A Tempest on a Tea Cart

Mark Pollock is a Napa-based environmental lawyer, a former Bay Area student radical and lover of fine food. Gloria Alvarez is a resident of Culver City who, for the last 33 years, has owned and operated Gloria’s Cake & Candy Supplies, a tiny Westside culinary landmark jammed into a former American Legion Hall near the intersection of Sawtelle and Venice. Pollock and the seventysomething Alvarez have more than a little in common.

To be precise, on April 23, 2003, Pollock and his lone associate, Evangeline James, sued Alvarez and a who’s who of names from the bakery world: “Martha Stewart Living Omnimedia Inc.; Dean & Deluca Inc.; Chefshop.com Inc.; Pfeil & Holing Inc.; Kitchen Etc.; Q.A. Products Inc.; Confectionary House; Beryl’s Cake Decorating & Pastry Supplies; American Cake Supply; Albert Uster Imports Inc.; Do It With Icing; Cooking.com Inc.; Candyland Crafts Inc.; Favors by Lisa; Sugarbakers Cake, Candy and Wedding Supplies Inc.; Kitchen Conservatory Inc.; American Gourmet Foods Inc.; Annerose Hess d.b.a. Ohess; Pastry Wiz; Barry Farm Enterprises; GM Cake and Candy Supplies d.b.a. Cybercakes; Babykakes; and Does 1 through 100 inclusive.”

Pollock’s lawsuit swept through the close-knit world of American cake decorating like a hot knife through icing. Despite no law specifically outlawing dragees, private citizen Pollock took it upon himself to rid every last supermarket shelf, specialty food store and mail-order purveyor in California of those tiny silver-covered sugar balls you’ve been licking or flicking off the top of your cupcakes since you were a tyke.

Pollock’s suit was an attempt to get a potentially dangerous substance out of the hands and stomachs of the California public. But to Alvarez and her colleagues, it was as if they were being blackmailed by a distant tree-hugger.

Looking at the bigger picture, however, their confrontation becomes a battle between good health and environmental toxins; political correctness and practical sense; Big Government and laissez faire; baby boomer foodies and the much younger fist-waving progressives. But in the end, it was no contest. Can you guess who won?

*

“I was surprised. I was nauseated,” Alvarez says, recalling the day she was served with Pollock’s lawsuit. She is a usually good-natured woman with the round-cheeked face of a Madame Alexander doll. Her store is overflowing with products such as Barbie-shaped baking pans, bride-and-groom wedding cake decorations and many, many shades of coloring gel and “luster dust.”

She was baffled by the lawsuit. Alarmed, she hired a lawyer to negotiate a settlement and removed the dragees from her store shelves. Her final bill was $3,000, most of which, she says with some embarrassment, went to pay her own attorney.

She then called her insurance company to see if she was covered for the legal expense and loss of business. No, said the company, because it’s legal to sell silver dragees in California as long as they are in packages or bottles labeled “Not for Human Consumption” or “For Decorating Purposes Only,” which they are. There is no federal law prohibiting their sale. Of course, says Alvarez, for whom dragee sales (“Mostly for gingerbread houses”) amount to less than 5% of her business, people have been known to pop a silver dragee or three into their mouths, especially at Christmastime. But so what? “Nobody’s ever gotten sick from dragees,” she says. “And they’ve been eating these things, especially in Europe, for hundreds of years.”

*

Pollock tells a different story. “This is a poison,” he says, gesturing at several bottles of dragees on his conference room table. “It is, by [the manufacturers’] own admission, not edible. And yet they’re producing it in a way that induces consumption. They’re making it out of sugar and intentionally allowing it to be put on--desserts!”

Point taken. The 56-year-old Pollock speaks with confident authority. Although he is an unreconstructed radical, he looks great in a lawyer’s crisp striped dress shirt, dress pants and tie. A former SDS member, he entered law school at the University of La Verne to help cleanse the system from within.

