With an era of 3D printable food dawning,[1] the Star Trek “food replicator” is beginning to look more like modern reality instead of the stuff of science fiction. Every day and in every way, food scientists and flavor technologists are figuring out ways to deconstruct and reassemble our favorite dishes out of whole cloth.
This is not a new trend. The desire to mimic basic foodstuffs began in earnest in the 19th century. French scientists invented margarine as a cheap substitute for butter to better feed Napoleon’s standing armies. Soon after margarine’s introduction into the U.S. consumer marketplace, palming it off as butter became rampant.[2]
The increasing ability to manufacture and promote "faux" foods that compare or contrast in some manner to their natural counterparts spawns a host of intriguing and perplexing legal issues. This article focuses on just one of those issues: a "faux" food producer's "standing" to pursue a Lanham Act false advertising claim against a producer of comparable "real" food.
Faux Gras v. Foie Gras
A case pending in California federal court offers a stunning example of what happens when a "fake" food producer targets a real food counterpart by simply adopting a similarly sounding name (or playful variant thereof) and selling a food intended to mimic or substitute for that of its would-be competitor. Voilà, the ersatz food producer instantly manufactures standing sufficient to satisfy the "competitor" requirement of a Lanham Act false advertising claim pursuant to 15 U.S.C. 1125(a)(1)(B).
The case is Regal Vegan v. HVFG (d/b/a Hudson Valley Foie Gras, Case No. 3:12-cv-05809 (N.D. Cal.) Plaintiff Regal Vegan sells "Faux Gras," a "toasted walnut lentil pâté." The defendant Hudson Valley produces and sells both fresh foie gras (duck liver) and a foie gras mousse (a pâté form). Regal Vegan claims that Hudson Valley falsely advertises its foie gras as "the humane choice" for such products. Regal Vegan asserts that foie gras production involves force-feeding of ducks to enlarge their livers—and that this "gavage" technique cannot possibly be labeled or categorized as humane under any circumstances. Hudson Valley's website notes that its ducks used for foie gras production are "Cage Free."
Foie gras is considered a delicacy, especially in French culture. The "gavage" fattening technique of waterfowl can itself be traced back to ancient Egyptian culture.[3] Hudson Valley's foie gras products are depicted on its website as follows:[4]
“Mousse of Foie Gras”
“Fresh Foie Gras (Duck)”
Standing to Pursue False Advertising Claims
Standing to pursue Lanham Act false advertising claims (in the Ninth Circuit) requires that a plaintiff show: (1) a commercial injury based upon a misrepresentation about a product; and (2) that the injury is “competitive,” or harmful to the plaintiff’s ability to compete with the defendant.[5] Regal Vegan alleges that both companies “compete in the same industry, food products, selling the same product, pâté, and vie for the same consumer dollars from the same target audience, purchasers who care about the humane treatment of animals raised for food production.”[6]
Regal Vegan alleges that both companies "compete in the same industry, food products, selling the same product, pâté, and vie for the same consumer dollars from the same target audience, purchasers who care about the humane treatment of animals raised for food production."[6]
Originally, the Regal Vegan complaint also included the Animal Legal Defense Fund (ADLF) as a named plaintiff. However, the court quickly disposed of the ALDF's "standing" to pursue a false advertising claim: the ALDF does not compete with Hudson Valley to sell anything. As the Court observed, "ALDF, while acknowledging the novelty of its legal theory, provides no authority for the proposition that an advocacy organization could be in competition with a business for Lanham Act [false advertising] purposes."[7]
The false advertising standing analysis with respect to Regal Vegan proved more difficult to assess. To determine whether the claim is plausibly stated when challenged by a Rule 12(b)(6) motion to dismiss a claim, a federal court must accept the truth of a plaintiff's factual allegations and reasonable inferences derived from those facts.
In denying Hudson Valley's motion to dismiss, the court found some of the following factual allegations of significance:
“[Regal Vegan] presented surveys showing, among other things, that animal welfare is important to customers in choosing which food to buy; that customers stop buying foods they believe are produced in an unethical way; that customers will preferentially choose between otherwise-identical "humane" products over those that are not humane.; that meat substitutes like Regal Vegan's product have gained a significant market share; and that many meat-eaters who have reduced their meat intake choose meat substitutes instead. Regal Vegan also asserts that the facts show that it competes with foie gras. Its product name, Faux Gras is a play on "foie gras." Its website describes its product as a pâté. Regal Vegan states that it produces foods that are meant to substitute for animal favorites such as foie gras and ricotta cheese. Faux Gras was specially formulated to "satisfy the same craving some have for pâtés, and, presumably to compete for consumers who might otherwise crave, and buy, actual foie gras. Order, at 5 (record citations omitted).”
