The cook plays an important part in the nourishability of food. Meals which are lovingly prepared with a profound desire for the welfare of the eater always benefit the body and mind more than do meals which are commercially prepared, or which have been prepared by someone who is indifferent to or dislikes the proposed eater. No one should cook when in a state of indifference, agitation, sorrow or anger.

From The Hidden Secret of Ayurveda, by Dr. Robert E. Svoboda

The most famous gastronome of them all, Anthelme Brillat-Savarin, wrote in Physiologie du Gout, ou Meditations de Gastronomie Transcendante (1826): “Dis-moi ce que tu manges, je te dirai ce que tu es.”: “Tell me what you eat and I will tell you what you are.” For some, such as Adelle Davis — Time magazine characterized her as “the high priestess of a new nutrition religion” in December 1972 — the consequences of our food choices are stark: “As I see it, every day you do one of two things: build health or produce disease.”

How do we know if we are supposedly building health, rather than unwittingly producing disease by what we consume? We resolve what economists call “informational asymmetry” by relying on food labels, brands and trademarks to confirm the authenticity and quality of our foodstuffs. But making “correct” food choices can be daunting and baffling. In her groundbreaking book, What to Eat, Dr. Marion Nestle estimates that there are around 320,000 food and beverage products available in the United States; and that the average supermarket stocks about 30,000 to 40,000 of them.[1] While we may not understand the true origins or makeup of what we put on our tables, most baby-boomers can tell you in a heartbeat that Rice Krispies go “snap, crackle and pop,” Lucky Charms are “magically delicious,” and Wonder Bread helps “build strong bodies in 8 ways.”

Two of the most symbolic words in food promotion nowadays are “organic” and “natural.” Generally defined, “natural” means “present in or produced by nature” and is not something “altered, treated or disguised,” but rather “faithfully represents nature or life.”[2] “Organic,” in its most abstract sense, means “simple, healthful, and close to nature.”[3] Both words hearken back to a pre-industrial age and share Edenic, utopian connotations. They imply a general distrust of chemical engineering and manufacturing processes. If we are what we eat, are we not closer to “nature” if we incorporate natural and organic foods into our diet? That is the compelling allure and implicit bargain of consuming organic and natural foods.

Depicting the source of food as emanating from a “natural” source and setting is a longstanding tradition among food purveyors. It is intended to alleviate and relieve the anxiety of a successive number of American generations who have lost—as a function of industrial revolutions — any meaningful, day-to-day connection with food production and processing.

The “organic” label is of more recent vintage and is the product of its own countercultural revolution. Its prominence in grocery store aisles reflects a cultural repulsion against factory farms and their reliance on chemical, biological and other industrial solutions to the myriad challenges posed by growing crops and raising animals for safe human consumption. Once avant-garde, the “organic” food movement became mainstream after passage of the federal Organic Food Production Act of 1990.

Feeling ethical and savvy about our food choices does not come cheaply. Organic and sustainable meats, fruits and vegetables tend to cost substantially more than their “conventional” (read here, industrially farmed or produced) counterparts.[4] Whether or not organic food tastes better or is more nutritious for us, consumer studies show that consumer expectations created by a mere logo or words themselves affect subsequent flavor perceptions. In other words, natural or organic food may taste better in part simply because we think that natural or organic food should taste better.[5]

In order to whet and satisfy consumer expectations and desires, tremendous marketing value clearly inheres in the presentation of food as “organic” or “natural.” This article traces the evolution of these two words in their historical context and analyzes how federal and state laws now define and regulate their commercial usage.

Once We Were All Natural and Organic “Locavores”

The ascendency of “organic” and “natural” as preferred food descriptors is a relatively recent phenomenon in human history. Before the first industrial revolution, there would be little or no point in labeling food as either organic or natural. These two words only took on meaning when we became largely divorced from the mechanics of food production and in the advent of chemical fertilizers and pesticides, industrial farming and food processing techniques. A tipping point may well have passed in 1920 when urban populations first exceeded rural populations in the United States.

The names “organic” and “natural” are classically paired with bucolic images of rolling green pastures and animals grazing in free-range fashion. The scenes represent a nostalgic vision of the family farm. That hypothetical locale is the reigning mental image of a “natural” food source. Norman Rockwell’s iconic painting, Norman Rockwell Visits the County Agent, depicts the comforting and romantic symbolism of the family farm.[6] It captures the essence of what Americans may prefer to believe is the “natural” provenance of their daily sustenance.

“Norman Rockwell Visits a County Agent,” first published in the 1948 Saturday Evening Post.

Industrial farming realities outstripped family farm nostalgia some time ago. In Kitchen Literacy: How We Lost Knowledge of Where Food Comes From and Why We Need to Get It Back (2008), Ann Vileisis recounts how the American populace became disconnected from food production and distribution. Vileisis charts the “foodshed” of Martha Ballard in 1790. Ballard epitomizes what we now classify as a “locavore,” i.e., one who relies on neighborhood food resources for sustenance.[7]

In a Kitchen Literacy chapter entitled “A Meal by Martha,” a colonial America dinner table is set:

In the center of a wooden table on a pewter platter sat a baked leg of lamb. One earthenware bowl held a heap of steaming, fresh string beans, while another contained sliced cucumbers, likely drizzled with vinegar. The table was plain, but the savory smell of the roast meat made mouths water and elevated this meal, like many simple meals, to a humbly exceptional status.

At the time, it was ordinary, but in retrospect, it seems utterly distinctive: everyone sitting at the table knew exactly where the foods came from. The lamb came from a nearby farm, while the string beans and cucumbers came from a garden just down a path out the kitchen door. [8]

Daily life in the 1790s represents a baseline for evaluating the evolution of “natural” and “organic” food labels. While some would argue that the very act of farming itself is not “natural” — involving a wholesale transformation of land and destruction of nature — it does depend on nature’s rhythms. As Ann Vileisis posits, being subjected to the seasonal cycles and the whims of nature is what really defines preindustrial food production as “natural”:

It was this aspect of farming that was most tangible to preindustrial Americans whose lives were tied so closely to the cycles of seasons and the whims of nature. The idea that farms and gardens could be anything other than part of the natural realm was to them unthinkable.

Farming in the 1790s equally qualifies as “organic.” Dealing with weeds and pests required vigilance and brute force labor in the absence of chemical herbicides and pesticides:

Weeds demanded perseverance and had to be pulled — and pulled—until the desired seedlings gained a clear advantage. After one spell when Martha was gone from home for a week delivering babies, she came back to find her garden overrun. “The weeds almost gained mastery,” she wrote in her diary, but over the course of the next week, with diligence and muscle, she managed to wrest “mastery” back from the unwanted plants. * * * .[9]

To control insect pests, many gardeners let chickens and ducks range freely among the plants during the day, or they might lay down a wilted cabbage lead or an old shingle, and then squash all of the bugs hiding under it early the next morning. Picking bugs was a job that often fell to children. For bad infestations, some gardeners applied repellent concoctions made from black walnut or tobacco leaves.[10]

The commonplace methods described for controlling weeds and pests in preindustrial America would now be recognized as organic farming techniques.

