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Harry and Diane Rinker Law Library
NEWSLETTER
FEBRUARY 2007
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ARTICLE:
CALIFORNIA LEGAL
HISTORY
Dean Williams Buffet Luncheon
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● Most go back to 1954 or 1955.
● In Microfiche room
OLDER CALIFORNIA
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SELECTED NEW BOOKS
▪ Fight back and win /
Gloria Allred
Law 2nd Floor KF373 .A44 A3 2006
●
California legislation back to 1849.
•
Go to webpage of the Chief Clerk of
California Assembly:
www.assembly.ca.gov
click Chief Clerk on left
click Bills and other legislation
click Official Publications Archive
select among drop down menus:
Journal 1849 – 1997
Histories and Indexes 1881-2001
Statutes 1850 – 1995
●
●
Includes some CA Senate documents.
Use www.leginfo.ca.gov for online
legislation since 1993.
▪ Justice as integrity: tolerance and
the moral momentum of law /
David Fagelson
Law 2nd Floor KF4552 .F34 2006
All acquisitions are on law library’s monthly acquisition list. Click New Books from the online catalog to view the list. FOOD NAMES
ON FOOD
LABELS: It’s
Kosher to be
Fanciful
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Law Library
Newsletter Staff
Patricia Pelz Hart:
Writer / Editor
Debbie Lipton:
Design / Layout
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FOOD NAMES ON FOOD LABELS:
It’s Kosher to be Fanciful
By Patricia Pelz Hart
Is an “imitation fruit jam” an imitation “fruit jam?” “Fish-Fri” may be protected locally, but the name is subject to fair use by others. “Chick-Fri” is not even protected locally. “Coca Cola” is a name that is protected, although
the product no longer contains any cocaine.
When it refers to food name, much food label law deals with how the food name appears on the label. There is
law, however, concerning what the food name is. Ranging from generic to fanciful, the food name on the food label
informs and entices as it identifies the food while meeting the several goals of public policy.
Federal food labels law blends the law of food safety, consumer protection, trademarks protection, unfair competition, and promotion of commerce.
LEGAL PRINCIPLES
Food Labeling Law
The U.S. Code and Code of Federal Regulations set strict parameters for a food label’s wording, design, placement, and even type size. The Food and Drug Administration (FDA), Dept. of Health and Human Services is the
regulatory body.
The first major national food law was the Federal Food and Drugs Act of June 30, 1906, ch. 3915, 34 Stat.
768. Popularly known as the Pure Food Law, the act was also known as the Wiley Pure Food Law after Dr. Harvey
W. Wiley, a proponent. The act made it unlawful to manufacture any article of food or drug which was adulterated or
misbranded.
Food manufacture and selling methods changed greatly after 1906 and the law had to change with them. The
Pure Food Law also had serious loopholes that were exploited by some manufacturers to cheapen food quality. Congress produced a complete revision with the Federal Food, Drug, and Cosmetic Act, June 25, 1938, ch. 675, 52 Stat.
1040. The new act was drafted to prevent adulteration, misbranding, and false advertising of food, drugs, and cosmetics., H.R. Rep. No. 2716, 75th Cong., 3d Sess., at 1 (1938) (Conf. Rep.).
The Nutrition Labeling and Education Act of 1990, Pub. L. No. 101-535, 104 Stat. 2353, mandated extensive information about the nutritional content of packaged food.
The Federal Food, Drug, and Cosmetic Act and its many subsequent amendments are codified at 21 U.S.C. §
301 et seq.
Relevant labeling regulations in general are in 21 C.F.R. Part 1 (Food and Drug Administration; 21 C.F.R. Part
100 (Food for human consumption); 21 C.F.R. Part 101 (Food labeling); 21 C.F.R. Part 102 (Common or usual name
for nonstandard foods); and 21 C.F.R. § 130.11 (Label designations of ingredients for standardized foods.)
Not discussed here is labeling of meat, poultry, and eggs, found primarily in 7 U.S.C. and 9 C.F.R. The
Food Safety and Inspection Service (FSIS), Dept. of Agriculture, regulates this area.
Commercial Labeling Law
Under the Trademark Act of 1946, 15 U.S.C. § 1051 et seq. (Lanham Act) a trademark is a word, name,
symbol, or device, or any combination thereof, used by a person in commerce to identify and distinguish goods from
those manufactured or sold by others. (21 U.S.C. § 1127.) Trademark owners may register and protect their trademarks against infringement.
