Law and Magic Blog

Cheeseburger Jesus

Oh, dear. Here's another one. Willie Geist brings us Jesus in a frying pan--in the grease left after cooking up a cheeseburger, to be precise. Check here. In the grease? Now, I find this just a little bit inappropriate, but that's just me.

Some Burger King Restaurants In Memphis Area Claim Global Warning Is "Baloney"; Corporate Asks Them To Take Signs Down

A Burger King franchisee in Tennesee has expressed its opinion of global warming: "it's baloney." See here; here's a CNN story. HQ has asked the franchisee to take down the signs, since Burger King corporate doesn't agree with that sentiment. 

Magic Chips

Alas, Proctor and Gamble has lost its fight before Britain's highest court. The product may be fun, and the chips may look exactly alike (well, as alike as technology and manufacture can make them look) but the justices have ruled. Pringles are potato chips (Notice, no "e" at the end, Dan Quayle). Even P&G's own website agrees that the major ingredient in Pringles is "dried potatoes."

P&G wanted its "savory snack" to qualify as something other than a potato chip, so that it would be exempt from the VAT (value added tax), and thus sell for less than comparable products, "crisps," in British parlance. But the Supreme Court of Judicature ruled that legal sleight of hand was not necessary to spell out how Pringles might be different from "crisps." Just because Pringles weren't completely potato didn't mean they weren't any potato at all. Indeed, they're 42 percent potato. That was enough spudosity for the Court. One could discern "potato-ness" in a Pringles with that much potato hanging on. Other P&G arguments didn't hold water either (possibly inflating potato volume). Because Pringles were made of a mix of potato and grains didn't mean they weren't potato. The Court noted that if that were true, then "a marmalade made using both oranges and grapefruit would be made of neither — a nonsense conclusion.” Two thoughts come to mind here. 1) These are the folks who spawned Edward Lear and Lewis Carroll. 2) The Brits do like their marmalades.

To be fair, this case is really about deference to the agency. "Although Mr Christopher Vajda QC for HMRC opened the appeal by attacking the judgment of Warren J rather than concentrating upon the decision of the Tribunal (which of course he contended was correct) in the end counsel were agreed that what really mattered was whether the decision of the Tribunal was wrong in law. For it is the Tribunal which is the primary fact finder. It is also the primary maker of a value judgment based on those primary facts. Unless it has made a legal error in that in so doing (e.g. reached a perverse finding or failed to make a relevant finding) or has misconstrued the statutory test it is not for an appeal court to interfere. This has been said in other contexts e.g Osmani v Camden LBC [2007] EWCA Civ 1281 at [34] ("the main focus of attention on a second appeal such as this should be on the decision of the Council rather than that of the County Court Judge on appeal" per Auld LJ and Waltham Forest LBC v Maloba [2007] EWCA Civ 1281 at [19] per Toulson LJ). The same applies for the same reasons to appeals from this Tribunal."

What P&G had to show was that the agency had so erred and how, persuading the appellate court to reverse the finding. What was at stake was about one hundred million pounds in tax receipts, a not inconsiderable stack of chips. The Court's discussion of the nature of a Pringles is to show why the Tribunal's is not error (not a perverse finding,  making an irrelevant finding, not miscontruing the statutory test).

The Court notes that the case here is "not one calling for or justifying over-elaborate, almost mind-numbing legal analysis. It is a short practical question calling for a short practical answer. The Tribunal did just that." It goes on to say, "no doubt because of the submissions which were made to it by the parties, the treatment of the issue which was before it, was far more elaborate than was necessary. I do urge Tribunals, when considering issues of this sort, not to be misled by authorities which are no more than authorities of fact into elevating issues of fact into questions of principle when it is not appropriate to do so on an inquiry such as this. The Tribunal had to answer one question and one question only: was each of these products properly described as biscuits or not? If it had confined itself to that issue which is, and has to be, one of fact and degree, then the problems which subsequently arose would have been avoided."

