November 29, 2010
November 29, 2010
NW Law FirmCan Business Lawyers Afford to Practice “Defensively”?
Stoel Rives LLP
by Richard Goldfarb
Two news items are our topic today: Ben & Jerry’s removed the term “all natural” from its ice cream and was immediately sued by someone; and some people are labelling ordinary onions as “sweet” and charging a premium for them.
First, “natural.” The FDA, of course, has declined to define “natural” outside of the context of flavorings (where its regulations are already lengthy). Here is what Tom Standage, bestselling author of “An Edible ble History of Humanity,” has to say:
Accordingly, almost none of the food we eat today can truly be described as natural. Nearly all of it is the result of selective breeding–unwitting at first, but then more deliberate and careful as farmers propogated the most valuable characteristics found in the wild to create new, domesticated mutants better suited to human needs.
And further on in the same chapter:
The simple truth is that farming is profoundly unnatural. It has done more to change the world, and has had a greater impact on the environment, than any other human activity. It has led to widespread deforestation, environmental destruction, the displacement of “natural” wildlife, and the transplanting of plants and animals thousands of miles from their original habitats. It involves the genetic modification of plants and animals to create monstrous mutants that do not exist in nature and often cannot survive without human intervention. It overturned the hunter-gatherer way of life that had defined human existence for tens of thousands of years, prompting humans to exchange a varied, leisurely existence of hunting and gathering for lifes of drudgery and toil. Agriculture would surely not be allowed if it were invented today.
That’s pretty profound, and obviously more than a little hyperbolic. But it points out the entirely subjective nature of the term “natural.”
In the lawsuit, the claim is made that Ben & Jerry’s products are not natural because they contain “dutched” cocoa. Cocoa is “dutched” by a process that adds an alkali, in the form of, according to the complaint, potassium carbonate, which the complaint alleges is “a man-made, synthetic ingredient.”
Let me take a moment to say what I know about dutched cocoa not as a lawyer but as a breadbaker. Home bakers know that you can’t use dutched cocoa in a recipe that uses baking soda, because you want the natural acidity of regular cocoa to counteract the baking soda. I bake with yeast and I noticed over the years in using recipes that include cocoa (often used to provide color and flavor to pumpernickel, for example) that the yeast wouldn’t rise when I used regular cocoa but I wouldn’t have the same problems with dutched cocoa. Now I know why: the difference in the acidity affected the rising property of the yeast.
So “dutching” affects both flavor and the way cocoa will interact with other ingredients. And it is created by combining “natural” cocoa with an alkali, allegedly potassium carbonate. How unnatural is potassium carbonate?
Well, it’s exactly this kind of question that demonstrates why the term “natural” is so meaningless. Potassium carbonate is the primary component of potash, which is itself a substance found in nature. Indeed, a patent to refine potash into pearl ash, which is basically pure potassium carbonate, was patent no. 1 (now X1) issued by the U.S. Patent Office, signed by President George Washington and co-signed by Attorney General Edmund Randolph on July 31, 1790. While I don’t know either that the dutched cocoa used by Ben & Jerry’s was potassium carbonate or what process was used to refine it, I will posit that if the process in Samuel Hopkins’s patent was used, that would indeed be as natural as, well, hold that thought for a second.
Here is what you do to potash, a naturally occuring substance, to make pearl ash: burn it, dissolve it in water, boil the resulting liquid, refine out the impurities. Doesn’t sound like the most unnatural, artificial or synthetic process to me; it sounds like cooking.
Now let us compare that to the steps in making of “natural” cocoa. These include letting the pods dry for six months on the mature trees, picking, a lengthy fermentation process, drying, (all these steps take place typically where the cocoa is grown), and then a complicated manufacturing process. I was fortunate enough to see the process in person at the wonderful Theo Chocolate factory in the Fremont neighborhood of Seattle, which taught me all the steps that take those beans and make them into a bar or a tin of cocoa. Ghirardelli’s website breaks it down into steps:
Dutching occurs at an unnumbered step between bean roasting and nib roasting, where the bean shells are cracked and removed, leaving only the nib. It is the nib that is treated with alkaline.
All of these steps, it seems to me, are things that people have been doing to mass produce food since the Industrial Revolution, but I find it hard to believe that adding in a substance that comes from nature and is produced using literally the first patent issued in the United States, which involves nothing more than the same steps I used to make short ribs somehow renders it unnatural. I understand how different people may reach a different conclusion, but I can’t see how that becomes a cause of action.
“Sweet,” on the other hand, is a whole different kettle of onions. Again, there is no government standard for which onions may be labeled “sweet.” As a Washingtonian, when I think of a sweet onion, I think of Walla Walla onions, but I was surprised to learn that besides those and the Vidalia onions of Georgia and the Maui onions of Hawai’i, there are also sweet onions grown in Nevada, Florida, Texas and New Mexico. And that just covers the United States.
Our friend Jim Prevor, the Perishable Pundit, has written about the sweet onion issue under the headline “Sweet Onion Fraud.” He had updates here and here as well. He posits that the lack of any government standard for what is a “sweet” onion allows anyone to label any onion as sweet. Buyers looking for the best price will buy anything labeled sweet, and consumers will pay a premium for a false label.
Being Jim, he does not just rail at the injustice, he suggests three possible solutions:
Each of these has its challenges, of course. As we noted, it took the AMS over 60 years to redo its olive oil standards; can that overworked agency really be expected to decide what is a sweet onion quickly?
While a trademarked name and industry standards can be effective (and there are marks for partucular sweet onions), particularly if marketing dollars are used to promote the mark, there is often a spillover effect that can be counterproductive. As the realtors will tell you, you can work a long time promoting a mark but the public’s confusion that any real estate agent is a realtor won’t go away. The public just doesn’t spend a lot of time on the distinctions, and the difference between a trademarked sweet onion and any other onion labeled “sweet” may not adequately enter the public brain. Moreover, it’s perfectly possible for a truly sweet onion to be grown and sold without the mark, just as a real estate agent who is not a realtor may follow the realtor’s code of conduct but just not have joined the organization.
Buyers of onions should certainly include specifications for sweetness in their procurement. If done with producer input, this might solve many of the problems. If imposed, it might leave some growers of demonstrably sweet onions out in the cold.
I am, however, less pessimistic that someone who buys an ordinary onion incorrectly labeled “sweet” has no recourse against its seller. Unlike “natural,” and recognizing that there may be close cases, if we take the situation where someone simply takes an ordinary onion and slaps a “sweet” label on it and charges a premium for it, I am confident the buyer can reject the onions, or revoke his acceptance of the onions and sue for damages.
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.
So if a purchase order labels the goods “sweet onions” and they’re not, the express warranty is breached. If the seller puts a “sweet” label on the goods, and they’re not, the express warranty is breached. If the seller says “these are sweet onions” and charges a premium for them, and they’re not sweet, the express warranty is breached.
It does not require a legal standard or expert testimony to determine that an ordinary onion is not sweet, any more than it requires expert testimony to prove that something that is orange is not red. There’s actually a case,Martel v. Duffy-Mott Corp,, that holds that in connection with the warranties of merchantability and fitness for a particular purpose. Again, at the margins, we can all argue over whether this or that onion is sweet, but if a sweet onion is about 6-15% sugar and a regular onion is 3-5% sugar, it shouldn’t be hard to tell the difference, or to get a jury to tell the difference.
Have a sweet, and perhaps natural, Thanksgiving. One thing I’m thankful for this Thanksgiving, notwithstanding Tom Standage (and that’s hyperbolic; I really enjoyed his book): agriculture.
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