Fire Cider Goes to Court


The Federal Courthouse in Springfield, Ma is a large modern building with an entire edifice of glass facing the street.  With its ‘cascading concave roof gracefully framing the space in a delicate shell of steel and glass’, the courthouse is an imposing sight indeed.  But even more impressive than this wall of steel and glass, are the two ancient trees that the courthouse was obviously built around.  The glass walls literally curve around the largest Tillia Europa, or Linden tree, I’ve ever seen and a huge old copper beech that looks like its been standing there for centuries. Its obvious the architects took these trees into account when planning and building this courthouse.  I later learned that their “presence was too powerful to ignore”…and the preservation of these trees “was a key element in the design proposal that emerged” for the courthouse.  Those two ancient guardian trees and the wild garden beneath them replete with healthy stands of Black Cohosh and maidenhair fern, helped make our days in Federal Court bearable.  Their beauty and strength rooted us deeply ~ and gave us hope and courage.

So did the community members who came to support us during the 7 days of trial.  And the herbalists who brought us lunches that were spread picnic style in the courthouse pavilion so that we’d have healthy food during the intensity of the trial.  So did our witnesses who traveled across the country to share their truth and tell their story all on their own dime and time. And then there were our amazing lawyers who worked primarily pro bono for the past 4 years, and poured not only their expertise but also their hearts into this case.  But most of all, those trees were a bastion of strength for three young women who were on trial, like the witch hunts of old, for having the audacity to stand up for their herbal traditions.   Nicole Telkes, Kathi Langelier, and Mary Blue ~ they came to be known as the Fire Cider Three. Ballads will be written about them. In fact, there are a few already being sung (and some are included in the new Fire Cider book!).

Four years of preparing for this trial and 7 exhausting days in Federal Court… all for a simple apple cider vinegar recipe aptly named fire cider.  It’s a great recipe, its true, easy to make, tasty, versatile, an excellent cold and cough remedy as well as a tasty condiment. But, really, who would have thought a simple ACV recipe made from common kitchen ingredients would become as popular as it has ~ or as wildly controversial.   It certainly never crossed my mind that day a little over 4 decades ago when I made that first auspicious batch of fire cider as part of a winter health class.  Like most herbal recipes, it wasn’t fully original, but was based on several other old herbal recipes. I added my own touches, a few new herbs, a little something hot, a little honey for sweetness. When my students and I strained and tasted that first batch of herbal infused vinegar several weeks later a perfect merging of sweet, hot, spicy, sour and pungent flavors exploded in our mouths.   We knew we had created a winner and promptly named it Fire Cider. 

And that’s’ how fire cider began….in the herb school kitchen of the California School of Herbal Studies somewhere between 1979 and 1980.  It spread out into the world rather slowly at first, but as I traveled and taught through the ensuing years, and taught others how to make it, and they taught others, it developed a life of its own.  People seemed to especially love this recipe…and if they didn’t love it, they could adjust the herbs and add a little more honey until it was just perfect for them. It was easy to make, and inexpensive, and all of the herbs were common and readily available ~ you could grow most of them or find them in the local super market.  And best of all, not only was it tasty and easy to make, but it was a very effective remedy for many of those cold damp conditions of winter.   It was taken as a daily tonic to keep one healthy throughout the winter; was added to winter soups and salad dressings for an extra kick, was taken at the first sign of a cold or flue to mobilize the immune system, and was diluted with a little warm water or warmed apple juice as an energizing winter drink.

It became one of many of my favorite recipes that I shared openly and freely with students and other herbalists.  Soon enough, as happens with most popular recipes, others were making their versions of fire cider, and several started small companies that began selling fire cider at farmers markets, coops and on online sites such as Etsy.  You could find the recipe in herb books, in online courses and videos, and herbalists often included fire cider as part of their class curriculum on herbs for winter health.  It was one of those herbal remedies that people loved, made in their kitchens, traded, sold, and adapted.  Everyone felt it was community property, to be claimed as one’s own, but belonging to everyone.  Like so many other traditional herbal products in the market place, fire cider was available for everyone to make, sell, trade, and enjoy.

And that’s how the story should have continued, but, unfortunately, it didn’t…..

