Concern Over Purity of Mustard Leads to Prosecutions

Thursday, February 10, 2005

Page 15

REMINISCING (Column)

Concern Over Purity of Mustard Leads to Prosecutions

By ROGER M. GRACE

Even before Congress enacted the Pure Food and Drug Act of 1906 banning “adulterated or misbranded” products intended for human consumption, laws were enacted by individual states to promote wholesomeness of groceries sold within their borders.

One food product drawing particular scrutiny was mustard, whether dry or prepared.

The need for scrutiny was quite real in a time when the stream of commerce was being polluted with food products containing deleterious fillers. But, as I noted last week, the distinction between adulterants and useful added ingredients was sometimes missed.

Consider the case of People v. Snowburger, decided by the Supreme Court of Michigan in 1897. The high court affirmed the conviction of one Michael Snowburger for selling adulterated dry mustard.

The information alleged that Snowburger “did offer for sale, and sell, to Carl Franke, an adulterated article of food, to wit, a quantity of mustard, to wit, a quarter of a pound, colored and adulterated with tumeric, whereby the said mustard, as an article of food, was damaged, and its inferiority concealed, and whereby it was made to appear of better and of greater value than it really was, the same not being a mixture or compound recognized as ordinary articles or ingredients of articles of food.”

Tumeric—or “turmeric,” as it’s usually spelled—is a spice contained in curries. It’s used less often, at least in this hemisphere, for its flavor than for its contribution of yellow coloring (attributable to its constituent curcumin). Turmeric is in wide usage today in the preparation of mustards and, far from causing a danger to humans, has been found recently to be an antioxidant and to possess anti-carcinogenic properties.

None of this could possibly have been envisioned by the Michigan Supreme Court in 1897. That court, reasonably or not, accepted, without discussion, the proposition that the addition of turmeric necessarily satisfied two of the alternative elements of the offense: damaging the product and concealing its inferiority.

The court devoted its attention to whether the statute created a strict liability crime. The justices held that it did, declaring: “Under this statute, one making sales [of foods] must do so at his peril.”

The peril was, of course, great for a storekeeper or tradesman selling sacks of powders possibly purchased by the barrel. The individual merchant of dry goods had no control over the level of purity and surely lacked the ability to make a chemical analysis.

The peril to that merchant, or to the consumer, stemmed from the absence of any requirement of detailed labeling of ingredients by the manufacturers.

Legislation did come to center on labeling. For example, Illinois’ State Food Commission in 1907 decreed:

“Dry mustard must be pure.

“Prepared mustard must be free from starch or adulterant of any kind, and, if consisting of mustard, vinegar and spices, may be sold when labeled ‘Prepared Mustard.’

“A preparation of mustard, vinegar, spices, and enough filling of starch to make a mustard of mild flavor to meet a legitimate demand which undoubtedly exists, may be sold when labeled ‘Prepared Mustard Compound.’ Harmless coloring matter may be used in preparations of mustards only to secure uniformity of appearance.”

Rules and Regulations promulgated that same year by the dairy and food commissioner of Pennsylvania declared: “Prepared mustard shall bear upon the label thereof a distinct statement of all of the ingredients and the percentage of mustard contained therein.”

Cracking down on adulterated foods was in favor with the populace, so it was inevitable that some extremism would attend the enforcement of labeling laws. In 1917, a prosecution was brought in Albany, New York, against Eugene W. Durkee in connection with the labeling of Durkee’s Salad Dressing and Meat Sauce, a product that had been on the market for half a century.

The state’s labeling law did not require a specification of all ingredients in products sold in the state but, to the contrary, spelled out:

“[N]othing in this article shall be construed as requiring or compelling proprietors or manufacturers of proprietary foods which contain no unwholesome added ingredients to disclose their trade formulas, except in so far as the provisions of this article may require to secure freedom from adulteration or imitation.”

The commissioner of agriculture insisted Durkee’s product was comprised of “mustard to which has been added acetic acid, a well-known poisonous ingredient, and sodium chloride, and is sold upon the market without disclosing to the public the nature of the product.”

The trial court did not accept the premise that acetic acid was a poison given that “[a]ccording to the Agricultural Law all genuine vinegar must contain acetic acid.” Sodium chloride is salt.

A dismissal of the complaint was affirmed on appeal.