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Of Fire Cider, Folk Medicine, and Trademarks

Every autumn, fire cider begins making its annual appearance at farmer’s markets throughout New England.   The popular cold and flu season tonic is made from garlic, onions, ginger, horseradish, and cayenne infused in honey and apple cider vinegar.

Fire cider was created and named by Rosemary Gladstar, one of the major figures in North America’s herbal renaissance, who taught it to to the recipe to thousands through books and through classes at the two herb schools she founded.  The people who learned about fire cider from Rosemary taught others, and it caught on quickly.  The folk process took hold, and within a decade, people who had never heard of fire cider were making their own varieties and telling people it was an old, traditional remedy.

In a sense, fire cider really is an old, traditional remedy, it just happens to be a variant  named and created by a particular person.   Oxymels — medicines infused in vinegar and honey — have been part of the traditional western apothecary since at least the time of Hippocrates, who took most of his ideas from Egyptian medicine.   Pungent, spicy, and aromatic herbs have been used by people to prevent and treat respiratory infections by nearly every culture throughout recorded history. Gladstar notes that at the time she created fire cider, cayenne oxymels (though sometimes made with maple syrup instead of honey) were popular in rural New England, as was a fire cider-like product called Cyclone Cider.   She was happy to have her particular recipe and its name become part of folk tradition and never charged anybody royalties on the recipe or the name.

Then, in 2012, unbeknownst to Gladstar or the herbal community, a company called Shire City Herbals based in western Massachusetts filed for, and was granted, a trademark on the name “Fire Cider.”   Early last year, they began sending letters making legal threats to herbalists who called their products fire cider, and had Etsy remove all other fire ciders from its marketplace.   An outcry ensued, and herbalists first tried to convince Shire City Herbals to drop its trademark and then organized a campaign to have the trademark cancelled and a boycott of the company.

One of the company’s founders, Dana St. Pierre, says that his product was inspired by his grandmother’s horseradish honey and that nobody at Shire City Herbals had ever heard of fire cider when they named their product and put it on the market.   It makes sense that St. Pierre and Gladstar were independently inspired by the same plants and the same traditions, and fire cider is an obvious name to give to a spicy oxymel.   What’s troubling and puzzling is the company’s insistence on aggressively protecting its trademark even after learning that Rosemary Gladstar had been using the same name for an almost identical recipe in published materials for three decades.

Shire City Herbals’ tactics became even more aggressive in April, when they filed a $100,000 lawsuit against three herbalists — Mary Blue, Nicole Telkes, and Kathi Langelier — accusing them of damaging the company’s business by petitioning the US Trademark Office to revoke the company’s trademark (even though St. Pierre himself has, in the past, said that challenging the trademark is the appropriate legal channel for resolving the controversy.)

The lawsuit brings up important issues around the commercialization of folk medicine and about the distinctions between capitalism and commerce that have swirled around herbal medicine for centuries.

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It makes sense that New England would provide the backdrop for the fight over fire cider.  Poverty and lack of access to conventional medicine kept folk medicine alive in rural New England well into the mid-twentieth century, just as it did in Appalachia and in the desert Southwest, and the encounter between old timers and back to the land hippies in the 1960’s and 1970’s brought a revitalization of herbal traditions.

New England folk medicine has some of its roots to the medicine of rural Britain.  In Britain, in the time leading up to and including the rise of capitalism, there were two systems of medicine, one for the rich and one for the poor.  The rich depended on male university trained physicians who emphasized bloodletting and medicines made from toxic minerals.   The poor depended on medicine made mainly from plants, which was primarily the province of women.   Most rural women knew enough herbal medicine to care for their families, and every village also had women with deeper, and sometimes darker, knowledge who would be called on in dire circumstances.   During the plague epidemic of 1665 the poor actually fared better than the rich because their folk medicine tended to be more effective and have more fewer adverse effects than the mercury and bloodletting favored by the physicians of the time.

During the enclosures, the forced privatization of communal rural landholdings, women with medical knowledge were often targeted for persecution, in part because of their role in holding together communities, and in part because of capitalism’s need to control reproduction to maintain a workforce for production.  (If you have not already, read Silvia Federici’s Caliban and the Witch.)  In the cities, medical licensing became more formalized and enforced during this era.

Some of those displaced by the enclosures found themselves in colonial New England (just as many of those displaced by Scotland’s clearances ended up in Nova Scotia,) where physicians were scarce and expensive, and brought their herbal knowledge with them.   Indigenous medicine filtered into rural New England culture as well, even as the people it arose from were being wiped out by genocidal warfare and new diseases.    There were a handful of doctors in rural New England, but most people’s health care came from women carrying knowledge passed down by previous generations or on the skills of itinerant “Indian Doctors” — some of them English-speaking Indigenous men, others white men with knowledge of Indigenous medicine.

Then, at the turn of the nineteenth century, came Samuel Thomson.    Thomson, a farmer’s son with no formal education (who nevertheless had read Galen and Hippocrates,)  patented a system of medicine that incorporated, without credit or acknowledgement, elements of British folk medicine, Galenic medicine, and Abenaki medicine.    Thomson is best remembered by contemporary herbalists for the malicious prosecution he was subjected to by a court in Massachusetts due to the conniving of a physician trying to eliminate the competition.    But he was also the inventor of the multilevel marketing scheme, who privatized knowledge that had been part of the commons, and sold it through agents across the United States in the early days of the country.    He was famously litigious, as ready to go after people he suspected of infringing on his patents as the licensed physicians were ready to go after him.

