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Food Standards and the 1906 Act

Absent from both the British and the US statute was any provision for the establishment of compositional food standards, although in the UK, standards were fixed, largely at the behest of the Board of Agriculture, for butter and milk to protect ‘honest’ farmers against competition.[4]  Food standards had existed since ancient times for standard commodities such as bread, but food adulteration at this time was certainly more pervasive over a broader range of goods.[5] Oleomargarine, saccharin, baking powders, etc. were entirely new commodities competing with traditional foods such as sugar and butter. It was not difficult to condemn formaldehyde used to preserve milk as both a cheat and a danger to health, but it was not known whether borax, for example, could be safely used to preserve meat. The earliest specifications for pure food required, therefore, in defiance of ordinary logic, a committee.

In Britain, as French and Phillips have described, the Society of Public Analysts took up the fight for compositional food standards. In the US, there were similar and parallel efforts by state chemists and state food officials. The earliest food standards were adopted under state laws in order to protect local agricultural commodities, such as pure Vermont maple syrup, from deceptive imitations. The only national standard for a US comestible before 1906 was adopted to prevent substandard teas from being ‘dumped’ in America.[6] In 1897, however, the Association of Official Agricultural Chemists (AOAC) established the first national food standards committee, headed by Wiley. The Bureau’s authoritative studies of food composition and adulteration were already familiar to Congress and the public. The AOAC, which worked to establish and promote uniform methods of food analysis, quickly recognised the need for standards of identity to assist agricultural chemists in interpreting their data. Chemists clearly needed to know what normally comprised a particular food in order to detect deviations. A second food standards committee, more concerned with establishing and enforcing food quality standards, was established shortly thereafter under the auspices of the Association of State Food and Dairy Officials.

By 1900, the AOAC had published some tentative definitions and standards for a few foods. In 1902, Congress appropriated funds to facilitate and support their work. Shortly thereafter the group began publishing some well researched food standards, just as the final legislative push for enactment of the 1906 Act began.[7] As chemists, their standards for ‘pure’ foods were compositional in content and written in laboratory language citing upper and lower limits for ash content, water content, solids, and fats. In 1904, the Supreme Court ruled in favour of the quality standards established in the 1897 Tea Act.[8] In upholding the law, which blocked the importation of substandard teas, the Supreme Court gave substance to the worst fears of ‘blended’ whiskey manufacturers and those making inferior, often chemically preserved, foods. Fearing that any kind of legal food standards would be used to declare their products illegal, their collective reaction was swift and powerful. Sympathetic Senators cut all appropriations for food standards work and eliminated all provisions for legal food standards in the pending food and drug bill.[9] Wiley bitterly lamented the outcome, writing to Food Standards Committee chairman William Frear that ‘I do not think any more vicious thing ever happened in the modern history of American legislation than this’, and concluding that ‘the first great legislative victory has been won by the opposition’.[10]

After more than twenty-five years of proposals, counterproposals, bills defeated, and bills allowed to die in benevolent and not-so-benevolent desuetude, the 1906 Pure Food and Drugs Act became law in 1906. Historians generally credit the slump in meat sales following publication of Upton Sinclair’s socialist novel, The Jungle, with the final push for enactment. According to Lawrence Friedman, The Jungle ‘made a point that the food industry understood better than sentiment or socialism. If pure food legislation would restore public confidence ... it was well worth the price of regulation, at least for the reputable firms. [11]

Although legal standards for foods had been defeated, the earlier standards already published did prove useful.[12] Some were incorporated into state statutes. [13] In other states, they remained ‘advisory standards’. Legally, they were subject to cross-examination in court where some standards were upheld and others overturned. Eventually, the early standards became increasingly outdated as science and technology changed. By 1923, Congress itself dictated a national standard of identity for butter. [14]

The 1906 law outlawed any food that was ‘an imitation of or offered for sale under the distinctive name of another article’, but considered such food legal if tagged ‘so as to plainly indicate that they are compounds, imitations, or blends’. [15] Initially officials felt that such derogatory terms would protect traditional foods, but without standards of identity to assign a ‘distinctive name’ to a familiar food, the provision offered little protection. In 1909, a jury condemned Mapleine, a product held misbranded for falsely claiming ‘to contain a product of the maple tree’. [16] Despite this condemnation, the judge effectively defined a legal loophole. He instructed the jury that a distinctive name was ‘either one so arbitrary or fanciful as to clearly distinguish it from all other things, or one which by common use has come to mean a substance clearly distinguishable by the public from everything else’ [17] In 1916, the Supreme Court ruled that the popular beverage ‘Coca Cola’ met these criteria. [18] From that point on, distinctive names became an important legal defence for manufacturers as well as an opening wedge for government prosecutions. By the late twenties, the issue was sufficiently confusing that at least one judge openly questioned the law’s intent. [19]

 


[4]See Chapter 2 for details concerning the development of British legislation.
[5]P. B. Hutt and P. B.Hutt II, ‘A History of Government Regulation of Adulteration and Misbranding of Food,’ Food, Drug, and Cosmetic Law Journal, 1984, vol. 39, pp. 2–73.
[6]29 Stat 604 (March 2, 1897). S. White Junod, ‘Tempest in the Teapot,’ FDLI Update, 1996, vol. 2, issues 2 and 3, p. 6.
[7]US Department of Agriculture, Office of the Secretary, Standards of Purity for Food Products, Circular 10, Washington, 1903 (also Circulars 13, 17, and 19).
[8]William J. Buttfield v. Nevada N. Stranahan, 1904, 192 U.S. 470.
[9]O. Anderson, The Health of A Nation, Chicago, University of Chicago Press, 1958, pp. 153–4; Young, op. cit., pp. 161, 162, 264, 265.
[10]H. W. Wiley to William Frear, 25 May 1906, FDA History Office, Rockville, MD (hereafter FDAHO) file ‘Letters showing history and growth of food standards’.
[11]L. M. Friedman, A History of American Law, New York, Simon and Schuster, 1973, p. 586. 
[12]B. Gutterman and T. Bellis, ‘Food Standards – A Brief History’, unpublished ms., 1965, FDAHO, Food Standards file.
[13]Savage v. Jones, 1912, 225 U.S. 501.
[14]42 Stat. 1500 (1923).
[15]34 Stat. 669, 674 (1906), Section 8.
[16]M. White and O. Gates, Decisions of Courts in Cases Under the Federal Food and Drugs Act, Washington D.C., GPO, 1934, p. 39.
[17]Ibid., p. 40.
[18]Ibid., p. 741.
[19]Ibid., p. 1204.


Next: Advisory Food Standards under the 1906 Act: Jelly Jarred