Regulation

A Right to the Joy of Chocolate

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Mort Rosenblum, author of Chocolate: A Bittersweet Saga of Dark and Light, is outraged that candy makers want the FDA to let them replace cocoa butter in chocolate with other vegetable fats:

The proposal would widen the gap between good and awful. Industrial food companies could sell their waxy cocholat for less. But purveyors of the real thing have no corners to cut. While discerning chocoholics will fork over whatever it takes, those who can't pay will never know chocolate….

Too much of what we eat is already ersatz-virtual, like "farm-fresh" Frankenstein produce or "home-baked" chemical cookies. No one who has savored real chocolate can be eager to see our beloved Theobroma cacao, the elixir of the gods, suffer this fate.

To sum up, the vast majority of consumers are perfectly happy to eat any old crap labeled "chocolate," but they don't know what they're missing because real chocolate, the kind "discerning chocoholics" like, is too expensive. And if chocolate makers save money by using cheaper substitutes instead of cocoa butter, will that make the good stuff any less affordable? Rather than demanding that the FDA keep chocolate real (a battle that surely was lost with the acceptance of "white chocolate," if not with the introduction of milk chocolate, the kind most people seem to prefer), shouldn't Rosenblum be calling for a chocolate subsidy program to uplift  the taste buds of the masses? After all, as he puts it, "everyone has a right to the joy of chocolate." And if it turns out that most people still prefer Hershey bars, Snickers, and Reese's Peanut Butter Cups, Rosenblum will just have to face the hard truth that only especially sensitive people like him (along with the gods, presumably) can discern the superiority of the real thing.

Clarification: The "ersatz-virtual" chocolate that Rosenblum decries would still be made with cocoa mass for the flavor, but the fat, which provides texture, would be different.

NEXT: Cartography for the Masses

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  1. The beauty of Hershey is that it was formulated to please the palate of exactly one man.

    I wish I had that kind of money.

  2. I don’t know, I might have to disagree here.

    Is something that does not include cocoa “chocolate”?

    I think you should certainly be allowed to make a candy with the other vegetable oils. I question whether you should be able to call that “chocolate”.

    Would it be OK if I took a dump in a tube, wrote “chocolate” on the tube, and sold it? Presumably no, because it’s not “chocolate”.

  3. You know, I might have to make an exception to principles when it comes to the noble cause of defending chocolate. I mean, we’re talking about the food of the gods here. What could be more important than defending the sanctity of traditional chocolate? Chocolate has always been a union between the flavor of one bean and the fat of one cocoa butter. Are we to let anarchy reign in American chocolate, while the French (or worse, those Swiss, who refuse to ever fight) enjoy strong, traditional chocolate?

    Just kidding. Yes, yes, I agree with Jacob.

  4. Manufacturers of real chocolate should form an association and proudly proclaim on their product that they adhere to its strict regulations.

    I call that Libertarian Solution #843.

    I’d buy only the good stuff.

  5. I love dark chocolate. When I was studying abroad, I used to pick up a bar that was 90% cacao, sweetened with cane sugar. It truly is immensly better than the candy bars we get here, but that’s just my opinion, and there’s no accounting for taste.

  6. “most people still prefer Hershey bars, Snickers, and Reese’s Peanut Butter Cups”

    Those are all made with real chocolate.

    “To sum up, the vast majority of consumers are perfectly happy to eat any old crap labeled “chocolate,” but they don’t know what they’re missing because real chocolate, the kind “discerning chocoholics” like, is too expensive.”

    They are currently eating the real thing when they buy cheap chocolate.

    So this is really a fight about false advertising. People want to sell non-chocolate as chocolate.

    Is that fraud?
    That seems the only question needed to determine the libertarian position on this.
    Right?

  7. Jacob, in your list of offenses committed against chocolate, you forgot to include the personal fave of Dave W.

  8. I think you should certainly be allowed to make a candy with the other vegetable oils. I question whether you should be able to call that “chocolate”.

    Do you know what is in white chocolate?

  9. Mort Rosenblum, author of Chocolate: A Bittersweet Saga of Dark and Light, is outraged delighted to peddle his book in the pages of the New York Times.

    The rest looks good. -Ed.

  10. Would this be a better, freer country if Kraft was allowed to tall people that its vegetable-oil-based “Pasteuized Processed American Singles” were cheese?

    No, we’d just have a lot more people being mislead about what they were buying.

  11. note to self: never buy fluffy’s “chocolate”

  12. MP,

    No, but I know they call it “White Chocolate.”

  13. Milk chocolate is disgusting. If you want to eat sugar, just go eat spoonfuls of sugar and spare yourself the illusion that you’re eating chocolate.

  14. Manufacturers of real chocolate should form an association and proudly proclaim on their product that they adhere to its strict regulations.

    I call that Libertarian Solution #843.

    With an eyecatching trademark that would work. Nah, no bureaucracy involved and it wouldn’t help/protect the idiots out there.

  15. Man you know life aint so bad when the overlords half to stretch this far to find a problem to solve. Write on the chalk board a hundred times, “we exist for a reason”.

    joe

    Kraft can call it “Larry” for all I care. 🙂

  16. “Pasteuized Processed American Singles” were cheese?

    They are called “Cheese Food”. Is that misleading?

    No, they aren’t Cheese. And I agree that calling them such would be misleading. But I don’t think we need national standards bodies…a la Europe…to tell consumers that.

    No, but I know they call it “White Chocolate.”
    And? They have Dark Chocolate and Milk Chocolate too. What’s your point?

  17. I, am like, so from Texas. half = have.

  18. MP,

    Not really – those things really are a food that has some relationship to cheese.

    “And?” And doing so tells consumers what they’re purchasing.

  19. I like the European regs (unusual for a regulation and me) because they force the candy makers to put the percentage of the expensive stuff on the candy bars. And the best chocolate in the world is the special edition 60% Lindor truffle balls in the BLACK wrapper. Second best is the blue ones, which are called ‘dark’ but don’t hold a candle to the hardcore blacks…
    JMR

  20. steve,

    Texas is the best state ever and damnit, if half is the new have, so be it, we’ll convert the rest of the heathen states.

