england-and-wales food-processing
Is it legal for restaurants to use fish in their vegetarian meals?
<p>For many years, I've had to avoid Chinese restaurants and take-aways purely because they sell "vegetarian" choices which contain fish sauce, prawns, squid etc. I appreciate that there is a cultural difference such as Buddists eating oysters, but from the standpoint of an English vegetarian, I feel that it's not right that they can mislead in this way.</p>

<p>So my question is:</p>

<ol>
<li><p>Are there any laws or regulations which regulate "vegetarian" menu items?</p></li>
<li><p>What constitutes a vegetarian menu item?</p></li>
<li><p>What are the consequences of advertising or claiming a dish as vegetarian when in fact it contains a non-vegetarian ingredient?</p></li>
</ol>

<p>Note: the original question did not specify a jurisdiction. The England and Wales tag has been added based on the question details. But answers on any jurisdiction are welcome until the original author clarifies his jurisdiction.</p>

<p><strong>UK and EU</strong></p>

<p>There is is no legally binding definition of the terms "vegan" and "vegetarian" at EU or member state level. In 2019, the EU began work on legislation for those definitions.</p>

<p>However, under the UK's <a href="http://www.legislation.gov.uk/uksi/2014/1855/contents/made" rel="nofollow noreferrer">Food Information to Consumers (FIC) regulations</a> (that implemented certain provisions of <a href="https://ec.europa.eu/food/safety/labelling_nutrition/labelling_legislation_en" rel="nofollow noreferrer">the EU directive of the same name</a>), food information must be accurate, clear and easy to understand. This is intended to protect consumers from false or misleading labelling. The UK's Trade Descriptions Act also prohibits false or misleading labelling. The UK's Consumer Rights Act 2015 says "Every contract to supply goods by description is to be treated as including a term that the goods will match the description". And in the UK deliberate mislabelling is criminal fraud. I imagine other jurisdictions have similar laws.</p>

<p>In 2006 the UK's Food Standards Agency published vegetarian and vegan guidance for food labelling. Unfortunately I can no longer find it on the FSA's website (food.gov.uk). However, it had the following definitions:</p>

<blockquote>
  <p>Vegetarian</p>
  
  <p>The term ‘vegetarian' should not be applied to foods that are, or are made from, or with, the aid of products derived from animals that
  have died, have been slaughtered, or animals that die as a result of
  being eaten.</p>
  
  <p>'Animals' means farmed, wild or domestic animals, including for example, livestock poultry, game, fish, shellfish, crustacea,
  amphibians, tunicates, echinoderms, molluscs and insects.</p>
  
  <p>Vegan</p>
  
  <p>The term 'vegan' should not be applied to foods that are, or are made from, or with, the aid of animals or animal products (including
  products from living animals).</p>
</blockquote>

<p>Now, those definitions weren't/aren't legally enforceable in themselves but an enforcement agency might use them as criteria when investigating a complaint.</p>

<p><strong>Related: fish and molluscs are key allergens</strong></p>

<p>Also under the FIC:</p>

<p>Food businesses include restaurants, cafés and takeaways, and businesses that produce, manufacture or pre-pack food.</p>

<p><a href="https://www.food.gov.uk/business-guidance/allergen-guidance-for-food-businesses" rel="nofollow noreferrer">Food businesses must tell you if they use any of the 14 key allergens as ingredients</a> in the food and drink they provide. They must supply allergen information for every item that contains any of the 14 allergens.</p>

<p>The 14 allergens include fish and molluscs (e.g. mussels and oysters).</p>

<p><strong>The consequences</strong></p>

<ul>
<li>You are free to ask the food business to list the ingredients (indeed this is the advice to people with allergies)</li>
<li>You are free to report your concerns to the food business (they really must list their uses of those key allergens)</li>
<li>You are free to not give your custom to the business</li>
<li><a href="https://www.food.gov.uk/contact/consumers/report-problem/report-a-food-crime" rel="nofollow noreferrer">In the UK you can report businesses that you don't believe meet the legal requirements to the National Food Crime Unit</a>. But if there is no direct intention to deceive or deliberate dishonesty it is not a 'food crime' and should not be reported to the NFCU. These non-crime concerns should be reported to the relevant local authority if you get no satisfaction from the business.</li>
</ul>

