Food Stuff: Congressional Logic Melts Like Butter

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Kimberly Egan

Kim Egan, Partner, DLA Piper LLP

In our last post we learned that Congress spent time coming up with a national definition of “butter”. It struck me as odd, to be honest, that Congress would define food generally and butter specifically and leave the rest for FDA to figure out. The food part makes sense but the butter part seemed a little random.

So I investigated further and learned that not only did Congress take the initiative to define butter, it actually prohibited FDA from doing it. The Food Drug & Cosmetic Act says that FDA shall not promulgate any “definition and standard of identity” for butter. Case closed. It also says that FDA shall not promulgate any “definition and standard of identity” for “fresh or dried fruits” or “fresh or dried vegetables.” That makes some sense to me because Mother Nature has so far done a decent job defining fruits and vegetables. It seems reasonable that Congress would want FDA to focus on manufactured foods (except butter), not ones that spring from earth fully formed.

But no. Congress said that FDA did have the power to define “avocados, cantaloupes, citrus fruits, and melons.” FDA can define avocados but not apples. Melons but not mangos. All of the above but not butter. Okay.

But wait, there’s more. As part of its exclusive jurisdiction over the definition of butter, Congress prohibits anyone from “serving colored oleomargarine or colored margarine” in public unless it warns everyone “in such manner as to render it likely to be read and understood by the ordinary individual” (read, dullard). CAUTION – COLORED MARGARINE ON PREMISES.

A notice in the menu counts as long as it is “in type or lettering not smaller than that normally used to designate the serving of other food items.” Not only that, but it is illegal to serve margarine in separate servings unless “each separate serving…is triangular in shape.” CAUTION – TRIANGULAR COLORED MARGARINE ON PREMISES. I checked to make sure this is still good law and it is.

You might be wondering by now what Congress thinks margarine is. Congress thinks margarine is “any substance[], mixture[], and compound[] known as…margarine” (food is food, don’t forget) and any substance “similar to…butter” that contains “edible oils or fats other than milk fat” but only “if made in imitation…of butter.”

There is an element of intent here. To be a margarine manufacturer, you have to be trying to imitate butter. Colored margarine is margarine that contains “more than one and six-tenths degrees of yellow, or of yellow and red collectively, but with an excess of yellow over red, measured in terms of Lovibond tintometer scale or its equivalent.”

Why so much attention to butter? Congress explained in some tax legislation that it “hereby finds and declares that the sale, or the serving in public eating places, of colored oleomargarine or colored margarine without clear identification as such…depresses the market in interstate commerce for butter and for oleomargarine or margarine…” A depressed butter market is un-American. So let’s regulate the bejeezus of out colored margarine.

Three cheers for capitalism!

Kim Egan is Partner in the firm DLA Piper LLP

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    The margarine issue is a perfect example of the dairy lobby at work. Once upon a time, margarine couldn’t even be sold pre-colored thanks to the dairy lobby—they didn’t want it to look like butter, even when it was sold for use at home. An old high school biology teacher once told me that as a kid, one job he had was to mix the yellow coloring into the family’s margarine.

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