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In Food We Trust
The Politics of Purity in American Food Regulation
By Courtney I. P. Thomas UNIVERSITY OF NEBRASKA PRESS
Copyright © 2014 Board of Regents of the University of Nebraska
All rights reserved.
ISBN: 978-0-8032-7640-6
CHAPTER 1
Escape from the Jungle
The U.S. food safety regulatory regime rests upon the statutory authority of two laws passed at the turn of the twentieth century: the 1906 Pure Food and Drug Act and the 1906 Meat Inspection Act. Prior to 1906 there were no national food safety regulations in the United States. Instead there was a hodgepodge of state and local laws and ordinances that were based more on the quality of food than on its safety. Because food production and distribution networks prior to the twentieth century were, for the most part, intrastate, this decentralized framework appeared both appropriate and adequate. However, as those networks became national in scope, demands emerged for national regulatory systems.
The 1906 Food Safety Revolution
Although national food purity bills were debated in the United States beginning in the 1890s, 1906 was a watershed year for food safety regulation. Widespread demands for change followed the publication of two investigative studies: first, A Popular Treatise on the Extent and Character of Food Adulterations (1890) and second and far more infamous, The Jungle (1905).
A Popular Treatise on the Extent and Character of Food Adulterations was written by Alex J. Wedderburn and commissioned by Dr. Harvey Washington Wiley, a pioneer of food chemistry who served as the chief chemist in the USDA beginning in 1882. The 1890 treatise warned consumers that "every article of food is to a greater or less extent the subject of adulteration.... From the cheapest and most simple article of diet to the most expensive the art of the manipulator has been applied." Wedderburn wrote, "In selling you pepper [the manufacturer] forgets to add to the words 'Pure Pepper,' on the label, the words 'compounded with burnt metal, mustard, cayenne, buckwheat hulls, pepper dust, etc.'" The American people, he concluded, were being cheated by food producers. More than this, adulteration was a risk to consumer health.
Wedderburn's report documented food adulteration in numerous products across multiple states. In 1902 Dr. Wiley used the report and others like it to convince Congress to appropriate $5,000 for a study of the impacts of preservatives, a common if relatively new food additive, on human volunteers. Known as "poison squads," Wiley's researchers discovered that many of the chemicals used in food preservation, including borax, boric acid, copper sulfate, potassium nitrate, saccharin, salicylic acid, salicylates, sulfuric acid, sulfites, benzoic acid, benzoates, and formaldehyde, were harmful to human health. However, although research clearly indicated that the United States was home to serious food safety concerns, change seemed unlikely. Wiley reported that he "despaired of ever getting a [food safety] law" through the Congress. "Pure Food bills in the Senate had been regularly committed to the Committee on Manufacturers," he wrote, "much as an infant would be left to starve in a barren room."
That changed with the 1906 publication of Upton Sinclair's The Jungle. Although the book dedicated relatively little space to the meatpacking industry, the graphic descriptions it contained were so heinous that several publishers refused to distribute the manuscript and censored it for commercial audiences. Still, readers were made physically ill by descriptions of rats being tossed into meat grinders and the unsanitary practices of workers in the slaughterhouses. As Philip J. Hilts writes, "Particularly disturbing were the accounts of the workers, sick with tuberculosis, spitting onto the floor, then dragging butchered meat across it. There were tales of meat in storage rooms, rotting and covered with rat droppings, which was then made into sausage, detritus and all. There were even tales of workers who had fallen into the great acidic lard vat and become, after their bones had been fished out, a part of 'Durham's Pure Leaf Lard.'"
Consumers, unable to stomach the graphic details of food production in The Jungle, launched a market response. Within weeks of the novel's publication, meat sales in the United States fell by half as consumers demanded regulation and accountability in food production. In response Congress outlined the 1906 Meat Inspection Act, a consumer protection measure designed to ensure that meat and meat products would be wholesome, unadulterated, and properly branded, labeled, and packaged. Composed of four primary requirements, the law mandated (1) inspections of all cattle, sheep, goats, horses, swine, and chickens before slaughter; (2) the postmortem inspection of each carcass; (3) the establishment of sanitary standards for slaughterhouses and meat-processing plants; and (4) the continuous monitoring and inspection of slaughterhouses and meat-processing plants by USDA officials. In addition it gave the USDA the authority to remove its inspectors from a slaughterhouse or processing plant, effectively stopping operations and preventing the distribution of potentially adulterated or putrid meat products.
