When Food is Dangerous: Hidden Legal Risks on Menus

Every restaurant knows that food can be dangerous. If a chef uses adulterated chicken in a Waldorf salad, he risks his patrons’ health and his restaurant’s reputation. The food a restaurant serves can create less obvious legal risks. Many states regulate offering specific foods, and there is little consistency from state to state. New regulations pop up based on trade association lobbying efforts or the whims of local politicians. The result is a morass of legal regulations that affects restaurants’ menu options.

Fair is Fowl

This year, California’s enacted its “Bird Feeding” legislation took effect. The statute prohibits force-feeding birds, resulting in a de facto ban on foie gras in California restaurants. In July, 2012, the Hot’s Restaurant Group filed suit against the state of California alleging that the law is too vague to be permissible. The Group alleges that it is impossible for a restaurant to distinguish between force-fed ducks and regularly fed ducks in the supply chain and that compliance was overly burdensome. Unless the California courts strike down the law, California restaurants face civil penalties of up to $1000 each time they serve foie gras.

A Chilie Reception

Restaurants in New Mexico face similar liability if they do not know the provenance of the chilies they serve. The New Mexico Department of Agriculture began regulating use of the phrase “New Mexico chilies” on July 1, 2011. The regulation was meant to prevent the widespread practice of claiming salsa is made in New Mexico when in fact the chilies are grown in South America. While the regulation does not list fines, it does empower the Department of Agriculture to obtain injunctions and audit the records of anyone claiming to sell New Mexico chilies. Restaurants in New Mexico should take care to reprint menus, tabletop items, and advertisements that falsely claim that  their salsa is made in new Mexico. UPDATE: In April, 2013, New Mexico strengthened its New Mexico Chile Advertising Act, requiring a label of "Not grown in New Mexico" on brands already in existence. At the same time, it allows restaurants that use imported chilies to use the phrase "New Mexico-style chilies" in their advertising.

Fungis Gone Wild

Other states have taken aim at wild mushrooms. Washington limits the quantity of wild mushrooms that a restaurant or anyone can possess. Illinois regulates how  “food-service establishments” sell mushrooms and requires certain printed disclaimers. In Minnesota, restaurants should be careful to obtain their mushrooms from certified wild mushroom experts, and the state regulates the sources for wild mushrooms that do not come through a processing plant.

Most recently, in 2011, after two chefs ended up poisoned from mushrooms, the Maine Department of Health mandated that all wild mushrooms be labeled by their scientific and common names on menus. In addition, all wild mushrooms offered to the public in any form must come from a certified forager with local mushroom picking experience. Maine has also created a training program for certification, although the program has not yet commenced. While Maine’s regulations do not outline penalties, restaurants operating in Maine would benefit from seeking certification. If they have a certified forager onboard as their chef or market manager, Maine restaurants will be able to use a wider variety of mushrooms on their menus and charge higher prices.

An Oily Scheme

Many restaurants claim to serve extra-virgin olive oil when, in fact, they are serving oil that has been cut with seed or other types of oils.  They may not know that the USDA has implemented voluntary quality standards to label olive oil “virgin” and “extra virgin.” Restaurants that comply with the standards have a unique marketing opportunity to promote the quality of the olive oils they serve.

Some states have their own regulations regarding olive oil labeling, including California, the leading producer of domestic olive oil, New York, and Oregon. These labeling requirements closely resemble the International Olive Council (IOC) standards regarding the purity of olive oil. While there has been little to no enforcement activity surrounding the statutes, in 2010, a group of chefs, restaurant, and retailers filed a class action suit against ten olive oil manufacturers in California. The plaintiffs claimed that the olive oil companies had defrauded them by manipulating the quality of their olive oil. While this lawsuit did not proceed, restaurants should be on the alert when purchasing olive oil and take the time to understand what they are buying.  Then, when creating their menus, restaurant should think carefully about the claims they make certain the olive oil they serve.

What do restaurants need to do?

• Know the law. When creating a menu, restaurants need to be aware of which foods are regulated in their local jurisdictions.
• Know your source. If the law requires a certified source, the restaurant should demand proof of certification from any vendors and warranties of compliance with pertinent laws.
• Know the market. If someone is trying to sell a product significantly below market value, consider that it may be adulterated or have a phony provenance.
• Keep up with insurance. Restaurants should check the terms of their own policies to ensure coverage for these kinds of issues. In addition, they should request information about their vendor’s insurance if their policies do not cover the errors of a third-party.
• Keep good records.  Restaurants should maintain records showing the entire supply chain of their food as they know it. In addition, they should keep copies of any warranties their suppliers offer.
• Design your menus with care.  Any statements made on menus about the food served in your establishment can be construed as advertising claims. Accordingly, they should not be deceptive. When designing your menus, think carefully about how you describe the foods you serve to ensure that the descriptions meet any applicable legal standards.

Copyright Kyle-Beth Hilfer, P.C. 2012. Kyle-Beth Hilfer is an advertising and marketing attorney in Collen IP’s Restaurant and Food Services Group. She regularly advises clients on advertising and marketing strategies. To contact Ms. Hilfer, please visit her FohBoh profile or tweet her @kbhilferlaw.