I've been wondering why, when a restaurant says something is "homemade" but it's clearly not made in somebody's home, that's not considered false advertising. If homemade doesn't imply made at home then what's the difference between something that's homemade and something that isn't?
(As another example, I imagine the case I'd similar with things like "sun-dried tomatoes" although I can't really prove it one way or another.)
Why does a word like “homemade” not constitute false advertising?
It is not amount to false advertising when its mention in the advertisement matches the common, ordinary usage of the term. In that case, the advertisement does not deceive or mislead the customers. The law only sanctions practices that are deceptive, not those which are substantially truthful.
From another standpoint, see Black's Law Dictionary entry for Home Office:
As applied to a corporation, its principal office within the state or country where it was incorporated or formed.
This legal definition reflects that the word home does not necessarily require or imply personal residence.
If homemade doesn't imply made at home then what's the difference between something that's homemade and something that isn't?
An item which is supplied (whether substantially or in its entirety) by an external entity would not be considered homemade.
In the context of restaurants, it is obvious that the ingredients are supplied from outside and therefore are not homemade (or homegrown). But if most or all of the preparation of a dish takes place at the facility, it would reasonably meet the criterion of being homemade. This is in contrast with a scenario where the labor of preparation is minimal because the product is delivered to the facility practically in its final, consumption-ready state.
As mentioned in this article on food advertising, a charge of flaew advertising under US Federal law (the Lanham Act) requires that there be:
A false or misleading statement, one that is either directly false or deceptive in effect
Reasonable reliance on the statement. An obviously incredible claim, or a wildly implausible interpretation of a statement will not lead to a successful suit for false advertising
A material representation, that is a statement or claim likely to affect the decision to purchase the item.
It is not reasonable to take a statement such as "homemade" on a restaurant menu or the label of food commercially mass-marketed, and think that this means that it was cooked in someone private house. Therefore, such a statement is not false advertising.
There is a limited but growing market for so-called "cottage food", food actually made in a private home, as described in this article. In those cases calling something "homemade" when it isn't might be false advertising.
