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Protein Politics: Vegetarian Meat Company Gets Booted From Canada

October 31, 2014

by Michele Simon

As a lawyer who has called out plenty of transgressions by unethical food companies, it’s frustrating when the law gets it wrong. That’s exactly what happened to the alternative meat company Field Roast, based in Seattle, but also selling products to our neighbors to the north. That is, until the Canadian government informed Field Roast that the company’s products were mislabeled. Not only that, the products also had to be tested — wait for it — on live animals.

Here is how Field Roast’s blog explains the situation:

The regulations rule that we are making a “simulated meat product” and need to add this language to our labels. The standards for a “simulated meat product” require a Protein Efficiency Ratio (PER) study (conducted using live animals) to evaluate the protein in relation to animal meats.

Let me get this straight: A company making an alternative to animal foods is supposed to test their products on live animals to prove the products are similar to animal foods? The company’s CEO David Lee explains his understandable dismay: “We’re driven to make these foods because we feel very strongly about having compassion for animals.” Hello. The Canadian Food Inspection Agency also wants Field Roast to add chemical supplements and vitamins for fortification, which Lee finds “offensive.” As he should.

grainmeatAnother irony is that the type of protein test results Canada requires does not currently exist because as Field Roast explains, they make a “protein-rich vegetarian sausage entirely from wheat, vegetables and real ingredients”, as opposed to soy or other more recognized proteins.

Apparently a “competitor” made a complaint, and that’s how this whole Kafkaesque episode got started. There is no safety issue here (current products can remain in stores until they run out), only a dumb regulation that sounds suspiciously like it was written by meat lobbyists. For example, a “simulated meat product” that resembles sausage must have “a total protein content of not less than 11 per cent” and  “a fat content of not more than 25 per cent”. Why are these foods being compared to meat for nutrition content? Who else would benefit from such laws other than an industry threatened by competing products?

This situation is a sad example of how an innovative company can get caught up in nonsensical regulations intended to benefit the status quo. This problem will only get worse with more alternative animal products going mainstream. For example, plant-based innovations such as egg-less “Just Mayo” from Hampton Creek arebecoming more popular. Large chains like Walmart, Target, Kroger, Safeway, Costco, and even Dollar Tree are signing deals to carry Just Mayo, according to TIME. With this level of success, innovation and regulation will inevitably collide. And run-ins with the powerful animal food industry will escalate. Right on cue, the American Egg Board launched a PR response to the “huge threat” Hampton Creek poses to Big Egg.

Field Roast says they are trying to work things out with the Canadian government, and let’s hope they do. Meanwhile, an unhappy Field Roast customer in Toronto has started a Change.org petition, in which he is asking (among other things) for his government to eliminate the testing requirement, as well as to allow companies to use common names such as “milk” and “meat” on vegetarian products. The issue of not being able to name alternative animal products what companies would like to is also a huge problem in the United States, and I will soon write more about that.

Yet another reminder that new and growing food companies should be engaging with food lawyers, at every stage of their development, to protect against these sorts of risks.

Food Labeling: Why Every Product Needs Attorney Label Review

October 27, 2014

by Jason Foscolo

Labels that do not comply with federal regulations are a significant source of legal liability for food businesses. Even established giants like Bumble Bee Foods fail to understand this from time to time.

Bumble Bee Omega 3

Going All-In on the Omega Claim

Bumble Bee is currently engaged in a lawsuit alleging that its canned and pouched tuna product labels were misbranded and mislead consumers. At the time when the lawsuit was filed, Bumble Bee claimed that its product was an “Excellent Source” of omega-3 fatty acids. As we know from having reviewed lots of labels for clients over the years, omega-3 claims are tricky to make on a food label.

Claims like “excellent source,” which characterize the level of a nutrient in a food, are always defined as a percentage of the daily value for the nutrient. An “excellent source” claim may be made when a food contains at least 20% of the recommended daily intake (RDI).  Therefore, if there is no established daily value for a nutrient, it is not permissible to claim that a food is “high in,” an “excellent source,” or “rich in” the nutrient. While the FDA has established RDIs for certain nutrients, including sodium, vitamin C, and fiber, there is no established RDI at present for omega-3 fatty acids generally. For that reason, Bumble Bee’s claim – regardless of the actual Omega-3 content of the product – was facially defective.

As discussed on our blog, FDA announced this past summer that it would not take exception to “high,” “good source,” and “more” claims specifically for ALA, an omega-3 fatty acid, in certain circumstances. However, all other claims that characterize the level of omega-3s are prohibited.

