I wanted to share a quick update with my readers – the Earth & Table Law Reporter will soon transition over to be hosted on Lane Powell’s website.

Subscribers will continue to receive email updates for each of my new posts, and my older posts will all be accessible on lanepowell.com.

I look forward to continuing to provide my analysis of the interplay between intellectual property and food commerce. As always, please feel free to reach out: swansonp@lanepowell.com.

All the best,


The misinterpreted “Intellectual Property” clause of the U.S. Constitution (Art. I, §8, cl. 8) grants Congress the power to “promote the Progress of Science” by securing exclusive rights to Authors for their “Writings.” Its parallel clause states that exclusive rights should accrue to Inventors in the “useful Arts” for their “Discoveries.”

At first blush, authoring or reading novels would seem like a diffuse, unpractical way to promote “scientific” progress in agricultural commerce. But then, Upton Sinclair’s novel The Jungle (1906) itself spurred passage of the first Pure Food and Drug Act to regulate abysmal industrial meatpacking facilities.

Do novels promote the progress of science? Two California-based, agriculturally themed novels at bookends of the 20th century—Jack London’s The Valley of the Moon (1913) and Helena María Viramontes Under the Feet of Jesus (1995)—reveal the possibilities, with an opening detour to the planet Gethen, portrayed by Ursula K. Le Guin in The Left Hand of Darkness (1969).

Nature of the IP Clause

The IP clause confounds historians and legal experts and remains a puzzle, as Prof. Sean O’Connor explains at length in his thought-provoking law review article, “The Overlooked French Influence on the Intellectual Property Clause,” 82. U. Chi. L. Rev. 733 (2015). The IP clause does not mention these words—copyrights or patents—but those two bodies of statutory law find their mandate in this dual grant of congressional authority.

Nowadays, copyright law appears untethered from the founders’ expressed intent to promote the progress of science. Just the opposite transpired: it wholly embraces and preempts state law protection for “fine” art works of sculpture, painting and literature.

Copyright law’s relationship with scientific progress is even hostile—for copyright law simultaneously excludes protection for works that bear the classic hallmarks of scientific inquiry: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. §102(b).

So where is the polestar of “science” to be located in imaginative, novelistic endeavors? O’Connor offers an answer to this conundrum. In the Age of Enlightenment:

“Science” was a reflective enterprise in which the inquirer sought to understand the phenomenon through analysis, without seeking to change or manipulate it. One could “make a science of” anything, including human activity.

“Art” meant the manipulation of changeable aspects of the world.

Whereas science and the “useful” arts are philosophically subject to notions of quantifiable progress, the “fine arts”—based on prevailing taste and sentiment—could not be said to metaphysically “progress.” O’Connor notes that some “might prefer the work of the ancients; some might prefer the work of the moderns. Neither could be proved ‘better,’ and thus there could be no arrow of progress.”

Authors and Their Writings

With printing press technology in full swing, 18th century scientific academies and societies could now publish and more widely distribute the research work and findings of their proceedings; and, individually, that of their members.

Encyclopedias of knowledge came to the fore in the 1700s, compiling advancements in the arts and sciences, e.g., John Harris’ Lexicon Technicum: Or, An Universal English Dictionary of Arts and Sciences. Dictionaries of the “arts and sciences aspired to cover not only facts and theories of the physical and natural sciences but also explanations of crafts and trades (the “manual” or “mechanical” arts”).”[1]

Concurrently, the first English “realist” novel emerges in 1719. Daniel Defoe’s Robinson Crusoe is an “autobiographical” narrative about a shipwrecked mariner who teaches himself how to survive and even thrive as a sole castaway on a Caribbean island, later visited by cannibals. It is a utopian, self-sufficiency fantasy couched in a first-of-its-kind “novelistic realism.” It took in readers like a storm. Its plot and characters would be well known to drafters of the U.S. Constitution by the 1780s.

But what is a “novel” anyway? The Latin root for novel is “new.” A convenient online definition asserts that:

The novel originated in the early 18th century after the Italian word “novella,” which was used for stories in the medieval period. Its identity has evolved and it is now considered to mean a work of prose fiction over 50,000 words. Novels focus on character development more than plot. In any genre, it is the study of the human psyche.  (Emphasis added.)[2]

Even this overarching definition perhaps constrains a fluid “novel” art form—our default form of storytelling for over 300 years. In his 1920s lectures on “Aspects of the Novel,” E.M. Forster captures the more ambiguous breadth of a novel as “a fiction in prose—of a certain extent.”

Science Meets Fiction

Science fiction encompasses a literary genre in which, per Ursula Le Guin, the author “is supposed to take a trend or phenomenon of the here-and-now, purify and intensify it for dramatic effect, and extend it into the future.”[3]

Le Guin rejects a dogmatic, science fiction cabining of her novels, such as The Left Hand of Darkness. That work examines social life on a distant planet Gethen wherein “gender is not fixed, but serially mutable.” “Any individual, then, can be both a mother and father and can bear and sire children,” leading to the novel’s memorable line, “The king was pregnant.” Gethenians may well be the product of a planetary colonizing experiment gone awry.

We witness life on Gethen—known to outsiders as Winter, for its inhabitants live in an Ice Age—through the eyes of its Earth “first contact” envoy, Genly Ai. He is trying to persuade planet leaders to join a loose confederation of planetary systems for trade purposes. He possesses a single unchanging gender, an anomaly in a world where:

For most of their twenty-six-day month and cycle, Gethenians are androgynous and celibate, but for two or three days of kemmer they become sexually active as either male or female, with no say in which.

Through Genly Ai, “we witness the limits on worldview that his single unchanging gender imposes.”[4] Le Guin adds novelistic heft to his odyssey by basing descriptions of Gethen’s terrain and frigid atmosphere on the journals of Arctic and Antarctic explorers.

LeGuin believes her novel should be read as a “thought-experiment” regarding what a perfectly gender fluid world might be like:

The purpose of a thought-experiment, as the term used by [Erwin] Schrödinger and other physicists, is not to predict the future—indeed Schrödinger’s most famous thought experiment goes to show that the “future” on the quantum level, cannot be predicted—but to describe reality, the present world.[5]

By the end of a good novel, Le Guin suggests that we may find that “we’re a bit different from what we were before we read it, that we have been changed a little, as if by having met a new face, crossed a street we never crossed before. But it’s very hard to say just what we learned, how we were changed.”

No spoiler alerts here. Reading this novel did recast my mindset, somehow.

Searching for “The Valley of the Moon”

Back to the planet Earth and the state of California, circa the early 20th century. In Jack London’s novel, The Valley of the Moon (1913), we follow the life and times of Billy and Saxon Roberts, a working class couple who leave Oakland—after Billy’s release from jail for attacking “scabs” during a labor strike.

They “tramp” and camp through northern California on their quest to find a plot of land they can call their own. As Saxon puts it, “We’re not looking for gold but for chickens and a place to grow vegetables.” They desire an “All-Around Farm.”

Their mission is quixotic: “What we want is a valley of the moon, with not too much work, and all the fun we want. And we’ll just keep on looking until we find it.” This is a combined “California Dreamin’,” “Garden of Eden,” and “Promised Land” mythos, writ large.

Billy invokes Defoe’s novel as they seek idyllic self-reliance: “Here’s where we can play real Robinson Crusoe,” Billy cried [to Saxon], as they crossed the hard sand from the high-water mark to the edge of the water. “Come on Robinson. Let’s stop over. Of course, I’m your Man Friday, an’ what you say goes.”

Early in their travels, Billy laments how newer California immigrant cultures (Portuguese, Dalmatians, Japanese and Chinese and others) all seem to excel in more intensive farming practices than the “cut and run” tactics practiced by a first wave of California immigrants who would “skin the soil and move, skin the soil and move.”

Billy traffics freely in racial, xenophobic aspersions and stereotypes, but they often end up being back-handed tributes to the agricultural prowess of more recent immigrant farming practices. For example, he opines that Croatian immigrants “have a way with apples. It’s almost a gift.” “They know each tree, its whole history, everything that ever happened to it, its every idiosyncrasy. They have their fingers on its pulse. They can tell if it’s feeling as well today as it felt yesterday.”

