1906, the United States Congress, after more than 25 years of proposals,
counterproposals, bills defeated, and bills allowed to die in benevolent
and sometimes not so benevolent desuetude, passed the U.S.
Pure Food and Drugs Act. It was one of the first consumer
protection acts passed in the United States--the first if you ignore
an 1878 Tea Act, designed to protect the U.S. from inferior teas.
For an act propelled into law through a focus on food, the law was
surprisingly and seriously flawed in its food provisions. The first
flaw was apparent even before the law was passed. Offshoots of the
food industry (principally manufacturers of rectified or blended whiskey
and chemical preservatives including formaldehyde, borax, copper salts,
salicylates, saccharin, and sodium benzoate) defeated a provision
which would have allowed the government to set standards for food
products. These manufacturers rightly feared that if Chief Chemist
Harvey Wiley had had his way in administering a law with food standards
provisions, chemical preservatives would not be allowed in food products.
Beginning in 1898, Wiley himself had pioneered in the establishment
of the nation's first food standards as a member of the Food Standard
Committee of the Association of Official Agricultural Chemists (AOAC),
so the nation's food industries had enjoyed a preview of what food
standards might look like. Concerned that the established standards
might be so strict as to eliminate some products from the marketplace
entirely, these food industries inserted a so-called "distinctive
name proviso" into the law. This second flaw was not quite so
obvious until the 1920s brought a heyday in inventive advertising,
and the Great Depression of the 1930s created a market for cheap,
inferior products. And this is where jelly first enters my sandwich
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.
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.
#131--See the Exhibit
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.
#132--Deficiencies of the 1906 Federal Food and Drugs Act of 1906
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.
President Roosevelt's wife, Eleanor, a tireless advocate of causes,
toured the exhibit.
# 16--Eleanor Roosevelt
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.
#158--American Chamber of Horrors
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.
# 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.
#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.
#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.
#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
#137 - STRINGLESS BEANS--This explains the standards
as established under McNary-Mapes (1930 Canner's Amendment for)
#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%.
#156--CHICKEN AROUND GLASS--White meat displayed in a
thin layer in front of the glass--the dark meat is hidden behind
#155--CHICKEN IN GLASS--The jar has mostly dark meat.
The white meat is merely a thin veneer at the front of the glass.
#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.
#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
#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).
#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.
#161--BOTTLE COMPARISON--Bottle sizes and shapes obscure
the true contents of the bottle.
#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.
#141--QUALITY BORIC ACID--the can on the left had only
8 oz. The same can actually held 16 oz.
#140--LANFORD PURE VANILLA EXTRACT--extracts were expensive
and particularly vulnerable to deception--even the box sizes were
#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
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.
Society for the Social History of Medicine
Spring Conference 1999
"Science, Medicine and Food Policy in the Twentieth Century"
Suzanne White Junod, Ph.D.
Historian, U.S. Food and Drug Administration
April 9, 1999
References and Credits: