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“Earth and Table”—Lane Powell's food, beverage, and hospitality law reporter

Your Pacific Northwest Law Firm™

GMO Food Labels, Our Emotions and the “Rationalist’s Delusion”

Posted in Food Contamination, Food Labeling and Packaging, Food Psychology, Sensory Marketing, Trademarks and Food Technology

blog photoPoliticians often referred to a 90% consumer preference for food labels signaling the existence of genetically modified ingredients—or GMOs as they are known—during this year’s congressional hearings regarding the now enacted “National Bioengineered Food Disclosure Standard.”

This consumer sentiment appeared irrational to some legislative representatives, believing it defied “hard science” showing that GMO foods are “safe” to eat.  Others commented on how consumer reactions to GMO foods were highly-charged and fraught with “emotions.”

Unfortunately, the rushed legislative GMO labeling debate only skimmed the surface of consumer psychology as it relates to an expressed desire for GMO food labeling.

Discomfort with new foodstuffs resides in our age-old “omnivore’s dilemma,” where what you put in your mouth and swallow can possibly injure or leave you and your family on your death beds in Darwinian fashion.  You are what you eat after all.[1]

Innate emotions—such as disgust, fear, distress, anger and rage—arise from and can be amplified by moral notions of food sanctity and its opposite, food contamination and degradation.  As a classic 1970s Chiffon margarine commercial once proclaimed to crackling lightning and thunder: “It’s not nice to fool Mother Nature!”

This post examines GMO food labeling from the developing perspective of “moral foundations” psychology, a topic overlooked in recent hearings.  In doing so, it exposes the fallacy of the “rationalist’s delusion,”—an outmoded, but convenient line of argument that denigrates innate consumer distrust of GMO foodstuffs. Continue Reading

Patenting the Quest for a More Perfect Veggie Burger

Posted in Food Labeling, Food Psychology, Patents and Food Technology, Trademarks and Food Technology

blog picWhen a food synthesizer first appeared on Star Trek: The Original Series, I looked upon it with awe and wonder. Its workings were never explained; but entire meals would emerge from it magically. Swanson’s frozen TV dinners were its only analogue in my childhood experience—aluminum trays compartmentalized in vaguely Bento box proportions with a daily ration of meat, a starch, some vegetables, and possibly dessert. The food synthesizer did seem to be 23rd century stuff.[1]

In a matter of 50 years, advances in the sustainable food arts are making food duplication a 21st century reality. Deconstruction of foodstuffs is now happening at the particle level in research laboratories around the world. Food replication—through 3D printing devices and like technology—promises to create even more vexing social and legal issues of food identity and authenticity.

The holy grail of this quest is a veggie burger—one with an appealing look, taste and mouth feel that will attract and retain both vegetarian and omnivore consumers. Contorting vegetable matter into tasting, sizzling and bleeding like red meat, however, poses innumerable challenges, with concomitant patenting opportunities.

This article briefly traces the patenting history of this quest and outlines where it is currently headed. Food replication is part of our cultural DNA; the journey itself is exciting.

Continue Reading

Compensating “Disgust”: Psychoanalyzing Emotional Distress Claims Involving Food Products

Posted in Food Adulteration, Food Contamination, Food Psychology, Product Liability

blog imageYou’re a sheriff’s deputy and you’re hungry.  You stop at the local Burger King drive-thru and order a Whopper with cheese.  You often eat five meals a day—frequently at fast food restaurants—because you work night shifts.  Yet, this time you drive away with an uneasy feeling.  You stop in another parking lot to examine your hamburger.

As you lift the bun, you notice a “puddle of phlegm” on it.  It looks like oil or fat. You stick your finger in it to see.  It’s neither.  You’ve touched the spittle of a Burger King employee.  He later pleads guilty to felony assault and is sentenced to 90 days in jail.

 You’re nauseated by this traumatic event.  Because of it, you can no longer eat any prepared foods.  Once, when you were served spaghetti at a friend’s home, you vomited right then and there.  Even walking past free samples in grocery stores makes you want to barf.  Unable to eat out, you binge once a day at home on food you prepare yourself.  Your repeated nightmares involve food poisoning or other communicable diseases.

You’re now seeing a mental health professional to overcome these food aversion issues.  You’ve been taught some coping techniques, including how to clear your mind before eating or going to sleep, but progress has been very slow.[1] Continue Reading

Starlet Marketing, Patenting and Branding of the California Artichoke

Posted in Food Labeling and Packaging, Fresh Vegetable Produce, Patents and Food Technology, Plant Patenting, Trademarks and Food Technology

starlet1How do you tempt someone to trim, steam (or boil) artichokes and scrape spiny artichoke leaves with their front teeth?

