Will Panera’s Charged Lemonade kill you? That’s a reasonable conclusion to draw from media coverage of two wrongful death lawsuits accusing the restaurant chain of failing to sufficiently warn customers about the beverage’s alleged dangers. Write-ups in the New York Times, CNN Business, Time, NBC, and CBS warn that the drink—which has an unusual amount of caffeine for lemonade—is “linked to” or “blamed” for two deaths (and counting). Charged Lemonade has gone viral on social media as “the lemonade that kills you”; Panera stands by the product for now, though it has added more warnings about the ingredients both online and in-store.
The untimely death of two Panera customers is tragic under any circumstances. The link between these deaths and Charged Lemonade, however, remains highly speculative—more so, perhaps, than some breathless reporting might indicate. If the lemonade did play a role, it is unclear whether Panera can or should be held responsible—the company’s product appears to pose no meaningful health risk to the overwhelming majority of consumers.
Which is why the story of “the lemonade that kills you” is really the story of the United States’ uniquely weird and patchy regulatory regime. Rather than double-check that products of all kind are safe and healthy in advance of their release to the people, our great republic relies on these kinds of lawsuits to product Americans from dangerous products. This is far from ideal, and it means the mere existence of such a suit has little bearing on its ultimate merit. The Charged Lemonade suits, for example, have received outsized press attention not because it’s indisputably lethal, but simply because it seems so absurd that something as innocuous as lemonade could (but probably doesn’t) kill you.
First, the facts: Panera’s Charged Lemonade has a lot of caffeine: 260 mg in a 20-ounce serving, and 390 mg in a 30-oz serving. Most stores allowed individuals to pour their own cups, though some have moved the drink dispenser behind the counter. A label on the tank states the flavor, followed—in smaller print—by a claim that the lemonade is “Plant-based and Clean with as much caffeine as our Dark Roast coffee.” That’s roughly accurate, though arguably misleading, since Panera doesn’t sell 30-ounce coffees. It does however, sell a 20-ounce light roast with 384 mg of caffeine, considerably more per ounce than Charged Lemonade. A 20-ounce light roast at Starbucks tops Panera with 475 mg of caffeine. Neither chain’s coffees come with a caffeine warning.
Second, the allegations: Sarah Katz, age 21, had a disorder called Long QT type 1 syndrome that causes abnormal heart rhythms. She strenuously avoided caffeine, but allegedly drank Charged Lemonade without realizing it was an energy drink. At some point after consuming the beverage, she had a heart attack and died; an autopsy attributed the cause of death to her disorder. Dennis Brown, age 46, had an intellectual disability and high blood pressure. While he, too, avoided caffeine, he allegedly consumed three cups of Charged Lemonade thinking it was regular lemonade. Afterward, he, too, had a heart attack and died. Kline & Specter, a personal injury firm, is representing the families of both individuals in their suits against Panera (both filed in Delaware, where the chain incorporated).
Third, the legal theory: Kline & Specter argues that Charged Lemonade is a “defective” product that should be unlawful to sell under any circumstances—primarily because the very concept of highly caffeinated lemonade is “unreasonably dangerous” and poses “an unreasonable risk of bodily harm” to all consumers. The firm also claims that Panera “negligently and recklessly misrepresented” the drink’s caffeine content by downplaying it in-store and online, violating its duty to warn consumers of its allegedly lethal potential. Most consumers, the firm wrote, do not think of lemonade as caffeinated, and so the drink must carry extremely conspicuous warnings that may not be necessary for other beverages, like coffee or soft drinks. In sum, Kline & Specter assert that, because Panera made the drink then failed to take these precautions, it is liable for the wrongful death of Katz and Brown.
Finally, the big question: Is any of this legit? There is, unfortunately, no way (yet) to tell. Product liability lawsuits like this one do sometimes fizzle out when subjected to judicial scrutiny. The allegations in Kline & Specter’s complaints are unproven; what we know is that some substantial number of people consumed Charged Lemonade, and two of those consumers died afterward. The firm believes that these individuals, each with a medical condition that made them quite different from the average consumer, died because of the drink. To prevail, it will need to prove not only this allegation, but also its theory that Panera should never have sold the beverage to begin with—or, at a minimum, should have covered it with unmissable warning labels.