Eventually, Billy and Saxon serendipitously run into Jack Hastings and his wife Clara. Hastings is a stand-in for Jack London himself. Clara paints a word portrait of Jack’s abiding interest in “scientific” farming:

He spends all of his time on the ranch in conserving the soil. There are over a thousand acres of woods alone, and, though he thins and forests like a surgeon, he won’t let a tree be chopped without his permission. He’s even planted a hundred thousand trees. He’s always draining and ditching to stop erosion and experimenting with pasture grasses. And every little while he buys some exhausted adjoining ranch and starts building up the soil.

Jack Hasting’s ranch is in the real Valley of the Moon (Sonoma Valley) near Glen Ellen, California. When Billy and Saxon reach this promised land, it envelops them in rapture. They descend to their future “all-around farm” alongside a “stream that sang under maples and alders.” The “air was aromatic with laurel” and “wild grapevines bridged the stream from tree to tree.”

The novel ends happily. Their flight from the dystopian city is a bucolic success. When Saxon informs Billy that she’s pregnant, a doe and a spotted fawn look “down upon them from a tiny open space between the trees.”

While Jack London’s hobby farming passions never panned out as a viable agribusiness enterprise, his former estate in the Valley of the Moon is now Jack London Historic State Park.

Citizenship Papers “Under the Feet of Jesus”

Fast forward to 1995, and you perceive the gritty, dusty reality of a Chicano migrant labor force at work in the grape fields and peach orchards of central California—through Helena Mara Viramontes first published novel, Under the Feet of Jesus. It is dedicated to the memory of César Chávez, co-founder of the National Farmworkers Association (later the United Farm Workers) along with Dolores Huerta.

In his book of essays entitled The Other California: The Great Central Valley in Life and Letters (1994 ed.), Gerald Haslem outlines Huerta’s advocacy for agricultural reform:

Dolores Huerta also speaks English, the language of power, and does it well. Of course, she speaks Spanish too. Raised in Stockton, she has become one of this state’s best known Chicanas, a public spokesperson for the United Farm Workers, its first vice president, and a realist. “Don’t be fooled,” she warns, “It is still extremely difficult for nonwhites to escape poverty in this state, which means in this Valley. The odds remain against us.”[6]

Huerta and Chavez would lead the Delano grape strike in 1965 and the Chicano Movement more generally.

Viramontes’ novel puts names and faces to the felt lives of piscadores (Spanish for “fruit or vegetable pickers”). We experience their food, shelter, health and economic precariousness primarily through the lens of Estrella, a young teenager, nicknamed Star. Under the Feet of Jesus is a Bildungsroman, a coming-of-age novel.

Orchards, creaky old barns, dreamy, but polluted irrigation ditches, eucalyptus trees all project novelistic realism. Char in a family cooking pit (used by previous inhabitants) smells of “toasted corn tortillas, of garlic and chile bubbling over the flames, of fried tripas spitting fat in a cast-iron skillet.”

The iconic Sun Maid raisin logo serves as an objective correlative symbol of the dissonance between toiling in the fields and California dreamin’:

Under the leafy grapevines, the grapes hung heavy. [Estrella] had readied the large rectangular sheet of newspaper print over an even bed of tractor levelled soil, then placed the wooden frame to hold the paper down. Now, her basket beneath the bushes, Estrella pulled the vine, slit the crescent moon knife across the stem, and the cluster of grapes was guided to the basket below.

Carrying the full basket to the paper was not like the picture on the red raisin boxes Estrella saw in the markets, not like the woman wearing a fluffy bonnet, holding out the grapes with her smiling, ruby lips, the sun a flat orange behind her. The sun was white and it made Estrella’s eyes sting like an onion, and the baskets of grapes resisted her muscles, pulling their magnetic weight back to the earth. The woman with the red bonnet did not know this.

An empty Quaker Oats container in a kitchen cabinet becomes an object of rebellious play. Estrella grabs “the chubby pink cheeks Quaker man, the red and white and blue cylinder package and shook it violently and its music was empty.”

Like a band majorette, she headlocks “the Quaker man’s paperboard head like a hollow drum . . . . One foot up, one foot down, her dress twirling like water loose in a drain, Estrella drummed the top of his low crown hat, slapped the round puffy man’s double chins, beat his wavy long hair the silky color of creamy hot oats.” This is Star’s mock retribution of Americana—for ignoring migrant worker poverty and injustice.

Estrella’s mom Petra keeps her children’s birth records and her marriage certificate in a manila envelope stored under the feet of a Jesucristo statue beside her bed. The latter proves she was married “in the town of Santa Ana, county of Orange, state of California.” Questions of citizenship lurk around the every corner and these papers need spiritual safeguarding.

The novel-concluding epiphany takes place in a decrepit, soon-to-be-demolished barn. As Estrella climbs a chain, hand-over-hand, to the barn’s loft, the intensity of the effort soaks “the back of her shirt collar with sweat.” “The stench of bird droppings gave the loft a sharp acid smell which cut through the damp hay and alfalfa and dusty nests.”

After Estrella shoves the barn’s trapdoor open, a “sparkle of stars cut the night—almost violently sharp.” She makes her way onto the roof. The “termite-softened shakes crunched beneath her bare feet like the serpent under the feet of Jesus, and a few pieces tumbled down and over the edge of the barn.” She ventures to the roof edge and “trusts the soles of her feet.” A breeze flutters “a few loose strands of hair on her face and nothing had ever seemed as pleasing to her as this.”

Novels and Scientific Falsification

While novels could readily be subsumed within an 18th-century “positivist” definition of science, they cannot withstand scrutiny under its 20th-century paradigm tests—verification and falsification.

Nevertheless, university literature courses espouse “theories” of critical analysis, as if they rested on some quasi-scientific basis. However much these theories may aid (or abet) textual analysis, they are necessarily scientific bunk. The premier literary critic of our age, George Steiner (who passed away in February 2020), spells out why such academic theorizing about literature cannot possibly claim scientific status:

Two indispensable criteria must be satisfied: verification or falsifiability by means of experiment and predictive application. There are in art and poetics no crucial experiments, no litmus-paper tests. There can be no verifiable or falsifiable deductions entailing predictive force. One must be crystal clear on this. * * *

However conventional, however imitative of its canonic forerunners, each and every literary text, each and every painting or sculpture, is a ‘singularity.’ It is a contingent phenomenality which could or could not have come into perceptible form. * * * [I]t is not a predictable fact determined by theoretical postulates or entailed by logic. [From Real Presences (1989).]

That novels are not scientific tracts is of no real moment. They do not need that highly refined status to achieve their ends. They continue to fascinate, delight, bore, provoke and compel us through their prose. Sometimes, they alter the social, political firmament. Through sheer accretion, they add to a body of knowledge and experience.

Like us, novels “beat on, boats against the current, borne back ceaselessly into the past.”[7]

[1] Sean M. O’Connor, The Overlooked French Influence on the Intellectual Property Clause, 82 U. Chi. L. Rev. 733, 746-77 (2015).

[2] See https://penandthepad.com/history-novel-6305937.html.

[3] Ursula K. LeGuin, Author’s Note to The Left Hand of Darkness.

[4] David Mitchell, Introduction to The Left Hand of Darkness.

[5] See n. 3, supra.

[6] From Gerald Haslem’s essay “Bronzing the Valley.”

[7] The final line from F. Scott Fitzgerald’s novel The Great Gatsby.

Every generation tackles old problems anew.  Abject homelessness, “radicalized” socialists, tyrant capitalists, gilded-age life-styles and monopolistic practices may seem like current news, but they were omnipresent in the first Gilded Age in California, circa the 1890s.

A “naturalistic” writer, Frank Norris, surveyed this landscape through his novel The Octopus: A Story of California (1901).  Its themes revolve around the railroad systems’ ability to exercise cartel control over California ranchers and farmers by the late 19th century.  While some of The Octopus’s story lines are hackneyed and musty well over a century later, it vividly describes what people ate and drank in detail—a tribute to Norris’s reportorial talents.

Out of this stratified social maelstrom, the Sherman Antitrust Act of 1890 emerged.  Its simple and elegant formulation—declaring illegal every contract, combination or conspiracy in restraint of trade—is arguably the most important innovation in United States law regulating commerce.  Its initial justification can be found in the very foodstuffs that Americans ate—or could not eat—before the turn of the 20th century.

