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Thursday, February 1, 2007

Column: Forbidden Fruit (the language of food law)


On December 5, 2006, “trans fat” entered New York City’s legal lexicon. On that day, the Board of Health voted to ban this mysterious substance from all city restaurants, beginning July 1, 2007.

The upshot of this new law is that things like French fries, tacos, and doughnuts are going to be a lot harder to come by, at least in their beloved artery-clogging forms. But when prohibiting something it is always a good idea to call it by the least appealing name possible. So the new regulations don’t mention any food by name – just “foods containing artificial trans fat.”

In fact, the regulations don’t even use the word “restaurant,” opting instead for the bureaucratically bland “Food Service Establishment,” sometimes shortened to FSE.

Semantics make all the difference – a law that takes the zing our of your morning doughnut might cause a personal crisis, but one that merely takes the trans fats out of an anonymous FSE hardly seems worth a second thought.

Duck Duck Goose

Just a few months before the New York ban, the Chicago City Council took a decidedly less euphemistic approach when outlawing the sale of foie gras in that city – the aldermen came right out and called it by its name, which in French literally means “fat liver.” Perhaps they couldn’t think of a less appetizing term.

Oddly enough, the Chicago legislation goes on to define foie gras as a “rare delicacy,” which sounds positively flattering. Possibly the term “rare delicacy” was intended to convey a subliminal message: this stuff is eaten by fat cats!

In any event, Chicago, like New York, cannot bring itself to call a restaurant a restaurant. In the Windy City, residents must get their delicacies from “Food Dispensing Establishments,” a name that suggests one might just need a prescription to get a meal in Chicago. (Thank you and don’t forget to tip your dispenser!)

But is it English?

“Food law” – the branch of law that covers trans fat and foie gras – serves to protect the public against “adulterated” food. Today’s food laws take their immediate inspiration from the 1906 Food and Drug Act, but they have an ancient lineage. As long ago as 1607, an English legal dictionary listed the intriguing term “Ale-Tastor”: an officer appointed to supervise “the goodness of bread and ale or beer.” A tough job, but somebody had to do it.

Going back even further, some of the first laws in human history were food laws; namely, the kashrut or kosher laws of the Hebrew Bible. “Kosher” is also a modern legal term: New York State has regulated the sale of kosher foods since 1915. One of the first litigants to challenge that law argued that the word “kosher” is not part of the English language, making the statute impermissibly vague. The court, however, considered that argument to be more than a little meshuge; er, unsound.

When it comes to the language of food, the law sometimes plays fast-and-loose. Under English common law, for example, the word “fruit” traditionally included not only things like apples and pears, but also acorns and walnuts. That’s because ancient authorities stated that if a person rented land that had oak or walnut trees, then he or she would have a legal interest in the “fruits” of those trees.

In 1957, a British Court held that water was not a “drink” (because nobody drives under the influence of water). In California, a 1991 regulation defined “food products” to include seaweed but not chewing gum.

In 1973, an Australian statute rather arrestingly declared that “a reference to . . . eggs and egg pulp shall be construed as a reference to citrus fruit.” Not a sentence that one would want to see in a cookbook – unless citrus omelets are your sort of thing.

Litigation inspires linguistic creativity. Ten years ago, a British company was prosecuted for selling smoked trout under the label “smoked salmon.” The company’s lawyers argued that the word “salmon” is actually synonymous with trout, since rainbow trout belongs to the genus Onichorynchus – the same as Pacific Salmon. The defense took a turn for the worse; however, when the judge pointed out that the company had marketed its product as Atlantic Salmon.

Just Desserts

In 1916, a British court ruled that “ice cream is not meat” – putting an end to a debate that most people didn’t know existed. The question arose because a certain Mr. Berni had been arrested for selling ice cream on Sunday, in violation of an English law prohibiting commercial activity on the Christian Sabbath. In his defense, Berni argued that he fit within the “cookhouse exception” that allowed purveyors of “meat” to operate on Sundays. The judge, although sympathetic to Berni’s plight, did not buy the argument that selling ice cream was the same thing as selling meat. Berni was convicted under the Sunday Observance Act. Perhaps it should have been called the Sundae Observance Act.

Speaking of ice cream, one of the most lavishly defined terms in American food law is “frozen dessert.” The U.S. Food and Drug Administration has its own definition, as does each state; however, there has been a movement toward uniformity among the states so that – in the stirring words of New York’s statute – “there may be free movement of frozen desserts between the states.”
Looking at New York’s definitions, we see that “frozen dessert” means ice cream and frozen yogurt, of course, but with curious specificity also includes “French Ice Cream” – and presumably Freedom Ice Cream while we’re at it. Under the frozen dessert umbrella, one can find “mellorine,” stuff that looks like ice cream but is made from non-dairy fats, and even “bisque tortoni,” an Italian frozen custard that appears to have been popular in the 1950’s and is, one can only assume, a rare delicacy these days.

Best of all, the frozen dessert laws cover the all-important topic of “quiescently frozen confection” – that’s the legal term for a popsicle. The phrase refers to the fact that popsicles are frozen “at rest” (quiescently), without the churning involved in ice cream making. A fudgsicle, in case you were wondering, is a quiescently frozen dairy confection. In other words, it has some milk in it.

Perhaps the most hotly-contested word in Food Law today is “organic.” Organic foods have become a multi-billion dollar industry, leading to intense debate about the right to use the term “organic” in food packaging. The key issue is whether organic foods can contain any synthetic compound – even such seemingly harmless materials as baking powder.

Current federal regulations allow for certain non-organic ingredients in food labeled “Organic,” but not in food labeled “100 Percent Organic.” When either label is used, however, federal law helpfully requires that “the product must be produced and handled without the use of . . . Sewage sludge.” One begins to see what all the fuss is about.

Generally, food laws protect the public from unhealthy food, but every once in a while, the law steps in to protect food from people. In the 1990’s, thirteen states adopted “food disparagement” laws, also known as “veggie libel” laws. These are statutes meant to protect agricultural products – a group with especially tender feelings – from false and disparaging remarks.

In 1998, a group of Texas cattlemen sued Oprah Winfrey under the Texas food disparagement law for airing a show about mad cow disease. During the show Winfrey vowed not to eat another hamburger, causing beef sales to plunge. The trial court, however, ruled against the lawsuit, and the Fifth Circuit affirmed. Probably the court thought that the cattlemen were trying to milk their unsold meat for all it was worth. And that is definitely not kosher.



(This column originally appeared in the February 2007 issue of New York Law Journal Magazine)

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