Turn your Bar Bill Into a Federal Case

A guy walks into a bar . . .

No, seriously, a guy walks into a bar.  He orders a couple of beers and a couple of drinks. His bill comes.  He pays his bill.  He leaves.

Sounds like something that happens everyday, thousands of times a day, right?  Let's try it again.

A guy walks into a bar.  He orders a couple of beers and a couple of drinks.  He doesn't ask what the drinks will cost.  The person who waits on him does not tell him.  His bill comes.  He pays his bill.  He leaves.  He sues. 

If you're wondering what he's suing about, you're not alone. 

Learn what happened after the jump.

The bar is the Houlihan's in Brick, New Jersey and the case is Pauly v. Houlihan's Restaurants, Inc.  As far as can be told from the court's decision, Mr. Pauly's complaint is that the prices charged were unreasonable.  Since the prices of drinks were not on the menu, he claims, Section 2-305 of the Uniform Commercial Code declares that the price should be "a reasonable price." 

On a motion to dismiss for failure to state a claim, a federal district judge in New Jersey agrees.  Section 2-305(1)(a) of the UCC provides: 

The parties if they so intend can conclude a contract for sale even though the price is not settled. In such a case the price is a reasonable price at the time for delivery if:  (a) nothing is said as to price . . .

This is a basic principle of Article 2 of the UCC:  so long as the parties intended to create a contract, they can leave certain terms of the contract--price, certain aspects of quantity, delivery time and place, whether there is to be a warranty--open, and still have created an enforceable contract.  The UCC will fill in those terms they have left open with so-called "gap filler" provisions, such as 2-305, and such a contract is enforceable.  On a 12(b)(6) motion to dismiss, the judge is required to take all the facts in the complaint as true.  If it is true that "nothing was said as to price", then the UCC says the price should be a reasonable price.

That does not mean that the plaintiff will win his case.  He paid his bill, which he claimed he did under legal compulsion because New Jersey law makes it a crime to leave a bar or restaurant without paying your bill.  On the motion to dismiss, the court agreed, saying,

It would be unreasonable and inequitable to hold that a person must risk criminal exposure in order to challenge a restaurant's policy of omitting prices from their menus and ultimately charging unreasonable and discriminatory rates for their food and beverages.

I can sort of see this on a motion to dismiss, but seriously?  The complaint makes noise about "'menu engineering' - the deliberate and strategic construction of menus to exploit consumer psychology and manipulate customer perceptions."  Or, in other words, the restaurant would like to sell you stuff you may not have come in for.  This doesn't sound like a cause of action to me.

The defendant’s mistake, it seems to me, was to bring the motion to dismiss. In deciding a motion to dismiss, the court is required to accept all facts pled in the complaint as true. In the complaint, the plaintiff asserted, “Plaintiff’s order for beverages offered for sale on a menu that failed to disclose prices for those beverages manifested assent on behalf of Plaintiff to pay Defendant a good faith reasonable price for the beverages.” If this were true (and remember, the court had to assume it was true), then the plaintiff’s theory, that 2-305(1)(a) applies, would be generally correct.

I asked Professor Scott Burnham of Gonzaga Law School for his thoughts on the case. This is what he said, 

This is not a situation where the price is not agreed upon and defaults to a reasonable price. The price has been established by the seller and the customer knows that. The seller did not disclose the price and the buyer did not request it, but I don't think that is at all an unusual situation. Often parties, not just at bars and restaurants, think they know enough and treat their limited knowledge as sufficient. Unless the seller has not acted in good faith, I think the buyer bears the risk of being mistaken in its assumption about the price. If I go into a bar and order a beer, I don't ask the price because I have a reasonable expectation of what it will be. If it is a dive bar, I might expect to pay $2, and if it is the Plaza, I might expect to pay $10. If I get a bill for $25, then I think I have a claim that this was not within my reasonable expectations and the seller had a duty to point the price out to me when I ordered it.

