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A WAR OF, AND ABOUT, WORDS

Gallo describes himself as a "sometimes consumer-attorney" from the "boutique" law firm Gallo & Company—"boutique" apparently meaning there are two other attorneys in the office beside Gallo. After noting that "seafood fraud normally is reserved for fish markets and high-end restaurants," the firm said it had filed a class action in California Superior Court in Los Angeles. The suit alleges that the "Lobster Burrito" served by Rubio's is really a "Langostino Burrito," containing only shrimp-like langostinos caught off the coast of Chile.

"This case isn't just about bogus menu language that calls a product something it's not," Gallo said. "This is an insult to one of America's favorite delicacies. Just the idea of a lobster gets seafood lovers salivating. For the fast-food consumer dining at Rubio's, a meal of lobster would be a real treat—if Rubio's actually delivered what its burrito's name leads consumers to expect."

Gallo says that after he warned Rubio's that his lawsuit was in the works, the company changed the burrito's name to "langostino lobster burrito."

"To my knowledge there is no such thing as a 'langostino lobster.' Have you ever heard of that?" he asked. "Maybe Rubio's has bred a new species to stuff into its burritos. The bottom line in my opinion is this: Unless Rubio's is putting both langostino and lobster in its burrito now, the 'langostino lobster burrito' is misleadingly labeled, too."

Gallo seemingly had an airtight case against Rubio's, for which losing a bait-and-switch case like this one would have been a potential public relations disaster. But instead of receiving an offer of settlement from Rubio's, Gallo got something else instead. Just seven hours after Gallo had gone public with his press release about the alleged langostino/lobster switcheroo, Rubio's fired back with a press release of its own. It noted that Rubio's had previously brought this issue to the attention of Spring Randolph, a consumer safety officer in the Food and Drug Administration's Office of Seafood. Here is how Randolph responded to the inquiry.

"The Seafood List (FDA's Guide to Acceptable Market Names for Seafood Sold in Interstate Commerce) lists 'langostino' as the acceptable market name for the following species: Cervimunida johni and Pleuroncodes monodon. We would not object to the use of 'langostino lobster' for these species."

Rubio's president /c.e.o. Sheri Miksa said the two species so sanctioned by the FDA are the products used by Rubio's. "Allegations that we would purposely mislead our guests are false," she said. "The term 'langostino lobster' is not only approved by the highest authority on consumer food matters, but is also an accurate description."

The Rubio's people didn't gloat. They merely noted that they had taken all appropriate actions to advise Mr. Gallo and his clients of this FDA-approved verbiage. There was no word at RH's e-newsletter's deadline whether Gallo had withdrawn his suit or not, but he's going to need some new ammo if he chooses to go forward.

The lesson here: People, some of them lawyers, read your menu language very, very closely. Be sure you've done your homework, as Rubio's certainly did, before you finalize your menu descriptor terms.

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