There is a way to talk about the omega-3 content of the product without the legal exposure. A manufacturer may make a statement about a nutrient for which there is no established daily value as long as the claim specifies only the amount of the nutrient per serving and does not implicitly characterize the level (such as, by saying “high” or “excellent source”) of the nutrient in the product. Such a claim might be “x grams of omega-3 fatty acids.”

This seems like a simple distinction to make but getting it wrong has big implications. No claim should ever go onto a food label without a thorough review from someone familiar with the regulations.

Making Sense of Seals of Approval

October 20, 2014

by Michele Simon

These days health-conscious consumers are increasingly seeking out food products not only with fewer ingredients and a “clean label”, but also foods produced in a manner that minimizes harm to the environment, among other ethical business practices. And it’s not enough to claim your product is healthy or sustainable with just words; to get that much-needed boost in a highly competitive marketplace, many food companies are spending the extra money to obtain third-party certification for various claims.

But before jumping on the “seal of approval” bandwagon, it’s important to understand the legal implications of various types of certification. For example, some seals are legally defined and require third-party certification while others are just voluntary.

Organic Seal: Federally Defined, Certification Required

Let’s start with the most rigorously-defined seal under federal law: organic. The U.S. Department of Agriculture requires strict adherence to various production practices for a farm or food product to obtain USDA organic certification. While the USDA itself does not certify, the agency maintains a list of approved third-parties. You must choose a certifier from this list to obtain organic approval.

USDA organic logoIn addition, USDA only allows its official organic seal for products that are either “100 percent organic” or for products containing 95 percent organic ingredients, in which case the product can be labeled simply “organic”. Also, the name of the third-party certifier must appear on the label. Products containing at least 70 percent organic ingredients can say, “made with organic ingredients”, but are not allowed to use the official USDA seal – an important distinction for marketing purposes.

Gluten-Free: Federally Defined, No Certification Required

Another popular claim being made on food products is “gluten-free.” Until recently, this claim had no legal definition. Then in August, the U.S. Food and Drug Administration began requiring food companies making gluten-free claims to adhere to specific federal regulations. However, in contrast to the USDA organic program, the FDA does not approve third parties for gluten-free certification, nor is certification required to make the gluten-free claim. Food companies are free to obtain gluten-free certification from a reliable third-party of their choosing, as long as that certifier uses the FDA definition at a minimum. (Some certifiers go further.)

Non-GMO: Not Legally Defined, Rapidly Changing

A good example of a seal program that is neither defined nor overseen by a government agency is the non-GMO label. Despite—or perhaps because of—recent controversy over genetically-engineered ingredients, the FDA has so far not required the labeling of foods containing GMOs. A significant response to this federal void in the wake of rising consumer demand has been an explosion of products on the market seeking to make “non-GMO” claims. The popular third-party certifier, the Non-GMO Project, claims to be “North America’s only independent verification for products made according to best practices for GMO avoidance.”

With several states (see the list here) already enacting GMO labeling bills and more being considered, along with ongoing litigation over “natural” labels on products containing GMO ingredients, pressure on the feds to act is mounting. In other words, this issue continues to be legally volatile. Also, remember that even though the federal government has not expressly defined “non-GMO”, such claims (along with any advertising) must still meet general federal rules to be truthful and non-misleading.

Additional certification programs cover kosher, vegan, and labor practices. I also recently wrote about “benefit corporations”. Some states allow a corporation to include ethical business practices in its legal charter. Companies can also obtain a related private certification by becoming a “B Corp”, and use that symbol as a marketing tool.

However you want to stand out in the marketplace with a seal of approval, it’s important to choose only legally-defensible claims and reliable third-party certifiers that adhere to current federal and state laws, as well as best marketing practices.

(This article has also been published at circleup.com)

Why you should fear competitors more than the feds

October 16, 2014

by Michele Simon

With far too much to regulate and too few resources, the U.S. Food and Drug Administration has to be selective in enforcing deceptive marketing laws. Similarly, the Federal Trade Commission, which oversees all advertising, can’t police everybody. But while the feds have better things to do than troll the supermarket aisles looking for the latest dubious health claim, that doesn’t mean food marketers can get sloppy.

Midland-Ross-Water-1

“Really, it’s just water, guys.”

