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]

Yours is a Real Case

This scenario comes from a real court case: Bylsma v. Burger King Corp., decided by the Washington Supreme Court in 2013.[2]  The passages in the above section are recited almost verbatim from a sworn, two-page declaration submitted by the plaintiff, Edward Bylsma.

In a 6-3 decision, the court held that Washington’s Product Liability Act allows the recovery of emotional distress damages for food contamination claims without the necessity of actually ingesting the tainted food.  In contrast, many other states still require physical ingestion of contaminated food in order to press an emotional distress claim.  The court held that emotional distress damages are recoverable:

[I]n the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated food product, if the emotional distress is a reasonable response and manifest by objective symptomatology.

The majority opinion resorts to “common sense” in explaining its holding—observing that “food consumption is a personal matter and contaminated food is closely associated with disgust and other kinds of emotional turmoil.”[3] The supreme court devised this novel emotional distress claim standard without reference to any psychological or medical literature describing the emotion of “disgust.”  None had been introduced by the parties in the record.  Nevertheless, the majority opinion injects a medical term—objective symptomatology—as an element of this tort claim

This lack of Bylsma record facts describing the nature of food “disgust” is explained by its procedural posture.  The underlying complaint had been dismissed on the pleadings by a federal district court.  Upon appeal, the Ninth Circuit certified to the Washington Supreme Court the then unsettled question of whether Washington law allows a recovery of emotional distress damages suffered by a consumer who purchases and touches, but does not consume, a contaminated food product.  The case settled shortly after the Washington Supreme Court revived plaintiff Bylsma’s emotional distress claim.

The Bylsma Dissent

The three dissenting justices take the Bylsma majority to task for recognizing a novel emotional distress claim for witnessing and touching—but not consuming—contaminated food.  They were most concerned about creating unlimited liability for emotional distress damages when a food product does not meet one’s personal expectations.  In a series of rhetorical questions, the dissent questions the majority’s wisdom in recognizing this claim:

  • Should a restaurant be held liable for emotional distress suffered by a strict vegetarian who is served a dish containing meat? See Gupta v. Asha Enters. LLC, 442 N.J. Super. 136, 27 A.3d 953 (2011) (answering no).
  • Is a person who maintains a kosher diet emotionally distressed after possibly being served nonkosher food? See Siegel v. Ridgewells, Inc, 511 F.Supp.2d 188 (D.D.C. 2007) (answering no).
  • What if a customer finds a strand of hair in his or her food? Or any other item that does not belong in the ordered dish?

The Bylsma dissenters concluded that while these undesirable incidents may be off-putting, they all involve a type of food distress that is simply a “fact of life.”[4]  Their reasoning finds support in the common law principle that the law “does not concern itself with trifles.”

Defining Food-Based Core Disgust

The Bylsma majority assumed they could base their case holding on pure “common sense.”  Had the psychological literature about food disgust been consulted, they would have found it supports a normative rule disallowing emotional distress damages for disgusting food that is not actually ingested.  In effect, these jurists created a claim that compensates a purchaser/witness of contaminated food for damages based on the sympathetic magical law of contagion, which can be summarized as “once in contact, always in contact.”[5]

The sympathetic magical law of contagion refers back to the long history of disgust—as both a word and concept.  Dis-gust literally means “bad taste.”  Two classic papers are the source of the historical definition of disgust.  The first is Charles Darwin’s The Expression of Emotions in Man and Animals (1872).  He defined disgust as referring to “something revolting, primarily in relation to the sense of taste, as actually perceived or vividly imagined; and secondarily to anything which causes a similar feeling, through the sense of smell, touch or even of eyesight.”[6]  Darwin also concluded that disgust had a characteristic facial expression.

Psychoanalyst Andras Angyal (1941), in turn, described disgust as the “prospect of oral incorporation of an offensive object.”  He concluded that the central focus of disgust is on human (or animal) waste products.  “There is widespread historical and cultural evidence for aversion and disgust to virtually all body products, including feces, vomit, urine and blood, especially menstrual blood.”[7]

More recently, leading researchers have refined these classic definitions of disgust by introducing different types of disgust.  In particular, “core disgust.”  In the context of food, it refers to even brief contact of an acceptable food with a contaminant that renders that food unacceptable.”[8]

Contemporary scientists have also broken down disgust into several component reactions.  The hallmark behavioral response to disgust is distancing one’s self from the object of disgust.  This is often accompanied by physiological components (i.e., nausea) and expressive components (i.e., facial expressions).  The facial characteristics that mark the expressive reaction to disgust are known as disgust face.  It includes a gaping mouth, upper lip retraction, and a wrinkled nose.  Importantly, these facial movements discourage food entry and encourage its discharge.  The mental or feeling component of disgust is often defined as revulsion, a short and passing phenomenon.

