LEGAL STRATEGIES TO ADDRESS

THE MISREPRESENTATION OF VERMONT MAPLE SYRUP

[redacted version]

H. David GoldClass of 2003May 2003This paper was submitted in satisfaction of the course requirement

for Food & Drug Law, Harvard Law School.

TABLE OF CONTENTS

ABSTRACT

I. INTRODUCTION

II. PLACE OF ORIGIN A. The Importance of Geographic Food References B. Misrepresentation of Place of Origin in the Food Industry C. Inadequacy of Current System to Prevent Misrepresentation of Place of Origin D. Misrepresentation of Maple Syrup's Place of Origin

1. The Importance of Geographic References in the Maple Syrup Industry

2. False or Misleading References to Vermont on Maple Syrup Labels

a. Consumer Confusion

(1) Brand Name

(2) Product Name

(3) List of Ingredients

(4) Product Description or Marketing Copy

(5) Name and Address of Manufacturer, Packer, or Distributor

(6) Grade

b. Dilution of Goodwill

(1) Syrup

(2) Other Products

III. ECONOMIC ADULTERATION OF FOOD

A. Statutory and Regulatory Framework

B. Purity and Quality of Maple Syrup

1. Consumer Confusion

2. Dilution of Goodwill Associated with Pure Maple Syrup

IV. POSSIBLE SOLUTIONS A. Misrepresentation of Place of Origin

1. Trademark Law

a. Statutory Framework

b. Affirmative Uses of Trademarks

c. Restricting Uses of Geographic Brand Names

2. Marketing Orders

3. Negotiations in the Shadow of the Law

4. National and International Standards of Identity

5. Appellation of Origin System

6. Disclaimers

7. "Brand"

B. Misrepresentation of Purity, Quality, or Identity

1. Percentage Labeling

2. Standards of Identity

3. "Imitation"

4. Disclaimers

5. Organic Food Labeling

V. CONCLUSION

LIST OF APPENDICES

APPENDIX A. PROPOSED REGULATIONS AND ENFORCEMENT POLICY ON REPRESENTATIONS OF VERMONT ORIGIN

LIST OF TABLES

Table 1. Comparison of USDA and Vermont maple syrup grading systems.

LIST OF FIGURES

Figure 1. "Maple Grove Farms of Vermont" maple syrup label

Figure 2. False or misleading display in specialty food store, Oakland, CA

Figure 3. "Vermont Sugar Free" syrup label

Figure 4. Vermont Maple Cookie Company label

Figure 5. Front display panel of Maypo® "Vermont Style" maple oatmeal

Figure 6. Front display panel of Breadshop™ "Vermont Maple" granola

Figure 7. Joseph's sugar free maple syrup

Figure 8. Idaho Potato Commission certification mark

Figure 9. Vermont Seal of Quality certification mark

Figure 10. International Maple Syrup Institute logo

ABSTRACT

Notwithstanding the existing array of laws and regulations governing misbranding in the United States, food producers commonly misrepresent the geographic origin and purity and quality of their products. Such misrepresentation has occurred for over a century, yet the government has maintained a reactive stance. As a result, consumer confusion and the dilution of goodwill are widespread. These problems are especially pronounced in the Vermont maple industry. To address and prevent misrepresentation of Vermont maple syrup and throughout the food industry, several legal strategies should be pursued. These include independent litigation and negotiations, as well as regulatory reform, the use of marketing orders, the creation of an appellation of origin system, reformulation of standards of identity, and other labeling requirements.

I. INTRODUCTION

In the United States, federal law requires every food package to include, inter alia, the "place of business of the manufacturer, packer, or distributor."[1] Place names, or geographic references, also appear on food labels in many other contexts, both mandatory and voluntary, with confusing and misleading results. Consumers consistently express their interest in knowing the origin of foods, and this interest led to the 2002 Farm Bill's requirements for country-of-origin labeling.[2] Given this interest, and an expanding notion of geographic terms as valuable assets, the use of geographic references on food labels must be regulated to ensure protection of both consumers and producers.

In addition to geographic references, this paper assesses the misrepresentation of food products' purity and quality. As explained later, producers regularly "palm off" inferior products in a manner that is deceptive to consumers and unfair to competitors. This paper concludes by proposing several legal strategies to offset such practices.

This paper uses "Vermont maple syrup" as a case study. Geographic references to Vermont frequently confuse or deceive maple syrup consumers and dilute the goodwill of the state, especially the Vermont maple industry. Similarly, the proliferation of many nonmaple products with false or misleading labels has undermined the market for pure maple products.

II. PLACE OF ORIGIN

A. THE IMPORTANCE OF GEOGRAPHIC FOOD REFERENCES

The taste and quality of food depend on numerous natural and human characteristics, including soils, climate, water quality, processing and preparation methods, and other factors.[3] For thousands of years, consumers have recognized the distinctive characteristics of foods from different regions. For example, in ancient Egypt, wines were named after their place of origin.[4] "[I]n ancient Greece, there existed ... almonds from Naxos, and honey from Sicily."[5] And, in the Middle Ages, recipe books included geographic references on such dishes as tarte de Brie and brouet de Provence.[6]

By the late 1800s, various regions of the United States were well known for particular types of food. Virginia produced ham "superior in flavor to any in the world."[7] Hawaii became the site of a 60-acre plantation of

a newly minted horticulture graduate of Harvard, James Dole, [who] set pineapple on its path of meteoric growth... [until] pineapple [became] practically synonymous with Hawaii.[8]

In 1900, Wisconsin, New York, and Pennsylvania enjoyed excellent reputations for dairy products and Vermont was famed for its maple syrup.[9]

Despite an historical emphasis on the place of origin of food and the emergence of regional cuisines, society's focus changed in the 20th century. Interstate and international commerce reached unprecedented levels. Mass production and mass marketing of food became the norm, and regional characteristics received less attention. In fact, as the U.S. entered World War I, "nationalist demands for '100 Percent Americanism'" led to a movement to abolish regional cuisines and create a national one, such as by changing the name of "sauerkraut" to "Victory cabbage."[10] The focus of the Food and Drug Administration (FDA) also shifted, as the agency grew less concerned with fraud and more concerned with food safety and nutrition.[11]

In recent years, several phenomena have renewed consumer interest in geographic food references. First, concerns about bioterrorism, invasive species, food-borne illness (e.g., mad cow disease), genetically modified organisms (GMOs) and biotechnology have increased the level of scrutiny as to the place of origin of foods. In California, for example, Governor Gray Davis spearheaded a $70 million initiative in 2002, including $64 million in federal funds, to promote California-grown products.[12] The so-called "Buy California" campaign addressed consumer concerns about "contamination from biological and chemical sources [and] the new threat of intentional contamination of food through bioterrorism."[13]

Second, globalization and cultural imperialism have become the subject of wide criticism. This has instilled in consumers a desire to recognize and celebrate regional identities and differences. A "slow food" movement has emerged to promote "local rootedness and decentralization."[1]^3a Similarly, Gary Paul Nabhan recently developed the concept of a "foodshed," a delineated local area from which consumers should obtain as much of their diet as possible, as a means of improving agricultural efficiency, maintaining cultural lifelines, and sustaining the environment.[14]

Third, consumers have become more sophisticated with regard to cookery, leading to an increased demand for unique and high-quality foods.

Critics like John and Karen Hess, Raymond Sokolov, and numberless other intellectuals writing on food describe mass production and standardization as threats to American taste, and encourage Americans instead to explore the superior diversity of its ethnic and regional cuisines.[15]

For all of these reasons, today's marketplace demands "value-added products that carry a strong identification with a particular geographic region."[16]

B. MISREPRESENTATION OF PLACE OF ORIGIN IN THE FOOD INDUSTRY

A rising incidence of fraudulent and misleading geographic references on food labels was one of the principal motives for the creation of food and drug law in the United States. As regions established goodwill with respect to food, fraud and deception followed. The impacts of such misrepresentation were far-reaching, affecting consumers, producers, and the economy. In 1900, the Senate Committee on Agriculture and Forestry described these impacts as follows:

Parties who, by the manufacture of superior products, have acquired a reputation for excellence find their brands or trade-marks duplicated by unauthorized persons and oftentimes the value of their goods greatly reduced through this unauthorized application of their brands to inferior and often deleterious articles....

The effect of this fraudulent branding, in addition to the deception, is in other ways serious. Foreign markets in increasing volume are looking to us for food supplies, with the result that recognized brands on honest domestic goods have acquired great value abroad.... This falsification, it is readily seen, is at the direct expense of the American [food producers], and incidentally affects our general commercial reputation.[17]

In response to these concerns, Congress began to craft food labeling laws to codify two common law theories: (1) the tort of deception of the consumer, and (2) the tort of misappropriation of the goodwill of the producer.[18]

Congress passed the False Branding or Marking Act of 1902 (1902 Act), codified in 21 U.S.C. § 16, to ensure truthful representations of the geographic origin of food. The bill originated in 1900 in the House of Representatives, after the Committee on Interstate and Foreign Commerce acknowledged a need for

interstate commerce laws which adequately protect any State or Territory from the efforts of designing or unscrupulous dealers from outside the particular State or Territory to impose upon the public food or dairy products, branded or labeled as the product of a State or Territory famous for the production of a certain commodity or luxury, which, in fact, is an inferior article and which, were it not for such brand or label, could be placed upon the market only at a lesser price, and sometimes not at all, were its true character known.[19]

Although some states enacted their own laws to prevent false branding or marking, the Senate recognized a need to create a federal cause of action.

While States having such police regulations can enforce them within their own borders, beyond they are powerless to protect the public from imposition when advantage is taken of these well-known State brands by unscrupulous dealers.[20]

After two years of additional hearings, Congress enacted the 1902 Act to prohibit the placement into interstate commerce of foods "falsely labeled or branded as to the State or Territory in which they are made, produced or grown."[21]

On the heels of the 1902 Act, Congress passed the more comprehensive Federal Food and Drugs Act of 1906 (1906 Act) to forbid "interstate commerce in adulterated and misbranded food and drugs."[22] The 1906 Act stated that food labels may not be "false or misleading in any particular."[23] Thus, the 1906 Act encompassed misbranding not only of place of origin, but also misrepresentation of purity, quality, strength, and identity of food or ingredients. The 1902 Act and 1906 Act therefore overlapped to some extent. For example, if ingredients from region X are superior to and more expensive than ingredients from other regions, falsely representing ingredients as from region X would be proscribed by both the 1902 Act and 1906 Act.

Congress eventually folded the prohibition against false or misleading labels into the Food, Drug, and Cosmetic Act (FD&C Act) of 1938, codified in 21 U.S. §§ 301 et seq. The FD&C Act effectively supplanted the 1906 Act.[24] Meanwhile, the 1902 Act was never repealed and remains good law.[25]

Despite the 1902 Act's continuing validity and the broad new language of the FD&C Act, FDA, which replaced the Bureau of Chemistry as the relevant regulatory agency, continued to receive complaints from domestic and foreign food producers, consumers, and trade associations regarding false and misleading geographic references on food labels.[26] For example, Idaho potato growers complained that growers from other states were labeling their products as "Idaho potatoes."[27] Louisiana hot sauce makers alleged that competitors were labeling their products as "Louisiana hot sauce" despite using peppers from other states.[28] And, the Florida citrus industry reported occurrences of the word "Florida" on citrus product labels, even though those products included ingredients from other states.[29]

In response to these complaints, FDA promulgated regulations in 1970 to prevent misbranding of food.[30] In their initial configuration, the regulations read as follows:

Among representations in the labeling of food which render such food misbranded is any misleading representation as to the State, territory, or country in which the food or ingredient in the food was grown, produced, or manufactured; however, the use of a geographical name in connection with the identity of a food, or the name of an ingredient in such food, will not be considered misleading if the geographical name is (1) part of the name prescribed in a standard of identity . . . or (2) by reason of long usage in the United States is generally recognized as a generic designation of a particular type or style of food product rather than as an indication of the geographic area where it was grown, produced, or manufactured.[31]

The first exception, related to standards of identity, would allow such food names as "French dressing" and "Monterey jack cheese," standardized in 21 C.F.R. §§ 169.115 and 133.153, respectively, even though such foods were not produced in France or Monterey. The second exception, related to types or styles of food, would permit food producers to label products with names such as "Buffalo chicken wings,"[32] "Concord grapes,"[33] "Cortland apples,"[34] "New England clam chowder,"[35] and "New York cheesecake,"[36] irrespective of where such products originated.

FDA's proposed misbranding regulations generated a wide range of comments from consumers, food producers, trade associations, and governments.[37] The vast majority of the comments favored the regulations. In response to the comments, the final regulations, codified in 21 C.F.R. § 1.15(c) and later republished as 21 C.F.R. § 101.18(c), stated:

Among representations in the labeling of a food which render such food misbranded is any representation that expresses or implies a geographical origin of the food or any ingredient of the food except when such representation is either: (1) A truthful representation of geographical origin. (2) A trademark or trade name provided that as applied to the article in question its use is not deceptively misdescriptive. A trademark or trade name composed in whole or in part of geographical words shall not be considered deceptively misdescriptive if it: (i) Has been so long and exclusively used by a manufacturer or distributor that it is generally understood by the consumer to mean the product of a particular manufacturer or distributor; or (ii) Is so arbitrary or fanciful that it is not generally understood by the consumer to suggest geographic origin. (3) A part of the name required by applicable Federal law or regulation. (4) A name whose market significance is generally understood by the consumer to connote a particular class, kind, type, or style of food rather than to indicate geographical origin.

Thus, subpart (1) allows food producers to place accurate, geographically descriptive references on their labels. Subpart (2)(i) permits a brand name such as "Philadelphia cream cheese" to persist legally, despite the product's origins in New York, due to its long and exclusive use in the marketplace.[38] Subpart (2)(ii) enables arbitrary brand names such as "Arizona iced tea" to enter the marketplace, despite being misdescriptive.[39] Subpart (3) adds an allowance for terms such as government-required indicators of agricultural origin. Subpart (4) captures both exceptions from the first draft of the misbranding regulations, as discussed above.

FDA designed its misbranding regulations to protect consumers from confusion and to prevent unfair competition. As the next section discusses, however, the existing system has not sufficiently accomplished these objectives.

C. INADEQUACY OF CURRENT SYSTEM TO PREVENT MISREPRESENTATION OF PLACE OF ORIGIN

In recent years, FDA's policing of fraudulent food labeling - and more specifically, geographically false or misleading labeling - has taken a back seat to the agency's efforts to ensure food safety and educate the public about nutrition. Because FDA faces a chronic lack of resources,[40] it has only sporadically undertaken measures to prevent food producers from misrepresenting the place of origin of their products. Instead, FDA has relied on consumers and state and local governments to identify and act against false or misleading labels.[41] Moreover, by focusing on food safety and nutrition, FDA has created a culture in which foods' place of origin has largely escaped the public's attention.

As conscientious consumers, we are told that we should preoccupied with issues regarding the chemical composition, the days since initial packaging, and the densities of insect parts and fecal coliform found in the grains ground down to make our daily bread. Nonetheless we don't much fathom from whom or from whence they came.[42]

Due to FDA's lack of enforcement and a growing recognition of the value of "brands,"[43] misbranding has reemerged as a problem. In recent years, many disputes have involved the false or misleading use of geographic references on food labels, including: (1) "WisPride" on cheese spread not from Wisconsin, but made in Kentucky by a French company with headquarters in New Jersey;[44] (2) "Kona" on coffee not from Hawaii, but from South America;[45] (3) "Florida Style" on citrus punch not from Florida, but manufactured in California, Georgia, Indiana, New Jersey, and Texas;[46] and (4) "Omaha" on steaks not from Nebraska, but sold by a California corporation.[47]

The rising frequency of geographic misbranding demonstrates FDA's failure to address concerns expressed by Congress in the early twentieth century. Despite efforts by states, industry groups, and consumers, the marketplace remains flooded with misbranded foods. The proliferation of misdescriptive geographic references deceives consumers, dilutes the goodwill of producers, and has severed cultural lifelines and threatened the survival of regional identities.

D. MISREPRESENTATION OF MAPLE SYRUP'S PLACE OF ORIGIN

Misbranding has plagued the Vermont maple syrup industry for over a century. Indeed, Congress singled out such misbranding as it deliberated over the passage of the 1902 Act. In the legislative history of the 1902 Act, Congress reported:

In almost every store in any of the large cities may be found packages labeled "Vermont maple sirup," which was never produced in Vermont, and some of which is entirely artificial, yet which is sold at the highest price, because of the label which it carries.[48]

Thus, Congress identified the two key means by which Vermont maple syrup producers suffered: (1) misbranding as to place of origin, and (2) economic adulteration, or misbranding as to purity or quality. The remaining sections of Part II of this paper describe the former problem. Part III discusses the latter.