<p><a href="/questions/tagged/maryland" class="post-tag" title="show questions tagged &#39;maryland&#39;" rel="tag">maryland</a></p>

<p>The question does not specify a jurisdiction, so I choose to examine the matter for the state of Maryland, in the US. Even if that proves not to be the OP's preferred jurisdiction, this may be of use to others.</p>

<p>In Maryland, at least, including fish products in dishes labeled as "vegetarian" would quite probably be illegal. Specifically, it would be a deceptive trade practice. It might also be fraud.</p>

<p>Maryland commercial law, <a href="http://mgaleg.maryland.gov/webmga/frmStatutesText.aspx?article=gcl&amp;section=13-301&amp;ext=html" rel="nofollow noreferrer">section 13-301</a> provides that:</p>

<blockquote>
  <p>Unfair, abusive, or deceptive trade practices include any:</p>
  
  <ol>
  <li><p>False, falsely disparaging, or misleading oral or written statement, visual description, or other representation of any kind which has the capacity, tendency, or effect of deceiving or misleading consumers;</p></li>
  <li><p>Representation that:</p>
  
  <p>2.i. Consumer goods, consumer realty, or consumer services have a sponsorship, approval, accessory, characteristic, ingredient, use, benefit, or quantity which they do not have; ...</p>
  
  <p>2.iv.  Consumer goods, consumer realty, or consumer services are of a particular standard, quality, grade, style, or model which they are not; ...</p></li>
  <li><p>Failure to state a material fact if the failure deceives or tends to deceive; </p></li>
  </ol>
</blockquote>

<p>...</p>

<blockquote>
  <ol start="9">
  <li><p>Deception, fraud, false pretense, false premise, misrepresentation, or knowing concealment, suppression, or omission of any material fact with the intent that a consumer rely on the same in connection with:</p>
  
  <p>9.i.  The promotion or sale of any consumer goods, consumer realty, or consumer service;</p></li>
  </ol>
</blockquote>

<p>Restaurant food, including take-out food, is pretty clearly consumer goods. Listing a dish as "vegetarian" would be a representation that might well be materiel to a particular customer. Doing so falsely would be deception. Failing to mention the presence of fish products would be "knowing concealment" and "Failure to state a material fact", and would have a tendency to mislead customers. </p>

<p>The US District court, intercepting this statute in <em>THOMAS HIBDON, ET AL v. SAFEGUARD PROPERTIES, LLC., ET AL.</em> (2015), <a href="https://www.govinfo.gov/content/pkg/USCOURTS-mdd-8_14-cv-00591/pdf/USCOURTS-mdd-8_14-cv-00591-0.pdf" rel="nofollow noreferrer">wrote</a>:</p>

<blockquote>
  <p>In  other  words,  it  is  not  ordinarily  the  one  time  (or  even  necessarily  the  repeated)  occurrence of an act that suffices to constitute the statutory tort of “unfair trade practice.” These may  all  be  isolated  events.  Rather,  it  is  the  “common”  procedure,  possibly  “formally  adopted,”  “repeated or customary,” “the usual way” that, consistent with the <em>Legg</em> analysis, transforms the conventional  tort  into  the  statutory  tort  of  “unfair  trade  practice.”  (page 14 of the posted PDF decision)</p>
</blockquote>

<p>Thus regularly describing as "vegetarian" dishes that are not would constitute a "practice" under this law.</p>

<p>In addition, such actions might constitute ordinary fraud. According to <a href="https://www.marylandaccidentattorneyblog.com/fraudulent_misrepresentation_u/" rel="nofollow noreferrer">this article from a law office</a></p>

