Warning: This Post Contains Bugs

Let’s say a major food company starts to use grasshopper abdomens, which they euphemistically call “melanoplus core,” as a key ingredient in cookies.  Would the law come to require a warning?  The scenario is not so far fetched.  As the most recent New Yorker and Atlantic Monthly both observe, bugs are a very cheap and efficient source of nutrients.  And they are growing in culinary popularity.

So, should the food-maker warn?  Clearly this will turn on the purpose of notice in this context.  One theory says it’s about objective harm to the consumer.  You’re taking on serious legal risk by not warning consumers that your product contains something to which many people are allergic or that might be harmful to women who are pregnant.  But what about totally harmless bugs?  Bugs that are healthier than whatever highly processed ingredient they are substituting for.  What then?

Objective harm to consumers is underinclusive; it leaves out subjective harm.1  Setting aside for a moment the famous duty to warn potential buyers that your house is haunted, if it turned out that the ice cream ingredient carrageenan were made of people (it’s people!2) then the company really ought to let us know.

A second theory says people should know something if the answer would surprise them to the point that they change their behavior.  This is essentially what makes a change to a privacy policy “material.”

But this definition is overinclusive.  Imagine you could see bacteria.  You might never touch anything.  You definitely would not take public transportation.  Or imagine that there were warnings about bacteria on every surface that contained it. Most bacteria is not harmful to anyone with an immune system.  But knowing about it might be paralyzing.

It turns out we do use bugs in food, by the way.  The red food dyes cochineal and carmine are made from crushed insects from South and Central America.  There is no duty to flag this for consumers.  I think that’s the right result.  The alternative is to second-guess every innovative act of gastronomy.

There are limits.  I am great with requiring the recall of formula containing too many beetles because, it turns out, beetles give babies a stomach ache.  And I’d be good with slapping a warning on bee venom pie.  Grasshopper abdomens?  You tell me.

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[1] Consumers may also want to know about harm not just to themselves, but to others.  Think “made in America” or “conflict-free diamonds.”

[2] It’s seaweed.

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8 Responses

  1. PrometheeFeu says:

    I don’t think the bacteria example is a good application of the theory you are describing. We all understand (or at least have ample opportunity to know) that there are bacteria everywhere. We would not be “surprised” to the point of changing our behavior. We would be disgusted by bringing to the fore of our mind a fact we would rather not think about too much. So a warning would not be appropriate for bacteria.

    I suppose I am implicitly adding another factor to the test: The information is not widely known/available. Though I suppose if the information is already widely known/available, you can no longer say that consumers would have acted differently had they known.

    So would grasshopper abdomens require a label? Yes at first. When we purchase food, we don’t expect grasshopper abdomens in it and might change our decision based upon knowledge of that fact. However, if grasshopper abdomens became a common feature of food items, that labeling requirement would disappear over time as it would become an expected ingredient same as sugar, salt, beef or soy.

  2. Shag from Brookline says:

    How should vegans react to this?

  3. PrometheeFeu says:

    @Shag from Brookline:

    Well, products are assumed to not be vegan by default. So they had better look for products that advertise themselves as vegan.

  4. Ryan Calo says:

    @PrometheeFeu:

    Thanks for your note. Maybe that’s the answer: bugs get time-limited warnings.

    @Shag from Brookline:

    Vegans have a special diet that, I would imagine, leads them to have to look more closely at ingredients. Perhaps they would be the ones to catch our food-maker’s euphemism for grasshopper abdomen.

  5. Nathan Cortez says:

    There’s a whole layer of FDA regulation that applies here.

    FDA sets “defect action levels” that define precisely how many bugs and other nasty ingredients manufacturers can have in food before the agency considers it to be adulterated. These action levels aren’t legally binding, but it’s interesting that the action levels don’t correspond to unsafe levels of rodent hairs, or excreta, or other appetizing things. The theory is that some amounts of these substances is unavoidable in the manufacturing process, but higher amounts would probably offend consumers.

    More relevant to your hypo, the FDA could bring a misbranding action if a company failed to reveal that its product contained something shockingly gross, because the statute allows FDA to go after omissions of material information.

    As a final note, FDA regs on these questions *might* preempt state consumer claims.

  6. Lemming of the BDA says:

    I’m surprised that this post didn’t use dead frogs or lark’s vomit as examples.

  7. Ryan Calo says:

    @Nathan – Thanks! That is fascinating. I wonder why they have not pursued anyone over carmine.

    @Lemming – Sorry to disappoint…

  8. Jim Maloney says:

    Building upon footnote 1 (“Consumers may also want to know…”) and Ryan Calo’s input about vegans, consumers may also want to know not just about potential physical harm to themselves from certain ingredients, but also about ingredients that they may wish to avoid because of their belief systems. Kashrut is one example. Interestingly, while most invertebrates are trayf, certain grasshoppers and locusts are actually kosher (which, in turn, is “food” for an interesting side discussion about rationales underlying rulemaking. If locusts eat all your crops, you ought not be prohibited from eating the locusts!)

    And then there’s the story of the copepods in the drinking water…