Archive for the ‘Food’ Category
posted by Frank Pasquale
I was honored to see Prof. John Banzhaf weigh in on a recent post on wellness programs. That post suggested parallels between the addictiveness of tobacco, and that of many food products. Little did I know the NYT was about to publish a blockbuster article on exactly that issue:
[In a 1999 meeting of food industry leaders,] [t]he first speaker was a vice president of Kraft named Michael Mudd. . . . As he spoke, Mudd clicked through a deck of slides — 114 in all — projected on a large screen behind him. The figures were staggering. More than half of American adults were now considered overweight, with nearly one-quarter of the adult population — 40 million people — clinically defined as obese. Among children, the rates had more than doubled since 1980.
Mudd then did the unthinkable. He drew a connection to the last thing in the world the C.E.O.’s wanted linked to their products: cigarettes. First came a quote from a Yale University professor of psychology and public health, Kelly Brownell, who was an especially vocal proponent of the view that the processed-food industry should be seen as a public health menace: “As a culture, we’ve become upset by the tobacco companies advertising to children, but we sit idly by while the food companies do the very same thing. And we could make a claim that the toll taken on the public health by a poor diet rivals that taken by tobacco.”
Illustration: Via Engadget article on interactive ad patents.
posted by Deven Desai
Recent readings and the time of year lead me to two lessons. First, for those of us who can, let’s give to those in need. Second, let’s use science, data, and reason to guide policy. Extreme views for or against modes of farming and issues of the environment lead to mistrust, failures, and, in this case, starvation. Starvation should not be an issue on the table for the 21st century. Questions of efficacy and safety can be addressed. The information is here. The time to use it is now.
Maybe it is the time of year when food feasts like Thanksgiving and the season of holiday giving make me think about simple, direct need and especially hunger. Whatever the reason, today that fundamental issue is upon us more than ever. The Times reports “Millions of American schoolchildren are receiving free or low-cost meals for the first time as their parents, many once solidly middle class, have lost jobs or homes during the economic crisis, qualifying their families for the decades-old safety-net program.” The numbers are stark: “The number of students receiving subsidized lunches rose to 21 million last school year from 18 million in 2006-7, a 17 percent increase, according to an analysis by The New York Times of data from the Department of Agriculture, which administers the meals program. Eleven states, including Florida, Nevada, New Jersey and Tennessee, had four-year increases of 25 percent or more, huge shifts in a vast program long characterized by incremental growth.” More than 3 years ago I wrote about the problems of a stigmatized school lunch program. I don’t know whether that system has evolved, but “apparently many of these formerly middle-income parents have pleaded with school officials to keep their enrollment a secret.” Society’s tendency to look down on the less fortunate is absurd. I am not sure what can be done about that. But perhaps we can reconnect with efforts to provide food across the world. The hard part could be the tensions between industrial farming and the organic movement. Yet, good science and data could show us a way out.
A Long Now Foundation seminar by Pamela Ronald and Raoul Adamchak Organically Grown and Genetically Engineered: The Food of the Future shows that rather than combat, we can sue data and reflection to marry these efforts. Sustainable food should: Provide abundant safe and nutritious food…. Reduce environmentally harmful inputs…. Reduce energy use and greenhouse gases…. Foster soil fertility…. Enhance crop genetic diversity…. Maintain the economic viability of farming communities…. Protect biodiversity…. and improve the lives of the poor and malnourished. (He pointed out that 24,000 a day die of malnutrition worldwide, and about 1 billion are undernourished.)
That is a tall order. As the speakers noted organic farming works well and mitigates the problems of pesticides, (Data point: “Every year in the world 300,000 deaths are caused by the pesticides of conventional agriculture, along with 3 million cases of harm.”). But organic techniques can’t address all the diseases and pests out there and “Its yield ranges from 45% to 97% of conventional ag yield. It is often too expensive for low-income customers. At present it is a niche player in US agriculture, representing only 3.5%, with a slow growth rate suggesting it will always be a niche player.” Genetic engineered plants (often not allowed under current regulation) can fill the gap.