  21. If this non-chocolate chocolate tastes so awful, no one will buy it! Not a second purchase, anyway. The only people who will really feel the brunt of this will be trick or treaters, as you always buy nice stuff for yourself and buy the cheap crap to give the kids.

    It’s sort of hilarious to see this guy complain, though, because chocolate keeps getting more widely available and in more varieties and from different sources every year. I remember Hersey’s Special Dark being pretty much the only dark chocolate except for the really expensive stuff. Now Green and Black’s is advertising in magazines.

  22. MP, the point is that the name “white chocolate” is different than the name “chocolate” so I have a reasonable chance to know that I’m buying something different before I eat it.

    If someone was selling white chocolate and calling it chocolate, I’d be pissed.

    So if they want to make some sort of non-cocoa chocolate, they should come up with a descriptive name for it.

    There’s a tension in libertarianism [at least in my version of it] between freedom and language. I want people to be free to do whatever they want, but I also regard contracts [including implicit contracts] as sacrosanct. And you can’t have contracts without strict definitions of language. The word “chocolate” has to have an exact meaning or we can’t contract to buy and sell “chocolate”. To me that includes your putting a label and a price tag on a candy bar and me buying it.

  23. Since regulations already require food products to identify the ingredients, regulating what can or cannot be called chocolate is unnessary.

  24. Also,

    I doubt that a new product will simply be called “Chocolate”. It will be “Crazy Dave’s Wild Chocolate Experience” with the small disclaimer claiming “contain’s no chocolate” and marketed on saturday mornings for sugar crazy kids.

  25. So if they want to make some sort of non-cocoa chocolate, they should come up with a descriptive name for it

    First of all you need to learn what make chocolate chocolate.

    Cocoa beans are processed to produce two basic things: the chocolate liquer and cocoa butter.

    Low cost chocolates in the US have been replacing some or all of the cocoa butter with alternative vegetable fats for a long time. Under EU rules these would not be allowed to be called chocolate. The author would like to see this rule or something similar implemented in the US.

    I don’t think the rule is necessary.

  26. LIT

    Agreed. Consider me, and the remote control helicopter with semi-auto paint-ball gun turret, on “stand by”. 🙂

  27. If Hershey’s chocolate is made w/o cocoa butter, is it still actually chocolate?

    I don’t know, but it’s likely to taste even nastier than it already does, driving away plenty of consumers who can afford and obtain something better. A latter-day New Coke.

    God bless the free market and Cadbury’s chocs.

  28. Asymmetric information issues create market breakdowns that clearly justify external intervention. Nobody’s trying to make this new junk illegal, just trying to keep it from being labelled “chocolate,” much in the way I couldn’t piss in a bottle and call it lemonade

  29. “…Rosenblum will just have to face the hard truth that only especially sensitive people like him (along with the gods, presumably) can discern the superiority of the real thing.”

    Jacob, I’ve been a big fan of this mag, site, and your writing for a long time. But this statement cries ignorance. Have you spoken with a female about this idea? For example, Mrs. LJ has a particular affinity for the ‘real thing’ with some regularity. I call it ‘chocolate season’, and it comes around about once a month. Fake chocolate don’t cut it and she can smell it a mile away. Then, I run….

  30. What’s with all the milk chocolate hate? Hershey’s bars are the food of the gods. If I were eating them off Maggie Gyllenhaal’s naked body they couldn’t taste better.

  31. steveintheknow, actual Texans spell h-a-v-e this way: o-f. As in “He’d better of bought the beer if he wants to come home tonight.”

    As to the actual substance of the post, I’m kind of on the fence. It annoys me that “chocolate” means what the FDA says, to the point that they could change the definition to require 50% bacon grease or eggshells or gravel to be called “chocolate” and suddenly that’s what chocolate is.

    On the other hand, food purity regulations are some of the oldest in our legal system. In fact, food purveyors were the first businesses held to strict liability — that is, if the food causes harm, no evidence of fault is required. Sooooo, at least there’s precedent for weird regs. Also, this is chocolate, which is only a little less necessary to my existence than coffee, and I’m selfish enough to want those labels to tell me something useful. I’m going to eat a few squares of baking chocolate and get back on this.

  32. I have a long-standing argument with my wife that whatever chemical coats those “chocolate” covered packaged doughnuts you buy at a gas station is definitely not chocolate. It’s like chocolate smelling plastic. I have a clumsy palate. I live in Wine Country, but couldn’t tell you a merlot from a cab. But the difference between chocolate, and whatever plastic polymer Enternmens has purchased from Dow is vast, no “especially sensitive” palate needed. And to say only the texture is different pretends that you’ve never eaten food. Texture is everything sometimes, especially when that texture is similar to teflon.
    That said, tear down the FDA brick by brick. I don’t give 2 freshly laid Hershey bars what they define as chocolate. To hell with what those guys think, just don’t act like that greasy road slick tastes the same to all but the snobbiest chocolate lovers. That’s either disingenuous, or Jacob only eats chocolate after consuming enough pot to make pop tarts appetizing.

  33. The word “chocolate” has to have an exact meaning or we can’t contract to buy and sell “chocolate”.

    As carrick pointed out, your assuming that “chocolate” has some sort of very exact meaning. It doesn’t. Few things do. Thus is the nature of language.

    Ingredient disclosures, again as carrick stated, are sufficient.

    And this is all a moot point until somebody actually labels their 0% cocoa product as simply Chocolate.

  34. There is a truth in advertising issue here folks, and joe makes a valid point. Granted, there is nothing magical about the definition of a word, including the word we use for a product like cheese, chocolate or, oh, say, antibiotic. We can change definitions as we like, but such changes should be understood. Are they in this case or is the mere fact that most consumers don’t or won’t notice the difference all there is to the story?

    I would think (warning: H&R Drinking Game rule alert!) most libertarians who favor informed consent and contractual bargaining and problems with asymmetrical information and yadda, yadda, would have only minor objections at most to product ingredient and labeling requirements on foods.

    That said, is government too intrusive in this area generally and is this, ultimately, a trivial issue? Yes on both counts. But unless you want to abandon all truth in advertising restrictions and regulations, the mere fact that it is trivial doesn’t translate to it being an open-and-shut issue.