For Wiley, this proposal represented the culmination of more than twenty-five years of work on behalf of the pure-food lobby. The Jungle had created public support for food safety legislation. During debates on the bills, Senator Weldon B. Heyburn of Idaho queried, "Has there even been in the history of this country a more universal demand for action upon the part of Congress than the demand that has gone up from one end of the country to the other in regard to legislation upon the pure-food question?"5 But the passage of the 1906 legislation was not guaranteed. Despite its popularity, Congressman James W. Wadsworth, a cattleman who served as chair of the House Committee on Agriculture, refused to bring the Meat Inspection Act to a vote. Instead the meat industry offered what it called a "compromise measure," a proposal that President Theodore Roosevelt declared "so bad that in my opinion, if [the provisions] had been deliberately designed to prevent the remedying of the evils complained of, they could not have been made worse." In this case, though the public was on their side, bill supporters faced a fundamental political problem that still plagues the American system: the power of entrenched and wealthy interests, particularly within the legislature. As Hilts writes, "Corporations and elected politicians were partners, while individual citizens had little standing before the Congress."
To force Congress to act, progressive politicians turned to the press. President Roosevelt released the Neill-Reynolds Report, a government investigation that confirmed even Sinclair's most scandalous observations about conditions in the meat-processing and packaging industry. The strategy worked. As Hilt writes, after the release of the government report, "even the mainstream members of the industries to be regulated were asking for some bill that would save their hides from the constant flailing they were receiving." Congress thus passed the 1906 Meat Inspection Act, sending it to the president for his signature.
The Meat Inspection Act was a victory for the Pure Food Movement, but because it regulated only the meat industry it solved only a fraction of the problem. Congress proposed a Pure Food and Drug Act, but it faced a longer and divisive political struggle, in part because it would create the country's first federal regulatory agency, the Bureau of Chemistry. That agency, which is the predecessor to the Food and Drug Administration, would be empowered to determine the safety of hundreds of substances and to confront questions of economic fraud in the food and drug industries. This expansion of federal authority, based on the Interstate Commerce Clause, was widely controversial at best and unpopular at worst.
The final draft of the legislation relied, first, on product-labeling standards to prevent fraud and, second, on purity requirements to prevent product adulteration. Under its provisions food would be considered adulterated if it "was missing a key ingredient (such as flour in bread), or if its inferior quality was masked by coloring, powdering, coating, mixing, or staining." Any food that was "filthy, decomposed, or putrid" or that included the addition of any "poisonous or other added deleterious ingredient which may render such article injurious to health," such as preservatives investigated by the Poison Squad, would be considered adulterated under the 1906 law.
Both the 1906 Pure Food and Drug Act and the 1906 Meat Inspection Act are generally understood as public interest legislation. "According to this view," write Clayton A. Coppin and Jack High, "the leaders of the pure food movement, and Wiley in particular, are portrayed as morally upright, solicitous of the health and welfare of the consumer, and opposed to shoddy products and fraudulent labeling.... Those opposed to the act are portrayed as corrupted businessmen and politicians, including Nelson Aldrich and other Old Guard senators." But, they argue, "the movement for a national food law came from food commissioners, agricultural chemists, manufacturers of expensive foods, representatives from rural agricultural states, and a small number of middle-class women. The rhetoric of regulation was 'pure food for the mass consumer,' but its impetus came from the professional classes." Yet another interpretation is that the laws were co-opted by special interests that used them to advance their own purposes. Donna Wood argues that both laws can be understood as the product of conflicts "not between honest and dishonest producers, as the public interest theory suggested, but rather between legitimate business interests that were intent on using regulation to gain an advantage over their competitors." Wood called this process "the strategic use of public policy."
Both interpretations are, to some extent, correct. The original push for the legislation came from elite activists who were stakeholders in the Pure Food Movement. The broad public outcry that followed the publication of The Jungle catalyzed change to the status quo. But the laws that were ultimately passed by Congress did represent the interests of the established food industry in ways that Dr. Wiley and members of the Pure Food Movement opposed. For example, Congress did not authorize funds for the enforcement of the Pure Food and Drug Act, nor did it permit federal authorities to determine that the law was violated. Instead the Bureau of Chemistry would have to take each offender to court and prove that each food was adulterated or misbranded. The final penalty could not exceed $200 for the first offense. As a consequence the law was a vague statute replete with weak language, loopholes, and imprecise provisions, a step in the right direction perhaps, but flawed and limited nonetheless. Though he recognized its limitations, Dr. Wiley categorized the law as a success and took over as the head of the Bureau of Chemistry, where he would work to implement its provisions. In 1912 he left the FDA to become the director of the Bureau of Foods Sanitation and Health for Good Housekeeping magazine, where he developed the Good Housekeeping Seal of Approval, one of the oldest systems of third-party certification in the United States.
