“The Soup” – Is Soup a Meal?

Although most New Yorkers have spent the last week trying to figure out what exactly Governor Andrew Cuomo meant when he said that bars must also serve a “meal” as part of outdoor dining, this question was first addressed 25 years ago in an episode of Seinfeld – “The Soup.” After overly eager comedian Kenny Bania gives Jerry a brand new Armani suit, Jerry agrees (see note below) to take Bania out for a “meal” as a thank you. But when Bania only orders a soup at his dinner with Jerry, the two debate whether this soup actually constitutes a meal. Who’s right? Jerry? Bania? And whose side is Cuomo on?

(Editors’ Note: In an earlier post, we determined that Jerry was not obligated to take Bania out for a meal. In this post, we analyze whether Jerry fulfilled his end of the bargain anyway.)

Before we even discuss that, though, we first have to figure out what it is that Jerry and Bania actually agreed to. Initially, Bania says “I’ll tell you what — you can take me out to dinner sometime.” But then just a few minutes later, he follows up with “Yeah. You buy me a meal.” Throughout the remainder of the episode, Jerry and Bania each refer to the terms of the deal as either “dinner” or a “meal.” For some help, our researchers turned to Merriam-Webster which defines “dinner” as “the principal meal of the day.” Given this definition and that Jerry and Bania use “dinner” and “meal” interchangeably,  we think it is fair to conclude that Jerry can take out Bania for either dinner or any meal and fulfill his end of the bargain.

But what exactly is a meal? On July 16, 2020, New York Governor Andrew Cuomo told reporters that bars and restaurants must serve a “meal” to patrons ordering drinks, or else they would be in violation of New York’s Alcoholic Beverage Control Law. This is to prevent “mingling” and ensure diners remain at their own table. A few days later, Governor Cuomo said in a press conference that bars “had to have food available — soups, sandwiches, etc. More than just hors d’oeuvres, chicken wings. You had to have some substantive food — the lowest level of substantive food were sandwiches.” We will refer to this as the “Cuomo standard,” which defines a meal by whether it generally requires someone to be seated while eating. For example, wings can be eaten while standing and mingling but a soup or a sandwich usually requires someone to be seated.

For added clarity, the New York State Liquor Authority recently published a Q&A writing that restaurant patrons must be presented with a “sit-down dining experience . . . i.e. a meal, and not a drinking, bar-type experience.” The same Q&A also adds that soups or sandwiches, as well as “foods which are similar in quality and substance to sandwiches and soups; for example, salads, wings, or hotdogs” all would fulfill the “meal” requirement. We will note that while there appears to be some disagreement over whether chicken wings count as a meal, it is certain that by the “Cuomo standard” either a soup or a sandwich counts as a meal.

At the dinner at Mendy’s, Bania orders a soup. At the time, we don’t know which soup he orders but, later, Jerry discusses the evening with Elaine and reveals that Bania ordered the consommé. Elaine thinks that this alone does not qualify as a meal, but a more “hardy” soup like Chicken Gumbo, Matzah Ball, or Mushroom Barley would certainly qualify. Elaine also asks questions about whether Bania ordered a cup or a bowl of soup and notes that if Bania had crumbled crackers into his soup, which Bania did, that “could be a meal.” We can call this the “Elaine standard,” which defines a meal by its substance.

So did the Mendy’s dinner of soup and crackers qualify as a “meal.” Well it depends by who’s standard. According to the “Elaine standard,” we think it does not. The New York Liquor Authority Q&A specifically says that “a bag of chips” is not enough to serve with a drink under the law and a bar selling specially made “Cuomo chips” was found not to be in compliance with the rule. As even Elaine notes, crumbling some crackers into a bowl of consommé “could” be a meal, but it is clear from the clip that she doesn’t exactly believe that a bowl of soup with some crackers is really a meal.

But by the “Cuomo standard,” which differentiates between whether a restaurant patron is either “mingling” or having a “sit down dining experience,” we think the dinner at Mendy’s qualifies as a meal. Anyone who has eaten soup, even just consommé, knows that it is nearly impossible to eat soup while standing up or walking around. Therefore, any soup, even consommé, would qualify as a meal under the Cuomo standard because it is a sit down dining experience.

Under either standard, Jerry certainly bought Bania a meal later in the episode when the two have lunch at Monk’s and Bania orders both tomato soup and tuna on toast. This, as Jerry notes correctly, “completes the transaction” for the Armani suit. Even if tomato soup on its own might not be enough to constitute a meal according to the “Elaine standard,” since, like consommé, tomato soup is not “hardy,” as it is essentially just a warm tomato juice drink, tuna on toast should most certainly be considered a sandwich. New York state even includes “tuna” in its definition of a “common sandwich.” Thus, the lunch is both substantive and requires the parties to remain seated. As such, Jerry has fulfilled his end of the bargain in buying Bania a meal.

Or has he?

There is still yet a third standard we must discuss: the “Bania standard.” This, as might be expected, is an incredibly high bar to clear and encompasses factors from both the Elaine and Cuomo standards, as well as a third factor related to the ambiance of the meal, i.e. “dinner in a nice restaurant, like Mendy’s”. These three factors are: (1) a substantive meal (the Elaine standard); (2) a sit down dining experience (the Cuomo standard); and (3) a certain elegance or aura of the meal, but not “lunch in a coffee shop.” However, since Bania has some selfish interests in this transaction, we at Seinfeld Law do not think his standard would be appropriate to use in this instance. (Editor’s Note: see our discussion on “The Newmannium” for the contractual principle that ambiguous terms like a “meal” should be interpreted against the drafter of the contract.)

We at Seinfeld Law do not think Jerry was under any obligation to take Bania out for a meal to begin with. But even if Jerry was obligated, that first bowl of consommé was enough to satisfy Governor Cuomo and lunch was enough under our interpretations of either the Cuomo or Elaine standard. Since Cuomo is the one setting the rules in New York, we think it’s fair to go with his approach.

Consommé? That’s gold, Jerry. Gold!