Industrial Food Processing and Marketing Deception Comes of Age

Two of the most significant impacts of food processing in the 19th century were the invention of canned food and “margarine,” a cheap substitute for and imitation of butter. Both inventions were rooted in chemical engineering advances in France and Germany.

Canning food first developed as a means to feed Napoleon’s armies. That technology came to the United States by the 1820s.[11] Both the California Gold Rush and the Civil War created market niches for “hermetically sealed foods.”[12]

In the 1860s, Emperor Napoleon III offered a prize to the person who could produce an edible fat substitute for butter.[13] In response, “Hippolyte Mege-Mouries, a French chemist, created oleomargarine, a combination of clarified beef fat, water, and a bit of tributyrin — a milk fat—to give it a buttery taste.”[14] Mege-Mouries called it oleomargarine after margaric acid, a fatty acid.

Eventually, margarine[15] would be made out of vegetable oils instead of beef fat; but it would take advances in chemical engineering — the process of hydrogenation — “to convert liquid vegetable oils into a semisolid product.”[16] Many inventors sought and received U.S. patents for their margarine formulations and processing techniques and for techniques to simulate butter color and flavor.[17]

A desire to find a cheap substitute for butter spawned the epic marketing and political food battle of the 19th and 20th centuries. Palming off margarine as butter became rampant immediately upon margarine’s introduction into the U.S. consumer marketplace in the 1870s. Margarine production produced a white product, so one relatively easy way to prevent it from competing more directly with butter was to prevent it from being colored yellow.

Dairy producing states soon passed laws prohibiting the sale of yellow-colored margarine. The marketing deception nevertheless continued and led to the enactment of federal taxation in 1886 (and later in 1902) on manufacturers, wholesalers and retailers selling white and yellow oleomargarine. The taxes were set much higher on yellow oleomargarine. Those desiring to serve yellow margarine would purchase yellow coloring agents separately and then mix it with white margarine at home. This was a time-consuming and arduous task for homemakers.

Margarine manufacturers and distributors were quick to assert that it was just as nutritious as butter. That representation lacked a valid scientific basis and eventually would be thoroughly discredited.[18] A compulsion to promote product consumption through health claims permeates the food and dietary supplement market to this day.

Canned foods and the desire to imitate butter exposed the limitation of the human senses in deciding what foodstuffs to purchase. Sight supplanted smell and touch as an arbiter of food quality. Offering a pleasing appearance for food products became a paramount marketing concern. The content of labels became a surrogate means for evaluating food quality.

In order to assuage consumer anxieties about the source of their food, producers adopted bucolic images of nature for their can labels. These early canned food labels often emphasize the purity, cleanliness and geographic source of the food. Some early 20th century examples show how food purveyors portrayed the source of food as originating from an unpolluted, untrammeled, preindustrial “natural” locale:

The desire to depict lush nature as the source of food produce was not universal, however. One California canned fruit label shows how even black belching smokestacks could serve as a symbol of industrial progress:

Passage of the Federal “Pure Food Law” in 1906

Regulating the health and welfare of U.S. citizens is generally considered to be the province of state, not federal law. Upton Sinclair’s muck-raking novel, The Jungle, almost singlehandedly changed that food regulatory landscape. First published in 1905 in serial form in the socialist newspaper Appeal to Reason, the novel exposed the unsanitary condition of Chicago meatpacking plants. It shocked readers with its scenes of workers falling into rendering vats and being ground up with animal fats to form “Durham’s Pure Leaf Lard.” This touched the raw nerve of a basic human taboo: cannibalism.

The Jungle’s exposé provide an impetus for the passage of the Federal Food and Drugs Act of 1906 and the Federal Meat Inspection Act of 1906. The former became popularly known as the Pure Food Act and sometimes as the “Wiley pure food law” in tribute to the chief proponent of the legislation, Dr. Harvey W. Wiley. This new federal law focused on adulteration and misbranding of food. The word “pure” is used in its sense of food being “free from adulterants or impurities,” rather than having “a homogeneous or uniform composition.”[19] The 1906 Act’s use of the word “pure” — not defined in the text of the Act—underscores a deep suspicion of how the industrial revolution had been altering the very composition of food placed on the table. The 1906 Act does not mention “natural” or “organic” food.

100,000,000 Guinea Pigs

Perceived deficiencies in the scope and enforcement of the Pure Food Act of 1906 are recounted in a wildly popular book in the 1930s entitled 100,000,000 Guinea Pigs: Dangers in Everyday Foods, Drugs, and Cosmetics, by Arthur Kallet and F.J. Schlink. First published in 1933, it was already in its thirtieth printing by 1935. The opening chapter is “The Great American Guinea Pig” and relates that:

In the magazines, in the newspapers, over the radio, a terrific verbal barrage has been laid down on a hundred million Americans, first, to set in motion a host of fears about their health, their stomachs, their bowels, their teeth, their throats, their looks; second, to persuade them that only by eating, drinking, gargling, brushing, or smearing with Smith’s Whole Vitamin Breakfast Food, Jones’ Yeast Cubes, Blue Giant Apples, Prussian Salts, Listroboris Mouthwash, Grandpa’s Wonder Toothpaste, and a thousand and one other foods, drinks, gargles and pastes, can they either postpone the onset of disease, of social ostracism, of business failure, or recover from ailments, physical or social, already contracted.[20]

The reference to guinea pigs reflects a basic human conundrum. We have been creating new and varied things to eat since the dawn of mankind. We like to experiment with our diets. Each of us is our own “control group” in deciding what we desire and choose to ingest. What role should government play in regulating our food choices?

In June 1938, the Federal Food, Drug and Cosmetics Act (“FDCA”) repealed much of the former Pure Food Act and created a more detailed regulatory scheme. It carried forward the 1906 Act’s emphasis on outlawing adulteration and misbranding of food. The operative paradigm of the FDCA is to provide consumers with food content information and let them decide whether the food is appropriate for them to eat.

When the FDCA was enacted in 1938, it too did not define what constitutes “natural” or “organic” food. It defines the word “food” as “(1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles use for the components of any such article.”[21] “Processed food,” in turn, “means any food other than a raw agricultural commodity and includes any raw agricultural commodity that has been subject to processing, such as canning, cooking, freezing, dehydration, or milling.”[22]

The FDCA distinguishes food from drugs. A drug includes “articles intended for use in the diagnoses, cure, mitigation, treatment, or prevention of disease in man or other animals” as well as “articles (other than food) intended to affect the structure or any function of the body of man or other animals.”[23] When food producers make unsubstantiated health claims to promote their food products, they risk having their food categorized as an unapproved, hence unlawful new “drug.”[24]

Passage of the FDCA solidified the paramount role for the federal government in regulating commerce in food. In construing the scope of its provisions, the United States Supreme Court characterized the purpose of these federal food enactments as a necessary response to modern industrialization. The consumer’s physical separation from the source or content of packaged food created a need for laws against adulteration that could not be discerned and disclosure of product constituents. Supreme Court cases encouraged a liberal application of FDCA provisions in order to comply with Congressional intent:

By the Act of 1906 … as successively strengthened, Congress exerted its power to keep impure and adulterated foods and drugs out of the channels of commerce. The purposes of this legislation, as we have said, “touch phases of lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words.”[25]

The role of state laws in regulating food content and safety dwindled after the passage of the FDCA. Under the principle of federal preemption, state laws and regulations governing food would have to give way to federal law if they conflicted. Further, under the primary jurisdiction doctrine, courts could dismiss a case if a judge believed that the issue under review may or should be addressed and resolved by the federal Food and Drug Administration in the first instance.