To elaborate on Professor Burnham’s comment, the law that most likely will be found to apply to this situation after the dust settles is not 2-305(1), but 2-305(2): “A price to be fixed by the seller or by the buyer means a price for him to fix in good faith.” Official Comment 3 to this section of the UCC elaborates on the principle:

Subsection (2), dealing with the situation where the price is to be fixed by one party rejects the uncommercial idea that an agreement that the seller may fix the price means that he may fix any price he may wish by the express qualification that the price so fixed must be fixed in good faith. Good faith includes the observance of reasonable commercial standards of fair dealing in the trade if the party is a merchant. But in the normal case, a “posted price” or a future seller’s or buyer’s “given price,” “price in effect,” “market price” or the like satisfies the good faith requirement.

There are allegations in the complaint that the bar actually charged different prices to different customers for the same drink. If true, there is a real issue of good faith. But in the more usual circumstance, where there is a “stated price” listed in the computer that totals up the bill, and the wait staff simply presses the button for “Bud Light" or "Samuel Adams Utopia" (which sells for $190 a bottle) and it comes up on the bill at that fixed price, that is all 'good faith" requires. 

Professor Burnham pointed me to an article in the New York Times about a similar dispute, but one that was handled in a far different way.  Three people dined at a restaurant where the price of their meal, which included a special whose price was "market price" (just like the comment to 2-305 suggests), shocked them. Their bill was $400, $275 of which was this one pasta dish.  They complained to the manager, who knocked 25% off the tab, and then wrote to the New York Times "Haggler", and got another 25% knocked off.  No legal system was harmed in the handling of this complaint. 

The reason I contacted Professor Burnham in the first place is that in the back of my mind the fact that the plaintiff had paid the bill without complaint--despite the judge's position that he did so under some form of compulsion, although such a compulsion would never stop him from asking to see the manager to register a complaint--was material.  Professor Burnham, who is a world expert on the doctrine of accord and satisfaction, disagrees:

UCC 1-308 [which is 1-207 in New Jersey, which has not adopted the latest amendments to Article 1] provides a mechanism for accepting with reservation of rights. If the buyer disputed the bill, it would have been a good idea for him to make clear that he was preserving his defenses by writing something like "paid under protest" on the bill. But the fact that one accepts performance without a reservation of rights does not mean that he has waived those rights. If in fact he was overcharged (i.e. charged more than the price on the menu or an amount beyond reasonable expectations), he would still have a claim absent something like accord and satisfaction. I don't see anything here that would constitute an accord. There was payment of the price demanded, not an agreement to pay less to resolve a dispute.

How, then, did someone get a lawyer for this case, and how did it end up in federal court (where there is a minimum "amount in controversy" of $75,000 for diversity suits)?  Apparently by making this into a class action, they allowed the defendants to remove it.  We've blogged about class actions involving food in the past. Under the Class Action Fairness Act, you can get into federal court if the total claims of the class would be $5 million or more.  But, as one of my colleagues, when discussing this case, remarked, how would they find the class members?  If you paid for your meal with cash, Houlihan's has no record of you (or at least I hope they don't).  And the class is of people who were charged an unreasonable price for their drinks.  If no one ever complained (or any complaints were resolved in the time-honored way of talking to the manager), the plaintiff here may be a class of one.  And it's hard to get to $75,000, let alone $5 million, if that's the case.

Professor Burnham's final advice is:

The fact that this has come up a couple of times indicates that restaurants might do more to practice a bit of preventive law. They might make sure the customer is given a menu, or that one is placed on the table, or that a nearby wall displays the prices. When the waiter rattles of the non-menu specials, they should include the price. That kind of practice would be an inexpensive way to keep these problems from arising.

This is where he, as a law professor, and I, as a practitioner, must part ways.  Houlhan's, or any other restaurant, must balance legal issues like this against the restaurant experience they impart to their customers.  So long as the wait staff would give true information about the prices of drinks that are not listed on a menu (as, in a bar, they often are not), and complaints like this are rare, it is perfectly reasonable, when you order a beer, that the response remains, "I'll be right back with your Bud Light" rather than "that will be $2.75, are you sure you want it?"

So, a guy walks into a bar and a lawsuit ensues.  Makes you long for a rabbi, a minister or a priest on whose shoulder to cry.

Oregon to Adopt 2009 FDA Food Code

The Oregon Public Health Division’s (OPHD) Foodborne Illness Prevention Program announced that it is moving forward with the adoption of the 2009 Food and Drug Administration (FDA) Food Code.  The new rules will take effect on September 4, 2012. Oddly, however, the agency noted that it would not be adopting the “No Bare Hand Contact” section of the Food Code.

