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Advisory Food Standards under the 1906 Act: Jelly Jarred

Under the 1906 Act, the Bureau of Chemistry prosecuted, generally unsuccessfully, accurately labelled products such as ‘Fruits in Sugar – Strawberry. Not a Preserve’.[20] Wiley’s successor, Carl Alsberg reconstituted a Joint Committee on Definitions and Standards in 1914.[21] The Committee’s new standards were published between 1913 and 1938 in Service and Regulatory Announcements (SRA) as a guide to enforcement actions.[22] For jams and preserves, the Joint Committee adopted a standard specifying not less than 45 lb. of fruit to each 55 lb. of sugar. In 1917, in anticipation of World War One, SRA 20 allowed for the addition of pectin to fruits with too little pectin ‘as long as it did not disguise damage or inferiority and the presence of the added pectin was noted on the label’.[23] The war created a marked expansion in the jam, jelly, and preserve industry to supply US and allied troops. Afterwards, the industry was overbuilt and sought volume sales with low prices. By 1919, Robert Douglas had patented a process for producing refined pectin, making it possible to make better preserves without using green fruit, but also making it possible to make a jelly without using fruit at all. Regulators, concerned that pectin was being used to cheapen jams, convened a trade hearing on 16 April 1924.

In June, the Supreme Court issued a landmark ruling against deceptive apple cider vinegar. Regulators were optimistic when the judges stated unequivocally that ‘the statute is plain and direct. Its comprehensive terms condemn every statement, design, and device which may mislead or deceive’, and admonished that ‘it is not difficult to choose statements, designs, and devices which will not deceive’.[24] Commissioner Charles A. Browne, taking the justices at their word, promptly notified preservers that no action would be taken against products with 25–45 lb. of fruit for every 55 lb. of sugar, and containing pectin, if they bore a compound label. Officials illustrated just how such a compound product should appear in comparison with a jar of pure strawberry jam. With such an austere label, they felt consumers would not be likely to confuse the two products (Figure 11.1).

Two jelly jars

 

Figure 11.1  Proposed label for 'compound product'. 
© US Food and Drug Administration.

 

Not surprisingly, manufacturers of the compound jams were less enthusiastic. Meanwhile, the Food and Drugs Administration (FDA) continued to fight off amendments by proponents of corn syrup which would have allowed the use of cheaper corn sugar in place of expensive cane sugar without declaring it on the label.[25] Rejecting the government’s compound label, many companies became even more bold and inventive in creating ‘distinctive names’ for their products, including one company that created an entire line of low fruit products coloured and flavoured to resemble preserves. Packaged in expensive glass jars and given the fanciful and ‘distinctive’ yet meaningless name, BRED-SPRED [sic], it quickly became a regulatory target for both state and federal officials. Bred-Spred typified the kind of inferior product that had begun to compete with the products of traditional jam and jelly manufacturers after the war, but its attractive packaging and aggressive advertising lent an appeal that previous compound products had lacked. Both in 1927 and again in 1931, the government lost in court. The courts were not persuaded by the government’s argument that the product was adulterated because pectin had lowered its quality and concealed inferiority, or that it was misbranded because it was an imitation of jam with deceptive ‘pictorial designs’ of fruit on the label. The Department of Justice refused to refer the case to the Supreme Court, leaving the Bureau of Chemistry to lament the ‘untold difficulty’ caused by the distinctive name proviso and taking the unusual step of recommending its repeal.[26] Similarly, ‘Salad Bouquet’, weak vinegar promoted for use ‘like vinegar’, and ‘Peanut Spred’, with a low proportion of peanuts, were also marketed under ‘distinctive’ names. (Figure 11.2).