1. The Importance of Geographic References in the Maple Syrup Industry

Maple products, including maple syrup and maple sugar, figured prominently in establishing the independence and cultural identity of the United States. Maple products provided early English settlers with a staple sweetener and preservative for food and tobacco, and became a valuable commodity in the marketplace of the New World.[49] In his landmark book Sweetness and Power,[50] Sidney Mintz chronicled the rise of sucrose from a luxury to a basic foodstuff, particularly among the English. Mintz discussed the importance of sucrose in the development of capitalism and a world economy, as the increasing demand for sucrose drove England "to seize more colonies, establish more plantations, import more slaves to them, build more ships, import more sucrose and other plantation products."[51] Meanwhile, "[o]n the colonial frontier, home production of maple sugar substituted for costly imports of cane sugar from the West Indies."[52] Thus, a domestic supply of sucrose - derived from the maple tree - undoubtedly was a major asset as the colonies sought independence from England.

To the revolution, the United States are indebted for the cultivation of sugar from the maple tree. ... [M]aple had filled a great need, and in a time of scarcity had proved indispensable.[53]

After the United States came into being, maple products continued to shape and reflect the nation's cultural identity. For example, as the North and South battled over slavery, maple products became a political symbol of the freedom. "Among conscientious abolitionists, maple sugar was known as 'sugar not made by slaves.'"[54] During World War II, the availability of maple syrup helped offset sugar rationing.[55]

Today, far from being a staple food, maple syrup is once again a luxury item.[56] Annual U.S. maple syrup production has decreased dramatically since the early 1900s. In Vermont, for example, maple production reached a peak of 1.63 million gallons in 1927 but dropped significantly in the subsequent decades, averaging 417,000 gallons in the 1990s.[57] A survey of pure maple syrup consumers revealed that "[c]onsumers purchase maple syrup predominantly for its unique flavor to complement other foods, usually as a topping."[58]

Although maple syrup has not maintained its prominence in the American diet in modern times, maple production offers a link to history. "[E]ach American regional cuisine ... combin[es] its unique local history and culture with distinct regional ingredients."[59] This is especially true in Vermont, the largest maple syrup producing state in the nation.[60]

From sugarhouses to orchards, ... Vermont is continuing an agricultural way of life that closely ties the farmer with the cook, the ingredient to the diner, the recipe to the land.[61]

The inextricable ties between maple syrup and Vermont's cultural identity are readily apparent.

[T]he state and Vermont maple producers early on appropriated the commodity and its production practices as emblematic of Vermont and cultivated that image in advertising and educational campaigns.[62]

The Vermont quarter, designed as part of the U.S. Mint's "50 State Quarters Program," features an image of maple trees with sap buckets. In addition, Vermont politicians apparently curry favor with their constituents by eating maple walnut ice cream.[63] Overall, maple syrup production continues to nurture community ties and maintain cultural lifelines in Vermont.[64]

After years of continuing promotion, "dovetailed with longstanding state efforts to market 'Vermont' as [a] distinctive rural place,"[65] Vermont maple syrup has achieved a international reputation for excellence. Compared to Canadian syrup, for example, critics describe Vermont maple syrup as "more delicately flavored."[66] In addition, Vermont has undertaken efforts to maintain exceptionally high quality in its maple syrup industry. For example, the Vermont Department of Agriculture, Food & Markets regularly updates and distributes a maple quality control manual, and the state has passed legislation requiring "Vermont maple syrup" to be 100 percent pure.[67]

2. False or Misleading References to Vermont on Maple Syrup Labels

Vermont's renown in the maple syrup industry has long been exploited by false and misleading references to the state on syrup labels. Such references confuse consumers and dilute the value of the place name.

a. Consumer Confusion

Maple syrup consumers frequently make purchasing decisions based on place of origin.[68] Yet, even discriminating consumers are likely to be confused by misdescriptive geographic references on syrup labels. A geographic term may appear on a syrup label in various contexts: (1) as part of a brand name; (2) as part of the product name; (3) within the list of ingredients; (4) as part of the product description or marketing copy on the label; (5) as part of the name and address of the manufacturer, packer, or distributor; or (6) as part of the grade.

(1) Brand Name. A brand name generally appears prominently on a food label's front display panel. As a result, the brand name

is the written feature on the label that most readily conveys information to the consumer. When a geographic term appears in a brand name, it is natural for the consumer to assume that the product originated in that region.[69]

Such an assumption would not be limited to "the ignorant, the unthinking, and the credulous," but would also be attributable to "reasonable consumer," as FDA now requires.[70] For example, in 1990, Vermont Maple Orchards, Inc., and its parent company, Borden Inc., paid $150,000 in costs and restitution for selling Canadian syrup in packages that a "reasonable consumer" would assume was produced in Vermont.[71] Given Vermont's strong identification with maple products, it seems especially reasonable for a consumer to assume that brand name containing the term "Vermont" would signal a Vermont-made product.

Several maple syrup producers have incorporated the term "Vermont" into their brand names, despite the fact that their products do not meet the legal definition of "Vermont maple syrup." For example, the maple syrup brands "Vermont Gold"[72] and "Highland Sugarworks of Vermont" contain syrup from several other states. Similarly, a brand called "Maple Grove Farms of Vermont" is widely commercially available, and contains syrup from Canada. As shown in Figure 1, the word "Vermont" appears prominently above the words "maple syrup" on the front display panel of the "Maple Grove Farms of Vermont" label.[73]

(2) Product Name. In 1970, FDA promulgated standards of identity for maple syrup and other sweeteners.[74] The Commissioner of FDA proposed these standards "on his own initiative," as authorized under the FD&C Act.[75] In addition to maple syrup, the regulations created standards for cane syrup, sorghum syrup, and the catch-all "table syrup."[76]

For most food products, states must abide by the federal standards of identity. In 1994, however, Congress amended the FD&C Act to clarify that states may pre-empt federal standards and retain their own standards for maple syrup.[77] Preceding this legislation, Vermont and Maine had petitioned FDA for exemption from preemption of maple syrup laws.[78] In an apparent case of political wrangling, both states withdrew their petitions after sponsors of the Animal Medicinal Drug Use Clarification Act agreed to amend that bill to include an exemption for maple syrup from federal preemption.[79]

Under this exemption, Vermont has established its own standard of identity for maple syrup. While the federal standard permits salt and chemical preservatives as optional ingredients, Vermont law requires maple syrup to be 100 percent pure.[80] Furthermore, a product may only be labeled "Vermont maple syrup" or "Vermont syrup" if it is produced and packaged entirely within the state.[81] Thus, Vermont's specific statutory requirements present another potential source of confusion, as producers may falsely or deceptively label syrup from other regions with the product name "Vermont maple syrup."

(3) List of Ingredients. In 1993, the FDA amended its standard of identity for maple syrup "to require the listing of the common or usual names of all ingredients."[82] As a result, the term "Vermont maple syrup" may appear in the list of ingredients on various food products, including those produced in other states. For example, the label on a California-based product, "Aunt Sue's cinnamon pear syrup," lists the following ingredients: "Pure Vermont Grade A, Medium Amber Maple Syrup, Natural Pear Flavor, Cinnamon stick."[83]

Lists of ingredients on some food labels, however, create ambiguity as to the origin of maple syrup they contain. For example, the label on a Norwood, Massachusetts-produced food item called "Boyajian Maple Vinegar" states: "Maple Vinegar is the result of lengthy, unique process that captures the dark amber flavors of the Vermont Maple Syrup from which it is made." On the same label, however, the complete list of ingredients reads: "pure maple syrup fermented with vinegar, water." The absence of the term "Vermont" in the list of ingredients creates an inconsistency, and may signal that the product description's reference to "Vermont Maple Syrup" is erroneous.[84] Similarly, the label on "Aunt Patty's® Organic Maple Sugar" claims that the product is "made from 100% pure organic maple syrup from Vermont." Meanwhile, the list of ingredients includes only "100% pure organic maple sugar." The label also creates confusion because Vermont law requires that "maple sugar" be "produce of maple sap only,"[85] not "made from syrup."

(4) Product Description or Marketing Copy. Like other foods, maple syrup labels frequently feature copy to market the products and persuade the consumer to purchase them. As illustrated in the previous paragraph, this copy may include references to Vermont. Even where products do not claim to contain Vermont maple products, however, the word "Vermont" sometimes appears in the product description. For example, the back display panel of "Coombs 100% Organic Maple Syrup" - a blend of syrups from different states and Canada - features the words "Vermont Gourmet" in a relatively large font, and also states, "For seven generations the Coombs family has been making maple syrup in the mountains of Vermont."

Similarly, "New Organics Co. Organic Waffle & Pancake Syrup," produced by a California-based company and containing cane sugar, sports a label that reads "Imagine breakfast in Vermont. This syrup will give you a generous taste of it." While this statement is not technically false, it may have been carefully crafted to imply - in a misleading way - that the product meets Vermont standards. Because it contains cane sugar, however, it clearly does not meet Vermont's statutory requirements for purity. Alternatively, the label may be the result of an unawareness that, in the context of maple products, "Vermont" indicates a place of origin, not a type or style of food.

In addition to maple syrup, the brand "Vermont Gold" produces related breakfast products, such as blueberry pancake mix. The side panel on a box of Vermont Gold blueberry pancake mix features marketing copy that could easily lead a reasonable consumer to believe that its brand of maple syrup meets Vermont's requirements. The panel states:

VERMONT GOLD / NOT ALL MAPLE SYRUP IS CREATED EQUAL. / Most commercial "maple" syrups on the market today contain little or no real maple syrup. / Vermont Gold 100% Pure Maple Syrup is never blended and made only from the sweet, pure sap of the sugar maple tree. It is produced according to the time-honored New England standard of "sugaring," the tradition of gathering the sap and cooking till it is the proper consistency. / Ask your grocer or specialty food retailer about Vermont Gold Maple Syrup & Natural Flavored Syrups, Maple Confections ... and our entire award winning product line. Or call us in Vermont.

The term "Vermont" appears four times on the panel, and the implication seems to be that the place of origin of this product is Vermont. Yet, as stated above, "Vermont Gold" maple syrup contains ingredients from states throughout New England.

(5) Name and Address of Manufacturer, Packer, or Distributor. Geographic terms may appear as part of the name and address of the manufacturer, packer, or distributor. These items generally appear on a back display panel, in the lower third of the label.[86] Because they are featured on labels less prominently than brand names, some authorities believe that geographic terms within the name and address are of minimal concern. In the case of wine, for example, the regulatory agency (BATF) "does not require bottling trade names or winery addresses to correspond to or meet appellation of origin requirements of the wine."[87] The Vermont Maple Promotion Board (VMPB), however, suggests that the name and address on a product label cause consumer confusion and deception. A promotional brochure produced by the VMPB cautions:

Check the Label: Make sure your purchase is truly a product of Vermont. The container should say "Vermont maple syrup" not just "Maple Syrup" from a packing company that uses the word Vermont in its name and address.[88]

Perhaps because maple syrup labels tend to be simpler than wine labels, the VMPB may be more concerned than wine makers about this additional geographic reference.

(6) Grade. As part of its effort to maintain its distinctive identity and promote maple syrup quality, Vermont developed its own grading system for maple syrup. As shown in Table 1, Vermont's grading system mirrors that of the U.S. Department of Agriculture (USDA) and is a function of light transmittance. Under Vermont law, the term "Vermont" may appear in conjunction with the grade only on the label of maple syrup that otherwise qualifies as Vermont maple syrup.[89] Otherwise, maple syrup labels must use the prefix "U.S."[90]

Each appearance of a false or misleading geographic term raises the prospect of consumer confusion. When several geographic references appear on a single syrup label, the opportunities for confusion multiply. Nevertheless, FDA's regulations permit multiple geographic references on a single maple syrup label, expecting consumers to interpret the information properly and identify the product's place of origin.

Syrup producers have taken advantage of these sources of confusion. In the case of "Highland Sugarworks of Vermont" and "Maple Grove Farms of Vermont," the "of Vermont" portions of their brand names are sometimes omitted from the principal display panel. Yet, the reappearance of the term on the back display panel, coupled with the appearance of the word "Vermont" or "VT" in the address and surrounding marketing materials, can easily mislead consumers into believing that such products are Vermont maple syrup. Similarly, the label on "Coombs 100% Organic Maple Syrup" lists its address as Putney, VT. The website provided on the label, www.maplesource.com, repeatedly refers to the company as "Coombs Vermont Gourmet." Only at the bottom of the back display panel does the label reveal: "This delicious product is a mix of syrups from Vermont, the United States, and Canada."

Multiple appearances of the term "Vermont" on syrup labels may cause further confusion as retailers themselves become confused. Retailers may therefore incorrectly advertise products as "Vermont maple syrup," perhaps unaware of the statutory definition and legal significance of the term. As shown in Figure 2, such advertising may cause consumers to face further false or misleading references to Vermont upon shopping for maple products.

The photograph in Figure 2 shows a sign in a specialty food store in Oakland, California, touting the virtues of Vermont maple syrup. The store, however, carried "Brown Family Farm" maple syrup, a product labeled as "New England maple syrup" and distributed by a company with a Vermont address. No products displayed on the store's shelves met the statutory definition of Vermont maple syrup or sugar.[91]

b. Dilution of Goodwill

As explained above, false and misleading usage of the term "Vermont" continues to occur on maple syrup labels despite the existing regulatory and statutory scheme. In addition to the confusion this causes, misrepresentation of place of origin also dilutes Vermont's goodwill. "[F]raud upon the consumer and ... unfair competition among business rivals are but the two faces of the same coin."[92] As a result, Senator Patrick Leahy noted in 1995 that Vermont maple syrup producers must be "constantly vigilant against counterfeiters who use the Vermont label to get a free ride on the reputation for excellence that syrup from my state enjoys."[93] Free-riders adversely affect the Vermont maple syrup industry directly, by labeling maple syrup in a false or misleading way, and indirectly, by so labeling related products.[94]

(1) Syrup. Vermont maple syrup's reputation is diluted by false and misleading references to Vermont on products originating elsewhere. For example, Maple Grove Farms of Vermont, a subsidiary of the New Jersey-based company B&G Foods, produces a brand of nonmaple syrup called "Vermont Sugar Free." Figure 3 shows the front and back display panels of this product. This product is not maple syrup, but consists primarily of water, sorbitol, and maple "flavor" (natural and artificial). These ingredients are proscribed by law in Vermont maple syrup. So, the prominence of the term "Vermont" on the front display panel, the product's location next to maple syrup on retail shelves, and the presence of a maple leaf embossed on the front of the product's plastic container (not shown), dilute the goodwill of the Vermont maple syrup industry and undermine the state's quality control efforts.

B&G Foods also produces a flagrantly deceptive brand called "Vermont Maid," a product that is neither Vermont-made nor maple syrup. Although the product is primarily corn syrup and contains no maple syrup or maple products whatsoever, it is packaged in a plastic bottle embossed with a maple leaf. Exploiting the cultural significance of maple syrup, "Vermont Maid" labels feature the slogan "The Taste New England Loves."

(2) Other Products. Producers of other products also free ride and dilute the goodwill of the Vermont maple industry. For example, as shown in Figure 4, the Brattleboro, Vermont company Planet Foods, Inc., markets products with the brand name "Vermont Maple Cookie Company." Such a brand name dilutes the maple industry's goodwill the way a company called "Toyota bread" would dilute the automobile maker's famous name. Moreover, notwithstanding the inclusion of the term "Vermont Maple" in the cookie company's brand name, the ingredients of its maple chocolate walnut cookie includes "pure maple syrup," with no indication as to whether the syrup meets Vermont requirements. Therefore, the product may also provide yet another source of confusion to consumers.

Similarly, as shown in Figure 5, the principal display panel of "Maypo maple oatmeal" features a banner with the term "Vermont Style," and depicts a pitcher of what appears to be maple syrup. In direct contrast with Vermont's requirements for its maple products, however, "Vermont Style Maypo maple oatmeal" contains ingredients from outside the state, as well as impure ingredients such as salt and artificial maple flavor. Furthermore, it is manufactured in Pennsylvania by Ohio-based Homestat Farm, Ltd., with oats from the U.S. and Canada.[95] In fact, while the label seems to depict Vermont maple syrup being swirled into the product, Maypo's website reveals that the term "Vermont Style" does not signify the product's place of origin, but distinguishes the product from other Maypo varieties with larger oats and different cooking times. By co-opting the terminology of the Vermont maple industry and failing to abide by its standards of quality, "Vermont Style Maypo maple oatmeal" dilutes the industry's goodwill.

Another example of dilution comes from the New York-based company Breadshop Natural Foods, a division of Hain Celestial Group, Inc. Breadshop recently introduced a line of granola called "Vermont Maple" (Figure 6). The product contains maple syrup from Quebec, Canada.[96] Thus, Breadshop appears to be using the term "Vermont Maple" not to designate the product's place of origin, but to designate "Vermont Maple" as a type or style of food.[97] As discussed above, FDA's misbranding regulations draw a distinction between geographic references that denote place of origin and references to types or styles of food. By blurring the line between such references, products like Breadshop "Vermont Maple" granola dilute the goodwill of the Vermont maple industry.

In light of such rampant misuse of the term "Vermont" on maple-related products, the State of Vermont has undertaken efforts to protect its "brand name." In 2000, the Vermont Office of the Attorney General proposed "regulations that would require food manufacturers who imply their products are of Vermont origin to prove their ... authenticity."[98] Early versions of the regulations received a negative response from some Vermont purveyors and other stakeholders.[99] The Office of the Attorney General revised the drafts to accommodate the specific production processes of various types of food.[100] The latest iteration of the proposed regulations (shown in Appendix A) was scheduled to enter the formal state rulemaking process in May 2003.[101]

Once the rulemaking process is underway, the proposed regulations may face constitutional objections related to commercial free speech and regulatory takings. Free speech arguments would be relatively easy to overcome because the First Amendment does not protect commercial speech that inherently risks deception.[102] The regulatory takings issue could become more of an obstacle to the regulations' implementation. While a "sunset" provision[103] would enable companies to avoid having their brand names be rendered valueless, precluding Lucas-type claims,[104] the courts could still potentially find a taking under the three-part Penn Central balancing test.[105] To avoid a finding of regulatory takings, the regulations would need to be shown to serve public interests, minimize interference with reasonable, investment-backed expectations, and use a rational means to further a proper public purpose.[106]

III. ECONOMIC ADULTERATION OF FOOD

A. STATUTORY AND REGULATORY FRAMEWORK

In addition to misrepresentation of place of origin, FDA has long sought to prevent misrepresentation of the purity and quality, or the "economic adulteration," of food.[107] For a time, the 1906 Act seemed to squeeze out food products with false and misleading labels.[108] For example, the U.S. Department of Agriculture (USDA) Bureau of Chemistry, the regulatory agency overseeing food labeling, trumpeted its ability under the 1906 Act to suppress both fraud on the consumer and unfair competition between food producers.[109] Eventually, however, limitations of the 1906 Act became apparent and Congress passed the Food, Drug, and Cosmetic Act (FD&C Act) of 1938, codified in 21 U.S. §§ 301 et seq., to overhaul the regulation of food and drugs.

After Congress passed the FD&C Act, FDA began to establish standards of identity for various staple foods. The goal of these standards was

to protect the consumer from "economic adulteration," by which less expensive ingredients were substituted, or the proportion of more expensive ingredients diminished, so as to make the product, although not in itself deleterious, inferior to that which the consumer expected to receive when purchasing a product with the name under which it was sold.... The provisions for standards of identity thus reflect a recognition by Congress of the inability of consumers in some cases to determine, solely on the basis of informative labeling, the relative merits of a variety of products superficially resembling each other.[110]

Congress recognized that economic adulteration not only cheats consumers, but it also harms food producers by "undercut[ting] the competition."[111]

For many years, FDA issued standards of identity in the form of recipes. "FDA took the position that any product deviating in any way from a recipe standard of identity was inherently illegal."[112] Thus, food producers could only market products that did not conform with FDA's recipes (nonstandardized foods) by labeling the products an "imitation."[113] For a time, FDA allowed nonstandardized foods to be labeled with a name that included the name of a standardized food (e.g., "cocoa butter substitute primarily from palm oil").[114] However, producers of standardized foods generally opposed such labeling.[115] As a result, FDA returned to its earlier practice of requiring nonstandardized foods to be labeled an "alternative" or "substitute" for the standardized foods.[116]

In substance, the agency substituted the terms "alternative" or "substitute" for the older "imitation" as a way of differentiating between standardized and nonstandardized versions of the same product.[117]

Over time, food standards have become more flexible, as FDA has allowed certain ingredients to be replaced with "safe and suitable" alternatives.[118] Meanwhile, FDA also has been modernizing standards of identity to bring them in line with the international standards of the Codex Alimentarius Commission of the United Nations.[119]

B. PURITY AND QUALITY OF MAPLE SYRUP

Maple production (or sugarmaking) is a labor-intensive process. Maple syrup is derived primarily from the sugar maple tree (Acer saccharum) in the northeastern United States and southeastern Canada.[120] Maple syrup producers extract semi-sweet sap from the tree at the end of the winter when temperatures fluctuate around the freezing point, and then boil the sap to create syrup with a high level of sweetness.[121] Approximately forty gallons of sap produce one gallon of syrup.[122]

The maple syrup industry has long faced considerable fraud and economic adulteration problems.

Since it is inevitably expensive, because of the low yield from the sap ... and the laborious production process, imitations are sold, e.g. cheap corn syrup with just a tiny proportion of maple syrup added to give 'maple-flavoured syrup'. Nothing of this sort can match the real thing.[123]

Granted, these problems are not unique to Vermont. The state's major stake in the industry, however, makes it especially susceptible to damages associated with misrepresentation of purity and quality of maple syrup. And, as discussed above, many manufacturers of "nonmaple" or artificially flavored syrups use brand names that specifically capitalize on the Vermont name (e.g., Vermont Maid, Vermont Sugar Free).

For many years, syrup producers have pushed the envelope of labeling regulations to capitalize on the demand for maple products. In the legislative history of the 1902 Act, Congress mentioned the widespread availability of "Vermont maple sirup" that was "entirely artificial."[124] In 1908, a syrup manufacturer bottled cane sugar flavored with maple wood extract as "Ohio Blended Maple Syrup."[125] The product's label featured the word "blended" in a different color and also stated in small type: "this syrup is made from the sugar maple tree and cane sugar."[126] The court held that the label was misleading, because purchasers would likely believe that the product contained maple syrup made from sap, not wood extract.[127] The statutory basis for this ruling was the "pure food act."[128] In 1913 and 1914, other producers were convicted of selling syrup adulterated with cane sugar.[129]

As phony maple syrup producers faced convictions, however, sugar manufacturers convinced the courts that blended sweeteners were legitimate "articles in the trade," and sales of such blends were allowed provided they were properly labeled.[130] In 1940, the FDA issued the following trade correspondence governing the labeling of cane and maple sugars:

In order to insure that you are in compliance with the labeling requirements, we renew our suggestion that the percentage of maple syrups be declared on the label if less than about 25 per cent. Thus, if the mixture contains more than this percentage of maple syrup, we believe the name "Cane Sugar and Maple Syrup" will satisfy the requirements with respect to the listing of ingredients. If the percentage of maple syrup is between about 10 and 25 per cent, we believe the name "Cane Sugar and Maple Syrup" qualified by the prominent statement "Contains ___ per cent Maple Syrup" would be suitable. If the percentage of maple syrup is insignificant, i.e., less than about 10 per cent, we believe the name "Cane Sugar and Maple Syrup," even if accompanied by the qualified legend regarding the percentage of maple syrup, would not be appropriate since the product would, in our opinion, no longer be a cane sugar and maple syrup but a sugar syrup with a slight addition of maple syrup, and a more appropriate label would be "Sugar Syrup with a trace of Maple Syrup Added."[131]

In 1970, FDA replaced these guidelines with standards of identity for maple syrup, corn syrup, cane syrup, sorghum syrup, and "table syrup."[132] Since these standards relieved syrup producers of the requirement to declare the percent of maple on the label, the market has become flooded with syrups containing negligible or zero amounts of maple ingredients.[133] As these artificially flavored "nonmaple" or "unmaple"[134] syrups have proliferated, the American palate has changed. Some studies have shown that consumers outside maple production areas prefer the taste of nonmaple syrup to pure maple syrup.[135] One study concluded: "Habit is a likely explanation of this."[136] Perhaps as this shift in preferences took place, the incentive to fraudulently market maple syrup abated, and related litigation dropped off. Also, as mentioned above, some commentators believe that the 1906 Act provided an effective tool to squelch fraudulent food claims.[137]

In the 1980s, however, concerns about maple syrup fraud resurfaced.[138] Incentives for economic adulteration rose as maple syrup production costs rose,[139] and consumers renewed their interest in "value-added products."[140] As discussed below, litigation arose for the first time in decades.[141]

In addition to problems with blending foreign ingredients, like cane sugar, some syrup makers falsely represented the quality and grade of syrup.[142] These misrepresentations were facilitated by the fact that maple syrup is fairly easy to emulate in color and consistency.[143] In addition, lack of standardization has been an issue in packaging maple syrup.[144]

Whatever form economic adulteration takes, it generates similar problems to the misrepresentation of place of origin: consumer confusion and dilution of goodwill.

1. Consumer Confusion

Most consumers would likely be surprised to learn that many of the products shelved alongside maple syrup, including "table syrup," "syrup," "pancake syrup," and "waffle syrup," contain no maple ingredients whatsoever. None of the top three syrup brands - "Aunt Jemima," "Log Cabin," and "Mrs. Butterworth's" - contain more than two percent maple syrup.[145] Retail grocery stores and supermarkets typically treat pure maple syrup as "just another table syrup. Eighty percent of the grocery-store purchasers of pure maple syrup found pure maple in the same shelf area as other table syrups."[146] As a result, "[w]hat some people consider maple syrup is more likely to have come from a cornfield in Kansas than from a grove of sugar maples in Vermont."[147]

Vermont innkeeper Bill Bauer... says that many of his guests ... are not aware that the table syrups need not - and often do not - contain any real maple syrup. "Those products use the word maple on the label, they may have a picture of a maple leaf on them, and they're at eye level on the supermarket shelves." ... Jack Walsh, director of marketing for Maple Grove Farms in St. Johnsbury, Vt., the state's largest maple-products processor[,] ... says he himself never knew the difference until he started working for Maple Grove Farms.[148]

Therefore, consumer confusion is clearly a very real problem facing the pure maple syrup industry.

2. Dilution of Goodwill Associated with Pure Maple SyrupThe literal dilution of maple syrup with cane syrup, corn syrup, or other additives harms producers of pure maple syrup. Given Vermont's prominence in the United States maple syrup market, it has been active in policing economic adulteration cases. In addition, nonmaple syrup makers have specifically exploited Vermont's goodwill, heightening the state's interest in misrepresentation of purity and quality.

Vermont officials played a key role in cracking a "nationwide scam" to market corn syrup as pure maple syrup.[149] In 1988, Bruce Martell, a Vermont consumer assurance supervisor, tested products purchased in California and labeled as maple syrup.[150] After finding that the products contained 98 percent corn syrup, Martell contacted FDA.[151] This led to a protracted struggle between the government and the syrup makers, Nathan, J.H., and Paul Pilgrim.[152] The Pilgrims continued to mislabel syrups and ship their products to several states for sale, despite "countless federal and state warnings, injunctions, embargoes, and other attempts to stop the illegal practice."[153] In 1990, "family patriarch Nathan H. Pilgrim pleaded guilty ... to four felony counts of misbranding honey and syrup. He was fined $130,000 and served three years' probation."[154] Nathan's sons, J.H. and Paul, however, continued the practice into the 1990s. Finally, in 1996, Chief Judge William Barbour of the Southern District of Mississippi sentenced the brothers to 19 and 30 months of imprisonment (J.H. and Paul, respectively), banned them from syrup making for the rest of their lives, and fined them $20,000 each.[155] FDA rationalized the harsh punishment as follows:

"For 20-plus years, this family has arrogantly ignored the agency's authority and adamantly refused to comply with the law of the land," said James Blakely, an investigator with FDA's Jackson (Miss.) resident post who has been involved with investigations of the Pilgrim family since 1978. "They would just snub their noses at the government." ... "We had to make an example of these guys," he said, referring to J.H. and Paul Pilgrim.[156]

"The prison sentences ... [were] the stiffest ever imposed on a company or individual for violations based solely on the Federal Food, Drug, and Cosmetic Act."[157]

Vermont officials played a key role in the Pilgrim case, and Vermont food producers and retailers also have been diligent about ensuring that maple products are not falsely labeled. In United States v. Jenkins,[158] concerns about the integrity and goodwill of the pure maple syrup industry led Vermonters to investigate claims by W. Lyman Jenkins that the sugar in his cake and cookie mixes was pure maple. Two parties that purchased a portion of Jenkins' company sent a sample of Jenkins' product to a forensic laboratory for testing.[159] The Vermont Country Store - a customer of Jenkins' - also sent Jenkins' product to a laboratory for testing.[160] Both laboratories found that Jenkins' product contained cane sugar, not pure maple sugar.[161] Following these findings, the Vermont Attorney General charged Jenkins with six counts of adulterating a food product with the intent to defraud, in violation of 21 U.S.C. § 331(a).[162] The U.S. District Court for the District of Vermont convicted Jenkins on all counts, and the Second Circuit affirmed the convictions in 2001.[163]

While the Pilgrim case and Jenkins may signal that the government recognizes the need to protect the goodwill of the maple syrup industry, the scope of the problem may be difficult or impossible to ascertain. While Vermont researchers have long been developing methods to identify adulteration in maple products,[164] these generally are either expensive or imprecise.[165] Meanwhile, many instances of economic adulteration of maple syrup occurs may go undetected. Furthermore, despite the convictions of the Pilgrims and Jenkins, economic adulteration continues to occur in plain view. For example, Figure 7 shows the label of a product called "Joseph's Sugar Free Maple Syrup." This widely commercially available product fails to meet FDA's standard for maple syrup, and contains "water, all natural maple flavor and maltitol [an all-natural sweetener]."[166]

Even if the Pilgrim and Jenkins cases deter other syrup makers from engaging economic adulteration, commercial availability of nonmaple syrups generally dilute the goodwill of the "real thing" for several reasons. First, some nonmaple syrups contain sorbitol, which has been shown to cause gastrointestinal problems.[167] Consumers who experience such effects may develop a general aversion to syrup. In addition, many nonmaple syrups contain corn syrup. An estimated 35 to 80 percent of the United States corn supply has been genetically modified,[168] and many consumers oppose GMOs. Although pure maple syrup continues to be produced without the use of biotechnology, and typically meets organic standards, an affiliation with corn and GMOs could seriously dilute the goodwill of the pure maple syrup industry. This dilution would be even more pronounced internationally because GMOs are strongly opposed in most countries outside the United States.

IV. POSSIBLE SOLUTIONS

A. MISREPRESENTATION OF PLACE OF ORIGIN

As the above sections explain, misrepresentation of geographic origin remains a pervasive problem for the Vermont maple industry and the food industry overall. The following discussion analyzes possible legal strategies to prevent fraudulent and misleading labeling, including the use of trademark law, marketing orders, negotiations in the shadow of the law, national and international standards of identity, appellations of origin, disclaimers, and a requirement to designate a "brand."

1. Trademark Law

a. Statutory Framework

Trademark law has evolved to help compensate for FDA's weak control over geographic references on food labels. In the early 1900s, Congress noted that intellectual property law did not effectively deal with the problems of fraudulent geographic claims on food labels.

Although existing laws of copyright confer special property in peculiar brands, trade-marks, trade devices, etc., in cases of infringement the owners are remitted to the remote remedy of a civil suit at law and limited to the recovery of actual damages, which in many cases is an ineffectual and impractical relief.[169]

Yet, the injuries associated with trademark infringement resemble the injuries associated with misdescriptive geographic food labels: consumer confusion and dilution of goodwill. Thus, when Congress passed the U.S. Trade-Mark Act (Lanham Act) of 1946,[170] it established a legislative intent in parallel with food labeling laws: to prevent "deceptive and misleading use of marks in ... commerce."[171]

In tension with the policy to prevent consumer confusion and unfair competition, however, is an interest in keeping certain terms within the public domain.[172] As a result, Congress in 1905 precluded registration of marks that were "merely a geographic name or term."[173] Under the Lanham Act, descriptive terms such as geographic terms can only receive protection when such terms have acquired "secondary meaning."[174]

Although the secondary meaning requirement may make it more difficult for a descriptive term that accurately describes the geographic origin of a product to receive trademark protection, the Lanham Act also created a legal device called a certification mark,

used in connection with goods or services to indicate that those products or services originated in a particular region, or that they are of a particular nature, quality, characteristic, or that they were produced by a member of a particular organization. ... Because a certification mark may expressly be used to certify the geographic origin of goods or services, the bar against geographical names applicable to most trademarks do not apply to certification marks.[175]

Moreover, food producers engage in variety of marketing strategies to cultivate goodwill for their area of origin. The value of such goodwill has been demonstrated by empirical studies, showing an increase in consumers' willingness to pay for foods originating from certain regions.[176] Such goodwill is integral to enabling a food producer to establish secondary meaning for a geographic reference.