In creating the “No Bare Hand Contact” rule for food handlers, the FDA pointed out that when hands are heavily contaminated, even effective handwashing practices may not be enough to prevent the transmission of pathogens from the hands to ready-to-eat (RTE) foods, such as sandwiches, salads, and other foods that are eaten without further washing or cooking. Accordingly, the rule requires the use of “suitable utensils such as scoops, spoons, forks, spatulas, tongs, deli tissue, single-use gloves, or dispensing equipment” when handling RTE food items to reduce foodborne illness.

Discussion of implementing the “No Bare Hand Contact” rule in Oregon was met with fierce opposition by restaurateurs who raised concerns over the cost of complying with the rule and whether it would actually increase food safety. In response, OPHD explained that over the next few months it will assemble a workgroup of interested parties (restaurateurs, government inspectors, consumers, etc.) to review and provide recommendations on addressing norovirus and fecal contamination of food, and to identify the best options to reduce illness.

Oregon’s process of adopting the 2009 FDA Food Code began in August 2010 when a Food Code Review Workgroup was established to work with the Oregon Department of Agriculture, food service and retail industry groups and regulators to develop recommendations regarding the new rules. Earlier this year, OPHD also provided training for regulators and industry on the 2009 Food Code in preparation for the September effective date.

The Association of Food and Drug Officials (AFDO), under contract to the FDA, has been gathering data on the progress of FDA Food Code adoptions by States, Territories, Local and Tribal Nation agencies. AFDO reported that 49 of the 50 States adopted codes patterned after the 1993, 1995, 1997, 1999, 2001, 2005, or 2009 versions of the Food Code, representing 96% of the U.S. population. Specifically:

  • Four States adopted the 1993, 1995 or 1997 Food Code, representing 4% of the US population.
  • Ten States adopted the 1999 Food Code, representing 13%of the US population.
  • Eleven States adopted the 2001 Food Code, representing 38% of the US population.
  • Twenty one States adopted the 2005 Food Code, representing 39%of the US population.
  • Three States adopted the 2009 Food Code, representing2% of the US population.

In September, Oregon will join Mississippi, New Hampshire, and Delaware in adopting the 2009 version of the food code. Until the final rules take effect, food industry members can review the Fact Sheets provided by OPHD to ensure compliance and see what other changes may affect their business in the coming weeks.

Without Causation, a Plaintiff Has No Case

It is probably an article of faith out there among the lay populace that if you discover that the object causing your previously unexplained cough of two years’ duration is a two-inch long fragment of a plastic eating utensil that has somehow entered your lung, and if you find the logo of a well-known restaurant chain on the utensil, you expect that someone will show up delivering you a large sum of money. A recent decision of the United States District Court for the Eastern District of North Carolina reminds us, not so fast.

In a well-reasoned decision following North Carolina law, the judge found the plaintiff’s claim that the defendants had sold him a food item that contained the utensil and he had unwittingly digested it impossible to swallow. This was because the plaintiff had to stack “inference upon inference” in his attempt to prove that the restaurant had anything to do with this injury. 

 

First, there was no proof that the object had been in any food (under the Uniform Commercial Code, food is "goods") the restaurant had sold him, a necessary factor in his theory of breach of the warranty of merchantability. The plaintiff relied only on circumstantial evidence—he claimed he had eaten at that restaurant, no other restaurant in its chain and no similar restaurant (though in other restaurants) in the relevant time period. But that was not enough. His doctors merely testified that the object caused his symptoms; they didn’t have anything to say about how it got there. Defendants’ experts, on the other hand, showed what you might expect: objects like that don’t get into your lungs when you simply eat them. Instead, there must be some “severe mental depression” that suppresses the coughing instinct. What can cause that? Drug or alcohol abuse. And there was substantial evidence the plaintiff was using both around the time he took ill.

 

Moreover, when foreign objects get into the lungs, unlike the stomach, they don’t degrade or degenerate. So the absence of any food-related objects in his lungs along with the plastic negated the likelihood that the plastic entered his lungs while he was eating the restaurant’s food.