According to the report of Dr. Ronald’s part of the talk, “One billion acres have been planted so far with GE crops, with no adverse health effects, and numerous studies have showed that GE crops pose no greater risk of environmental damage than conventional crops.” Examples include, cotton, papayas, and rice. “About 25% of all pesticide use in the world is used to defeat the cotton bollworm. Bt cotton is engineered to express in the plant the same caterpillar-killing toxin as the common soil bacteria used by organic farmers, Bacillus thuringiensis. Bt cotton growers use half the pesticides of conventional growers. With Bt cotton in China, cases of pesticide poisoning went down by 75%. India’s cotton yield increased by 80%. Other pest management techniques are needed but genetics can do much work. Hawaiian papaya was going extinct from ringspot virus, but a GE solution inoculated the fruit and the saved the industry. As I have written, basic food supply is a huge problem and rice is a key example of that. Dr. Ronald’s work on rice is impressive. The data: “Half the world depends on rice. In flood-prone areas like Bangladesh, 4 million tons of rice a year are lost to flooding—enough to feed 30 million people.” Her work developed “a flood-tolerant rice (it can be totally submerged for two weeks) called Sub1. At field trials in Asia farmers are getting three to five times higher yield over conventional rice.”
Seems compelling to me.
posted by Josh Chafetz
… the best, of course, being the restaurant critic for the New York Times. I’m just putting that out there, since they’re going to need a new one.
posted by David Fagundes
There is a great hot dog joint here in Los Angeles called Pink’s Famous Hot Dogs. I love their delicious chili dogs. I am a huge fan of the location’s classic L.A. style (parts of the best film ever made were filmed on the site, and there’s a probably false rumor that Orson Welles got obese because he was addicted to Pink’s chili dogs). They’re located a quick drive from where I work. And I never, ever go there.
What explains this apparently counterintuitive result? Why don’t I patronize this nearby beloved eatery more often, or at least some of the time? My reason is simple: The wait is way, way too long. Pink’s doesn’t just have a 15-20 minute wait at meal times like many local eateries. Rather, at almost any time of day, the line to get a Pink’s chili (or any other) dog snakes through a few switchbacks, up La Brea, and back into their parking lot, frequently lasting a good hour. At peak times, the line has been said to approach 1.5 or two hours (and here, I’m going on word of mouth because, as you’ll gather from this post so far, I’m deterred by the long line and haven’t actually experienced it).
Classic L&E would suggest that this isn’t a paradox at all, and that the line merely reveals the unusually strong preferences of the public for Pink’s chili dogs, meaning that they really are worth the interminable wait. And while this is an empirical question, and while tastes are subjective and highly variable, I can’t buy that account. I can understand waiting in line for hours, say, to obtain critical medical services, or in a bread line in Soviet Russia where the only alternative is starving. I can even imagine waiting in line for a couple hours to get tickets for a once-in-a-lifetime chance to see your favorite performer appear live. But for chili dogs? No way. Something more than simple preference satisfaction has to be going on.
So what explains the Pink’s paradox? Why is it that demand for these chili dogs continues to grow, even as the experience costs and actual costs associated with its food increase at an even greater rate (and appear to swamp the benefits of eating even the tastiest chili dog)? And what does this tell us about the rationality (or irrationality) of line-waiting generally? I discuss possible conjectures responding to each of these questions below the fold.
posted by Nate Oman
I recently taught Sherwood v. Walker, the famous case involving a Michigan cow named Rose 2nd of Aberlone, as well as a number of other mistake cases in contracts dealing with cows. I’ve got bovine jurisprudence on the mind. It seems that the same is true for Eugene Volokh, who recently noted a case involving a “church owned cow.” The cow in question was owned by the Mormon Church and seems to have negligently collided with a motorcycle. In the interests of extending our jurisprudential understanding of cows, I can’t resist adding another twist to the church-owned cow story.