That point was brought home recently when the National Advertising Division announced it was referring Talking Rain Beverage Company to the FTC for making deceptive claims. If you’ve never heard of the NAD, you should. Part of the Council of Better Business Bureaus, it’s a self-regulatory body for advertising oversight. Competitors or consumers can file a complaint. The idea is to provide advertisers an alternative to litigation and government action.

In this case, a complaint was filed by a pretty big competitor: Nestle Waters North America. The king of bottled water complained about several claims made by Talking Rain’s “Sparkling ICE” drink that implied the product was just water, including its description as “Naturally Flavored Sparkling Mountain Spring Water.” Although it ruled in July that consumers were not likely to be misled by these words, NAD was not happy about several of the drink’s tag lines, including “the bold side of water,” given that the product is not just water. In September, NAD “determined that calling the products a ‘… side of water’ could be reasonably understood by consumers to mean that the products are water, when in fact they contain numerous additives and sweeteners.”

The self-regulatory system works best when companies agree to participate. In this case, Talking Rain refused, and that’s why NAD referred the case to FTC. The beverage company is taking its chances that FTC is too busy to act, but the agency does occasionally go after the natural product industry. For example, FTC recently settled a $3.5 million case against a coffee bean extract maker over questionable weight loss claims. The National Advertising Division also works in collaboration with the Council for Responsible Nutrition to police the supplement industry, as another recent adverse action, this time against “Cerebral Success” regarding questionable performance claims, demonstrates.

While some smaller companies may be able to avoid federal oversight, beware that your competitors are watching closely. A company the size of Nestle has plenty of resources to keep watch and file claims that threaten their competitive edge. That’s why all companies should market responsibly; you could be targeted next.

Is a new organization to define “natural” a good idea?

October 7, 2014

by Michele Simon

A new organization that’s yet to even formally announce itself made news for declaring its intention to define natural. The new group, called the Organic and Natural Health Association (ONHA), plans to hold a series of meetings as part of a transparent process that engages consumers as well as industry.

At a time when more shoppers than ever are seeking healthier products, the natural products industry is coming under increasing pressure to define the squishy term. No wonder, with so many food companies jumping on the “all natural” bandwagon, sometimes for products that bear little resemblance to anything found in nature, leaving many consumers confused and often duped.

Meanwhile the Food and Drug Administration has made it painfully clear it has no intention of defining natural, and given the undue political influence in Washington, that’s probably a good thing.

As I wrote about for New Hope Natural Media last year, in the wake of FDA inaction, class action lawyers have been filing lawsuits against food companies that use the natural label in a deceptive manner. Whatever you might think of this approach, in some cases it has forced manufacturers to do the right thing. For example, as a result of being sued over GMO ingredients in its “all natural” cereals and snacks, Barbara’s Bakery is now obtaining third party verification from the Non-GMO Project.

But litigation is not a long-term solution to an industrywide problem. So maybe the time has come for someone to step up?

I recently spoke to Karen Howard, the new group’s director, who explained that ONHA’s structure is unique in that it includes representation from both industry and consumers, and that the mission is much larger than just defining natural. The group will set standards for natural certification in four sectors: food, pet food, supplements and cosmetics, in just 90 days from its first open meeting at the Supply Side West trade show in October. When I asked Howard about undercutting organic standards, she told me the group is “100 percent committed to organic” and that the natural certification will complement organic, not replace it.

Still, many questions remain, such as how will this intersect with existing guidelines, such as those from Whole Foods Market or New Hope’s standards department? And will this new certification process truly educate consumers or will yet another seal on a box just add to the confusion? Also, will companies even participate? If they don’t, lawsuits are likely to continue to fill the void.

MARKET|SHARE EXCLUSIVE INTERVIEW: JASON FOSCOLO, THE FOOD LAW FIRM

September 18, 2014

The Food Law Firm was recently interviewed by The Local Food Association (LFA), a national trade association for those engaged in the business of local food. LFA works to increase market access and market share for both sellers and buyers of local food across the United States. We are honored to have been included and look forward to working together. 

Regulatory Traps for Legalized Marijuana

September 17, 2014

-by Jason Foscolo

Marijuana-in-Los-Angeles-Jail-3The haphazard legalization of hemp and particularly cannabis is creating an unpredictable legal environment for entrepreneurs. By “haphazard,” I mean that legitimizing marijuana as an industry does not simply stop at decriminalization. There are other aspects of law having nothing to do with criminal justice that can thwart the progress of the marijuana entrepreneur. Here are a few issues we’ve seen in the news and in our legal practice lately:

1. In the rush to create hemp industries, legislatures make sloppy mistakes. South Carolina recently made it legal to grow industrial hemp if the grower was “licensed,” but neglected to create a licensing scheme for interested growers. The statute thus creates an economically tantalizing but unobtainable opportunity for the state’s farmers.

