The Taste of Justice: Food and the Law

Once you’ve argued with a family member, housemate or your partner over missing food that you bought and labelled with your name, it’s very unremarkable that food has been the subject of many a legal dispute. Who can forget the snail in the ginger beer bottle in Donoghue v Stevenson? Or Justice Kirby asking counsel if they had brought samples of Pauls and Peters ice creams in Roach v Electoral Commissioner? Or even, as recently as 2005, that leaked email exchange between two Allens’ (then Allens Arthur Robinson) secretaries over the elusive ham sandwich, which quickly spiralled into jabs at relationships, cars and salaries? Let’s take a look at some cases which marry our two loves of food and law.

Drop the Maccas coffee like it’s hot

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In 1992, Stella Liebeck, a 79-year-old woman from Albuquerque, New Mexico, suffered third-degree burns caused by spilling hot coffee in her lap after purchasing it at a McDonald’s drive-thru. A quality assurance manager at McDonald’s said that the coffee pot was kept at 185°F (85°C) and that the coffee would burn the mouth and throat if consumed at this temperature. An expert on thermodynamics and skin burns also testified that liquids at 180°F (82°C) would cause a full-thickness burn to human skin. In the end, the New Mexico District Court awarded Liebeck compensatory and punitive damages.

KitKat misses the (trade)mark

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In the middle of 2018, Nestle, the maker of KitKat, sued Mondelez, the maker of ‘Kvikk Lunsj’, a Norwegian chocolate bar with four fingers just like a KitKat. It tried to trademark its four-finger shape in the European Union. It initially succeeded in 2006, but had its trademark revoked a decade later on the basis that, while consumers in many EU countries recognised the four-fingered shape was distinctively KitKat, this was not the case in Belgium, Ireland, Greece and Portugal. Nestle has sought to appeal the decision. Read more here.

A Mexican standoff in Bondi

The facts of Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 were that Taco Company of Australia had operated a Mexican restaurant in Bondi called “Taco Bell Casa”. In the late 1970s, the American food chain, Taco Bell, came to Australia and sued Taco Company for misleading and deceptive conduct under s 52 of the Trade Practices Act (the modern equivalent being s 18 of the Australian Consumer Law). The Federal Court ultimately determined that the Australian company had established its reputation first, and that the American Taco Bell was liable for misleading consumers.

Let them eat cake (?)

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The issue in Lees of Scotland Ltd & Thomas Tunnock Ltd v HMRC [2014] UKFTT 630 (TC) was whether Snowballs, a “soft fluffy mallow with a chocolate coating [,] sprinkled with the finest flakes of coconut to create a delicious sweet treat”, were properly characterised as “cakes”, which are declared VAT (value-added tax) exempt by HMRC (Her Majesty’s Revenue & Customs).

Justices Scott and Sheppard of the First-Tier Tax Tribunal were presented with Jaffa Cakes, Bakewell tarts, tea cakes, Lees Snowballs, Waitrose meringues and mini jam snow cakes - the perfect recipe for an amusing judgment. Judge Scott described Snowballs as “very fragile” and “very sweet”, musing that “most people would want to enjoy a beverage of some sort whilst consuming a Snowball”. Akin to cakes, most people would eat a Snowball “with a plate, a napkin or a piece of paper” so that coconut flakes don’t fly off and make a mess. Given its mallow core is similar to that of tea cakes, and it is to be “savoured, but not whilst walking around … in the street”, their Honours decided the Snowball was a cake and therefore VAT exempt.

Tort claimant has chip on her shoulder

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You may recognise the case of Strong v Woolworths Ltd [2012] HCA 5 if you’ve studied torts. The claimant, Ms Strong, was an amputee who walked with the aid of crutches. Her right crutch came into contact with a greasy chip lying on the floor of the sidewalk sales area in Woolies. She fell heavily and suffered serious spinal injury. The High Court ultimately found Woolies negligent in failing to remove the potato chip from the floor: to discharge its duty of care, Woolies was required to inspect and remove slipping hazards at intervals no greater than 20 minutes in the sidewalk area.

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