The “Man with a Hoe”

“At the Salon of 1863, Man with a Hoe caused a storm of controversy.  The man in the picture was considered brutish and frightening by Parisian bourgeoisie.  The Industrial Revolution had caused a steady exodus from French farms, and Man with a Hoe was interpreted as a socialist protest about the peasant’s plight.  Though his paintings were judged in political terms, Millet declared that he was neither a socialist nor an agitator.”[1]

Jean-François Millet’s masterpiece, L’homme à la houe, takes center stage in The Octopus.  That painting hangs in the salon of a fictional wealthy industrialist family, the Cedarquists, probably alongside other Barbizon School paintings by Corot or Daubigny.

In real life, Man with a Hoe was owned by Mrs. Will H. Crocker.  She heralds from one of the “Big Four” California families whose powerhouse fortunes financed the construction of magnificent Nob Hill mansions.  Jointly, they owned the Central Pacific Railroad, the western portion of America’s first intercontinental railroad.  Leland Stanford, Collis Huntington, Mark Hopkins, and Charles Crocker preferred to be known as “The Associates.”

The Hopkins mansion on Nob Hill—long since consumed by fire and supplanted by a hotel bearing its name—is the fictional setting for the most sumptuous dinner recorded in The Octopus.  Through Presley, the novel’s primary narrator—a “radicalized” poet—you occupy a catbird’s seat at a dinner party with the Gerard’s, a railroad baron family living large in America’s first gilded age.  To understand the significance of that meal in Presley’s mind’s eye, a short historical diversion sets the table.

To stoke westward expansion, the U.S.A. doled out government land grants in checkerboard fashion to settlers and railroads (backed by Wall Street financiers).  Routes west into California and its vast central plains and valleys, irrigated from the snowfalls of the Sierras, are a coveted hallowed ground.  Alfred Bierstadt’s View of Donner Lake captures the prevailing idyll, a new Garden of Eden.[2]  The Central Pacific Railroad already traverses Donner Pass when Bierstadt’s painting is commissioned by Collis Huntington in 1871 and completed two years later.

Settlers quickly arrive to claim the land grant sections reserved for them.  Before rail lines are built, railroad companies encourage these pioneers to take advantage of their alternating sections as well.  Circulars offer attractive prices down the line for those who purchase the railroad’s plots of land, with assurances that ranchers and farmers won’t be assessed a higher price based on any of their own capital improvements.  Once suckered into these arrangements, railroads renege and extract monopoly prices—as only true monopolists can, per Economics 101.  When the dust settles, railroads seem to have everybody over a barrel.

What is the “Octopus”

In the opening chapter of The Octopus, a single locomotive roars down the railroad line separating the sprawling Quien Sabe Rancho from its neighbor, El Rancho De Los Muertos, even more spacious.  Nearby Presley is on a quixotic rambling journey by bike and on foot through this then San Joaquin wheat farming region.  While circumnavigating the territory, he’s been self-absorbed trying to compose an epic poem he calls the Song of the West.  His romantic visions butt up against brutish reality.  As he’s crossing between ranch boundaries, he meets the Octopus face-to-face:

He had only time to jump back upon the embankment when, with a quivering of all the earth, a locomotive, single, unattached, shot by him with a roar, filling the air with the reek of hot oil, vomiting smoke and sparks; its enormous eye, Cyclopean, red, throwing a glare far in advance, shooting by in a sudden crash of confused thunder; filling the night with the terrific clamour of its iron hoofs.

This is his nemesis, a mortal enemy.  The Octopus plows wantonly through an errant herd of sheep that had wandered out onto the railroad tracks through a breach in a wire fence line.  The sheep are a convenient metaphor for the slaughter of innocents at the hands of this soulless Force “with tentacles of steel clutching into the soil.”

The iron monster had charged full into the midst, merciless, inexorable.  To the right and left, all the width of the right of way, the little bodies had been flung; backs were snapped against fence posts; brains knocked out.  Caught in the barbs of the wire, wedged in, the bodies hung suspended.  Under foot it was terrible.

Presley, threatened with consumption (tuberculosis), is living at the Home ranch of the great Los Muertos Rancho.  He took up a standing invitation from his friends, the Derrick family, in order to recuperate in the “dry, even climate of the San Joaquin.”  His stay is indefinite.  He’s thirty and earned graduate and postgraduate degrees with high honors from an Eastern college, where he devoted himself to the passionate study of literature, especially poetry.  He’s generally the spectator of activities in The Octopus, its most curious bystander.

Presley’s freedom to wander away the whiles brings you into proximity of food service on both a mundane and gargantuan scale.  Breakfasts in homes of all social strata are composed of the classic trio: eggs, bacon or ham, and coffee.  A “breakfast without orange juice is like a day without sunshine” wouldn’t penetrate American popular culture for another 70 years or so later.

Whenever Presley passes through the old Spanish mission town of Guadalajara during one of his jaunts around the vast neighboring wheat ranches, he’ll usually stop by Solotari’s, a restaurant along the Plaza of this moribund community.  He’ll order a “Mexican dinner—an omelette in Spanish-Mexican style, frijoles and tortillas, a salad, and a glass of white wine.”  The frijoles will be in an earthen pot set in the middle of the table.  Presley may end up drinking mescal with old-timers, to hear Spanish tales of Los Muertos.

A 19th Century Working Class Diet

A glimpse into the diets of the working class populace is preserved in amber through Norris’s descriptions of colossal country feasts—a typical ploughmen’s dinner after returning from the fields, supper served at a barn dance, and a barbecue following the gruesome roundup and slaughter of jack rabbits because they are considered pests after their natural predators were exterminated.

These gorge-fests all share a biblical, “feeding of the five thousand” aura.  This is in keeping with Norris’s epic literary visions.  He intends The Octopus to be the first in a trilogy of novels covering “the idea of this huge Niagara of wheat rolling from West to East.”  As Norris relates to his mentor William Dean Howells:

I think there is a great chance for somebody to do some great work with the West and California as a background, and which will be at the same time thoroughly American.  My Idea is to write three novels around the one subject of Wheat.  First, a study of California (the producer), second, a study of Chicago (the distributor) third, a study of Europe (the consumer) . . . .  I think a big Epic trilogy could be made out of such a subject, that at the same time would be modern and distinctly American.

Norris’s study of California wheat industry reaches full fruition, but his second novel, The Pit, is in serialization when he abruptly dies from the consequences of a ruptured appendix in 1902.  Like many of his generation, Norris held a dim view of the medical profession at the turn of the century.  You pick your poison; the cure or the affliction.  Having dealt with a “weak stomach” all his life, Norris would rather roll the dice than go under the knife.

Nothing less than a full passage of ploughmen eating dinner written in Norris-style will better illustrate food consumed by the masses:

It was between six and seven o’clock.  The half-hundred men of the gang threw themselves upon the supper the Chinese cooks had set out in the shed of the eating-house, long as a bowling alley, unpainted, crude, the seats, benches, the table covered with oilcloth.  Overhead a half-dozen kerosene lamps flared and smoked.

The table was taken as if by assault; the clatter of iron knives upon the tin plates was as the reverberation of hail upon a metal roof.  The ploughmen rinsed their throats with great draughts of wine, and, their elbows wide, their foreheads flushed, resumed the attack upon the beef and bread, eating as though they would never have enough.  All up and down the long table, where the kerosene lamps reflected themselves deep in the oilcloth cover, one heard the incessant sounds of mastication, and saw the uninterrupted movement of great jaws.  At every moment one or another of the men demanded a fresh portion of beef, another pint of wine, another half-loaf of bread.  For upwards of an hour the gang ate.  It was no longer a supper.  It was a veritable barbecue, a crude and primitive feasting, barbaric, homeric.

To set up an opposition between salt-of-the-earth workers earning their keep against the diabolical railroad owners, Norris bases the novel’s plot on the true story of a May 1880 shootout between a California settler’s league and federal marshals and railroad officials carrying out an eviction order.  It happens after a rancher’s household belongings are tossed out unceremoniously onto a road and his home taken over by a railroad shill.  Seven men are killed, six of them settlers.  It’s known as the Mussel Slough Massacre or Tragedy, in much the same way that it’s either the Easter Rebellion or Uprising of 1920 in Ireland, depending upon one’s polarizing point of view.