2. Branding for marijuana and marijuana-based products, like soft drinks and gummy bears containing THC extracts, is very difficult to trademark. To qualify for federal trademark registration, the use of a mark in commerce must be “lawful.” Thus, any goods or services to which the mark is applied must comply with all applicable federal laws. So long as marijuana or its derivatives remain controlled substances at the federal level, producers of marijuana-based products will not be able to avail themselves of federal trademark protection. Trademark protection is absolutely fundamental to a successful brand, and the powerful range of anti-infringement benefits that come with it are denied to marijuana-based businesses.

3. While we are on the subject of edibles, food safety is a new area of regulation for marijuana entrepreneurs. Even after they become legit, some marijuana manufacturers seem to have trouble dropping some of their old habits, like processing bubble hash in old washing machines. This may be an example of a few bad apples, but it doesn’t help foster a positive image of an industry that is trying to legitimize itself. When the trade was illicit, inspectors didn’t scrutinize manufacturing processes because they never had the chance to do so. Now that they are starting to poke around with their swabs and thermometers, they are not thrilled about the safety of the food products being offered to the public.

4. The biggest potential obstacle by far for medical marijuana is drug labeling.  Too many drug references on a food or beverage product label can earn a Warning Letter from the FDA stating that it is a “street drug alternative” and therefore, a drug as defined by the Food Drug & Cosmetic Act. The stakes are raised when particular health claims are associated with medical marijuana consumption. Marketing a link between marijuana and a given ailment is central to the idea of medicinal marijuana, but marketing anything as a drug is tightly controlled by the FDA. Though marijuana entrepreneurs may be very tempted to make the claim that, say, THC may alleviate some of the symptoms of conditions like Alzheimer’s Disease, they are in no position to assert the same kinds of claims that prescription drug manufacturers make on drugs that have been through the approval process. The FDA does not seem to be going after marijuana entrepreneurs for the claims that they are currently making, but that can change at any time. In the interim, the safest course of action would be to not make any medicinal claims.

The most important thing to remember is that just because the Department of Justice has de-emphasized prosecution of certain marijuana crimes does not mean that other agencies necessarily will grant a “pass” on the regulations within their domain to marijuana entrepreneurs. Growers and processors in this burgeoning industry need to assess regulatory risk from every angle.

Michele Simon Joins the Food Law Firm Team

September 8, 2014

Today, we are proud to announce that attorney and public health advocate Michele Simon is joining the firm in an of counsel capacity. Michele’s practice will focus on food and alcoholic beverage labeling and marketing compliance. Michele brings more to the firm than just her comprehensive knowledge of marketing regulations. As someone with great experience identifying the problems in food industry marketing tactics, she brings integrity and a unique perspective to help clients who want to do better.

by Michele Simon

Over the past 18 years as a lawyer and public health advocate, I have scrutinized the ways that food companies use misleading or illegal marketing to unfairly influence consumers. I will continue to call out these deceptive practices as long as the industry continues to use them.

rsz_micheleheadFortunately, the food industry is changing. More companies are entering the marketplace with healthier options that are less processed and contain higher quality ingredients. These companies lead with their values and seek more meaningful connections with their customers. This new breed of food producer, which places integrity over profit, is vital to help shift the marketplace.

One obstacle to success is regulation. Any new company has to abide by the rules to succeed. Marketing is the most important tool these companies have because it enables them to distinguish their products from those of Big Food. Most of the marketing terms that such companies want to use, such as organic, gluten-free, or high fiber, are strictly regulated. Others, such as non-GMO, may soon be regulated, and require a keen eye to avoid greenwashing or other deceptions.

Making sure a food or beverage meets with federal and state legal requirements is just the first step. These days, it’s entirely possible to meet the letter of the law but still get into other trouble. Food companies need to consider the potential risk of being targeted by advocacy organizations, class action attorneys, the competition, the media, and bloggers, all getting amplified by social media. Based on my years of advocacy experience, I can help companies avoid such scrutiny. My ongoing role as an advocate ensures that I will keep my finger on the pulse of new policies at the federal and state levels, as well as demands from advocacy groups and other key developments.