Even when a descriptive term has acquired a secondary meaning sufficient to warrant trademark protection, however, the Lanham Act sometimes allows others to use the term without incurring liability for trademark infringement.[177]

When the allegedly infringing term is "used fairly and in good faith only to describe to users the goods or services of [a] party, or their geographic origin," Lanham Act § 33(b)(4), 15 U.S.C. § 1115(b)(4) (1976), a defendant in a trademark infringement action may assert the "fair use" defense. The defense is available only in actions involving descriptive terms and only when the term is used in its descriptive sense rather than its trademark sense.[178]

The "fair use" defense does not, however, entitle others to use a mark if such use will lead to consumer confusion "as to the source or origin of the goods at issue."[179]

In recent years, trademark law has expanded beyond consumer interests to better protect producers. Often, producers spent considerable time and energy establishing goodwill and distinctive reputations for certain "famous" marks, only to have their marks undermined or "diluted" when other producers palmed off their own foods with false, deceptive, or unauthorized uses of "famous" trademarks. As a result, Congress added an anti-dilution provision to the Lanham Act in 1996, codified in 15 U.S.C. § 1125(c). This established a federal cause of action for dilution even in the absence of consumer confusion. The provision identified a number of criteria to determine whether a mark is "famous" for trademark purposes, including: (1) the duration and extent of use of the mark; (2) the duration and extent of advertising and publicity of the mark; and (3) the extent to which the mark is recognized in the relevant channels of trade.[180]

In other words, even if food labels do not create consumer confusion, fraudulent, misleading, or unauthorized uses of "famous" marks are now actionable under federal trademark law.

b. Affirmative Uses of Trademarks

Many food producers have begun to rely on trademark law as a means of protecting geographic designations. For example, the State of Georgia utilized state trademark law to develop and protect a niche market for Vidalia onions. In 1986, the state enacted the Vidalia Onion Trademark Act,[181] authorizing the Georgia Commission of Agriculture to establish a trademark for term "Vidalia onion." All onion producers seeking to use this term on their labels must apply to the state for a license and the state will not issue a license to anyone outside a 20-county production area delineated in the Vidalia Onion Trademark Act. In 2000, Georgia amended the Vidalia Onion Trademark Act, authorizing the Commissioner of Agriculture to create, protect, and charge royalties or licensing fees on a trademark for use on Vidalia onions and related products.

While Georgia's federal trademark for Vidalia onions has lapsed,[182] several additional benefits become available by registering a trademark with the U.S. Patent and Trademark Office (PTO). Trademarks registered on the U.S. PTO's "Principal Register" have the following advantages: (1) nationwide constructive notice of ownership and use (15 U.S.C. §§ 1057(c), 1072); (2) enhanced remedies in federal court (15 U.S.C. §§ 1116-20); (3) possible "incontestability," eliminating several defenses (15 U.S.C. § 1065); (4) the right to bring a federal cause of action (15 U.S.C. § 1121); and (5) the right to request U.S. customs to bar importation of products bearing infringing trademarks (15 U.S.C. § 1124).

Brands that do not qualify for registration on the Principal Register, such as those that have not acquired secondary meaning, may be placed on the U.S. PTO's "Supplemental Register."[183] While the latter produces significantly fewer benefits, it still provides notice of ownership.[184] Such notice creates the threat of litigation in federal court and generally deters other producers from infringing on trademarked terms.[185] Registration on the Supplemental Register also helps protect trademarks internationally by enabling producers to obtain foreign registrations under the Paris Convention.[186] In addition, over time, registration on the Supplemental Register enables trademarks to presumptively establish secondary meaning and qualify for the Principal Register.[187]

Granted, even without federal registration, trademark owners can still sue under the "federal common law"[188] protection provided by Section 43(a) of the Lanham Act, codified in 15 U.S.C. § 1125, which forbids false designations of origin. As a practical matter, however, "[i]t is usually much easier to prove the case and [collect] large damages ... if the mark has been registered."[189]

The Idaho Potato Commission (IPC) has taken advantage of the Principal Register in its efforts to provide legal protection for Idaho potatoes. The State of Idaho charged the IPC with preventing

the unlicensed use of the Idaho potato trade or certification marks including, but not limited to, the marks "Grown in Idaho," "Famous Idaho Potatoes" and "Idaho Potatoes."[190]

To meet that goal, the IPC and the State of Idaho have registered a number of certification marks in the Principal Register, including the mark shown in Figure 8.

The IPC permits food producers to use its registered marks on food packages containing 100 percent Idaho potatoes or potato products. All other certification mark and trademark use must be conducted under authority of a license agreement with the IPC.[191] "The IPC also claims common law trademark rights in the words 'IDAHO' and 'GROWN IN IDAHO' when used in conjunction with the word 'potato.'"[192]

In Idaho Potato Commission v. M&M Produce Farms & Sales, the IPC's trademark protection enabled it to successfully sue a potato repacker that, in violation of its license agreement, repacked non-Idaho potatoes and potatoes that did not meet IPC quality requirements. The IPC's claim alleged that the repacker "diluted and counterfeited the Idaho Marks in violation of the Lanham Act, 15 U.S.C. §§ 1501 et seq., and New York and Idaho statutory and common law."[193]

The examples of Vidalia onions and Idaho potatoes provide some lessons for the Vermont maple syrup industry. Similar to Georgia, Vermont has established a state trademark for the term, "State of Vermont Pure Maple Syrup."[194] Vermont could, however, follow Georgia's lead by integrating the state trademark into a more comprehensive marketing plan, which may include a marketing order, as discussed in the following section of this paper. Vermont should follow Idaho's lead and seek federal trademark protection for various terms as well. As described above, registration with the U.S. PTO would provide several advantages over a state trademark. In addition, by broadening the protected terms to such phrases as "Vermont maple," or even "Vermont," the state would have greater authority to prevent misrepresentation.

In 1985, Vermont recognized the value of federal trademarks by filing the "Vermont Seal of Quality" for registration with the U.S. PTO. The Seal of Quality program, administered by the Vermont Commissioner of Agriculture, provided applicants with the opportunity to use the "Commissioner's Choice" certification mark (shown in Figure 9) on labels, packages and merchandising materials.[195] To obtain this right, applicants needed to certify that their products met specific FDA and USDA quality standards, and were entirely produced and packaged in Vermont.[196]

While the Seal of Quality program provided a means for Vermont to promote its goodwill in the food industry, the state failed to renew the certification mark with the U.S. PTO as required by law. As a result, the U.S. PTO canceled the mark's registration and the state lost the special benefits of federal registration. According to Steven Justis, a marketing specialist with the Vermont Department of Agriculture, "Since several people have handled the Vermont Seal of Quality program over the past 18 years, I was unaware that the trademark had expired."[197] Meanwhile, Vermont food producers are continuing to use the certification mark in good faith. To preserve the credibility and regain the benefits of the program, Vermont should immediately seek to reinstate the certification mark's federal registration.

The International Maple Syrup Institute (IMSI), a promotion and marketing organization composed of U.S. and Canadian producers, processors, and other maple industry representatives, developed a logo "protected by copyright,"[198] intended to signal to consumers that packages contain pure maple syrup. The logo, shown in Figure 10, is problematic for several reasons. First, the label is not meaningful to consumers. Because it is not self-explanatory, it will only serve as a signal of purity to consumers aware of its existence, or after extensive advertising. Second, while IMSI bills the logo as "the definitive symbol of Pure Maple Syrup,"[199] IMSI only permits its members to use it. Because many pure maple syrup producers do not belong to IMSI, however, consumers cannot rule out purity based on the logo's absence from a label. Third, a search of the U.S. Copyright Office registration database produced no results for IMSI.[200] Therefore, the logo's legal status is questionable. Fourth, the logo would be more properly registered as a trademark, the legal device typically used to provide a signal of authenticity or membership in a group. The most obvious advantage of a trademark over a copyright is that copyrights have limited durations, while trademarks do not (as long as they are renewed on time).

c. Restricting Uses of Geographic Brand NamesThe Vermont maple industry should promote or undertake efforts to invalidate geographically misdescriptive brand names under the Lanham Act. Although some of these brands have probably acquired secondary meaning, others have not been in the marketplace for long periods of time and could be challenged more easily. In compliance with the North American Free Trade Association (NAFTA) and the General Agreements on Tariffs and Trade — Trade-Related Aspects of Intellectual Property (GATT-TRIPS), Congress amended the Lanham Act in 1994 to prohibit primarily geographically deceptively misdescriptive marks from being registered unless they had obtained secondary meaning prior to December 8, 1993.[201]

The Vermont maple industry would also benefit from reforms to Lanham Act allowing for retroactivity. Because the NAFTA/GATT-TRIPS-related amendments grandfather certain primarily geographically deceptively misdescriptive marks, they only serve to maintain the status quo as of the end of 1993. This fails to capture longstanding brands such as Vermont Maid, and does not promote uniformity. The prohibition against primarily geographically deceptively misdescriptive marks, if applied retroactively, would more effectively minimize consumer confusion and place name dilution. Without retroactivity, the effectiveness of the 1994 Lanham Act amendments is undermined by the profusion of pre-existing maple syrup brand names that misrepresent geographic identity.

To facilitate retroactivity and help overcome potential constitutional challenges, some commentators have suggested treating labeling regulations like comprehensive municipal zoning schemes.[202] Accordingly, nonconforming uses could be phased out over a reasonable amortization period (e.g., 10 or 20 years). Such a "sunset" period would provide time for owners of brands incorporating the term "Vermont" to seek sources of maple syrup within the state or to move operations into the state if necessary. The 10- or 20-year sunset period would also provide a reasonable amount of time for producers to discontinue any misleading labeling practices and to develop new brands as needed. During the sunset period, as an incentive for producers to correct misrepresentations as quickly as possible, one commentator would suggest that FDA

require all nonconforming uses to be labeled with a conspicuous disclaimer of a minimum font size, appearing on the same label as the brand name and type designation, stating: "[Geographic brand or bottling trade name ...] does not indicate the origin of the [maple syrup] in this [package]." To prevent deceptive use of ... addresses, [FDA] should require that this mandatory label information appear in typeface no larger than two millimeters in height and [off the front display panel]. This typeface requirement should also be applied to [marketing copy on the label].[203]

The sunset provisions described above would obviously be controversial. They would be opposed by owners of trademarks or brand names incorporating the word "Vermont," including subsidiaries of some of America's largest food producers. In addition, the opposition would include some large Vermont-based operations, such Maple Grove Farms of Vermont, that are members of Vermont maple industry groups. Canadian cooperatives that sell to such operations would also oppose reforms that would restrict the market for their syrup.

Because the maple syrup industry comprises a few large operations and many independent, small operations, it may be difficult to reach consensus on how to resolve the rampant misrepresentation of Vermont maple syrup. The situation is therefore ripe for FDA to assume a leadership role. FDA should repeal the portion of its misbranding regulations that grandfathers nonconforming uses, 21 C.F.R. § 101.18(c)(2)(i), and should promote retroactive application of the Lanham Act's prohibition on primarily geographically deceptively misdescriptive marks. Perhaps the passage of the country-of-origin labeling requirements in the 2002 Farm Bill will stimulate interest and provide a political backdrop for reform of the existing system with respect to geographic references on food labels.

2. Marketing Orders

Marketing orders offer another means of conferring federal legal status upon Vermont maple syrup and other agricultural commodities. For example, Vidalia onion growers gained legal protection via a federal marketing order. In 1989, USDA issued Federal Marketing Order No. 955 for the crop, which

provides legal rights to Vidalia onion growers/handlers in three major areas. It (1) established the Vidalia Onion Committee, (2) extended the legal status of the Vidalia onion to the federal level, and (3) allowed growers to fund research and promotion programs.

The combined efforts of the Vidalia Onion Committee and the State of Georgia have enabled Vidalia onions to become

an internationally recognized, branded product that can command a price premium ... across the United States. Vidalia onions are an example of how responding to consumer demand with a succession of marketing, legislative and research events has protected a niche market from becoming oversupplied by producers. And, by protecting the name, quality, and image on an agricultural product through state ownership of the trademark, higher values are realized throughout the marketing chain.[204]

Following the success of the Vidalia onion industry, Vermont maple producers should consider applying to USDA's Agricultural Marketing Service (AMS) for a federal marketing order. By pooling the resources of many sugarmakers throughout Vermont, such a marketing order would provide a legal instrument to help: (1) maintain the high quality of produce that is on the market; (2) standardize packages and containers; (3) regulate the flow of product to market; (4) establish reserve pools for storable commodities; and (5) authorize production research, marketing research and development, and advertising.[205]

Aside from bolstering the federal legal status of Vermont maple syrup, such a marketing order may enable the Vermont maple syrup industry to compete more effectively with imports from Canada, where cooperative marketing has occurred for decades.

Though many people the world over still think "Vermont" when they hear the words maple syrup, Quebec is by far the largest producer in the world. The [Canadian] Citadelle Maple Syrup Producers' Cooperative began in 1925, when 102 syrup producers united to cope with a monopoly of buyers whose low prices threatened to destroy the maple syrup market. Today, ... 2,700 producers in Quebec ... are cooperative members.[206]

Other benefits of cooperative marketing include improved bargaining power, single-tax treatment, and limited anti-trust exemption.[207]

AMS also oversees research and promotion programs "to expand, maintain, and develop markets for individual agricultural commodities in the United States and abroad."[208] For each commodity, the Secretary of Agriculture appoints a board to

conduct promotion, market research, production research, and new product development. ... The programs are funded by assessments collected by the board and, for import assessments, by the U.S. Customs Service. There are currently active programs for cultivated blueberries, Hass avocados, honey, mushrooms, peanuts, popcorn, potatoes and watermelon.[209]

Such a research program could be beneficial for maple syrup.

While cooperative marketing in the Vermont maple syrup industry would provide certain benefits, such a strategy would also face opposition. For example, some honey producers have sought refunds and challenged the national honey order as a violation of the First Amendment.[210] It is likely that similar challenges would come from Vermont sugarmakers. The following assessment of cooperative marketing difficulties - published in 1922 - may still apply today:

The greatest drawback to the development of cooperative marketing ... is the general attitude of the producers. The Vermont farmer is naturally an individualist, and is slow to undertake new ventures. Cooperative marketing is not extensively developed and the producers do not possess the cooperative point of view.[211]

Also, unlike a quota by statute, a marketing order for Vermont maple syrup could only provide an indirect means of stabilizing market conditions for the commodity.

3. Negotiations in the Shadow of the Law

Because FDA lacks resources to enforce its regulations, negotiations in the shadow of the law may be an important way for states, industry, and consumer groups to address fraudulent or misleading uses of geographic terms. The 1902 Act, the FD&C Act, the Lanham Act, FDA's misbranding regulations, and consumer protection and anticounterfeiting laws all provide bases for legal action.[212] Even if such action does not reach the litigation phase, existing laws may be useful to persuade parties to negotiate. For example, the Florida Department of Citrus (FDOC) recently took action against Procter & Gamble (P&G) over a misleading geographic reference on a fruit-flavored drink called "Florida Style Tangy Citrus Sunny Delight."[213] Despite the reference to Florida, P&G manufactured the drink in California, Georgia, Indiana, New Jersey, and Texas.[214] In addition, the product contained less than five percent real citrus juice.[215] While the FDOC developed its litigation strategy, it enlisted assistance from several prominent consumer and child advocacy groups to generate additional bargaining power.[216] According to Ken Keck, FDOC's general counsel, the threat of litigation and P&G's desire to sell its Sunny Delight manufacturing operation caused P&G to come to the table.[217] Ultimately, P&G agreed to: (1) reduce the font size of the term "Florida Style," (2) change the label to show a variety of fruits (not just oranges), and (3) change the product name from "Real Fruit Beverage" to "Orange Flavored Citrus Punch with Other Natural Flavors."[218]

The Sunny Delight case poses many of the same problems faced by the Vermont maple syrup industry. For example, the Maypo label shown in Figure 5 contains many of the same elements as the original Sunny Delight label. In addition, ownership of Maypo appears to be in flux, as was the Sunny Delight manufacturing operation. Maypo has changed hands several times in the last few years, from International Home Foods to ConAgra in 2000, and then to Homestat Farm in 2001.[219] Thus, recognizing that "Vermont style" Maypo creates consumer confusion and dilutes goodwill, Vermont sugarmakers should call for Homestat Farm to reformulate the product and its label. In the shadow of the law, Homestat Farm will be more likely to come to the bargaining table.