  35. Manufacturers of real chocolate should form an association and proudly proclaim on their product that they adhere to its strict regulations.

    Full disclosure: This ^ is where I stopped reading the thread, not expecting to find an improvement.

  36. While discerning chocoholics will fork over whatever it takes, those who can’t pay will never know chocolate….

    Won’t this be true regardless of the labeling requirements? How ’bout let’s work on correcting the problems of those who “will never know” peace, safety, health or indoor plumbing before we set to work to make sure everyone enjoys fine chocolate.

  37. karen

    Sweet!!!

    I guess I am ahead o’ the curve…

    Looks like colleche is paying off. 🙂

  38. Would this be a better, freer country if Kraft was allowed to tall people that its vegetable-oil-based “Pasteuized Processed American Singles” were cheese?

    No, we’d just have a lot more people being mislead about what they were buying.

    A yellow square of compressed and tasteless shit by any other name…

  39. Manufacturers of real chocolate should form an association and proudly proclaim on their product that they adhere to its strict regulations.

    One possible problem with this idea is that now consumers are burdened with somehow figuring out the legitimacy of the new authority group. If I buy a chocolate bar that has “Approved By the American Chocolate Association” on the label, that tells me very little unless I happen to know something about the American Chocolate Association.

    On the other hand, allowing the government to regulate what is chocolate and what isn’t gives me a better reference point – I’m familar with the Federal government and thus can easily assign a certain level of credibility to them.

  40. If US “chocolate” manufacturers have already been stripping out the cocoa butter and replacing it with other stuff, maybe THAT’s why one of my friends is allergic (yes, literally) to the stuff….! (Light goes on.)

    I gave up on most US chocolate a long time ago. Ghiradelli’s is ok. Otherwise it’s the imported stuff for me. You’d think that at least a few US chocolate manufacturers would realize the demand for good stuff.

  41. I’m familar with the Federal government and thus can easily assign a certain level of credibility to them.

    Yup.

  42. If US “chocolate” manufacturers have already been stripping out the cocoa butter and replacing it with other stuff, maybe THAT’s why one of my friends is allergic (yes, literally) to the stuff….! (Light goes on.)

    Don’t eat anything until you read the label. You could get bad chocolate or, ever worse yet, a load of HFCS.

    I gave up on most US chocolate a long time ago. Ghiradelli’s is ok. Otherwise it’s the imported stuff for me. You’d think that at least a few US chocolate manufacturers would realize the demand for good stuff.

    Scharffen Burger is pretty good. With that and Ghiradelli’s, I can get by between my fixes of real European chocolates.

    Funny (sort of) story, upon returing from a business trip in Russia, I stayed overnight in Amsterdam (I did this on a frequent basis). I had become the “mule” for several serious chocoholics back home and was stepping of the plane with 4 or 5 kilos of dark chocolates in my carry on. This attracted the attention of the drug sniffing dog, and I had to empty my carry-on next to the luggage carosel to get the customs guy to leave me alone.

  43. carrick,

    Next time, give him a Snickers bar.

    “THIS is why I’m bringing home chocolate. Go ahead, taste it.”

  44. I think DAR pretty much nails it. This is more of an advertising question than a definition question. The fact that the regulation defines what “chocolate” means, and that the agency writing that definition doesn’t always have the purest of motives is one issue; whether or not it’s a good idea as a society to require businesses to meet a certain standard of veracity in their ads is a different matter entirely. And for what it’s worth, I am thoroughly in favor of truth in advertising standards.

    steveitk: I hope you haven’t been inconvenienced too much by the recent floods. As my father reminds me, the drought that’s going to start next week will solve this problem.

  45. Rather than demanding that the FDA keep chocolate real (a battle that surely was lost with the acceptance of “white chocolate,” if not with the introduction of milk chocolate, the kind most people seem to prefer), shouldn’t Rosenblum be calling for a chocolate subsidy program to uplift the taste buds of the masses?

    Well, how about requiring them to label it or something so that average candy bar eater doesn’t go “Hmmm…that tastes a little different” but then keeps on buying anyway out of ignorance.

  46. To those that are interested, Mrs. LJ has shared with me her preference for the real thing available at Maries Candies. They are in West Liberty, Ohio and I believe they have some sort of presence on the inter-tubes. I’ve sampled some of their stuff and much prefer it to Ghiradelli’s.

  47. If I buy a chocolate bar that has “Approved By the American Chocolate Association” on the label, that tells me very little unless I happen to know something about the American Chocolate Association.

    Which is why you ask a chocolate-eating friend, or read Chocolate Weekly, or visit http://www.chocolateloversinternetforum.com and find out what others think about the American Chocolate Association’s standards as opposed to the European Chocolate Consortium or the Chocolate Taliban.

  48. carrick,

    Next time, give him a Snickers bar.

    The real issue is that the customs officer could not accept that his highly-trained canine could not ignore the scent of the chocolate “because they are trained to ignore everything but drugs”.

    The sight of 4 or 5 kilos of chocolate was enough to marginally convince him that maybe, just maybe, it was too much for the dog to ignore.

    I had visions of small rooms and cavity searches for a few minutes there.

  49. Karen

    I feel ya, and GOD I HOPE IT STOPS SOOOOOON!

    I am lucky I live in the city, and the house is on a little hill. Other then that I am perpetually late to work, and it keeps raining out my tennis dates. Which really sucks.

    Good luck to you as well, and stay safe.

  50. So are these definitional issues better handled administratively thru something like FDA, or judicially thru something like common law? Someone is going to have to make a binding determination of what “chocolate” means, it’s just a matter of how they’re going to do it, and what the incentives are of the institutions that do it. Same with “married”.

  51. Someone is going to have to make a binding determination of what “chocolate” means, . . .

    I am pretty sure that a product must use chocolat liquer (sometimes called cocoa mass) to produce the chocolate flavor in order to be called chocolate. Anything else can only be a called “chocolate flavored” whatever.

    The cocoa butter primarily affects texture. “Real” chocolate will melt at body temperature very, very quickly. This has a big impact on flavor. Chocolate with vegetable fat melts at higher temperatures, which helps to keep kids clean. It is not so much that this alters the flavor as much as it “supresses” the flavor because it doesn’t melt properly in your mouth.

