How Chemists Pushed for Consumer Protection: The Food and Drugs Act of 1906

Wiley himself, while appreciating the challenges of agricultural production and food manufacturing, had a rather limited tolerance for the addition to food of chemical preservatives and other substances, such as sodium benzoate, caffeine, sulfur dioxide, saccharin, and nitrogen peroxide (in bleached flour). He clashed with Secretary of Agriculture James Wilson and President Roosevelt over several actions and policies, and in 1907 Wilson, much to Wiley’s chagrin, created a Board of Food and Drug Inspection to help administer the law, consisting of Frederick L. Dunlap, a University of Michigan chemist; the solicitor of the Department of Agriculture; and Wiley as chair. Soon thereafter Roosevelt, following a disagreement with the chief chemist over the value of saccharin, assembled a Referee Board of Consulting Scientific Experts to review Wiley’s decisions. The board was made up of an illustrious group of chemists: Ira Remsen of Johns Hopkins, the chair; Russell Chittenden of Yale; John H. Long of Northwestern; Christian Herter of Columbia; and Alonzo E. Taylor of California. Though some expected Wiley to resign over this latest effort to dilute his authority, he remained with the bureau until 1912.

The bureau organized laboratories and inspection posts in Washington and around the country to enforce the new law. Divisions devoted to drugs and to food soon emerged in Washington, with several laboratories in each. The Division of Drugs, for example, had laboratories devoted to synthetic products, essential oils, pharmacology, and drug inspection. Twenty-eight inspectors reported for field service in June 1907, a number that grew to 39 the following year, and they were assigned to about 20 branch laboratories scattered around the country, in addition to other strategic locations. The initial group of inspectors came from many different backgrounds. Some were chemists, though law, pharmacy, medicine, and other callings were represented, too. A member of the Coast Guard, rewarded for performing heroic service with the choice of any position in the federal government he wanted, elected to become a food and drug inspector.

The penalties meted out for offenses under the Food and Drugs Act, often not much more than $50, were inconsequential to many firms, as related in one chief chemist’s report: “Not infrequently firms are encountered which repeatedly violate the law, paying the fines imposed . . . , but apparently regarding these penalties as in the nature of a license fee for doing an illegitimate business.” The bureau nevertheless enforced the law vigorously, moving especially against manufacturers or industries that had ongoing problems conforming to the law. For example, adulteration of olive oil with cheaper vegetable oil was a common problem. So was the practice of inadequately reconditioning certain imported goods, such as cacao beans, lentils, and selected crude drugs, to meet legal requirements; the bureau eventually required destruction or export of such products as a routine measure. Products prone to bacterial contamination, such as crabmeat and butter, also received frequent citations. The government published over 31,000 different notices of actions taken against violative products under the 1906 act, and it won the vast majority of contested cases.

One prominent case the bureau did not win concerned enforcement of the prohibition of false or misleading drug labels. In 1911 the Supreme Court ruled that the Food and Drugs Act did not apply to false therapeutic claims, in part because of the court’s belief that medical knowledge itself was often less than certain and thus not subject to government regulation. President William Howard Taft protested that this ruling threw in doubt over 150 cases against patent medicines, “involving some of the rankest frauds by which the American people were ever deceived.” Congress attempted to remedy this the following year by passing the Sherley Amendment, which made it illegal to sell drugs that the manufacturer knew to be worthless. But establishing fraudulence in court could be difficult, and consequently many egregious nostrums that claimed to cure diabetes, cancer, and other serious illnesses remained on the market.

The Food and Drugs Act was a substantial leap for consumer protection across the country, making entire industries accountable for their actions for the first time. But this pinnacle of Progressive Era legislation had weaknesses beyond the difficulty of securing decisions against some outrageous nostrums. Cosmetics and medical devices could be subject to proceedings by the U.S. Post Office if they used the mails under false or fraudulent pretenses, or by the Federal Trade Commission if advertising were employed in a way that put other firms at an unfair disadvantage. But neither type of commodity was covered in the systematic way that food and drugs were under the 1906 law. While established compendia could be invoked when pressing actions against drugs for violating official standards of identity, no such enforceable standards existed for foods. Two firms might have very different ideas of what peanut butter or jelly or even bread was supposed to be.

Ingredient listing of products was, with the exception of those 11 stipulated in the law, voluntary. And though the inspectors frequently visited manufacturing establishments to ensure compliance with the law, this was a right assumed by the bureau; the 1906 act did not address factory inspections explicitly. Finally, there was nothing, other than its own ingenuity, to keep a firm from introducing a product on the market. There was no legal mechanism to block the marketing of a drug, for example; no requirement that it be safe, much less that it actually work (the Sherley Amendment notwithstanding).

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