The Rise and Fall of Federal Food Standards in the United States

This distinctive name proviso permitted the marketing of foods that would have otherwise been illegal under the 1906 Act. In the case of jam and jelly, they would have been considered adulterated or misbranded under the law since they had so little fruit. Beautiful food dye hues, artificial pectin, and grass seeds, accompanied by expensive yet tasteful packaging, and promoted through clever advertising, all created a new kind of fabricated product. Given a fanciful and "distinctive" yet meaningless name BRED-SPREAD, this product typifies the kind of inferior product which began to gain a foothold in the U.S. marketplace beginning in the 1920s.

SLIDE 492--BRED SPRED

CAPTION: Salad Bouquet for use "like vinegar," Peanut Spred with few peanuts, and Bred Spred, with a low fruit content and high pectin content were heavily advertised and sold well during the Depression. Consumers had no way of knowing that the products were of low quality.

How did this happen? In World War I, there had been quite a marked expansion in the industry to supply our Allies, esp. the British, as well as our own military with jams, jellies, and preserves. After the war, the overbuilt industry had to go after volume sales with low prices. The development of refined pectin under the Douglas patents made it possible to make much better preserves without using green fruit, but it also make it possible to make sugar and water alone jell. In the marketplace, standards spiraled downward. The consumer could not depend on the labeling or the appearance of the product to guarantee its contents or quality. The only official food standards were voluntary "advisory" standards of the Bureau of Chemistry, forerunner of the present U.S. Food and Drug Administration. As an old-timer described the situation, "there never was a product made but some gosh darn fool could make it worse and sell it for less." The market for fabricated foods under this "distinctive name" proviso grew rapidly following the 1929 stock market crash.

Preserves were not the only consumer products caught in a downward economic spiral in which the incentive was to make products worse. Canned fruit and vegetable manufacturers finally went to Congress and got the so-called "Canner's Amendment (McNary-Mapes) enacted in 1930 which allowed the establishment and enforcement of canned foods, excluding meat and milk products. Substandard products could be sold but did have to carry a so-called "crepe" label--a black label announcement that announced that while a product was good food, it was poor quality.

The preserving industry tried to get standards for its products ushered in under this law, but the Secretary of Agriculture refused. Meanwhile the government lost its legal cases against Bred Spred. In 1933, as part of President Franklin Roosevelt's New Deal, the National Recovery Act was passed, and the preserve industry quickly adopted a Code of Fair Practices, which included product standards. But the NRA was short lived, its Blue Eagle symbol brought down by the U.S. Supreme Court, in the infamous "sick chicken" case. In 1936, the preserve industry tried to get another agency, the Federal Trade Commission to enact product standards. FTC held hearings and issued rules which did contain product standards. A series of court decisions were upheld, but the fight to get to court was an uphill battle.

In the end, it was the U.S. Food and Drug Administration that rescued the preserves industry. Beginning in 1933, the agency had begun the lengthy and politically treacherous process of replacing the 1906 Pure Food and Drugs Act with a new act.

In support of its case, it assembled a collection of problem products against which FDA had been unable to act under its 1906 statute.

CAPTION: This sign directed visitors to what a reporter dubbed "The American Chamber of Horrors"--an exhibit of problem products that the government (Food and Drug Administration, Federal Trade Commission, Post Office) had been unable to act against.

CAPTION: Title card of the Exhibit circulated during the initial phases of the effort to draft and enact what would become the 1938 Food, Drug, and Cosmetic Act.

CAPTION: Eleanor Roosevelt borrowed the exhibit and invited Congressional wives to the White House to view it. She and the congressional wives were among the most loyal of the bill's supporters throughout the five year effort at enactment.

A reporter accompanying her dubbed the exhibit the "American Chamber of Horrors." The name stuck, a book was written by the same name and promoted by consumer advocacy groups--the so-called guinea pig muckrakers, the law passed, and the exhibit itself was so persuasive that Congress enacted a law prohibiting agencies from expending funds to lobby Congress in the future.