Barn Dance Food and Entertainment

Barn dances are the great elixir of 19th century rural life.  In the harness room of newly built barn, a grand party opens among the first arriving men with punch being “fertilized” with whiskey.  “The first round of this drink had been welcomed with a salvo of cheers.”  A square dance is soon underway, with the leader of the City Band calling the figures.  When the late evening meal is served, it is monumental.  The tables of food are arranged around three sides of the barn.

[They are] loaded down with cold roasts of beef, cold chickens and cold ducks, mountains of sandwiches, pitchers of milk and lemonade, entire cheeses, bowls of olives, plates of oranges and nuts.  The advent of this supper was received with a volley of applause.  The musicians played a quick step.  The company threw themselves upon the food with a great scraping of chairs and a vast rustle of muslins, tarletans, and organdies, soon the clatter of the dishes was a veritable uproar.  The tables were taken by assault.  One ate whatever was nearest at hand, some even beginning with oranges and nuts and ending with beef and chicken.  At the end the paper caps were brought on, together with ice cream.  All up and down the tables the pulled “crackers” snapped continually like the discharge of innumerable tiny rifles.  The caps of tissue paper were put on—“Phrygian Bonnets,” “Magicians’ Caps,” “Liberty Caps”; the young girls looked across the table at their vis-à-vis with bursts of laughter and vigorous clapping of the hands.

During the barn dance, the wheat farmers are hand delivered a letter from the Pacific and Southwestern Railroad informing them that they can now purchase the railroad sections they have been occupying for over tenfold the amount originally offered in promotional circulars.  If they don’t buy the land now, anybody else can come in and scoop it up for that price.

The timing of this announcement could not be worse from the wheat ranchers’ perspective.  After two years of drought, low crop yields and losses, they finally have a banner crop of wheat emerging from the ground.  The railroad’s offer seeks to squeeze blood out of a turnip.  The barn dance ends with a pit in every rancher and farmer’s stomach.

A Slaughter of Rabbits

The Pacific and Southwestern Railroad takes tactical advantage of the next time everyone who works the land is preoccupied with an annual mass roundup of jack rabbits.  The working families spread across the land to create a soldier’s line of humans.  They slowly march forward with the aim of forcing rabbits—already starting to jump and scurry in the distance as they perceive the impending rumble—into a fenced corral.  There, they’ll be slaughtered in the thousands by men, torn apart limb by limb by dogs let into the fray.  Most participants can’t stand to watch this bloodbath.  A barbecue for one and all is the main attraction.

Two entire “beeves” are being roasted about a quarter mile away from the site of the jack rabbit massacre.  Underneath the shade of live oaks next to a creek, bottles are uncorked and oilcloths spread out over the ground.  Men light their pipes and cigars and women seize the opportunity to nurse babies.  After dinner, there are games of strength, “a footrace of young girls under seventeen” and a “fat men’s race.”  The younger fellows compete in a running broad jump, a standing high jump, a shot put throw, a “hop, skip, and step” event, and wrestling.  Presley is delighted with the entire scene of mass consumption.

By now everyone was eating.  It was the feeding of the People, elemental, gross, a great appeasing of appetite, an enormous quenching of thirst.  Quarters of beef, roasts, ribs, shoulders, haunches were consumed, loaves of bread by the thousands disappeared, whole barrels of wine went down the dry and dusty throats of the multitude.  Conversation lagged while the People ate, while hunger was appeased.  Everybody had his fill.  One ate for the sake of eating, resolved that there should be nothing left, considering it a matter of pride to exhibit a clean plate.

The fun and games are cut short when the ranchers learn that one of their own, Annixter (who lives on a steady diet of prunes) and his newlywed wife Hilma, have just had all of their possessions dumped out in front of their home.

Presley witnesses the confrontation between ranchers and the railroad’s long arm of the law.  Some of his best rancher friends are shot and killed in a confusing melee, escalated by a trigger-happy farmhand named Hooven.  Because of his German ancestry and broken English, he’s called Bismarck by his neighbors.  When he mistakenly believes that one of his fellow league members is being roughed up, he shouts, ”Hoch, der Kaiser!  Hoch, der Vaterland!”  After those exclamations, Hooven “dropped to one knee, and sighting his rifle carefully, fired into the group of men surrounding the buggy.  Instantly the revolvers and rifles seemed to go off of themselves.”

An Epic Poem, “The Toilers,” Goes Viral

The railroad’s subjugation of the People revolts Presley and turns him into (temporarily) a socialist anarchist.  He distills all of his piss and vinegar and veneration for the working class into an epic poem he calls The Toilers, modeled after Millet’s Man with a Hoe that he’d seen when visiting his relatives, the Cedarquists.  He abandons the stalled-out Song of the West.

When The Toilers is published in the Sunday supplement in a San Francisco newspaper, it goes viral.  It’s picked up in New York, Boston and Chicago papers.  Out of nowhere, Presley becomes an 1890s cause célèbre.

You won’t be exposed to any actual verses of the The Toilers in the novel, however.  That’s because it is an artifice derived from a previously published poetic tribute to Millet by Edwin Markham called The Man with the Hoe.[3]  The opening stanza of that famous poem echoes a theme of degeneracy, an outgrowth of Social Darwinism, which increasingly held sway in intellectual circles.

Bowed by the weight of centuries he leans

Upon his hoe and gazes on the ground,

The emptiness of ages in his face,

And on his back the burden of the world.

Who made him dead to rapture and despair,

A thing that grieves not and that never hopes,

Stolid and stunned, a brother to the ox?

Who loosened and let down this brutal jaw?

Whose was the hand that slanted back this brow?

Whose breath blew out the light within this brain?

To avenge the murder of his friends and neighbors, Presley learns pipe-bomb making skills from a local saloon keeper named Caraher.  Earlier, he had overheard Caraher ranting and railing against the Railroad Trust to Dyke, a black-listed railroad engineer who’s just been taken to the cleaners by the P and S.W over freight rates for bringing his bumper crop of hops to market.  Instead of eking out any profit, he’s lost his shirt.

Caraher eyes a convert in the making.  He had become an anarchist revolutionary after his wife “had been accidentally killed by Pinkertons during a ‘demonstration’ of strikers.”  Presley does not blame Caraher for becoming a “red.”

“Do you blame us now,” [Caraher] cried, “us others, the Reds?  Ah yes, it’s all very well for your middle class to preach moderation.  I could do it, too.  You could do it, too, if your belly was fed, if your property was safe, if your wife had not been murdered, if your children were not starving.  Easy enough then to preach law-abiding methods, legal redress, and all such rot.  But how about us?” he vociferated.  “Ah yes, I’m a loud-mouthed rum-seller, ain’t I?  I’m a wild-eyed striker, ain’t I?  I’m a bloodthirsty anarchist, ain’t I?  Wait till you’ve seen your wife brought home to you with the face you used to kiss smashed in by a horse’s hoof—killed by the Trust, as it happened to me.  Then talk about moderation!  *  *  *  There’s one thing only [the Railroad Trust] listens to, one thing it is frightened of—the people with dynamite in their hands—six inches of plugged gaspipe.  That talks.”

Presley’s foray into anarchy is a short-lived, showy dud.  He sneaks up on the house of the P and S.W. railroad’s most reviled representative, S. Behrman.  It is surrounded by a grove of live oak and eucalyptus trees.  The plugged gas pipe bomb he hurls through an open window of a dining room shatters glass, but leaves S. Behrman untouched, unharmed.

Presley makes a miraculous getaway.  No one remotely suspects that he’d be the culprit.  The railroad had so many enemies.  He lays low for a month and then heads to San Francisco to see Cedarquist, his wealthy capitalist relative.  He’d like to take passage on one of his ships embarking to India loaded with wheat.

Cedarquist can arrange it and also invites him to dinner later in the week.  As he’s strolling through San Francisco, Presley notices a sign for the P and S.W.’s head office.  On a whim, he decides to pay a call on the president, Mr. Shelgrim.  Surprisingly enough, he agrees to meet him, unscheduled.  When they start discussing Presley’s epic poem, Shelgrim startles him by asking why he wasted his time since Millet’s masterpiece left nothing more to be said.   Shelgrim patronizes Presley:

“You might just as well have kept quiet.  There’s only one best way to say anything.  And what has made the picture of The Toilers great is that the artist said in it the best that could be said on the subject.”  “I had never looked at it in just that light,” observed Presley.  He was confused, all at sea, embarrassed.