The Court even discusses where to draw the rule with regard to the "42 percent" problem, quoting the U.S. Justice Oliver Wendell Holmes, Jr. "'When he has discovered that a difference is difference of degree, that distinguished extremes have between them a penumbra in which one gradually shades into the other, a tyro thinks to puzzle you by asking you where you are going to draw the line and an advocate of more experience will show the arbitrariness of the line proposed by putting cases very near it on one side or the other, Law and Science in Law Collected Legal Papers 1921, pp.232-233,'Putting the point another way: you do not have to know where the precise line is to decide whether something is one side or the other....Here the potato flour content is over 40 per cent; it is the largest single ingredient by about 9 percentage points; and it is nearly three times larger than the other flours in the ingredients taken together. We have to give a yes or no answer to the question 'are Regular Pringles [partly] made from the potato, from potato flour or from potato starch' and we are bound to say yes. There are other ingredients but it is made from potato flour in the sense that one cannot say that it is not made from potato flour, and the proportion of potato flour is significant being over 40 per cent. The fact that it is also made from other things does not affect this. I cannot begin to see anything wrong with that, still less that that was not a conclusion which any reasonable Tribunal could reach. There is more than enough potato content for it to be a reasonable view that it is made from the potato."

An interesting case from a legal snack food point of view, but not, I think, wholly unexpected. And thus does the chip crumble. Snap!

Read more here in an op-ed from Adam Cohen and here from Improbable Research. The case is Procter & Gamble UK v Revenue and Customs Commissioners, Court of Appeal, Civil Division, [2009] All ER (D) 177 (May); [2009] EWCA Civ 407, decided 20 May 2009.

More Religious Cheese Snacks

This couple found a "Chees-us," a cheese-shaped Jesus Cheeto, in a bag of cheese snacks. In spite of the reporter's unfortunate dangling participle ("despite missing a right arm, the Bells see a body"), she does mention that this isn't the first sighting of a Chees-us in the U.S. Now the Bells are discussing whether to sell the Cheeto, and if so, how much to ask for it.

Soulful Salami Slices

A South Florida woman says the letters G, O, and D turned up in slices of fried salami in her breakfast skillet. She wonders what she'll do with the salami. It wouldn't last in our house. Patrick would eat it. Fast.

Image of the Virgin on a Grill

At the tail end of this NPR story about the flu and traditional Mexican holiday Cinco de Mayo (May 5th) is a bit about a woman who found an image of the patron saint of Mexico, the Virgin of Guadelupe, on a grill.  She says she couldn't wash the image off the grill, and now prays to the image for assistance to escape both the flu and Mexico's hard hit economy.

Asparagus: Delicious, Delectable, Divine (In More Ways Than One?)

I was poking around, looking for an update on that story about the fellow who got Italian store clerks to turn over money to him by using hypnosis, and came across this story about Jemima Packington, who lives in Worcestershire, who throws asparagus on the floor (or, I suppose any flat surface would do--why not?) and who then uses the patterns the stalks make to tell fortunes. She calls herself an "asparamancer," a word that as far as I can tell she seems to have invented, along with her fortune telling technique. She made an appearance at the recent British Asparagus Festival to predict attendees' futures, so her asparagus future seems to be sprouting. She says foreign asparagus doesn't work as well as the homegrown kind for divination.

Now, according to Charles MacKay's Extraordinary Delusions and the Madness of Crowds, asparagus tied in a bundle can predict something. "Asparagus, gathered and tied up in bundles, is an omen of tears. If you see it growing in your dreams, it is a sign of good fortune."

I've heard of using tea leaves and coffee grounds (tasseography), but I've never heard of using this particular vegetable, although as I say, Charles MacKay mentions it, so it's got a history as a symbol of some kind of future meaning.

