Bonsoy Class Action: case closed (how the system failed)

It’s been a very long time.

In December 2010, I was racing at the Tour of Bright and noticed my top-end climbing on the bike was “off”.

Something just wasn’t right.

In the preceding months, Family members had commented I looked “sick” and wife’s grandmother had commented I looked “too thin”.

Ha-ha-ha. As a cyclist? Badge of honour. I was at 54kg and flying.

But that Bright race? Something was wrong.

So I went to the doctor and explained what was up.

He was a cyclist too, so duly sent me off for routine full blood panels.

I got a call 48 hours later that would change my life, and the lives of hundreds of other people.

A précis of the phone call was: “there’s something very wrong with your thyroid, you need to come back in tomorrow.”

From there, after a referral to an endocrinologist and a battery of tests, it was determined I was suffering from hyperthyroidism.

It explained my 54kg (5’7″, down from a healthy 63kg racing weight) and “bug-eyed” appearance. And on reflection, the black outs I’d experienced mid-sleep when I’d gotten up to go to the loo in July when snowboarding at Hotham – one time smashing my head on the toilet – weren’t normal. This diagnosis explained all this.

(A good example of how men brush medical stuff off.)

By chance, a mate had shot me an article in the paper about a Bonsoy recall, due to the suspect link to a hyperthyroidism cluster.

Bonsoy’s distributor (let’s call them the owner), Spiral Foods, disavowed any link. You can see their media updates and passive aggressive denials here: https://thebonsoydebacle.wordpress.com/category/spiralmediaupdates/

Spiral’s denials made my blood boil.

So I started thebonsoydebacle.com.au website and started digging.

Before I knew it, I had scores of emails from people who had experienced the exact same issue after consuming Bonsoy.

I knew there was more to this than a small cluster, because Bonsoy was marketing as a healthy alternative to milk and LOTS of people drank it.

A person from NZ sent me a ton of info from research she’d done after an earlier suggestion Bonsoy made people ill (circa 2006 I think).

I contact Slater Gordon and was told I had no case.

So I contacted Maurice Blackburn and shared details of the by now hundreds of contacts I’d had from affected people from AFL footballers to C-suite executives at major corporations. It was nuts. The stories were heartbreaking: failed marriages, lost careers, broken relationships. Some of the saddest stories of all included a mother not being able to hold her new baby due to being too sick.

Maurice Blackburn moved quickly, found a lead plaintiff and got to work.

What followed was 6 years of methodical information-gathering and court proceedings.

Interestingly, the case received little mainstream media coverage besides an occasional newspaper article. I was quite honestly shocked that shows like The Project and other SJW (social justice warrior) publications weren’t all over this. After all, hundreds of people were party to the action. Had this been a pork roll or peanut butter salmonella poisoning, it would have been wall to wall coverage with coverage from the likes of The Today Show.

It truly was one of the most puzzling aspects of the case, especially since it was settled for A$25Million—one of the biggest food-related class action settlements in Oz if I am correct.

Yes, in the end, Spiral and its co-defendants settled the action.

There were some really frustrating parts about this case: most pointedly, Spiral’s behaviour. Also, more obviously, was the regulator’s (system’s) failure in managing the recall. And lastly, the reaction of those not affected.

The most frustrating aspect about this was the actions and attitude of Spiral. Their, what I would call, nefarious and underhanded behaviour made people ill, and though they have not got off scott-free (their insurance premiums will increase I’m sure), considering the damage they’ve done, I see them as having escaped pretty lightly. They’re back on shelves and millions of people are none-the-wiser. (I recommend Vitasoy as an organic, non GMO alternative that’s also WAY cheaper.)

I would also say that the attitude of some cafes and Bonsoy fans was truly bizarre. After the product was recalled in December 2010, I was at a cafe in Chapel St, Toorak, and they were still serving it. When I pointed out it had been recalled, the cafe feigned ignorance. I suppose they might not have known about it, in which case, where was the regulator? As I said before, had this been a contaminated peanut butter product, Coles/Woolies would be all over it. This stuff was making people gravely ill and these clowns were still serving it?