Thomson lived in Surry, New Hampshire, not far from Pittsfield, Massachusetts, where Shire City Herbals is based.

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The difference between Thomson and the folk healers of his era marks the distinction between capitalism and commerce.   Both were paid by others — whether through money or barter — for their medicines and their knowledge.   But the “Indian Doctors” and the women in rural communities who did healing work operated largely within the sphere of what the late Murray Bookchin would call a “moral economy” — they were serving a community’s needs, and the web of relationships they were involved in within that community shaped a moral framework in which they operated.  What they were engaged in was commerce — the exchange of money, goods, and services — but it wasn’t capitalism — they weren’t paying other people to make money for them.   Whereas Thomson was engaged in a the market economy, driven by profit, and putting the needs of his own enterprise first.  He was also engaged in a capitalist economy, having set up a network of agents, and profiting from their labor.

A similar distinction can be drawn between Shire City Herbals and the herbalists they are suing.

Shire City Herbals makes much of the fact that the are a small company, started by three people. But they have a national distribution network and were promoted on “Dr. Oz.”   They are guided by some ethical concerns — they use local, organic ingredients, for example, make donations to charity, and use their Facebook profile to educate people about issues like the dangers of genetically modified foods.  But, ultimately, they put the needs of their enterprise ahead of the needs of a broader community.   They defend their decision to trademark the name “fire cider” by saying that if they hadn’t done it then a bigger, less ethical company eventually would have.   They defend their decision to go after smaller producers calling their products “fire cider” — including some who were selling fire cider for decades before Shire City Herbals was founded — by saying that trademark law requires them to lest the term become generic.  Ultimately, they don’t hold themselves accountable to any community.

In contrast, Mary Blue, Nicole Telkes, and Kathi Langelier are guided by a sense of responsibility to their local communities and to the community of herbalists.  Blue and Telkes both run schools that train community herbalists and have worked as street medics in demonstrations and as volunteers in the Common Ground Clinic in New Orleans in the wake of Hurricane Katrina.  They have provided at least as much free health care and free education as they have been paid for.   Langelier handcrafts medicine from plants she grows or gathers herself in midcoast Maine, guided by a desire to help people reclaim a greater role in their own healthcare.   All three have been involved in the herbal community for years, promoting ecologically responsible engagement with the healing plants growing around us.

Blue, Telkes, and Langelier are standing up against the privatization of folk medicine, in defense of the commons.   To find out how to support their legal defense go to http://www.freefirecider.com.

9 Comments »

  1. Well, I wouldn’t trust anything “Dr Oz” says, although many hang on his every word. For me, if he endorses something, I would avoid it for my own safety.

    I think herbalists are correct in petitioning the US Trademark Office to revoke the company’s trademark, because it’s not trademarkable as a brand if so many were using it generically long before. Some firm’s attorneys gave bad advice when they allowed that trademark application to go forth.

    Bayer, Kimberly-Clark, Xerox, and 3M now see the terms aspirin, kleenex, xerox, and scotch tape used. I don’t hear them raising much of a fuss. I worked in a non-copier division of Xerox, and I always say photocopy. I don’t Google things, because I use a different search engine.

    Liked by 1 person

  2. Thank you for taking the time to write this! My heart has been heavy since this whole mess started and I feel so much frustration with the company for not backing down and now filing a law suit against others!! Where does the assault on herbal medicine end?

    Liked by 1 person

  3. More than a few decades have passed since I took the one law school course I ever took on patents, trademark, and copyright, and it’s certainly not my area, but I have to say that I sincerely doubt that ” nobody at Shire City Herbals had ever heard of fire cider when they named their product and put it on the market.” A simple Google search, to make sure that you weren’t infringing someone else’s trademark would have been the most minimal amount of due diligence necessary. And, certainly, before you trademarked the name, your lawyers would have done a search and realized that the term is in common use. It’s like trying to trademark “apple cider” or “balsamic vinegar.” Coke may be able to police its trademark by making sure no one sells you Pepsi when you order Coke, but Coke can’t trademark “soda.”

    Liked by 3 people

  4. EXCELLENT ARTICLE!! I MET ROSEMARY IN EASTON MA, AT THE INTERNATIONAL HERBALIST SYMPOSIUM IN 2007 WHERE SHE GAVE HER FIRE CIDER RECIPIE.

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  5. This is written excellently, with so many insights. It does not matter legally whether these individuals knew about Rosemary’s books or the term being used before (they were even born?). Legally it can be demonstrated that the term was in use long before their trademark and thus can’t be “owned” by these chumps. Regardless, their claim to it is illegitimate in every way. We need to make and share and teach and use the term “fire cider” more frequently than ever before. Shire City deserves to be boycotted widely, their b.s. actions exposed and quelled, in addition to whatever legal pressures can be utilized to boomerang their masters plan. And those of us who make income selling plants and plant medicine can commit to honest checking of ourselves and re-devote to sharing knowledge, skill, self reliance above personal profits. Though I know we all need to make a living. Now is a good time to protect the integrity of incredibly diverse traditions of plant medicine and help keep some things in this world sacred. Like precious traditional knowledge – what we have left of it, what we can piece together and what we can genuinely create together

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