4. National and International Standards of Identity

The Vermont maple industry should petition FDA to issue a standard of identity for "Vermont maple syrup." This standard should be based on Vermont's statutory definition, which requires Vermont maple syrup to be "100 percent pure maple syrup which is entirely produced within the state of Vermont."[220] Such a standard would provide many benefits. First, it would aid consumer recognition of Vermont maple syrup and would promote honesty and fair dealing. Also, the standard would distinguish Vermont maple syrup from the other standardized maple syrup, which may contain salt and other additives. Thus, it would raise awareness about Vermont's emphasis on purity. Furthermore, an FDA-established standard for Vermont maple syrup would promote national harmonization. It would allow Vermont law to become harmonized with federal law and eliminate the need to specify exceptions for maple syrup in the FD&C Act.[221] Finally, because FDA rarely establishes new standards of identity, such a standard would be newsworthy and would generate publicity for the Vermont maple industry. The most recent standard, for white chocolate, was the first new standard in 20 years.[222]

In addition, the Vermont maple industry should seek to have the Codex Alimentarius Commission adopt a standard for Vermont maple syrup. Building on the discussion above, this would promote international harmonization. In so doing, an international standard would enhance marketability of Vermont maple products worldwide. The Codex Commission has not issued a standard for maple syrup,[223] so no conflict would exist for a Vermont-specific standard. Moreover, the Codex Commission has adopted other geographically-based standards. For example, the Codex standard for Brie requires labels to specify if the cheese is not produced in France.[224] Additionally, the Codex standard for sardines permits distinguishing the name of the product by its geographic origin.[225] The Codex Commission also has adopted a standard for Mexican limes, although this refers to commercial varieties of Citrus aurantifolia, which need not be grown in any specific area of origin.[226]

The Vermont maple industry would face opposition in its efforts to establish national and international standards for Vermont maple syrup. First, Maine would probably argue that it also deserves a state-specific standard of identity for its maple products. As discussed above, Maine joined Vermont in its efforts to obtain exemption from preemption of maple syrup laws in 1994.[227] Maine maintains quality standards for maple syrup comparable to those of Vermont, prohibiting the addition of salt or chemical preservatives allowed under federal regulations.[228] In addition, other states would likely argue that special treatment for Vermont raises constitutional problems of economic protectionism.[229]

In the international arena, opposition from Canada would be likely. Canada is not only the world's largest maple syrup producer and Vermont's biggest competitor, but it is also the host country of the Codex Committee on Food Labeling.[230] As a result, international initiatives to promote Vermont maple syrup would likely encounter a stalwart group of Canadian delegates. Other countries might also oppose Vermont-specific standards, which would undermine their ability to capitalize on the state's cachet. For example,

At a recent gourmet food expo in Japan, Roger Clapp, a deputy commissioner of agriculture, was astonished by the response to a Vermont booth. As it turned out, however, consumers were responding not to the syrup he was promoting but to a Japanese spice product known as "Vermont Curry."[231]

Codex standards for Vermont products would provide a means of enforcement against such misrepresentation of place of origin.

5. Appellation of Origin System

Vermont maple syrup producers may benefit from a nationally-administered appellation of origin system. Such a system (also known as appellation controllee) was created in France in 1935 after fraud and adulteration plagued the production and labeling of French wines, cheeses, olives, and other agricultural products.[232] Today, similar systems have been developed in the United States and other countries, especially those that are major producers of wine.[233] Wine makers in the United States apply to the BATF to establish American Viticultural Areas (AVAs).[234] Similarly, sugarmakers could apply to FDA, or perhaps USDA, to establish maple syrup production areas. The State of Vermont could represent one such area, or sugarmakers could seek to establish protection for specific regions. Such a strategy is under development in Canada.

[T]he Appalaches Regional Maple Producers' Co-op, a producers group southeast of Quebec City[,] ... which blends syrups the way many wine makers blend grapes, says it may eventually seek official appellation controllee status from the Quebec government to gain more prestige and protection for their product.[235]

An appellation of origin system for maple syrup would provide several potential benefits. First, it would extend legal recognition of the term "Vermont maple syrup" into the federal arena. Second, it may improve the marketability of maple syrup as a specialty food. As they are for wine, organoleptic (sensory) characteristics of maple syrup may become strong selling points.[236] Vermont and the maple syrup industry have already begun to borrow marketing techniques from the wine industry. For example, Highland Sugarworks has introduced a "limited edition" syrup called "Highland Estates Private Reserve," which comes in packaging that "taps wine imagery."[237] In addition, Vermont farmers have proposed promoting agritourism in their state, with such ventures as a "Napa Valley-style Cheese Trail."[238]

For appellations that refer to a political subdivision (such as a state or county), BATF's current system allows 25 percent of the product to come from outside the area.[239] This allowance creates several problems in the context of Vermont maple syrup. First, it falls below Vermont's 100 percent purity requirement, created by statute to establish the state name as a signal of high quality. It also favors larger volume producers, such as Maple Grove Farms of Vermont, that can simultaneously source maple syrup from both a high-quality, high-cost region and a low-cost region. Such producers could reduce their overall costs while continuing to command the same price as producers that sold maple syrup exclusively from high-quality, high-cost regions. In addition, the 25 percent that may originate from outside the politically-defined area could potentially mask the distinctive taste and quality characteristics associated with the area.

For all the foregoing reasons, an appellation of origin system for maple syrup should require 100 percent of the syrup to be made, produced, packaged, and bottled in the geographic area indicated on the label. Such a requirement would minimize consumer confusion and dilution associated with the appellation. In addition, such a requirement would ensure that a Vermont origin could be conferred upon the syrup. This would bypass the problem "about which types of activities qualify as origin conferring," an issue plaguing the World Trade Organization as it seeks to harmonize international rules of origin.[240] Finally, despite BATF's 25 percent allowance, some states have imposed more stringent appellation of origin systems without adverse economic consequences. For example, Oregon requires 100 percent "grape source to qualify for an Oregon appellation of origin [and] Oregon's wine industry is thriving under these regulations."[241]

As the following excerpt explains, an appellation of origin system would be consistent with U.S. trademark law.

Section 2(e) has ... long provided that appellations of origin registered under Lanham Act § 4 (15 U.S.C. § 1054) (collective marks and certification marks), are an exception to the prohibition on geographically descriptive marks. ... Certification marks may be registered without proof of secondary meaning, but must be made available ... to anyone who complies with the terms of the certification.[242]

Thus, establishing an appellation of origin system would not create a conflict of laws and may, like Codex standards, enhance the marketability of Vermont maple products worldwide.

6. Disclaimers

Another reform alternative would be to require disclaimers. FDA could require products with misdescriptive geographic references to indicate the actual area of origin of maple syrup on their labels to disclaim false origins indicated by such references. Such a disclaimer would only prevent confusion, however, if it were conspicuously placed on a label. Thus, a problem with disclaimers is that they would add more clutter to syrup labels. "And one should never underestimate the creative abilities of label designers to find new ways to make a false geographic reference more prominent than a disclaimer."[243] Furthermore, even if the appearance of multiple indications of origin on a single label did reduce consumer confusion, "disclaimers do not address the nonconfusion problem of dilution."[244]

7. "Brand"

The Vermont maple industry could benefit from a requirement that misdescriptive references to Vermont be conspicuously accompanied by the term "brand." By requiring owners of brands that contain the word "Vermont" to add the word "brand" to their labels, FDA could reduce consumer confusion and place name dilution. Such a requirement would only apply to syrup makers that do not conform to Vermont requirements that 100 percent of their product be made and packaged within the state. The FD&C Act could be amended so that unless nonconforming syrup makers place the word "brand," in type of uniform size and prominence, immediately after the word "Vermont," the food would be misbranded.[245] This would provide an incentive for nonconforming syrup makers to obtain syrup from to Vermont producers. If syrup makers did not conform, the word "brand" would more clearly signal to consumers that the geographic reference on the syrup label did not represent a place of origin.

B. MISREPRESENTATION OF PURITY, QUALITY, OR IDENTITY

Several possible solutions exist to reduce instances of economic adulteration of maple syrup. These include requiring percentage labeling, eliminating the standard of identity for "table syrup," requiring the term "imitation," requiring disclaimers, and promoting organic food labeling. Each of these alternatives is discussed below.

1. Percentage Labeling

In its 1940 trade correspondence on blends, FDA noted that, where cane syrup is blended with maple syrup in a manner that "deceives the purchaser, then of course a percentage statement would be an obvious method of correcting the deception."[246] Decades later, FDA shifted its policy on this issue by creating standards of identity for various types of syrup and the current marketplace continues to be overrun with legally-sanctioned products that contain two percent or less of maple syrup. This has caused consumers to become confused and diluted the goodwill of pure maple syrup producers.

To address this problem, all syrup products should be required to provide:

on the principal display panel ... the amount of maple sugar or maple syrup the product contains expressed in percentage of volume ... in close proximity to the product name.[247]

While this provision appears in Vermont maple laws, percentage maple labeling should be expanded into a federal requirement. Such a provision would be appropriate under FDA policy, which states:

percentage labeling should be restricted to situations where this information has a material bearing on price or consumer acceptance of the food, or where such information may prevent deception.[248]

Moreover, such a provision could parallel the percentage labeling requirement added to the FD&C Act in 1990, which requires "that a beverage containing a fruit or vegetable juice must declare the percent of juice on the label."[249]

Like other percentage labeling requirements, a percentage maple labeling requirement would be controversial. It would probably encounter opposition from nonmaple syrup makers, especially those mandated to declare that their products contained zero percent maple. A proposal to require nationwide percent maple labeling circulated in 1994 and faced criticism from Kraft General Foods (KGF).[250] KGF disfavored percentage labeling because it allowed the word "maple" to appear on products that contained less than 10 percent maple syrup, the minimum amount required for a product to represent maple as its characterizing flavor under federal standards.[251]

2. Standards of Identity

It would be beneficial for Vermont sugarmakers to petition for a repeal of the standard of identity for "table sirup." Its close resemblance to the term "maple syrup," and its authorization of the term "syrup" alone, creates consumer confusion. Its allowance for a wide array of optional ingredients (e.g., butter, salt, chemical preservatives, etc.) undermines the goodwill of the pure maple syrup industry.

Unlike other sweeteners standardized by FDA in 21 C.F.R. § 168, including maple syrup, cane syrup, and sorghum syrup, "table syrup" and the other food names established in 21 C.F.R. § 168.180 do not identify the sweetener ingredient that characterizes the food. That is, "table syrup" is not made from tables, "pancake syrup" is not made from pancakes, and "waffle syrup" is not made from waffles. Therefore, the standard of identity for "table syrup" creates inconsistency in the regulations and lends itself to confusion.

In light of the problems above, some alternatives should be considered. First, in lieu of "table syrup," a different standardized term could be adopted, such as "topping" or "sweetener." Perhaps even an entirely new food name could be created, as the National Cheese Institute proposed for a cheese substitute in 1978.[252] This would erect a clearer distinction between maple syrup and nonmaple food products. Second, the standard of identity for a catch-all category of "syrup" could be limited to the portion of the standard that defines the food name:

"______ sirup", the blank being filled in with the word or words that designate the sweetening ingredient that characterizes the food, except "maple", "cane", or "sorghum" alone, such sirups being required to comply in all respects with Secs. 168.130, 168.140, and 168.160, respectively, and in the case of more than one sweetening ingredient, in descending order of predominance by weight in the food.[253]

Restricting the definition to this portion would promote uniformity with other syrup standards and militate against confusion as to the true ingredients of the food. Third, the standard of identity for table syrup could be repealed outright. In such a case, table syrup producers could be required to develop a new way to identify their product, or could be required to use the term "imitation," as discussed in the next section.

3. "Imitation"

The Vermont maple industry should consider requesting that FDA require nonmaple syrups to be labeled "imitation maple syrup." A drawback of this strategy is that it would allow the word "maple" to appear on labels of foods that contain no maple whatsoever. This problem could be offset to some extent, however, by mandating specific font sizes for the different words. For example, rather than requiring the word "imitation" to appear "in a type of uniform size and prominence ... [as] the name of the food imitated," as required by the FD&C Act,[254] FDA could require the word "imitation" to appear in a font at least twice as large as the words "maple syrup."

A requirement to use the word "imitation" as outlined above would likely face opposition from table syrup producers. They would likely argue that the term "imitation" implies "nutritional inferiority," and contend that their products deserve no such imputation. Yet, such a contention would be wrong. Under 21 C.F.R. § 101.3(e), FDA defined "nutritional inferiority" as "a reduction of 2% or more of the U.S. RDA of protein or any essential nutrient but not of fat or caloric intake."[255] As shown in Figure 1, pure maple syrup contains 6% and 8% of the U.S. RDA of calcium and iron, respectively. Most table syrups, on the other hand, contain neither of these essential nutrients. Therefore, most table syrups fit the regulatory definition for "nutritional inferiority" compared to maple syrup and could properly be labeled as "imitation."

Despite the nutritional inferiority of most existing table syrups to pure maple syrup, some table syrup producers might attempt to avoid the "imitation" label by fortifying their products with vitamins and minerals. For example, as shown in Figure 3, "Vermont Sugar Free" syrup is fortified with thiamin, niacin, vitamins B6 and B12, pantothenic acid, and zinc. Yet, the product contains no calcium or iron, and therefore would still be considered nutritionally inferior to pure maple syrup. Moreover, FDA policy considers fortification of sugar inappropriate.[256] Because syrups are essentially a form of sugar, FDA would likely prohibit table syrup makers from adding nutrients to avoid the "imitation" label.

4. Disclaimers

Disclaimers offer a potential mechanism to address the misrepresentation problems associated with maple syrup purity and quality. In this context, FDA could require a statement to appear on a nonmaple syrup label, disclaiming the presence of maple syrup within the package. As with disclaimers regarding place of origin, such disclaimers need to appear with sufficient prominence and would therefore add clutter to syrup labels. And, as was the case for disclaimers for geographic references, disclaimers regarding maple syrup purity would not mitigate dilution of goodwill.

5. Organic Food Labeling

Because the maple industry is not a beneficiary of biotechnology, and does not rely on pesticides or fertilizers for crop production, virtually all pure maple syrup meets organic standards. This sets maple syrup apart from other forms of table syrup, and the industry should maximize the benefits of this difference. Some labels have already begun to carry seals of organic certification. This should be done on a more widespread basis, and the maple syrup's GMO-free status should be more widely marketed. Perhaps the FD&C Act or state laws could be amended to require labels to note whether they contain products that are organic. Such a strategy would obviously be very controversial, but it could greatly improve the international marketability of pure maple syrup.

V. CONCLUSION

Despite Congress's goal in enacting the 1902 Act and the subsequent series of related statutes and regulations, misbranding continues to plague the Vermont maple syrup industry. False and misleading geographic references commonly occur on labels of maple syrup and other products to the detriment of consumers and producers. In addition, the proliferation of nonmaple syrups in the marketplace perpetuates consumer confusion and dilution of goodwill. The Vermont maple industry could pursue several legal strategies to address misrepresentation. These strategies include independent litigation and negotiations, as well as strategies requiring federal action, including the creation of an appellation of origin system, reformulation of standards of identity, and other labeling requirements.

Action by the State of Vermont, the maple industry, and consumer groups may be important steps toward preventing deception, misappropriation, unfair competition, and cultural homogenization. While stronger state regulations and enforcement would help address the misrepresentation of Vermont maple syrup and other products, such action would only do so for products made or sold in Vermont. Yet, as this paper has identified, the scope of the problem extends well beyond Vermont's borders and the maple industry. Geographic references have become valuable assets for a wide array of food products, including but not limited to California raisins, Darjeeling tea, Florida citrus, Georgia peaches, Idaho potatoes, Kona coffee, Louisiana hot sauce, Maui onions, Vidalia onions, Washington apples, and Wisconsin cheese. As these assets have become more widely recognized and valued, incentives for misrepresentation have increased. Given the widespread nature of the problem, FDA should channel more of its resources into the regulation of geographic food references and food purity and quality, and develop a less reactive, more preventative system.

APPENDIX A. PROPOSED REGULATIONS AND ENFORCEMENT POLICY ON REPRESENTATIONS OF VERMONT ORIGIN

(Source: Elliot Burg, Assistant Attorney General, State of Vermont, Apr. 21, 2003)

SUBJECT: CONSUMER FRAUD-REPRESENTATIONS OF VERMONT ORIGIN

ATTORNEY GENERAL-CONSUMER PROTECTION SECTION

ADOPTED PURSUANT TO 9 V.S.A. § 2453(c)

RULE CF 120

REPRESENTATIONS OF VERMONT ORIGIN

CF 120.01 Definitions

CF 120.02 Obligation to Comply with Rule

CF 120.03 Unqualified Representations of Vermont Origin

CF 120.04 Qualified Representations of Vermont Origin

CF 120.05 Company Names

CF 120.06 Company Location

CF 120.07 Requirement of Substantiation

CF 120.08 Effect on Other Provisions of Vermont Law

CF 120.09 Effective Date

CF 120.01 Definitions

(a) "Clear and conspicuous" means that the required disclosures are presented in such a manner, given their language, syntax, graphics (if any), size, color, contrast and proximity to any related information, as to be readily noticed and understood by consumers. A disclosure is not clear and conspicuous if, among other things, it is ambiguous or it is obscured by the background against which it appears, or by its location within a lengthy disclosure of non-material information. "Clear and conspicuous" also means in an oral communication that the information is presented in a manner that a consumer will hear and understand, at a normal speed in the same tone and volume as any offer made. If this rule requires a disclosure to be made in a clear and conspicuous manner, then the disclosure must also appear in proximity to (including, but not limited to, in the same panel or section of the label or packaging as) the representation that it qualifies.

