By 1958, new food products, and a newly competitive refrigerated and frozen goods industry that developed after the Second World War, had redefined the household pantry fundamentally. With more new processed and fabricated foods, less time could be devoted to issuing refined standards for variations on traditional foods such as raisin bread and egg bread. More time had to be spent establishing new standards for products such as frozen orange juice, frozen ‘TV’ dinners, frozen breaded shrimp, freeze dried coffee, and ‘instant chocolate drinks’. The recipe concept proved ill suited to such widespread innovation in the food industry. Moreover, it did nothing to inform consumers about the composition of standardised foods.[63] Standardised foods had to list only the ingredients that were listed as optional in the food standard for that product on the product label, rather than listing all the mandated ingredients in the food standard. Ironically, consumers knew less about the contents of standardised foods than about foods for which there were no standards. Non-standardised foods had to list all of their ingredients on the food label.[64]

Following enactment of the Food Additives amendment, FDA began to experiment with less restrictive food standards. 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.[65] A legal definition of ‘safe and suitable’ was later codified and used to allow ‘safe and suitable preservatives’ or ‘safe and suitable emulsifiers’.[66]

The peanut butter hearings 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. The term ‘peanut butter’, wrote the agency, ‘is generally understood ... to mean a product consisting solely of ground roasted peanuts, with or without a small quantity of added salt’.[67] Perhaps fearing another bread battle over ingredients, FDA waited until after the Food Additives amendment was passed to launch its assault on inferior peanut butters. A 1959 press release explained that a survey had shown that products labelled ‘peanut butter’ had reduced their peanut content as much as 20 per cent, by substituting cheaper hydrogenated or vegetable oils for expensive peanuts and peanut oil. FDA proposed a standard for peanut butter consisting of 95 per cent peanuts and 5 per cent optional ingredients including salt, sugar, dextrose, honey, or hydrogenated or partially hydrogenated peanut oil.[68] Although regulators 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 recognising 90 per cent 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 twenty 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 dancing on the head of a pin when it became clear that the disagreement between the industrial protagonists was over a mere 3 per cent difference in proposed peanut content. In the end, the government did prevail as the US
Appeals Court affirmed the FDA order setting standards for peanut butter at no less than 90 percent for peanuts and no more than 55 percent fat. The court found the Commissioner’s findings to be based upon substantial evidence and the promulgation of such standards within his authority. It was not a sweet victory, however. The peanut butter standards had merely underscored growing concerns that the food standards programme in the US had outgrown its usefulness.[69] 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 a waste of time and money, but actually and ultimately worked to the detriment of both business and consumers.

Experimentation and innovation in the food standards process, first apparent in 1961 in the frozen shrimp standards, were 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 modernised the food standards program with a new emphasis on food labels and nutrition. Law professor Richard Merrill expressed the new consensus, ‘we conclude that regulation should shift away from controlling food composition and focus on providing consumers with more complete information about foods’.[70] FDA, led by an innovative General Counsel, Peter Hutt, took steps to insure that regulatory practices did not stand in the way of innovative food products, provided new products were safe and informatively labelled. Freed from formulas, the ideals of a free food marketplace were close to being met during the 1970s. The agency encouraged more extensive ingredient labelling in general, and amended food standards to require the labelling of non-mandatory ingredients. A substitute food was designated ‘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-standardised products were authorised to state exactly what the product was, so that a food standard would be unnecessary. For example, ‘SEAFOOD COCKTAIL: contains X% seafood’.

Increased industry and consumer concerns about healthy diets led to the 1978 regulations on the labelling of reduced calorie and low-calorie foods.[71] In 1994, when Skippy, Jif, and Peter Pan all developed lower-fat peanut butters, FDA agreed with 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.[72] In an era of affluence accompanied by increased concerns about the relation between nutrition and health, the reduced fat peanut spreads have found a steady market and the standard has remained intact. Basic foods are still wholesome. They are competitive, now, however, not by strictly regulating every ingredient, optional and otherwise in the finished product, but through the standard format of mandatory nutritional food labels.[73]

 

 

Figure 11.20  Modern peanut butter and peanut spread labels. 
 

 

Expansive labelling addresses many concerns over food composition. It allows the consumer to evaluate differences between branded and non-branded (generic) products, as well as to weigh the virtue of a modified food (low-fat, low-sodium, low calorie, etc.) against an unmodified product. The label reveals all food ingredients including food additives and food fortifications. It also offers nutritional profiles as a guide to achieving a more balanced diet. Fat, fibre, sugar, and sodium specifications have made this label the most widely read standard in American history.
 

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 [63]Merrill and Collier, op. cit.

 [64] The 1966 Fair Packaging and Labeling Act required that ingredients be listed in order of prominence in the food product.

 [65]30 Federal Register, 5 March 1965, p. 2860.
[66]39 Federal Register, 15 May 1974, p. 17304.

 [67]Trade Correspondence, March 15, 1940, FDA Precedent File, F-341(1)54.
[68]‘Peanut Butter – A New Food Standard Proposed by FDA’, FDA Press Release, 2 July 1959.

 [69]Merrill and Collier, op. cit.
[70]Ibid., p. 562.
[71]42 Federal Register, 19 July 1977, p. 37166; 43 Federal Register, 22 September 1978, p. 43248.
[72]‘Can you trim much of the fat and still have peanut butter’? USA Today, 6 April 1994, p. 6D.
[73]Pub. L. No. 103-417, 108 Stat 4325 (1994).

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