Food Labeling and Packaging

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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

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

No, this post is not about the Thanksgiving antics of eccentric relatives.  Rather, it describes patented varieties of almonds, walnuts and pecans they may crack open with vintage nutcrackers—making a gleeful mess before dinner is served.

Tree nuts still resist the specific varietal trademark branding now associated with former fruit commodities, such as the Pink Lady® or forthcoming Cosmic Crisp™ apples.  Patent rights in undifferentiated fruit or vegetable produce usually focus on solving grower or industry facing concerns, instead of directly appealing to consumer taste preferences.

This post spotlights tree nut grower issues—as revealed by recently issued U.S. plant patents—and offers some tasty uses for this trio of very healthy, but seemingly under-utilized foodstuffs.[1]

Almond Trees Named ‘Kester’ and ‘Alm-21’

The most recent almond plant patent to emanate out of the UC Davis plant breeding powerhouse is for an almond variety named ‘Kester.’  The appellation is a tribute to the late Dr. Dale Kester, a highly regarded professor known for his work on the genetics and physiology of almonds.

Perusal of the ‘Kester’ plant patent specification discloses the “need for the development of new varieties capable of acting as a pollinizer for the California variety ‘Nonpariel’ (non-patented in the United States.)”  The ‘Nonpariel’ almond variety is California’s leading almond and accounts for almost 40% of total almond planted acreage.  Your reigning  flavor profile of an almond is probably a result of consuming ‘Nonpariel’ almonds.

The basic almond grower’s issue is this: the ‘Nonpariel’ almond variety—like most commercial almond varieties—is “self-sterile and requires pollen from cross-compatible varieties for successful seed sets.”  The much planted ‘Carmel’ almond variety in California formerly served this complementary pollinizing function, but has succumbed over time to a genetic disorder—non-infectious bud failure.  The ‘Kester’ almond fills in the breach as a pollinizer variety with a “good overlap with the later ‘Nonpariel’ variety bloom.”

Given the widespread publicity regarding a dramatic fall-off in bee colony populations, one can readily understand why another relatively recent almond plant patent is taking the California almond growers market by storm.  It is for an interspecific almond tree named ‘Alm-21’ invented by the Zaiger family (of Zaiger’s Inc. Genetics).  It is trademarked as the Independence® almond.

The ‘Alm-21’ patent specification underscores the Independence® almond’s increasing market significance for almond growers:

This new and distinct interspecific almond tree ([AlmondxPeachxAlmond)], is of large size, vigorous upright growth and a productive and regular bearer of soft shell nuts with kernels having excellent flavor similar to ‘Nonpariel’ Almond (non-patented).  *  *  *

The primary difference between the new variety and ‘Nonpariel’ . . . is the new variety is self fertile and ‘Nonpariel’ . . . is self sterile and needs a pollinator tree planted near to fertilize the flowers to produce almonds.  (Emphasis added.)

The plight of declining bee populations is causing almond growers to shift their plantings to the ‘Alm-21’/Independence® almond variety.  “In 2016, one quarter of all new almond acres were planted to the self-fertile Independence[®] variety” with many of these new almond trees being planted in the southern portions of the San Joaquin Valley.[2]

Want to diversify your family’s consumption of almonds?   Consider making your own almond milk from scratch.[3]  It is slowly, but deliciously supplanting cow’s milk in my diet.

Continue Reading A Thanksgiving of Patentable Nuts and Vintage Nutcrackers

Orange blogOranges possess a special cachet in the American dream.  Growing up in the baby-boomer era meant that you heard—“breakfast without orange juice is like a day without sunshine”—thousands of times while watching rerun episodes of Leave it to Beaver and The Flintstones.

As my breakfast chore, I would dutifully mix three cans of tap water with one can of “fresh” frozen concentrated orange juice.  Voilà, we had our morning OJ, just like Anita Bryant’s cheery TV family.  Little did I know that the 3-to-1 formula was patented—to quench a mass-produced taste for sweet orange flavor.

As a youngster, I was also oblivious to the barrage of cognitive priming—in the form of TV ads, radio jingles, point-of-purchase placards, etc.—that would stimulate my desire to eat oranges and drink their juice to this day.  Memory traces of orange flavor are encoded in my brain.

How does the flavor of an orange leave its memories lodged somewhere in the hippocampus[1] region of the brain for later retrieval?  Behind the scenes, intellectual property rights have long shaped—and marketers have long exploited—our innate, neuropsychological demand for foodstuffs. Continue Reading How Intellectual Property Rights Shape Neuropsychological Demand for Orange Flavors

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

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

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

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

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

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

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

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

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

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