The Mormon Church’s involvement in agriculture is a legacy of the nineteenth century practice of Mormons paying tithing in kind to the church. As a result of this practice, in the nineteenth century, the church acquired large herds of cattle as well as other food stuffs. It then issued so-called “tithing scrip,” which was in effect private currency. The holder of scrip could redeem it for foodstuffs, including beef, at church storehouses. The scrip then circulated as money, in effect providing liquidity to the perpetually cash starved economies of the Intermountain West in the nineteenth century. Because the currency was in effect backed by cows, however, it was subject to some odd monetary pressures. For example, when a particularly harsh winter killed off a large proportion of the church’s cattle herds, it was forced to reduce the purchasing power of tithing scrip at church storehouses because there simply wasn’t as much beef available as previously. The result was price inflation as the value of the scrip declined.
As part of its efforts to raise revenue during the Civil War, the U.S. government passed a series of banking acts designed to decrease government borrowing costs. All nationally chartered banks were required to hold their reserves in the form of treasury bonds, and non-federally chartered institutions were hit with a heavy tax on the notes that they issued. The effect was to slap a punitive tax on any bank depositor who did not loan his or her savings to the U.S. government. During the 1880s federal prosecutors in Utah decided that the various scrip-issuing bodies of the Mormon church were subject to this tax, and demanded decades of back taxes, eventually killing off the scrip and replacing it with currency issued by federally chartered banks.
Taxes. Regulation. Inflation. Cows. Some things never change.
posted by Darian Ibrahim
I caught a few minutes of HBO’s new documentary Death on a Factory Farm the other night. It focuses on an undercover investigation of a hog farm in Ohio, the graphic footage of abuse it revealed, and the legal case that followed. It was so disturbing that I actually had to turn it off, but then again I’m a vegetarian – it’s those who are not that need to watch.
posted by Jason Mazzone
Another report on hyperparenting. The New York Times reports the emergence of children with such strongly instilled food concerns they are afraid to eat. Doctors have coined the term orthorexia for the phenomenon.
Recently, I passed a mother and child of about 3 or 4 years old standing before a pretzel vendor. Here is the conversation I overheard:
Child: “Mommy, I want a pretzel! I want a pretzel!”
Mother: “Jennifer, a pretzel is 300 calories. Are you sure you want to spend 300 calories on a pretzel?”
Child: “I want a pretzel! I want a pretzel!”
Mother: “Jennifer, I want you to think about this. If you spend 300 calories on the pretzel, you won’t have those calories left for later.”
Child: “I want a pretzel! I want a pretzel”
I don’t know whether the child received the pretzel. But whatever happened to “No, you’ll spoil your appetite”?
posted by Jason Mazzone
I like advertising. I think Times Square at night is beautiful. And that the 1950s ad man was an artistic genius. I’m not so sure, though, about Disney Farm Fresh Eggs. These eggs come with Disney characters stamped on the shell. Disney also sells a mold so when you fry up your eggs they look like Mickey Mouse. No image of the battery farm chicken who laid the egg.
posted by Frank Pasquale
Rising food prices are becoming a global problem. This article from the Economist summarizes the wide-ranging impact of the crisis. Josette Sheeran, head of the UN’s World Food Program, says that the rising price of food is not just causing hunger for the poorest, but has effects throughout the income scale:
For the middle classes it means cutting out medical care. For those on $2 a day, it means cutting out meat and taking the children out of school. For those on $1 a day, it means cutting out meat and vegetables and eating only cereals. And for those on 50 cents a day, it means total disaster.
And what might disaster look like? A few hundred miles from the US, dirt has become a new satiation option:
In Haiti, where three-quarters of the population earns less than $2 a day and one in five children is chronically malnourished, the one business booming amid all the gloom is the selling of patties made of mud, oil and sugar, typically consumed only by the most destitute. “It’s salty and it has butter and you don’t know you’re eating dirt,” said Olwich Louis Jeune, 24, who has taken to eating them more often in recent months. “It makes your stomach quiet down.”
The Economist has some good ideas for responding to the crisis, though I wish they’d take more seriously inequality as the main underlying cause of the crises here. Oxfam has put out an “Action Alert” to reform the U.S. farm bill:
[C]urrent price increases are causing widespread hunger for millions of poor people. Yet US food aid policies require all food to be shipped halfway around the world, draining critical aid money on needless costs. Congress could change this policy in the coming weeks, and we need your action immediately.