Historically, the FDA’s response to food safety issues has been reactionary rather than proactive. New foods must be proved to be unsafe, rather than safe, for human consumption. In this sense, the operative standard is really “buyers beware.” The introduction of genetically modified organisms (“GMO”) into the food chain is a controversial case in point:

Genetically engineered foods saturate our diet today. In the US alone, over 80% of all processed foods contain them. Others include grains like rice, corn and wheat; legumes like soybeans and soy products; vegetable oils, soft drinks; salad dressings; vegetables and fruits; dairy products including eggs; meat, chicken, pork and other animal products; and even infant formula plus a vast array of hidden additives and ingredients in processed foods (like in tomato sauce, ice cream, margarine and peanut butter). Consumers don’t know what they’re eating because labeling is prohibited, yet the danger is clear. Independently conducted studies show the more of these foods we eat, the greater the potential harm to our health.

Today, consumers are kept in the dark and are part of an uncontrolled, unregulated mass human experiment the results of which are unknown. Yet, the risks are enormous, it will take years to learn them, and when we finally know it’ll be too late to reverse the damage if it’s proved conclusively that genetically engineered foods harm human health as growing numbers of independent experts believe.[26]

Whether or not health fears regarding GMO foods are justified, the same apprehension about the adulterated of food expressed in 100,000,000 Guinea Pigs in 1933 rings true today:

In considering these adulterations and their probable safety, we must consider that the human stomach evolved in a world stocked with game, eggs, milk, fruits, berries, cereals, and seeds, vegetables, and a very limited supply of natural sweets like honey—no sulphur dioxide, no sulphate of soda, no glucose, no alum, no aniline dyes, no benzoate of soda, no liquid, “artificial smoke” for curing ham and bacon, no frozen meats or eggs, or bleached or denatured flour. The only race of beings that can successfully live and breed on adulterated and sophisticated products is one which has spent its period of evolution in a chemical plant and fed from among dye vats, crucibles, acid carboys, desiccators, stills, and sulphurizers. And we who now live on this planet are not that race.[27]

The anxiety about eating food that may be toxic to our health reinforces a consumer desire to only consume “natural” and “organic” foods. Presumably, only such foods enjoy the historical track record of being healthy and safe to consume (putting aside the grave risks of salmonella, listeria and E. coli contamination and the like in processing food from farm to table).

The desire to only eat “healthy” food perhaps can become obsessive and even lead to a condition some in the psychological community have termed “orthorexia nervosa.” However, that eating disorder is not recognized as a mental disorder by the American Psychiatric Association, nor is it included in the Diagnostic and Statistical Manual for Mental Disorders IV (2006). Those afflicted with orthorexia nervosa purportedly become fixated on “righteous eating” and set rigid rules about avoiding certain foods.[28] As one author put it, these “dietary restrictions commonly cause sufferers to feel proud of their ‘virtuous’ behavior even if it means that eating becomes so stressful their personal relationships can come under pressure and they become socially isolated.”[29] This may well be just another instance of “therapy” terminology permeating discourse of all subjects in American culture. The attitudes described as indicative of a possible eating disorder are equally consistent with taking a highly ethical, moral and political stand with respect to one’s food consumption.

“Tuesday is Soylent Green Day” and the Growth of an Organic Food Movement

To better grasp and understand the passionate roots of the “organic” food movement, a brief foray into American popular culture is illuminating. 1973 was a watershed year. President Richard Nixon proclaimed that “peace with honor” would soon be at hand. With the Vietnam War no longer a focal point for the “protest” movement, the country’s attention turned back to a litany of ecological calamities recounted so vividly by Rachel Carson in Silent Spring (1962). E. F. “Fritz” “Schumacher’s book Small is Beautiful: Economics as if People Mattered was published and would become a best seller.

Soylent Green hit the silver screen in 1973. Set in the year 2022 in New York City, it portrays the culmination of our Earth’s degradation. Store shelves and cupboards are bare and empty. Overpopulation is rampant. People sleep in stairwells, dress in Soviet-style peasant garb, and mill about listlessly in automaton fashion. Fresh fruits and vegetables and Grade A cuts of meat no longer exist for the masses; only the wealthy elite can get their hands on them.

The populace instead consumes food wafers manufactured by the Soylent Corporation.[30] Soylent Red and Soylent Yellow are advertised as “high energy vegetable concentrates.” A newer and much more popular foodstuff is Soylent Green, supposedly produced from “high-energy plankton.”[31]

Tuesdays are Soylent Green days and New Yorkers queue up for their wafer rations. When those waiting in line all day are denied their aliquot portions of Soylent Green, riots break out. Huge front end loading bulldozers emerge to scoop up protestors, dump them into police trucks and cart them away, like so much street detritus.

Assisted suicide becomes a desirable way to end one’s miserable existence in these end times. At the government-run euthanasia facilities, it is called “going home.” After selecting a lighting scheme and choosing the music you wish to hear as you die, you are escorted to a private room and bed by employees dressed in vaguely religious vestments. In Socratic fashion, you drink a poisonous concoction, lie down on a comfortable bed, and then spend your final twenty minutes of life witnessing — in IMAX-panoramic fashion — scenes of a pristine Earth where streams and rivers run free and the deer and antelope play.

Unbeknownst to everyone except for some high-level executives of the Soylent Corporation and a small group of intellectuals (who meet in a library of old books called the “supreme exchange”), the world’s plankton population had collapsed. To remedy this, the Soylent Corporation began using cadavers from the euthanasia centers as the protein ingredient for the popular Soylent Green.

When the protagonist of the film — a police detective named Robert Thorn (played by Charlton Heston)—confirms this fact for himself, he becomes the film’s “prophet of doom.” Having stripped the Earth of its natural resources through pollution and overpopulation, man is now cannibalizing man. In the final scenes of the film, he screams out to anyone who will listen that the Soylent Corporation “raises humans like cattle” and that “Soylent Green is people.”

With its taboo theme of cannibalism — akin to that exposed in The Jungle in 1906 — and portrayal of massive environmental degradation, Soylent Green serves as a stark counterpoint to the hopes and dreams of a nascent organic food movement. Small groups began to coalesce around the idea of returning to organic cultivation methods. They collectively decided to wean themselves off industrialized farming methods and its overwhelming reliance on the use of pesticides, herbicides, fungicides and petroleum-based fertilizers. Taste and health drove their decisions to “return to the earth.”

