‘Spiritual trauma’ over cake mix label

Judge OKS levy for mislabelling non-kosher food

An Ontario judge has acknowledged the “spiritual trauma” that can be done to observant Jews who unwittingly eat non-kosher food, and ordered a cake mix company to pay $25,000 to Canada’s largest kosher food certification agency for misusing its logo.

“The kosher Jewish community takes their dietary habits extremely seriously, and thus have placed enormous trust on the (Kashruth Council of Canada) to maintain high standards of control,” wrote Small Claims Court Deputy Judge Laiking Hum.

Eating non-kosher food is a “severe transgression,” she found, and “failure to adhere to a kosher diet could foreseeably result in spiritual trauma.”

For Adee Flour Mills to misuse the kosher logo to sell non-kosher Devil’s Food cake mix, then, was “highly reprehensible,” and deserving of punitive damages over and above the damages for trademark infringement and breach of contract.

The Kashruth Council of Canada is a non-profit agency in Toronto known as COR, which stands for Council of Orthodox Rabbis. It is the largest of three main Canadian kosher certification agencies.

The penalty ordered against Adee Flour Mills of Mississauga, Ont., is financially identical to the fine imposed in 2017 on a company that sent non-kosher cheese to two Ontario summer camps and, when challenged, sent the camps a forged kosher certification certificate. The cheese was never eaten.

That case marked the first time the Canadian Food Inspection Agency pursued a case about misrepresentation of kosher food, and the first time the courts enforced kosher labelling laws, according to the council.

The latest case is different, in that it was brought by the council itself in small claims court by managing director Richard Rabkin, who is also a lawyer. It is the first time since its founding in 1952 that the council has taken that kind of action, Rabkin said.

The case was presented not as a food safety issue, but as trademark infringement about the council’s logo, and a violation of the contract between the council and the food producers it certifies. A key difference, for example, was that the judge in the latest case did not have the power to order the products removed from the shelves.

The small claims court legal action began earlier this year after a rabbi working for the council found an Easy Bake Devil’s Food Cake mix being sold with the council’s kosher trademark.

This was improper, not only because the maker, Adee Flour Mills, had been decertified the previous year for not paying its annual fee, but also because the cake was marked as “kosher pareve,” which is supposed to mean there is no dairy in it.

But there was dairy content, which made for a serious reputational risk to the council.

“We abide by these principles scrupulously,” Rabkin said in an interview.

Violations of this sort, as opposed to innocent mistakes, are “actually very infrequent,” he said. But for the people who are misled by them, the consequences can be highly disturbing.

The judge noted the difficulty of quantifying the damage done to the council’s reputation, goodwill, and public trust by Adee Flour Mills’ actions. She set it as $20,000, plus $5,000 in punitive damages.

Rabkin suggested nonkosher food was like a “spiritual allergen” to those who observe the dietary restrictions. He said it was saddening that a company would act as Adee Flour Mills did, but gratifying that the court saw a way to rectify it.

She upheld the claim against Adee Flour Mills as a company, but dismissed it against its owner and operator, Lucas Provenzano. Provenzano could not be reached for comment, and phones went unanswered at Adee Flour Mills offices near Toronto.

The company’s website says that it takes part in kosher certification as part of a quality control program.

An image of the Devil’s Food cake on the website still displays the COR kosher symbol, as does the packaging for oatmeal cookies, chocolate fudge brownies, scones, pancakes and other products.

Rabkin’s evidence, accepted by the judge, was that such products were still being sold in stores at least as late as November.

An alert from the council says, about the Devil’s Food cake, “This product is NOT KOSHER even when bearing a COR CERTIFIED KOSHER symbol. All products manufactured by Adee Flour Mills are not COR kosher certified.”