WASHINGTON — Anyone trying to add more fresh fruits and vegetables to their diet may have just gotten an unlikely assist from the U.S. Department of Agriculture.
Based on a little-noticed change to obscure federal rules, the USDA now defines frozen French fries as "fresh vegetables."
A federal judge in Texas last week endorsed the USDA's decision in a court case.
U.S. District Judge Richard Schell said the term "fresh vegetables" was ambiguous.
The USDA quietly changed the regulations last year at the behest of the French fry industry, which has spent decades pushing for a revision 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.
The Frozen Potato Products Institute appealed to the USDA in 2000 to change its definition of fresh produce under PACA 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, the agency 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 defied common sense.
"I find it pretty outrageous, really," said Elliott, who argued 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," Elliott said, pointing to a stack of legal documents debating the French fry change. "There must be 100 pages there about something you could summarize in one paragraph: Batter-coated French fries are not fresh vegetables."
Meir Stampfer, a professor of nutrition at the Harvard School of Public Health, said it "boggles the mind" that the USDA would label French fries a fresh vegetable since most commercial fries are prepared in oil laden with heart-clogging trans-fat.
The USDA explained its rationale in its arguments in the Texas case.
"While plaintiff argued that battered-coated French fries are processed products, they have not been 'processed' to the point that they are no longer 'fresh,' " attorneys for the USDA argued.
"It is still considered 'fresh' because it is not preserved. It retains its perishable quality."