Presley expects to meet an ogre, and is instead rebuffed by an astute art critic.  The comment parallels Norris’s own abandonment of the epic poem in favor of the novel form.  He is trying to distance himself from the first book he ever published, Yvernelle (1892), a medieval romance written in a grand poetic style with octosyllabic couplets.

A Gilded Age Feast

After leaving Shelgrim’s office, Presley lands in the belly of the beast once again.   Cedarquist had mistakenly invited him to dinner on an evening when they had already been invited to a small dinner party at the Gerard’s, one of Pacific and Southwestern Railroad’s powerful vice-presidents.  Mrs. Cedarquist has finagled his invitation.  The Gerard’s daughter Honora is leaving for Europe; and it’s supposed to be a rather informal affair.  Mrs. Cedarquist can’t help noting that Honora is the “prettiest little thing, and will she be rich?  Millions, I would not dare to say how many.”  When he hears where he’s about to dine, Presley’s fists clench so abruptly he almost splits his white gloves.

While their horse drawn carriage is taking them to the Gerard’s mansion, The Octopus interleaves the homeless wanderings of Mrs. Hooven and her two daughters.  After her husband had been shot and killed, she and her daughters left the Los Muertos ranch.  The older daughter, Minna, gets separated from her mother and younger sister Hilda after she returns from an unsuccessful day of seeking work.  When she arrives at their boarding house, she learns that they’ve been evicted for not paying rent.

Minna searches for her mom and little sister high and low, but can’t find them.  After being outside two nights, cold and famished, Minna prostitutes herself rather than starve or freeze to death.  Mrs. Hooven and Hilda join the “via dolorosa of the destitute, that chemin de la croix [way of the cross] of the homeless.”  The “mile after mile of granite pavement that must be, must be traversed.”

Meanwhile, Presley and the Cedarquists are being dropped off at the doorstep of the Gerard’s.  Norris most likely used the Hopkins mansion as his setting for this dinner party.  Hopkins had built the house in the 1870s, but by 1893 it was being used as a school and gallery for the San Francisco Art Association.[4]  The Octopus’s lengthy interior description of the dining room matches that found in the museum’s official catalog.[5]

This gilded age dinner is inspired (in part) by a newspaper account of a banquet at the mansion of John Miller, who was once employed by the Central Pacific Railroad.  He enjoyed many fine things—with the help of embezzled railroad money.  (Miller later commits suicide when the source of his deep pockets is discovered.)  Norris pasted the newspaper account of the dinner party into his working Octopus notebook:

The banquet was a notable one.  All the great railroad magnates were there.  The wines were of the rarest vintages.  The service was irreproachable, the viands fit for a Roman orgy—in the days of the decadence.  The magnates clinked glasses with John Miller.  They responded to toasts with flattering allusions to his ability and faithful service.  They complimented him on his home, its furnishings, his pictures, statuary, servants, his dinner.

In a confused daze, Presley allows one of the footmen to relieve him of his coat and hat.  He’s soon greeted by Mrs. Gerard as “our new poet of whom we are all so proud” and is escorting Honora to the dining room table.  Raw Blue Point oysters are the first course, paired with a cool Haut Sauterne.   Cravings for these robust oysters originated in New York City in the early 1800s after they were discovered in the waters near the town of Blue Point on Long Island’s Great South Bay.  The Haut Sauterne is probably a semi-sweet white wine.  Mrs. Gerard leans over to Presley and murmurs:

“Mr. Presley, do you find that Sauterne too cold?  I always believe it is so bourgeois to keep such a delicate wine as Sauterne on ice, and to ice Bordeaux or Burgundy—oh, it is nothing short of a crime.”

The Gerard’s own a vineyard in southern France.  Mr. Gerard turns up his nose at California wines.  A pale-faced, languid, aesthete guest, Julian Lambert, recognizes the Haut Sauterne bouquet as coming from their vineyard.  Lambert’s fine taste draws Presley’s ire.  Lambert “strove to maintain the attitude of [a] fin gourmet, unable to refrain from comment upon the courses as they succeeded one another.”

Although it’s not mentioned in the novel, the progression of courses is mostly lifted straight out of a banquet organized by Sir Morton Peto that took place at Delmonico’s Restaurant in Manhattan on October 30, 1865.  It is reproduced as a “celebrated menu” in a cookbook by Chef Alessandro Filippini that Norris clearly used to develop the Gerard’s dinner party menu, The Delmonico Cook Book: How to Buy Food, How to Cook It and How to Serve It (1890).

Norris’s choice of menu is brilliant, a stroke of genius.  Peto is an early English railway entrepreneur and millionaire.  Peto toasts to the glories and possibilities of the “Railway System of America.” A New York Times review the next day regales the commoners with a breathless tribute to this dinner party-to-end-all-dinner parties:

Our distinguished English visitor, Sir MORTON PETO, last evening reciprocated, and most generously, the courtesies of his New-York friends, (and also his Western friends, as far as they could be assembled in this city,) by a splendid entertainment at Delmonico’s, Fourteenth-street. The sumptuous richness and elegance of this banquet, we feel free to say, has never been exceeded in this country. We doubt, indeed, whether so complete, so elaborate, and so delightful a dinner was ever served to a party so large as 250 guests in New-York.  [October 31, 1865.]

At Peto’s dinner, huîtres (oysters) are served with a Barsac wine, one of the five communes within the Sauternes wine region of France.  At the Gerard’s fictional dinner, the particular pairing of Blue Point oysters with a Haut Sauterne is from a sample New Year’s Day menu described early in Delmonico’s cookbook.

For the soup course, purée à la Derby is served along with hors d’ouvres, consisting of ortolan patties and “a tiny sandwich made of browned toast and thin slices of ham sprinkled over Parmesan cheese.”  Mrs. Gerard makes sure everyone knows that the wine is Xeres, an 1815 vintage.  The soup and the wine duplicate that served at Peto’s dinner, while the ortolan patties are perhaps drawn from the next page’s appetizer, canapés de filets d’ortolans, served at an 1863 Ball for the Russian Fleet.

Eating ortolan bunting songbirds is now banned in France, where that rite of gastronomic passage originated.  Xeres wine is better known as sherry.  The 1815 vintage must have displayed an amazing goût de terroir, an indelible trace memory in discerning palates of a bygone era.

The fish course consists of “grenadins of bass and small salmon, the latter stuffed and cooked in white wine and mushroom liquor.”  For Peto’s farewell tribute, this course includes Saumon à la Rothschild and Grenadins de Bass, New York.  The salmon dish is one of Antonin Carême’s sublime contributions to gastronomic history of the world.  He developed it while working for James Rothschild (Baron de Rothschild).

Carême “died at 50, ‘burnt out by the flame of genius, and the charcoal of the roasting-spit’ (Laurent Tailade), but having realized his dream: ‘To publish a complete book on the state of my profession in our times.’”[6] He’s dubbed the “Lamartine of the kitchen range,” after Alphonse de Lamartine, an acclaimed French writer, poet and politician.  A grenadin dish is commonly associated with veal, but if that same technique is applied to a more delicate bass filet, it’ll usually be interlarded with the “best larding bacon and then grilled (broiled), fried and even braised.”[7]

While dining through the fish course, Mrs. Gerard plays a cat-and-mouse game with Presley, shaming him (throwing shade in today’s parlance) for “The Toilers, I mean, What a sermon you read us, you dreadful young man.  I felt that I ought at once to ‘sell all that I have and give it to the poor.’  *  *  * Just because of that poem Mrs. Cedarquist and I have started a movement to send a whole shipload of wheat to the starving people in India.  Now you horrid réactionnaire, are you satisfied?”  “I am very glad,” murmured Presley.  They all find his comments to be clever, brilliant, epigrammatic.

The fish course ends with Mrs. Gerard interrupting her daughter’s conversation with the languid aesthete Lambert, in French: “Honora, entends-tu, ma chérie, l’esprit de notre jeune Lamartine.” (“Do you hear, my darling, the spirit of our young Lamartine?”)  A Steinberger Cabinet, a very fashionable and expensive Rhine wine, is paired with this course in Peto’s 1865 dinner.  None is mentioned around the Gerard’s table.

