By Darren Smith, Weekend Contributor
This blog has discussed several examples of the criminalization of activities in the United States that would be considered by many to be either civil in nature or based upon manners or simple transgressions. Selling certain types of hot dogs could actually, according to state law, be considered not only violations of the Consumer Protection Act, but also Gross Misdemeanors.
Washington enacted the Sale of Kosher Food Products Act of 1985 which prohibits the use of the words “Kosher” or “Kosher Style” in selling foods that are not kosher according to state definition. A possible example of this could allegedly involve a national restaurant chain, Five Guys, which has franchises in several locations in Washington State. In Washington something as ordinary as serving a Kosher Style hot dog could be considered a crime.
Five Guys Enterprises LLC, with its company headquarters located in Lorton, Virginia offers a basic, and delicious, menu with offerings of Burgers, Fries, Dogs, Sandwiches, and Drinks with their burgers consisting of “100% fresh beef – no fillers or preservatives.” Franchises are located in over sixteen locations in the state. One of their products is a “Kosher Style” hot dog. While the company has tried to differentiate on its corporate website between Kosher and Kosher Style, the latter being the name of one of its hot dogs, it still might be contrary to Washington law and could fall victim to criminalizing ordinary acts; the serving of a hot dog.
The state legislature passed the Sale of Kosher Food Products Act of 1985, codified in Chapter 69.90 RCW, to address the consumer protection issue of serving products marketed as Kosher that actually are not. Many consumers rely on the labeling of kosher foods to be true products prepared and served according to, among other things, religious teachings and practices. In addition to the legislature making violations a consumer protection act issue, it went an extra step in making such practices a Gross Misdemeanor. Gross Misdemeanors are punishable by up to a year in jail. Corporations in the state can be held liable for crimes.
The elements of The Act are as follows:
RCW 69.90.010
Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
(1) “Food product” includes any article other than drugs, whether in raw or prepared form, liquid or solid, or packaged or unpackaged, and which is used for human consumption.
(2) “Kosher” means a food product which has been prepared, processed, manufactured, maintained, and sold in accordance with the requisites of traditional Jewish dietary law.
(3) “Person” includes individuals, partnerships, corporations, and associations.
RCW 69.90.020
Sale of “kosher” and “kosher style” food products prohibited if not kosher — Representations — Penalty.
(1) No person may knowingly sell or offer for sale any food product represented as “kosher” or “kosher style” when that person knows that the food product is not kosher and when the representation is likely to cause a prospective purchaser to believe that it is kosher. Such a representation can be made orally or in writing, or by display of a sign, mark, insignia, or simulation.
(2) A person violating this section is guilty of a gross misdemeanor.
RCW 69.90.030
A violation of this chapter shall constitute a violation of the Consumer Protection Act, Chapter 19.86 RCW.
The Menu at one Washington Franchisee, and the Corporate Website, lists “Kosher Style Hot Dog”. And, the company states the following about its product:
What is a ‘kosher style’ hot dog? Is your beef kosher?
We use Hebrew National hot dogs which are kosher. However, we’ve received feedback in the past from customers who said that although the hot dogs we use are kosher, the way we cook them and serve them is not. As a result, we didn’t want to be misleading since we use buns that contain dairy and in most cases the dogs are cooked on the same grill as our burgers, therefore we decided to call them “kosher style”. Our beef is not kosher.
Your author visited a Five Guys restaurant in Washington and did note that the “Kosher Style” hot dogs are cooked on the same grill as the beef, which would be a mixing of kosher and non-kosher foods in the making of the end product.
The company has made an effort, on the company website at least, to note that these hot dogs are in the style of kosher and not actually kosher, but this might not be enough in Washington.
There are numerous examples of products in the U.S. economy that use the word “Style” to declare that the food product is not actually as pure as might be expected of a product marketed without the word “Style”. Some examples might be “Artisan style breads” or “Honey style sauce” and do not necessarily break Washington’s, other states’ or Federal consumer protection laws. Yet Washington’s legislature decided that “style” was not enough with regard to differentiating kosher foods with non-kosher. It is either Pure or Not-Pure, and criminalized violations.
There are particular sensitivities to uses of kosher or the Islamic halal in various communities and cultures. The issue can be quite significant.
There was a contentious lawsuit filed in Michigan against McDonald’s for allegedly selling halal foods that were not prepared according to Islamic tradition. McDonald’s did not admit fault but during the time of settlement restaurant chains in two locations having a significant Muslim community pulled their “Halal-Friendly” chicken products from their menu. Recently, a controversy has developed with McDonald’s Morocco over the halal issue.