I also found it bemusing that people who drank Bonsoy and were unaffected spent time commenting on the site about how the victims were wrong, were money grabbers, were sick from something else (despite the expert opinion of endocrinologists and the medical community, and of course, the findings of the legal experts). I spent a lot of time, probably pointlessly, responding to these people. I might point out that saying that since you drank Bonsoy and didn’t get sick from it, then it mustn’t be the Bonsoy, is like saying “I smoked and didn’t get lung cancer ipso facto smoking doesn’t cause lung cancer”. Plainly laughable.

All of that aside, after a long wait, and with untold damage to people’s lives, and after a year of administration, money was disbursed before Christmas 2016, shutting the door on what was a personally horrific experience.

The absolute worst part of this is lots of us don’t know if we’ll be affected in the future. It’s possible we’ll experience thyroid or other problems in the future, but that will be it—the case is closed.

I could write thousands of words about this, but I’ll close by thanking Erin for taking on the lead plaintiff role. You have our deep gratitude, Erin. I’d also like to thank Irina and the team at Maurice Blackburn for taking this on. Their application and hard work was unending. Yes, Maurice Blackburn made money out of this, and why shouldn’t they. They represented 100’s of people where no one else would, and got people compensation. Thanks Irina and the team.

Thanks to everyone who wrote in to provide their personal stories, encouragement or even evidence/research (you know who you are).

And lastly, thanks to wifey Kate. She put up with a very sick and cranky Timbo and we lost some quality time together.

Cheers,

Tim

Bonsoy class action update: settlement assessments going out

It’s my understanding that many Bonsoy class action assessments are now being posted out with a majority of assessments calculated and many posted out. The assessment process is still continuing for some time. So if you have not received yours, rest assured it is being actioned and there is no need to contact Maurice Blackburn.

The values are not yet final, but it’s one more step to a conclusion.

This is a huge relief and has been a long time coming.

It’s been over 5 years since all this came to light and has been an incredibly long, frustrating road.

Whilst I am sure some people will be disappointed with their settlements, it bears remembering that some people were made incredibly ill from this, or lost jobs, or much worse.

So wherever you are, I hope this brings you some measure of resolution.

As an aside, the job of this website is almost done.

Due to the costs of maintaining it, in the near future, I will archive it on WordPress.com

Bonsoy Class Action: action against Spiral Foods settled

I started this website almost 5 long years ago to try and bring attention to the absolute debacle that was the Bonsoy recall of December 2009 and Spiral Foods’ absolute dismissal of the possibility their product was making people gravely sick.

I started this website with the intent that affected victims could find each other, band together, and gain justice through legal action.

It was this site’s mission to hold someone accountable.

Today I’m glad to say that it appears we might be close to getting that justice, with an announcement that the Bonsoy Class Action against Spiral Foods has settled.

Continue reading “Bonsoy Class Action: action against Spiral Foods settled”

Newsflash: Bonsoy never made anyone sick

I sure am glad James L was on hand to email me and let us know all the endocrinologists, GPs and the hundreds of people involved, plus the lawyers, were wrong: Bonsoy doesn’t cause anyone’s illness.

Here’s the evidence:

All I can say is: Nonsense! I have being drinking Bonsoy for years and never had any dramas. As a vegan, I have had 1000s of litres over the years. If people had thyroid issues, then there was something wrong with them to begin with. Don’t blame Bonsoy for your health troubles.

So there you have it. James has been drinking Bonsoy and has never had any dramas. He’s had thousands of litres over the years (as a vegan, no less).

I guess my Bonsoy-related symptoms clearing up after I stopped having it, and post treatment, was all a strange coincidence.

Glad we cleared that up.

Oh wait. We didn’t.

PS: this is sarcasm.