There is a compelling and urgent need for legal services for good food. After being immersed in marketing strategies and policy for almost two decades, the time is right for me to direct the benefit of my experience towards companies who want to do the right thing. In addition to my continuing work as a public health advocate, I am now offering legal guidance on food and beverage marketing. As a licensed attorney in California, I will begin taking and advising clients on:

  • Comprehensive label review for FDA, USDA, and TTB (alcohol) compliance
  • Compliance with the FTC Act and California consumer protection laws
  • Marketing claims review for legal compliance and beyond
  • Recommendations for reliable certifications such as organic and gluten free
  • Becoming eligible under USDA guidelines for federal programs such as school food
  • Compliance with emerging regulations such as menu labeling and revised Nutrition Facts
  • Compliance with industry self-regulatory standards such as the National Advertising Division
  • Rapid responses to competitor complaints to self-regulatory bodies
  • Rapid responses to attacks by advocacy groups, food bloggers, or media
  • Rapid responses to adverse legal action, such as FDA warning letters for marketing claims

I am excited to be collaborating with Foscolo & Handel PLLC on this important work. It’s an honor to work with Jason and Lauren, two talented lawyers who themselves have a tremendous amount of integrity, along with a healthy dose of passion and commitment to a better food system. I see this new direction as the private sector supplement to my public advocacy work and look forward to this new venture.

Please help me spread the word.

For legal services, reach me at: Michele@foodlawfirm.com / 510-465-0322

My advocacy work will remain at: www.eatdrinkpolitics.com / Michele@eatdrinkpolitics.com

Raw Milk Liabilities and Independent Certification

August 15, 2014

by Jack Hornickel

NPR recently highlighted a new tool for raw milk producers: third-party quality control standards and independent certification. The Raw Milk Institute (RAWMI), a non-profit that supports a strong and safe raw milk industry, has published safety criteria for raw milk producers. If farmers meet RAWMI’s Common Standards and draft an adequate Risk Analysis and Management Plan, they can be listed on the RAWMI website as exemplar producers of “reliable, clean raw milk.” Doctors, veterinarians, epidemiologists, farmers, and consumers all participated in developing the safety measures.

The Common Standards include water and milk testing that probes for the presence of coliforms, salmonella, listeria, and E. coli. They also require testing the dairy herd to ensure the animals are free of tuberculosis and brucellosis. The Risk Analysis and Management Plans are developed uniquely for each farm. Generally they must address contamination risks that occur during animal transportation, cleaning of milk containers, management of bedding and manure, feed storage, and contact with farm employees. The Plan mandates responsible reflection on the entire dairy process and seeks to identify all points where contamination can occur, thereby mitigating risk.

By mitigating the risk that a consumer may become ill, RAWMI’s standards should also minimize exposure to civil lawsuits. However, compliance with such voluntary standards will not immunize a raw milk producer from civil liability or from criminal liability where raw milk sales are illegal. Because raw milk laws are different in each state, the independent certification offered by RAWMI will have varying effects depending on the location of the farm.

In New York, for example, dairies can sell raw milk from the farm after receiving a license. The standards for obtaining a license are similar to the RAWMI Common Standards but require additional testing for staphylococcus and organisms that cause mastitis in dairy cows. New York also requires farmers to post a sign reading, “Raw milk does not provide the protection of pasteurization.” Thus, raw milk producers that are independently certified by RAWMI are well on their way to being licensed by the state. By taking a few extra steps, farmers would be shielded from criminal liability.

New Jersey is another story. In that state, all sale of raw milk for human consumption is illegal. The RAWMI certification will do nothing to protect a New Jersey producer from criminal prosecution. In fact, listing on the RAWMI website is likely to draw attention to the illegal enterprise, and the paper trail of bacterial testing and food safety plans is evidence that can be used in a prosecution. Here, independent certification would raise the chances of criminal liability, despite the farmer’s honest attempt to provide safer food.

Now for the final twist: RAWMI’s standards will have only a minimal effect on farmers’ civil liability. In every state, raw dairies face strict liability in civil lawsuits for harms caused by the food products they sell. If anybody becomes sick from consuming a raw milk product, the producer can be held liable for the consumer’s injuries, even if the producer followed the highest safety standards. Raw dairies, like all food producers, have an absolute duty to make a safe product. The only effects RAWMI’s certification could have in a civil lawsuit might be to insulate the farmer from a negligence claim, an alternate theory on which a consumer could sue, as well as punitive damages.