The Coca-Cola Case
Dr. Wiley chose to leave the government because of Coca-Cola. Coca-Cola was released in the late 1800s. It was a "soft" drink designed to appeal to consumers in a country arrested by the temperance movement. The product's formula contained saccharin, caffeine, alcohol, and cocaine. The temperance movement had forced the company to remove virtually all of the alcohol, but the remaining ingredients posed two problems: first, the 1906 framework classified cocaine as a poisonous substance; second, Dr. Wiley considered saccharine to be an adulterant. Let us be clear: the 1906 law did not prohibit the addition of poisonous substances to foods; it merely required that poisonous substances be listed on the product label. Adulterants, on the other hand, were illegal. Dr. Wiley's law therefore made it legal for Coca-Cola to contain cocaine so long as it was properly labeled but prohibited the use of saccharine. Saccharine would eventually be added to (and subsequently removed from) the list of known carcinogens. But in 1906 its health risks were relatively unknown, while those of cocaine were well established. Why the double standard? The answer lies with Dr. Wiley's personal perspective on food purity.
Dr. Wiley was a crusader against food adulteration, but he was ultimately concerned about economic fraud. "The injury to public health," he said, "is the least important question ... [and] should be considered last of all. The real evil of food adulteration is deception of the consumer." He was not concerned with health so much as he was with guile, opportunism, and deceit. To pass muster with Dr. Wiley's standards, Coca-Cola dutifully removed the cocaine and the saccharine from its product. But it left the caffeine, an ingredient that was not on the list of poisonous substances and that was present in many popular beverages, including tea and coffee. The Coca-Cola Company assumed the caffeine would pose no problems with the government.
It was wrong. Dr. Wiley argued that caffeine was an adulterant in Coca-Cola. Unlike tea and coffee, which contained caffeine naturally and which everyone knew to be caffeinated, caffeine was an additive in Coca-Cola. Moreover the company claimed that Coca-Cola was a healthy beverage, suitable for children. The people, especially the children, Dr. Wiley argued, had to be protected.
Dr. Wiley sent inspectors into the production and bottling plants to investigate the product. The federal investigator reported, "The kettle in which the syrup was made appeared to boil over occasionally, and it was surrounded with filth of every description, including sticks, dirt, straw, and all sorts of debris.... Dead mice and similar things have been found in the sirup barrels and kegs after they have been emptied." With regard to the bottling process, "if, for example, some foreign material is present in a dark bottle, it is likely to be overlooked and left inside, and the bottle filled with the beverage. The cleaning, as a rule, is very superficial, and only a small portion of filth is removed."
After inspecting the main Coca-Cola factory, federal inspectors seized thirty-seven barrels and twenty kegs of Coca-Cola syrup. The case became known as The United States v. Forty Barrels and Twenty Kegs of Coca-Cola. It was the second case under the Food and Drug Purity Law to go to court. The government charged that Coca-Cola was misbranded and adulterated; it was misbranded because it contained only minuscule amounts of the coca leaf or the kola nut and adulterated because of the caffeine content. The law dictated that a product was adulterated if it included a deleterious additive. To win its case, the government had to prove that caffeine was both harmful and an added ingredient.
Government witnesses told the jury about the unsanitary conditions in the production facilities. They argued that Coca-Cola was poisonous. They testified that the seized syrup had included straw, a part of a bumble bee, and other insect fragments. A Methodist evangelist reported that excessive use of Coca-Cola at a girls' school led to "wild nocturnal freaks ... violations of college rules and female proprieties, even immoralities." But, in the end, the judge ruled that the product was not misbranded because it did contain coca and kola, albeit in tiny amounts, and that caffeine was not an additive to the product since it had been part of the formula since the drink was invented. Congress moved to amend the Pure Food and Drug Act to add caffeine to the list of habit-forming and deleterious substances that had to be included on the product label, but Coca-Cola successfully killed the proposals.
(Continues...)
Excerpted from In Food We Trust by Courtney I. P. Thomas. Copyright © 2014 Board of Regents of the University of Nebraska. Excerpted by permission of UNIVERSITY OF NEBRASKA PRESS.
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