Panera Sign - © Panera

UPDATE: Why Is ‘Charged Lemonade’ Still On The Menu?

You’ll recall that Panera Bread is being sued by the families of three customers. Two died and another suffered permanent injury after drinking Panera’s Charged Lemonade energy drink. Now, some folks are asking, “Why is Charged Lemonade still on the menu?”

Charged Lemonade - © 2022 Panera

Common sense defied

The decision to keep the Charged Lemonades on the menu seems to defy the age-old rules of common senses. What sane, sensible, responsible, accountable corporate entity would continue to offer a menu item that is accused of killing its customers?

Not a ‘human’ issue?

A recent CNN Business report had the following to say about the continuing presence of the vilified lemonade remaining on the market:

“Very often in lawsuits, there is a knee-jerk reaction among lawyers to do as little as possible publicly out of some vague fear that you are exposing yourself to additional liability,” crisis PR expert James Haggerty told CNN, noting that this approach can have a detrimental effect on the market value of a company, at times to the tune of hundreds of millions of dollars.

 

Completely removing the drink from the menu could come across as an implied admission that something was indeed wrong with it in the first place. But, according to Haggerty: “It’s a cost-benefit analysis … the loss of reputational value will often outweigh anything that occurs in the courtroom.”

 

“History has shown over and over again that the drip-drip-drip of negative publicity will cost a company far more than any lawsuit,” he added.

Did you see any mention about the human cost of the issue in that analysis? I didn’t. And I read it 5 times. Granted, it’s from CNN Business, and not one of their lifestyle or Family departments. You’d expect them, to take a business focus. But can we, as a society, totally separate the moral and ethical aspects of an issue from the purely – starkly – practical ones?

Where the issue stands

There have been some indications from Panera that it does recognise nor care about the human side of the Charged Lemonade debacle.

Before the lawsuits started appearing, the Panera menu simply listed its Charged beverages as, “Plant-based and Clean with as much caffeine as our Dark Roast Coffee.”

Since the first lawsuit was filed, Panera has added some cautionary language to its menu and adverts. According to CNN, “The online menu displayed bold letters stating ‘CONTAINS CAFFEINE’ across the images of the Charged Lemonades. […] The product description on the individual pages for each lemonade flavor now reads: ‘Contains caffeine. Use in moderation. NOT RECOMMENDED FOR children, people sensitive to caffeine, pregnant or nursing women.’”

Nevertheless, I suspect those strategic additions were recommended by the same lawyers who pushed the idea that Panera should continue to protest its innocence of any negligence or other wrongdoing in the Charged Lemonade affair.

The FDA speaks out

“Under the Federal Food, Drug, and Cosmetic Act, companies are responsible for ensuring that any use of caffeine in their products is safe. Under the Act, any substance that is intentionally added to food must be safe under the intended conditions of use. The safe use of the ingredient includes the amount that would be expected to be consumed,” an FDA spokesperson told CNN.

Panera stands firm

In December, following an internal investigation, a company statement declared: “Panera stands firmly by the safety of our products.” And that – again undoubtedly on the advice of its attorneys – is all they have to say.

My take

Panera’s corporate stance is entirely understandable and predictable. It’s based entirely on issues of liability. And, as Haggerty so tellingly notes, ‘costs versus benefits’, both tangible and intangible.

But does the company really believe that its stance is socially and morally supportable? Do they even give a hoot? They’re basically saying, “All we did was make the products available. It was up to the victims to fully inform themselves of any dangers that might arise, and choose NOT to consume the beverages.” Although it’s being argued, in the lawsuits currently before the courts, that the company didn’t provide customers with adequate or accurate information about the products in question.

My main point:

Whatever the legal points may be… It’s really a shame that the legal and financial issues get in the way of the human ones in situations like this. Clearly, it’s a case of the company putting its customers third on its priority list, after financial and reputation concerns.

I remember a time when companies large and small lived by the motto ‘the customer is always right!’ It is truly lamentable that notion – as noble and laudable as it is – simply has no place in today’s reality.

Apropos of that, I read this morning on CNN that its economic Fear & Greed Index is now hovering at 77 percent. That’s the top segment of the index, labeled ‘Extreme Greed’. CNN Business’s comment? “Greed is driving the US market…” For Panera, just now, both the Fear and Greed meters must be pinning…

~ Maggie J.

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