Editor’s note: This is part of a series of papers written by students in the Food Safety Litigation class taught by Professors Bill Marler and Denis Stearns in the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law.

You hear them say, “Oh my God, I love it so much,” with happiness in their voice, a smile on their face, eagerness in their demeanor, and love in their eyes. You’ll be curious find out the object of their affection. If you look closely, you might be dismayed to see that it’s simply a tomato fruit. In fact, the U.S. Supreme Court ruled more than 125 years ago that a tomato is a vegetable rather than a fruit for the purposes of tariffs, imports, and customs, but I digress.

The southern region of the United States is known for its warm welcomes, politeness that isn’t pretentious, and genuine helpfulness. Strangers are made to feel welcome in a Southern house by the practice known as southern hospitality.

Corporate America has discovered a way to use Southern hospitality as a weapon that makes customers feel welcome in corporate spaces. Shops feel like home for customers. When they enter any place of business, American customers have come to expect to be welcomed like guests in a Southern house.

“For all its ups and downs, Walmart is no doubt a genuine American institution.”
“In our culture, we have excessively high expectations,” Robin Kowalski, a psychology professor at Business School told Vox in an interview.

“The way we evaluate things is a function of expectations…If we’re used to a level of customer service, which Americans are, and then things change, like prices go up or things slow down, the violation of that expectation is what causes disappointment, anger, all of these sorts of things,” Deborah Small, a marketing professor of psychology at Wharton was quoted in the same Vox interviewer.

Meeting expectation of consumers is the vehicle on which businesses and to a large extend the American society run. “Consumer society, in fact, is not just about the satisfaction of needs, but in many ways, it is about the forms through which we view the world and our position within it … The arrival of consumer society during the last one hundred years has transformed not only our material existence but also our ontology, our very being itself.”

Walmart became the largest retailer in the world by perfecting meeting the needs of the American consumer.

Walmart’s genuine Americanness, however, was the cause of its failure in Germany. One of the American practices was requiring sale clerks to smile at customers. In Germany, customers interpreted the smiling to be flirting. “People found these things strange; Germans just don’t behave that way,” said Hans-Martin Poschmann, the secretary of the Walmart employees’ union told the New York Times in 2006, when Walmart pulled out of Germany after almost a decade of failing to make profit in the market. People do not expect their business to have a personal touch to it in Germany and as the New York Times pointed out, in other countries.

The Arkansas native-founded Walmart is not the only company that perfected the art of adding a personal touch to doing business. Georgia-based Delta Airlines, for example, touted its personal touch as a show of their Southern hospitality.

“Delta garnered the reputation for being a service-oriented southern airline with all the graciousness the Southern Hospitality is an expression that has historically been used to refer to the graciousness and civility that is associated with people from the southern part of the United States.

“It is no exaggeration to say that we are among the nicest people you are likely to meet,” Writer Florence King is quoted to have said.

“The most common qualities of southern hospitality include politeness, charm, kindness, helpfulness, and charity. These qualities are seen as aligning with the idea of what it means to be a good host.”

Southern Hospitality is often on full display at the Fayetteville Downtown Square every Saturday since 1974 when a city ordinance designated that space to be used as the Fayetteville Farmer’s Market. The setting at the market is relaxed, pleasant, inviting, and welcoming. To make customers feel like friends, farmers extend a kind greeting to their booth, inquire about their personal life, and enthusiastically volunteer information about their personal lives.

The market’s small-town neighborhood atmosphere can occasionally conceal the reality that it is a business district governed by laws established by the Fayetteville City Council and different departments of the state of Arkansas.

The primary laws that govern the market are summarized in the Farmers’ Market Vendor Guide. The latest guided of the document was drafted by the Arkansas Department of Health and Arkansas Department of Agriculture in September 2021.

The Guide quotes Arkansas State Act 1040 of 2021, allowing the sale of Non Time/Temperature Control for Safety (Non-TCS) Foods directly to consumers.

Non-TCS Foods was defined as “food that does not require time or temperature control for safety to limit pathogenic microorganism growth or toxin production and as defined in the rules of the Department of Health.”

