Food Standards Under the 1938 Food, Drug, and Cosmetic Act: Bread and Jam
But what was a food standard to look like? Congress thought that standards of identity would resemble a ‘recipe’.[48] Foods would be defined in terms of home recipes for goods consumers could readily identify and one would find in any well-stocked pantry. FDA supported the concept of a recipe approach because it simplified enforcement. Lawyers, major food companies, and ingredient manufacturers had few objections because in many cases the standards recognised and even promoted the use of certain products and ingredients. Competitors met on a level playing field encompassing both foreign and domestic food manufacturers.[49]
The first standards issued were for tomato products, settling a long-standing dispute over the use of benzoate of soda as a preservative.[50] The standard did not recognise benzoate of soda as an ingredient, either mandatory or optional, in ketchup.[51] The second set of standards was for jams and jellies. It was a relatively easy standard to establish, since cookbooks over two hundred years old all agreed that jellies should be about half fruit or juice and half sugar, but its symbolic value was high. In a crushing blow, however, the Supreme Court ruled that a product labelled ‘Delicious Brand Imitation Jam’ with only 25 per cent fruit, instead of the 45 per cent required under the standard, could be marketed conspicuously labelled as an ‘imitation’.[52] FDA had argued that Congress had not intended that such a product be marketed at all, since it did not meet the standard, and was marketed in competition with standardised products. In practice, the word ‘imitation’ did not prove commercially popular and was rarely used.
The recipe approach worked well with simple recipes during the 1940s and early 1950s and was upheld by the courts.[53] Recipe standards for enriched foods helped eliminate a number of nutritional deficiency diseases in the post-war era, particularly in southern states.[54] When challenged, the Supreme Court upheld the government’s approach, ruling that manufacturers had to adhere to the mandated formula in the standards or cease to enrich their foods altogether.[55] By 1957, standards had been set for many varieties of chocolate, flour, cereals and cereal grains, macaroni products, bakery products, milk and cream, cheese, butter, non-fat milk solids, dressings (mayonnaise), canned fruits, juices, preserves and jellies, shellfish, canned tuna, eggs, margarine, and canned vegetables.
In 1954, hearing procedures were modified to waive hearings in undisputed cases. The amendment, however, also allowed ‘any interested person’ to initiate the standard-setting process. These procedural changes made the hearing process unwieldy, undermining FDA’s own food agenda, and creating an open forum for trade wars.[56] What Congress had intended to be a fact-finding process began to resemble a trial between adversaries. The hearings to set standards for enriched white bread best illustrates the new complexities in the food standards process by the mid-twentieth century.[57]
FDA officials had a saying based on years of regulatory work that anyone with a new food additive or ingredient tried it first in bread.[58] With little information about the safety of some of these proposed new ingredients, FDA turned to the standards hearings as one way to limit the introduction of new chemicals into the food supply. In the earliest bread hearings, begun in 1941, there had been minor disputes over the suitability of several new ingredients including mono and di-glycerides, hydrogenated shortening, soy lecithin, and some so-called dough ‘conditioners’. The final standards allowed most of the former ingredients, but disallowed some of the dough conditioners. World War Two then intervened and these standards were put on hold. During the war, bread was subject to a war food order mandating enrichment. After the war, when the bread hearings were re-opened, FDA elected not to mandate enrichment, but rather to write separate standards for enriched and for non-enriched products. The hearings, however, quickly began to revolve around the admission as optional ingredients in standardised bread of a new class of additives, known as polyoxyethylene monostearates (POEMS). The substance was variously described as an emulsifier, a ‘crumb softener’, a ‘staling retardant’, and an additive ‘to prolong palatability and softness’. Had the manufacturer limited its petition to a few products from this new line of chemical additives, observers felt that they might have been successful. It was painfully clear to everyone at the hearings, however, that all twenty-seven emulsifiers had not been subjected to the same level of scientific scrutiny for either safety or suitability for use in bread. Of course, the Institute of Shortening Manufacturers and Edible Oils opposed the inclusion of this new class of competitive ingredients in the standards for white bread, and ably represented by a future Supreme Court Justice, Potter Stewart, they successfully converted the hearings into a full-fledged trade war.