Congress is still debating the Farm Bill, the legislative package that governs our food and farm policy, including international food aid programs. A simple change to the law—to allow some cash for local purchases of food—would immediately increase the efficiency of food aid programs and feed more hungry people.
Photo Credit: El Ramon.
posted by Daniel Solove
AALS is going to be in New York City this year, and I can’t wait. I used to live in New York City when I taught at Seton Hall Law School. For the fellow foodies among us, I thought I’d recommend a few of my favorite restaurants and food destinations:
9 West 53rd Street (between Fifth and Sixth Avenues)
Located next door to the Museum of Modern Art, The Modern is an amazing visual and culinary experience. It has a beautiful bar and a wonderful view of the museum’s gardens. The food is creative and consistently wonderful. I typically get the tasting menu, and every course is a winner. The service is attentive without being intrusive. This place is as close to perfection as you can get.
65 E. 55th St. (near Madison Ave.)
Aquavit‘s Scandinavian fare is spectacular. I never knew herring could be so good until I tried the amazing herring dish, in which herring comes in several varieties and preparations. It comes with a small glass of beer and an aquavit (a flavored liquor drink). All of the seafood is wonderful.
204 East 43rd Street (between 2nd and 3rd Avenues)
Sushi Yasuda is my favorite sushi restaurant in NYC. For sushi, it is better than the famed Nobu (which although famous for sushi, stands out more for its tapas-style small seafood dishes). And unlike Nobu, the reservationist at Yasuda actually picks up the phone! Chef Yasuda is a sushi purist (no dragon rolls or spider rolls here), but his sushi is all remarkably fresh and creamy. He doesn’t just offer tuna or salmon or eel, but has scores of different kinds of each type of fish, caught from all over the world. The best thing to do is get a seat at the sushi bar with Chef Yasuda himself, who will tell you the life story of every fish and take you on a sushi-tasting adventure like no other. Beware, though, that the sushi slides down your throat more easily than a scoop of pudding, and you’ll quickly lose track about how much you’ve eaten, to the chagrin of your dean.
2165 Broadway (between 76th and 77th Street)
New York, NY 10024
The best gelato I’ve tasted outside of Europe. Imagine if you could condense all the creaminess and yumminess of ice cream into a concentrated dose half the size, and then you can begin to imagine what this tastes like.
Zabar’s + H&H Bagels
80th & Broadway
The best bagel and lox combination is a hot H&H bagel with fresh Nova from Zabar’s. Don’t get the prepackaged lox — be sure to order it from the counter. And then go across the street to H&H to get your hot bagel.
Other recommendations: Babbo, Eleven Madison Park, Union Pacific, Bolo, Le Bernadin, Fresh, Craft, Nobu, Tabla, Tomoe Sushi
posted by Jeremy Blumenthal
The last year or so has seen a fascinating movement in the kosher food world-the development of the “hekhsher tzedek” -variously translated as a “righteous seal” or “Justice certification.” Initiated largely by the Conservative Jewish movement, the certification is seen as a complement to the traditional kosher certification, which attests that the food in question has been prepared according to Jewish ritual law. According to the United Synagogue of Conservative Judaism, the seal would certify that “food and meat processors have met a set of standards that determine the social responsibility of kosher food producers, particularly in the area of workers’ rights.” Thus, kosher food could receive two certifications-one showing that it is ritually kosher, one showing that the workers in a particular plant were treated ethically, fairly, and legally. The USCJ was to consider a resolution establishing the certification at its December conference last week. It was expected to pass easily, though I have not seen follow-up reports.
The idea is controversial, for a number of reasons legal and otherwise. One is motive-some see the move as motivated by antipathy toward one of the larger kosher facilities, AgriProcessors, in Iowa, where worker mistreatment and unsafe conditions were alleged in the spring of 2006.
Another set of issues concerns the proper purviews of government, religious, and lay groups: objections have been raised that responding to such worker treatment is the role of government agencies and the justice system. There are interesting echoes here of the kosher fraud statute cases of the last several years, in which constitutional challenges to state definitions of “kosher” were upheld. These cases essentially led to more informal, social regulation of kosher food sellers, reflecting the sort of “shaming” and social norms issued often discussed here at CO. See Shayna M. Sigman, Kosher Without Law: The Role of Nonlegal Sanctions in Overcoming Fraud Within the Kosher Food Industry, 31 FLA. ST. U. L. REV. 509 (2004). (My own opinion is that those cases may be wrong, and the statutes not unconstitutional, but that’s another discussion.)
