*Shekinah Tony-Oyeleye
I. Introduction
A recent Ohio Supreme Court decision threatens to upend the landscape of food liability law.[1] The court’s ruling, that a restaurant was not negligent for serving a bone in a “boneless” chicken wing, highlights the tension between consumer expectations and the realities of food preparation and service.[2] The ruling raises crucial questions about the future of food liability law and its implications for both consumers and the food industry. Should consumers bear the burden of anticipating potential hazards in their food, even when product labeling suggests otherwise? Or should food producers be held to a higher standard of care, particularly in an era of increased food processing and marketing?[3]
II. Background
The legal landscape of food liability consists of two competing tests: the “foreign-natural” and the “reasonable expectation” tests.[4] The original test, the foreign-natural test, distinguishes between substances consumers naturally expect within the food item and substances consumers do not typically associate with the food.[5] Under the foreign-natural approach, if a court determines that the challenged substance is an inherent part of the food, the seller is generally not liable for injuries the substance may cause.[6] Conversely, if a court identifies the substance as foreign to the food item, the seller may be liable for resulting injuries.[7]
As consumer demand for processed foods increased, consumers’ reliance on manufacturer and restaurant preparation standards increased in tandem.[8] As a result, the line between “natural” and “foreign” substances continued to blur, and courts began to recognize the limitations of the foreign-natural test.[9]
The blurring distinction led to the development of the reasonable expectation test, where courts ask what a reasonable consumer would expect to find in their food, rather than considering whether the substance should be naturally expected in the food product.[10] Despite this evolution, the ghost of the foreign-natural test continues to haunt food liability law. Some jurisdictions struggle to fully abandon the seemingly objective clarity offered by the foreign-natural test, leading to hybrid approaches that attempt to balance the benefits of both tests.[11] The tension between the two analyses came to a head in Berkheimer v. REKM, L.L.C.
III. The Berkheimer Decision
In Berkheimer, Michael Berkheimer suffered a severe injury while eating a “boneless” chicken wing at a restaurant when he swallowed a bone from the wing.[12] “[T]he bone tore [Berkheimer’s] esophagus, causing a bacterial infection in his thoracic cavity[,]” leading him to sue the restaurant, the restaurant’s supplier, and the originating chicken farm.[13] The state trial court granted summary judgment for the defendants, ruling that bone fragments are reasonably expected even in “boneless” dishes.[14] The appellate court affirmed the lower court’s judgment, and Mr. Berkheimer appealed to the Ohio Supreme Court.[15]
Writing for the court’s majority, Justice Deters reaffirmed the rule posited by the court in Allen, that no breach of duty occurs when a consumer could have reasonably expected and guarded against the presence of the injurious substance in the food.[16] The court’s reasoning rested on three key points: chicken bone is not a foreign substance even in “boneless wings”;[17] the bone at issue was large enough that Mr. Berkheimer could have reasonably guarded against it;[18] and the term “boneless” on a menu describes a cooking style rather than a guarantee of the complete absence of bones.[19]
Justice Donnelly’s dissent cuts to the heart of the ongoing tension between the foreign-natural and reasonable expectation tests. In his view, the majority’s decision effectively “adopts the foreign-natural test as the factor rather than a factor in determining what amounts to a reasonable expectation.”[20] He expressed concern that the majority’s decision burdens the consumer with the responsibility of ensuring food products are as advertised,[21] setting a problematic precedent for future food safety cases.[22]
As the case was decided based on Ohio state law, Mr. Berkheimer has no further avenue for appeal, including to the U.S. Supreme Court.[23] Berkheimer’s finality underscores its potential impact on food liability law in Ohio and as persuasive authority in other jurisdictions.
IV. The Far-Reaching Consequences of Berkheimer
The court’s interpretation of “boneless” as a description of a cooking style, rather than a guarantee of an absence of bones, raises serious questions about consumer reliance on food labeling and marketing. Not only does the court effectively circumvent federal misbranding law,[24] it fails to consider the “culturally defined, widely shared standards . . . . of what consumers have a right to expect in various commercial food preparations.”[25] By emphasizing the consumer’s responsibility to guard against natural substances in food, even when labeled as free from those substances, the Berkheimer court arbitrarily raises the bar for plaintiffs in food injury cases. This shift in liability could have particularly significant implications for individuals with allergies or other dietary restrictions who rely heavily on accurate food labeling.[26]
Perhaps most concerning is the potential erosion of quality control standards in food preparation. With this new legal precedent, food manufacturers and restaurants may feel less pressure to ensure precise labeling, knowing that courts might interpret such labels as mere suggestions rather than guarantees.[27] The Berkheimer decision offers a new precedent that could lead to a breakdown in trust between consumers and food providers, potentially altering consumer behavior and consumer-provider market dynamics.[28]
The ruling also undermines the effectiveness and authority of regulatory bodies like the Food and Drug Administration (FDA). If courts are willing to interpret labels in ways that diverge from common understanding, the purpose of such regulatory agencies is significantly diminished.[29] The potential weakening of regulatory oversight could have far-reaching consequences for more than just food safety.[30] The court’s reasoning places greater emphasis on consumer responsibility over manufacturer accountability[31] and, if extended to other product liability cases, could weaken consumer protections across various industries.
V. Conclusion
While Berkheimer raises troubling potential implications, the decision offers an opportunity for a comprehensive reassessment of food liability standards. As consumer reliance on prepared and processed foods continues to grow,[32] our legal framework must evolve to provide appropriate protections for consumers while also recognizing practical realities of food production. If consumers cannot reasonably expect their food products to be exactly as advertised,[33] then product liability laws fail to achieve their purpose to protect consumers from harm caused by defective or mislabeled products.[34] Courts should scrutinize the Berkheimer decision’s apparent shift towards a more producer-friendly interpretation of liability with care and, where appropriate in future cases, challenge its rationale.