(b) "Company name" means the registered or incorporated name of a business. A trademark containing a representation of Vermont origin that identifies or describes a product is not a company name but is instead governed by CF 120.03 or CF 120.04.

(c) "Component" means an ingredient and/or material that makes up part or all of a product.

(d) "Last substantially transformed" means that the product in question has been last changed into a new and different article of commerce, with a name, character or use distinct from that of the articles(s) from which it was so transformed.

(e) A "non-Vermont product" is a product whose primary components are not of Vermont origin and which was not last substantially transformed in Vermont.

(f) "Origin" and "originate" mean grown, manufactured or otherwise created in Vermont, or, in the case of a process, occurring in Vermont.

(g) "Person" includes any natural person, corporation, partnership, unincorporated association and other business entity.

(h) "Primary component" means a component of a product that constitutes a major portion of the quantity or volume, and/or of the value, of a product, except that the following components are not "primary": (i) components that are not indigenous to or made in Vermont (such as cocoa); and (ii) components that are several steps back in the manufacturing process (such as steel that is used to fabricate a part in a computer). A component is presumed not to be "primary" if it constitutes less than ten (10) percent of a product by (i) weight or volume and (ii) value.

(i) "Producer" means a person or company that grows, manufactures or otherwise creates a product.

(j) "Product" includes any goods, commodities or other property of any kind.

(k) A "qualified representation of Vermont origin" means a representation to the effect that either (i) certain components of a product originated in Vermont; or (ii) certain processes associated with the creation of a product occurred in Vermont. Qualified representations of Vermont origin include, without limitation, expressions such as "made [manufactured, produced, processed, crafted, etc.] in Vermont," "assembled [knitted, baked, etc.] in Vermont," or "contains Vermont [specified ingredients]."

(l) "Representation" means any message conveyed by words, symbols or other graphic device made in connection with the advertising, marketing or sale of a product. Representations may appear, without limitation, in print media, on television and radio, by electronic means (such as e-mail and the Internet), and on product packaging, labels, signs and displays.

(m) An "unqualified representation of Vermont origin" means a representation, other than one covered by CF 120.05 (company names), to the effect that a product is a Vermont product, unaccompanied by a clear and conspicuous specification as to nature or extent of the product's origin in or connection to Vermont. Unqualified representations of Vermont origin include, without limitation, the unqualified use of the word "Vermont" to describe a product, as in "Vermont [product]."

CF 120.02 Obligation to Comply with Rule

It is an unfair and deceptive trade act or practice in commerce under 9 V.S.A. § 2453(a) for any person to make a representation of Vermont origin that does not comply with this rule.

CF 120.03 Unqualified Representations of Vermont Origin

(a) No person shall make an unqualified representation of Vermont origin in such a way as to create an overall impression which is misleading as to the nature or extent of a product's origin in or connection to Vermont.

(b) No person shall make an unqualified representation of Vermont origin unless any specific attributes of the product that reasonable consumers would believe are of Vermont origin (that is, the product's primary components and/or last substantial transformation) are in fact of Vermont origin.

(c) No person shall make an unqualified representation of Vermont origin concerning a product that does not undergo substantial transformation (for example, milk, honey or bottled water) unless the primary components originated in Vermont.

CF 120.04 Qualified Representations of Origin

(a) No person shall make a qualified representation of Vermont origin unless:

(i) the qualifying language is accurate;

(ii) the qualifying language is disclosed clearly and conspicuously; and

(iii) the components or processes that are the subject of the qualifying language are substantial-in terms of quantity, value or importance-in relation to all of the components and processes used to create the product.

(b) No person shall make any representation that a product was "made in Vermont," using that or a substantially similar term, unless either:

(i) the product was last substantially transformed in Vermont; or

(ii) the product is one that does not undergo substantial transformation (for example, milk, honey or bottled water) and the primary components originated in Vermont.

CF 120.05 Company Names

(a) No person shall use the word "Vermont" or any substantially similar term in any representation as part of a company name in such a way as to create an overall impression which is misleading as to the nature or extent of a product's Vermont origin or a product's or company's connection to Vermont.

(b) The use of the word "Vermont" or any substantially similar term in any representation as part of a company name closely associated with a non-Vermont product (for example, on the product label) does not violate subsection (a) of this section if either:

(i) the company currently discharges in Vermont substantial functions related to the creation or sale of the product, and the use of the company name is accompanied by a clear and conspicuous disclosure of the out-of-state origin of the product; or

(ii) the company has historically discharged, but no longer discharges, in Vermont substantial functions related to the creation or sale of the product, and the use of the company name is accompanied by a clear and conspicuous disclosure of the out-of-state location of the company and the out-of-state origin of the product.

If neither subpart (i) nor (ii) of this subsection applies, then the person making the representation as part of a company name has the burden of showing that the representation does not create an overall impression which is misleading as to the nature or extent of the product's Vermont origin or the product's or company's connection to Vermont.

CF 120.06 Company Location

No person shall use a Vermont address in any representation to describe the location of the seller, solicitor, producer, distributor or other person associated with a good or service unless:

(a) the person has a substantial physical presence at that address; or

(b) the person's main business address is disclosed in a clear and conspicuous manner and proximate to the most prominent statement of the Vermont address.

CF 120.07 Requirement of Substantiation

In addition to any other requirement of this rule, a person who makes a representation of Vermont origin must, at the time the representation is made, possess reasonable factual substantiation for the representation.

CF 120.08 Effect on Other Provisions of Vermont Law

(a) Nothing in this rule shall limit the rights or remedies available to the State of Vermont or consumers under the Consumer Fraud Act with respect to representations of geographic origin other than representations of Vermont origin.

(b) This rule shall not supersede any other provisions of Vermont law with regard to the advertising or labeling of products as to Vermont origin.

CF 120.09 Effective Date

This rule shall become effective 90 (ninety) days after its adoption.

Enforcement Policy on Vermont Origin Claims

Consumer Fraud Rule (CF) 120 deems it a violation of the Vermont Consumer Fraud Rule to misrepresent the Vermont origin of a product or some component of, or process relating to, a product. The Vermont Attorney General's Office ("AGO") has prepared this Enforcement Policy ("Policy") to assist businesses in complying with CF 120.

Among the misrepresentations of this type are those involving "unqualified origin claims," where a product is described using the word "Vermont" without any reference (or qualification) as to how the product is connected to Vermont-for example, "Vermont cheese," or "Vermont jam."[257] See CF 120.01(m).

According to CF 120.03(a), no person may make an unqualified representation of Vermont origin that creates an overall impression that is misleading as to the nature or extent of a product's origin in or connection to Vermont. More specifically, no person may make an unqualified representation of Vermont origin unless any specific attributes of the product that reasonable consumers would believe are of Vermont origin (that is, the product's primary components and/or last substantial transformation) are in fact of Vermont origin. CF 120.03(b). Finally, no person may make an unqualified representation of Vermont origin concerning a product that does not undergo substantial transformation (for example, milk, honey or bottled water) unless the primary components originated in Vermont. CF 120.03(c).

A few definitions are in order here. According to the rule:

· "Component" means an ingredient and/or material that makes up part or all of a product. CF 120.01(c).

· "Last substantially transformed" means that the product in question has been last changed into a new and different article of commerce, with a name, character or use distinct from that of the articles(s) from which it was so transformed. CF 120.01(d).

· "Origin" and "originate" mean grown, manufactured or otherwise created in Vermont, or, in the case of a process, occurring in Vermont. CF 120.01(f).

· "Primary component" means a component of a product that constitutes a major portion of the quantity or volume, and/or of the value, of a product, except that the following components are not "primary": (i) components that are not indigenous to or made in Vermont (such as cocoa); and (ii) components that are several steps back in the manufacturing process (such as steel that is used to fabricate a part in a computer). A component is presumed not to be "primary" if it constitutes less than ten (10) percent of a product by (i) weight or volume and (ii) value. CF 120.01(h).

· "Representation" means any message conveyed by words, symbols or other graphic device made in connection with the advertising, marketing or sale of a product. Representations may appear, without limitation, in print media, on television and radio, by electronic means (such as e-mail and the Internet), and on product packaging, labels, signs and displays. CF 120.01(l).

This Policy provides guidance as to how the prohibition on deceptive unqualified Vermont origin claims will be applied by the AGO. It does this by identifying for each of the listed products below whether, in the AGO's view, a claim that the item is a "Vermont" product is likely to convey to reasonable consumers that (1) the primary components (or ingredients) originate in Vermont, (2) the product was made or otherwise last substantially transformed in Vermont, or (3) both.

This Policy assumes that no other origin claim relating to the same product is being made. For example, according to the policy, a "Vermont crafted wood bowl" has only to have been last substantially transformed in Vermont in order to merit its unqualified Vermont origin claim; however, if the product was also advertised as being "made from native Vermont pine," that representation would also have to be true.

This Policy is subject to change by the AGO if warranted by the facts, although in such an event, due regard will be given to the time needed by businesses to bring their practices into conformance with any such changes. In addition, the Policy is not intended to bind individual consumers who may seek to bring private claims under the Vermont Consumer Fraud Act.

---

[1 ]21 U.S.C. § 343(e).

[2] Food Labeling to Bolster Security of Food Supply, U.S. NEWSWIRE, Dec. 16, 2002.

[3] See, e.g., Citadelle-Camp, Frequently Asked Questions: Pure Maple Syrup is Pure Maple Syrup, Right?, at http://www.citadelle-camp.com/ a_faq_pro2.html (last accessed Apr. 21, 2003) (stating that the characteristics of pure maple syrup “var[y] a lot from region to region, just like olive oil and, to some extent, wine”); William J. Gabriel & Donald W. Seegrist, Differences in Sugar Content of Sugar Maple Sap in Northeastern United States, 18 NAT’L MAPLE SYRUP DIGEST 8 (1977).

[4] Peter Barton Hutt & Peter Barton Hutt II, A History of Government Regulation of Adulteration and Misbranding of Food, 39 FOOD DRUG COSMETIC L.J. 2, 16 (1984).

[5] Maria Luz Loureiro & Jill J. McCluskey, Assessing Consumer Response to Protected Geographical Identification Labeling, 16 AGRIBUSINESS 309, 310 (2000) (citing L. Bertozi, Designations of Origin: Quality and Specification, 6 FOOD QUALITY & PREFERENCES 143-47 (1995)).

[6] Julia Csergo, The Emergence of Regional Cuisines, in FOOD: A CULINARY HISTORY 501 (Jean-Louis Flandrin & Massimo Montanari eds. 1999).

[7] Paul P. Graham et al., Dry-Curing Virginia Style Ham, Virginia Cooperative Extension Publication No. 458-223, Aug. 1998, at http://www.ext.vt.edu/pubs/foods/458-223/458-223.html (last accessed Jan. 25, 2003).

[8] The Pineapple Growers Association of Hawaii, A Short History of Pineapple, at http://www.pineappleshawaii.com/about_pineapple-growers.cfm (last accessed Jan. 25, 2003). See also KENNETH NAGATA, THE STORY OF PINEAPPLE IN HAWAII 2, 5 (2000).

[9] H.R. REP. NO. 56-872, Mar. 29, 1900.

[10] DONNA R. GABACCIA, WE ARE WHAT WE EAT 123 (1998). The politics of geographic food references recently resurfaced when members of the U.S. House of Representatives changed the names of “French fries” and “French toast” to “freedom fries” and “freedom toast,” to rebuke France for refusing to support the U.S. position on Iraq. Sean Loughlin, House Cafeterias Change Names for “French” Fries and “French” Toast, CNN.COM, http://www.cnn.com/2003/ ALLPOLITICS/03/11/sprj.irq.fries (Mar. 12, 2003).

[11] See, e.g., Agriculture, Rural Development, and Related Agencies Appropriation Bill, 1990, Senate Rep. No. 101-84, 101^st Cong., 2d Sess. (1989), quoted in PETER BARTON HUTT & RICHARD A. MERRILL, FOOD & DRUG LAW 21 (1991) (“The Committee recognizes the need for sufficient staff to carry forward the mission of the Food and Drug Administration assuring the safety of foods...”) (emphasis added).

[12] California Department of Food and Agriculture, Buy California Initiative, http://www.cdfa.ca.gov/mkt/mkt/BuyCalif_intro.htm (last modified 2000).

[13] Western Institute for Food Safety and Security, Executive Summary, http://www.vetmed.ucdavis.edu/wifss/summary.cfm (last accessed Jan. 25, 2003).

[13a] Slow Food: The Movement, http://www.slowfood.com/eng/sf_ita_mondo/ sf_ita_mondo.lasso (last accessed May 19, 2003).

[14] See generally GARY PAUL NABHAN, COMING HOME TO EAT: THE PLEASURES AND POLITICS OF LOCAL FOODS (2002).

[15] GABACCIA, supra note 10, at 173.

[16] Loureiro & McCluskey, supra note 5, at 309.

[17] S. REP. NO. 56-1598, at 1-2 (1900).

[18] See ROBERT MERGES, PETER MENELL & MARK LEMLEY, INTELLECTUAL PROPERTY IN THE NEW TECHNOLOGICAL AGE 559 (2000).

[19] H.R. REP. 57-258 (1902), at 1.

[20] S. REP. NO. 56-1598, at 2 (1900).

[21] 32 Stat. 632, P.L. 223, 57^th Cong., ch. 1357 (1902).

[22] Lauffer Hayes & Frank Ruff, The Administration of the Federal Food and Drugs Act, 1 L. & CONTEMP. PROBS. 16 (1933), quoted in PETER BARTON HUTT & RICHARD A. MERRILL, FOOD & DRUG LAW 9 (1991).

[23] Hutt & Hutt, supra note 4, at 59.

[24] PETER BARTON HUTT & RICHARD A. MERRILL, FOOD & DRUG LAW 11-13 (1991).

[25] 21 U.S.C. § 16 (1976). Arguably, the 1902 Act has become redundant in light of the broad language of the 1906 Act and its progeny. See also Pierre Viaus Maple Co. v. Dairy & Food Comm’r, 117 N.W. 553 (Mich. 1908) (discussing overlap between “Pure Food Law,” Act No. 193, Pub. Acts 1895, and state law prohibiting “adulteration of maple sugar, maple molasses and maple syrup,” 2 Comp. Laws, §§ 5007 et seq.).

[26] Labeling of Food: Misleading Representations Regarding Origin of Food or Ingredient, 35 Fed. Reg. 9214 (June 12, 1970).

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] See ELAINE CORN, AS AMERICAN AS APPLE PIE 2 (2002) (describing the origin of Buffalo chicken wings in Buffalo, New York).

[33] See Concord Grape Association, History of Concord Grapes, http://www.concordgrape.org/ bodyhistory.html (last modified 2002) (explaining the Concord grape’s development in 1849 in Concord, Massachusetts, and its current production throughout the United States and Canada); Welch’s, Concord Grapes, http://www.welchs.com/company/concord_grapes.html (last accessed Feb. 7, 2003) (same).

[34] See N.Y. State Agricultural Experiment Station (NYSAES), Cornell University, 115 Years of Service to New York State Agriculture, http://www.nysaes.cornell.edu/pubs/press/ hist_industry.html (Sep. 15, 1995) (discussing the NYSAES’s creation of the Cortland apple in 1915 near Cortland, New York).

[35] See CORN, supra note 32, at 123 (discussing “a product of theater-district Jewish delicatessens ... known as New York cheesecake everywhere except in New York”).

[36] Labeling of Food; Misleading Representation Regarding Origin of Food or Ingredient, 36 Fed. Reg. 9444, 9445 (May 25, 1971).

[37] Id.

[38] “[I]n 1880, a New York cheese distributor, A. L. Reynolds, first began distributing cream cheese wrapped in tin-foil wrappers, calling it Philadelphia Brand.... The name ‘Philadelphia Brand cream cheese’ was adopted by Reynolds for the product because at that time, top-quality food products often originated in or were associated with the city, and were often referred to as being ‘Philadelphia quality.’” Kraft Foods, Kraft Brands Around the World, Brand Close-Up: Philadelphia Cream Cheese, http://www.kraft.com/archives/brands/brands_cream.html (last accessed Jan. 16, 2003).