  52. cavity searches

    How, uh, sweet! The TSA provides dental examinations for chocomules now?

  53. “Modern Marvels” on the History Channel last night aired a program on cheese. It mentioned that at the beginning of the 20th century, cheesemakers wanted the government to label new manufactured cheeses as “embalmed cheese.” The feds decided on “process cheese.” The program airs again on Saturday.

  54. “White Chocolate” contains no actual chocolate (cacao liquor or solids) — just fat and sugar.

    The FDA definition of white chocolate is at:

    http://www.cfsan.fda.gov/~lrd/fr021004.html

  55. The word “chocolate” has to have an exact meaning or we can’t contract to buy and sell “chocolate”.

    As carrick pointed out, your assuming that “chocolate” has some sort of very exact meaning. It doesn’t. Few things do. Thus is the nature of language.

    Ingredient disclosures, again as carrick stated, are sufficient.

    I honestly just don’t think so, because that would require each person to be an expert in the manufacture of every consumer product under the sun.

    I don’t know how to distill whiskey. So it doesn’t help me to read the ingredients if someone comes up with some absurd new way to make a drink that kinda-sorta approximates 90% of what whiskey is. For a division of labor economy to work at all, we have to have some common-sense way for words to have meanings. If the meaning of the word “chocolate” was not exact enough in the past, let’s make it exact going forward and close that door to ambiguity.

  56. How, uh, sweet! The TSA provides dental examinations for chocomules now?

    😉

    This was prior to the TSA.

    The only time I have ever encountered drug-sniffing dogs is on flights coming from Amsterdam. Hmm, I wonder why . . .

  57. If I piss into an aluminum can and sell it as “beer”, is that O.K.?

    I mean to anyone other than Coors, Miller, Budweiser,…..o.k., never mind…….

  58. Which is why you ask a chocolate-eating friend, or read Chocolate Weekly, or visit http://www.chocolateloversinternetforum.com and find out what others think about the American Chocolate Association’s standards

    And then you do the same for every single item you want to purchase at the grocery store. Because it would make you more free. Or something.

  59. . . . because that would require each person to be an expert in the manufacture of every consumer product under the sun.

    Then you can hire your own private nanny instead requiring the rest of us to submit to a government nanny.

  60. I am pretty sure that a product must use chocolat liquer (sometimes called cocoa mass) to produce the chocolate flavor in order to be called chocolate.

    That’s fair enough. Maybe the cocoa butter doesn’t matter, so in this specific case it’s OK to use vegetable oils. But you are acknowledging here that something [the use of the liquer] is necessary for an item to be “chocolate”. Now how do we enforce that, to make sure someone doesn’t start using some substitute for the liquer?

  61. And then you do the same for every single item you want to purchase at the grocery store. Because it would make you more free.

    You ever read the labels on processed, prepared meals. Really scary stuff 😉

    We have current regulations that prohibit producers from putting dangerous stuff in food products and other regulations that require labeling of all ingredients.

    I don’t see any additional benefit in more regulations other than lazy or ignorant people don’t have to think about what they buy.

  62. . . . because that would require each person to be an expert in the manufacture of every consumer product under the sun.

    Then you can hire your own private nanny instead requiring the rest of us to submit to a government nanny.

    If the word “chocolate” means whatever I say it means, why doesn’t every other word also mean whatever I say it means? Why can’t I fight any attempt you make in a court to get satisfaction for any breach of contract on my part simply by consecutively disputing the meaning of each and every word in the contract, including “and” and “but”?

    Why can’t I say, “Your honor, I was using the word ‘free’ to mean ‘for ten dollars a piece'”? Why can’t I say, “Your honor, when I said ‘delivery by the 10th of February’, I meant on my own Fluffy Calendar, where February comes after June”? After all, if I can’t define for myself what these words mean, and what a calendar is, I’m not really free.

  63. And you can hire a nanny to keep track of what I mean by every word at any moment in time.

  64. . . . because that would require each person to be an expert in the manufacture of every consumer product under the sun.

    Then you can hire your own private nanny instead requiring the rest of us to submit to a government nanny.

    But carrick, your logic can be turned against you: why should you have to submit to a “nanny” that requires you to list ingredients on food packaging? Isn’t it sufficent that any American is free to hire a private testing firm to analyze any food product and get a report of its ingredients?

    I think joe and I are on the same page here – it’s hard to see how we are made more free by being asked to shoulder more burdens.

  65. Why can’t I say, “Your honor, I was using the word ‘free’ to mean ‘for ten dollars a piece'”? Why can’t I say, “Your honor, when I said ‘delivery by the 10th of February’, I meant on my own Fluffy Calendar, where February comes after June”? After all, if I can’t define for myself what these words mean, and what a calendar is, I’m not really free.

    Fraud is still fraud.

    You can say words mean whatever you want them to while we’re negotiating the contract. But, if you change their meaning after we have signed the contract, then that is a a breach.

  66. Why can’t I say, “Your honor, I was using the word

    Not to speak of idiosyncratic denotations for the word “honor.” Not to speak of them, that is, if you value your liberty to circumvent government-imposed definitions at least in your leisure time.

  67. But carrick, your logic can be turned against you: why should you have to submit to a “nanny” that requires you to list ingredients on food packaging? Isn’t it sufficent that any American is free to hire a private testing firm to analyze any food product and get a report of its ingredients?

    Thank you Dan, glad to see you are paying attention.

    A libertarian would argue that the current set of regulations are not necessary and that “buyer beware” is all that is required.

    I was arguing that we have more than enough regulations as it is, so we certainly don’t need any more.

  68. by being asked to shoulder more burdens

    What “asked”? Compelled, man, compelled.

    Who, btw, is the agent “asking” here?

  69. submit to a government nanny. = have the label on the box of candy be a little more informative

    You ever read the labels on processed, prepared meals. Really scary stuff 😉

    True dat. I don’t think the Sodium line item is supposed to be five digits long.

  70. Fraud is still fraud.

    You can say words mean whatever you want them to while we’re negotiating the contract. But, if you change their meaning after we have signed the contract, then that is a a breach.

