Judge rules batter-coated fries are fresh vegetable

WASHINGTON – French fries may be the bane of low-carb diets and obesity foes, but the U.S. Department of Agriculture and a federal judge in Texas have another name for the popular food: fresh vegetable.

U.S. District Judge Richard Schell last week endorsed little-noticed changes by the USDA to federal regulations that govern what defines a fresh vegetable. The changes were made at the behest of the french-fry industry, which has spent the last five decades pushing for revisions to the Perishable Agricultural Commodities Act.

Known as PACA, the law was passed by Congress in 1930 to protect fruit and vegetable farmers in the event that their customers went out of business without paying for their produce.

Under an obscure USDA rule, most frozen french fries have been considered fresh vegetables since 1996. Now they all are, under a revision last year that added batter-coated, frozen french fries to the list of fresh produce.

In his ruling last week in a lawsuit that challenged the designation, Schell sided with the USDA argument that the PACA law is so ambiguous on the definition of fresh fruits and vegetables that it should be left to the agency to define what it means.

The Frozen Potato Products Institute appealed to the USDA in 2000 to change its definition of fresh produce under the law to include batter-coated, frozen french fries, arguing that rolling potato slices in a starch coating, frying them and freezing them is the equivalent of waxing a cucumber or sweetening a strawberry.

The USDA agreed and, on June 2, 2003, amended its PACA rules to include what is described in court documents as the “Batter-Coating Rule.”

Tim Elliott, a Chicago attorney who recently challenged the revision in a Texas federal courtroom on behalf of a bankrupt food distributor, said defining french fries as fresh vegetables defies common sense.

“I find it pretty outrageous, really,” said Elliott, who argues that the Batter-Coating Rule is so vague that chocolate-covered cherries, packed in a candy box, would qualify as fresh fruit.

“This is something that only lawyers could do,” he said, pointing to a stack of legal documents debating the french-fry rule change. “There must be 100 pages there about something you could summarize in one paragraph: batter-coated french fries are not fresh vegetables.”

Among the documents cited in the lawsuit is a patent from french-fry maker Lamb Weston on how to make batter-coated fries.

“After partial dehydration, the potato strips are coated with an aqueous slurry,” the patent says. “The aqueous starch enrobing slurry . . . is comprised of a combination of chemically modified ungelatinized potato starch, chemically modified ungelatinized cornstarch, rice flour and other optional ingredients.”

“Fresh vegetables are not typically associated with ‘aqueous starch enrobing slurries,’ ” Elliott wrote in court documents.

However, in a ruling released last week, Schell sided with the USDA.

“PACA does not define the term ‘fresh vegetables,’ ” the judge wrote. “Instead, PACA ambiguously states that ‘fresh fruits and vegetables of every kind and character’ are perishable agriculture commodities.”

The french-fry rule calls to mind the USDA’s attempt in 1981 to classify ketchup and pickle relish as vegetables, an idea that was dropped amid public protests.

The latest revision was made last year at a time when the reputation of french fries had been under siege. Loaded with fat and carbohydrates, french fries have been targeted by low-carb diet plans as a snack to avoid and blamed for contributing to America’s expanding waistline.

About the same time, the USDA launched a revision of its Food Guide Pyramid for the first time since it was unveiled in 1992. While the final nutrition guidelines will not be released until early next year, USDA officials already have said they plan to emphasize that Americans should eat more fruits and vegetables.

But John Webster, spokesman for the agency’s Center for Nutrition Policy and Promotion, said french fries – though already considered a vegetable serving in the Food Guide Pyramid – are not what his agency has in mind.

“The vegetables we are talking about encouraging the consumption of are dark green vegetables like broccoli and orange and yellow vegetables like squash,” he said.

The USDA officials who oversee the PACA said french fries were considered a fresh vegetable because the statute only defined fruits and vegetables in two ways: fresh or processed.

“They fall into the category of fresh because they are not processed,” said agency spokesman George Chartier.

Though a USDA news release announcing the revision says caramel-coated apples also will be considered fresh fruit under the Batter-Coating Rule, officials say the gooey treats would not be included because coating it changes the character of the fruit and makes it a candy.

Frying and battering potato strips, however, does not change the character of a potato, they argued.