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In 1966, the Fair Packaging and Labeling Act, 15 U.S.C. § 1451 et seq. was passed to provide that packages and labels should enable consumers to obtain accurate information on quantity and be able to make value comparisons. Provisions of the Act that refer to “consumer commodity” incorporate the definition of food in the Federal
Food, Drug, and Cosmetic Act. See, e.g., 15 U.S.C. § 1454(a), 15 U.S.C. § 1459(a).
Definitions
Food means (1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles
used for components of any such article. 21 U.S.C. § 321 (f).
Raw agricultural commodity means any food in its raw or natural state, including all fruits that are washed,
colored, or otherwise treated in their unpeeled natural form prior to marketing. 21 U.S.C. § 321(r).
Processed food means any food other than a raw agricultural commodity and includes any raw agricultural
commodity that has been subject to processing, such as canning, cooking, freezing, dehydration, or milling. 21 U.S.C.
§321(gg).
Label means a display of written, printed, or graphic matter upon the immediate container of any article. 21
U.S.C. § 321(k).
Labeling means all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article. 21 U.S.C. § 321(m). Printed inserts within packages are considered labeling.
Misbranding of Food
Misbranding is prohibited. 21 U.S.C. § 331(a). Food is deemed misbranded if: its labeling is false or misleading in any particular; it is offered for sale under the name of another food; it imitates another food without having the
word “imitation” on the label, followed immediately thereafter by the name of the food imitated; and in other instances. 21 U.S.C. § 343. See also 21 C.F.R. § 101.3(e) and 21 C.F.R. § 101.18.
The Food, Drug, and Cosmetic Act was intended to apply to all misrepresentations of whatever kind, whether
of origin, identity, quality, effect, or other description or property; whether made as averments of fact or statements of
opinion; whether conveyed directly or by implication. S. Rep. No. 646, 74th Cong., 1st Sess., at 4 (1935).
Misbranding of food was one of the chief evils the food labeling laws were designed to stop. 62 Cases, More
or Less, Each Containing Six Jars of Jam et al. v. U.S., 340 U.S. 593, 596, 95 L. Ed. 566, 570, 71 S. Ct. 515, 518 (1951).
While the term misbranding is often applied to the accuracy of quantity and nutritional claims on a food label,
it also refers to the basic identification of the food via the food name.
Food Definitions and Standards of Identity
One of the most important changes made by the Food, Drug, and Cosmetic Act was to authorize the establishment of definitions and standards of identity, standards of quality, and standards of container fill. The
government had lost several cases against food manufacturers under the Pure Foods Law because there were no legally binding standards against which to judge their products.
Under the new law, a single reasonable standard of quality could be prescribed for any food, and if the product fell below that standard, it must be labeled as substandard. H.R. Rep. No. 2139, 75th Cong., 3d Sess. At 5 (1938).
Fresh or dried fruits or vegetables and butter, with some exceptions, are not defined or given standards.
21 U.S.C. § 341.
Food Name and Standards of Identity
341.
Definitions and standards of identity are promulgated under a food’s usual or common name. 21 U.S.C. §
Food definitions are used to determine if a food is misbranded. Food is deemed misbranded unless it conforms to an established definition and standard of identity and its label bears the defined name. 21 U.S.C. § 343 (g).
Harry and Diane Rinker Law Library
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Spectrum of Distinctiveness
As with other trademarks, a trademarked food name has a degree of distinctiveness across the name spectrum.
The more distinctive the name, the more protected it is.
A generic name connotes the basic nature of the articles rather than the individualized characteristics of a
particular product. Generic marks can never attain trademark protection. Any time a registered trademark becomes generic as to a particular product, the mark’s registration is subject to cancellation. Zatarains, Inc. v. Oak
Grove Smokehouse, Inc. and Visko’s Fish Fry, Inc., 698 F. 2d 786, 790 (1983).
A descriptive name identifies a characteristic or quality of an article, such as color, odor, or ingredients. Descriptive marks are not ordinarily protectable as trademarks. Id.
The important qualification is that if a descriptive mark acquires secondary meaning, it may be protected.
Id. at 790. Secondary meaning is evaluated only in relation to descriptive marks, not generic, suggestive, or fanciful
ones. Id. at 791.