    That’s assuming that the words have an underlying meaning which “everyone knows”, and which you have recourse to if I don’t specifically define my own unique meaning beforehand.

    You’re telling me that in the case of chocolate I can’t assume anything. So why can I assume anything with regard to any other word? And the list of ingredients doesn’t help, because the definitions of the list of ingredients would be fluid, too. You seem to be saying, “As long as they have to put cocoa butter on the ingredients list, you can just read the list.” What if I decide that cat litter box clumps are cocoa butter? Do we have a list of ingredients for the list of ingredients? Ad infinitum?

    At some point in the process, there has to be some word or set of words with a strict meaning defined by an authority external to the contract. So the question becomes what words are on the list and what words aren’t, and what authority is invoked to make that determination.

  71. When the “contact” is basically a label containing the name of the product and a price tag, you don’t actually get to define words however I want when negotiating the contract.

    There is no word-defining element in that contract.

  72. When the “contact” is basically a label containing the name of the product and a price tag, you don’t actually get to define words however I want when negotiating the contract.

    Back in the old days, before mass production, you knew the person you were buying the product from. So when the seller told you what you were buying, you could decide for yourself whether or not to believe the seller.

    In the current environment, that gut-level validity check is gone. So I have less animosity to basic regulations reqarding product labeling than most libertarians. But I definitely worry that things are getting out of hand. I think having a federal agency define what is or is not chocolate is gross error.

  73. Darryl Dawkins contains no chocolate (unless he’s eaten some in the last few hours), nor is he a sonic boom as the result of a nearby lightening strike.

  74. I hear you, carrick.

    I think the medical profession is actually a pretty good model here. The government doesn’t set standards, a body established by the practitioners does, but the government mandates adherence to that body’s standards.

  75. I think the medical profession is actually a pretty good model here. The government doesn’t set standards, a body established by the practitioners does, but the government mandates adherence to that body’s standards.

    … including limiting, in absolute numbers and not based on quality, the number of practitioners who are able to enter the field.

    Honestly, given that the government created artificial shortages in doctors inevitably result in many needless deaths each year, the worst think you could do is apply the same model to the food industry.

  76. I think the medical profession is actually a pretty good model here. The government doesn’t set standards, a body established by the practitioners does, but the government mandates adherence to that body’s standards.

    This is a rare day, we are mostly in agreement. In my preferred model, industry experts define what is considered good practice (not best practice), supplier/producers/sellers voluntarily agree to follow those practices, and fraud charges are levied against anyone that says they comply but intentionally violate those practices. Malpractice would be handled as a civil matter the way it is today.

    I also see a need for people, both buyers and sellers, to voluntarially opt-out of those recommended practices if they wan to and then set their own expectations for acceptable practices.

  77. Easy there, tarran. Instead of reading way too much into my comment, just look at what I actually wrote, and what part of the system I was saying should be copied.

  78. Just to get the obligatory Orwell reference in there – words do have meaning. If the new “victory chocolate” is called chocolate by everyone, won’t the idea and definition of real chocolate be perverted? It’s like calling “saccharine” “sugar.”
    Vocabulary dilution is baaaaad.

  79. I love dark chocolate. When I was studying abroad, I used to pick up a bar that was 90% cacao, sweetened with cane sugar. It truly is immensly better than the candy bars we get here, but that’s just my opinion, and there’s no accounting for taste.

    The Japanese certainly seem to take their chocolate seriously…the basic bodega choices are smooth, rich, and tasty.

    The good stuff is decadent and has be be handled with care lest the consumer pass out from pure enjoyment.

  80. Next time, give him a Snickers bar.

    “THIS is why I’m bringing home chocolate. Go ahead, taste it.”

    Since no one else has voted, I say joe wins the thread, although “Hershey bar” would probably be a better choice. They taste like they’ve been digested once already.

    I’m somewhat surpirsed to see no love for Toblerone.

  81. on an unrelated note, there is some crazy-ass organic chocolate bar with goji berries and pink Himalayan salt that is the most delicious thing I’ve ever tasted.

  82. Jacob, in your list of offenses committed against chocolate, you forgot to include the personal fave of Dave W.

    HFCS is an abomination against chocolate almost as much as against cola. Makes the chocolate taste fruity to me. However, I must point out that I gave up my anti-HFCS crusade, at least based on the evidence I currently have.

    What should be done here:

    1. FDA should beef up its ingredients list requirements so that you know specifically what ingrdients you are getting and in what proportions. More specificity should be required than what we currently get. More information on ingredient proportions should be included than what we currently get.

    2. After they take care of point #1, the FDA shouldn’t worry about whether to call something “chocolate” or not.

    3. Consumers should retain their traditional rights to bring class action suits against false advertisers. I don’t know whether labelling something with no cocoa butter as “chocolate” amounts to false adverstising or not. I think litigation is the best way to get the best answer on that question. This is the kind of thing a jury would be especially competent on (whether they are mislead by candy bar labels, that is). Juries are a better stand-in for the public on this issue than FDA employees (or corporatarians for that matter) are.

  83. All right, here are my thoughts on it:

    The various points about contract law that most of you guys have brought up are excellent, and I agree. That is one of the primary purposes of having a “gubb-mint” after all.

    Joe is right when he snarks about “freedom” rhetoric and minor food labeling.

    Where I get concerned (if at all) is that only the “bare necessity” should ever be regulated, for a variety of reasons. And this clearly sounds more like a non-problem then a legitimate concern.

    The other thing I always worry about when it comes to regulations such as these, are the interest groups behind it, and what their motives are. Is someone trying a bit of rent seeking? Are consumers really more savvy and knowledgeable then the justification suggests? Because if this is all it really boils down to, I really don’t have much sympathy.

  84. This is a rare day, we are mostly in agreement. In my preferred model, industry experts define what is considered good practice (not best practice), supplier/producers/sellers voluntarily agree to follow those practices, and fraud charges are levied against anyone that says they comply but intentionally violate those practices. Malpractice would be handled as a civil matter the way it is today.