CAPTION: Frontispiece from the book, written by an FDA Public Information official, Ruth deForest Lamb, by the same name as the exhibit. Kallet and Schlink's book on consumer frauds in the food, drug and cosmetic field contributed the name "guinea pig muckrakers" to the Depression era legislative battle. In contrast with the muckraker journalists who fought for enactment of the 1906 Pure Food and Drugs Act, it was consumer organizations, led by these so-called "guinea pig muckrakers" who supported passage of the 1938 Food, Drug, and Cosmetic Act.

I am excited to be able to share with you in slide form, some photos from the food standards section of the American Chamber of Horrors that have not been on public display since the 1930s. I think they really give you some insight into the food standards issue as it was understood during the 1930s.

SLIDE # 134--PHOTO OF EXHIBIT

CAPTION: The exhibit itself was neither flashy nor elaborate. The contents, however, were provocative.

Ultimately, the 1938 Food, Drug, and Cosmetic Act would provide for the establishment of 3 kinds of food standards 1) standards of identity 2) standards of quality and 3) standards regulating the fill-of-container. All of these standards were to be established "whenever in the judgment of the Secretary such action will promote honesty and fair dealing in the interest of consumers." In short, these standards were to ensure VALUE to the consumer of the foods. Here you can see what they were up against in the marketplace.

SLIDE #135--MALTED MILK--Although all the products have virtually the same ingredients, some are just mixed together dry while the higher quality products are mixed wet and allowed to evaporate into a uniform consistency. The consumer would have no way of determining from the label which process was used. This exhibit emphasized the need for a definition or standard of identity for malted milk.

SLIDE #183--NOODLES IN CELLOPHANE/CHICKEN--"Egg noodles"--some are really made with egg; some are just plain noodles; and then there are plain noodles packed in yellow cellophane so that they will LOOK like egg noodles.

SLIDE #172--PEACHES, TOMATOES, PEAS--Packed in glass like these examples, it is easy to pick the higher quality product; packed in cans, it is impossible. This exhibit makes the case for standards of quality.

SLIDE #137 - STRINGLESS BEANS--This explains the standards as established under McNary-Mapes (1930 Canner's Amendment for) stringless beans.

SLIDE #157--CHICKEN WITH NOODLES: HOW MUCH CHICKEN HERE?--chicken with noodles has widely divergent percentages of the valuable ingredient--chicken--9% to 15 1.2%.

SLIDE #156--CHICKEN AROUND GLASS--White meat displayed in a thin layer in front of the glass--the dark meat is hidden behind the label.

SLIDE #155--CHICKEN IN GLASS--The jar has mostly dark meat. The white meat is merely a thin veneer at the front of the glass.

SLIDES #165 - ICE CREAM--How much cream should be in ice cream and how should you inform the consumer? Personal preferences were important for ice cream.

SLIDE #174--STALEY'S MAPLE FLAVOR SYRUP--The court dismissed the case against Staley's Maple Syrup, which was only 1.7% maple syrup because of a lack of standards for "Maple Flavored Syrup" The count ruled the product was not adulterated under the law because of its "distinctive name." A similar situation existed with tomatoes.

SLIDE #175--MAPLE SYRUP ADVERTISING--Shows that the same products are labeled differently in states that require descriptive labeling--25% maple sugar syrup and 75% cane sugar syrup v. "contains less than 25% of maple sugar syrup." Latter tells the consumer nothing about what comprises the 75% that is not maple syrup (glucose syrup).

SLIDE #182 and 139--FRONT AND SIDE VIEW OF FLAVORING EXTRACT BOTTLE--thick glass obscures how much expensive flavoring extract is really in the bottle. See how the sides too, are pulled into an hourglass shape.

SLIDE #142 and 164--NEW YORKER ITALIAN GRATED CHEESE--BEFORE AND AFTER McNary-Mapes--the larger can on the left was only half full and actually contained less cheese than the can on the right.

SLIDE #140--LANFORD PURE VANILLA EXTRACT--extracts were expensive and particularly vulnerable to deception--even the box sizes were deceptive.

