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.

The action against Spiral Foods has reached a proposed settlement of A$25 Million, with the court needing to approve the settlement to allow it to be finalised and settlement funds distributed to victims.

There is no admission of liability on behalf of Spiral but I understand that is standard in cases like this.

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For those reading who were unaware of the class action, and who were affected: I’m sorry but I don’t know what your avenues are. I suspect you could pursue Spiral Foods directly with the assistance of a law firm. Maurice Blackburn can’t help you personally pursue any action, but they may be able to offer you some general advice on whom to contact. Your best bet is to contact Maurice Blackburn directly. Contact them here.

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I’d like to thank all the people who provided me information (especially a particular person in NZ who had already done a lot of research), shared their stories, or just lent words of support.

I think the lead plaintiff deserves a special thanks for being prepared to put herself in that position: her suffering due to the use of Bonsoy is particularly horrible (as is the case for many others), so it took particular courage to go through all that: thanks Erin.

Lastly, thanks to Irina, Roisin and the team at Maurice Blackburn for taking this case on. Other law firms showed zero interest in this, and I think it speaks to Maurice Blackburn’s social justice conscience that they took this case on.

Many people were made gravely ill through the innocent use of a product which proclaimed to be healthy, and was heavily marketed as such.

From miscarriages, surgery, lifelong illness, loss of marriages, loss of careers and general illness, people were affected in all manner of ways. So to all of you who were affected, I hope the financial settlement lowers your burden, and I truly hope you can get as well as you can, as soon as you can.

Best wishes to you all.

Tim

Here are the salient links as they come to hand. Nice to see mainstream media report this after it’s all finalised rather than earlier (which might have helped some people find out about this before the class action closed).

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.
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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

Media: More soy milk victims come forward to join class action

Source: Maurice Blackburn
Hundreds of Australians have been made sick by Bonsoy milk containing high levels of iodine with over 300 contacting law firm Maurice Blackburn.

In late September, Maurice Blackburn issued proceedings on behalf of 25 people nationwide and now 293 more have come forward with 155 of these people joining the class action. A Brisbane woman who became critically ill after the birth of her first child is one of the 11 Queenslanders who have so far come forward.

“Every day more people are coming forward with some disturbing health problems,” said Maurice Blackburn Queensland principal Rod Hodgson.

“The scale of the problem is much bigger than originally thought.”

A number of clients have had to have their thyroids removed to control hyperthyroidism and will be on medication for the rest of their lives, some people have had serious thyroid autoimmune disorders allegedly triggered by Bonsoy.

“Women have had miscarriages or babies with abnormalities. Others have a range of chronic health problems that stop them from living, working and having normal lives.

The legal action is against the distributor of Bonsoy, Spiral Foods Pty Ltd, for breach of the Trade Practices Act and for negligence.

“Spiral Foods were responsible for a product containing a dangerous concentration of iodine. The health consequences of excess iodine are well known. This danger could have been easily foreseen, and its existence discovered with a simple test.”

Marketed as ‘the original and the best’ soy milk, Bonsoy was recalled worldwide shortly before last Christmas after it was discovered that one glass of the product contained seven times the safe dose of iodine. Before the recall, scores of people developed thyroid problems after consuming the soy milk. From at least 2003 Spiral Foods was adding kombu, an iodine-rich seaweed, to the soy milk.
There is strong medical evidence that excess iodine consumption causes thyroid conditions which can lead to severe chronic and acute illness.

“Our clients are health-conscious people – they drank this milk to improve their health, and they got sick- some critically ill. Some have quit their jobs and lost their businesses because of their illnesses. Others live with ongoing health problems and their lives have been devastated.”

“We are not talking about a factory-floor problem here affecting a certain batch of product – it was a very basic design flaw which affected Bonsoy milk produced over at least six years.

“Many more people are likely to be affected but may not realise it. Anyone who has experienced significant illness or was diagnosed with a thyroid condition after drinking Bonsoy milk between 2003 and 2009 could be eligible to join the class action,” said Mr Hodgson.

Maurice Blackburn investigations reveal that Bonsoy contained kombu (an iodine-rich substance added to improve the taste) from at least 2003 to the end of 2009.

“We 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 Mr Hodgson.

The case is going to a directions hearing in the Victorian Supreme Court on Friday 12 November which will provide a timetable for the legal action.

Those who believe they could be affected should call 1800 810 856

Background – Shannon Cotterill

Brisbane woman Shannon Cotterill drank Bonsoy for over four years prior to it being recalled from the market. During her pregnancy she drank at least half a litre most days. Shannon gave birth to her daughter Lucy in late 2009 and shortly after became very unwell with three hospital admissions including one for congestive heart failure. At the time she suffered weight loss, severe muscle weakness, a heart rate of over 150bpm, anxiety and significant hair loss.

I could not walk up stairs or hold Lucy, I had to give up breastfeeding. We had to move back home with my Mum and Dad because I was too sick to look after Lucy or do anything around the house. I’ve had to extend my maternity leave because I’m not well enough to return to work.

Doctors were unsure of what was causing her symptoms and it was only after the recall of Bonsoy that it occurred to her that her symptoms could be linked to the product.

Shannon’s ongoing symptoms include severe fatigue, muscle weakness and joint pain.

“When I have a minor illness, like a cold, many of my symptoms resurface and I find it difficult to recover,” she says.

Shannon believes there may be other people in Queensland who are affected by Bonsoy milk with high levels of iodine in it.

Shannon’s daughter Lucy now 11 months has some lumps in her body. Doctors are monitoring Lucy’s lumps.

“I put Lucy to bed every night, kiss her and tell her I love her and that I’ll see her in the morning, then I silently wish for her to not ever suffer because of this.”

Bonsoy – Medical Journal Australia paper

Thanks to the two people who sent this in to me.

I’ve uploaded the article as a pdf, downloadble here [113kb pdf].

Basically the article confirms the high levels of iodine in Bonsoy (refer table 2, page 3 of pdf) – 25,000-27,000 micrograms (ugrams/L) of iodine per litre.

Compare this to other soy milks which range from 15-30 ugrams/L. Yes, the difference is that large – nearly 1,000 times as much iodine.

Whilst a few people have pointed out the dangers of insufficient iodine, this article also makes the case for the need for testing of imported food for contaminants, in particular for iodine.

I’m actually shocked that something like Bonsoy (or anything really) could be allowed to be sold in Australia without testing, especially given our fairly strict food standards. I can’t even buy Clif Bars locally due one organic ingredient, but Bonsoy is ok? What gives?

There’s a bigger question here and it revolves around Food Standards Australia NZ, and also the 2003-2005 Vitasoy iodine case. Why was that case swept under the rug? To my mind, the whole Bonsoy debacle ought never have happened. You can’t tell me the soy milk industry in the Tasman region is so big that Spiral didn’t know about the Vitasoy case.

Anyway, at least we have some serious investigation and action on this whole schemozzle.

Information about the recall of Bonsoy, hyperthyroidism symptoms, the Bonsoy Class Action and more