Norris selects Londonderry pheasants (Faisons à la Londonderry), escallops of duck (Escalops de Carnards, en Bigarade) and Risollettes à la Pompadour from Peto’s celebrated dinner for repurposing as the Gerard’s entrée coursesThe risollettes dish is named after Jeanne Poisson, Marquis de Pompadour, Louis VX’s mistress.  “Like many other courtesans of the period, she was very interested in cookery.”[8]  Classically, this stuffed puff pastry dish would be filled with a salpicon of pickled tongue, truffles, and mushrooms cooked in butter, bound with a very thick demi-glace sauce.  The sealed circles would be deep fried to a golden brown and perhaps served with fried parsley.  Château Latour is poured, as in Peto’s feast.

While the entrée courses are being served and consumed, young Lambert and Mr. Gerard reminisce about duck-shooting expeditions, Presley’s cousin Beatrice disputes the merits of a Scotch collie, and Mrs. Cedarquist and Mrs. Gerard discuss a novel—probably one of the most popular of the 1890s, Max Nordau’s Degeneration—a “strange mingling of psychology, degeneracy, and analysis of erotic conditions.”  Stepping back, one can view the dining room scene with authorial omniscience:

The entire table was a vague glow of white napery, delicate china, and glass as brilliant as crystal.  Behind the guests the serving-men came and went, filling the glasses continually, changing the covers, serving the entrées, managing the dinner without interruption, confusion, or the slightest unnecessary noise.

The snootiness of the uber-wealthy is on full display when talk turns to the stuffed artichokes and asparagus.  Mrs. Cedarquist praises the asparagus as “so delicate, such an exquisite flavor.  How do you manage?”  Mrs. Gerard explains their provenance:

We get all our asparagus from the southern part of the State, from one particular ranch . . . .  We order it by wire and get it only twenty hours after cutting.  My husband sees to it that it is put on a special train.  It stops at this ranch just to take on our asparagus.  Extravagant, isn’t it, but I simply cannot eat asparagus that has been cut more than a day.  * * *  [Imagine] eating ordinary market asparagus that has been fingered by Heaven knows how many hands.

For dessert, the company is treated to a Moscovite fouetté, another Peto menu item.  It is a “wonderful preparation of alternate layers of biscuit glacés, ice cream, and candied chestnuts.”  Young Lambert raises his glass of Madeira and offers the “Railroad King” his “best compliments for a delightful dinner.”

None of this sits well with Presley at all.  He’s burning with rage inside as the death of his friends scrolls through his mind.  The dainty women, “all these fine ladies with their small fingers and slender necks, suddenly were transfigured in his tortured mind into harpies tearing human flesh.”  They are being “fattened on the blood of the People, on the blood of men who had been killed at the ditch.  It was a half ludicrous, half-horrible ‘dog-eat-dog’ cannibalism.”

 *  *  *  *

We leave Presley, and his terrible Social Darwinian visions, as he departs on the Swanhilda.  He’s berthed above a massive load of wheat destined for famine relief in India.  The great harvest of Los Muertos (taken over by the railroad) is rolling “like a flood from the Sierras to the Himalayas” to feed the starving masses.  Wheat, “wrapped in Nirvanic calm” remains “indifferent to the human swarm, gigantic, resistless, moved onward in its appointed grooves.”  As they recede from Presley’s point of view, California’s coast range appears “vague and bluish above the waste of tumbling waters.”

[1] The Man with a Hoe can be viewed online at the J. Paul Getty Museum website, which provides the quoted description of Millet’s painting.  See http://www.getty.edu/art/collection/objects/760/jean-francois-millet-man-with-a-hoe-french-1860-1862/.

[2] Alfred Bierstadt’s painting View of Donner Lake can be accessed at https://art.famsf.org/albert-bierstadt/view-donner-lake-california-198454.

[3] The entire Edwin Markham poem entitled The Man with the Hoe can be accessed at https://en.wikipedia.org/wiki/The_Man_with_the_Hoe.

[5] See D. Graham, The Fiction of Frank Norris: The Aesthetic Context (1978), p. 116.

[6] Larousse Gastronomic (1988), pp. 194-95.

[7] Id., p. 529.

[8] Id., p. 823.

Defying a family trend around our dining table, I refused to call oleomargarine by its shorthand substitute, butter, in my early teens. I abhorred its fake butter taste on toast or corn-on-the-cob. Chastised as a finicky eater, I became a butter purity activist in my tiny domain of one.

Food names matter, neuro-psychologically. As Apicius, an early Roman gourmand put it, “We eat first with our eyes.” Scientists theorize that “the smells and flavor of cooking were likely a prime factor in the development of language.”[1] The fact that most animals “evolved a mouth that is situated close to their brain is presumably no coincidence.”[2]

Novel foods—such as the plant-based, heme-bleeding Impossible Burger now in voguechallenge ingestion paradigms. Deciding what to even call them requires intense branding, marketing and pairing with established foods—in order to entice a skeptical audience to consume new foodstuffs for the first (second and third) time.

A food identity culture war is roiling. “Traditional” meat and dairy producers watch market shares erode as “plant-based” products invade their sacrosanct grocery store display cases. Some clamor for stricter federal food identity standards to protect them from emulator competition. Using hazelnut milk as a litmus test example, this post examines this bulging mouthful of a fraught topic.

Filberts or Hazelnuts?

The Willamette Valley of Oregon is the center of United States’ hazelnut production. The state grows 99% of our nation’s output. Well before the current brouhaha over food naming conventions, what to call them—hazelnuts or filberts—proved divisive.

Referring to scientific names is precise, but they are not memorable. Yet, they can relate fascinating “origin” stories on their own. A case in point are Oregon hazelnuts. They are largely derived from a Barcelona cultivar of Corylus avellana, introduced into the United States from Europe in 1885 by Felix Gillet, a California pioneer nurseryman and horticulturist. In 1903, George Dorris planted the first commercial hazelnut orchard in Springfield, Oregon, with more than 200 Barcelona hazelnut trees.[3] The Dorris Ranch is now a nature preserve and living history farm.[4]

Oregon State University is a powerhouse of hazelnut research and patenting. In honor of the Dorris family legacy, OSU inventors named a newly patented Corylus avellana plant exhibiting special resistance to eastern filbert blight as the Dorris variety. Its lineage includes a cross of the Barcelona cultivar.

While hazelnuts are also indigenous, Corylus americana never caught fire commercially like the Barcelona cultivar. In fact, eastern filbert blight is caused by a native fungal parasite of the wild American hazelnut.[5] That blight effectively prevented an eastern U.S. hazelnut growers’ market from taking root. Eventually, it spread to Oregon. A Daviana hazelnut variety—imported from England in the 1870s and widely planted as a pollinizer for the Barcelona cultivar—is highly susceptible to eastern filbert blight and its Oregon planting is no longer recommended.

The avellana epithet of the European hazelnut tree is itself telling. In ancient times, it was originally thought (by Pliny the Elder) to be derived from Abellina in western Asia, “allegedly the present valley of Damascus.” Hence, filberts were believed to have emanated from the Middle East. Their actual European passageway is more convoluted. Recent scientific scholarship traces the epithet back to the towns Avella and Avellino in Campania, a region in southwestern Italy where hazelnuts were widely cultivated in Roman times. From there, Corylus avellana spread to modern day Spain and France.[6]

The easier-to-remember filbert name gained early ascendancy in American commerce. The name is reputably derived from the French Catholic saint, St. Philibert of Jumièges. His feast or celebration day is August 20th. Hazelnuts are ready to be harvested around then.

Filbert recipes dominated the cookbook lexicon through the mid-twentieth century. The leading, but unsung cookbook of that era is Helen Brown’s West Coast Cook Book—championed by the legendary James Beard upon its publication in 1952. An Oregon native, Beard exclaimed that it is “one of the most delectable books of regional cookery, in its true sense, that I have ever read.”

Hazelnuts do not appear in the index in the West Coast Cook Book, but filberts do. Helen Evans Brown describes them in glowing terms:

Filberts are the latest, and one of the most delicious nuts to come out of the West. California tried cultivating filberts, but without any marked success. The [Pacific] Northwest tried it, and now the Northwest filberts are rivaling the almonds and walnuts of California. Filberts are terrific—their flavor is considered by many connoisseurs to be the very finest of the nuts.[7]

A sea change in filbert naming occurred in 1981, when the Oregon Filbert Commission conformed to an English naming convention and adopted the hazelnut appellation. In 1989, the Oregon legislature crowned the hazelnut (Corylus avellana) as the state’s official nut. Lost in this Oregon marketing dust is our country’s wild counterpart, Corylus americana.