But other questions have been raised, too-for instance, what effect, if any, would such certification have on the value of the ritual certification (i.e., would the religious aspect of it be devalued)? Is there potential liability for a certifying group if there is an accident or mistreatment at a plant that has been certified? What standards would the certifying group use?
All of these notions, I think, raise good issues for legal scholars (and students looking for note topics!).
posted by Jeffrey Harrison
Did you ever notice that law school hiring seems to aim for not-all-that-diverse diversity? It reminds me of a friend who claims to love Thai food and then orders everything “extra mild.” Does he like Thai food (as in embrace it) or does he simply embrace the idea of liking Thai food? It’s like the question I often ask my classes: Can you have a preference for a preference?
How is this like faculty hiring for diversity? My, admittedly unofficial, view is that when hiring committees look for candidates the pecking order is like this:
White elite eduated male
White elite ed. female
African American ed. elite male
African Americna ed. elite female
White non elite female
White non elite male
African American non elite female
African American non elite female
The ranking is, no surprise, consistent with social comfort and, let’s face it, given that there is no evidence that one group is better at law teaching than another and that law professors can “interpret” resumes to mean anything, social comfort plays a big role.
So, do law professors on average like the idea of embracing diversity or do they really embrace diversity? I think it’s the former and it’s not even close. They have a preference for a preference for diversity but the real preference is just not there.
So how would you recruit for actually diversity? No question in my mind that race is a big factor but how about these questions:
1. What was your father or mother’s occupation?
2. How much school did your father and mother complete?
3. How much student debt have you accumulated?
4. How many people do you know at an Ivy League school?
5. Ever worked at McDonalds, washed cars, or bagged groceries?
6. Anyone in your family on welfare.
7. Has anyone in your family done time?
8. Ever been out of the US?
9. What is the difference between rigatoni and zitti? (oops, sorry this one accidently came over from a completely different list)
When and if law faculties get serious about diversity, let me know.
posted by Daniel Solove
A new genre of history book seems to have become immensely popular. These books attempt to chronicle the histories of various things or objects. While some look interesting, I think they are starting to proliferate at an excessive pace. Pretty soon, there will need to be a book called A History of Historical Books About Things. Anyway, this post was prompted by a new book in this genre that I think demonstrates that it is going too far.
But first, let’s start our journey elsewhere; I’ll save the best for last. There are countless histories of various foods and seasonings. There’s Mark Kurlansky’s Salt: A World History. If a history of salt is too narrow a topic for you, you can read Jack Turner’s Spice: The History of a Temptation. There’s also Larry Zuckerman’s The Potato: How the Humble Spud Rescued the Western World. Betty Fussell has written a history of corn called The Story of Corn. And then there’s Iain Gately’s Tobacco: A Cultural History of How an Exotic Plant Seduced Civilization. Mort Rosenblum has helped us better understand the olive in historical context in Olives: The Life and Lore of a Noble Fruit.
There are histories of various seafood. Mark Kurlansky has also written Big Oyster: History on the Half Shell and Cod: A Biography of the Fish That Changed the World.
There are histories of wine, including Rod Phillips’s A Short History of Wine and Wine: The 8,000 Year-Old Story of the Wine Trade by Thomas Pellechia. But why stop at just a history of wine? How about Charles Sullivan’s Zinfandel: A History of a Grape and Its Wine? If wine isn’t your drink, you can read Jessica Warner’s Craze: Gin and Debauchery in an Age of Reason. And to wake up in the morning after it all, there’s Coffee: A Dark History by Antony Wild or The Devil’s Cup: A History of the World According to Coffee by Stewart Lee Allen or Uncommon Grounds: The History of Coffee and How It Transformed Our World by Mark Pendergrast.
posted by Neil Richards
British food is terrible. Bland food, over-cooked vegetables – if you’re there, stick to the Indian restaurants, right? Well, not exactly. British food (usually referred to as “English food”) has a terrible reputation, especially in America, but this reputation is just not deserved. As a Briton living in America, I’ve become tired of this misconception. So, even though I realize that I’m perhaps unlikely to convince many people on this side of the Atlantic, I thought I’d share a few thoughts in the spirit of the last part of this blog’s motto of “Law, the Universe and Everything.”