Wendell Berry would fuel the collective disgust of the “anti-establishment” with industrial scale farming methods at the 1974 World’s Fair in Spokane, Washington. His speech during an “Agriculture for a Small Planet” symposium rocked the house. He bemoaned the loss of small farm culture and declared a Declaration of Independence from conventional agricultural methods. He tapped into an intense distrust of science and the “military-industrial complex,” which gave us such chemical defoliants as Agent Orange, by stating that “one of the miracles of science is that the germs that used to be in our food have been replaced by poisons.”[32]

Originally considered to be made up of “farmers on the fringes,” a number of these groups are now largely responsible for certifying that the food we purchase and consume is “organic.” A case in point is the formation of the “Tilth Producer’s Cooperative.” On grainy archive photos taken in August 1977, Becky Deryckx is sitting on top of a 1947 Farmall A tractor. Gathered around Becky are 70 or so people dressed mostly in plaid flannel shirts and jeans. They are a youngish, scruffy-looking group. Their hair is long and in braids or ponytails or covered by handkerchiefs.

They all migrate to the Pragtree Farm near Arlington, Washington, to discuss a new/old way to approach farming and food production. Becky explains how the word “tilth” refers to the quality of the soil; and, in an older sense of the word, also describes the cultivation of knowledge and wisdom. Perhaps without even realizing it, they are launching what would become the most influential organic food organization in the United States.[33]

To capture the flavor of what these organic pioneers were up against, put yourself in Patrick Langon’s shoes for a moment.[34] It is Sunday morning in early June 1973. You own a small three acre farm near Yakima, Washington. You are up early irrigating your crop of organic tomatoes, beans, garlic, cucumbers and Jerusalem artichokes. You intend to bring them to market as rare organic produce. You happen to be the president of the Northwest Organic Food Producers Association (“NOFPA”). Your neighbors, the Thalheimers, however, are not. They raise potatoes on their farm in conventional fashion.

Overhead, you hear and then see a helicopter coming toward you. It is spraying chemical pesticides over the Thalheimer’s farm. You later learn they are Thiodan® — to control against a Colorado beetle infestation—and (the now banned) Guthion.[35] The pilot doesn’t seem to see you and before you know it, a chemical mist blankets you from head to toe. The material safety data sheet for Thiodan warns that it “is highly toxic if absorbed through the skin or inhaled.” Symptoms include headache, weakness, abdominal cramps, nausea, excessive salivation, perspiration, blurred vision, tearing, pin-point pupils, convulsions, tremor and coma.[36]

The pilot sprays all of your carefully tended rows of sprouting plants. Your wife Dorothy laments, “it has reached the point of insanity,” referring to indiscriminate spraying of herbicides and pesticides in the Yakima Valley. As she puts it, “anyone can drive down this valley early any morning and see what utter disregard the crop dusters have for one and all.”

Your entire organic crop is ruined. Pursuant to NOFPA bylaws, no member can market foods or advertise food as organic if laboratory tests on the finished crop show the presence of more than ten percent (10%) of the maximum pesticide residue tolerances allowable by the Food and Drug Administration.

The Seemingly Innocuous Passage of Washington State’s Organic Food Law in 1985

You know I love that organic cooking
I always ask for more
And they call me Mr. Natural
On down to the health food store
I only eat good sea salt
White sugar don’t touch my lips
And my friends are always begging me
To take them on macrobiotic trips
Yes, they are

Oh, but at night I stake out my strong box
That I keep under lock and key
And I take it off to my closet
Where nobody else can see
I open that door so slowly
Take a peek up north and south
Then I pull out a Hostess Twinkie
And I pop it in my mouth

Junk Food Junkie, by Larry Croce

Larry Croce’s novelty song Junk Food Junkie captured the schizophrenic national mood regarding the consumption of organic food. It reached No. 9 on the Billboard charts in February 1976. It was easy to dismiss the desire for organic food as a cause célèbre of a harmless counterculture “hippie” fringe group.

An atmospheric feeling of “let’s throw them a bone” animates the discussion of Washington legislators regarding SHB 297, a bill “establishing standards for organic food products.” The following legislative colloquy regarding a one year transition period for not using pesticides is instructive:

Senator Hansen: “…Personally, I’m not going out to try and raise organic foods, but there are people out there who are serious about it and they have all agreed to this termination [regarding how much time it will take for agricultural lands to be deemed organic after prior use of pesticides], so why should I take opposition to it if they’ve agreed to it?

Senator Rasmussen: “What you’re saying it that it doesn’t make a bit of difference whether it’s organic or not, but we should pass the bill, maybe?”

Senator Hansen: “If it makes them feel better, as far as I’m concerned, if this achieves their goals, then why should I take objection to it.”

[Further colloquy]

Senator Rasmussen: “Thank you, Senator Hansen. It has been an advantage to have a farmer here that knows organic foods.”[37]

The committee report for SHB 297 summarized the proposed legislation as precluding a producer or vendor from selling or offering to sell any food product with the representation that the product is an organic food if the producer or vendor knows, or has reason to know, that the food was grown or raised with any of the following substances:

• Fertilizers by excluding manure and other natural fertilizers;
• Manufactured pesticides, hormones, antibiotics, or growth stimulants;
• Arsenicals, i.e., a drug or preparation containing arsenic; or
• Similar substances listed by the Department of Agriculture.[38]

The SHB 297 Committee Report (“Report”) notes that the Director of Agriculture has administrative power to enforce the Act through injunctive relief and civil fines. Importantly, the Report states that a “violation of these requirements regarding organic food also constitutes a violation of the provisions of the Consumer Protection Act which declares unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce to be unlawful.” The Report reiterates that the Consumer Protection Act “permits the court to award attorney’s fees and damages in an amount not exceeding three times actual damages in certain circumstances.”[39] Both the House and Senate passed SHB 297 and it is now codified as RCW Ch. 15.86.

Alaska and Oregon also enacted organic food legislation. Oregon followed a different tack in enacting its organic food law in 1989. Like most other state organic food laws—with the notable exceptions of Washington and Alaska — Oregon’s short-lived law did not provide private individuals with a right to sue for organic certification violations. Former ORS § 616.900 imposed only civil penalties that were to be enforced by the Director of Agriculture. All in all, 29 states enacted some form of organic food law.

Federal Organic Food Laws Trump State Laws

The growing patchwork of state organic food laws led to calls for the enactment of a uniform federal law governing organic food production and promotion. This ultimately culminated in the passage of the federal Organic Food Production Act of 1990.[40] It was promulgated in order to (1) “establish national standards governing the marketing” of organically produced agricultural products, (2) “assure consumers that organically produced products meet a consistent standard,” and (3) “facilitate interstate commerce in fresh and processed food that is organically produced.”[41]

Under the regulatory authority granted by the Act, the United States Department of Agriculture (“USDA”) established a National Organic Program of approved and prohibited substances for the production and handling of organic products which went into effect in 2002. Certified compliance with the USDA allows an organic producer or processor to use the USDA’s green organic seal. That seal is now the ubiquitous symbol of organic food.