<blockquote>
  <p>In Maryland, to establish a claim of fraudulent misrepresentation, a plaintiff must prove: (1) that a false representation was made, (2) that its falsity was either known or that the representation was made with such reckless disregard to the truth as to be equivalent to actual knowledge of falsity, (3) that the representation was made for the purpose of defrauding the plaintiff, (4) that the plaintiff had the right to, and did, reasonably rely on the representation, and would not have acted had the misrepresentation not been made, and (5) that the plaintiff suffered damage directly resulting from the misrepresentation. See Swinson v. Lords Landing Village Condo., 360 Md. 462, 476, 758 A.2d 1008, 1016 (2000) (citing Gittings v. Von Dorn, 136 Md. 10, 15-16, 109 A. 553, 553-54 (1920); Martens Chevrolet v. Seney, 292 Md. 328, 333, 439 A.2d 534, 537 (1982))</p>
</blockquote>

<p>It is at least <strong>possible</strong> that a knowingly false menu description of a dish would fit that definition. It is (1) false, (2) known to be false (3) intended to induce customers to buy, and (4) it is reasonable for a patron to rely on the restaurant's printed description of a dish. As to damages, that would depend on the specific facts. </p>

<p>This leaves uncertain whether "vegetarian", in Maryland, would be held to exclude fish or fish products. As mentioned in the comment by user Nij, in some cultures this is not so, and I could find no case clearly on point. </p>

<p><a href="https://www.merriam-webster.com/dictionary/vegetarian" rel="nofollow noreferrer">Merriam-Webster</a> defines "vegetarian" (adjective, sense 2) as:</p>

<blockquote>
  <p>not containing meat : consisting wholly of vegetables, fruits, grains, nuts, and sometimes eggs or dairy products.</p>
</blockquote>

<p><a href="https://dictionary.cambridge.org/us/dictionary/english/vegetarian" rel="nofollow noreferrer">Cambridge</a> gives sense B1 as:</p>

<blockquote>
  <p>not eating or including meat: <em>The restaurant's very good for fish, but I'd give their vegetarian options a miss.</em> (one example out of several)</p>
</blockquote>

<p><a href="https://www.urbandictionary.com/define.php?term=vegetarian" rel="nofollow noreferrer">the urban Dictionary</a> gives:</p>

<blockquote>
  <p>Someone who does not eat meat. This includes fish and poultry, although some people claim to be 'modified vegetarians' and will eat these.</p>
</blockquote>

<p><a href="https://www.collinsdictionary.com/us/dictionary/english/vegetarian" rel="nofollow noreferrer">Collins dictionary</a> gives:</p>

<blockquote>
  <p>Vegetarian food does not contain any meat or fish. </p>
</blockquote>

<p>All these are ordinary dictionary definitions, not strictly legal definitions. But courts often turn to dictionary defs in stuatory construction. Indeed in <em>THOMAS HIBDON, ET AL v. SAFEGUARD PROPERTIES, LLC., ET AL.</em> (linked above) footnote 6 says:</p>

<blockquote>
  <p>A dictionary definition may provide a “useful starting point,” though not a dispositive answer, in determining a statute's meaning. See Blue v. Prince George’s Cnty., 434 Md. 681, 690 n.12 (2013).</p>
</blockquote>

<p>If, in light of such definitions and other evidence that might be offered in an actual case,  the reasonable expectation of the customer is that fish are excluded from "vegetarian", and the merchant knew or should have known that, the customer might prevail. This is not a final answer, but at least it indicates the applicable legal framework. A key question is, I think, whether the presence of fish is a "materiel fact". (And, of course, if fish were in fact present.)</p>

<p>If, as a comment suggests, a dish is labeled <strong>both</strong> "vegetarian" <strong>and</strong> "fish" or "shrimp" or some similar term, it would be far less reasonable for a patron to claim to have been misled. </p>

<p>There is also the question of a measure of damages. If the damage is only the price of an unwanted meal, it may well be too small for a suit to make economic suit, even in a small claims court. There might be cases where greater damages would be available.</p>