The government, in a thankless attempt to locate more neutral grounds for debate, could not simply express its concerns about the safety of the new emulsifiers and the adequacy of their testing. Instead, under the law, the government had to show that the new ingredients would not promote ‘honesty and fair dealing in the interests of consumers’. FDA, therefore, began to build its case trying to show that the softeners deceived customers as to the freshness of a loaf of bread. It was this issue, more than any other, that led the hearings into absurdity. Consumers, it was universally acknowledged, tested bread by squeezing the loaf. The question in dispute, therefore, became ‘Did consumers conclude from squeezing, that a softer loaf was a fresher loaf’? All the tools of modern psychology and social science were brought to bear on the task of dissociating softness and freshness. In a supervised taste test, women were simply asked to indicate a preference for one of two slices of bread, and to choose which one seemed fresher. Straightforwardly, it was reported that four of five women chose the bread with the softener as the fresher loaf. A statistician giving evidence for the defense, however, insisted that the more accurate conclusion was that ‘1100 consumers preferred soft bread and those who preferred soft bread preferred the bread made with the softener. Those who preferred firm bread, however, had noticed no differences between the control bread and the test bread’. Finally, the statistician testified that ‘for those who prefer the soft bread, the test bread is preferred both for its softness and for the factors other than softness (presumably taste, texture, grain, etc.) while the control bread is preferred for its firmness.’ This profound conclusion so confounded lawyers and listeners alike that the statistician was held over for cross-examination the next day. And so it went for day after day of the bread hearings. It was not until 1950 that a Federal Register notice formally announced the exclusion of POEMS from the standards of identity for white bread.[59]
Meanwhile, Congress appointed a Select Committee to Investigate the Use of Chemicals in Food Products.[60] This Committee’s work led to the passage of the 1958 Food Additives Amendment which established a pre-market approval process for new food additives similar to that applied to new drugs, requiring new food additives to be shown safe and suitable before they were allowed in food products.[61] A similar Color Additives Amendment was enacted in 1960.[62] Scientific petitions on food safety replaced pitched battles over food standards. Although the new amendments removed additive safety debates from the standards process, they did not noticeably speed up the process, and it still took over a decade to issue standards for peanut butter.
[48]R. Merrill and E. Collier, ‘Like Mother Used to Make,’ Columbia Law Review, 1974, vol. 74, p. 567.
[49]S. R. White [Junod], ‘Chemistry and Controversy, Regulating the Use of Chemicals in Foods, 1883–1959,’ unpublished PhD thesis, 1994, Emory University, pp. 259–63.
[50]Ibid., pp. 46-95; A. Smith, Pure Ketchup, Columbia S.C., University of South Carolina Press, 1996, pp. 77–118.
[51]The courts upheld the standard’s prohibition of benzoate of soda in Libby, McNeill & Libby v. United States, 148 f.2d 71(2d Cir.1945).
[52]62 Cases of Jam v United States,1951, 340 U.S. 593.
[53]Merrill correctly views the 1940s and 1950s as a period of enthusiasm for increasingly narrow standards, but this judgment has the benefit of hindsight. R. Merrill and E. Collier, ‘Like Mother Used to Make,’ p. 576. Also, H. Austern, ‘The F-O-R-M-U-L-A-T-I-O-N of Mandatory Food Standards,’ Food, Drug, and Cosmetic Law Quarterly, 1947, vol. 2, p. 532.
[54]Federal standards combined with state statutes, for example, helped eliminate pellegra and beriberi in the US. D. Roe, A Plague of Corn, Ithaca, NY, Cornell University Press, 1973, pp. 132–3.
[55]Federal Security Administrator v. Quaker Oats, 1943, 318 U.S. 218; S. White Junod, ‘Whose Standards Should Prevail?: Quaker Oats’ Battle Over Bottled Sunshine’, FDLI Update, 1999, vol. 5, no. 2, p. 12; R. Apple, ‘Patenting University Research: Harry Steenbock and the Wisconsin Alumni Research Foundation,’ Isis, 1989, vol. 80, pp. 375–94.
[56]68 Stat. 54 (1954)
[57]This account of the bread hearings is summarized from S. White op. cit. pp. 254-308.
[58]M. Markel, ‘Baking Industry Progress,’ Food, Drug, and Cosmetic Law Journal, 1951, vol. 6, p. 782.
[59]17 Federal Register, 15 May 1952, p. 4453.
[60]Hearings Before the House Select Committee to Investigate the Use of Chemicals in Food Products, 81st Cong., 2d Ses., 1950.
[61]72 Stat. 1748 (1958).
[62]74 Stat. 397 (1960).
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