Whether Charged Lemonade will be found liable here is one question. The bigger question, in my view, is why should Americans rely on a law firm, and the eventual decisions of a judge and jury in Delaware to decide what will effectively be a national standard for caffeinated lemonade? The answer is that the United States’ regulatory bodies are far too feeble to sufficiently protect the public against hazardous products, and so they essentially outsource this task to consumers and the lawyers who represent them. In peer nations—like, for instance, the United Kingdom—the government imposes strict and consistent regulations on the front end: It requires warning labels on drinks with more than 150 mg of caffeine and bans the sale of these drinks to children under 16. In the U.S., by contrast, the FDA barely regulates caffeine: It does not require manufacturers to include caffeine on the ingredient list of many caffeinated beverages, let alone disclose the amount of caffeine on the label. Nor does the U.S. government bar any consumers from buying ultra-caffeinated products, mandate an explicit warning label, or monitor advertisements.
From this perspective—one that Panera’s lawyers probably support—the company was going above and beyond by informing customers of Charged Lemonade’s caffeine content at all. Following the lawsuits, it took the extra step of warning customers not to consume the drink if they are pregnant or sensitive to caffeine; this, Panera’s lawyers likely advised, created an ironclad defense against further litigation. In the U.S., however, complying with (scant) federal regulations does not always create a shield against civil suits from consumers, who may argue that a company had additional duties under various state laws to protect the public from harm. We, as a nation, have decided that this regime is preferable to one in which a more interventionist government is provided the resources and authority to determine exactly which products can be sold and how they are marketed. Unless Congress provides vastly more money and power to the federal agencies that regulate the marketplace, we are stuck with this system forever.
At its best, this method of regulation can compensate victims and force dangerous products off the market. For instance, in the 2000s, consumers filed multiple lawsuits against the makers and sellers of drop side cribs, which malfunctioned and suffocated babies at an alarming rate; these suits led to a mass recall of the product, followed, eventually, by an overdue federal ban. For decades, Johnson & Johnson used talc in its baby powder, despite knowledge within the company that the ingredient could cause cancer; it took a spate of lawsuits to force the removal of this carcinogenic ingredient, and J&J continues to battle liability through astoundingly sleazy litigation tactics. Another talc-like catastrophe is all but inevitable: Whereas most other countries, including developing nations, ban hundreds or thousands of cosmetic ingredients, the FDA bans fewer than a dozen. Private civil suits to get other toxic ingredients off the market will remain valuable.
Because these suits can be so effective, the corporate lobby, aided by large law firms and often Republican lawmakers, has tried to frame consumer class actions as frivolous money-grubbing scams. This effort is euphemistically called “tort reform,” and it translates into laws that shut this litigation out of court, or severely limit damages available to victims. The push for “tort reform” accelerated in 1994 after a woman successfully sued McDonald’s for selling her too-hot coffee. Her suit became of the butt of jokes, and fodder for countless proposals, many successful, to lock plaintiffs out of court. But a 2011 documentary proved that she was, in fact, horribly burned by the coffee—and that the corporate lobby had allied with GOP politicians to transform her meritorious case into an example of the urgent need for tort reform.
The hot coffee episode aided the alliance into developing a winning new formula to justify cutting back consumer lawsuits, especially class actions, by highlighting silly cases. The Chamber of Commerce’s Institute for Legal Reform, for instance, provides an annual list of the year’s “most ridiculous lawsuits,” which it calls “Lawsuit Abuse-ivus.” (Like Festivus, get it?) Readers hear about litigants who claim that Pop-Tarts have insufficient pastry filling, or that jalapeño cheese curls don’t have real jalapeño. They won’t hear about meritorious suits, like the fight for justice against Johnson & Johnson—presumably because the Chamber of Commerce vigorously supports the corporation’s efforts to cheat talc victims out of compensation.
When you hear about a consumer lawsuit like Kline & Specter’s against Panera’s, then, the wisest option is to wait and see. Did Charged Lemonade lead to two wrongful deaths? We do not yet know. Did Panera have a legal duty not to make caffeinated lemonade, or to loudly trumpet its alleged dangerous? We don’t know. Is the meme-ified reaction to these deaths and suits righteous, or a moral panic? Who knows. Is it ideal that a jury of 12 people in Delaware may answer these complex questions? Certainly not. But it is better than the alternative that the “tort reformers” crave, which is a country in which corporations can knowingly commit egregious wrongdoing and avoid paying a penny to their victims.
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