3 different size jars containing liquid

 

Figure 11.2 Inferior products marketed under 'distinctive names'. 
© US Food and Drug Administration

 

Meanwhile, pressure was mounting on the Department of Agriculture to adopt quality grade labelling for canned foods. Women’s groups and home economists were strong advocates for such standards.[27] The majority of the canning industry and the National Canners’ Association, however, opposed quality grade labelling, believing that housewives would want only high quality products. Nonetheless, concerned about competition with truly low-grade, branded products, they persuaded Congress to pass the McNary-Mapes amendment to the 1906 Act in 1930.[28]

The amendment authorised standards of quality, condition, and/or fill-of-container for most heat-sterilised, hermetically sealed canned foods. It did not authorise definitions and standards of identity, and without funding, the initial work was done only on peas (Figure 11.3), peaches, apricots, cherries, pears, and tomatoes.[29] Substandard products had to display a so-called ‘crepe label’: ‘below U.S. standard, low quality but not illegal’.[30]

 

4 women standing behind a table looking at contents in bowls

Figure 11.3  Consumers judging peas following the McNary-Mapes amendment. 
©US Food and Drug Administration.

 

Preservers tried to get their standards included under this law, but the Secretary of Agriculture refused to extend the statute to jarred products.[31] FDA also supported the industry’s unsuccessful efforts to get Congress to enact legal standards for jams and jellies.[32] In 1933, however, as part of President Franklin Roosevelt’s ‘New Deal’, the National Industrial Recovery Act (NIRA) was passed, which included provision for the establishment of Codes of Fair Practice to be enforced by a new agency, the National Recovery Administration (NRA).  Preservers adopted one of the earliest codes containing quality standards. In contrast, the canned food industry, with support from grocery manufacturers, adamantly opposed the inclusion of any quality food provision in the Canner’s Code. Still convinced that consumers preferred brands to any system of quality designations, the industry prevailed. Nevertheless, they were surprised when, contrary to their wishes, an Executive Order was issued requiring industry to formulate quality standards for eventual incorporation into the canned food code.[33]

The NRA scheme was short lived, its Blue Eagle symbol of compliance brought down by the US Supreme Court in the infamous ‘sick chicken’ case. In 1935, a poultry producer challenged the authority of the NRA to enforce the industry Code forbidding transport of allegedly ill or unfit chickens. The Court unanimously ruled that a federal agency such as NRA had no jurisdiction over interstate commerce. [34]  Although historians generally consider the NRA a failure, some enduring successes, such as eliminating child labour in textile factories, did demonstrate the merits of many rational policies promoted by trade associations.[35] The National Preservers’ Association enlisted the aid of the Federal Trade Commission (FTC) in 1936, which did issue ‘cease and desist’ orders against violators, but on a case by case basis.[36]

FDA experts testified at the FTC preserve hearings, but the agency’s attention was focused, beginning in 1933, on drafting and passing a new federal food and drug act to replace the 1906 ‘Wiley’ Act. The economic depression had left the food field in a ‘jam’; pesticides were increasingly problematic; misleading drug advertisements and drug prosecutions were on the upswing; and cosmetics with dangerous ingredients remained unregulated. New Deal Secretary of Agriculture, Rexford Tugwell, secured permission from President Roosevelt to begin drafting a new food and drug bill.[37] The initial ‘Tugwell’ bill drew such a hostile response from industry that Senator Royal Copeland took up the cause for a new act.[38] Weak standards modelled on McNary-Mapes were expanded to all foods in his initial revision of the food and drug bill, but Copeland was soon persuaded by women’s organisations at the first hearings on the bill in 1934, that the standards provisions should be strengthened.  Alice Edwards conveyed the personal support of the President’s wife, Eleanor Roosevelt, for quality grade labelling at the hearings.  Representing the American Home Economic Association, Edwards testified that such standards were ‘highly desirable from the point of view of the consumer, for the good of the industry itself, and for the building of consumer confidence in the advertising of these products’. [39]  Women’s groups also championed value for the consumer.   Citing current economic hardships, Edwards advocated standards to fight against ‘economic injustices’ noting that ‘if the commodity is one that does not give the consumer value for his money he should have an opportunity to know this even if the commodity is not so inferior as to injure health.[40]  Harvey Wiley’s widow also appeared in support of a revised bill, even though it would replace her husband’s chief legacy. She complained that of nearly nine hours of hearings, only twenty-five minutes had been devoted to views of consumers, and made it clear that, in her view, food standards had the firm support of consumers.[41] Apart from the jam industry, women remained almost exclusively the ones championing food standards for the new law. Historian Charles Jackson notes that ‘what distinguished them [women’s groups] from militant bodies such as Consumers’ Research was that failure to get all they wanted had little effect on their zeal’.[42]