1. Familiarity breeds contempt. I think a lot of the problems that Americans have with British food is that it is similar enough that it’s not exotic, yet not similar enough to be comforting. The basic techniques and ingredients between British and American cuisines are almost identical, so that Americans in Britain order things they think are familiar and are disappointed that things are not as they expected them at home. Yet while things are different, they are not so different as to have the novelty of, say, having sushi for the first time. The peculiar thing is that Irish food doesn’t have the same terrible reputation as food from the UK, even though the two are even more similar than US and UK food.
2. Restaurant food isn’t always representative of a cuisine. Britain has long had some really bad restaurants, especially in the tourist areas of London. But unlike America, where dining out has been in integral part of the culture for many for a long time, Britain’s restaurants have not occupied a similar cultural position. The real power of British cuisine has lain not in its chefs, but in its homes – in everyday food, particularly the institution of the Sunday roast. (Of course, there are thousands of bad restaurants in America that serve poor processed food as well).
3. Chef culture and the new British food scene. The restaurant scene in Britain has changed in recent years. Industrially processed convenience foods may have weakened the home cooking culture, but at the same time a fantastic variety of restaurants have emerged in the capital and elsewhere, taking traditional recipes in new and exciting directions. Britain is obsessed with its celebrity chefs – people like Gordon Ramsay, Jamie Oliver, Nigella Lawson, and Delia Smith. And the culinary renaissance is such that London is now a foodie city that can stand on a par with New York or even Paris.
4. Supermarkets. But the real advantage of British cuisine (at least compared to American) is in its supermarkets. Go into a British supermarket today, and you’ll find that the quality of the produce – especially the fish and fresh vegatables – is on average far superior to its American counterpart. Often, you’ll find the produce labeled not only with the country of origin (increasingly Britain, where possible), but also the county. You can still find strawberries that taste like potatoes, but not as often as you can in America, where many children grow up thinking that strawberries should be white and crunchy inside.
5. Glass houses. A final point about American disdain for British food is one of caution. British cuisine is not perfect, but it is (and has been) far better than Americans give it credit for. But before Americans cast the first stone (or rotten tomato, or black pudding), think about the American crimes against food. McDonald’s (especially if you’ve read Fast Food Nation or seen Super-Size Me), Agri-Business and industrialized food production generally, rubbery cheese, spongy bread, corn syrup-based beverages, and gigantic portions of often mediocre food.
For what it’s worth, I think the Wikipedia entries on English and Scottish Cuisine are quite fair, and take a balanced view on an issue that rarely receives reflection. Comments, as always, are open for discussion (and in this case, possible lazy cheap shots).
posted by Dave Hoffman
The blogs are abuzz this morning talking about the Times’ profile of Stephen Abraham, an Army reserve officer who filed a crucial affidavit in the latest Guantanamo litigation. The article explains Abraham’s unique role:
As an intelligence officer responsible for running the central computer depository of evidence for the hearings, he said, he saw many of the documents in hundreds of the 558 cases. He also worked as a liaison with intelligence agencies and served on one three-member hearing panel.
All of which has left Colonel Abraham, 46, a civilian business lawyer who has lately been busy with a lawsuit between makers of pomegranate juice, with a central role in the public debate over Guantánamo. His account has been widely discussed in Congress, the administration and the press. On Friday, a federal appeals court judge took note of it in describing what she said were problems with the Pentagon’s hearing process.
I thought I’d do some digging into that aspect of this story that will interest our non-constitutional readers: why are pomegranate juice sellers suing each other?
PACER searches disposed of the mystery quickly. POM Wonderful LLC v. Purely Juice, Inc. et al., CV 07-2633 (C.D. Ca.) was filed on April 20, 2007. POM lawsuit against Purely Juice alleges that Purely Juice violated the federal Lanham Act (and its state analogue) by falsely marketing its product as “all natural, consist[ing] of 100% pomegranate juice” with “NO added sugar or sweeteners.”