Even if a secondary meaning exists, however, a descriptive term is subject to a fair use defense by others.
The mark holder does not have exclusive right in the primary, descriptive meaning of the term. Anyone is free to use
the term, if there is no customer confusion on product source. Id.
A suggestive name requires the consumer to exercise some imagination to draw a conclusion as to the nature of the goods. Suggestive marks are protected without proof of secondary meaning. Id.
An arbitrary or fanciful name bears no relationship to the product to which it is applied. Arbitrary or fanciful names are protected without proof of secondary meaning. Id.
Food Name on Label
Per regulations, the label shall have a name required by federal law or regulation, or, the common or usual
name of the food, or, an appropriately descriptive term, or when the nature of the food is obvious, a fanciful name
commonly used by the public for the food. 21 C.F.R. § 101.3(b
The common or usual name of a food shall accurately identify and describe, in as simple and direct terms as
possible, the basic nature of the food or its characterizing properties or ingredients. 21 C.F.R. § 102.5(a). In cases and
documents, other terms used for fanciful are arbitrary, brand, coined, or proprietary name.
Food Name Spellings and Synonyms
Reasonable variations in the spelling of the terms defined in part 101 and their synonyms are permitted providing these variations are not misleading (e.g. “hi” or “lo”). 21 C.F.R. 101.13(b)(4)
Misspelling a name so it sounds the same but looks different, does not make the name protectable. Zatarain’s
at 792, n.3.
FOOD NAME EXAMPLES
“Coca-Cola”
Plaintiff Coca-Cola Company sued Koke Co. for patent infringement and unfair competition. Plaintiff
claimed defendant’s beverage was made and sold in imitation of plaintiff’s product, the beverage “Coca Cola.” Defendant argued the trademark fraudulently described plaintiff’s product, since it no longer contained cocaine.
Justice Holmes gave some history of the drink. “Before 1900 the beginning of the good will was more or less
helped by the presence of cocaine. … The amount seems to have been very small, but it may have been enough to
begin a bad habit.” Coca-Cola Co. v. Koke Co. of America, 254 U.S. 143, 145, 65 L. Ed. 189, 192, 41 S. Ct. 113
(1920).
The cocaine was eliminated either before or after the Pure Food and Drug Act of 1906. Coca leaves were still
used at time of suit, but they went through a “drastic process” that removed every characteristic substance except a
little tannin and chlorophyll. Cola nuts now produced only a little of the “caffeine.” [sic] Id. at 146, 65 L. Ed. at 192,
41 S. Ct. at 113.
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Defendant argued that the name “Coca Cola” reinforced
with a label picture of coca leaves and cola nuts was a misrepresentation since the drink no longer contained cocaine.
Justice Holmes would have none of that.
We are dealing with a popular drink not with a
medicine. … The name now characterizes a beverage to
be had at almost any soda fountain. … [I]t has acquired a
secondary meaning … to which the producer is entitled.
… [B]efore this suit … plaintiff had advertised to the public that it must not expect and would not find cocaine. …
[I]t would be going too far to deny the plaintiff relief
against a palpable fraud because possibly here and there an
ignorant person might call for the drink with the hope for
incipient cocaine intoxication. Id. at 145, 65 L. Ed. at 192, 41 S. Ct. at 114.
“PY Do” or “Py-O-My”
Plaintiff sold prepared dough for pies under the trademarked name of “Py Do.” Defendant
sold “Py-O-My,” also a prepared pie dough mix. The court did not find any confusion in their names.
The trade-mark “Py-O-my” and the trade-mark “Py-Do” are not confusingly similar. The trade-mark “Py-O-My” is a three syllable combination and the trade-mark “PyDo” is a two syllable combination. The trade-mark “Py-Do” is descriptive; the trade-mark
“Py-O-My” is not; the trade-mark “Py-O-My” is fanciful. Colburn v. Puritan Mills, Inc.,
108 F. 2d 377, 378 (7th Cir., 1939).
“Delicious Brand Imitation Jam”
The U.S. tried to condemn cases of “Delicious Brand Imitation Jam” for purporting to be a fruit jam.
The government argued that fruit jam had a definition and statement of identity of no less than 45% fruit. The product had only 25% fruit. The government argued it was therefore mislabeled.
Justice Frankfurter disagreed.