Under the federal Act, both states and private organizations can serve as organic certifying agents.[42] State certification programs may “contain more restrictive requirements governing the organic certification of farms and handling operations,” but any additional requirements shall further “the purposes of” and not “be inconsistent with” the federal organic products legislation.[43] Pursuant to the Act, both the Washington State Department of Agriculture (“WSDA”) and Oregon Tilth, Inc., headquartered in Corvallis, Oregon, are now accredited certifying agents. Those meeting WSDA or Oregon Tilth organic certification requirements are permitted to affix their respective individual logos to their food products.

A key dividing point between federal and state regulation of organic food products is whether individual consumers and product competitors are entitled to bring private lawsuits against those who violate the guarantees wrapped up in an organic food logo. Federal law includes no private right of action for aggrieved consumers. It instead relies on a host of civil penalties and decertification remedies as enforcement mechanisms. Alaska and Washington organic food laws specifically allow individuals to file consumer protection act claims against those who violate organic food certification standards.[44] (In contrast, Oregon law is silent on this point.)

The availability of consumer protection act claims and remedies should provide financial incentives for pursuing class action litigation on behalf of consumers harmed by false or misleading organic food representations. Prevailing parties can recover attorneys’ fees and potentially, exemplary damages. Recovery of “emotional distress” and “mental anguish” damages can present difficult claim and proof issues, since consumer protection act claims limit a damages recovery to injuries to one’s business or property.[45]

Recovering the amount paid for food products whose organic or natural representations are false or misleading involves a relatively straightforward damages analysis. The more intractable claim and proof issues arise from an aggrieved purchaser’s disappointment and emotional response to consuming food that may well violate one’s moral or ethical beliefs. Courts have a difficult time evaluating such damage claims. Loss of enjoyment of food can be recoverable as “hedonic” damages in personal injury cases.[46] Plaintiffs will need to allege state law tort claims for mental anguish and emotional distress to seek such damages. These types of personal injury claims are not generally amenable to class action resolution since they raise issues of fact peculiar to each claimant.

Defendants targeted in Washington and Alaska organic food class actions may argue that private state law claims are preempted as “inconsistent” with the purposes of federal organic food legislation. There is no controlling case law on this point. More generally, the leading case confronting “organic” federal preemption issues is In re Aurora Dairy Corp. Organic Milk Marketing and Sales Practices Litigation.[47] The case concerned whether milk produced from Aurora Dairy Corporation’s dairy farm was properly certified and labeled as “organic.” Various class action plaintiffs sued Aurora, the organic certifying agent (“QAI, Inc.”), and retailers selling the milk, including Costco, Safeway, Target and Wild Oats Markets. These retail stores sold Aurora milk under their own private labels.

The plaintiffs contended that Aurora’s milk was not organic and that the defendants made other misleading representations violating state consumer protection laws. For example, several cartons “featured depictions of pastoral scenes with cows grazing in pastures, and advertised the idyllic conditions under which the dairy cows lived.”[48] In an article appearing in Costco Connection magazine, the company represented that the “cows on the farm have quite the life. They feed on a balanced vegan diet and have access to organic pastures for grazing.”[49]

The Aurora federal appeals court held that the plaintiffs’ state law claims based on the “organic” food certification and label themselves were preempted by Organic Food Production Act of 1990 and its regulations, promulgated as the National Organic Program (“NOP”).

The Aurora appeals court determined the state law consumer protection act claims based on the following types of representations were not preempted:

The class plaintiffs alleged Aurora engaged in deceptive advertising practices, by, among other things, “misrepresenting the manner in which its dairy cows were raised and fed,” and “suppressing or omitting material facts regarding the production of its ‘organic’ milk or milk products, specifically that … the dairy cows were not raised at pasture.” This claim sufficiently states a cause of action at this stage of the proceedings.[50]

The key to avoiding federal preemption in misrepresentation in cases regarding “organic” food is not relying on violations of federal NOP certification process in framing complaint allegations. The Aurora appeals court decided that:

To the extent the class plaintiffs, relying on state consumer protection or tort law, seek to set aside Aurora’s [organic]certification, or seek damages from any party for Aurora’s milk being labeled as organic in accordance with the certification, we hold that state law conflicts with federal law and should be preempted. Accordingly, we affirm the dismissal of the class plaintiffs’ claims based on Aurora’s and the retailers’ marketing, representing, and selling milk as organic when, allegedly, it was not.[51]

The National Organic Program has its ardent critics. Ceding control over food quality and characteristics to faraway bureaucracies and the lobbyists of multinational corporations, organic purists argue, leads to watered-down, defanged organic food regulations. Arctic Organics — an Alaskan company that produces organic food but which eschews USDA organic certification — frames the issue this way:

Our philosophical aversion to being certified by the NOP [National Organic Program]is easily explained. The NOP is constantly pressured by large agribusinesses that spend enormous amounts of lobbying money to change standards so that they can take part in the success achieved through true organic production—including success in the marketplace which organic farmers have worked hard to accomplish over several decades. For example, under the NOP, it is now possible to feed nonorganic feed to livestock and sell the meat as “organic,” and poultry is no longer required to have access to the outdoors for foraging and exercise.

Arctic Organics website.[52] www.arcticorganics.com

The growing “locavore” movement regards mass-produced food with disfavor and distrust. Federal regulation of organic foods can be viewed as an antithesis of locavore ideals. It opens up American markets to the importation of allegedly “organic” food in regions of the world (particularly China) where the organic inspection standards may be faulty or corrupt.[53]

To summarize, in the space of about 40 years, organic food went from being a niche, specialty item produced by “farmers on the fringe” to its present status as well-recognized products subject to detailed federal and state law and regulations.

“Natural” Foods Follow a Different “Policy” Regulatory Path

In contrast to “organic” food, there are no binding federal regulations governing the use of “natural” food labels, only federally issued “policy” advice. The absence of federal regulation is significant because it undermines federal preemption and primary jurisdiction arguments in cases discussed in more detail below and opens the door to lawsuits based on state law.

The Federal Trade Commission (“FTC”) first attempted to define the term “natural” in the mid 1970s and concluded it was unable to establish a definition or meaning of the term in 1983. The FTC decided to pursue the issue on a case-by-case basis. A statement from the Chairman of the FTC observed that:

The proposed [abandoned]rule would also define “natural” foods as those with no artificial ingredients and only minimal processing. Quite aside from the significant difficulties that would be posed in enforcing this rule, a fundamental problem exists by virtue of the fact that the context in which “natural” is used determines its meaning. It is unlikely that consumers expect the same thing from a natural apple as they do natural ice cream. The proposed rule assumes, without any evidence, that “natural” means the same thing in every context. We should concentrate our resources on more serious consumer protection problems than whether a claim that “milk is natural” is deceptive.[54]

Likewise, the FDA first attempted to define the term “natural” in 1989 and abandoned that effort in 1993. The FDA stated that it would maintain its policy of defining “natural” as meaning “that nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food.”[55]

Like the FDA, the USDA has issued policy advice with respect to the use of the term “natural.” The USDA’s Food Standards and Labeling Policy Book informs the reader that the word “natural” may be used on labeling for meat and poultry products if (1) the product doesn’t contain any artificial flavor or flavoring, coloring ingredient or any other artificial or synthetic ingredient; and (2) the product and its ingredients are not more than minimally processed.[56] With respect to what constitutes minimal processing, USDA policy relates in part that:

