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April 05, 2014

Hebrew National Lawsuit Remanded To State Court On Appeal

Hebrew-National-logo-2Friday, the 8th Circuit Court of Appeals basically ruled that the plaintiffs had no standing to sue in federal court because they had no proof of damage. It ruled that the lower federal court was wrong to toss the suit on First Amendment grounds because when other issues nullifying a suit exist, the court should not rule on what could be novel constitutional issues but should instead use the more mundane problems with the suit to toss it. It also held that dismissing the suit with prejudice, as the lower court had done, was wrong because such cases should be sent back to state court.

Hebrew-National-logo-2

Friday, the 8th Circuit Court of Appeals basically ruled that the plaintiffs had no standing to sue in federal court because they had no proof of damage. It ruled that the lower federal court was wrong to toss the suit on First Amendment grounds because when other issues nullifying a suit exist, the court should not rule on what could be novel constitutional issues but should instead use the more mundane problems with the suit to toss it. It also held that dismissing the suit with prejudice, as the lower court had done, was wrong because such cases should be sent back to state court.

In other words, the suit is, as I wrote many times before, poorly drawn and basically foolish.

The bar set by the appeals court for the plaintiffs to meet is very high, and in the off chance that the Minnesota state court would rule for them, an appeal of that ruling – either to a higher Minnesota court or to the US Supreme Court – would almost certainly be decided in Hebrew National's (Con Agra's) favor.

But I don't think the suit will ever get that far because the witnesses for plaintiff's will not stand up in court.

When you buy a kosher product, you are relying on the rabbi(s) who certify it and are accepting their definition of kosher. Period.

The one interesting part of the appeals ruling is that it might leave an opening to go after the inflated claims of purity and healthfulness used by Hebrew national and other companies, and pushed by kosher industry marketing executives like Menachem Lubinsky.

Kosher food is no purer, no healthier and no more humane than non-kosher food.

In the same way, kosher-pareve food should not be marketed as dairy free unless the food producer itself guarantees it.

Why?

Because the laws of kosher food allow small amounts of non-kosher food (or dairy food or meat food or residue of such food) to be negated by a much larger amount of kosher food. (An ounce of milk that falls into a pot of 60 ounces or more of liquid pareve food, for example, does not change the pareve status of the food.)

Few consumers of kosher food are aware of these laws, and that's fine – as long as manufacturers and marketers don't use kosher supervision to market their product as dairy free.

If anything, that is the direction the lawsuit will eventually lead.

Here is the entire appellate court decision as a PDF file:

Download Hebrew-National-4.4.14-8th-Circuit-appeal-ruling-4-2014

[Hat Tip: American Jewish World.]

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If I am reading this correctly, they've thrown it back to the lower court with instructions to dismiss it properly this time?

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