[39] Arizona iced tea is produced by the AriZona Beverage Company, located in Lake Success, New York. The company’s website indicates that they named the product “Arizona” after “the two owners ... looked at a map to see where it was hot.” AriZona Beverage Company, Frequently Asked Questions, http://www.arizonabev.com/csr/faqs.htm#a12 (last modified 2002).

[40] FDA, FDA’s Growing Responsibilities for the Year 2001 and Beyond, at http://www.fda.gov/oc/opacom/budgetbro/budgetbro.html (last updated June 2001).

[41] Paula Kurtzweil, Fake Food Fight, 33 FDA CONSUMER 30 (1999), available at http://www.fda.gov/fdac/features/1999/299_food.html (describing FDA’s efforts to work with state and local governments and industry to respond to consumer complaints of fraudulent labeling).

[42] NABHAN, supra note 14, at 27.

[43] Ellen Barry, Vigilant Vermont Guards State Brand, BOSTON GLOBE, June 28, 1999, at A1 (“It’s been 10 years since R. J. Reynolds spent an astonishing $25 billion to take over Nabisco’s bundle of brands, driving home the idea that established brands were assets worth real money.... In recent years, the theory of branding has expanded to apply not only to products, such as cola and laptops, but to abstract entities such as public utilities and countries.”).

[44] George Hesselberg, Sacre Bleu Cheese!; French Company Markets Kentucky Cheese with Wispride Trademark; Wisconsin Sues, WISC. STATE J., Nov. 16, 1995, at 1F.

[45] Sugai Products, Inc., v. Kona Kai Farms, Inc., No. 97-00043 SPK, 1997 U.S. Dist. LEXIS 21503 (D. Haw. 1997).

[46] Personal communication from Ken Keck, General Counsel, Florida Department of Citrus (FDOC), to H. David Gold, Feb. 6, 2003 (describing the state’s negotiations with Procter & Gamble (P&G) regarding the label on its product “Sunny Delight”); Personal communication from customer service representative, P&G, to H. David Gold, Jan. 22, 2003 (explaining the ingredients and place of manufacture of “Sunny Delight”) [hereinafter “P&G”].

[47] In 2001, dissatisfied consumers created an online discussion board complaining about experiences with a California company selling “Omaha Beef,” a brand name consisting of a deceptively misdescriptive geographic term that diluted the goodwill of “Omaha Steaks,” the 35-year-old brand name of a company headquartered in Omaha, Nebraska. See Bad Dealings, Omaha Beef: What a Scam, http://forums.baddealings.com/t147.html (last accessed Jan. 17, 2003); Omaha Steaks, About Our Company, http://shop13.omahasteaks.com/servlet/ OnlineShopping?Dsp=10&RAND=2666 (last accessed Jan. 17, 2003). In 2001, the California Secretary of State suspended the former company, incorporated under the name “Omaha Beef & Alaska Seafood, Inc.,” for failure to file a statement required by statute. Personal communication from Business Filings, California Secretary of State, to H. David Gold, Jan. 16, 2003. The Better Business Bureau reports that Omaha Beef has an “unsatisfactory business performance record” and may now be operating out of Las Vegas, Nevada. See Business Reliability Report for “Omaha Beef and Alaska Seafood, Inc.,” at http://www.bbbsouthland.org/ howtoreport.html (last accessed Jan. 17, 2003). In 2000, the owner of the suspended company filed a trademark application for the term “Omaha Beef.” The U.S. Patent and Trademark Office has not yet made a final determination as to the registrability of the mark.

[48] H.R. REP. NO. 56-872, Mar. 29, 1900, at 1; H.R. REP. NO. 57-258, Jan. 29, 1902, at 1; S. REP. NO. 57-870, Mar. 27, 1902, at 1. “Sirup” is an alternate spelling for “syrup.”

[49] OHIO STATE UNIVERSITY EXTENSION, NORTH AMERICAN MAPLE SYRUP PRODUCERS MANUAL 6-7 (Melvin R. Koelling & Randall Heiligmann eds., 1996) [hereinafter MANUAL].

[50] SIDNEY W. MINTZ, SWEETNESS AND POWER 134, 140, 147-48 (1985).

[51] Id. at 167.

[52] Cynthia Clare Hinrichs, Landscapes of Production, Landscapes of Consumption: A Comparative Study of the Vermont and Quebec Maple Syrup Industries 36-37 (Ph.D. dissertation, Cornell University 1993) [hereinafter Hinrichs, Landscapes].

[53] HELEN & SCOTT NEARING, THE MAPLE SUGAR BOOK 42, 65 (1^st Chelsea Green ed. 2000).

[54] BETTY ANN C. LOCKHART, THE MAPLE SUGARING STORY 5 (2000). See also Hinrichs, Landscapes, supra note 52, at 37 (“Until Emancipation, Quakers and other social reformers advocated the use of maple, rather than cane sugar, since the latter was produced in large part by slave labor.”).

[55] MANUAL, supra note 49, at 7.

[56] Hinrichs, Landscapes, supra note 52, at 40; Paul E. Sendak, Consumer Attitudes About Pure Maple Syrup, in SUGAR MAPLE RESEARCH: SAP PRODUCTION, PROCESSING, AND MARKETING OF MAPLE SYRUP, USDA General Technical Rep. NE-72 103 (1982); see also Christopher J. Chipello, Looking for Syrup’s Snob Appeal, WALL ST. J., July 27, 2000, at B1.

[57] National Agricultural Statistic Service (NASS), USDA, New England Agricultural Statistics 63 (2000), http://www.nass.usda.gov/nh/pdf/00maple.pdf (last accessed Mar. 1, 2003); USDA, Vermont Maple Production Since 1916, Bulletin No. 313 (University of Vermont Extension Publication No. 419, undated).

[58] Paul E. Sendak, Analysis of Pure Maple Syrup Consumers, USDA Forest Service Research Paper NE-295 10 (1974).

[59] Martin Yan, Foreword, in THE ART INSTITUTES, AMERICAN REGIONAL CUISINE vii (2002).

[60] NASS, USDA, New England Agricultural Statistics 61 (2001), http://www.nass.usda.gov/ nh/pdf/01maple.pdf (last accessed Mar. 1, 2003) (stating that Vermont accounted for 49 percent of New England’s production and 26 percent of all United States maple syrup in 2001, the most recent year available).

[61] AMY LYON & LYNNE ANDREEN, IN A VERMONT KITCHEN 2 (1999).

[62] Hinrichs, Landscapes, supra note 52, at 60, 68.

[63] See BEN COHEN & JERRY GREENFIELD, BEN & JERRY’S HOMEMADE ICE CREAM & DESSERT BOOK 70 (1987) (“Although Maple Walnut Ice Cream is commonly associated with Vermont, it’s not a very popular flavor here, which left us wondering who actually liked it. We recently found our answer when we scooped free ice cream at the Vermont Agriculture Day Celebrations in Montpelier. To our surprise, all the state legislators lined up for Maple Walnut Ice Cream and consumed it with great passion.”).

[64] See C. Clare Hinrichs, Sideline and Lifeline: The Cultural Economy of Maple Syrup Production, 63 RURAL SOC. 507 (1998). Sugarmaking also provides an economic lifeline for traditional farmers by providing supplemental income during the off-season. Id.

[65] Hinrichs, Landscapes, supra note 52, at 60, 68.

[66] Ellen Barry, Dispute Over Banned Chemical Divides Vermont, Quebec Maple Syrup Producers, BOSTON GLOBE, Feb. 20, 2001.

[67] VT. STAT. ANN. tit. 6, §§ 481(12) & 490(c) (1999).

[68] Sendak, Analysis, supra note 58.

[69] Michael Maher, On Vino Veritas? Clarifying the Use of Geographic References on American Wine Labels, 89 CAL. L. REV. 1881, 1907 (2001).

[70] Guidance for Industry: Qualified Health Claims in the Labeling of Conventional Foods and Dietary Supplements; Availability, 67 Fed. Reg. 78,002, 78,004 (Dec. 20, 2002).

[71] Marialisa Calta, Made in Vermont: Myths You Can Eat, N.Y. TIMES, Dec. 4, 1991, at C1.

[72] Personal communication from customer service representative, Vermont Gold, to H. David Gold, Feb. 20, 2003 (stating that Vermont Gold’s Grade A syrup comes from “all over New England”). Vermont Gold’s website reveals the company’s intent to capitalize on the Vermont cachet, stating: “There is a mystique that is Vermont and maple syrup is very much a part of the Vermont magic.... In 1991 we began selling pure Vermont maple syrup.... We named it Vermont Gold.... Today, Vermont Gold consists of a growing family of sophisticated, all natural products; offering a complete selection of traditionally made pure maple syrups, flavored maple syrups, pure maple butters, maple confections and crêpe pancake mixes. In addition, and staying true to our roots, Vermont Gold includes pure maple syrup as an all-natural flavor enhancer and healthy alternative to processed sugar in all of our grilling and roasting sauces, salad dressings and ketchup. Vermont Gold is more than a product line. It is and expression of our love of Vermont and of great food, passed down through generations of several families and life-long friends ~ further shaped by the passage of time, travel and personal experience. It is an expression of our modern day country lifestyle, where year round cooking of great food over the open fire continues to take precedent over our modern home gas range. And where tradition has become infused with fresh concepts and our own busy lives are made a little easier by the convenience of using Vermont Gold products.” Vermont Gold, About Us, http://www.vermontgoldusa.com/level.shtml?32 (last accessed Feb. 12, 2003).

[73] The label shown in Figure 1 wraps around a plastic jug.

[74] Table Sirups: Proposed Standards of Identity, 35 Fed. Reg. 15,403 (Oct. 2, 1970), codified in 21 C.F.R. § 168.

[75] Id.

[76] Id.

[77] 21 U.S.C. §§ 343-1(a)(1)–(3) (2001).

[78] Maine, Vermont Withdraw Maple Syrup Exemption Petitions, 3 FOOD LABELING NEWS, Jan. 5, 1995.

[79] Id.

[80] VT. STAT. ANN. tit. 6, § 481(12) (1999).

[81] Id. §§ 481(17), 490(c) (1999).

[82] Food Labeling; Declaration of Ingredients for Dairy Products and Maple Sirup, 58 Fed. Reg. 2888 (Jan. 6, 1993).

[83] See Aunt Sue’s, Our Products: Cinnamon Pear Syrup, http://www.auntsue.com/cpsyrup.html (last modified 2002).

[84] Boyajian did not respond to an e-mail request for clarification on this issue.

[85] VT. STAT. ANN. tit. 6, § 481(11) (1999) (emphasis added).

[86] Peter Barton Hutt, Harvard Law School, Food & Drug Law class lecture, Jan. 7, 2003.

[87] Maher, supra note 69, at 1899.

[88] Vermont Maple Promotion Board, undated brochure.

[89] VERMONT DEPARTMENT OF AGRICULTURE, FOOD & MARKETS, VERMONT MAPLE QUALITY CONTROL MANUAL WITH PACKING AND PRICING GUIDE 61 (undated).

[90] See, e.g., supra Figure 1 (showing maple syrup labeled as “U.S. Grade A Medium Amber”).

[91] Similarly, a now-offline Internet merchant called “The Syrup Store” claimed: “There’s maple syrup, then there’s the BEST maple syrup. Highland Sugarworks produces two lines. U.S. Maple Syrup and Vermont Maple Syrup. We only carry Highland’s Vermont Maple Syrup.” http://syrupstore.safeshopper.com/index.htm?560 (last accessed Jan. 2002). Despite this claim, the products pictured and labeled as “Vermont maple syrup” on the Syrup Store’s website were not Highland Sugarworks’ Vermont line.

[92] HUTT & MERRILL, supra note 24, at 10.

[93] Statement of Senator Patrick Leahy before the Senate Judiciary Comm., Oct. 10, 1995.

[94] Given the state’s general reputation for producing high-quality items, misleading uses of the term “Vermont” also extend beyond maple-related products. See Sue Robinson, Canadian Firm Fined for Misusing Vt. Label, BURLINGTON FREE PRESS, Apr. 9, 2002, at 6A (reporting Vermont Attorney General’s $56,600 settlement with a Canadian cheese company for “misrepresenting the origin of some of its Swiss cheese and misusing the Vermont name”); Ellen Barry, Vigilant Vermont, supra note 43 (discussing the marketing of Vermont flower seeds by a Louisiana manufacturer, “Vermont Curry” by a Japanese manufacturer, and a fragrance called “Vermontage” by a New Jersey manufacturer).

[95] Homestat Farm, Ltd., History, http://www.homestatfarm.com/history.php (last accessed Feb. 13, 2003); Homestat Farm, Ltd., Products: Maypo, http://www.homestatfarm.com/ products_maypo.php (last accessed Feb. 13, 2003).

[96] Personal communication from Mary Nishimura, Consumer Affairs, Hain Celestial Group, Inc., to H. David Gold, Mar. 10, 2003.

[97] See supra discussion of 21 C.F.R. § 101.18(c)(4) and text accompanying notes 32-35.

[98] Calta, supra note 71; Personal communication from Elliot Burg, Assistant Attorney General, State of Vermont, to H. David Gold, May 12, 2003.

[99] Id.

[100] Personal communication from Elliot Burg, Assistant Attorney General, State of Vermont, to H. David Gold, Apr. 21, 2003.

[101] Id.

[102] See Friedman v. Rogers, 440 U.S. 1, 13 (1979) (upholding state law prohibiting certain trade names where “there is a significant possibility that trade names will be used to mislead the public”).

[103] See discussion infra Part IV.A.1.c.

[104] See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (stating that regulations constitute per se takings if they strip private property of all economically beneficial or productive use).

[105] See Penn Central Transportation Co. v. New York, 438 U.S. 104 (1978).

[106] For recent examples of how the U.S. Supreme Court applies the Penn Central balancing test, see Tahoe–Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002); Palazzolo v. Rhode Island, 533 U.S. 606 (2001); and Eastern Enterprises v. APFEL, 524 U.S. 501 (1998).

[107] Kurtzweil, supra note 41 (noting that the federal food laws were “enacted partly in response to public concerns about use of water to adulterate such foods as milk”).

[108] See HUTT & MERRILL, supra note 24, at 39 (“Most fraudulent or outrageous food claims had long since disappeared as a result of FDA regulatory action taken under the 1906 Act.”).

[109] Id. at 10.

[110] Federal Security Adm’r v. Quaker Oats Co., 318 U.S. 218, 229-31 (1943).

[111] Kurtzweil, supra note 41.

[112] Hutt & Hutt, supra note 4, at 66.

[113] Id. at 66-67.

[114] HUTT & MERRILL, supra note 24, at 125.

[115] Id.

[116] Id. at 157.

[117] Id.

[118] Id. at 110-11.

[119] Id. at 111.

[120] MANUAL, supra note 49, at 9.

[121] Id. at 49.

[122] Id. at 78.

[123] ALAN DAVIDSON, THE OXFORD COMPANION TO FOOD 478 (1999).

[124] See sources cited supra note 48.

[125] United States v. Scanlon, 180 F. 485, 486 (N.D. Ohio 1908).

[126] Id.

[127] Id. at 486-87.

[128] Id. at 487.

[129] See, e.g., Nebraska v. Paxton & Gallagher Co., 140 N.W. 167 (Neb. 1913); Commonwealth v. New England Maple Syrup Co., 105 N.E. 453 (Mass. 1914).

[130] See Adams v. New England Maple Syrup Co., 97 N.E. 85 (Mass. 1912); State v. Weeden, 100 P. 114 (Wyo. 1909).

[131] FDA, Cane and Maple Syrups – Blends – Invert Sugar, TC-255, Apr. 1940, in VINCENT A. KLEINEFELD & CHARLES WESLEY DUNN, FEDERAL FOOD, DRUG, AND COSMETIC ACT: 1938-1949 (1949), at 669.

[132] See Table Sirups, supra note 74.

[133] See infra note 145 and accompanying text.

[134] Pancake Syrups: How Far From the Tree?, CONSUMER REP., Jan. 1992, at 60.

[135] See, e.g., Sendak, Consumer Attitudes, supra note 56, at 105; Jane Dornbusch, Pouring on the Charm, BOSTON HERALD, Mar. 2, 1994, at 41 (quoting Rux Martin, co-author of the book SWEET MAPLE, as saying “Fake syrup has a bludgeoning sweetness that some people prefer.”).

[136] Sendak, Consumer Attitudes, supra note 56, at 105. See also Doug Blackburn, Tapping the Sap, THE TIMES UNION (Albany, NY), Oct. 15, 1997, at D1 (“[O]ne mass produced table syrup, Log Cabin, graded better than a highly touted Vermont syrup. This probably indicates that we prefer what we’re most familiar with.”).

[137] See HUTT & MERRILL, supra note 24, at 39.

[138] See, e.g., Mariafranca Morselli, False and Misleading Statements Corrects with Scientific Information, NEW ENGLAND FARMER, May 1987, at 46.