[20]W. Janssen, ‘A Case History on Food Standards’, speech delivered to the Annual Convention of the National Preservers Association, Chicago, Illinois, 3 March 1952, p. 3, FDAHO, Food Standards file.
[21]‘Food Standards Committee of the Food and Drug Administration,’ Science, 1938, vol. 88, p. 234–5.
[22]H. Lepper, ‘The Evolution of Food Standards and the Role of the A.O.A.C.,’ Food, Drug, and Cosmetic Law Journal, 1953, vol. 8, pp. 133–89, at p. 146.
[23]Service and Regulatory Announcements, Food Inspection Decision 221, July 2, 1917.
[24]U.S. v. Ninety Five Barrels, More or Less, Alleged Apple Cider Vinegar, 1924, 265 U.S. 438; 1931 Annual Reports, p. 741. White and Gates, op. cit., pp. 1118–21.

[25]F. Linton, ‘Federal Food and Drug Laws – Leaders Who Achieved Their Enactment and Enforcement,’ Chicago, Commerce Clearing House, 1950, pp. 60–62. R. Lamb, American Chamber of Horrors, New York, Farrar & Rinehart, 1936, p. 171.
[26]Annual Reports, p. 742.
[27]Ruth Lamb cites as supporters: ‘American Home Economics Association, National League of Women Voters, General Federation of Women’s Clubs, National Council of Women, American Association of University Women, American Federation of Labor, Consumers’ Research and every Government agency that was by way of knowing anything about the subject’, Lamb, op. cit., p. 183.

[28]46 Stat. 1019 (1930).
[29]Annual Reports, p. 746.
[30]Service and Regulatory Announcements, FD no. 4, rev. 2 revised labeling requirements for substandard goods. The original crepe label was retained for vegetables, but for fruits the new crepe label read: ‘Below U.S. Standard, Good Food, Not High Grade’, Annual Reports, p. 1781.
[31]Janssen, op. cit., p. 4.

 [32]Hearings Before the Committee on Agriculture and Forestry, U.S. Senate, 71st Cong., 2d Sess., April 16 and 24, 1930, Washington D.C., GPO, 1930.
 [33]R. Lamb op. cit., pp. 183–4. Lamb credits connections to Eleanor Roosevelt with the surprise Executive Order.
 [34]R. Grover, An American History, Reading, PA, Addison and Wesley, 1976, p. 843.
 [35]G. Tindall, America: A Narrative History, New York, Norton, 1984, pp. 1074–5.
 [36]‘Preserve Standards Now before Federal Trade Commission,’ The Glass Packer, 1936, vol. 15, pp. 429–30; D. Forbes, ‘Enforceable Standards for Food Products,’ The Glass Packer, 1938, vol. 17, pp. 163–4.
 [37]P. Dunbar, ‘Memories of Early Days of Federal Food and Drug Law Enforcement,’ Food, Drug, and Cosmetic Law Journal, 1959, vol. 14, p. 134.

 [38]‘Over the Bumps with the “Tugwell” Bill’, Food Industries, 1934, vol. 6, pp. 23–5.
 [39]Legislative History of the 1938 Act, 1974, vol. 2, p. 95.
 [40]Ibid
 [41]Ibid., p. 170.

 [42]C. Jackson, Food and Drug Legislation in the New Deal, Princeton, NJ, Princeton University Press, 1970, p. 66.