The utensils were available free to anyone who came to the restaurant, or any other one in the chain, which again did not support any inference that the only way one could have entered his lung was through ingestion of the restaurant’s food. And there was no evidence that anything like this had ever happened before, or that among the tiny number of complaints of foreign objects in the restaurant’s food was there a fact pattern even remotely similar. So the complaint was dismissed on summary judgment.

This case demonstrates more than that there are successful defenses to claims for violation of the warranty of merchantability even in a case where a defendant’s logo is found in an unusual place. Causation is not something that can be assumed, or proven by piling “inference upon inference,” and is a defense that should always be examined. 

I Have Seen the Future and It Wants Me to Eat Better

One of the few pleasures of my current road trip is the chance to eat at Burgerville, a fast food chain based in Vancouver, WA, but with more stores in Oregon and none north of Centralia. Their motto is Freshâ–ºLocalâ–ºSustainable; we’re proud to have them as a client. 

Their attitude toward food may be a little different from what is ordinarily thought of as a fast food.

Healthful food choices are a natural for us. We use local, vegetarian-fed and antibiotic-free beef in our burgers, cage-free eggs in our breakfast items and our salads feature mixed greens with sustainable, local ingredients such as smoked salmon and Oregon hazelnuts.

As I entered their Kelso, Washington store last week, after being greeted by literally every member of the staff, I ordered my Rosemary Chicken Sandwich and Cherry Chocolate Shake, paid and was handed my receipt This is quite different “fast” food, as both items were individually prepared, and I had time to look down at my bill (pictured). Because I am wired that way, the bill immediately brought to mind the restaurant food labeling provisions of the Patient Protection and Affordable Care Act, about which I blogged last year. 

 

The PPACA contains a requirement that retail food establishments with 20 or more locations doing business under the same name (even if under different ownership, such as a franchise) post certain basic nutrition information for their “standard menu items.”   While the FDA has recently withdrawn guidance on how to conform to the statute, it claims it will propose regulations by the March 23, 2011, statutory deadline.

 

Burgerville appears to have made a virtue out of necessity. As you examine the bill, you will see two things. First, my food order is compared to two different daily caloric intake amounts, 2000 and 2500 calories. Second, Burgerville notes on the bill that I have the option of ordering my shake with yogurt instead of ice cream, which would cut the calories by about 45% and the fat intake by 90%. With this information, I can make choices, both on this trip to the restaurant and next time. This time, I rode my bike after dinner for eight hard miles. Next time, I’m ordering the yogurt shake.

 

Note: next time was the very next day, as I stopped at the Centralia, Washington store and indeed asked for my shake to be made with yogurt. Not only did I save the calories and fat, but the extra tang of the yogurt worked really well with the chocolate and cherries. 

 

I suppose that makes me a bit of an anecdotal counterexample to the study published last month in the American Journal of Preventive Medicine, which indicated that ordering patterns were no different at Taco Time restaurants in King County, Washington, where caloric labeling is mandatory, and their stores in other jurisdictions. 


 

The Food Labeling Provisions of the Health Care Bill: Preliminary Thoughts

You've heard the phrase "buried in the bill," of course.  Section 4205 of the "Patient Protection and Affordable Care Act," the health care reform bill President Obama signed on March 23, 2010, is contained on pages 1206-1214 of a 2407 page bill.  It could hardly be more buried than that.

In very technical terms, Section 4205 inserts a new subclause (H) into Section 403(q)(5) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 343(q)(5), and adds a proviso (referring to the new subclause (H)) in Section 403(q)(5)(A).  Section 403 is entitled "Misbranded Food" and clause (q) is entitled "Nutrition Information."  Previously, subclause (5)(A) has exempted both restaurant food or takeout food from federal nutritional labeling requirements. 

The new statute creates a new regime for labeling, in essence only requiring caloric and other information to be provided by restaurants covered by the act, by vending machines owned by persons covered by the act, and by those who opt in to the act. 

The covered restaurants are those "part of a chain of 20 or more locations doing business under the same name (regardless of the type of ownership of the locations).and offering for sale substantially the same items."  This appears to be intended to cover chain restaurants even if they are franchised, or held in separate subsidiaries. 