It is certainly difficult to operate a business in numerous states having often greatly varied laws and administrative codes and when serving something as ordinary as a hot dog might possibly constitute a crime; it can make any business worry. Five Guys likely just wants to provide a menu its customers enjoy. Yet given some of the heightened importance of issues relating to core values of particular cultures or religions, sometimes legislatures go about enacting laws having uniquely strong punishments that businesses or individuals might not be aware.
By Darren Smith
Sources:
Five Guys Enterprises, LLC Corporate Website
Five Guys Menu
Chapter 69.90 RCW (Kosher Foods)
Chapter 19.86 RCW (Consumer Protection Act)
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.
The image of the hot dog is not representative of a Five Guys product and is used for illustrative purposes only.
The rationale of this law is to protect people who might be led to think a food is kosher when it is not because it is described as kosher style.
It is then to me odd that the law does require that individuals who buy a food called kosher style are inclined to think it kosher at their restaurants. It is a failure of taming the coercive aspects of the law that it does not specify that a complete defense would be if people who buy the kosher style hot dogs do not think the food kosher and are not inclined to think so.
If people buying a kosher style hot dog at their restaurants do not think it kosher nor are they inclined to think it kosher then there is nothing the law, given its rationale, has to protect anyone from and nothing to punish anyone about.
Lawrence – went by my local Buca de Beppo yesterday and they had a big sign in their window (neon of course) advertising “home-made food.” How many people actually believe that someone is cooking the food in their home and bringing it to Buca or does Buca has one or more employees that live in the building?
When I was teaching I used to get my birthday cakes from a woman who made them at her home, but she actually had a separate building on the property with the proper licenses, etc.
I love burger but I really love hot dogs
fiver,
Today, Jonathan mentions a Supreme Court case which mentions an important pleading reality for challenges to statutes: “the amended complaint alleged that Ohio Rev. Code Ann. §§3517.21(B)(9) and (10) are unconstitutional both facially and as applied” (Susan B. Anthony List v Driehaus, emphasis added).
Larry.
That would be a good place to meet. The town my Dad lives in doesn’t have a Five Guys. So we weren’t as lucky. Their fries are like ones that I used to get at a drive-in burger joint I went to as a kid. It’s not often you find these any more.
fiver
Dredd,
Thanks for the case links, but you might want to check out Commack Self-Service Kosher Meats, Inc. v. Hooker where the 2d Circuit upheld the District Court’s finding that New York’s 2004 Kosher Law is constitutional.
The sticking points in the cases where Kosher laws were found unconstitutional appear to have been the excessive government entanglement with religion and the specified preference for Orthodox Jewish standards (as opposed to, for example, Conservative Jewish standards). New York’s 2004 Kosher law avoided those problems.
Here, the Washington Statute does not appear to have those issues either. There does not appear to be a preference for any particular sect. The statute punishes those who knowingly sell foods that are not Kosher while marketing them as “Kosher” or “Kosher Style.”
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Good points.
One thing to note that has changed with the Roberts Supreme Court, which is implicated in this case you cite, is facial challengers to statutes.
The Roberts Supreme Court does not like facial challenges to statutes.
At all.
This was a facial challenge as opposed to an “as applied” challenge.
The Circuit courts know this, and savvy lawyers like the ones who prevailed in the case you cited do too.
The plaintiffs lawyers, on the other hand, did not plead the case well in that regard, and should have amended their complaint (FRCP 15) immediately upon receiving the motion to dismiss under Rule 12(b).
The complaint should have been amended to also include an “as applied” count.
The new law is very watered down and no self-respecting kosher dood would rely on it to stay out of hell or get to heaven. 😉
So to speak.
I would like to see an “as applied” case fully developed in the facts in a particular scenario involving the Washington Statute, and the new New York statute.
Good comment fiver.
Darren,
My wife and I are meeting our daughter at a Five Guys Restaurant for a Fathers Day treat! I won’t be having the hot dogs! 🙂
rafflaw – you keep kosher?
Dredd,
Thanks for the case links, but you might want to check out Commack Self-Service Kosher Meats, Inc. v. Hooker where the 2d Circuit upheld the District Court’s finding that New York’s 2004 Kosher Law is constitutional.
The sticking points in the cases where Kosher laws were found unconstitutional appear to have been the excessive government entanglement with religion and the specified preference for Orthodox Jewish standards (as opposed to, for example, Conservative Jewish standards). New York’s 2004 Kosher law avoided those problems.
Here, the Washington Statute does not appear to have those issues either. There does not appear to be a preference for any particular sect. The statute punishes those who knowingly sell foods that are not Kosher while marketing them as “Kosher” or “Kosher Style.”
dockman
Anybody seeking a Kosher (not Kosher style, not “almost” Kosher, but really Kosher) hot dog is going to have enough brains to know that Kosher style has nothing to do with Kosher, other than the use of the word. As a Jew (more secular than observant) and a hot dog lover the fact that they are using Hebrew National hot dogs is good enough for me. Mustard and sauerkraut only, please.