    Carrick: If you have time, here is a case where a company was promising customers to get “patents” but was getting them design patents instead of utility patents:

    http://www.fedcir.gov/opinions/06-1243.pdf

    That was considered to amount to fraud, illegal deceptiveness, whatever. As a person with some patent experience, but probably not a ton, what do you think about that?

  85. No discussion of chocolate fraud is complete without the most awesome foodie take down of all time:
    http://www.dallasfood.org/modules.php?name=News&file=article&sid=78

  86. As far as foodie takedowns go, I’ll take this one hier any day.

  87. “Food Critic Tears Radish Canap?s With Salmon Mousse A New Asshole”

    OMG!OMG!OMG!

  88. “The hors d’oeuvres, presented on a bed of arugula topped with a salmon mousse of blended shallots, green onions, and white wine, were “force-fed their own balls” by Haberle, who in his column described the menu item as “a modest offering that should have aspired for more.”

    “I beat the living fuck out of that dish,” said Haberle, whose column has over the last 15 years become a staple in the Concord Monitor “Lifestyles And Culture” section. “

  89. Haberle would appreciate this hier (NSFW)

  90. The comments on the American Chocolate Association brings to mind an actual similar problem – The lambic brewers association. I dont know the actual name, but it is probably something in Belgian (or flemish, or whatever language they speak).

    The association is designed to support REAL lambics, not the bogus products like Sam Adams “lambic” disaster. Cantillon, who makes the most “real” lambics, IMO, isnt a member. Why? Because the association allowed Lindemans to be a member, who is basically the Hersheys of lambic beer. The owners of Cantillon wont associate with a group that considers some of Lindemans’ products to be authentic. So, the most authentic product doesnt get the groups seal of approval.

    Which works okay for me, because I know enough to make my own decisions.

  91. As a person with some patent experience, but probably not a ton, what do you think about that?

    Whenever I see an ad on TV from someone offering services to inventors, the words “con artist” pass through my head.

    Regarding the case in point, it sounds like the system corrected itself properly.

  92. wow, I read that article about Noka.

    Now that’s investigative journalism!!!!!

  93. Of course we could always restrict the term “chocolate” to the original concoction…not the sissy sweetened stuff the Europeans made.

    http://www.fieldmuseum.org/chocolate/history.html

  94. Regarding the case in point, it sounds like the system corrected itself properly.

    Well, they may have underpunished the one guy and overpunished the other, but is interesting to see that you think this was basically a scam and not fair play. Very good then and thanks for taking the time.

  95. The association is designed to support REAL lambics, not the bogus products like Sam Adams “lambic” disaster.

    mmmm….Sam Adams Cranberry Lambic…perfect example of why I don’t give a crap what a bunch of purists think.

  96. . . . but is interesting to see that you think this was basically a scam and not fair play.

    There appears to be a clear indication of bad intent and not just malpractice.

  97. I would have titled this post

    Like What for Chocolate?

  98. There appears to be a clear indication of bad intent and not just malpractice.
    Couple of things:

    1. this is more about false advertising and fraud than malpractice, but it does fall under the rubric of malpractice just because licensed professionals are involved. Most legal malpractice is not false advertising related, but this case happens to be. Not mutually exclusive categories.

    2. Technically the lawyers were following the letter of the contract. A design patent is a patent. It is real. It provide exclusionary rights. I was kind of curious about whether you might take the position that a typical inventor knows that there are different types of patents, so there was no need for the lawyer to inform the client of this fact in connection with presenting the client with the money-back guarantee. Kind of like there is no need to tell the customer what is meant by “chocolate” because the customer can figure it out if she is curious.

    3. You do seem to go a bit easier on chocolate makers than lawyers somehow.

  99. MP,

    If you like the cranberry lambic, thats fine.

    But, compare it to a Cantillon Gueuze and see if you think they are even in the same category of product. I dont care about the “lambic has to be made in a specific valley in Belgium” aspect – but if it hasnt been attacked by nasty bacteria for 1-3 years it isnt a lambic.

    SA Cranberry may be a fine fruit beer. But without the funk, its a fruit beer, not a lambic.

  100. 3. You do seem to go a bit easier on chocolate makers than lawyers somehow.

    US beer producers (in general) have never followed the quality requirements that German beer producers are required by German law to follow.

    Beer enthusiasts may determine that German beer (made with malt, hops, and water — period) is a better product. Good for them. But they have no reasonable expectation to be able to come along at this point and petition the US government to essentially prohibit US beer from being labeled as beer.

    Beer, chocolate, same difference.

  101. Kind of like there is no need to tell the customer what is meant by “chocolate” because the customer can figure it out if she is curious.

    Unless she was raised by wolves, she has been eating chocolate since she was a small child. Whether or not she knows the difference between good chocolate and dreck depends up what she has bothered to learn since she grew up.

    I seriously doubt that a garage inventor would know the difference between a design patent and a utility patent. I am an engineer that has filed 6 applications, and I didn’t know there was a difference until your post earlier today.

  102. carrick,

    Due to the EU, Germans dont have to follow the reinheinsgeboten (almost assuredly spelled wrong) anymore. And the Belgians and English never did, but what they were making was still beer. The German law was a purity law (despite their claims) it was a trade protection law anyway.

  103. robc, I assumed that I would that I would screw that up.

    I don’t drink the stuff myself.

  104. I meant “wasnt a purity law”

    Stupid keyboard, following my instructions.

  105. . . .it was a trade protection law anyway.

    Meaning it defined what could legally be called beer.

  106. carrick,

    At the time, it defined what could even be made (in Munich). LATER, it defined what could legally be called beer (in Germany).

    Part of the protection kept the production of wheat beers to the royal family. Wheat beers violated the reinheinsgebot so only royals could make it, but it was still beer.

    Later, wheat was added to the list of legal ingredients. As was yeast, since they didnt know about it at the time. Kind of a key thing to leave off though.

  107. Unless she was raised by wolves, she has been eating chocolate since she was a small child. Whether or not she knows the difference between good chocolate and dreck depends up what she has bothered to learn since she grew up.

    The relevant question is whether she knows what ingredients make a substance “chocolate” as a typical consumer would expect that substance to be. If a consumer had certain expectations of chocolate, but does not know how these expectations map out onto the constituent ingredients, then one can argue that it is deceitful to take advantage of this ignorance.