“Uncut fresh fruits and vegetables” were explicitly named to fall under the non-TCS foods. The Guide named Ready-to-eat foods as food, which are covered under the non-TCS foods.

“Any ready–to-eat food that is prepared on site or any food that is provided to the consumer in a non- prepackaged form can only be sold or served from an ADH permitted and inspected facility. Any establishment preparing, selling, or serving any of these food items must fully comply with the Arkansas Department of Health’s Rules and Regulations.”

A tomato is a non-TCS food, however, a cut tomato may be considered a ready-to-eat food. And there lies the issue.

“The intention of the regulations that do exist is to mitigate the risk of foodborne illness. Any time a food is “processed” the risk for pathogens to contaminate the food is increased. As such the rules allow a vendor to offer an uncut cherry tomato as a sample, or a small muffin, but if the vendor has to cut the product in order to offer a sample (like slice a tomato or slice bread) it must be either pre-prepared in a commercial ADH inspected kitchen, or the vendor must have appropriate prep means at the market, that have been inspected and approved by an ADH Health inspector (similar to the requirements for businesses like Food Trucks or our sellers who prepare drinks like coffee at market)”, Julia Den Herder, one of the managers of the Fayetteville Farmers’ Market and a vendor herself, explains the distinction in an email.

A tomato fruit (or vegetable) is a non-TCS food but when it is cut and offered to the consumer, it is considered a ready-to-eat food which will require the permission of the Arkansas Department of Health to be sold on the market.

The American consumer, who is accustomed to getting what they want, purchases tomatoes for their appearance, texture, flavor, and aroma. The consumer can evaluate the tomato’s appearance and texture fairly with an uncut tomato (just by touching it). It provides no indication of its taste. Before making a final decision, the customer wants to taste the fruit. Although the tomato cannot be taste- tested if the customer purchases it from a Walmart, the Fayetteville Market’s relaxed attitude leads the customer to believe that this is exempted from the grocery store’s guidelines that Walmart is governed by.

The seller informs the customer that “the market does not permit us to offer samples to consumers” in order to please the customer while upholding the graciousness associated with Southern Hospitality. The supplier gives the customer a better deal. “I will offer you a sample in secret,” he says. “Come inside my booth so I may cut it for you in private.” The customer accepts the sample based on the seller’s claim after believing both claims provided by the vendor. The vendor has thus misrepresented the rules on sampling to the customer, in their bid to be polite.

“The market does not have policies that make it illegal to offer samples to buyers; however, sampling food products is regulated by ADH and RMPE rules about offering samples are in compliance with those regulations. Some of these rules are consistent with grocery store requirements for food sampling (like needing a three compartment sink for appropriate sanitation) and some are specific to Farmers Markets due to the nature of markets being distinct from other retail environments”, Julia Den Herder clarified.

The vendor has thus opened himself up to legal issues by the “innocent of politeness” that the “market does not allow us to offer samples.” Under Arkansas law, fraudulent inducement to contract (making a sale being a contract) is considered both a criminal offense and a ground for voiding a contract. The Arkansas Supreme Court explained the effect of fraudulent inducement in Wal-Mart Stores v. Coughlin.

Each situation in a food safety lawsuit has a slightly different liability. Some of it directly affects the market, and some of it affects the vendor. For instance, the Arkansas Department of Health will decide who is responsible in cases of food poisoning after looking into the source of the infection; if the vendor is discovered to be the pathogen’s original source, they will be held accountable. The market will find it simpler to hold the vendor entirely responsible if there has been misrepresentation.

Even though southern hospitality is generally excellent, it is not an acceptable alternative to a direct, firm response to a request, whether the response is a yes or a no.

About the author: Anthony Owura-Akuaku is a Former Paralegal, 1st Law Legal Practitioners/Consultants and Former Communications Assistant to the President, Musicians Union of Ghana LL.B., Central University Secondary School Certificate, Business, St. Peter’s Boys’ Senior Secondary School.