Brooklyn Law Review


The law recognizes a right to legal redress for exposure to food that is tainted in the sense of being toxic or poisonous, but what about exposure to food products individuals find socially, morally, or religiously repugnant? Jews eating “kosher” hot dogs containing standard non-kosher meats. Vegetarians fed beef. Muslims ingesting vitamins containing pork. Aren’t these food products also “tainted”? Despite the fact that the American legal system has long recognized the need to protect individual dignitary rights, the law provides little meaningful redress in these situations or other instances of offensive food taint. So why has food autonomy, an intuitive manifestation of personal dignity and central expression of individual identity, fallen outside of what the law recognizes as harm? Ultimately, is this a situation where facially neutral law is tainted by embedded food assumptions to the disadvantage minority groups, minority political views, and minority faiths?

This article defines the problem of failing to recognize such offensive food taint, outlines the current state of the law regarding such taint, and then lays out some potential solutions for providing redress moving forward. Part I begins by discussing why food is different from other products and how food is more than nutrition and is also a manifestation of identity—religion providing the most stark and obvious example. Part II then goes on to discuss the current state of the law and systematically exposes how such harms are not finding redress under existing law. Finally, the article closes with a discussion of how the law can better address these issues and concludes that common law battery may provide an immediate answer. These claims are ultimately founded on valuing the right of a person to his or her own physical autonomy. This article argues that food law must resist the temptation to taint that value, even through oversight, with a blind commitment to food safety and majority food culture.