Food Stuff: Onion Rings, Monty Python and FDA
Welcome to Food Stuff – an irregular, irreverent, and hopefully humorous look at food policy, food law, food regulation, food safety, food politics, food fun, food farming, food fashion – in short, Food Stuff. Food is the Temperance movement of the 21st Century. In 2001, Eric Schlosser showed us how we had become a Fast Food Nation. In 2006, Michael Pollan explained what corn does to every person and animal in America. In 2008, Upton Sinclair came back to life as Michael Moore – Food Inc. is to 21st century what The Jungle was to the 20th. In 2009, peanuts turned deadly, and First Lady Michelle Obama said she wanted healthy school lunches and healthy school kids. In 2010, people blanched at eating genetically modified fish. Today, half of all Americans are worried they might get sick from eating tainted products. Americans are getting sick of getting sick from their food.
Let’s start with the basics. What is “food?” The Shorter Oxford English Dictionary says “food” is a substance “taken into the body to maintain life and growth, nourishment; provisions, victuals.”
Congress, on the other hand, says food is — “food.” And also drinks and chewing gum. The Food Drug & Cosmetic Act of 1938 defines “food” as food, drink, and chewing gum and the components thereof. There’s a great piece of lawyering behind why Congress added chewing gum to the definition of food, even though it isn’t taken into the body (except by accident) and doesn’t maintain life or growth, but we’ll leave that for another day.
Congress has also defined “butter” for all Americans. You may not be surprised to learn that butter means “the food product usually known as butter.” And according to Congress, the “food product usually known as butter” is pretty freewheeling and can be made from “milk or cream, or both, with or without common salt, and with or without additional coloring matter,” as long as at least 80 percent of it is milk fat.
FDA has since taken Congress’s definitions of food and butter and run with them. Reading FDA’s food regulations is like listening to Monty Python and the Holy Grail. In America, for example, “[t]he serving size for maraschino cherries shall be expressed as 1 cherry with the parenthetical metric measure equal to the average weight of a medium size cherry.” Macaroni are “tube-shaped and more than 0.11 inch but not more than 0.27 inches” wide. Spaghetti are tube-shaped or cord-shaped (never tubular), more than 0.06 inch but not more than 0.11 inch wide. Vermicelli are cord-shaped, never tube-shaped or tubular. FDA does not explain the difference between tube-shaped and tubular.
Orange juice is, to confirm, “the unfermented juice of the mature orange.”
“Peanut spread” is a “spreadable peanut product” that consists of less than 10 percent peanuts. “Sheanut oil is produced from sheanuts derived from the Shea tree.” There is no Hea Tree.
FDA is high on kelp. You can sprinkle dehydrated kelp over your food or drink or chewing gum to your heart’s content as long as you don’t ingest more than 225 micrograms of iodine. This is much like the rule that you should never under any circumstances eat more than 11 pounds of rhubarb leaves in one sitting or else you’ll die
of an overdose of oxalic acid. I’m sure it’s an oversight that the rhubarb rule is not in FDA’s food regulations.
FDA sets detailed standards for, among other things, describing onion rings that are made from diced onions and not actual onion rings. The regulation says:
Sec. 102.39: Onion rings made from diced onion.
(a) The common or usual name of the food product that resembles and is of the same composition as onion rings, except that it is composed of comminuted onions, shall be as follows:
(1) When the product is composed of dehydrated onions, the name shall be “onion rings made from dried diced onions.”
(2) When the product is composed of any form of onion other than dehydrated, the name shall be “onion rings made from diced onions.”
(b) The words “made from dried diced onions” or “made from diced onions” shall immediately follow or appear on a line(s) immediately below the words “onion rings” in easily legible boldface print or type in distinct contrast to other printed or graphic matter, and in a height not less than the larger of the following alternatives:
(1) Not less than one-sixteenth inch in height on packages having a principal display panel with an area of 5 square inches or less and not less than one-eighth inch in height if the area of the principal display panel is greater than 5 square inches; or
(2) Not less than one-half the height of the largest type used in the words “onion rings.”
FDA goes into this level of detail for only a few other foods: (i) potato chips made from dried potatoes; (ii) fish sticks made from minced fish; (iii) Pacific whiting; (iv) Greenland turbot; (v) fried clams made from minced clams; (vi) nonstandardized breaded composite shrimp units; and (vii) bonito. You can sell dogtooth tuna in America as bonito fish. Fish, by the way, are: “fresh or saltwater finfish, crustaceans, other forms of aquatic animal life (including, but not limited to, alligator, frog, aquatic turtle, jellyfish, sea cucumber, and sea urchin and the roe of such animals) other than birds or mammals, and all mollusks, where such animal life is intended for human consumption.” Mollusks not destined for a Fisherman’s Stew are not mollusks.
There are some things that FDA considers food (or drink or chewing gum) that will surprise you. Ox bile extract for instance. FDA says ox bile extract is perfectly safe and can be used in cheese with abandon but it does not say how. Ox bile extract is, of course, “the purified portion of the bile of an ox” and is “a yellowish green, soft solid, with a partly sweet, partly bitter, disagreeable taste.” No doubt.
Then there’s The Salts of Furcelleran, which sound like an island chain in Middle Earth, “yeast-malt sprout extract,” which could be a series of declarative sentences in Mandarin, “curdlan,” which I guess is milk that is no longer Generally Regarded as Safe, “molecular sieve resins,” (no comment), and that famous, sprightly Opera singer, candida guillieremondii.
Defoaming agents are fine in food as long as you don’t use them in amounts “in excess of that reasonably required to inhibit foaming.” You can use “hydrogenated sperm oil” to “lubricate [your] bakery pans.” Good to know. But be considerate and use only an amount of sperm whale oil “that is reasonably required to accomplish the intended lubricating effect.”
Milk comes from “one or more healthy cows” whereas “milk products” come from “cows, goats, sheep, [or] water buffalo.” The best sentence I have written in my legal career explains why human breast milk is not “food” (or drink or chewing gum). “Human milk does not come from a cow.” And for this I actually get paid.
I could poke fun at the food regulations forever. But there is a serious issue here. Our government can set detailed standards for ox bile extract and bakery pan lubrication and goes to pains to include water buffalo in its definition of milk products, but it cannot pass legislation to keep our food supply safe. We do not know how many chickens have salmonella. We struggle with how meaningfully to label fat. We resist the Institute of Medicine’s effort to lower our salt intake. We put new medicines through multi-million dollar safety testing but we let defoaming agents into children’s food. We have no restrictions whatsoever on the sale of junk food.
Congress created FDA in 1938 because a toxic elixir killed hundreds, including children. Factory inspections and food standards have been part of FDA’s mission ever since. But FDA does not inspect most domestic food establishments and hardly any overseas ones. Some American children eat volumes of non-nutritious foods while others live below the poverty level and suffer chronic hunger. There must be a happy medium – one that balances freedom of enterprise with the public health and agricultural independence with agricultural responsibility.
Let’s explore these issues here with an open and curious mind. All comments, reactions, outrages, corrections, ideas, compliments and recipes welcome.
Kim Egan is Partner in the firm DLA Piper LLP