Abraham represents Purely Juice. Just a few days ago, his client won an important victory in the case. On July 11, 2007, Judge Christina Snyder denied POM’s TRO. The order itself (download the PDF here) is notable for its length and careful attention to the law. POM had independently tested Purely Juice’s product, and allegedly found that “it is clear that consumers of ‘Purely Juice . . .’ are not receiving the nutrients and antioxidant polyphenol health benefits that one would expect from 100% authentic pomegranate juice.” [Editorial comment: anytime you are asking a judge to make a claim about “antioxidant polyphenol health benefits” on a TRO, you seem likely to be in for a tough fight.] But, Abraham argued that, basically, the FDA hasn’t yet made clear what constitutes 100% pomegranate juice, and it was otherwise compliant with 21 CFR 101.30, regulating percent juice claims. The Court agreed with Abraham. As for the plaintiff’s claim that the “NO added sugar” was misleading, the Court found that there was insufficient evidence to find that defendant had added sugar, accepting Abraham’s defense that “the laboratory results could have been caused by the natural variation in the pomegranate fruit, growing conditions, harvesting, storage conditions or processing conditions.” (Notably, this seems like a non-denial denial to me.)
Abraham’s good lawyering saved his client a significant chunk of change. According to a declaration filed in the case, Purely Juice has 800,000 bottles in its inventory, each of which retails for $3.79. ($3.79! For juice!)
So what’s the moral here? You can be a busy commercial lawyer and a participant in the great issues of constitutional moment at the same time? Or, perhaps, as various players seek to control the last lucrative, non-commodity, juice market, the great Pomegranate Wars have begun.
posted by Frank Pasquale
The Chowhound discussion board offers the following contractually charged dilemma:
A small fly landed in my friend’s glass of wine (it was maybe two thirds full) so we asked for a new glass. She was given a new glass and the remaining wine from our bottle was poured into the glass. The full cost of the wine was on our bill . . . . My question is, should they have comped my friend a glass of wine? What is the norm for when a fly lands in your wine glass?
What’s the best way to legally frame the problem? Has the patron taken on the responsibility to safeguard her own wine once it’s been delivered? Or should some implied warranty of merchantability guarantee a fly-free experience? The unlucky patron here had “two more flies land in her new full wine glass shortly.”
Let’s hope it wasn’t too expensive a wine….especially if she’s not a celebrity.
posted by Frank Pasquale
If you’re planning on opening a seafood restaurant soon, watch out for Rebecca Charles, owner of Pearl’s Oyster Bar. She’s suing rival Ed’s Lobster Bar for copying
“each and every element” of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad.
A packet of oyster crackers at a seafood restaurant? What a creative genius!
Seriously, White has some rights based on Two Pesos v. Taco Cabana, a decision that recognized that “trade dress which is inherently distinctive is protectable under [federal law] without a showing that it has acquired secondary meaning”–i.e., that if the look of a restaurant is distinctive, it can sue others for copying the look even if no one particularly associates the look with its originator.
It looks like White is a veteran of more than one restaurant rivalry:
I listened as the regulars [at Pearl Oyster Bar] who stole my seat begged the chef to let them eat at Mary’s Fish Camp, which is owned by her former girlfriend. When they split, one kept Pearl, and the other, in one of the great defiant acts of New York restaurant life, opened a restaurant with nearly the same menu just blocks away.
I suppose revenge is a dish best served cold.
The one claim that the NYT article mentions that I think may be a loser is White’s complaint that Ed’s copied her Caesar salad.
She and her lawyers claim [Ed's] is made from her own Caesar salad recipe, which calls for a coddled egg and English muffin croutons. She learned it from her mother, who extracted it decades ago from the chef at a long-gone Los Angeles restaurant. . . . And although she taught Mr. McFarland how to make it, she said she had guarded the recipe more closely than some restaurateurs watch their wine cellars. “When I taught him, I said, ‘You will never make this anywhere else,’ ” she insisted.