SLIDE #159 and 162--DOE BRAND VANILLA EXTRACT--1 and 2 oz. The one ounce bottle was bigger than the two-ounce bottle.

More consumer oriented than its 1906 predecessor, the 1938 Food, Drug, and Cosmetic Act represents a true watershed in U.S. food policy. I conclude that in the U.S., as David Smith has concluded in his work on the Scientific Food Committee in Britain, that a major turning point in consumer protection in both countries was intimately tied with removing many food decisions from the sector of the country devoted to protecting farmers (the U.S. Department of Agriculture, for example). Britain created a new organizational entity. The U.S. enacted a new law in 1938 and then put its old entity, the FDA, into a new and independent Federal Security Agency in 1940. Although this move was probably made in anticipation of U.S. involvement in WWII, I also interpret it as one of the first indications that the U.S. was moving out of the Great Depression and into a more industrialized and urbanized economy. David's research makes me think that this initial evidence of economic recovery was seen in Britain as well.

The 1938 Food, Drug, and Cosmetic Act simply eliminated the "distinctive name proviso" and required instead that the label of a food "bear its common or usual name." The food would be illegal (misbranded under the law) if it represented itself as a standardized food unless it conformed to that standard.

But what was a food standard to look like? Congress thought that standards of identity would resemble a "recipe." Foods would be defined in terms of home recipes or standards with which the consumer could readily identify. They were generally established for goods one would find in any well-stocked pantry. 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 and fruit juices, fruit preserves and jellies, shellfish, canned tuna, eggs and egg products, margarine, and canned vegetables. The first standards issued covered tomato products. The second set of standards established under the 1938 law, however, was for jams and jellies. In setting this standard, FDA accepted evidence from cookbooks and family recipes dating back at least 200 years. It was pretty clear that jams and jellies should be about half fruit or fruit juice and half sugar. It was a relatively easy standard to establish, but its symbolic value was high.

FDA initiated and supported the concept of a recipe approach to establishing food standards because it made enforcement very easy. Lawyers for major food companies and ingredient manufacturers had no objections because in many cases it recognized and even promoted use of their client's or their company's products. Competitors had few objections because it meant that they met on a level playing field and both foreign and domestic producers had to meet the same guidelines. Unfortunately, however, the recipe concept did little to promote innovation in the food industry and nothing to inform consumers about the composition of standardized foods. Under the 1938 Act, standardized foods had to list only the optional ingredients that they used in the product on the label, but not the mandated ingredients. Ironically, then, consumers knew less about the contents of standardized foods than about non-standardized products that had to list all of their ingredients on the label.

The recipe approach not only worked well during the 1940s and early 1950s, it was upheld by the courts. The U.S. government was able to eliminate a number of nutritional deficiency diseases in the post-war era by promulgating standards for enriched food products. The courts upheld the FDA's enrichment formula and ruled that the government had a rationale for its actions and that manufacturers had to adhere to the mandated formula or cease to enrich their foods altogether. Catsup that had some benzoate of soda which was not provided for in the standards for canned tomato products, including catsup, was ruled illegal. In a crushing blow, however, the Supreme Court ruled that a product labeled "Delicious Brand Imitation Jam" which contained only 25% fruit, instead of the 45% required under the standard, could nonetheless be marketed as long as it was conspicuously labeled as an "imitation." FDA had argued, that despite the accuracy of the term "imitation" in its name, 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 standardized products. This case proved to be the lone exception to the general rule that a truthful labeling cannot render a debased version of a standardized food legal. SLIDE #24 (FDA lost the case with imitation jams. As a result, substandard products were allowed to remain on the market provided they were clearly identifiable as imitation. These two products were made by the same company. One had the required 45% fruit and met the legal standard for strawberry jam; the other contained less fruit and more pectin but was clearly labelled.)

