Of Fruits and Vegetables, and Everything in Between

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Kimberly Egan

Kim Egan, Partner, DLA Piper LLP

It might surprise you to learn that FDA has taken the time to promulgate a regulation that identifies the 20 most frequently consumed raw fruits, vegetables, and fish in the United States. See 21 C.F.R. sec. 101.44. As a result we now know that the 20 most frequently consumed raw fruits are apples, California avocados, bananas, cantaloupes, grapefruits, grapes, honeydew melons, kiwifruits, lemons, limes, nectarines, oranges, peaches, pears, pineapples, plums, strawberries, sweet cherries, tangerines, and watermelons. And the 20 most frequently consumed raw vegetables are asparagus, bell peppers, broccoli, carrots, cauliflower, celery, cucumbers, green snap beans, green cabbage, green onions, iceberg lettuce, leaf lettuce, mushrooms, onions, potatoes, radishes, summer squash, sweet corn, sweet potatoes, and tomatoes.

Do these lists interest you at all? They interest me. What is a “vegetable” anyway? Why is a banana a “fruit” but a squash is deemed a vegetable? Why are tomatoes called vegetables but nectarines are fruit? Why are watermelons fruits but cucumbers vegetables? What would you call a beet and why isn’t it on the list of 20 most frequently consumed vegetables? Do we really eat more kiwis than raspberries or blueberries? Isn’t a mushroom a primeval parasite and not really a plant at all?

Harold McGee, the food scientist and author of On Food and Cooking, is my kind of guy because he’s taken up this subject with gusto. Fruits are, technically speaking, the reproductive organs of plants. Everything on the 20 most frequently consumed raw fruits list has a seed in it somewhere. But then why do we call green beans, eggplants, cucumbers, and corn vegetables when they, anatomically speaking, are fruits? And then there’s the tomato, the most famous vegetable-that-is-really-a-fruit.

McGee wonders if the distinction is that fruits are plants that are sweet and tasty and vegetables are plants that are nutritious and wholesome. “The apple of your eye” and “what a peach” and “life is just a bowl of cherries” are good things. “You’re nuts” or “that’s not worth a hill of beans” are bad things. McGee goes off on a tangent about how the lemon fits into this equation — long story short, it looks like it should be sweet but it isn’t at all. It’s a deception — a lemon.

We in America are fortunate that we can turn to our Supreme Court for an answer. It has been the law of the land in America since 1893 that a tomato (and by extension the cucumber and the green bean) is a vegetable, even though it has seeds like a fruit. The story is that a 19th century food importer wanted to bring a load of tomatoes in from the West Indies tax free, arguing that tomatoes were botanical fruits and thus exempt from the import duty. The Supreme Court, apparently mindful of the benefit unrestrained tomato tax revenue would have on the public coffer, said no, tomatoes are vegetables and thus taxable. The Court held that tomatoes are “usually served at dinner in, with, or after the soup, fish or meat, which constitute the principal part of the repast, and not, like fruits, generally after dessert.” Nix v. Hedden, 149 U.S. 304 (1893).

For you lawyers out there, Nix v. Hedden is still good law. The Second Circuit cited it in 1990 for the proposition that common usage can trump science when it comes to commerce. “In common parlance tomatoes are vegetables, as the Supreme Court observed long ago [in] Nix v. Hedden 149 U.S. 304, 307, 13 S.Ct. 881, 882, 37 L.Ed. 745 (1893), although botanically speaking they are actually a fruit . . . Regardless of classification, people have been enjoying tomatoes for centuries, even Mr. Pickwick, as Dickens relates, ate his chops in ‘tomata’ sauce.” JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75 (2d Cir. 1990).

I am also told that the New Jersey legislature cited Nix in 2005 when it voted to make the tomato the state vegetable of New Jersey. This apparently alarmed some people because the tomato is not an entirely benign plant. For starters, it’s a member of the nightshade family, along with eggplants, the hallucinogenic jimson weed and, of course, the deadly nightshade. Moreover, only the crazy Italians were brave enough to eat a tomato for the longest time — the English and the French thought it was poisonous because it turns out the tomato plant leaves are, actually, rather deadly. And even though the English called them “love apples,” the Latin name for tomatoes is lycopersicon esculentum. Translation — “edible wolf’s peach.”

I’d love to see a “Candied emulsion of organic edible wolf’s peach” on the menu at, say the Gramercy Tavern or Restaurant Nora.

Kim Egan is Partner in the firm DLA Piper LLP

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  • Of Fruits and Vegetables, and Everything in Between…

    Here at World Spinner we are debating the same thing……

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