Minimal processing may include: (a) those traditional processes used to make food edible or to preserve it or to make it safe for human consumption, e.g., smoking, roasting, freezing, drying, and fermenting, or (b) those processes which do not fundamentally alter the raw product and/or which only separate a whole, intact food into component parts, e.g., grinding meats, separating eggs into albumen and yolk, and pressing fruits to produce juices. Relatively severe processes, e.g., solvent extraction, acid hydrolysis, and chemical bleaching would clearly be considered more than minimal processing. …

All products claiming to be natural or a natural food product should be accompanied by a brief statement which explains what is meant by the term natural, i.e., that the product is a natural food product because it contains no artificial ingredients and is only minimally processed. The statement should appear directly beneath or beside all natural claims or, if elsewhere on the principal display panel; an asterisk should be used to tie the explanation to the claim.[57]

In September 2009, the USDA’s Food Safety and Inspection Service issued an advance notice of proposed rulemaking on the use of the voluntary claim of “natural” in the labeling of meat and poultry products. No formal rulemaking has yet occurred in response to the FSIS notice. Earlier in 2009, the USDA also issued a voluntary standard for “naturally raised” livestock and meat marketing claims. Essentially, to make the “naturally raised” marketing claim, the meat and meat products must have been raised entirely without growth promotants, antibiotics (with some exceptions), and have never been fed animal by-products.[58]

The absence of binding federal regulations governing the use of “natural” food representations, however, does not prevent the FDA from issuing “warning letters” to producers who misuse an “all-natural” representation. A November 2011 letter from the FDA to Alexia Foods is a prime example. It reads in part:

Your Alexia brand Roasted Red Potatoes & Baby Portabella Mushrooms product is misbranded within the meaning of section 403(a)(1) of the Act [21 U.S.C. 343(a)(1)], which states that food shall be deemed to be misbranded if its labeling is false and misleading in any particular. The phrase “All Natural” appears at the top of the principal display panel on the label. The FDA considers use of the term “natural” on a food label to be truthful and non-misleading when “nothing artificial or synthetic . . . has been included in, or has been added to, a food that would not normally be expected to be in the food.” [58 FR 2302, 2407, January 6, 1993].

Your Alexia brand Roasted Red Potatoes & Baby Portabella Mushrooms product contains disodium dihydrogen pyrophosphate, which is a synthetic chemical preservative. Because your products contain this synthetic ingredient, the use of the claim “All Natural” on this product label is false and misleading, and therefore your product is misbranded under section 403(a)(1) of the Act.[59]

Despite its regulatory oversight, an FDA warning letter is not a “final agency action” as defined under the federal Administrative Procedures Act. Instead, it is a “tentative or interlocutory action” which does not constitute a final agency action.[60] The non-binding nature of the warning letter means the target’s right to seek judicial review of the allegations is circumscribed and limited.

The absence of definitive federal law or regulations regarding proper use of “natural” food representations is a boon for state consumer protection act litigation. In recent years, a host of class action complaints have been filed against food producers regarding their use of the word
“natural” in product labels. For example, a recently filed class action complaint against Kashi Company, and Kellogg Company (which owns Kashi) alleges these defendants “inserted a spectacular array of unnaturally processed and synthetic ingredients to its so-called “all natural” products.”[61] The complaint alleged that Kashi’s “All Natural” GoLean shakes are composed almost entirely of synthetic and unnaturally processed ingredients including sodium molybdate, phytonadione, sodium selenite, magnesium phosphate and a host of other ingredients that have been declared to be synthetic substances under federal regulations.[62]

The Kashi case joins a growing list of state law class actions. A number of these cases raise the issue of whether high fructose corn syrup (“HFCS”) or other processed ingredients qualify as “natural” ingredients. See, e.g., Lockwood v. Conagra Foods, Inc. (allegation that defendant engaged in misleading conduct by advertising its “Healthy Choice’ pasta sauce as “all natural” when it in fact included HFCS); Astiana v. Ben & Jerry’s Homemade, Inc. (allegation that defendants misrepresented ice cream containing “Dutch” or “alkalized” cocoa as “all natural”); Ries v. Hornell Brewing Co. (allegation that AriZona Ice Tea bearing the words “100% All Natural” was misleading because the drink included HFCS).[63]

Attempts by defendants to have these claims dismissed under the primary jurisdiction doctrine — so that the FDA can review the “all natural” food label claims — were initially persuasive to a number of federal district court judges. Such challenges have not been ultimately successful in resolving these cases, however. In one case where the “Is HFCS natural?” claim was stayed pursuant to the primary jurisdiction doctrine, the FDA informed the presiding judge that it would not make an administrative determination whether HFCS qualifies as a “natural” ingredient.” The FDA’s reasoning, in part, was as follows:

First, for the FDA to resolve whether HFCS qualifies as a “natural” ingredient in defendants’ beverages, in the absence of a pre-existing regulatory definition, the agency would expect to act in a transparent manner by engaging in a public proceeding to establish the meaning of this term. Given the issues involved, making such a determination without adequate public participation would raise questions about the fairness of FDA’s action. FDA’s experience with such proceedings is that they would take two to three years to complete. We recognize that such a timeframe would likely not be useful to the Court in resolving the current case.

Second, priority food safety and applied nutrition matters are currently fully occupying the resources that FDA has available for public proceedings on food matters. … Proceedings to define “natural” do not fit within these current priorities.[64]

For the time being, there appears to be little bureaucratic appetite for issuing anything other than policy advice regarding use of “natural” in food promotion representations. The issue of when it is appropriate to label food as “natural” will continue to be litigated through false advertising and consumer protection act claims on a case-by-case basis. The risk of significant litigation exposure may temper the zeal of food producers and marketers to include the moniker “all natural” or portray misleading pastoral scenes on their brand labels.

Conclusion

Perceptions matter in choosing what to eat. If we believe our foodstuffs come from a natural or organic source, we intrinsically believe they will be better and more nutritious for us. The intense historical battle over whether margarine could be colored yellow to look like butter demonstrates the vital importance of appearances. During 1943 Congressional hearings on repealing the federal margarine tax, Elizabeth Schorske (representing the League of Women Shoppers) acknowledged that while adding color to margarine did not add any nutritive value, it does increase “the psychological goodness of it. I think you enjoy it more if it is colored. I know I do.”[65] The same can be said of organic and natural foods. The emotive power of these two words ensures their continued vitality as descriptions of food quality.

Notes

[1] M. Nestle, What to Eat (2006), p. 4.

[2] The American Heritage College Dictionary (3rd Ed. 1997), p. 908.

[3] The American Heritage College Dictionary (3rd Ed. 1997), p. 962.

[4] T. DeGregori, Bountiful Harvest: Technology, Food Safety and the Environment (2002), p. 90.

[5] See generally, R. Deliza and H.J.H. MacFie, “The Generation of Sensory Expectations by External Cues and Its Effect on Sensory Perception and Hedonic Ratings: A Review,” 11 J. of Sensory Perceptions (1996), 103-128.

