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Farm-to-Table Fraud: The Legal Side

If you’re like me, you like to eat, and you’re passionate about supporting your local farmers and food producers. That’s where the “Farm-to-Table” movement comes in. And that’s why the world of foodies is abuzz with Food Network star and food journalist Troy Johnson’s expose “Farm to Fable,” published in the most recent issue of San Diego Magazine.

What’s up with farm-to-table fraud, and what’s the legal angle?

After hearing rumors for years, Troy (we’re friends, so I’m calling him “Troy”) did some investigating and came up with solid evidence of consumer deception in the restaurant business. From the San Diego Magazine article:

Like any good movement, farm-to-table has now been severely co-opted. The stories of restaurants deceiving their customers—or flat-out lying to them—have increased. Multiple San Diego restaurants claim to serve Respected Local, Organic, Sustainable Farm X when in fact they’re serving nameless commodity produce that could be from Chile, for all they know.

Troy listed quite a few examples (anonymous, for now) of San Diego restaurants who, for many years, have been falsely claiming to have sourced their ingredients from local farmers and ranchers.

Why Should Anyone Care?

As Troy wrote in a related San Diego Magazine blog post:

“Farm to fable” is fraud. It preys on your good intentions as a diner. It steals from farms and their workers. It gives frauds an unfair competitive advantage over real, ethical farm-to-table restaurants (because doing it right costs a lot).

And as far why the names of the offending restaurants have remained anonymous, so far, Troy noted:

I didn’t name the specific restaurants guilty of farm-to-fable in my story. I know the names. But to call them out would’ve required multiple sources of foolproof evidence (some of which I have). It also would’ve required multiple lawyers.

That said, if I see it happening in the future, I will take the steps to report the restaurant(s) in San Diego Mag. If we let the frauds know that we’re watching this pretty closely, maybe they’ll find the motivation to be honest so that their name doesn’t appear in the follow-up story.

While this story was San Diego-based, it’s not unreasonable to presume that such deception goes on around the country, and, most likely, anywhere else in the world where consumers look for the “farm-to-table” description.

The Legal Side

What does the law have to say about these types of (alleged) practices?

Section 43(a) of the Lanham Act, which is the Federal law that governs trademarks and unfair competition, states, in part:

  • Any person who, on or in connection with any goods or services…uses in commerce any word, term, name, symbol, or device…or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact which,
  • is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person or origin…or
  • in commercial advertising or promotion, misrepresents the nature…of his or her or another person’s goods, services or commercial activities, shall be liable in any civil action….

Each state has its own unfair competition law as well. California’s unfair competition law can be found in the Business and Professions Code sections 17200 et seq. (“et seq.” is legal lingo for “and the related sections that follow that one”).

The claim in question is one of “passing off.” Passing off occurs when Person A claims that the goods or services in question are affiliated with or come from Person B.

Like, for example, if I claim that my restaurant’s tomatoes come from the beloved Susie’s Farm, but they actually come from Mega-Global Corp’s Artificially Enhanced Food-Like Products Division. That’s a textbook example of “passing off.”

Who Can Pursue a Legal Claim?

A legal claim against an offending restauranteur can come from at least 3 different sources:

  1. The local farmer or rancher whose business name is being falsely used.
  2. The consumer who purchased the food products.
  3. Finally, in some cases, the government (Federal, state, or local) is empowered to investigate and go after businesses that engage in unfair competition.

Regarding #3, I asked litigator, community activist, and fellow foodie Omar Passons, for his thoughts, and he responded:

…a government attorney could bring a suit for relief on behalf of the citizens…In practice, the AG’s [Attorney General’s] consumer protection unit is the most likely to bring something like this.

So we’ll see if this issue rises to the level of a government investigation.

In addition to claims of unfair competition, there may be other legal claims worth investigating, such as fraud and trademark infringement.

A few shady restauranteurs may consider this all just part of the game, but the reality is that there can be serious legal consequences for these types of deceptive practices. Not to mention the PR nightmare associated with this type of exposure.

Kudos to Troy and to San Diego Magazine for investigating and exposing this practice. Let’s hope this puts a swift end to farm-to-table fraud.

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