The “contamination response—rejection of a potential food if it even briefly contacted a disgusting entity—appears to be powerful and uniform among adults.”[9]  Illustratively, studies show that individuals will reject beverages they like after learning, for example, that they were briefly in contact with sterilized cockroaches or brand-new, never-used flyswatters.  These perceived contamination effects are instances of the sympathetic magical law of contagion.

A second law of sympathetic magic posits that ‘if things are superficially similar, then they resemble each other in a deep sense as well.”[10]  The sympathetic magical law of similarity comes into play when objects that look like something disgusting are treated as such.  For example, researchers found that many are reluctant to eat imitation dog feces made out of chocolate fudge.[11]

These dual aspects—trace and resemblance—of food contamination are derived from a wide variety of magical beliefs and practices formed in primitive cultures and still observed subconsciously in modern cultures:

In magical practices, the vehicle for contagion is often a personal residue; fingernail pairings, spittle, or other personal residues retain essential properties of their original owner and can be used for sorcery.  The vehicle for this transmission is an “essence” (usually the product of animate entities), which contains the essential properties of the host and can be transmitted by contact.”[12]

Core disgust requires a sense that consuming the contaminated food is forthcoming, if not imminent.  “The mouth seems to function as a highly charged border between self and nonself.”[13]  “This focus on oral incorporation distinguishes the emotion of disgust from all other emotions.”[14]  Ingestion triggers the widespread belief that “you are what you eat.”  This belief stems from our general perception that when two things are combined, the resulting product resembles both.[15]

The Nature of Individual Disgust Sensitivity

In advancing their research into the emotion of “disgust,” researchers are investigating the development of and individual differences in “disgust sensitivity.”  Some of the more intriguing findings[16] are:

  • The odor of decay is perhaps the most potent sensory attribute associated with disgust. In this regard, “olfaction [smelling] and emotion are deeply connected by neuroevolution.”[17]  The “emotional and associative learning substrates of the brain grew out of tissue that was first dedicated to processing the sense of smell.”  Sights and sounds are processed by different, more analytical parts of our brains; whereas olfaction is “our phylogenetically oldest and most primitive sense.”[18]
  • Disgust requires enculturation. There is no sense of offensiveness or rejection in either infants (up to the age of three) or nonhumans.  In other words, disgust is a learned behavior, primarily through toilet training.
  • Women score higher in disgust sensitivity than men.
  • Disgust sensitivity declines with age and may decline faster for women than men.
  • Neuroticism correlates positively with disgust sensitivity.
  • Disgust sensitivity measurements can predict clinical conditions, such as obsessive-compulsive disorder, eating disorders, schizophrenia and hypochondria.

Psychoanalyzing Bylsma Through a Disgust Sensitivity Lens

Armed with these psychological research findings, the Bylsma case facts appear to involve an individual with an unusual degree of disgust sensitivity.  His objective symptomatology includes nausea.  Through the laws of sympathetic magic operative in plaintiff’s actions, however, disgusting food to be avoided now embraces all food other than that which he prepares at home.

Bylsma’s decision to open, examine and touch his contaminated hamburger was triggered by some vague discomfort with his purchase transaction.  His touching of the mysterious “puddle of phlegm” helped him quickly classify it as spittle.  In this regard, “haptic exploration” (touching) is a remarkably fast and accurate way to recognize real objects.[19]  He then immediately distanced himself from the food product.  It never reached his mouth.

Based on the foregoing research findings, Bylsma’s initial avoidance and nauseated reaction to his tainted hamburger represents a classic disgust response.  His actions prevented the perceived contaminant from being orally ingested.  However, his subsequent rejection of all other food prepared outside of his home appears to be a neurotic reaction and is perhaps more indicative of some form of psychopathology.

The Bylsma Holding: A Contradiction in Terms?