Bonsoy Class Action Court Date 19th May 2014

After a long wait, and a couple of delays to trial dates, this just in:

The trial date for the Bonsoy Spiral Foods class action is still set for the 19th May 2014. It is estimated that the trial will run for approximately four weeks.

At the trial the Court will determine the liability of the three defendants, Spiral Foods Pty Ltd, Marusan-Ai Co Ltd and Muso Co Ltd. The Court will also determine the personal claim of the lead plaintiff.

Media Release from Maurice Blackburn re: statement of claim

This media release has just gone out from Maurice Blackburn.

Class action widens with allegations Bonsoy companies ignored iodine test results

Spiral Foods and the two Japanese companies that manufactured and exported Bonsoy soy milk ignored test results of the product and multiple consumer concerns, according to class action lawyers acting for over 600 people made ill by drinking the milk.

Maurice Blackburn Lawyers has widened the claims in its class action and filed an amended statement of claim in the Victorian Supreme Court.

Maurice Blackburn, which began the case in 2010 against the Australian brand owner Spiral Foods, has now extended the claim to include the two Japanese companies that manufactured and exported the product to Australia – Marusan-ai Co Ltd (manufacturer) and Muso Co Ltd (exporter).

The statement of claim alleges that Bonsoy had excessive iodine levels since mid-2003, when Spiral Foods requested that Marusan-ai and Muso reformulate Bonsoy, using iodine-rich kombu as an alternative means of adding salt.

It is alleged that Spiral Foods, Marusan-ai and Muso did not consider the safety consequences of the reformulation, despite widely available information about potential dangers of excessive kombu consumption.

The amended statement of claim also alleges that a test in mid-2006 revealed that Bonsoy contained extremely high levels of iodine, but the three companies did not act on the test results and then dismissed repeated consumer concerns about possible iodine content of the product.

Irina Lubomirska, Maurice Blackburn Senior Associate said:

“We say that these three companies had test results in mid-2006 which showed that Bonsoy contained extremely high levels of iodine, but they did nothing. On at least three occasions they were contacted by customers expressing concerns about iodine content of Bonsoy and they did not act to ensure the product was safe. They have breached consumer protection laws in both Australia and Japan.

“There was a wealth of information available about appropriate iodine consumption. Even a five minute internet search would have revealed that the levels of iodine found by the test in 2006 were dangerously high and could cause a range of health problems. None of the three companies did anything to ensure that Bonsoy, which was marketed and sold as a premium health-food soy brand, was in fact safe to consume.

It was not until Christmas 2009 that Bonsoy was recalled, after health authorities discovered that one glass of the product contained seven times the upper safe dose of iodine for adults. By that time the defective product had been on the market for six years and hundreds of Bonsoy consumers suffered thyroid illness as a result.

Because the product was marketed as healthy, prior to the recall some consumers increased their Bonsoy intake when they became ill, believing that it would help them with the health problems they were experiencing,” said Ms Lubomirska.

Maurice Blackburn will be seeking date for trial when the matter returns for directions hearing on 8 March, 2013.

“We will be vigorously pursuing the legal action against the three companies and are confident of proving all allegations at trial. We have been contacted by approximately 600 victims and believe there is a very good case for compensation for medical expenses and loss of income, as well as pain and suffering and other losses for many of our clients,” said Ms Lubomirska.

Maurice Blackburn is conducting the Bonsoy class action case on a no-win no-fee basis. The class action is still open for people across Australia.

Update on the Spiral Foods Bonsoy Class Action

It’s been a long time coming. I’ve heard little tidbits, but here’s the latest update from Maurice Blackburn.

Update

Mediation
Mediation in this class action took place on 23 October 2012. The mediation was unsuccessful and the action did not settle. We will therefore be progressing the procedural steps described below and preparing the class action for trial.