Seems to me like that Caesar salad would be pretty easy to reverse engineer–and reverse engineering has long been a way to lawfully acquire the know-how behind trade secrets. Moreover, it sounds like this idea is not exactly a secret–other folks may well have “extracted it” from the same source.
My hope in this area, as in so many others, is that we can learn from the French. By and large, they don’t use law to punish culinary copyists, they use norms. As von Hippel and Fauchart show, “the existence of norms-based IP systems means that the usage of information that is freely accessible and not legally protected may be nonetheless restricted to the benefit of innovators.” Magnifique!
Photo Credit: Monceau/Flickr. Will Charles pay royalties to this New Orleans oyster bar if it turns out to have opened before hers?
UPDATE: Mike Madison strikes an appropriately jaded note.
posted by Dave Hoffman
[Another dispatch from Rome.]
Yesterday, we visited the UN’s Food and Agricultural Organization (FAO), based near the Circus Maximus. The FAO’s legal staff was gracious enough to give Temple’s students and faculty a presentation on their work, along with tips on how to get into international legal work.
The presentation and idea I found most interesting was the FAO’s advocacy on behalf of the (so-called) human right to food. The FAO (and the considerable scholarship on this topic) derive the right largely from the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Article 11:
The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent . . .
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:
In response to a student question, the FAO’s lawyers acknowledged that this right is not presently internationally justiciable. Instead, in the words of the FAO’s strategic plan, advocates for the right should “support initial national implementation of the right to food and the Guidelines.”
posted by Dan Filler
It appears that the titans of the food industry are having their way with the USDA and the feds may soon approve a list of 38 non-organic items that may be included in foods marked “organic.” All of this interesting regulatory play is inidicative of the fact that organic foods finally hit the big time, and thus became worth of Big Food’s attention. We see a several different things happening here.
1. The public is becoming more concerned about the contents of its foodstuffs.
2. With more interest in organic food, Big Food decides to buy into to the industry.
3. Once bought in to the industry, making money off of the public’s (perhaps legitimate) fear of the current foodsupply (that Big Food created and aggressively markets), industry immediately sought to make organic foods cheaper, more attractive, or tastier (or perhaps all three) by adding non-organic ingredients.
4. With its meaning diluted (and I’m not taking a position on whether this dilution is meaningful – whether these 38 ingredients make items more or less healthy), the term organic may slowly lose its value as an indicator that a food product is distinctively more natural.
5. This will open new opportunities for creative small food marketers to create new language signifying the concept that “organic” once conveyed.
In the end, Big Food is simply doing with “organic” what it does with so many of the food products it markets: taking the underlying item (usually things like wheat, but in this case the word organic), processing it until it is a first cousin to its natural state, and serving up this not-quite-real but plenty alluring product to a waiting public.
Is this an example of markets working? Or of the vices of regulation? I’ll leave that question for people who actually spend money on this stuff. And I’ll have a Snickers and a Coke.
posted by Kaimipono D. Wenger
I enjoyed a fine dinner yesterday evening with some colleagues and a visiting speaker, the famous author John Scalzi. Inevitably, the conversation turned to cannibalism.
Specifically, we wondered: If a person — let’s call him Keith Richards — snorts cocaine that is mingled with the ashes of another person, does that constitute cannibalism? (Or is it merely another quirky effect of being British?)
As John notes on his blog, the argument doesn’t seem to clearly lean either way. On the one hand, one is snorting the cocaine with intent to ingest the stuff. Does that intent then extend to the ashes? If so, then Richards is seeking to ingest the ashes of another person — and that sounds like cannibalism.
However, on the flip side, how much ingestion actually takes place through the nasal passages? Is there any evidence that Keith Richards derived nutritional value from snorting the ashes? Doesn’t cannibalism imply digestion? Is a blood transfusion cannibalism? (My understanding is that Jehovah’s Witnesses take just that view, but most of the rest of us don’t). So, maybe it’s not.
Alas, I’m sad to say that my legal education didn’t prepare me all so well for discussions of cannibalism. This is clearly a blot on law schools everywhere. However, I’m sure that Co-Op readers can fill in this blind spot. What do you think, readers? Ashes and cocaine — cannibalism, or merely being British?