THE ADVOCATE 945
VOL. 77 PART 6 NOVEMBER 2019
A ND MISCELLANEA
By Connor Bildfell*
THE GREAT RHUBARB CONTROVERSY OF 1947
The humble rhubarb plant rarely causes much of a fuss. But in 1947 it found
itself at the centre of a legal controversy in C.J. Tower & Sons v. United
States.1 The plaintiff, a New York–based customs brokerage, protested a Buffalo
customs examiner’s decision to impose a fifty per cent ad valorem duty
on certain shipments of fresh rhubarb imported from Canada. The plaintiff
maintained that the duty should have been only thirty-five per cent. Why?
Because, the plaintiff said, rhubarb is a fruit, not a vegetable.
At the time, para. 774 of the U.S. Tariff Act provided that “vegetables in
their natural state” that are not specifically provided for are subject to a fifty
per cent duty, while para. 752 provided that “fruits in their natural state”
that are not specifically provided for are subject to a thirty-five per cent
duty. The controlling issue, therefore, was whether rhubarb should be classified
as a “vegetable” or instead a “fruit” for purposes of the Act.
The U.S. Customs Court was presented with testimony from several witnesses.
The proprietor of the exporting company testified that the merchandise
in question was fresh rhubarb pulled from the ground, with the
tops cut off and the roots left in the ground. He said that he had eaten
rhubarb pie in restaurants, stewed rhubarb dessert at home and consumed
rhubarb with cream for breakfast, though he had never had it as a side dish
with poultry. He also explained that he considered rhubarb pie a fruit pie
because it was made like apple pie or peach pie.
A representative of a canning company who had 20 years’ experience
with growing rhubarb testified that he had eaten rhubarb both as a sauce
and in pie, though he never consumed it with his main course. He said that
* Connor Bildfell is the Advocate’s copy editor and has recently retired from clerking at the Supreme Court of Canada.