Hazelnuts are now generally packaged and sold as a commodity product. While consumers do not seek out a specific variety of hazelnuts to purchase (at least yet), they pay more money for organic hazelnuts.

Shredded Wheat, Hazelnut Milk and Consumer Expectations

Whether the American public realizes it or not, food names are federally regulated. The Food and Drug Administration’s general standard of food identity provides that:

The common or usual name of a food, which may be a coined term, shall accurately identify or describe, in as simple and direct terms as possible, the basic nature of the food or its characterizing properties or ingredients. The name shall be uniform among all identical or similar products and may not be confusingly similar to the name of any other food that is not reasonably encompassed within the same name. 21 C.F.R. § 102.5.

Exactly what is a “common” or “usual” name of food? The Supreme Court grappled with this issue over the term shredded wheat. Kellogg Co. v. National Biscuit Co., 305 U.S. 111 (1938) examines the interplay between patent and trademark rights and how it impacts our public domain food vocabulary.

In 1895, Henry Perky obtained a U.S. patent for “Bread and Method for Preparing Same.” The invention process converted entire wheat berries into a “porous or shred-like form to constitute, without other shortening or aeration, bread of especially light and wholesome character.” The company acquiring these patent rights referred to this product as shredded wheat. It gained commercial success in 1901, eventually being manufactured by “The Shredded Wheat Company” (later acquired by the National Biscuit Company in 1930).

Kellogg’s began selling “Shredded Wheat” breakfast cereals in the 1920s. The shredded wheat making patent rights had expired in 1912. National Biscuit Company sued Kellogg’s, claiming trademark rights in the name and the shape of the product. The Supreme Court held that that name (and pillow shape) had long since entered the public domain:

The plaintiff has no exclusive right to the use of the term “Shredded Wheat” as a trade name. For that is the generic term of the article, which describes it with a fair degree of accuracy; and is the term by which the biscuit in pillow-shaped form is generally known to the public. Since the term is generic, the original maker of the product acquired no exclusive right to use it. As Kellogg Company had the right to make the article, it had also, the right to use the term by which the public knows it. *  *  * Ever since 1894 the article has been known to the public as shredded wheat.

Pouring hazelnut milk over your shredded wheat raises the ire of some in the dairy industry and elsewhere. The Code of Federal Regulations specifically defines milk as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” See 21 C.F.R. § 131.110(a). But wait. There’s more. The CFR’s include detailed requirements for nonfat dry milk, evaporated milk, heavy cream, light cream, sour cream, half-and-half and so on. This spate of rules underscores the significance of milk to the American palate.

In September 2018, FDA Commissioner Scott Gottlieb addressed a dairy industry concern that “the labeling of some plant-based products may lead consumers to believe that those products have the same nutritional attributes as dairy products.” The FDA is trying to “better understand consumers’ expectations of these plant-based products compared to dairy products.”[8]

How does common usage develop? Existential dialogue about the taste of  freshly caught lobster illustrates consumer expectations. This excerpt is from Book Three of Karl Ove Knausgaard’s epic autobiographical novel of modern life in Norway, My Struggle:

[W]hile we were eating, Solvi looked at Dad and said:

“Imagine you catching this lobster yourself. It tasted delicious.”

“It really was delicious,” Grandma said.

“Nothing tastes as good as lobster,” Dad said. “But we can’t know if it tastes the same for all of us.”

Solvi stared at him.

“What do you mean by that?”

“I know how it tastes to me,” Dad said. “But I have no idea how it tastes to you.”

“It tastes like lobster, of course,” Solvi said.

Everyone laughed.

I didn’t understand what they were laughing about. What they said was right. But I laughed too.

“But how can you know that lobster tastes the same to me as it does to you?” Dad asked. “For all you know, it could taste like jam to me.”

Solvi was about to say something, but held back, looking down at the lobster, then up at Dad. She shook her head.

“I don’t understand,” she said. “The lobster’s there. And it tastes of lobster. Not jam!”

The others laughed again. I knew Dad was right, but I didn’t know exactly why. For a long time I sat musing. It was as if I was constantly on the point of understanding, but then as I was beginning to comprehend, it slipped from my grasp. The thought was too big for me.[9]

We cannot really know what other people are tasting. The experience is totally subjective. But we do find common ground in using the same words as others for what we decide to purchase, chew and swallow.

Whatever may be gleaned from the FDA’s ongoing study of a consumer milk expectations, existing vocabulary and common usage appear to quell confusion about whether one is about to ingest cow’s milk or a plant-based substitute. A hazelnut milk fan effusively states in her blog:

I’m not sure that I can do it justice with words alone, but imagine the most beautifully rich and somewhat decadent milk tinged with a deep, roasted hazelnut flavour and smooth, creamy texture. This milk is queen of all homemade nut milks and even though it has a very distinct flavour and colour, I couldn’t imagine it not working anywhere [I] would normally use plain milk.[10]

This ode to hazelnut milk is instructive. When the author refers to cow’s milk, she uses the adjective plain milk to make her point clear. While nut milks share mouth-appeal characteristics of cow’s milk, they do so with different smell, flavor and taste profiles. Your gustatory senses are hard to fool. The use of efficient adjectival qualifiers circumvents potential consumer confusion.

In a nutshell, the bottom line of this post is: Don’t buy nut milk if you’re asked to pick up some plain milk at the local grocery store on your way home from work. Capisce?


[1] G. Shepard, Neurogastronomy: How the Brain Creates Flavors and Why It Matters (2013), p. 231 (paperback edition).

[2] C. Spence, et al., “Eating with our eyes: From visual hunger to digital satiation,” Brain and Cognition 110 (2016) 53-63.

[3] See http://oregonhazelnuts.org/about/.

[4] See https://www.eugenecascadescoast.org/listing/dorris-ranch-living-history-farm/1031/.

[5] T.J. Molnar, et al., “Developing Hazelnuts for the Eastern United States,” from Proc. VIth Intl. Congress on Hazelnut, Acta Hort. 686 (2005).

[6] The quoted material in this paragraph is from P. Boccacci and R. Botta, “Investigating the origin of hazelnut (Corylus avellana L.) cultivars using chloroplast microsatellites,” 56 Genet. Resource Crop Evol. 851-859 (2009).

[7] Helen Brown’s West Coast Cook Book, p. 279 (1952).

[8] See https://www.fda.gov/news-events/press-announcements/statement-fda-commissioner-scott-gottlieb-md-modernizing-standards-identity-and-use-dairy-names

[9] Karl Ove Knausgaard, My Struggle (Book Three: Boyhood) (original Norwegian copyright 2009).

[10] See https://tohercore.com/how-to-make-homemade-roasted-hazelnut-milk/.

Hedonism is the pursuit of pleasure and sensual self-indulgence. When applied to food, we conjure up high-priced luxuries like the Italian white Alba truffle—the “Mozart of mushrooms”—or the French black Périgord truffle—the “black magic apple of love.”

Hedonic food consumption is vivid—hence memorable. As we chew and swallow fine foodstuffs, we express satisfaction in facial expressions and vocal utterances. When hosts of the Food Channel’s The Best Thing I Ever Ate reminisce about glorious meals, their enthusiasm quaffs over into wide-eyed grins, “oohs and ahhs,” and the licking of lips.

Eating and drinking well creates neuronal memory traces. Put more artfully by the poet/novelist Jim Harrison, “goose bumps come with the divine conjunction of food and wine.”[1]  Where triggered by food nostalgia, copyrightable expression flies off the page and screen. This post examines how dining on truffles can transport you in the writer’s imagination.

Continue Reading The Copyrightable Firepower of Hedonic Food Consumption

Richard Olney’s The French Menu Cookbook (1970) and Simple French Food (1974) profoundly shaped American food trends in the 20th century—mostly behind the scenes. They inspired Alice Waters as she launched Chez Panisse, igniting a fresh California cuisine revolution. She, James Beard and Julia Child would all make regular pilgrimages to Olney’s hermitage dwelling in Provence to dine with this genius of the palate.