His first encounter with dragees, he recalls, was in December 1992, when he was heading the Solano County district attorney’s environmental crime unit. While shopping in his local supermarket, he passed the cake decorating display and spotted something unusual. “I saw the little silver dragees sitting up there along with the little pink hearts and the chocolate sprinkles and the other confections. And I noticed something that I hadn’t seen before.” That was, he says, the notice that silver dragees should be used only as decoration.

“And I thought: That’s weird. I’ve eaten these things. These are typically on a Christmas cookie that is shaped like a Christmas tree and the little silver balls are like little jawbreakers. What do you mean ‘Use only as a decoration?’ ”

Pollock grabbed a bottle and noticed that one of the ingredients was silver. It’s “a bio-accumulative metal that, like lead and mercury, stays in the body forever,” he says. He sent the dragees to a lab for analysis, which confirmed the presence of silver. Then he called the in-house counsel at one of the country’s biggest dragee manufacturers.

“The counsel said, ‘Well, it’s sold clearly as a decoration, not a confection. People don’t eat it.’ And I said, ‘Come on!’ And he said, ‘No, people don’t eat it.’ And I said, ‘I’ll call you back in a half hour.’

“I took the dragees and I went across the street to the Superior Court and into the chambers of all six of the Superior Court judges. I showed them the jar. I came back, called counsel on the phone and said, ‘I just went across the street. I did a straw poll of all the judges in my county, and every one of them has eaten these things. And one of them, I won’t tell you which one, always picks the dragees off the cookies and eats them first. Now, you decide which judge you want to be in front of to make the defense argument that no one eats them.’ And he said, ‘Oh.’ ”

Although it’s still permissible to sell dragees in California, Pollock’s sledgehammer approach has had a chilling effect. McCormick Inc. and General Mills agreed to pull the product off the market in California and pay a penalty--”I don’t know, I think it might have been $100,000”--to Solano County.

A few years later, Pollock went into private practice. A few years after that, he was trolling the Internet and discovered that the influx of dragees had resumed. That’s how he found Gloria Alvarez and Gretchen Goehrend, president and proprietor of www.indiatree.com.

*

“I’ve already signed this stupid [legal] agreement, so I don’t want to say too much and get into trouble,” says Goehrend, whom Pollock named in one of his lawsuits. By most accounts, she is one of the country’s more prominent importers and distributors of dragees through her bricks-and-mortar outlet, India Tree Gourmet Spices & Specialities, in Seattle. When Martha Stewart Living Omnimedia and Dean & Deluca settled with Pollock, it cost them a relative pittance, but Goehrend paid the biggest price. The loss of the California market for dragees cost her $20,000 a year in income (she prefers not to reveal how much she paid Pollock). “Get sick eating dragees? How can you? You’d have to eat them in huge quantities. And they’re not food. They’re not confections. It says that on the bottle. Isn’t that enough?”

Indeed, it’s enough for one prominent Beverly Hills pastry chef, who’d rather not be named but who “smuggles” them into her restaurant, and enough for out-of-staters such as Jean-Philippe Maury, the executive pastry chef at the Bellagio in Las Vegas, who uses them on his creations and sells them in the hotel patisserie he runs. “I’m going to investigate for me,” he says. “If there’s something wrong with the candies, I’ll remove them, but honestly I doubt it. If I don’t call you back,” he jokes, “it’s because I’m dead from eating them.”

Monsieur Maury is still alive, but it’s no laughing matter to Pollock and other like-minded individuals. He says he’s talked to activists in other states who might be interested in chasing dragees out of the food chain.

Goehrend and others think this is a simple case of knee-jerk liberalism turned larceny. But Pollock is not embarrassed or sheepish about his crusade. He’s now going against mercury in fish and, yes, he’s had his silver amalgam fillings removed from his teeth.

He says he’s adjusted his billing so that mom-and-pop dragee sellers pay him much less for his costs than the big corporations or high-volume specialty purveyors. He steadfastly maintains that selling dragees is illegal, and he believes that putting silver in the hands and mouths of cookie-munching children is morally offensive. “Nobody,” he says firmly, “is doing anything about it beside us.”