Amendments to claims
Following the mediation, we received instructions to make claims against the two Japanese companies that manufactured and exported Bonsoy to Australia. The two companies are Marusan-ai Co Ltd (manufacturer) and Muso Co Ltd (exporter). Spiral Foods brought these companies into the proceeding, but the plaintiff had not made claims directly against them.

However, after review of discovery it became apparent that there are good claims against the two Japanese companies and that these claims should be made as Spiral Foods may not have adequate insurance to cover damages for the entire class. It also became apparent that the claims made against Spiral Foods can be strengthened.

We have obtained evidence that the iodine problem with Bonsoy occurred when the product was relevantly reformulated in mid-2003 at the insistence of Spiral Foods, in order to enhance its marketing strategy [Ed: my highlighting]. The reformulation involved salt, which was previously added to Bonsoy, being replaced with the kombu extract that was ultimately found to be the source of large amounts of iodine. Spiral Foods, Muso and Marusan-ai, were all involved in and aware of the reformulation of Bonsoy and did not direct their minds to possible risks of the reformulation.

In mid-2006, after a customer expressed concerns about iodine levels in Bonsoy, Bonsoy was tested and was found to have the same iodine levels as ultimately found at the time of the recall (that is 30mg/L). Spiral Foods, Muso and Marusan-ai were all aware of the results, but took no steps to ensure safety of the product.

Further concerns about iodine levels in Bonsoy were expressed to Spiral Foods in 2007 and 2009 and were communicated to Muso and, in 2009, to Marusan-ai, but none of the companies did anything to check whether the product was safe for consumption and dismissed customer concerns.

In light of this evidence, which was not available at the time the action started, we believe there is a strong case against Muso and Marusan-ai, as well as Spiral Foods and will vigorously pursue the action against all three companies.

Further procedural steps
Consequently, on 26 October 2012 we sought and obtained leave from the Court to amend the allegations against Spiral Foods to reflect the matters set out above and also to join the two Japanese companies as defendants and to make direct claims against them.

We are in the process of drafting the relevant documents and will complete this step by 21 December 2012. The three companies will have until the end of February to file their defences to the amended claims.

We will then ask the Court for a speedy trial date. We do not yet know what date the Court will give us for trial, however we hope to obtain a trial date in the second part of next year.

We anticipate updating our clients on the progress of this case in the New Year.

My comments

All of this is standard legal procedure, but a few things stand out for me.

Firstly, as highlighted by myself above, this phrase stands out; “in order to enhance its marketing strategy”.

A particularly galling aspect about all this has been Spiral’s attitude toward the recall and people’s health (see some examples of this in the language used in their media releases).

Spiral markets – HARD – the fact that Bonsoy (and their other products) are really healthy. I’ve included a screen grab (current as of Nov 7 2012) from their website where they clearly state this.

Screen grab from Spiral website

Here we have a company replacing sodium with an alternative to maintain the salty taste.

Here’s a company who were notified of consumer concerns regarding the high levels of iodine in their products at least 3 times in 2006, 2007 and 2009.

A responsible company would have taken this seriously and tested the product against WHO recommendations (which Bonsoy exceeded).

Spiral Foods, however, did not do this.

As far as I am concerned they abrogated their duty of care, as did the Japanese companies involved.

It also appears as though this formulation goes back to 2003.

The evidence is pretty damning, I think. And it certainly makes an absolute mockery of Spirals marketing message of safe and healthy products. It is also a damning indictment on the level of seriousness they place upon health and safety of their customers.

So, what next?

My understanding is the case will proceed to trial and a statement of claim will be completed by end of December.

I suspect at that point the full extent of what actually happened, and who knew what, and when will become apparent.

“Can I still join the class action?”

You sure can. Read this post to find out how to join the Bonsoy Class Action.

Spiral Foods Court Action: Update!

I know it’s been a LONG time since I had an update – slllllllowly wind the wheels of justice.

Anyway, here’s what I know.
—-
The Bonsoy class action had a directions hearing last Friday in the Supreme Court. As part of the orders made, the case has been referred for mediation, which must happen by end of October this year.