A little over five years ago a young upstart company saw a great opportunity and trademarked Fire Cider.   It had never occurred to me, or many of us working within the plant medicine community, that a popular herbal remedy or a commonly used name could be trademarked.  In our naiveté, we thought trademark laws were in place to provide protection for people who had created their own original products and/or names from others who were trying to copy them.   We didn’t realize that, in fact, a trademark could sometimes be obtained by whoever grabbed the name and claimed ownership first.   It was a wake up call.

There had always existed a strong sense of sharing and cooperation among people who were practicing herbalism; people readily shared recipes and information in classes, online, and through books and newsletters.   What was a good remedy for if not for sharing?  In addition, there were herbal remedies that were considered part of our herbal legacy and were ‘community owned’; anyone was welcomed to make them and sell them if they choose.  Usually this was because a recipe such as Four Thieves Vinegar or the Queen of Hungary’s Water had been around for so long that ownership could no longer be traced or because a remedy like elderberry syrup, echinacea tincture, or fire cider was so popular that it was considered generic.   There are hundreds of herbal formulas that fall into this category.  However, with the trademarking of fire cider, suddenly everything changed ~ all of these traditional herbal formulas were vulnerable to trademarking.   What this would mean to herbalists is that they would no longer be able to sell traditional herbal products under their original names ~ the names they are best known by.  And for the customers who have come to depend on these traditional herbal remedies, they’re choice of products would be limited to the one company, often a larger and more industrialized company, who bought and now owns the trademark.

Sadly and unfortunately, this has already begun to happen and is of primary concern for many people involved in the natural food movement.  Much like the appropriation of Native and Indigenous people’s healing traditions, arts and artifacts, herbal traditions that have long been shared by cultures around the world are also being appropriated.   Shortly after fire cider was trademarked, a popular essential oil company trademarked four thieves vinegar, another well-known traditional recipe that happens to be not decades but centuries old.  What does that mean? After 500 years of being ‘communally owned’ and shared, now only one company is allowed to sell it.   Before the trademarking of four thieves vinegar and fire cider, one had the opportunity to purchase these locally made products at farmers markets, at local coops, through herbal mail order catalogues and online sites like Etsy.   Now, you have one choice of each product, and in both instances ~ four thieves and fire cider ~ the companies who bought the trademarks are not owned or run by herbalists.   You don’t have to be a good herbalist to make a good herbal product, but it does help.

So just how did fire cider and several members of the herbal community end up in that courthouse in Springfield? As beautiful as those trees were and worthy of a visit, being in Springfield isn’t something any of us would have planned on.   But oddly enough, that company that decided they had the sole right and ownership of fire cider (regardless that the recipe and name had been around for decades), next decided to take legal action against the Fire Cider Three and filed a $100,000 lawsuit against them.  Their claim; that these three herbalists were damaging their business and had violated trademark laws.   Nicole, Mary and Kathi, each well-known community herbalists and farmers, avid activists, and supporters of traditional herbalism, had decided that something needed to be done. That it wasn’t ok that companies could come along and buy up the rights to popular herbal remedies that were already in existence and were considered ‘community owned’.  As spokeswomen for the movement that was forming around fire cider, they founded two organizations, Traditions not Trademarks and Free Fire Cider, both online resources dedicated to educating people about the issues surrounding the trademarking of traditional herbal products. The goal was to educate people as to why it’s important to keep these herbal treasures as legacy herbal products, available for everyone to make, use and sell as they like.  While the greater concern was all traditional herbal products, the poster child was fire cider.  Free Fire Cider called for a national boycott of the trademarked branded fire cider and prompted people to make their own.  The boycott gleamed over 9,000 signatures in the first few days.  People cared.  In the meantime, Mary and Nicole continued to sell their own brands of fire cider, which they’d been selling for years in their local coops and farmers markets. This they did knowing it was a blatant trademark offense.   Kathi rebranded her fire cider as Fire Tonic, but she was sued, nonetheless.

My role? As the creator of the original recipe and name, I was invested in getting this popular remedy back in circulation for the entire herbal community and I worked closely with Nicole, Mary and Kathi on the behalf of fire cider.  We became close friends, and were often consulting with one another.   When the lawsuit was filed, I wasn’t included simply because I hadn’t sold fire cider since the sale of my herb shop in the 1980’s.  But I was deeply invested and involved and would take a stand for fire cider along with those three women no matter what happened.

