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Explore This IssueAugust/September 2019
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The section of the U.S. Code (21 U.S. Code § 342) that governs adulterated food begins innocuously, with the words “A food shall be deemed to be adulterated…” That simple directive, however, is followed by more than 1,200 words of dense legalese, an extraordinary amount of information to define something as seemingly straightforward as whether a food is adulterated.
By contrast, the First Amendment to the Constitution, which grants freedom of speech, freedom of religion, freedom of the press, and the right of the people to peaceably assemble is 45 words in length. The entire Bill of Rights is fewer than 500 words. Likewise, Merriam Webster’s definition of “adulterate” is only 17 words. Why then, does the statute need an additional 1,200 words?
In short, the statute is exhaustive because it must be. To serve its intended purpose, the federal adulteration statute must address a complicated nexus of enormously important (and often competing) societal concerns. Broadly speaking, food safety brings into play social, political, demographic, and economic interests. Effective adulteration laws, in turn, must anticipate and address all possible risks—microbiological, manufacturing, and, perhaps most difficult, risks associated with human greed and ingenuity. That is to say, adulteration standards must simultaneously cast a wide enough net to capture all foreseeable risks while avoiding loopholes that would defeat the purpose of the law.
The safety and plentitude of food in the U.S. is truly extraordinary. In fact, never in human history has any society had access to such a wide variety of safe and wholesome products. On the contrary, historically most people have lacked access to safe and healthy food. Even today, an estimated 800 million people are going hungry globally. Most Americans, however, take for granted that the food they eat is safe. We trust, for the most part, that our food is free of contamination (microbiological, chemical, or otherwise), that ingredient statements are accurate, and that the food we consume will not be injurious to ourselves or our loved ones. That is a truly remarkable, albeit largely overlooked, reality.
The History of U.S. Food Safety Laws
Currently, there are 15 federal agencies responsible for administering dozens of federal food safety laws. This may seem excessive but given the importance of safe and wholesome food to our collective national health, security, economy, etc., it is in fact unremarkable. Put differently, food touches every aspect of our society, and as a result, the laws pertaining to its safety must necessarily do so as well.
Congress enacted the first food adulteration laws in the 1880s, but most experts regard the early 1900s, when Congress enacted sweeping food safety laws, as the de facto advent of American food safety regulation. The timing was due to a confluence of factors, including the emergence of transnational food shipments (made possible by the rapid expansion of railroads), the application of electricity, the invention of refrigeration (which allowed perishable food to be shipped nationally) and, most importantly, a series of scandals that shocked and enraged the nation.
One scandal, which appeared on the cover of The New York Times, involved Chicago meat producers who shipped chemically and economically adulterated beef—so-called “embalmed meat”—to American soldiers fighting in the Spanish-American War. The contaminated meat is believed to have caused thousands of illnesses and deaths among American soldiers. At the time, most Americans were unaware of the widespread economic and chemical adulteration practices being employed by American food manufacturers.
The tipping point came six years later, in 1905, with the publication of The Jungle by Upton Sinclair. The novel, which detailed the atrocious and insanitary meatpacking practices in the Chicago Stockyards—enraged Americans and led to the 1906 enactment of the Federal Meat Inspection Act (FMIA) and the Pure Food and Drug Act.