[139] K.L. Baggett & M.F. Morselli, Detecting Phoney [sic] Maple Products, NEW ENGLAND FARMER, Oct. 1982, at 22 (“Economic incentives to adulterate maple syrup stem from rising fuel and labor costs involved in the collection and concentration of pure maple sap to syrup. These costs have driven the price of pure maple syrup higher, providing a better profit for illegal adulteration.”).

[140] Loureiro & McCluskey, supra note 5, at 309.

[141] See infra notes 149-63 and accompanying text.

[142] See Vermont v. Yanizyn, 120 Vt. 366, 141 A.2d 423 (Vt. 1958) (determining that defendant violated misbranding provisions by representing Grade C maple syrup as Grade A).

[143] In one extreme case, two Canadians sold 32 cans of motor oil “to people who thought they were buying maple syrup. ... [O]ne customer became sick after he ate some of the fake syrup and called police. ... Police [then] seized 351 maple syrup cans full of oil [and] arrested and charged [the pair] with public nuisance and three counts of fraud.” Used Motor Oil Sold as Syrup, TORONTO STAR, Apr. 22, 1989, at A3.

[144] See Sendak, Consumer Attitudes, supra note 56, at 104 (“Retail packaging has been a chronic problem in the maple industry partly because there are many thousands of producers packaging relatively small quantities of maple by almost as many methods as there are producers.”).

[145] Based on an inspection of their labels, none of the following products contain any maple ingredients whatsoever: Atkins Sugar Free Syrup, Aunt Jemima Butter Lite, Aunt Jemima Lite, Aunt Jemima Original Syrup, Cary’s Sugar Free Syrup, Golden Griddle Original Syrup, Log Cabin Country Kitchen Lite Reduced Calorie Syrup, Log Cabin Country Kitchen Original Syrup, Log Cabin Lite Reduced Calorie Syrup, Mrs. Butterworth’s Original Syrup, Mrs. Butterworth’s Reduced Calorie Syrup Lite, Safeway Butter Flavored Syrup, Safeway Old Fashioned Syrup, Safeway Original Syrup, Safeway Reduced Calorie Syrup Lite Butter, or Tropical Syrup “Original Recipe.”

[146] Sendak, Analysis, supra note 58, at 8.

[147] Pancake Syrups: How Far from the Tree?, CONSUMER REP., Jan. 1992, at 60.

[148] Dornbusch, supra note 135.

[149] The Right Stuff: Vermonter’s Taste Test Uncovers Scam Involving Fake Maple Syrup, ST. LOUIS POST-DISPATCH, Dec. 3, 1989, at 15D.

[150] Id.

[151] Id.

[152] Paula Kurtzweil, Sticking Public with Impure Products Puts Syrup Makers in Prison, 31 FDA CONSUMER 30 (1997).

[153] Id.

[154] Id.

[155] Id.

[156] Id.

[157] Id.

[158] 2001 U.S. App. LEXIS 16607 (2d Cir. July 18, 2001).

[159] Id. at *2.

[160] Id. at *3.

[161] Id. at *2-*3.

[162] Id. at *4.

[163] Id. at *5, *9.

[164] Baggett & Morselli, supra note 139.

[165] Joel Blum et al., Dartmouth College, A Class Project to Detect Fraud and Contamination in Maple Syrup Production, http://www.dartmouth.edu/~dreeder/syrup.html (1997) (citing J.B. Stuckel & N.H. Low, Maple Syrup Authenticity Analysis by Anion-Exchange Liquid Chromatography with Pulsed Amperometric Detection, 43 J. OF AGRIC. & FOOD CHEM. 3046-51 (1995)).

[166] Personal communication from customer service representative, Joseph’s Lite Cookies, to H. David Gold, Feb. 19, 2003.

[167] Center for Science in the Public Interest, Consumer Group Petitions FDA to Require “Diarrhea” Notice on Foods that Contain Sorbitol, http://www.cspinet.org/new/ sorbitol_pr.html (Sept. 27, 1999).

[168] Robert N. Wisner, University Professor & Extension Economist, Department of Economics, Iowa State University, Evolution of the Demand for Non-GMO Corn and Soybeans, at 2, http://www.extension.iastate.edu/Pages/grain/gmo/conf/sep15/ 99gmowis.PDF (Sept. 15, 1999).

[169] S. REP. NO. 56-1598, at 1 (1900).

[170] United States Trade-Mark Act of 1946, 60 Stat. 427, 15 U.S.C. §§ 1051-1127.

[171] 15 U.S.C. § 1121.

[172] See Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1185 (5^th Cir. 1980) (“In essence, the fair use defense prevents a trademark registrant from appropriating a descriptive term for its own use to the exclusion of others, who may be prevented thereby from accurately describing their own goods.”).

[173] Trademark Act of 1905, Sec. 5(b), 33 Stat. 725-26, cited in In re Nantucket, Inc., 677 F.2d 95, 99 (C.C.P.A. 1982).

[174] An authoritative treatise describes secondary meaning as follows: “Certain words, when used in their ordinary primary sense, cannot be exclusively appropriated by anyone. ... However, if a word of this type is used technically as a trademark or service mark and the word over a period of time becomes associated in the minds of the public with the particular user – that is, if it becomes distinctive and acquires a secondary meaning – the owner of the mark is usually in a position ... to prevent others from making a technical use of the word as a trademark or service mark.” R. NORDHAUS, PATENT, TRADEMARK AND COPYRIGHT INFRINGEMENT, § 54, at 102 (1971).

[175] ARTHUR R. MILLER & MICHAEL H. DAVIS, INTELLECTUAL PROPERTY: PATENTS, TRADEMARKS, AND COPYRIGHT 240-41 (2000) (citing 15 U.S.C.A. § 1127).

[176] See, e.g., Roxanne Clemens, Why Can’t Vidalia Onions Be Grown in Iowa?: Developing a Branded Agricultural Product, Midwest Agribusiness Trade Research & Information Center (MATRIC) Briefing Paper 02-MBP-3 2 (2002) (documenting a price premium for Vidalia onions over other types of yellow onions); Loureiro & McCluskey, supra note 5, at 309 (finding a price premium for “Galician Veal” over other fresh meat products).

[177] See Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786, 791 (5^th Cir. 1983).

[178] Id.

[179] Cullman Ventures, Inc. v. Columbian Art Works, Inc., 717 F. Supp. 96, 134 (S.D.N.Y. 1989) (citing Zatarains, 698 F.2d at 791).

[180] 15 U.S.C. §§ 1125(c)(1) (B), (C), (E).

[181] O.C.G.A. §§ 2-14-130 et seq.

[182] The Vidalia-Lyons/Toombs County Chamber of Commerce (Vidalia COC) applied for a federal certification mark for the term “Vidalia onions” in 1988. U.S. Patent & Trademark Office, Trademark Electronic Search System, Serial No. 73,752,838, http://tess2.uspto.gov/bin/ showfield?f=doc&state=go6iig.2.32 (last accessed Mar. 1, 2003). The Vidalia COC intended to certify the regional origin, quality, and sweetness of the onions sold with this mark. Id. Because the Vidalia COC failed to respond to a U.S. PTO office action, however, the trademark was abandoned in 1989. Id.

[183] Nolo, How Federal Trademark Registration Works, http://www.nolo.com/lawcenter/ency/ article.cfm/objectid/ABBA18E9-2430-462F-8FF2768441FDEAC4/catID/D8932879-DC34-43DF-BF65FC92D55FEE5D#47712408-D2F2-45D7-AC60CC8D7150F207 (2003).

[184] Id.

[185] Id.

[186] MERGES, MENELL & LEMLEY, supra note 18, at 641.

[187] Nolo, supra note 183.

[188] MERGES, MENELL & LEMLEY, supra note 18, at 577.

[189] Nolo, supra note 183.

[190] IDAHO CODE § 22-1207(13) (2002).

[191] Idaho Potato Commission, Terms and Conditions, http://www.idahopotatoes.com/Legal/ legal.shtml (last modified Dec. 30, 2002).

[192] Idaho Potato Comm’n v. M&M Produce Farms & Sales, 35 F. Supp. 2d 313, 318 (S.D.N.Y. 1999).

[193] Id.

[194] VT. STAT. ANN. tit. 6, § 486 (1999).

[195] Vermont Department of Agriculture, Food & Markets, Seal of Quality Application and User’s Agreement, http://www.state.vt.us/agric/soqapp1.doc (last accessed Apr. 18, 2002).

[196] Id.

[197] Personal communication from Steven F. Justis, Marketing Specialist, Vermont Department of Agriculture, Food & Markets, to H. David Gold, Jan. 22, 2003.

[198] Citadelle-Camp, Frequently Asked Questions: Why Do You See This Logo on the Label?, http://www.citadelle-camp.com/a_faq_auth1.html (last accessed Apr. 21, 2003).

[199] Id.

[200] U.S. Copyright Office, Search Copyright Records: Registrations and Documents, http://www.copyright.gov/records/cohm.html (last accessed Apr. 21, 2003).

[201] MERGES, MENELL & LEMLEY, supra note 18, at 654 (citing the Uruguay Round Agreements Act, Pub. L. No. 103-465 [H.R. 5110], Dec. 8, 1994); MARGARETH BARRETT, INTELLECTUAL PROPERTY – PATENTS, TRADEMARKS, & COPYRIGHTS 105 (2000).

[202] See generally Maher, supra note 69, 1910-22; see also Napa Valley Vintners Association, Napa Valley Vintners Association Votes to “Sunset” Misdescriptive Use of Geographic Brand Names, http://www.napavintners.com/news/sunsetvotegeobrand1999.htm (Nov. 4, 1999).

[203] Maher, supra note 69, at 1918-19 (internal citations omitted).

[204] Clemens, supra note 176, at executive summary.

[205] AMS, USDA, What Are Marketing Orders and How Do They Operate, http://www.ams.usda.gov/fv/moview.html (last accessed Mar. 10, 2003).

[206] KEN HAEDRICH, MAPLE SYRUP COOKBOOK 18 (2001).

[207] IFAS/University of Florida, Department of Entomology & Nematology, Reducing Risk Management through Co-ops, 18 APIS: APICULTURAL INFO. & ISSUES 3 (2000), http://www.ifas.ufl.edu/~mts/apishtm/apis.htm.

[208] AMS, USDA, Research and Promotion Programs, http://www.ams.usda.gov/fv/rpb.html (last accessed Mar. 10, 2003).

[209] Id.

[210] AMS, USDA, Honey Research, Promotion, and Consumer Information Order, http://www.ams.usda.gov/fv/rphoney.html (last accessed Mar. 10, 2003).

[211] A.W. McKay, Marketing Vermont Maple-Sap Products, Vermont Agricultural Experiment Station Bulletin 227, July 1922, at 24-25.

[212] In 1995, Senator Patrick Leahy of Vermont sponsored the Anticounterfeiting Consumer Protection Act (S. 1136) to “provide additional tools to combat trademark and good counterfeiting crimes.” Leahy, supra note 93.

[213] Transcript of comments by Bob Crawford, Executive Director, FDOC, to the media, July 9, 2002 [hereinafter Crawford].

[214] P&G, supra note 46.

[215] Personal communication from Casey W. Pace, Public Affairs Manager, Florida Citrus Mutual, to H. David Gold, Jan. 7, 2003 (identifying the controversy between FDOC and P&G).

[216] Crawford, supra note 213.

[217] Keck, supra note 46.

[218] Crawford, supra note 213.

[219] Homestat Farm, Ltd., History, http://www.homestatfarm.com/history.php (last accessed Apr. 20, 2003).

[220] VT. STAT. ANN. tit. 6, § 490(c) (1999).

[221] 21 U.S.C. §§ 343-1(a)(1)-(3) (2001).

[222] FDA Issues Standard of Identity for White Chocolate, FOOD INST. REP., Oct. 14, 2002, at 9.

[223] For a complete list of Codex standards, see Codex Alimentarius Commission, FAO/WHO Food Standards, Current Official Standards, http://www.codexalimentarius.net/standard_list.asp (last accessed Apr. 20, 2003).

[224] Codex Alimentarius Commission, International Individual Standard for Brie, CODEX STAN C-34 (1973), ftp://ftp.fao.org/codex/standard/en/CXS_C34e.pdf (last accessed Mar. 18, 2003).

[225] Codex Alimentarius Commission, Codex Standard for Canned Sardines and Sardine-Type Products, CODEX STAN 94 –1981 REV. 1-1995, ¶ 6.1.1(ii), ftp://ftp.fao.org/codex/standard/en/ CXS_094e.pdf (last accessed Apr. 18, 2003).

[226] Codex Alimentarius Commission, Standard for Mexican Limes, CODEX STAN 217 (1999), ftp://ftp.fao.org/codex/standard/en/CXS_217e.pdf (last accessed Mar. 18, 2003).

[227] See supra note 78 and accompanying text.

[228] Maine, Too, Seeks Exemption from Maple Syrup Laws, 2 FOOD LABELING NEWS, Aug. 4, 1994.

[229] See, e.g., Starlight Sugar, Inc. v. Soto, 253 F.3d 137 (1^st Cir. 2001) (holding that the commerce clause confers a right to engage in interstate trade free from restrictive state regulation).

[230] Ray A. Goldberg & Harold F. Hogan, Jr., Codex Alimentarius and Food Labeling, Harvard Business School Case Study N9-903-417, Oct. 28, 2002, at 3.

[231] Barry, Vigilant Vermont, supra note 43.

[232] Richard Mendelson, International Establishment and Defense of Appellations, PRACTICAL WINERY/VINEYARD, May/June 1998, at 39.

[233] Id.

[234] Id.

[235] Christopher J. Chipello, Looking for Syrup’s Snob Appeal, WALL ST. J., July 27, 2000, at B1.

[236] Id. (describing “flavor categories” for maple syrup, such as “spice,” “vegetal,” and “floral”). Similarly, wine critics have incorporated maple flavor into their lexicon. See, e.g., R.W. Apple, A Fine Roughness: On the Trail of a Spirit Called Marc, N.Y. TIMES, Sept. 19, 2001, at F1 (“I detected notes of ... maple syrup in the nose, and the flavor was sumptuous.”).

[237] Highland Sugarworks, Inc., Our Catalog of Products, http://www.highlandsugarworks.com/ catalog.html (last accessed Jan. 22, 2002).

[238] Agritourism Takes Root in Vermont, BOSTON GLOBE, May 22, 2000.

[239] Jim Chen, A Sober Second Look at Appellations of Origin: How the United States Will Crash France’s Wine and Cheese Party, 5 MINN. J. GLOBAL TRADE 29, 43 (1996).

[240] Lan Cao, Corporate and Product Identity in the Postnational Economy: Rethinking U.S. Trade Laws, 90 CAL. L. REV. 401, 468 (citing Committee on Rules of Origin, Report by the Chairman of the Committee on Rules of Origin to the General Council, Sept. 24, 2001, G/RO/48, No. 01-4526, at ¶ 3.3, available at http://docsonline.wto.org).

[241] Maher, supra note 69, at 1913.

[242] MERGES, MENELL & LEMLEY, supra note 18, at 653.

[243] Maher, supra note 69, at 1911.

[244] Id.

[245] Such a provision, which borrows language from 21 U.S.C. § 343, could be added to that same section of the FD&C Act. Of course, it need not be limited to Vermont maple syrup. The language could be broadened to cover all misdescriptive geographic marks.

[246] FDA, Cane and Maple Syrups, supra note 131.

[247] VT. STAT. ANN. tit. 6, § 492(a)(3) (2003).

[248] HUTT & MERRILL, supra note 24, at 118 (citing Common or Usual Names for Nonstandardized Foods, 38 Fed. Reg. 6964 (Mar. 14, 1973)).

[249] Id. at 124 (citing 21 U.S.C. § 343(i)).

[250] Maine, Too, supra note 228.

[251] Id.; 21 C.F.R. 168.180(d)(2).

[252] HUTT & MERRILL, supra note 24, at 125 (discussing a proposal to name a cheese substitute “Golana”).

[253] 21 C.F.R. § 168.180(c).

[254] 21 U.S.C. § 343(c).

[255] HUTT & MERRILL, supra note 24, at 151.

[256] Id. at 175 (citing FDA’s final food fortification policy in 45 Fed. Reg. 6314 (Jan. 25, 1980), codified in 21 C.F.R. § 104.20).

[257] By contrast, a “qualified” Vermont origin claim is one that specifies how the product is connected to this state—for instance, “made [that is, manufactured] in Vermont,” or “hand-knitted in Vermont.” See CF 120.01(k). To be lawful under the rule, qualified claims must be accurate, the qualifying language must be clear and conspicuous, and the components or processes that are the subject of the qualifying language must be substantial. See CF 120.04.