Success spawns copycats. The culprit here is Richard Nelson’s American Cooking (1983). It is filled with recipes copied verbatim from Simple French Food (and other cookbooks). When food journalists uncovered Nelson’s pilfering, a plagiarism firestorm ensued. But did his blatant recipe copying violate U.S. copyright laws? The answer is nuanced.

Careless recipe gathering derailed Nelson’s once promising career. This post examines the merits of a copyright lawsuit Olney filed to protect his professional reputation.

Continue Reading The Recipe Copyright Title Bout of the 20th Century: Olney vs. Nelson vs. Beard

Whoever invents or discovers any new and useful composition of matter may potentially obtain a United States patent. When it comes to food compositions, however, this seemingly broad scope of patentability is judicially tempered.

Novel foods are not patentable unless they demonstrate a “coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function.” In reality, patent applicants find it difficult to satisfy this scientific-sounding rule.

Even if an inventor could hurdle this patenting bar, who would want to eat food whose ingredients coact or cooperate unexpectedly?  Food neophobia—a reluctance to ingest novel foods—is characteristic of omnivores, including humans.[1] To ward against automatic rejection of novel food tastes or flavors, successful patentees must marshal abundant marketing prowess.

This post examines why the patent court formulated this food composition rule, how it is being employed by patent examiners and judges, and how savvy brand managers design subliminal retail strategies to counter innate consumer fear of ingesting novel foods.  Patentable vegan burgers illustrate how this marketing process works in action.

Continue Reading The Scientific-Sounding Bar to Patenting Food Compositions and Marketing Around Innate Rejection of Novel Foods

Truffles mushrooms reside in a Holy Grail land of taste preference. They call to mind ancient French banquet meals and rural truffle hunters and their dogs. Scarce and expensive, the truffle industry satisfies market demand by bottling their musky scent in so-called truffle oils.

The Pacific Northwest is an unsung truffle backwater—when compared to the famous truffle growing regions of Périgord, France and Alba, Italy. Most residents never see, smell nor taste our region’s outstanding earthy delicacy, the Oregon black truffle. Lately though, I’ve binged on them, developing a classic neuropsychological food craving.

Why are truffles such high-end luxury goods and how do they induce food cravings? This post confronts these basic questions. Along the way, it offers some practical advice for home cooks preparing truffles for the first time.

Continue Reading On Oregon Black Truffles, Scent Marketing and Neuropsychological Food Cravings

Bourbon Pecan PiePecans are a microcosm of Americana.  “As the Stuart Pecan Company would brag in 1893: ‘We [Americans] have rightfully a monopoly upon the nut.’”[1]

Wild pecan trees proliferate in riverine ecosystems coursing through the southern United States.  Their domesticated, often patented counterparts now satisfy huge consumer demand for these indigenous nuts, once vital to tribal commerce.  Indeed, the name pecan is derived “from an Algonquin word meaning, loosely translated, ‘a nut too hard to crack by hand.’”

Close scrutiny of my favorite bourbon pecan pie recipe offers some unusual insights regarding the importance of plant patents, what copyright originality means as applied to classic recipes, and chef brands tarnished by the #MeToo social movement.  This post cracks open these peculiarly American socio-legal issues.

Wild versus Patented Pecan Trees

To delve into a pecan pie, one must understand its progenitors.  Wild pecan trees tower over other trees as a “climax tree species.”  In record time, this wild hickory plant (Carya illinoinensis) morphed into pecan cultivar orchards that dominate landscapes in Georgia, New Mexico, and other non-native states.

The pecan, however, remained “a wild plant for a much longer time than any other commodified fruit or nut primarily because its wild variety happened to bear fruit that tasted supremely domesticated.”

From the commercial grower’s perspective, applying orchard techniques to cultivate pecans in ecosystems far removed from their natural habitat creates a host of profound production issues.

  • Pecans do not grow true to seed, so grafting trees is the only way to ensure nut quality and consistency.
  • Pecans do not “mast” (i.e., bear nuts) every year, or even every other year sometimes. In addition, an orchard of cultivated pecan trees can take at least eight years to begin masting “at full throttle and as many as fifteen years before they reach peak production.”
  • Domesticated pecan cultivars are susceptible to a host of plant viruses and pests that their wild counterparts can avoid in their natural habitats.

Many of these grower issues can only be solved through inventing or discovering pecan tree varieties with new attributes.  In this regard, one inventor rules this market space: Dr. Darrell Sparks, who is associated with the University of Georgia.  His book, Pecan Cultivars:The Orchard’s Foundation (1992), is the leading authority in this field of commerce.

Sparks’ latest discovery, a pecan tree named ‘Tanner,’ will soon issue in 2018 as his seventh U.S. patent.  He describes its novel contribution:

‘Tanner’ is distinguished from other pecan varieties known to the inventor due to the following unique combination of characteristics: Consistent and acceptable fruit production, small fruit cluster, early nut maturity, large nut producing mammoth kernels with excellent color and high resistance to scab fungus . . . and moderate resistance to black aphid . . . .  ‘Tanner’ will fill in a niche for large nuts similar in size to ‘Desirable’ but with the advantage of earlier maturity and high resistance to scab.

Plant patents tend to have long gestation times, and ‘Tanner’ is no exception.  It originated in 1995 through crossing a ‘Desirable’ pecan tree cultivar as the seed parent with a ‘Pawnee’ cultivar as the pollen parent.

Continue Reading A Bourbon Pecan Pie Fest of Plant Patents, Copyright “Originality” and Soiled Chef Brands

White Alba TrufflesWhite Alba truffles from the Piedmont region of Italy—and black winter truffles from Périgord, France—are a fount of gastronomic legends.

A black truffle and foie gras soup, served with a puff pastry topping, is the signature recipe of the late, great French chef, Paul Bocuse.

My first indelible taste of a White Alba truffle came shaved atop a Carnaroli Risotto Biologico with a Castelmagno Mousse, served at Per Se, Chef Thomas Keller’s restaurant in Manhattan—at $175 per plate (2011 price).

Why do these exotic truffle nuggets captivate our senses in the course of depleting our pocketbook?  Their wafting aroma creates a pheromonic stage for intense consumer demand—expensive to satisfy, at least authentically.  Worldwide commerce in scarce truffles in turn engenders some peculiar and perhaps surprising intellectual property law issues.

“Mozart” and “Black Diamond” Truffles

Truffles are the most precious representatives of goût de terroir (“taste of the earth”) in the world.  They are “the fruiting bodies of mychorrhizal fungi associated principally with the roots of oak trees in forests and oak plantations.”[1] “In general, truffles have no stalk, no gills and its mycelium grows underground.  Rather than having the soft and fragile feature of common mushrooms, mature truffles tend to be firm, dense, and woody.”[2]

When the Italian mycologist, Carlo Vittadini, discovered the Périgord black truffle in 1831, he gave it the scientific name Tuber melanosporum.  Tuber, the genus, is a Latin word meaning “a lump or swelling”; whereas the specific epithet melanosporum means “black spores.”  In French haute cuisine, they are known as “black diamonds” and the “jewel of cookery.”[3]

The White Alba truffle, Tuber magnatum, is characterized by a pale smooth exterior and cream or ochre interior.  White truffles are found in the Piedmont region of northern Italy and the Motovan Forest of the Istrian Peninsula in Croatia.  Their spore-bearing material is marbled by white membranes in a random wandering form rather than any regular pattern.” [4]  An Italian composer refers to White Alba truffles as “the Mozart of mushrooms.”[5]

We Feast First With Our Eyes”

Shakespeare’s Sonnet No. 47 spawned the maxim, we feast first with our eyes.  Yet, applying that adage to mushrooms buried in dirt is problematic.  One commentator aptly states:

There is no point in trying to describe the shape of a truffle; they are the ultimate in shapelessness.  Blobs, sometimes more or less spherical but quite often multi-lobed, the outer surface of the Périgord Black Truffle is dark brown to black, covered in small crazed polygonal sections with shallow rivers between them—not unlike limestone pavement, but less regular in size and not aligned in any systematic way.[6]

Another scientific paper puts it more bluntly: “truffles are rounded, ugly and potato-shaped mushrooms with a subterranean habit.”[7]

Continue Reading The Intellectual Property Allure of Truffle Mushrooms