Under California Health and Safety Code Section 114087 HS, it is unlawful for restaurants, stores, and other commercial food providers to misrepresent or mislead consumers through the labeling and presentation of food products. Doing so is a misdemeanor punishable by up to 6 months in jail and fines of up to $1000.00.
The language of the code section reads that:
114087. (a) Food offered for human consumption shall be honestly presented in a way that does not mislead or misinform the consumer. (b) Food or color additives, colored overwraps, lights or other misleading artificial means shall not be used to misrepresent the true appearance, color, or quality of a food. 1
Owners or operators of restaurants or stores that sell mislabeled food can face criminal penalties for violating this law.2
California’s “mislabeling of food” law is sometimes referred to as an “honest presentation of food” law or a “truth in menu” law. Like laws against behaviors like mortgage fraud and counterfeit goods, California’s “honest presentation of food” law uses criminal penalties to advance the goal of protecting consumers.
Mislabeling food can be a misdemeanor in California under HS 114087.
Mislabeling under California’s “truth in menu” laws
The legal definition of the crime of mislabeling of food is:
- A retail establishment presenting food for human consumption;
- In a way that misleads or misinforms the consumer;3 and
- Acting either intentionally or with criminal negligence.4
Example: Toshi owns a sushi restaurant. His restaurant has a menu item it calls a “lobster roll.” In reality, this item contains no lobster and is made of cheaper seafood such as crawfish. Toshi knows that this is the case.
Toshi is guilty of food mislabeling under California law for presenting the roll in a way that misinforms his customers.5
Example: Marta is the manager of a café that offers gluten-free (in addition to regular) muffins.
One day one of the employees gets confused and puts the gluten-free muffins where the regular muffins should be and vice-versa. So for an entire day, customers ordering gluten-free muffins are actually given regular ones.
The café’s customers were misinformed. But because neither Marta nor her employee knew about the mix-up, and neither acted with criminal negligence, they are not guilty of a crime under Health & Safety Code 114087. A customer with a gluten intolerance who eats a regular muffin and gets sick, however, may be able to file a lawsuit under California food poisoning laws.
HS 114087 also prohibits the use of food or color additives, colored overwraps, lights or other misleading artificial means to misrepresent the true appearance, color or quality of a food.6
Example: Scott is the manager of the meat department at a grocery store. He regularly adds carbon monoxide to the raw beef in the display case to make it appear redder—and hence fresher—than it actually is.
Scott has violated California’s “truth in menu” law.
According to Pomona criminal defense attorney Neil Shouse7:
“Police departments usually have more pressing things to do than figure out whether stores and restaurants are mislabeling food items. But that doesn’t mean that investigators are not enforcing criminal truth-in-menu laws. Typically a city attorney’s office carries out these investigations as part of its ‘consumer protection’ mission. Some cities—like San Diego and Santa Monica—have whole consumer protection units dedicated to things like honest presentation of food laws.”
Under California Law, mislabeling of food is a misdemeanor and can result in jail time.
Penalties
Health & Safety Code 114395 HS spells out penalties for violating California’s “honest presentation of food” law.8
Mislabeling of food is a misdemeanor in California law. The potential penalties are:
- Misdemeanor (summary) probation;
- Up to six (6) months in county jail; and/or
- A fine of at least twenty-five dollars ($25) and up to one thousand dollars ($1,000).9
Legal defenses
One of the most common legal defenses against criminal charges for mislabeling food is the legal defense of accident.
As we discussed above, you cannot be guilty of HS 114087—or any California crime—unless you act with criminal intent or out of criminal negligence (which is something more extreme than ordinary negligence).
So if you—or your employees—misrepresent the nature of the food you are selling on accident, you are not guilty of a crime. And in most food mislabeling cases our California criminal defense attorneys have seen, the defendants in fact are being wrongfully blamed for an innocent mistake.
Legal References:
1 Health & Safety Code 114087 HS – Honest presentation of food [mislabeling of food].
2 Health & Safety Code 114395 HS – Penalty for violations of this part or regulations adopted pursuant to it. (“Except as otherwise provided in this part, any person who violates any provision of this part or regulation adopted pursuant to this part is guilty of a misdemeanor. Each offense shall be punished by a fine of not less than twenty-five dollars ($25) or more than one thousand dollars ($1,000) or by imprisonment in the county jail for a term not exceeding six months, or by both fine and imprisonment.”)
3 Health & Safety Code 114087 HS, endnote 1 above.
4 Penal Code 26 PC – Persons capable of committing crime; exceptions. (“All persons are capable of committing crimes [including the crime of food mislabeling] except those belonging to the following classes…Five–Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence…”)
5 Based on a food mislabeling case described in “Lobster rolls at eight San Diego sushi restaurants lacked a key ingredient: lobster,” Los Angeles Times , Dec. 8, 2015.
6 Health & Safety Code 114087 HS – Honest presentation of food, endnote 1 above.
7 Pomona criminal defense attorney Neil Shouse is the Managing Attorney of Shouse Law Group. He is a former Los Angeles County Deputy District Attorney, where he worked on complex, high-profile cases. Now, Shouse has turned the inside knowledge he gained as a prosecutor into extraordinary expertise in criminal defense law, including relatively obscure crimes such as mislabeling of food.
8 Health & Safety Code 114395 HS – Penalty for violations of this part or regulations adopted pursuant to it, endnote 2 above.
9 Same.