It was never any of our intentions to go to court over this.   We had been hoping for a resolution through mediation in which the company who had trademarked fire cider would continue to sell fire cider under their name, but still allow other smaller companies to sell it as well.  Much like Sriracha hot sauce or elderberry syrup, where everyone would be a winner and enjoy a piece of the good old apple pie (another generic name sold and appreciated ~ not appropriated ~ by many companies and individuals).   But that didn’t happen.   When the company filed a  $100,000 lawsuit against Mary, Nicole and Kathi we were all shocked ~ and quite honestly, frightened of the huge sum of money they were demanding.  Thankfully, that huge sum was dismissed early on during the first trial.   But the second trial over the trademark was still pending…  And that’s what brought us to State Street in the spring of 2019 where we discovered those huge guardian trees.

Court itself was interesting and intense.  None of us had ever experienced anything quite like it, nor do we have plans to experience it again.  We were all examined and cross-examined, sworn in, gave our testimonies, told our truth and shared our stories.  We were an awesome force, really.  Witnesses that got up to testify on behalf of fire cider spoke clearly and passionately, from the heart, of their work as herbalists and their history making and selling fire cider. Several had sales receipts dating to the early 80’s confirming they had been selling it long before the trademark had gone into effect.   Our expert key witness’s, Dr. Butters, a linguist, and Mark Blumenthal of the American Botanical Counsel (ABC) and editor of the prestigious magazine, Herbal Gram, presented convincing arguments for the case of fire cider being a generic name, one that was free to be used by all.   Our lawyers, Seth Coburn and Jim Goggin of Dana Verrill Law Firm, Maine, were simply amazing people. They really cared about the case and what it stood for. They understood what was at stake and were willing to devote endless hours at no pay to help preserve our traditional herbal recipes.

There were also those special moments between court sessions when we were together with members of the community who came to support us ~ and Traditions not Trademarks ~ during the trial. They brought food, cheered us on, and helped disperse the anxiety that goes with being in court.  And when we stood beneath those ancient guardian trees, grounding and receiving energy; they reminded us why we were even fighting this strange battle we found ourselves in and helped us draw strength from deep within the earth.

The story is still unfolding…. Unlike the movies where the judge steps out after a few tense moments and publicly announces the final verdict, Federal Court it seems has a long meandering process. First there are the court proceedings, which can take place over several months, followed a few weeks later by a debriefing between lawyers and the judge. Several weeks after that, the lawyers present their closing arguments to the judge, and then the judge has several weeks to think about it all and make his decision.

We’re all on the edge of our seats waiting.  If the case was to be determined simply on truth, the truth of who first made fire cider, the truth of who was selling it first, the truth of where it originated, and the truth that its been a popular herbal remedy for over 4 decades and is regarded as a traditional herbal legacy recipe, then the herbal community would certainly win.   But trademark laws are a slippery slope, and even the most savvy trademark lawyer is never sure how a case will turn out.  But no matter what the outcome, we’ve won simply by standing up for what we believed in, speaking our truth, and standing strong for our herbal traditions.  After all, they are some of the oldest traditions on the planet, and belong to all of us…

Like most of this battle, this book ~ Fire Cider, a 101 Zesty Recipes ~ has been a community effort and is our attempt to keep the story of Fire Cider alive and well. Even more importantly, it was written to help ensure that traditional herbal formulas, those recipes and remedies that have a long history of being used are kept ‘free for all’ to make, use and sell as they choose.  Its a lively collection of recipes contributed by more than 70 herbal enthusiasts, with energizing versions ranging from Black Currant Fire Cider to Triple Goddess Vinegar, Fire Cider Dark Moonshine, and Bloody Mary’s Fire Cider. Colorful asides, including tribute songs and amusing anecdotes, capture the herbal communities passionate desire to pass along the fire cider tradition.

So now it’s time to gather up the kids, or the neighbors, a few kitchen herbs, a bottle of apple cider vinegar, and get chopping.  It’s easy and fun. Remember when making your first or next bottle of Fire Cider or any of the fabulous fun sassy recipes in this collection, that you are participating in the herbal healing arts, a tradition that goes back thousands of years.

Welcome to the wonderful world of herbs! Have fun! Stay healthy!

 

Please protect your traditions.

Many of the recipes, formulas and names of herbal formulas that have been shared and passed down through generations are part of a shared herbal inheritance and legacy. While trademark laws are necessary to protect individuals and companies for their investments and products, herbal recipes and formulas that are traditional and commonly used and shared should not be trademarked.  It would be like strangers trademarking your favorite family recipe and calling it their own.  It happens, but it shouldn’t.