In 1953, the Hale amendment modified the food standards hearing procedures, waiving a hearing altogether in cases in which there was no dispute. This amendment, however, served as an early warning that the hearing process was beginning to become unwieldy. By allowing "any interested person" to initiate the standard-making process, FDA's own standard setting agenda was undermined. What Congress and FDA had intended to be a fact-finding process, began to resemble a trial between adversaries. The hearings to set standards for enriched white bread provide the best illustration of the new complexities that confronted the U.S. standards setting process by the mid-twentieth century.

FDA officials had a saying based on years of regulatory work that anyone who came up with a new food additive or ingredient tried it first in bread. 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 chemical substances 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 II intervened, however, 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 bread standards hearings, however, quickly began to revolve around the admission as optional ingredients in standardized bread of a new class of additives, known as polyoxyethylene monostearates. The product 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. It was universally acknowledged that consumers tested bread by squeezing the loaf and that the bread softeners kept bread softer longer. 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 one consumer preference test, researchers asserted that they had used numbers 16 and 24 to designate the test slices because "they were found psychologically correct." In a supervised taste test, women were simply asked to indicate a preference, if they had one, for one of two slices of bread, and to choose which one seemed fresher to them. In a seemingly straightforward conclusion, it was reported that four of five women chose the bread with the softener as the fresher loaf. A defense witness, however, a statistician, challenged the survey's conclusions by insisting 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, when the statistician summarized his modification of the original survey results he noted 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 p.o.e.m.s. from the standards of identity for white bread. In the meantime, Frank Keefe, a member of Congress, had introduced a resolution in the House of Representatives providing for the establishment of a Select Committee to Investigate the Use of Chemicals in Food Products. 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. Scientific petitions on food safety replaced pitched battles over food standards. Although the new law removed the need to debate the safety of additives from the standards setting process, it did not guarantee that food standard hearings would be shorter or that food standards would be issued more quickly. As we will see, even after food additive issues were removed from the food standards process, it still took over a decade to issue standards for peanut butter.

By 1958, the definition of pantry goods had changed substantially. New food products and a newly competitive refrigerated and frozen goods industry that developed in the domestic marketplace after World War II had literally redefined the household pantry. As the number of new processed and fabricated foods grew, the government spent less time issuing refined standards for products such as raisin bread and egg bread, and more time establishing new standards for products such as frozen orange juice, frozen "TV" dinners, frozen breaded shrimp, freeze dried coffee, and "instant chocolate drinks." As soon as the Food Additives Amendment was in place, FDA began to experiment with less restrictive food standards than the strict "recipe standards" that had predominated in the standards program. In 1961, FDA first deviated from the recipe approach when it issued standards for "frozen raw breaded shrimp" which simply provided for the use of "safe and suitable" batter and breading ingredients, rather than listing all optional ingredients individually. A legal definition of "safe and suitable" was later codified and used to allow "safe and suitable preservatives" or "safe and suitable emulsifiers."

