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Mislabeling Food - Health and Safety Code 114087 HS

Posted by Dmitry Gorin | Nov 29, 2023

The State of California sets a high bar of honesty for restaurants and stores that sell food to consumers so that people can make informed choices about what they eat.

Violating the consumer's trust is considered a criminal offense. Under Health & Safety Code 114087 HS, it's against the law for restaurants, stores, and other commercial food providers to misinform or mislead customers in the labeling and presentation of food. 

Mislabeling Food in California - Health and Safety Code 114087 HS
HS 114087 makes it a misdemeanor crime to knowingly mislabel food in California.

This is colloquially known as the "truth in menu law" since it primarily affects restaurants and similar establishments. Owners or operators of restaurants or stores selling mislabeled food could face criminal penalties for violating this law.

California's “mislabeling of food” statute is often called the honest presentation of food law and uses the threat of criminal penalties to protect consumers.

Mislabeling of food occurs when a retail establishment presents food for human consumption in a way that misleads or misinforms the consumer, and the act was either intentional or with criminal negligence.

HS 114087 also prohibits using food or color additives, colored overwraps, or other misleading means to misrepresent the actual appearance, color, or quality of food.

Notably, however, targeting stores and restaurants for mislabeling food is not high on a police department's list of priorities. Still, there are investigations by the city attorney's office to protect consumers. Some cities even have consumer protection units to investigate the laws on honest food presentation.

If you are charged with a crime under this law and convicted, you could face fines of up to $1000 and possibly even time in jail.

What Does the Law Say?

The rules concerning proper labeling of food and the penalties for violating them are contained in two statutes. HS 114087 details the regulation, and California Health and Safety Code 114935 HS identifies the possible penalties.

The text of HS 114087 is pretty straightforward:

(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 a food's actual appearance, color, or quality.

Essentially, this law outlaws two behaviors when it comes to food providers:

  1. Labeling food misleadingly; and
  2. Altering the appearance of food in a manner that misleads the public about its nature and quality (through food coloring, lighting, etc.).

It should be noted that HS 114087 applies primarily to the food retailer (i.e., restaurants and grocery stores), not to the manufacturers and distributors of the food. These entities are subject to other state and federal laws regarding food labeling.

What Are Some Examples?

EXAMPLE 1: John owns a seafood restaurant specializing in fresh and exotic offerings. Local health authorities inspected and observed that John has been cutting costs and overcharging customers by obtaining commonly available fish species and presenting them as rare, expensive varieties. John can be charged with a crime under HS 114087.

EXAMPLE 2: Tina runs a renowned bakery chain in California that promotes a line of "gluten-free" products. Third-party testing of Tina's gluten-free line found traces of gluten in the ingredients, which could cause a health risk to vulnerable individuals. Tina can be charged under HS 114087.

EXAMPLE 3: David operates a locally renowned butcher shop. Local inspectors discovered that he had been injecting red food dye into his ground beef to make it look fresher and more appealing than it was. David can be charged under HS 114087.

What Are the Elements of the Offense?

  • Mislabeling: Mislabeling refers to the act of providing false, misleading, or inaccurate information about a food being offered for human consumption. This can include incorrect nutritional facts on the menu, false claims (e.g., "organic" or "gluten-free" when it's not), incorrect ingredient lists, or misrepresentation of the product's source or manufacturing process.
  • Required State of Mind: For a mislabeling offense, the prosecution must prove that the accused acted knowingly or with criminal negligence. This means that the accused was aware that the labels were false or misleading, or they consciously disregarded the high risk that their actions would result in mislabeling.
  • Mitigating Factors: Factors that might mitigate the severity of the offense include the nature and extent of the mislabeling, the harm or potential harm to consumers, whether the mislabeling resulted from negligence rather than deliberate action, and the accused's prior history of similar offenses.

What Are Penalties for Mislabeling Food?

HS 114395 outlines the possible penalties for violations of the truth in menu law, which are considered misdemeanor offenses. If you are convicted, you could face:

  • A fine ranging from $25 to $1000 and
  • Up to six months in county jail.

The judge may grant summary probation instead of jail time, depending on the circumstances of the case.

What Are the Potential Defenses?

If you're facing charges under HS 114087, a California criminal defense attorney can employ several defenses to combat the charges. Common defenses include the following:

  • Lack of Knowledge: This could be a valid defense if you demonstrate that you genuinely believed the labeling was truthful. However, ignorance due to negligence or failure to exercise reasonable care would not qualify as a defense.
  • Accidental Mislabeling: Criminal violations under this law must be willful. Your attorney may show that the mislabeling occurred due to a genuine error or oversight.
  • Truthful Labeling: If you can prove that the labels were, in fact, accurate and truthful, this would be a strong defense. This might require scientific testing or expert testimony.
  • Reliance on a Credible Source: If you relied on information from a credible source (e.g., a reputable supplier or manufacturer), you might be able to argue that you acted in good faith and had no reason to believe the labels were false or misleading.

Contact our law firm to review the case details and to discuss legal options. Eisner Gorin LLP has offices in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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