    Much like it is deceitful to take advantage of ignorance about what “patent” means. You seem more sympathetic of your own gaps in knowledge about patents, than you do about the average consumer’s ignorance of which ingredients are essential to make “chocolate.”

    Just to make my positions clear:

    1. I think the false advertising / fraud issues involving cocoa butterless “chocolate” are close issues. I could go either way.

    2. I think the false advertising / fraud issues involving design patents as simply “patents” are close issues. I could go either way. (Note: I know whether any of the clients in the patent case sued for fraud or false advertising — the court opinion I blogged only dealt with suspension and loss of law license.)

  108. carrick,

    I have seen the argument about “what is beer” too many times on other sites I hang out on. What I know for sure is that the Germans are far too restictive in their definition. In fact, I would say that they are kind of, well, ummm… beer nazis.

    Sorry. I apologize. But I couldnt resist.

  109. Much like it is deceitful to take advantage of ignorance about what “patent” means.

    Dave this is getting boring, but here is one last input. The PDF file indicates that the first laywer alterted the actual drawings submitted by the inventor without telling the inventor. That is deception.

    The issue with the chocolate is whether the federal government should get involved in creating a new definition of chocolate that would render 90% or more of the products that may be LEGALLY labelled as chocolate today as NOT CHOCOLATE. All to meet the expections of very small minority of the population (chocolate snobs like myself).

    There are no connection between the chocolate issue and that patent fraud that I can see.

  110. bad robc, bad bad bad 😉

  111. But, compare it to a Cantillon Gueuze and see if you think they are even in the same category of product. I dont care about the “lambic has to be made in a specific valley in Belgium” aspect – but if it hasnt been attacked by nasty bacteria for 1-3 years it isnt a lambic.

    If I could find it, I’d drink it.

    As is unsurprising (considering its distribution network), I’m most familiar with Lindemans.

  112. MP,

    http://richosnewsletter.blogspot.com/

    Problem solved. Notice the part about June 30th. If you stop by, ask for robc in a big group sitting somewhere probably just inside the door and I will buy you one.

  113. MP,

    quote from a Cantillon Gueuze review on beeradvocate.com, this guy gave it a perfect score:

    “Has all the nasal beauty of a herd of damp unsheared Sheep, you know the ones that have shit stuck to their matted back ends. Liquid farmyard effluent traces, wet straw, hay-lofts, rotten soaking oak casks, old wooden
    barns & crap stained muck-spreaders.

    Incredibly dry, impressive yeast dominant astringency, with a massive acidity that fights every drop of saliva in the aural cavity. It decimates the mouth & creates an arid wasteland.”

    I dont think that describes any of the mainstream Lindemans (theyre higher end stuff is closer) or the SA cranberry.

  114. Beer enthusiasts may determine that German beer (made with malt, hops, and water — period) is a better product. Good for them. But they have no reasonable expectation to be able to come along at this point and petition the US government to essentially prohibit US beer from being labeled as beer.

    Beer, chocolate, same difference.

    Can I put tap water in a bottle and sell it as beer? With a big sign that says “All sales are final” at my store?

    Can I sell candy canes as chocolate?

    I know it feels like we’re covering the same ground, but I want to know how much elasticity you’re allowing here in practical terms.

  115. Can I put tap water in a bottle and sell it as beer? With a big sign that says “All sales are final” at my store?

    Fraud is not legal. Do you have problems with that concept?

  116. The PDF file indicates that the first laywer alterted the actual drawings submitted by the inventor without telling the inventor. That is deception.

    Yeah, that subset of cases is easy to decide. I was more interested in the cases where there were no false drawings.

    On the subject of the false drawings, the guy who lost his license for life (Bender): (i) did not participate in making or filing the false drawings; (ii) alerted his new clients to the problem when he discovered it; (iii) attempted to correct the problem in the USPTO and courts; and (iv) was disbarred partially because he tried to help one client (Daniels) get the false drawing problem corrected in the courts.

    Frankly, it was not very fair of the court to even mention the false drawings when deciding Bender’s appeal. It seems to reveal a prejudice.

    As far as the 90% of labelled chocolate not having cocoa butter, if true (and not a recent development), that sounds like pretty good evidence that a substance does not need cocoa butter to be chocolate. Then again, I could find you an awfully lot of examples where legislatures, judges, lawyers, inventors and tecnology companies have referred to design patents simply as “patents.”

  117. Can I put tap water in a bottle and sell it as beer? With a big sign that says “All sales are final” at my store?

    Fraud is not legal. Do you have problems with that concept?

    What if I put a label on my bottle of water that lists the ingredients? [Water, list of trace element chemicals in the water].

    The entire issue we’re discussing is fraud related. I’m asking if there is a standard for what constitutes “chocolate”, and if it can be made illegal to sell a food product as “chocolate” if it fails to meet that standard. You seem to not think so. But the absence of a standard for what constitutes chocolate, or beer, would seem to imply that I can sell ANYTHING and call it chocolate or beer – as long as I accurately list the ingredients on my label.

  118. But the absence of a standard for what constitutes chocolate, or beer, would seem to imply that I can sell ANYTHING and call it chocolate or beer – as long as I accurately list the ingredients on my label.

    Tort law is not based on the regulatory state. You don’t need the FDA to decree what the exact definition of Chocolate is to have a tort claim.

    And obeying FDA existing regulations does not absolve you of any fraudulent claims you make.

  119. I wish the marriage issue were viewed in the terms discussed in this thread. People think it’s about equal protection & whatnot, but the crux is the meaning of the words “married”, “spouse”, etc. in contracts & other legal documents.

  120. “The issue with the chocolate is whether the federal government should get involved in creating a new definition of chocolate that would render 90% or more of the products that may be LEGALLY labelled as chocolate today as NOT CHOCOLATE.”

    This seems to be inaccurate, iirc. The issue is whether the FDA should loosen its regulations to allow things not currently allowed to be sold as chocolate to be sold as chocolate. The current rules say it has to have c. butter to be sold as chocolate. You are switching things around here. The issue is whether the FDA should loosen the definition base on lobbying pressure from a narrow interest group…not whether they should tighten the definition.