Antony Worrall Thompson's Kitchen Nightmare

Chef Antony Worrall Thompson recommended a killer salad recipe--literally--for the current issue of Healthy & Organic Living Magazine. It includes henbane, which as it turns out, is on the list of poisonous plants under the (British) 1968 Medicines Act. Chef Worrall Thompson meant to say "fat hen," which is a safe plant, used to feed, well, hens and other poultry. Healthy & Organic Living magazine has issued a statement telling readers, "In H&OL7 p60 Antony Worral Thompson recommends using henbane in salads. In fact henbane is a very toxic plant and should never been eaten (sic). As always, check with an expert when foraging or collecting wild plants." Well, they sort of thought they were, although the chef isn't technically an expert on wild plants, I suppose.

Henbane, the bad herb, "is associated with lots of mythical tales - it's said to turn you black and it's used in witches [sic] potions," according to Mr. Worrall Thompson. [Again with the witches. They never get a break]. He apologized for the mistake, but said he has not heard that anyone has been injured as a result of the error in the list of ingredients for the salad.

Call For Papers

Christopher Buccafusco has posted this Call for Papers on Food and the Law.

The field of food studies has grown enormously over the last decade, as evidenced in part by the steadily increasing number of academics and professionals in the humanities, social and nutrition sciences, culinary arts, and hospitality studies who have become engaged in cross-disciplinary conversations about food. Operating in tandem with the explosion of popular fascination with food, these conversations have been joined of late by academics, attorneys, and activists who are particularly concerned with the question of how our relationship to food is, has been, and should be, mediated through law. In response to this emerging area of inquiry, we are soliciting both conference papers and publishable essays that integrate multidisciplinary scholarship in food studies with legal scholarship related to food in existing fields such as agricultural, constitutional, criminal, administrative, tort, intellectual property, and international trade law.

Among the questions we hope to answer are: How might one account for the law’s varying treatment of food over time and/or cross-culturally? What role does law play in shaping cultural ideas about food production, trade, and consumption?

And, inversely, what role does food play in shaping ideas about the law?

Initially we seek papers written from a variety of perspectives appropriate for presentation at one or both of the following conferences: the Association for the Study of Law, Culture, and the Humanities (Suffolk University Law School, Boston, April 3-4, 2009) and the Association for the Study of Food and Society (details for the 2009 conference TBA on the ASFS website). Although we aim to use these panels as a partial foundation for creating the edited collection, we are also happy to consider abstracts and articles from potential contributors who are unable to attend either ASLCH or ASFS. Finished essays should be of a quality suitable for publication with an established university press and reasonably accessible to a multidisciplinary audience of scholars and students of the law, social sciences, and humanities, as well as interested readers outside the academy.

Topics can include, but are not limited to:

Intellectual property rights in food and recipes Prison food, e.g., hunger strikes & force feeding, Nutraloaf Last meals Food torts, e.g. exploding sodas, fingers in chili, coffee in the lap Regulation of food, alcohol, and/or obesity Dietary laws and regulations in different cultures History of dietary laws and regulations Geographical indications of origin Farm subsidies and international trade law Linguistic classification of food, e.g., kosher, 1st Growths, Organic Sumptuary laws Famine and famine aid Labeling, packaging, and branding Rationing Food stamps Ethanol production and the food supply Illegal food production, commerce, and consumption Agricultural nuisance and zoning law Food and environmental law

Please submit a paragraph author’s bio and an abstract of no more than 500 words to Doris Witt (doris-witt@uiowa.edu), Chris Buccafusco (cjb@law.uiuc.edu), AND Amy Dillard (adillard@ubalt.edu). Abstracts for ASLCH are due by Oct. 1, 2008; abstracts for ASFS or for the essay collection alone are due by Jan. 15, 2009. Please indicate clearly whether the abstract is for ASLCH, ASFS, the essay collection, or some combination thereof. Finished essays should be approximately 10,000 words in length and will be due on or before January 1, 2010.

