948 THE ADVOCATE
VOL. 77 PART 6 NOVEMBER 2019
have been best classified as a “drug”, rather than as a “fruit” or “vegetable”.
Indeed, it was not until the mid-18th century that rhubarb started appearing
regularly on kitchen tables.15 Eventually, in the 19th century, some U.S.
cookbooks began referring to rhubarb as the “pie plant”,16 solidifying its status
as a dessert plant, though it continues to serve medicinal purposes as
well, particularly in Chinese medicine. Perhaps, then, the “living tree”—or
“living plant”—doctrine should apply. It would seem fitting.
Rhubarb is a versatile plant that can be consumed in many different
ways, which makes its classification difficult. For example, it can be used in
baked goods (pies, cobblers, crumbles, crisps, breads, muffins and even
cupcakes); included in sauces, jams, jellies, chutneys and salsas; used to
make wines; eaten raw; added to smoothies; or roasted and mixed into salads
(but skip the leaves, which are poisonous). There do not appear to be
any studies examining which of these many uses predominates, and in any
event the dominant use may vary by locale.
In the end, it may be that the dominant use inquiry simply asks the
wrong question. Assuming there is a sound reason why fruits and vegetables
must be subject to different tariff rates, why should the point in the
meal at which the article is typically consumed—during the main course or
instead during dessert—be the determining factor in distinguishing
between the two? Attempting to find some inherent botanical characteristics
that separate the two seems a more fruitful exercise (excuse the pun).
Or perhaps an even better solution would be to classify rhubarb as neither
a “fruit” nor a “vegetable”, but rather a “plant”. After all, given rhubarb’s
impressive versatility, why box it in?
1. 19 Cust Ct 12 CJ Tower.
2. Ibid at 13.
4. Ibid at 14.
6. 149 US 304 (1893).
7. Cited in CJ Tower, supra note 1 at 14.
8. Ibid at 15.
10. Ibid at 15–16.
11. Ibid at 16.
12. Barnes, Richardson & Colburn LLP, online: <www.
14. “Rhubarb”, The Gale Encyclopedia of Science,
15. See Arthur Loughton, “Rhubarb”, Canadian Encyclopedia
(4 March 2015), online: <www.the
16. See Bill Neal, Biscuits, Spoonbread and Sweet Potato
Pie (Chapel Hill, NC: University of North Carolina
Press, 2003) at 308.