The number of studies seeking to determine whether organic food tastes better or is more nutritious is rapidly expanding. Unfortunately, the research methodologies employed in these studies generally rely on a limited set of variables as surrogates for determining what constitutes “good taste” or is deemed to be “nutritious.” Good taste is conflated into the presence (or not) of certain chemical compositions and nutrition is measured by the presence or absence of trace minerals. While these may be useful surrogates for analyzing nutrition, the academic challenge of the 21^st century will be to study the complex physio-psycho-social interactions that appear to be much more explanatory of taste and nutrition. This will necessarily require a cross-disciplinary analysis involving the fields of physiology and psychology and even sociology.

[6] Like many Rockwell paintings, Normal Rockwell Visits a County Agent first appeared in the Saturday Evening Post, in this case on July 24, 1948.

[7] The author Michael Pollan is credited with making the term “locavore” a recognized food concept. His invaluable books explore our relationship to the production and consumption of food in many fascinating and subtle ways.

[8] A. Vileisis, Kitchen Literacy: How We Lost Knowledge of Where Food Comes From and Why We Need to Get It Back (2008), p. 32.

[9] Id., p. 20.

[10] Ibid.

[11] Id., p. 74.

[12] Id., p. 75.

[13] L. Dalton, 82 Chemical & Engineering News 33, p. 24 (August 16, 2004), accessed on 12/29/11 at http://pubs.acs.org/cen/whatstuff/stuff/8233margarine.html.

[14] Ibid.

[15] When the name “oleomargarine” was first coined, the “oleo” prefix referred to the fact that margarine was being manufactured with beef fat. However, by the 1940s, much of oleomargarine was being manufactured with the use of vegetable oils, and technically, the “oleo” prefix did not apply. During Congressional hearings in the 1940s, legislators and witnesses began to use the words “oleomargarine” and “margarine” interchangeably.

[16] Ibid.

[17] See, e.g., U.S. Patent No. 153,999, entitled “Improvement in Processes for Separating Oleomargarine and Stearine from Animal Fat” (issued on August 11, 1874); U.S. Patent No. 1,649,821, entitled “Powdered Butter Coloring for Butter and Oleomargarine” (issued on November 22, 1927); and U.S. Patent No. 3,940,504, entitled “Oleomargarine with Yellow Food Coloring” (issued on February 24, 1976).

[18]The rapid increase in margarine consumption in place of butter in Denmark during World War I, for example, led to an epidemic of Vitamin A deficiency, which can result in such diseases as “night blindness” and corneal ulcers. Margarine producers then began fortifying it with Vitamin A. The following interchange during Congressional hearings in 1943 on whether to repeal the federal oleomargarine tax is illuminating:

Mr. Murray. I just want to call your attention to this: Up until 1938, not much of it [margarine]was fortified, or it was not fortified until 1938, to any great extent, and then anyone who has said that oleomargarine is as good as butter, was not making a scientifically accurate statement; that was not a scientific fact?

Dr. Gunderson. May we state it in terms of 1943, that in light of present knowledge and practice, this summary as I have read it, I think is a fair statement of the case.

Mr. Murray. In other words, the Oleomargarine Trust then up until 1938 was trying to tell the American public that oleo was as good as butter, and that was not the fact. It was not a scientific fact. * * * .

Vol 8, Legislative History of the Food, Drug and Cosmetic Act, p. 40 (accessed through http://heinonline.org).

[19] The American Heritage College Dictionary (3rd ed. 1997), p. 1110.

[20] A. Kallet and F.J. Schlink, 100,000,000 Guinea Pigs: Dangers in Everyday Foods, Drugs, and Cosmetics (1933), p. 3.

[21] 21 U.S.C. § 321(f).

[22] 21 U.S.C. § 321(gg).

[23] 21 U.S.C. § 321(g)(1)(B) and (C).

[24]See, e.g, United States v. Hohensee, 243 F.2d 367 (3rd Cir. 1957)(peppermint tea leaves and wheat germ oil were drugs when promoted to cure and prevent diseases); United States v. Vital Health Prods., Ltd., 786 F.Supp. 761, 772 (E.D. Wis. 1992), aff’d sub nom. United States v. Lebeau, 985 F.2d 563 (7th Cir. 1993)(“White Birch Mineral Water” and “Licorice Root Tea” reported to possess curative powers were drugs); Hanson v. United States, 417 F. Supp. 30, 34-35 (D. Minn. 1976)(extraction from the kernels of apricot pits marketed to treat cancer is a drug when “peddled for the intended uses set forth in the statute”); United States v. 250 Jars, etc., of U.S. Fancy Pure Honey, 218 F. Supp. 208 (E.D. Mich. 1963) aff’d, 344 F.2d 288 (6th Cir. 1965)(honey promoted as “a panacea for various diseases and ailments” is a drug; “The fact that the seized honey is a food cannot take it out of the statutory definition of the word ‘drug,’ since such honey was intended to be used in the capacity of a drug.”).

[25] 62 Cases of Jam v. United States, 340 U.S. 583, 596 (1950), quoting United States v. Dotterweich, 320 U.S. 277, 280 (1943).

[26] S. Lendman, “Potential Health Hazards of Genetically Engineered Foods,” (dated February 22, 2008), Centre for Research on Globalization, accessed on 1/10/12 at http://www.globalresearch.ca/indix.php?context,+va&aid+8148.

[27] A. Kallet and F.J. Schlink, 100,000,000 Guinea Pigs: Dangers in Everyday Foods, Drugs, and Cosmetics (1933), pp. 286-87.

[28]A. Hill, “Healthy food obsession sparks rise in new eating disorder,” The Guardian/The Observer (August 15, 2009), accessed on 1/9/12 at http://www/guardian.co.uk/society/2009/aug/16/orthorexia-mential-health-eating-disorder.

[29] Ibid.

[30] The name is an anagram, “soy” for “soybeans” and “lent” for “lentils.” The text description of Soylent Green is drawn from my recent viewing of the film and Wikipedia’s entry for the film, available at http://en.wikipedia.org/wiki/Soylent_Green.

[31] In a spoof of the film, a company now manufactures and sells “Soylent Green” crackers and promotes them as “All Natural.”

[32] Dan Sullivan, “Time for Change: The Story of Tilth’s Remarkable Birth also Charts the Beginnings of the Sustainable Agricultural Movement,” Rodale Institute (January 27, 2005), available at http://www.newfarm.org/features/2005/0105/tilth/history.shtml.

[33] Mark Musick, “A New Beginning,” Tilth Producers Quarterly: A Journal of Organic and Sustainable Agriculture (Winter 1977), p. 1.

[34] This narrative is based on the facts described in Langon v. Valicopters, Inc., 88 Wn.2d 855, 857, 567 P.2d 218 (1977) and “Langons Win Pesticide Case,” Tilth Producers Quarterly: A Journal of Organic and Sustainable Agriculture (Summer 1975).

