With an era of 3D printable food dawning, 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.
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. Hudson Valley’s foie gras products are depicted on its website as follows: Continue Reading