[T]he name “imitation jam” at once connotes precisely what the product is: a different, an inferior preserve, not meeting the defined specifications. … [C]onfusion would
not result from the marketing of a product candidly and flagrantly label as an “imitation’
food. A product so labeled is described with precise accuracy. … It purports and is represented to be only what it is – an imitation. 62 Cases, More or Less, Each Containing Six
Jars of Jam et al. v. U.S., 340 U.S. 593, 600, 95 L. Ed. 566, 572, 71 S. Ct. 515, 520 (1951).
“Beanee Barbecue” or “Barbecue Beans”
Plaintiff got a trademark for a canned product with the name “Beanee Barbecue.” A year later, defendant
Campbell Soup Company began marketing its “Barbecue Beans,” but did not have a trademark on that name.
The court stated that the purpose of trademark law is to prevent one person from passing off his goods or
business as those of another. Plaintiff was not trying to sell its product as defendant’s.
The court refused to restrict others from using the word “barbecue.” It pointed out that the word could be
used as a noun, a verb, or an adjective. Campbell used the words “barbecue beans” as an accurate description of its
product. Plaintiff may have had a trademark in the name “Beanee Barbecue” but it did not have a “monopoly on preparing beans for barbecues.” Hesmer Foods, Inc. v. Campbell Soup Company, 346 F. 2d 356, 358 (1965), cert. denied, 382 U.S. 839, 15 L. Ed. 2d 81, 86 S. Ct. 89 (1965).
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“Fish-Fri” or “Fish Fry”
Plaintiff Zatarain’s had long sold corn flour used to fry fish under the trademarked name of “Fish-Fri.”
Defendants sold their own seasoned flour mixes, each under the name “Fish Fry.”
Plaintiff argued that “Fish-Fri” was a suggestive mark with automatic protection against infringement.
The court, however, held it was only a descriptive mark. Consumers needed no imagination to understand the nature of a prepackaged mix applied to fish. Zatarains, Inc. v. Oak Grove Smokehouse, Inc.
and Visko’s Fish Fry, Inc., 698 F. 2d 786, 792 (1983).
Due to the many years of sale, heavy advertising spending, and volume of sales, “Fish-Fri” had acquired
a secondary meaning in the area as referring to plaintiff’s product. Plaintiff had a valid mark, but, however, could not
prevent the fair use of the term by others. Defendants were free to use the words “fish fry” in their ordinary, descriptive sense for their products, so long as customers were not confused as to the source. Id. at 796.
Chick-Fri”
In the same action as above, Zatarain’s also sold a flour product for frying chickens. The
mix was labeled “Chick-Fri,” a trademarked name. The court held the name descriptive for the same
reasons “Fish-Fri” was descriptive.
Unlike “Fish-Fri,” no secondary meaning attached to “Chick-Fri.” There was no direct advertising under the second name, and it had been used for a shorter period.
The court agreed with the district’s court action in ordering that the registration of “Chick-Fri” should be
canceled. “Chick-Fri’ is a descriptive term without secondary meaning.” Id. at 797.
“Pure Vegetable Oil”
Efamol Ltd, in England, sold evening primrose oil as a dietary supplement. The FDA told Efamol it did
not consider the product safe for that use. Efamol nevertheless shipped the oil in bulk in barrels labeled “Pure Vegetable Oil.” The oil was sent to a California company where it was mixed with vitamin E, put into gelatin capsules, and
marketed. The FDA seized the oil and argued, among other reasons, that the barrels were misbranded.
The court agreed.
[T]he record shows that the condemned substance was commonly sold and referred to as ‘evening primrose
oil’ or ‘oil of evening primrose’ and not ‘pure vegetable oil.’ … [L]abeling the drums as “Pure Vegetable Oil” implied
the oil was for cooking or salads, and not part of a dietary supplement. U.S. v. 45/194 Kg
Drums of Pure Vegetable Oil, 961 F. 2d 808, 811. ((9th Cir. 1992), cert. denied, 506 U.S.
940, 121 L. Ed. 2d 287, 113 S. Ct. 375 (1992).
WHAT’S IN A NAME?
The public greatly benefits from the information on food labels. Standard data presented in standardized
formats protects food safety and promotes food commerce. Just remember: Food choice begins with a name.
Rinker Law Library / Fine Schedule
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Cassette player: $10.00
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Harry and Diane Rinker Law Library