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The problem with your hope is that the Wasthington statute we are discussing includes “Kosher Style” and outlaws it too.
As I have explained ad nauseum on this thread.
The Mutt dogs are staying, that Mutt law is not.
Really? The country is going to the dogs (no pun intended) and we’re actually trying to regulate the difference between ‘kosher’ and ‘kosher style’? As Cheryl noted above, this is what is known as ‘pilpul’ in Hebrew (or is it yiddish?), a pointless exercise not unlike ‘How many angels can dance on the head of a pin’, and every bit as substantive and important.
Kraaken – I understand that
occupied many a theologian over the long Medieval nights.
Anybody seeking a Kosher (not Kosher style, not “almost” Kosher, but really Kosher) hot dog is going to have enough brains to know that Kosher style has nothing to do with Kosher, other than the use of the word. As a Jew (more secular than observant) and a hot dog lover the fact that they are using Hebrew National hot dogs is good enough for me. Mustard and sauerkraut only, please.
Paul C. Schulte
Dredd – I am a little vague on this, but does Judaism recognize the concept of Hell?
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Me too but my guess is no.
I have no problem whatsoever with criminal laws that corporations must obey. Nor should there be a problem with such laws applying to truth-in-advertising/labeling requirements.
This company does not “just want[] to provide a menu its customers enjoy.” Nonsense. The company “wants” to make as much money as possible. It’s all a for-profit corporation is capable of “wanting.” And to help make that money, it is trying to mislead its customers into purchasing a product they otherwise might not buy. “Kosher style”? Huh? How about labeling them as “Not Kosher,” not using a “Kosher” label at all, or even, God forbid, providing a Kosher product as advertised?
Providing a disclaimer somewhere on the web doesn’t cut it. Who Googles their fast food? Do we do this in the drive-thru?
If someone were to rip off a hot dog from Five Guys, is there any doubt that Five Guys would make use of the criminal justice system? Yet as Five Guys lies to rip off thousands of people, it is somehow a victim if that same criminal justice system is used against it?
oldfox33
…
I prefer private causes of action to govt regulation, but what damages could be awarded to an observant Jew for an inadvertent consumption of “impure” food? It doesn’t matter to me, but in a legalistic religion it could mean eternity in Hell. Frying Hebrew-National on a grill just after a bacon cheezeburger might turn someone’s stomach or induce cardiac arrest or stroke to a guilt-saturated believer, no?
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The Washington State statue is drafted like the state laws in New York and New Jersey, and a Baltimore, MD. city ordinance.
Those laws were struck down as violative of the First Amendment of the U.S. Constitution.
The Washington State statute is going down too, whether a case is brought in state court or in a federal district court in the State of Washington.
The Ninth Circuit will affirm any such holding in a federal district court.
The U.S. Supreme Court is likely to deny a writ of certiorari from a Washington State Supreme Court holding the state law unconstitutional.
Any civil lawsuit for damages on kosher grounds will suffer the same fate.
IMO.
Dredd – I am a little vague on this, but does Judaism recognize the concept of Hell?
A friend of mine goes into gran mal seizures with the slightest contamination of MSG. He’s come upon more than a few incidents where MSG-free restaurants somehow get some MSG particles into their food. Praps from other utensils, I don’t know. But he has to be very vigilant and clear that they may be put out of business if they are mistaken about the MSG-absence in the food that he is served.
I prefer private causes of action to govt regulation, but what damages could be awarded to an observant Jew for an inadvertent consumption of “impure” food? It doesn’t matter to me, but in a legalistic religion it could mean eternity in Hell. Frying Hebrew-National on a grill just after a bacon cheezeburger might turn someone’s stomach or induce cardiac arrest or stroke to a guilt-saturated believer, no?
oldfox – I react badly to MSG, too.
Paul C. Schulte
Dredd – you saying it is unconstitutional for the state of Washington or unconstitutional for the USA?
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In the two Federal Circuit Courts of Appeal (2nd, 4th) such laws were held to violate the federal constitution (1st Amendment).
The Supreme Court of New Jersey held the same.
I think that the Washington State courts will follow the reasoning of the federal appellate courts and the New Jersey Supreme Court.
This Washington State Law violates the Establishment Clause of the First Amendment to the U.S. Constitution IMO.
The Consumer Protection Laws, even though not criminal, have also been held unconstitutional: RAN-DAV’S County Kosher, Inc. v State of New Jersey, 129 N.J. 141, 608 A.2d 1353 (1992)
While the cases are not binding on Washington Courts, I predict that those cases will be found to be persuasive, and the Washington Courts will hold the same.
That is, they will hold that RCW 69.90 et.seq. is unconstitutional.
Dredd – you saying it is unconstitutional for the state of Washington or unconstitutional for the USA?