“Eww, that’s not food!” has exclaimed countless kids over the centuries, including my own recently. Like my kids and Calvin, the Food, Drug, and Cosmetic Act protects the American consumer from things that are simply unfit for food.

Under this provision, a food can be unlawful if it is too rubbery, woody, hard, or the like. To determine if a food is unfit, the court considers if it is “inedible for the average person under ordinary conditions.” Millet, Pit & Seed Co., Inc. v. United States, 436 F. Supp. 84 (E.D. Tenn. 1977). This average person standard is rather boring compared to two other possible standards:

1. The fussy, fastidious, finicky individual, or
2. The hardened individual who brags he can eat anything.

United States v. 24 Cases of Herring Roe, 87 F. Supp. 826 (D. Maine 1949).

Speaking of eating, this is one of the few legal issues that requires participation from the finder of fact – namely, attempt to eat the food in question. In one case, the court denied a motion of summary judgement with saying: “A bench trial will be held to resolve the remaining issue of the fitness of the olives. At which time a taste test will be conducted.” United States v. 71 55 Drums of Stuff Green Olives, 790 F. Supp. 1379 (D. ND Illinois 1992).

In another instance, Judge McColloch who was more of a meat eater, but for justice’s sake he ate canned asparagus to determine if it was too woody to be food. It took him three days, but he ate the asparagus. While he concluded that it was a chore, the asparagus was fit for food. United States v. 298 Cases of Ski Slide Brand Asparagus, 88 F. Supp. 450 (D. Oregon 1949).

So next time you think a food is gross, really gross just declare that you refuse to eat adulterated food, which sounds so much more sophisticated than saying it is gross.