*Shekinah Tony-Oyeleye is a second-year law student at the University of Baltimore School of Law, where he serves as a staff editor for Law Review and is a member of the Royal Graham Shannonhouse III Honor Society. This dedication to legal scholarship is complemented by practical experience, as demonstrated by a summer 2024 internship at A.Y. Gross Law L.L.C., a respected law firm in Pikesville, MD. During the internship, Shekinah gained valuable experience in criminal defense. Looking ahead, Shekinah aims to continue excelling academically while exploring different areas of law, leveraging both academic prowess and growing professional experience to make a meaningful impact in the legal field.
[1] Berkheimer v. REKM, L.L.C., No. 2023-0293, 2024 WL 3528175 (Ohio July 25, 2024).
[2] Lisa Lupo, The Food Safety Battle, Quality Assurance & Food Safety (Feb. 12, 2015), https://www.qualityassurancemag.com/article/qa0215-consumers-food-safety-responsibilities/.
[3] See Cecilia Nowell, Flamin’ hot addictions: why is America so hooked on ultra-processed foods?, The Guardian (June 23, 2023, 06:05 AM), https://www.theguardian.com/environment/2023/jun/23/processed-foods-american-addiction (“[U]ltra-processed foods make up 73% of the US food supply . . . . the average adult in the US gets more than 60% of their daily calories from ultra-processed foods.”).
[4] Stacy L. Mojica, Breach of Implied Warranty: Has the Foreign/natural Test Lost Its Bite?, 20 Mem. St. U. L. Rev. 377, 378 (1990). The foreign-natural test is considered to have been developed by the Supreme Court of California in 1936, while the reasonable expectation test is alluded to a 1941 opinion by the Iowa Supreme Court. See id. at 395, 399.
[5] Mix v. Ingersoll Candy Co., 59 P.2d 144, 147–48 (Cal. 1936), overruled by Mexicali Rose v. Superior Ct., 822 P.2d 1292 (Cal. 1992).
[6] Id. at 148.
[7] Id.
[8] Mojica, supra note 4, at 407 n.197 (1990).
[9] See, e.g.,Betehia v. Cape Cod Corp., 103 N.W.2d 64, 66–67 (Wis. 1960); Mexicali Rose, 822 P.2d at 1303 (rejecting the foreign-natural test as the “exclusive test for determining liability when a substance natural to food injures a restaurant patron”).
[10] Betehia, 103 N.W.2d at 69.
[11] See, e.g., Allen v. Grafton, 164 N.E.2d 167, 174 (Ohio 1960) (noting that whether the substance that may cause harm is natural to the food is important in determining the consumer’s reasonable expectation).
[12] Berkheimer v. REKM, L.L.C., No. 2023-0293, 2024 WL 3528175, at *1 (Ohio July 25, 2024).
[13] Id.
[14] Id. at *2.
[15] Id.
[16] Id. at *4.
[17] Id.
[18] Id.
[19] Id. at *5.
[20] Id. at *7.
[21] Id. at *8–9.
[22] See infra Part IV.
[23] See 28 U.S.C. § 1257(a).
[24] See 21 U.S.C. § 343(a)(1) (2018) (providing that food is misbranded if its “labeling is false or misleading”).
[25] Restatement (Third) of Torts: Prod. Liab. § 7 cmt. b (1998).
[26] Berkheimer, 2024 WL 3528175, at *9 (Donnelly, J., dissenting) (“[I]t is not a stretch to believe that this court would consider a person who was served lactose after they ordered a food labeled ‘lactose free,’ or a person who was served gluten after they ordered a food labeled ‘gluten free,’ or a person who was served nuts after they ordered a food labeled ‘nut free,’ to be without a remedy.”).
[27] Id. at *5 (“The food item’s label on the menu described a cooking style; it was not a guarantee.”).
[28] See generally, Jodie Shaw, From Fear to Opportunity: How Marketers can Capitalize on Consumer Behavior Shifts during Uncertain Times, Medium (May 26, 2023), https://medium.com/@jodiemshaw/from-fear-to-opportunity-how-marketers-can-capitalize-on-consumer-behavior-shifts-during-uncertain-28c23e2d7c94 (“Uncertainty can disrupt established buying patterns . . . . [a]s the stability of the familiar is shaken . . . .”).
[29] See, e.g., What We Do, U.S. Food & Drug Administration, https://www.fda.gov/about-fda/what-we-do (last updated Nov. 21, 2023) (affirming the Food and Drug administration’s responsibility to “protect[] the public health . . . by ensuring the safety of our nation’s food supply . . . .”).
[30] Cf. BP and Other Companies Exploited a Regulatory Agency to Continue Negligent Offshore Drilling, Union of Concerned Scientists (Oct. 12, 2017), https://www.ucsusa.org/resources/bp-and-other-companies-exploited-regulatory-agency-continue-negligent-offshore-drilling (arguing that the Deepwater Horizon disaster resulted from weak regulatory oversight).
[31] Berkheimer, 2024 WL 3528175, at *4–5 (explaining that given the size of the bone he ingested, Berkheimer “reasonably could have guarded against it[,]” because “a supplier of food is not its insurer.”).
[32] See Jennifer Kingson, Restaurants are having their biggest year ever, Axios (Jun. 5, 2024), https://www.axios.com/2024/06/05/restaurants-tipping-dining-food.
[33] See supra note 19 and accompanying text.
[34] The Purpose of Product Liability laws, LawTeacher (June 25, 2019), https://www.lawteacher.net/free-law-essays/commercial-law/the-purpose-of-product-liability-laws-commercial-law-essay.php#.
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