The substance required to be disclosed is actually quite discrete.  It must be:

  • In a clear and conspicuous manner
  • Adjacent to the name of the standard menu item
  • Clearly associated with the standard menu item
  • Of the number of calories contained in the standard menu item as usually prepared and offered for sale

In addition, there must be posted prominently on the menu "designed to enable the public to understand, in the context of a total daily diet, the significance of the caloric information provided on the menu."  This would include information about a recommended daily calorie intake. 

Finally, all of the standard information required under clause (q)(1)(C) and (D), meaning the standard information on calories derived from fat, plus total fat, saturated fat, cholesterol, sodium, total carbohydrates, complex carbohydrates, sugars, dietary fiber and total protein,  must be provided somewhere in the restaurant and a prominent, clear and conspicuous sign stating this fact must be on the menu or menu board. 

The caloric disclosure also applies to a salad bar, buffet line, cafeteria line, or similar self-service line, "adjacent to each food offered," on the basis of per displayed food item or per serving. 

Food establishments are required to have a reasonable basis for their nutrient content disclosures.

There will be regulations on how to deal with different flavors or combinations (such as soft drinks from a fountain with many choices or pizza with different toppings).  Regulations can also add to the list of nutrients required to be disclosed. 

Exceptions to the disclosure requirements include items not listed on the menu, such as condiments, daily specials not on the menu for less than 60 days per calendar year, and food that is part of a customary marketing test but for a period of less than 90 days. 

Food from vending machines where the machine does not allow the nutrition facts panel to be seen prior to purchase is required to have "in close proximity to each article of food or the selection button" a clear and conspicuous statement of calories in the article.  Vending machines are covered if they are operated by a person who is in the busienss of owning or operating 20 or more vending machines.

The Secretary of Health and Human Services has one year to propose regulations. 

An important aspect of the  law is its preemption of inconsistent state laws.  This applies to the establishments required to be included, and any others that choose to opt into the program.  Thus, a smaller chain that crosses state lines where the two states have differing disclosure rules can choose to follow the federal rule and thus be able to print and display consistent menus,as well as train their personnel on only one set of rules.  The preemption does not apply to labeling requirements in the nature of warnings concerning the safety of food, presumably including the California warnings about alcohol during pregnancy. 

Until the rules come out, of course, the devil will remain in the details.

Media Headlines and Food Labels Each Might Be Misleading (Film at 11)

A recent headline in the Huffington Post breathlessly importuned: 

 "Restaurant Food Has Up to 200% More Calories Than Advertised." 

If you only read the headline, you might think this was some important information that might change your eating habits.  If you read the article, you would discover a balanced set of conclusions from a fairly limited study.

First, the limitations.  The study tested a total of 29 dishes at 10 chain restaurants, plus some frozen supermarket meals from nationally-distributed brands.  That's hardly a study of "restaurant food" in general.

Now the facts from the actual article:

  • The only item that came up at 200% over the published calorie count was Denny's "grits and butter."  Denny's responded to the study by pointing out the serving size for its calorie count was a four-ounce serving and the one used in the study was a 9.5 ounce serving.  So you can pretty much discount the headline already.
  • The average variation in calorie counts was nowhere near 200%; it was 18%.  Or, according to my calculation, 1111.11% overstated.
  • The Food and Drug Administration permits a variation of 20%, so even with the Denny's grits and butter (which was, to repeat, apparently not an appropriate comparison), the food in the aggregate met the government standard.
  • Reasonable minds--in the person of two professors of nutrition--can differ about whether the calorie numbers on restaurant menus should be relied on.
  • Some of the variation can easily be explained by such simple things as the fact that a different amount of mayonnaise may come off the spatula on different sandwiches.

One thing I know is that the reporter, who in this case appears to have done a careful and balanced job, is not the headline writer, whose job is to grab attention.  And grab attention the headline did.  If you read the article, you learned a lot.  If you only read the headline, you learned nothing and might have been misled.

For the record, when my name is on the byline, I wrote the headline, too.

Where to Eat in Dodgy Places: Advice from a Real World Traveller

Joel Putnam is a world traveller in his early 20's.  He recently reached Africa, his seventh continent in his travels around the world.  As is typical of  his generation (he is, in the interests of full disclosure, a friend of my son), he is blogging about it.  His blog is very well-written, and the captions on his photographs are always witty and often downright hilarious. 