In light of these factual allegations, the court agreed that in "the market for humanely produced pâtés, a statement by one competitor that its product is 'humane,' if in fact it were not, would plausibly disadvantage its humane competitor." Id. at 6. Further, a "claim that its product is 'the humane choice' might therefore constitute a statement that could either be proved false or 'reasonably interpreted as a statement of objective fact.'" Id. at 11.
Even when one compares pâtés, the court's decision is puzzling. One cannot help but wonder whether if "Faux Gras" hadn't been marketed with that name, whether anyone would have made a gastronomic connection between that spreadable walnut lentil pureed product and the much different spreadable animal product, pâté de foie gras (or mousse of foie gras). To say they do not taste at all alike would be an understatement. This author sampled the "Faux Gras" and, in his opinion, it did not bring to mind any flavor notes or the texture of real pâté de foie gras. In fact, it tasted like a rather pallid walnut/lentil/miso puree. As an aside, the recipe for a much more delicious and savory ground walnut/miso dressing for vegetables can be found in Hiroko Shimbo's The Japanese Kitchen (2000).[8]
The court noted in passing that peanut butter "is unlikely to be marketed as a foie gras substitute." Id. at 10. However, the court's ruling effectively conflates all spreadable vegetable and animal pâtés. If peanut butter had been labeled as "Faux Gras," then its producer too presumably would have standing to pursue a Lanham Act false advertising claim under the court's reasoning. There is no taste or texture basis for any principled distinction between a walnut/lentil/miso pâté versus a peanut butter mixture, especially vis-à-vis a pâté de foie gras. All three have quite distinctly different taste, texture and flavor profiles. What they share is a that they can be spread on other foods.
Hence, it should be apparent that the only reason "Faux Gras" calls to mind "foie gras" is simply through fanciful word association. Yet, such word associations can and do influence taste evaluations and consumer purchasing decisions. Daniel Kahneman's groundbreaking book, Thinking, Fast and Slow (2011), is a fascinating discussion of the nature of human decision-making and judgment. If a consumer is primed with a word association, psychological research demonstrates that it may well affect his or her consumption behavior and response. This is precisely why food producers are so attuned to the branding and marketing of their products. First impressions stick. A product label needs to shout at you from the crowded shelves of the grocery store aisle in order to gain attention.
Here, Regal Vegan is priming its consumers with the charged phrase "Faux Gras" precisely because it is intended to bring to mind its "evil" counterpart. The calculus appears to be that eating "Faux Gras" will impart political benefits to the consumer. In this regard, the desire to only eat "healthy" food can become obsessive and even lead to a condition some in the psychological community have termed "orthorexia nervosa." Those afflicted with this so-called eating disorder purportedly become fixated on "righteous eating" and set rigid rules about avoiding certain foods.[9] However, orthorexia nervosa is not recognized as a mental disorder by the American Psychiatric Association, nor is it included in the Diagnostic and Statistical Manual for Mental Disorders IV (2006).
In mid-August 2013, the parties settled this case. Whether Regal Vegan's Lanham Act false advertising claim could have withstood summary judgment scrutiny is now a parlor game question. In the meantime, the Court's acceptance of "Faux Gras" standing should bolster the pursuit of pure "word association" false advertising cases. Hudson Valley recently stopped using the phrase "The Humane Choice" to describe its foie gras product. So, this case resolution can be considered a double victory for those seeking to reduce mankind's slaughter and consumption of animals.
[5] The U.S. Supreme Court granted certiorari in Lexmark International, Inc. v. Static Control Components, Inc., Case No. 12-873. Through this case, the Supreme Court may resolve a split in the circuits regarding the controlling test for Lanham Act false advertising claims. The question presented is this: "Whether the appropriate analytic framework for determining a party's standing to maintain an action for false advertising under the Lanham Act is (1) the factors set forth in Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters ("AGC"), 459 U.S. 519, 537-45 (1983), as adopted by the Third, Fifth, Eighth, and Eleventh Circuits; (2) the categorical test, permitting suits only by an actual competitor, employed by the Seventh, Ninth, and Tenth Circuits; or (3) a version of the more expansive "reasonable interest" test, either as applied by the Sixth Circuit in this case or as applied by the Second Circuit in prior cases."
[6] See Order Granting in Part and Denying in Party Defendant's Motion to Dismiss, at 9 (dated 4/12/13).
[8] See "Ingen no Kurumi-miso-ae" ("Green Beans in Walnut-Miso Dressing), The Japanese Kitchen (2000), at p. 236-37 (hardcover edition).