    Or did I miss something when I RTFA.

  121. As a patent agent, I’m still scratching my head about the patent thing. How in the heck do you get a design patent for an invention that doesn’t have any design aspects to it?

    It seems to me that only a very few “inventions” would pass that test–you’ve got to have SOME ornamental decoration on the thing to even try this mess. (probably why the diagrams were modified as mentioned.)

    And given that you only have one claim (the ornamentation itself) and the USPTO can ransack through all its prior ornamentation files (not just in design patents, but also in utility patents), I really don’t see what this group thought how they would benefit from this.

  122. Just as puns are the lowest form of comedy, chocolate snobbery is the lowest form of elitism.

  123. >>> Can I put tap water in a bottle and sell it as beer?

    Shhh! You just gave away Budweiser’s secret formula!

  124. As a patent agent, I’m still scratching my head about the patent thing. How in the heck do you get a design patent for an invention that doesn’t have any design aspects to it?

    It seems to me that only a very few “inventions” would pass that test–you’ve got to have SOME ornamental decoration on the thing to even try this mess. (probably why the diagrams were modified as mentioned.)

    You don’t need “ornamentation” to get a design patent. You need an ornamental design, which may or may not include anything a lay person would consider as ornamentation. The most recent exposition of the line between functional designs versus ornamental designs is given in this 2006 case:

    http://www.finnegan.com/news/fedCirDecisions/06-1169%2011-17-06.pdf

    In this case, Fed. Cir. says that the arrangement of blank stickers (on a blank sticker sheet) may or may not qualify as an ornamental design. There certainly are limits to what you can get a design patent on, but curlicues and gargoyles or graphics are not a requirement.

    In In Daniels, the case about the design patent application with added graphics that Mr. Bender did not file, but was trying to help fix, the object was some kind of aquatic trap, I think a crab trap IIRC. It did have an unusual shape, at least compared to other objects I am familiar with. The seaweed graphic that AIC added was probably not that helpful even to bestow novelty and non-obviousness in the design patent senses of those patentability requirements. AIC was stupid to add the seaweed in that case, not strategic. If Mr. Daniels could have gotten his design patent application amended to remove the seaweed (IIRC they would not let him), then his design patent, while not as good as a utility patent, probably would have had some non-negligible commercial value.

    And given that you only have one claim (the ornamentation itself) and the USPTO can ransack through all its prior ornamentation files (not just in design patents, but also in utility patents), I really don’t see what this group thought how they would benefit from this.

    They don’t search based on curlicues or gragoyles or graphic. They look at the overall shape of the product to see that it is: (i) new / non-obvious; and (ii) not entirely dictated by functional concerns. Lots of products have new shapes. Just looking at the objects of my desk, I see the following objects with cool shapes: (i) a desktop computer speaker, (ii) a four-color bic pen, (iii) a weirdly shaped pomegranate juice bottle, and (iv) a shapie marker.

    You may want to read the St. John’s case linked above, because design patents aren’t unattainable or useless as you seem to think, grumpy realist, and your clients deserve to know about the option where feasible.

  125. Please go to: http://dontmesswithourchocolate.guittard.com/ for detailed insight pertaining to the changing of the Standard of Identitiy for chocolate.

    The Guittard Company has been leading the fight against the Chocolate Manufacturers Association’s(CMA) desire to weaken the standards of Identity for chocolate by allowing lower cost vegetable fats. Over 300,000 people have sent comments into the FDA requesting that the FDA not accept the CMA’s proposal to change the standard. Please join those who want chocolate to remain the same. Please send your letter to the FDA stating DON’T MESS WITH OUR CHOCOLATE!

  126. I don’t know how to distill whiskey. So it doesn’t help me to read the ingredients if someone comes up with some absurd new way to make a drink that kinda-sorta approximates 90% of what whiskey is.

    I don’t really understand this as a criticism. If I enjoy eating something and the ingredients are not harmful to me, why does it matter if what I am eating is, strictly speaking, chocolate at all? If the chocolate substitute tastes almost the same as chocolate, then presumably either chocolate or the chocolate substitute will taste better to me. I will continue to buy whichever one tastes better and could care less which one is real chocolate. If the ingredients are poisonous or harmful in some other way, then this is an issue, but if it really is just a matter of taste, why does the label of the product matter at all?

    As an example, I get annoyed when I order a Dr. Pepper in a restaurant and they bring me a Mr. Pibb. This is because Mr. Pibb tastes like ass, not because I didn’t get a real Dr. Pepper. If Mr. Pibb were as good as or better than Dr. Pepper, we probably wouldn’t have an issue, but it clearly sucks and therefore it’s a problem.

  127. I think joe and I are on the same page here – it’s hard to see how we are made more free by being asked to shoulder more burdens.

    Pretty much any situation that makes you more free will inherently involve you shouldering more burdens. Responsibility is a direct consequence of freedom.

    When I lived with my parents, I was clearly less free than I am now…for example, I did not choose where I would live, my parents made that decision for me. Now that I do not live with my parents I am free to live wherever I want. As a direct consequence I am now burdened with having to make that decision for myself. If I couldn’t vote, I wouldn’t be burdened with having to inform myself about the candidates, if I couldn’t drive, I wouldn’t have to be burdened with learning to drive in a manner that would not harm myself or others. I essentially feel exactly the opposite; I cannot think of any situation in which becoming more free in some respect would not, as a result, require some sort of related burden.

  128. “Manufacturers of real chocolate should form an association and proudly proclaim on their product that they adhere to its strict regulations.”

    Yeah. Hey, or consumers could just buy brands they actually like. I mean, come on, do connoisseurs actually buy white chocolate. I can’t stand the stuff, but I love dark chocolate. I can’t believe that high-quality chocolate companies would tarnish there good brand names with crap–the people who buy their chocolate would be able to tell the difference.

  129. So I can sell colored horse semen labeled as “chocolate” and everybody is OK with that? How about if I add a pinch of cocoa to the semen? If chocolate is made a certain way, then there is a little bit of false advertising in claiming something not made like chocolate is chocolate because, by definition, it isn’t. Sort of.

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