The Bylsma majority fashioned an emotional distress claim standard that features an embedded contradiction in terms.  It will compensate a plaintiff for emotional distress if it is a “reasonable response” to contaminated food that has been touched but not consumed.  However, haptic reactions involve an entirely different sensory system from that engaged by oral ingestion.  The Bylsma majority confused the senses of touch and taste and their much different purposes and sensibilities.

Here, Bylsma’s defense mechanisms worked quickly and effectively in avoiding oral ingestion of a contaminated food product.  Nothing reached his mouth; he never tasted anything awful.  His subsequent shunning of all food prepared outside of the home is—by the court’s own standard—a “neurotic” reaction that cannot be normatively defined as “reasonable” even if does amount to a form of “objective symptomatology.”

Bylsma may have been morally disgusted by his Whopper encounter, but that emotion is rooted in righteous anger, not food disgust.[20]  The Bylsma majority thus conflated disgust and anger in fashioning a new emotional distress tort claim, unable to discern their fundamental emotional differences in the case at bar.  By grounding an emotional distress damages claim on sympathetic magical laws of contagion and similarity, the court demonstrated all over again that “common sense ain’t so common.”


[1] The author would like to acknowledge and thank a Lane Powell colleague, Julia Abelev, for her cogent insights and masterful editing of this article.

[2] Bylsma v. Burger King Corp., 176 Wn.2d 555, 2933 P.3d 1168 (2013).

[3] Id., 176 Wn.2d at 561.

[4] Id., 176 Wn.2d at 570 (internal citation omitted).

[5] This article’s discussion is largely drawn from a chapter on “Disgust” included in the Handbook of Emotions (3rd Ed. 2008).  The authors of the Chapter 47 on disgust are Paul Rozin, Jonathan Haidt and Clark McCauley.  The Handbook of Emotions is widely regarded as the standard reference resource in the field.

[6] Id. at 757.

[7] Id.

[8] Id. at 758.

[9] Id. at 760.

[10] Id. at 761.

[11] Id.

[12] P. Rozin and A. Fallon, “A Perspective on Disgust,” 94 Psychological Review 1 (1987), at 30 (emphasis added).

[13] Id. at 26.

[14] Id. at 25.

[15] See n. 5, at 759.

[16] Id. at 767.

[17] R. Herz, “The Emotional, Cognitive, and Biological Basics of Olfaction,” from Sensory Marketing: Research on the Sensuality of Products (2010).

[18] Id.

[19] J. Peck, “Does Touch Matter?  Insights From Haptic Research in Marketing,” from Sensory Marketing: Research on the Sensuality of Products (2010).

[20] See n. 5, at 762.


Photo of Paul D. Swanson Paul D. Swanson

Paul Swanson’s track record speaks for itself: the World Trademark Review 1000 lists Paul as a top individual in the trademark practice, describing him as a “very smart IP litigator who brings decades of courtroom experience to the table.” He is the only…

Paul Swanson’s track record speaks for itself: the World Trademark Review 1000 lists Paul as a top individual in the trademark practice, describing him as a “very smart IP litigator who brings decades of courtroom experience to the table.” He is the only Washington attorney to be awarded Lexology’s 2017 Client Choice Award in the field of trademark law.

Paul’s food/intellectual property law practice provides astute counsel regarding the intellectual property foundations of your food-related business ventures. His guidance is especially vital for agribusiness clients with intellectual property rights in formerly unbranded fresh fruit and vegetable produce. As the industry has shown, the reputation and goodwill of agribusinesses and foodservice companies is bound up in the quality of their products and services and the brand recognition generated through the diligent efforts of company employees and their predecessors.

Having worked on cases that now authoritatively control legal outcomes in matters of agribusiness commerce, Paul has a deep understanding of the complex legal issues faced by his clients. He regularly speaks on and writes about intellectual property issues and is principal contributor to the firm’s “Earth and Table” Law Reporter blog, devoted to analyzing the interplay between intellectual property and food commerce.

Paul is a Former Chair of the Washington State Bar Association’s Intellectual Property Section. He also chaired a WSBA/IP trademark committee whose work significantly revised Washington trademark law, and is a member of the International Association of Culinary Professionals (IACP).

Paul served as a Board Member of the Neighborhood Farmers Market Alliance, a community-based, nonprofit organization that operates seven farmer/food-only markets in Seattle neighborhoods. His article regarding the history and legal status of organic and natural food labels entitled “We Are What We Eat” appears on the website of Gastronomica: The Journal of Food and Culture.