Kona Coffee Class Action Heats Up

Producers are Using Chemical Fingerprint to Distinguish Magic Beans from the Ordinary Pits

A class action lawsuit brought on behalf of Hawaii’s Kona coffee bean farmers is making its way through the courts. The suit alleges that the coffee sold in the nation’s largest retailers – Walmart, Costco, Amazon, Safeway, and Kroger – is often mislabeled, using the name “Kona” to sell inferior beans and cheaper coffees. The suit also identifies many of the coffee roasting and distribution companies in the plot.

Coffee retailers have become famous for distorting both French and English to add panache to the sale of coffee, but the underlying concern about pirated goods in the consumer supply chain should be taken very seriously. According to studies, “Food is now the fourth most valuable counterfeit market, and foods such as olive oil, honey, fish, vinegar, vanilla and coffee top the list.” Counterfeiters are not protecting the quality of the ingredients, assuring that contaminants are kept out of the supply chain, or offering appropriate wage and employment benefits. Health and beauty aids are another area of significant counterfeiting and equally significant health risk. Bloomberg news has been reporting on the global problem of mercury poisonings caused by skin creams, many of which are counterfeit versions of commercial brands.

This brings us back to the question whether Kona is a term worthy of legal protection. The defendants, of course, say it is not. The plaintiffs look to Hawaiian law to prove that it is. But since the coffee is sold outside of Hawaii, that is something of a problem.

While the lawsuit is framed as a case of “false designation of origin” under section 43(a) of the Lanham Act, the plaintiffs do not allege that they own a trademark in the term Kona. Instead, the plaintiffs rely on Hawaiian Administrative Regulations. Hawaii Administrative Rules §4-143-3 defines the geographic region of Kona as the “North Kona and South Kona districts on the island of Hawaii, as designated by the State of Hawaii Tax Map,” a region of “3,800 acres of land cultivated for Kona coffee production, which sharply limits the amount of Kona coffee that can be grown.”

A false designation of origin claim does not require that the plaintiff own a registered trademark, so there is reason for the Kona growers to hope that their lawsuit might be successful. They have developed a chemical profile of the Kona coffee that makes it distinct from coffees grown elsewhere, and they can use this testing to distinuish Kona beans from lesser strains. According to the complaint, “geographic area has a distinctive soil composition, due largely to its proximity to volcanoes. And that geographic area has distinctive humidity and rainfall, due largely to its proximity to the Pacific Ocean.” This allows chemists to identify the ratios of trace elements that should be present and those that should not be present in any product labeled as Kona coffee.

The science should help with the production disparities. The Hawaiian Kona farmers are said to produce approximately 2.7 million pounds of coffee, compared with the 20 million pounds labeled as Kona coffee each year. Overall, there are 20 billion pounds of coffee produced annually. The massive production of falsely identified Kona coffee depresses the market and confuses the consumer about the actual taste produced by the Kona bean.

Unfortunately for the plaintiffs, the Kona growers have never taken advantage of the Geographical Indications made available to local product producers under the World Trade Organization’s 1995 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Geographical Indications swerve as “indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin.” The United States Patent and Trademark Office provides such examples as: “FLORIDA” for oranges; “IDAHO” for potatoes; and “WASHINGTON STATE” for apples.  

In the U.S. geographic indications can be protected as certification marks or collective marks. A certification mark can be used to show the geographic region, so the state of Hawaii or the trade association of Kona growers could have sought to certify the administrative rule that defines Kona. If there are other distinguishing factors that go into “real” Kona coffee production, the certification could have sought to add these production process or quality characteristics to the certification. Then any grower seeking to use the term would have been required to comply with the federal certification to use the registered Kona term. This would have been a much more productive strategy for the growers to police the mark and put the retailers on notice of what to look for in managing their supply chain.

The Hawaiian growers may be helped through the current lawsuits, but they will gain much more national and international control over their production by creating a certification mark and developing Kona as a clearly defined designation for the Hawaiian regional coffee.

* * *

There are other interesting facts about coffee, compliments of Daven Hiskey. In his “Today I Found Out” Blog, he shared many fun facts about coffee, and I have reprinted my favorites:

  • The coffee “bean” is actually the seed of the coffee plant, the pit inside of the coffee fruit.
  • Coffee is the world’s second largest commodity after oil.
  • Some of the world’s most powerful business, including Lloyds of London and the New York Stock Exchange, started out as coffee houses.
  • On average 1.4 billion cups of coffee are consumed daily.
  • One acre of coffee trees typically yields about 10,000 pounds of coffee fruits, which comes out to about 2,000 pounds of coffee “beans.”
  • Almost all of the world’s coffee is grown between twenty-five degrees north and twenty-five degrees south of the equator. The appropriate temperature for coffee to grow is between 60 degrees Fahrenheit and 70 degrees Fahrenheit.
  • For high quality “beans,” Coffee should be grown at high elevations.  The less oxygen in the air allows the tree to mature for longer.
  • A coffee tree has a lifespan of about 50 to 70 years.
  • The average annual coffee consumption of an American adult is 26.7 gallons or about 400 cups.
  • The term “cup of Joe” stems from American soldiers in World War II, “G.I. Joes” were known to consume a large amount of coffee, as Maxwell Instant Coffee was included in their rations.

Photo: CC0 Public Domain by George Hodan

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