RAWMI’s certification is a practical step forward, falling short of a legal solution. The Common Standards and Risk Analysis and Management Plan are a laudable attempt to legitimize and create industry-wide standards for the raw milk industry. However, they will have varying effects on farm liabilities, and farmers still must continue to navigate the patchwork of state laws. For a comprehensive guide to state raw milk laws, visit the Farm-to-Consumer Legal Defense Fund website.

The Sriracha Saga

August 11, 2014

by Jack Hornickel

The saga of Sriracha, the addictive sauce that waters my eye just at hearing the name, came to a close earlier this summer. The manufacturer of liquid fire, Huy Fong Foods, Inc., had come under increasing legal pressure from its host city, Irwindale, California, to turn down the spice — not in the product itself, but in the surrounding airspace. The city had attempted enjoin Sriracha production as a public nuisance after receiving numerous complaints from the factory’s neighbors. In response, hot sauce junkies and restaurateurs were shocked and took to hoarding the familiar rooster-clad, green-capped bottles. Ultimately, after some legal and commercial posturing, the parties came to an undisclosed agreement to keep the Sriracha facility up and running, and the city dismissed its lawsuit.

chasing the rooster

chasing the rooster

Sriracha is truly an American success story. David Tran, a Vietnamese immigrant, launched Huy Fong in 1980. Named after the vessel that carried its founder to the United States, Huy Fong began production in Los Angeles and later moved to Rosemead, CA. In 2010, the company broke ground on a new $40 million, 650,000-square-foot factory in Irwindale, CA that would at least triple its production capacity.

It took less than two years for the complaints to start rolling in. Neighbors bemoaned of standard respiratory ailments − coughing, sneezing, burning throats  − but also more alarming agitations –  headaches, bloody noses, even swollen glands. According to Irwindale residents, the chili sauce production really disrupted daily life. One resident resorted to popping heartburn medication before her morning jog. Others reported a looming red cloud of terror, a la John Carpenter’s The Fog. Overall, at least 18 households filed formal complaints with the city.

The antagonizing odor was allegedly caused by the production of Huy Fong’s flagship Sriracha sauce. Moreover, the trouble was intensified by Huy Fong’s production methods. In order to preserve the fresh spiciness of its red jalapeno peppers, the saucier grinds an entire year’s worth of peppers in the three months of harvest season! At peak production, about 40 truckloads of California red jalapenos are delivered and processed each day. During these months, residents report that the offensive odor can be irritating half of a mile away.

On October 21, 2013, after the conclusion of that year’s harvest season, the City of Irwindale filed a complaint against Huy Fong. It alleged that the sauce manufacturer constituted a public nuisance by creating conditions that were injurious to public health, or were indecent and offensive to the senses, such that it interfered with the comfortable enjoyment of life and property. A judge then granted a preliminary injunction on November 26, halting any Sriracha operation that would cause emission of offensive odors. Despite recognizing the lack of credible evidence proving causation, the court reasonably inferred that the irritating odors were a result of Huy Fong’s hot sauce. (Ya think?) The court then determined that the city and its residents would be irreparably harmed if the plant continued to operate pending trial.

As this year’s pepper harvest season approached, on March 21, 2014, Irwindale turned up the heat and amended its complaint to include a breach of contract claim. The city alleged that Huy Fong violated its operating permit by emitting the offensive odors. City attorneys stressed that this was not a separate attack, but rather an additional legal theory by which the city could halt the extreme irritation of its residents. Yet, of the available remedies for a breach of contract, a court is least likely to order specific performance. Thus, Irwindale was most likely adding this theory to its case so that, even if it lost on the theory of public nuisance, it could hold the threat of monetary damages over the hot sauce producer.

During the court proceedings, Huy Fong did its fair share of posturing. Employing 60 full-time and 200 seasonal workers, the sauce manufacturer is an economic staple in the city populated by about 1,400. Leveraging its position as a coveted manufacturing-sector job-creator, Huy Fong hosted a group of Texan officials from the state’s agricultural, economic development, and tourism departments, a clear indication that it was considering a move. Sufficiently spooked, the City of Irwindale, with the assistance of the California Governor’s Office of Business and Economic Development, brokered a deal in a closed-door meeting. The details of the bargain are yet unknown, but Irwindale dismissed its lawsuit on June 4th, and Huy Fong has been engaged in another chili melee this summer.

The lesson: If your food production creates a public nuisance, you’d better be properly represented, employ a lot of people, and make a damned good product.