Here’s an easy answer.  Crown a newly minted Marilyn Monroe as Castroville’s first Artichoke Queen in February 1948.[1]  Chances are—you’d gnaw on anything she promotes with her magnetic smile.

Californians certainly followed Norma Jeane’s lead.  In 2013, California proclaimed the artichoke as its state vegetable.  In fact, 99% of the nation’s crop is grown on this strip of land angled against the Pacific.[2]

Transforming a somewhat user-unfriendly vegetable into a staple of the American diet is a more confounding matter.  This article examines innovative patenting, branding and merchandising efforts associated with this superfood thistle.[3] Continue Reading

The Genetics of Date Palm Patenting

Posted in Patent Prosecution, Patents and Food Technology, Plant Patenting, Sensory Marketing, Trademarks and Food Technology


Date palm imageYou’re driving south out of Indio along the Grapefruit Boulevard towards Thermal and Mecca because their names sound promising.  A parched desert plain extends to your left, leading up to the austere ridgelines of Joshua Tree National Park.  A shimmering Salton Sea lies ahead.

An oasis of date palms emerges out of nowhere on your passenger side.  You’ve just entered the Coachella Valley’s epicenter of United States date production.

If you’re savvy, you’ll stop at the Oasis Date Gardens and head directly to the sampling room.  And if you’re lucky, a date variety you’ve never heard of before—the black eight ball—will send your taste buds into mild ecstasy.  Alas, the 8-ball’s appearance on the scene is too short (December/January) and its quantity too sparse to support a mail order business.  You’ll regret not buying more of this connoisseur’s delicacy when you had the chance.

The crucial agri-processing issue confronting all date growers is one of gender discrimination.  Recent published patent applications suggest the problem and solution, e.g., “Genetics of Gender Discrimination in Date Palm,”[1] and “Molecular Markers and Methods for Early Sex Determination in Date Palms.”[2]  This article examines the patent eligibility issue generated by these patent applications in light of recent Supreme Court cases. Continue Reading

Patenting the Avocado: A California Story with a Classic Recipe

Posted in Patents and Food Technology, Trademarks and Food Technology

Avocado image 1Guacamole and chips are the ultimate in Super Bowl Sunday comfort food nowadays.  During the Panthers/Broncos game, the California Avocado Commission tweeted its own commentary, offering recipes that paired avocados with food and beverage products being featured in advertising campaigns.[1]

Avocados quintessentially define California cuisine.  Yet, they are a relative newcomer to the Golden State.  Aztec culture favored avocados, but it wasn’t until 1871 that Judge R.B. Ord, of Santa Barbara, successfully grew them from trees he obtained from Mexico.[2]

Much earlier in the vast machinations of the Columbian food exchange, the personal physician of England’s King Charles II described the avocado in 1672 as one of the “most rare and pleasant fruits of [Jamaica].  It nourisheth and strengtheneth the body, corroborating the spirits and procuring lust exceedingly.”[3]

Perhaps babies were conceived on Super Bowl Sunday because of the avocado’s aphrodisiacal qualities!

The California mother of all avocados—the Hass avocado—is the subject of U.S. Plant Patent 139 granted in August 1935.  This article tells its story.  Recent avocado patent developments are also highlighted and a classic recipe for Avocado San Andreas may whet your mental palate. Continue Reading

Novel Potato Chips: The Patentable Art of Processing Potatoes

Posted in Patents and Food Technology, Trademarks and Food Technology

Potatoes blogDuring a 1911 journey—in which they would discover Machu Picchu—Hiram Bingham’s exploration party came across some native Peruvians who “lived almost entirely on gruel made from chuño, frozen bitter potatoes.  Little else than potatoes will grow at 14,000 feet above the sea.”[1]  As the accompanying photograph shows, chuño can still be purchased in farmers markets in the Cusco region of Peru.[2]

For millennia, those living in the Andean highland regions of Bolivia and Peru carefully tended to and cultivated over 3000 varieties of potatoes, many of which remain unknown to our collective palates today.  The Central Restaurante in Lima, Peru, however, features chuño recipes in its menu offerings.