In advance of submitting an abstract, please feel free to contact Doris Witt, Christopher Buccafusco, or Amy Dillard with any questions about the conference panels or the essay collection.

ASA Douses Daily Telegraph For Bottled Water Ad

The Advertising Standards Authority, the British agency in charge of overseeing advertising (sort of like the Federal Trade Commission in the U.S.) has told the Daily Telegraph and its parent company, the Telegraph Media Group, that an ad it ran for a giveaway bottle of water saying "Lower your blood pressure with our free spring water" was unacceptable since it might lead consumers not to seek medical advice for serious health conditions. The ASA also told the Telegraph Media Group that it had breached another part of the advertising code by making "medicinal claims for an unauthorised product."

A national press front-page flash stated "LOWER YOUR BLOOD PRESSURE WITH OUR FREE SPRING WATER".  The promotion was detailed inside the newspaper and claimed "the first spring water developed especially to tackle the growing problem of high blood pressure ... 120/80, named after the optimum blood pressure level, is the first spring water in the UK to contain dairy peptides, which are derived from milk protein and clinically proven to be effective in the lowering and management of blood pressure.

...

Works with Water [the provider of the product, Ed.] said they took extreme care to ensure they did not mislead consumers by claiming or implying that their products could treat, prevent or cure disease or discourage essential treatment for a serious medical condition.  They said the first paragraph of the main editorial copy made a positive statement raising awareness of the prevalence of increased blood pressure in the UK.  They argued that throughout the communication, emphasis was placed on the fact that medical research has shown that the daily consumption of 4 g of dairy peptides could help to lower blood pressure in people with mild hypertension.  They said they were careful to highlight that 120/80 contained half of the recommended daily intake of dairy peptides and that drinking two bottles per day was "beneficial" and "a simple addition to lifestyle" (sic).  They said they stated on their website that the product was designed to be used alongside other healthy lifestyle choices and was not intended to be a replacement for drugs prescribed in hypertension treatment.  They also detailed the wording on packaging which included advice to consult a doctor if high blood pressure was suspected.

Works with Water said the headline on the article inside the newspaper should have stated "Free spring water for every reader to help lower your blood pressure" to be consistent with the main editorial copy, but the word "help" was omitted due to a proofing error for which they accepted full responsibility.  They said they were not responsible for the front page flash or content, which were down to the Telegraph's editorial discretion at the time of going to print.  They recognised that it would be sensible and responsible to include the on-pack and website statements in all future press promotions.  They added that they did not intend to repeat the promotion, and they would seek guidance from CAP Copy Advice before publishing future promotions.

The Telegraph said they had been alerted to the problematic wording by CAP on the day the ad appeared and had immediately halted the promotion.  They said the procedures they had in place to prevent such occurrences had not been properly followed, and the relevant personnel had been reminded of their obligations to the CAP Code.  They said every effort would be made to avoid a similar occurrence in future.....

The ASA noted the copy should have stated "help lower your blood pressure".  We also noted the numerous references to lowering blood pressure and the claim "the UK's first spring water developed especially to tackle the growing problem of high blood pressure".  We considered that readers could infer that the product would treat high blood pressure.  We concluded that the ad could discourage readers from seeking essential medical treatment for a serious medical condition.

On this point, the ad breached CAP Code clause 50.3 (Heath & Beauty products and therapies)

...

We noted Works With Water believed their product did not require a marketing authorisation because the active ingredients were relatively mild and it was not an alternative to medication.  However, we understood from Lancashire Trading Standards department that a claim to lower blood pressure was considered to be medicinal under the Food Labelling Regulations 1996.  We concluded that the ad made medicinal claims for an unauthorised product.

On this point, the ad breached CAP Code clause 50.11 (Medicines)

...

The ad must not appear again in its current form.  We advised Works With Water to seek guidance from the CAP Copy Advice team on future advertising campaigns.

Read the entire ruling here.

[Cross-posted to Media Law Prof Blog].