The peanut butter hearings, however, were launched before this period of regulatory innovation and relaxation of standards. In 1940, peanut butter manufacturers had inquired about the addition of glycerin to peanut butter to prevent oil separation. FDA's response was ambivalent: IF glycerin could be added without rendering the food adulterated, its addition would have to be set forth prominently on the product label, according to regulators. The term "peanut butter," wrote the agency, "is generally understood by the consuming public to mean a product consisting solely of ground roasted peanuts, with or without a small quantity of added salt." Perhaps fearing another bread battle over ingredients, FDA waited until 1959, the year after the Food Additives Amendment was enacted, to launch its assault on inferior peanut butters. In a press release in 1959, FDA announced that a survey had shown that products labeled peanut butter had reduced the peanut content as much as 20% by substituting cheaper vegetable oils or hydrogenated oils for more expensive peanuts and peanut oil. FDA proposed a standard for peanut butter consisting of 95% peanuts and 5% optional ingredients including salt, sugar, dextrose, honey or hydrogenated or partially hydrogenated peanut oil. Although the FDA considered this an adulteration issue, it was clear that consumers often preferred peanut butter that spread more easily as well as peanut butter that had some sweetening. In 1961, therefore, FDA proposed a standard recognizing 90% peanuts as well as some additional sweeteners. Three competitive brands of peanut butter then entered the standards battle: Skippy, Jif, and Peter Pan. The public evidentiary hearing alone, a small fragment in the decade long process, took 20 weeks and produced a transcript of nearly 8,000 pages. A prominent attorney on the case wryly observed that the peanut butter standards "put many lawyers' children through college." Participants began to feel that they were close to arguing about the number of angels that could dance on the head of a pin when it became clear that the differences between the industrial protagonists came down to a mere 3% difference in proposed peanut content. In the end, the government did prevail as the U.S. Appeals Court affirmed the FDA order setting standards for peanut butter at no less than 90% for peanuts and no more than 55% fat. The court concluded that the Commissioner's findings were based upon substantial evidence and that the promulgation of such standards was within his authority. It was not a sweet victory, however. The peanut butter standards had merely underscored growing concerns that the food standards program in the U.S. had outgrown its usefulness. As the standards setting process had grown increasingly complex and time-consuming, it was the peanut butter hearings that made it clear that strict standards were not only becoming a waste of time and money, but actually and ultimately worked to the detriment of both business and consumers.

The experimentation and innovation in the food standards process which had been launched in 1961 with the raw frozen breaded shrimp standards, was propelled forward in 1969 following the White House Conference on Food, Nutrition, and Health convened by President Richard Nixon. An era of regulatory reform followed which transformed and modernized the food standards program with a new emphasis on nutrition. FDA, led by an energetic General Counsel, Peter Barton Hutt, took steps to insure that the agency's regulatory practices did not stand in the way of innovative food products, provided such new products were safe and informatively labeled. Freed from formulas, the ideals of a free food marketplace were close be being met during the 1970s. The agency encouraged more extensive ingredient labeling in general, and it amended food standards to require the labeling of non-mandatory ingredients. A substitute food had to carry the "crepe label" imitation only if it was nutritionally inferior to the original product. In the case of jams and jellies, this opened up the market for "fruit spreds" which had less sugar and more fruit-a far cry from the era of BRED-SPRED. Non-standardized products were authorized to state exactly what the product was, so that a food standard would be unnecessary. Seafood cocktail, contains X% seafood, for example.

Increased industry and consumer concerns about healthy diets let to 1978 regulations specifying on-the-label requirements of a reduced calorie and low-calorie food. In 1994, when Skippy, Jif, and Peter Pan all developed lower-fat peanut butters, FDA agreed with their competitors that the product did not meet FDA's hard fought standards. The agency notified the makers that the new products could be called "spreads" and compared with regular peanut butter on the label, or they could petition FDA to change the standard definition. In an era of affluence accompanied by increased concerns about the relation between nutrition, heart disease, stroke and obesity, the reduced fat peanut spreads have found a steady market and the standard has remained in tact. Basic foods are still both wholesome and competitive. They are competitive, now, however, not by strictly regulating every ingredient, optional and otherwise in the finished product, but rather by the imposition of mandatory nutritional food labels specifying the competitive components valued by consumers. Fat, fiber, sugar, and sodium specifications have made this label the most widely read standard in American history.

Summary: It is the peanut butter and jelly sandwich which both assembled and contained the basic ingredients of the United States' food standards program in the twentieth century. Scrutiny of the jelly standard illustrates the use of food standards to insure value to consumers. The bread standards illustrate the short lived use of food standards of identity to control the safety of ingredients as well as their ongoing use to enhance the nutritive value of standardized foods. And the peanut butter hearings demonstrate the wisdom of abandoning earlier strict standards in favor of a more dynamic food standards agenda. The peanut butter and jelly sandwich, itself a staple in American life, will enter the twenty first century as a living history lesson on the importance of regulating, but not over-regulating a wide variety of foodstuffs in a dynamic marketplace.

The Rise and Fall of Federal Food Standards in the United States: The Case of the Peanut Butter and Jelly Sandwich