Joel has apparently been reflecting more broadly on his experiences, and he penned an entry entitled "Travel Tip:  Street Food Primer" that includes some excellent advice on how to select a place to eat anywhere in the world. 

Here are some excerpts:

  • Lesson number one: In the developing world, street food is often safer than restaurant food. Yes, you read that correctly. Street food. The food that has made me the most sick while traveling has almost all come from restaurants. The reason why, is that with street food, you see it get cooked right in front of you, and you see who is cooking it. In restaurants, you see neither.

This is an important insight, although as readers of this blog know, you can get sick at the most sanitary of street stalls, or in the best restaurant on earth

  • Lesson number two: usually, if the tap water isn't safe, neither is the ice. This is seems obvious when written, but it's one a lot of of people forget in practice. There are a few countries, mostly in Asia, where ice is actually factory made from safe water. But please take the extra step and check that that's the kind of ice floating in your drink.
     
  • Lesson number three: what's safe for the locals isn't necessarily safe for you, yet. . . . We all have  little local beneficial bacteria running around our digestive tracts that helps us handle the local food. This differs from place to place. So take it easy for the first few days in a new place to develop your own. Legend has it local yogurt helps with this (though beware, yogurt that hasn't been refrigerated properly or that has expired is a fast way to making you sick). After you've been eating tame food (like vegetarian dishes) in a place for a bit, then try moving on to the more interesting stuff.
     
  • Lesson number four (this one is important): if the place is crowded, the food is probably good, and it's almost definitely being cooked fresh. This is an excellent way to pick street food vendors and restaurants. We'll call it the sheep method. The reason is that deserted restaurants and vendors are much more likely to leave things like meat lying around in temperatures that let nasty things start growing in it. Then when you order it, it'll get quickly reheated and served. Popular vendors, on the other hand, are having to constantly cook fresh batches to meet demand. And if it's in that much demand from the locals, it's probably because the food is especially good.

From the introduction to his blog entry, I might add a lesson number five:  avoid hubris.  He recounts the tale where he bragged to some fellow travellers that he had eaten so many different things in China that he should have no trouble in Mongolia.  The natural result of that was that he had 12 hours of indigestion from his first Mongolian street food.  But fortune follows the brave, since one of those fellow travellers from Wales was a doctor.

Joel's common sense advice can be used anywhere.  We all have internal sensors that tell us when it's good to eat or drink something--our eyes, our noses, our taste buds, our ears.  This is good supplementary information for how to deploy them in unfamiliar places.

I commend Joel's blog to you and not just for the travel insights.  If you care to do so, vote for his blog as Travel Blog of the Year in the Blogger's Choice Awards.  I also thank him for the delicious photograph accompanying this entry.  I think we may safely assume he didn't get sick from that meal.

Who Ordered the Christmas Pudding? Please Sign Here

Christmas pudding is an English delicacy with a long tradition.  One of those traditions is that small coins or little silver charms are baked into the pudding, which are supposed to be sources of good luck for the coming year.  Small coins and little silver charms, of course, can be swallowed or can crack teeth.  This has, presumably, been going on for a long time without anyone bringing lawyers into it.

Until, that is, some lawyers started talking to the owner of High Timber Restaurant in London.  High Timber is "the only restaurant in the City of London with tables on the banks of the Thames," which means that it is likely to attract a lot of lawyers as clientele, since the Inns of Court are just steps away.  And some of those lawyers started advising owner Neleen Strauss about the risk of chipped tooth lawsuits.  And what, in their opinion, to do about it. 

So, before your server brought you Christmas Pudding at High Timber on Christmas, you were first asked to sign a waiver.  The Huffington Post (or whomever they collected the article from) points out that other restaurants in the UK apparently require you to sign a waiver before eating rare meat, and that a restaurant in Chicago required waivers before serving chicken wings made from Red Savina Habanero peppers, which come in at a whopping 577,000 Scoville heat units.  In some cases, it may be the waiver is used to generate publicity rather than necessarily providing legal protection.

I can't imagine anything more offputting than to be presented with a waiver to sign before being served dessert in a fine dining restaurant.  This is a restaurant that doesn't have a wine list but instead suggests you make an appointment to view the cellar.  Based on their online menu prices, the Christmas pudding probably cost about $12 US.  For that, I'd expect a dining experience unmarred by the need to sign anything other than a credit card receipt.  Would the other diners mind if I made a cell phone call to my English solicitor to have her interpret the waiver for me?