Chef Virgilio Martinez leaves the “potatoes in the snow overnight; by the time the sun comes up, the potatoes have dried out.  ‘When you see them, they look like white-peeled potatoes, like flour or something.  They aren’t heavy at all, either, because they lose their water, Martinez says, also noting they can be stored for up to 10 years.”[3]

Like their Andean predecessors, modern day inventors continue to slice, dice, freeze, bake, dehydrate, fry and otherwise manipulate the characteristics of the humble potato in patentable ways.  This brief article examines some recently issued U.S. patents to determine what they disclose about the technological art of processing potatoes. Continue Reading

Patenting the Potato: “Not All Taters are Created Equal”

Posted in Food Labeling, Patents and Food Technology, Trademarks and Food Technology

blog potatoesWearing a McDonald’s blue garrison-style hat—red hats signified management—I often worked at the french fry station during my pimply high school years in the 1970s.  If you had asked me anything about the julienned potatoes I watched bubbling around in hot oil, I would have given you a clipped, teenage response, “I dunno.”  I had more important things on my mind, like my girlfriend Lynn who worked at the local Dairy Queen.

Forty years later, I know precisely what I would salt, scoop and funnel into paper containers in seemingly never-ending quantities: the historic Russet Burbank potato.  Luther Burbank—the (once) famous “Wizard of Horticulture”—developed this potato variety in 1870.  It would become the mainstay of the McDonald’s franchise empire, with over billions and billions sold.

Like other formerly indistinguishable fruit and vegetable commodities, potatoes are now morphing into a plethora of trademarked, patentable varieties.  The most recent variety to make news headlines is the Innate™ potato, a genetically modified Russet Burbank potato owned by the J.R. Simplot Company.  You won’t find them at McDonald’s anytime soon though.  “McDonald’s USA does not source GMO potatoes, nor do we have current plans to change our sourcing practices.”[1]

This brief article focuses on the history of potatoes and their patentable status in the United States.  As part of this discussion, the poor market reception potatoes first received during the Columbian Exchange is compared to the predictable consumer angst associated with the Innate™ potato’s genetic engineering. Continue Reading

Transgenic Salmon: A Primer on FDA Food Safety Regulations

Posted in FDA Regulation, Food Labeling, Patents and Food Technology, Trademarks and Food Technology

blog post first pictureWhen Meriwether Lewis tasted his first roasted morsel of a fresh Chinook salmon at a Shoshone camp along the Lemhi River (in modern day Idaho), he ate it with “very good relish.”  It convinced him that “we were on the waters of the Pacific Ocean.”

For centuries, native tribes and later settlers in the Pacific Northwest have revered the Chinook (or King) salmon as an iconic symbol of life and regeneration.  Celilo Falls, along the Columbia River bordering Washington and Oregon, was once the greatest salmon fishing site in North America, and perhaps the world.

Some 200 years later, the Atlantic and Pacific salmon fisheries have merged in the form of the first transgenic salmon.  An AquAdvantage® salmon[1] is what you create when you take an Atlantic salmon and insert a Chinook salmon growth hormone gene and an ocean pout fish regulatory gene sequence into it through the use of recombinant DNA technology.  An AquAdvantage salmon can grow to market size in land-based tank farms in half the time of conventional salmon.  It is never, ever supposed to swim in either ocean.

Whether or not the AquAdvantage salmon achieves final regulatory approval and market acceptance, its current fate squarely pits the much vaunted concept of sustainability against the other two most heralded words in the modern food vocabulary, natural and organic.

This article provides a brief survey of how the FDA evaluates the food safety of transgenic animals as “new animal drugs.”  It then discusses an alternative, more rigorous means of assessing genetically altered animals as “food additives,” the analytical approach favored by Food & Water Watch in a recently filed FDA citizen’s petition.  It closes with an animal scientist’s perspective regarding the sustainability of transgenic animals as food sources. Continue Reading

Assessing the Validity of Food Processing Patents, Post-Alice

Posted in Patent Litigation, Patents and Food Technology

Patent eligibility is in a state of flux.  Software and business method innovations challenge the boundary of what is patentable under U.S. law.  That dividing line is crossed when inventors claim exclusive rights in what really amount to “laws of nature, natural phenomena or abstract ideas.”  In a series of recent cases, the Supreme Court construed these three implied judicial exceptions to patent eligibility.  Alice Corp. v. CLS Bank Int’l is its most recent pronouncement bracketing patent rights.

Since software and computerized business methods now dominate and regulate many aspects of our industrialized food supply chain, how will already-issued food processing patents fare in this patent eligibility battle royale, post-Alice?  This article addresses that basic question.  A touchstone for this analysis will be a recently invalidated “Meal Builder” patent, a “computerized method and system for diet-related behavior analysis, training and planning.” See Dietgoal Innovations LLC v. Chipotle Mexican Grill, Inc. (slip opinion). Continue Reading