Michoacán avocados are certified for export to the US. Down there it's up to the growers, the local police, and the real force in the area, the Knight's Templar criminal gang.
    Wow, they really DO have something to do with everything.

  28. Ellen K. said,

    November 8, 2018 @ 9:30 am

    This came up in the previous discussion, but how the label is designed effects meanings. Some of the packages actually do visually pair "100%" with "grated". So it looked like a claim that it's fully grated. Which, though, is also a claim that doesn't make sense as something that would be said.

    Other packages, though, match "100%" with "parmasan cheese", as far as font size and color.

  29. J.W. Brewer said,

    November 8, 2018 @ 10:45 am

    One of the issues here that's maybe underappreciated in the comments above is that a consumer who read *all* of the text on the package would have read the ingredients list, which allegedly unambiguously disclosed the presence of the various non-cheese ingredients. So the question is what it means legally (or linguistically?) if other, perhaps more prominent, text on the package appears to contradict the ingredient list. At least according to Prof. Tushnet, Judge Feinerman attempted to resolve that question by concluding that if the bigger-print "100%" claim was ambiguous, the "reasonable consumer" was not entitled to rely on one possible interpretation of it without checking the ingredients list to be sure. Whether that's the right legal rule is a somewhat separate issue from the question of whether the "100%" claim on the packaging here is, in fact, ambiguous.

    What's interesting about this is that over a broad enough sample of cases I would imagine many linguistics professors would tend to think judges too quick rather than too slow to pronounce particular bits of text unambiguous, since ambiguity is probably in truth more ubiquitous in natural language as actually used in practice than a smoothly-functioning legal system might wish it was. But here by contrast it was the professors arguing that the text was so unambiguous in context that the reasonable consumer ought to be reasonably excused from thinking he or she needed to read the fine print. It is obviously common in all sorts of marketing/advertising contexts for upbeat claims about the product in large print to be hedged or qualified in the fine print, so when a reader desiring to avoid being defrauded is or isn't legally required to take the time to read the fine print will be a recurrent question.

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