Food isn't the only place where the movement to turn every transaction into a legal confrontation is evident.  Some years ago, consumer groups advocated that there be a required explanation for the fine print in every consumer lease transaction.  Rental car companies pointed out that, in order to comply with such a requirement, they would have to show a fifteen minute video before allowing you to leave with your rental car.  That quashed that movement pretty quickly.

One of J.R.R. Tolkien's lesser-known but quite delightful works is Smith of Wooton Major.  In the town of Wooton Major, the Master Baker, as the culmination of his career, makes a "Great Cake" to be shared by 24 children.  In each slice of cake is baked a surprise, one for each child.  One child, Smith, does not find a surprise in his slice; instead he swallows it.  The surprise, though, is a special star that, having been swallowed, appears on Smith's forehead, and that star is his passport to meeting the king and queen of Faery.

I worry that if this trend keeps up, and I read this story to my as yet unborn grandchilden, one of them will ask, "Did the children have to sign a waiver before they could eat the cake?" 

The Best Restaurant on Earth Closed Due to Food Poisoning

The Fat Duck, Heston Blumenthal's three-Michelin star restaurant which was once named the best restaurant in the world (it is currently second), was closed temporarily because of reports of food poisoning.  Nothing has been found in a thorough search, leading to speculation that there may have been some form of sabotage, or simply a non-specific virus passed along not by the food but by a contagious member of the staff. 

In an interview in the Guardian, Blumenthal detailed all the efforts that had been made to isolate the problems, which appeared as stomach ailments in customers, which--unusually for food poisoning--appeared four to five days after diners ate at the restauarant.  The closure was voluntary and he plans to reopen Wednesday and compensate not only those who were affected with free meals, but give those whose bookings were cancelled something special upon their return. 

UPDATE:  It appears now more and more that the cause of the customers' illnesses was an unspecified airborne virus, and neither sabotage nor food poisoning.  Restaurants are, after all, gathering places, and the lessons of winter viruses apply as much to a restaurant, for all the efforts a place like the Fat Duck may take to remain clean, as to any other indoor place. 

Yes, We Have No Tomatoes

By Guest Blogger Richard Goldfarb
Sunday, at a local restaurant, I saw a sign saying that there would be no fresh sliced tomatoes on my burger. Although it is quite clear that there are safe tomatoes available, the FDA has encouraged restaurants simply to cease selling them. This makes a lot of sense: rumors fly so rapidly and irresponsibly. Though, individual restaurants may take different steps; those that pride themselves on knowing the source of their heirloom tomatoes should be advertising that fact.

The problem is salmonella, in particular a strain called “saintpaul.” The FDA identified salmonella in tomatoes as a significant risk a year ago.  Thus, they had the infrastructure in place to monitor and deal with the significant number of reported outbreaks this year. So far, no one knows the source of the problem, and all the FDA can do at this point is to list those tomatoes that have not been associated with the outbreaks:

• Cherry tomatoes
• Grape tomatoes
• Tomatoes sold with the stems on
• Homegrown tomatoes

In addition, the FDA lists those tomato-growing areas that have been ruled out in the outbreaks. This doesn’t mean that tomatoes grown in those areas will always be safe, but that they have not been linked to this outbreak. The FDA also reiterates its advice on the safe handling of fresh tomatoes and other fresh fruits, both in restaurants and at home. The CDC website provided a nice summary:

• Refrigerate within 2 hours or discard cut, peeled, or cooked tomatoes.
• Avoid purchasing bruised or damaged tomatoes and discard any that appear spoiled.
• Thoroughly wash all tomatoes under running water.
• Keep tomatoes that will be consumed raw separate from raw meats, raw seafood, and raw produce items.
• Wash cutting boards, dishes, utensils, and counter tops with hot water and soap when switching between types of food products.

The problem isn’t limited to the United States; New Zealand tomatoes have been implicated as well, and banned in Hong Kong.  It was nice to know that the tomatoes we had with dinner last night were doubly safe: they were hothouse tomatoes sold with the stems on, and they were from British Columbia, one of the locales ruled out by the FDA.