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"Kobe Beef," A USDA Prime Example of Deceptive Food Advertising

With increasing competition and a desire by consumers for higher quality and more healthful food items, incidents of deceptive product labeling are growing in number. Food suppliers employ various tactics in an effort to make their products stand out above all others as the "natural" or "healthy" choice, to not only catch the eye of the health conscience consumer, but also the contents of their wallets.

In recent years there are have been several lawsuits filed to combat this trend that range from the ridiculous; a lawsuit filed against General Mills because the Crunch Berries in Capt'n Crunch were not in fact real berries (Sugawara v. PepsiCo, Inc., No. 2:08-cv-01335, 2009 U.S. Dist. LEXIS 43127 (E.D. Cal. May 21, 2009)); to the disturbing; a lawsuit filed against the makers of Naked Juice for its claims that its Juices are "100% Juice," "100% Fruit," and "All Natural" when in fact the products contained unnatural items such as calcium pantothenate, which is synthetically produced from formaldehyde, Fructooligosaccharides and inulin. (Sara Sandys v. Naked Juice Company and PepsiCo, Inc., Case No. 11-cv-08007, (E.D. Cal. 2011))

While this type of deception has been running rampant in the grocery market, it is beginning to spread to our favorite restaurants. We've all seen the local café advertising their "World Famous Pie" or "Best Coffee," claims which are regarded as mere puffery and not deemed deceptive. Marketing or advertising crosses the line from puffery to deception when restaurateurs represent that their dishes possess qualities or characteristics that they cannot, or do not, have. A prime example of this deception is the use of the moniker "Kobe" to describe beef products.

Authentic Kobe Beef comes from the Tajima-gyu breed of cattle that is found only in the Hyogo Prefecture in Japan. This particular breed of cow exists nowhere else, and was specifically cut off from other breeds of cow in order to create a pure lineage. According to Japanese law, this particular breed of cattle may only be raised and slaughtered in the Hyogo Prefecture. Further, it must meet certain criteria in order to be packaged and sold as Kobe beef. The Tajima-gyu cattle must be born and raised in the Hyogo Prefecture, must feed only on the grains and grass within the Prefecture, and must be processed only in the Hyogo slaughterhouses. The cattle must meet certain standards regarding fat marbling ratio, meat quality scores, and gross weight for individual cows. After passing the standards, every cut of Kobe beef is assigned a 10-digit ID number so the consumer can trace the cut of beef back to the particular cow it was taken from in order to ensure the beef is authentic Kobe Beef.

With these stringent standards, authentic Kobe Beef has a reputation for excellence and high quality. Accordingly, restaurants across the United States now offer menu items that include the moniker Kobe Beef as part of its description. Consumers ordering Kobe Beef believe they are getting the highest quality beef when they order Kobe burgers, Kobe Carpaccio or any other Kobe Beef menu item offered in restaurants throughout the United States.

However, due to concerns of hoof and mouth disease from livestock originating in Japan, the United States Department of Agriculture prohibited the import of all Japanese beef from 2010 to August 2012 . Moreover, according to the Kobe Beef Marketing & Distribution Promotion Association, only a very limited quantity of a Kobe Beef has been distributed to select buyer(s) in the United States since the USDA lifted its ban on Japanese beef. Therefore, during that time period it would have been impossible for a restaurant to have included authentic Kobe Beef in its menu items. Even now, given the limited quantities available in the United States and the high quality of Kobe Beef, you can rest assured that the Kobe Burger you order from your local Fuddruckers for $9.99 does not utilize authentic Kobe Beef.

Perhaps sensing that the jig was up, several restaurants began to describe their beef menu items as "American Kobe" or "Kobe Style" beef. While this labeling is arguably less deceptive, consumers would still expect the beef to mimic the flavor and quality of Kobe beef, or at least come from the same breed of cow. This is not the case.

There are no cows in the United States with the same lineage as the Tajima-gyu cows that authentic Kobe beef comes from. Often beef labeled as "American Kobe" or "Kobe Style" comes from domestically raised Wagyu cattle crossbred with Angus cattle. Wagyu cattle is a term used for cows originating from any breed of Japanese cattle, excluding the elite Tajima-gyu breed of cattle. Although the crossbred cattle may be fed and treated similarly to the Tajima-gyu cattle, the particular feed found in the Hyogo Prefecture and the lineage of the Tajima-gyu cattle sets Kobe beef apart and creates marbling ratios and meat quality unlike that of any other cow. More importantly, there is no certifying authority or process for determining that any cut of beef available in the United States has the characteristics of and is of the same standard, quality or grade as Kobe Beef from Japan.

The next time you find yourself saying "Kobe Beef, it's what's for dinner," you may want to ask yourself, is it? If you or anyone you know have experienced this type of deceptive food advertising please contact Rose, Klein & Marias.

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