Christmas and egg nog go together like, well, Christmas and egg nog. It’s a tasty drink with a few recipe variations. But this isn’t a holiday recipe blog, it’s a legal blog! So I thought I’d share an interesting older (1949) decision I came across.
The case is People v Queens Farms Dairy, 90 N.Y.S.2d 817, 819, (N.Y.Mag.Ct., July 18, 1949), a prosecution brought under the Sanitary Code of the City of New York against a corporation charged with “having, selling or offering for sale a food deemed adulterated in that it was ‘colored … or … made to appear better than it really is’.”
The food in question was labelled as egg nog which was found to contain a dye called tartrazine, which is “yellow in color and non-nutrtive” and “part of a rum flavor … which when mixed with milk, cream, eggs and other ingredients forms the product ‘egg nog’ [which] concededly appears more ‘yellow’ in color as a result of the ingredient tartrazine.”
The statute in question provided:
‘Food; sale of adulterated or misbranded prohibited; the terms ‘food’, ‘adulterated’, and ‘misbranded’ defined.
‘No person shall have, sell, or offer for sale in the city of New York any food which is adulterated or misbranded. The term food as herein used shall include every article of food and every beverage used by man and all confectionery.
‘Food as herein defined shall be deemed adulterated * * *
‘(5) If it is colored or coated or polished or powdered, whereby damage is concealed or it is made to appear better than it really is.’
The court framed the relevant issue as follows: “Do people purchasing egg nog presume that the coloring emanates from the eggs therein?”
The court explained why the answer to this question was “yes”:
Eggs are nutritive and universally recognized as excellent food. Egg yolks are characteristically yellow and none of the other ingredients of egg nog are. Msot of them are white or colorless. What else may a purchaser presume when he buys *513 egg nog yellow in color, but that it is richer in eggs than egg nog not so yellow. The name of the product is well known for many years. It includes the word ‘egg’ in its description. It would be misleading and capricious for a purchaser to assume that the yellow coloring in egg nog came from a dye or coloring matter not a normal ingredient nor a labelled color added. The question therefore must be answered in the affirmative.
In sum, the court concluded that “the defendant corporation herein could have determined whether tartrazine was an ingredient of the rum flavoring it used” and that “[a]s against innocent purchasers in good faith it had a duty to discover for the protection of the public so that its product would not be ‘colored … whereby … it is made to appear better than it really is.’”
In any event, my conclusion is that egg nog is delicious.