As you may (or may not) know, Spiral Foods brought (joined) the Japanese manufacturer (Marusan-ai) and exporter (Muso) into the court case, claiming that they supplied Spiral with bad product. In the defences that the manufacturer and exporter filed, they say that Spiral contacted them in mid-2006 and asked about iodine levels in Bonsoy because of a query by a concerned consumer.

The manufacturer tested Bonsoy and found that it had pretty much the same iodine levels as were found at the time of the recall – ie very high. They say that those test results were then provided to the exporter and to Spiral Foods.

So it looks like the problem existed for years and at least as far back as 2006 Spiral knew exactly how much iodine Bonsoy contained.

My comment: what this to me at least shows, is that Spiral has a case to answer. They pretty much knew that Bonsoy was high in iodine as far back as 2006. It’s my understanding the original query to the manufacturer was triggered by an ill consumer.

This poses the question: if Spiral asked for an iodine level test, due to a query from an ill consumer, and were informed that the product was high in iodine, wouldn’t this raise some serious concerns in Spiral to try and mitigate any potential issues?

I will have more news as it comes to hand.

September 14 update on the class action

I received a letter from Maurice Blackburn today; apparently everything is moving apace. Many of you who are joined to the action would also have received it.

Slowly move the wheels of justice.

We refer to our previous update letters and write to further update you on the progress of this class action.

Court process status
The defendant, Spiral Foods, is joining the Japanese manufacturer and distributor of Bonsoy into the proceeding, alleging that the Japanese companies were negligent in manufacturing and supplying Bonsoy with excessive iodine content.

This has resulted in a several months delay in the proceeding because of the requirements for serving the court documents on overseas companies. We anticipate that the process of bringing these companies into the proceeding will conclude in the next month or so.

The Court will then allow the Japanese companies to file their defences and is likely to order them to produce documents relating to the manufacture of Bonsoy. We anticipate that once this is done, the parties will engage in mediation in an attempt to settle the proceeding.

If no settlement is reached, we would expect the proceeding to go to trial in the later part of next year.

We will keep you updated on the court process.

Assessing individual claims
Notwithstanding the delay in the Court process, we have commenced assessing individual claims of our clients to ensure that those who may become eligible for compensation, as a result of the class action settling or succeeding at trial are able to obtain that compensation as promptly as possible.

March 28 Update on Bonsoy Class Action

I’ve received an update on the class action from the lawyers, here we go!

There was a case management conference/directions hearing on 11 March 2011. Everything there was done by consent and we now have a timetable for the next few months.

Where the proceeding is basically at is:

  • We filed our statement of claim.
  • Spiral filed their defence.
  • There are no challenges to either of those documents or to the action going ahead as a class action.
  • Spiral also brought proceedings against two japanese companies – the manufacturer and exporter of Bonsoy. What Spiral is trying to do there is, if it is found liable to those harmed by Bonsoy, it wants to recover all or some of the damages it will have to pay from those Japanese companies. That’s a proceeding between Spiral and those companies, we are not involved in it, although it will probably run in parallel with our action.
  • On Friday we will publish what is known as an “opt out” notice in various newspapers around Australia. It’s part of the class actions regime. It lets people know there is a class action on foot and allows them to leave or “opt out” of the class action if they want to. If a person opts out, they will not be bound by the result of the class action (and so will NOT be entitled to any benefit from the class action) but will be able to bring their own proceedings. The important bit there is, if a person wants to stay in the class action they don’t have to do anything. It is only if they don’t want to be part of it that they have to take a step and send in a document to the Court. Staying in the action doesn’t involve any costs or risks.
    That’s all explained in the notice itself.
  • There have also been orders made for some initial discovery – basically and exchange of relevant documents – that’s supposed to happen in mid-April.
  • After that we can go back to Court for further directions.
  • There’s going to be an update letter going out [Ed: covering the opt-out and other items].

Stay tuned for more news.

Tim