[35]“Guthion, also called azinphos-methyl, is an organophosphorous pesticide that was used on many crops, especially apples, pears, cherries, peaches, almonds, and cotton. Many of its former uses have been cancelled by the EPA, and its few remaining uses are currently in the process of being phased out.” From ToxFAQs, available at http://www.atsdr.cdc.gov/tfacts188.html#bookmark05 (accessed July 16, 2008). This website is maintained by the Agency for Toxic Substances and Disease Registry (“ATSDR”), which is part of the U.S. Department of Health and Human Services. According to the ATSDR, “Guthion interferes with the normal way that the nerves and brain function. Exposure to very high levels of Guthion for a short period in air, water, or food may cause difficulty breathing, chest tightness, vomiting, cramps, diarrhea, blurred vision, sweating, headaches, dizziness, loss of consciousness, and death. If persons who are exposed to high amounts of Guthion are rapidly given appropriate treatment, there may be no long-term harmful effects.” Id.

[36] From Material Safety Data Sheet for Thiodan 2 EC (dated 9/9/99). The principal ingredient in Thiodan is endosulfin, which the MSDS states is highly toxic to fish.

[37] Washington State Senate Journal, Vol. 1, p. 1458 (49th Leg., 1985).

[38] SHB 297 Committee Report, p. 91-92.

[39] Ibid.

[40] The Organic Food Production Act of 1990 is codified at 7 U.S.C. § 6501 et seq. This Act required that the United States Department of Agriculture (“USDA”) develop national standards for organic products. Pursuant to this mandate, the National Organic Program (the “NOP”) instituted rules and regulations for organic food and its handling. The permitted use of the green USDA certification mark is regulated by the NOP.

[41] 7 U.S.C. § 6501.

[42] See 7 U.S.C. § 6507 (“State organic certification program”) and § 6514 (“Accreditation program”).

[43] 7 U.S.C. § 6507(b)(1) and (2).

[44] Under Washington’s “Organic Food Product” law, RCW 15.86.030, a producer, processor or handler shall not represent, sell, or offer for sale any food product with the representation that the product is an organic food if that person knows or has reason to know that the food has not been produced, processed or handled in accordance with standards established by the National Organic Program. A violation of RCW 15.86.030 constitutes “an unfair method of competition and unfair or deceptive act or practice” pursuant to RCW 19.86.023.

Similarly, a violation of Alaska’s organic food law, AS 17.06.010, is also an unfair and deceptive act pursuant to AS 45.50.471(47) and can give rise to a private cause of action pursuant to AS 45.50.531(a).

[45] See, e.g., RCW 19.86.080 (“Any person who is injured in his or her business or property by a violation [of Washington’s consumer protection act] … may bring a civil action in superior court to enjoin further violations, to recover the actual damages sustained by him or her, or both, together with the costs of the suit, including a reasonable attorney’s fee, and the court may in its discretion, increase the award of damages to an amount not to exceed three times the actual damages sustained …”; italics added).

[46]“One does not need to be a gourmand or gourmet to conclude that the consumption of food and drink represents a not inconsiderable portion of man’s enjoyment of life. To be deprived of the capacity to enjoy flavorful dishes and palatable beverages is to be robbed of much of what goes into a rewarding existence because, with the ‘inner man’ satisfied, one can work with greater zest in the accomplishment of his chosen tasks and in making his contribution to the happiness of those dependent upon him and mankind in general. The defendant has lost much of the desire for the table because he can detect no difference in food. Whether it be the rarest delicacies or the commonest kind of provender which he eats, he tastes only sawdust.” Daugherty v. Erie R. Co., 403 Pa. 334, 340, 169 A.2d 549, 552 (1961).

[47] 621 F.3d 781 (8th Cir. 2010).

[48] Id., pp. 789-90.

[49] Id., p. 790.

[50] Id., p. 799.

[51] Id., p. 797.

[52] See http://www.arcticorganics.com/organic-certification.htm.

[53]The title to one article frames the issue: Is Your Organic Food Really Organic? (available at http://www.alternet.org/environment/94146/is_your_organic_food_really_organic). The article discusses the fact that 15 out of 30 federally accredited organic certifiers had been put on probation due to their shoddy certification practices, especially as they relate to food imported from China. The article notes, “Even if a Chinese inspector notices illegal pesticide use, he or she might feel pressured to stay silent,” says Dr. Robert E. Hegel, professor of Chinese and Comparative Literature at Washington University in St. Louis. “Everybody there is so proud of increased production that few people ask much about the farmer’s production methods,” he states. “And there’s no ‘organic’ food tradition in China.” According to Hegel, in China “everything was just ‘food’ and it was, until the 1950s, mostly ‘organic’ by our contemporary definitions—fertilized with human and animal waste, compost . . . and ashes.”

[54] 48 Fed. Reg. 23,270 (May 24, 1983).

[55] 58 Fed. Reg. 2302, 2407 (January 6, 1993).

[56] USDA, Food Safety and Inspection Service (FSIS), Food Standards and Labeling Policy Book (revised for Web publication, August 2005). Note that the primary difference between FSIS meat labeling regulations and FDA food label regulations is that meat and poultry producers must submit their label claims to the FSIS before they can be marketed, whereas producers of other foods do not have to submit their labels to the FDA for pre-approval.

[57] Ibid.

[58] USDA Agricultural Marketing Service Press Release, AMS No. 008-09 (dated January 9, 2009).

[59] This FDA Warning Letter is available online. See http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/ucm281118.htm.

[60] Schering-Plough Healthcare Prods., Inc. v. Schwarz Pharma, Inc., 547 F. Supp.2d 939, 946 (E.D. Wis. 2008) (the opinions of the FDA officials who wrote the letter that the defendants’ products were misbranded were not final agency actions); Genendo Pharmaceutical v. Thompson, 308 F. Supp.2d 881, 885 (N.D. Ill. 2003)(statements of FDA officials in warning letter do not constitute final agency action).

[61] Class Action Complaint (filed August 24, 2011), ¶ 3 in Bates v. Kashi Co, et al. Case No. 3:11-cv-01967 (U.S.D.C. S.D. Cal.).

[62] Ibid.

[63] See Lockwood v. Conagra Foods, Inc., 597 F. Supp.2d 1028 (N.D. Cal. 2009); Astiana v. Ben & Jerry’s Homemade, Inc., 2011 WL 2111796 (N.D. Cal. 2011); Ries v. Hornell Brewing Co., 2010 WL 2943860 (N.D. Cal. 2010).

[64] FDA Letter to Hon. Jerome B. Simandle (dated September 16, 2010) regarding Coyle v. Hornell Brewing Co. Inc.

[65] Testimony of Elizabeth Schorske, representing the League of Women Shoppers. Vol. 8, Legislative History of the Food, Drug and Cosmetic Act, p. 254 (accessed through http://heinonline.org).

I find it pretty amazing that stores like CVS can make room for a caramel made by a company that has no more than 20 employees and operates out of a little town in the north woods. I can only conclude that people are hungry for candy that is just a little better than what’s on offer from the global food conglomerates, and small producers are inciting a renaissance.

For generations raised on Kraft cubes, the superiority of a fresh, small-batch caramel is largely unknown. In fact, the mediocrity of the overprocessed caramel helped chocolate bars rise to dominance in the candy aisle. While Kraft has been the most prominent caramel of the last half century, the company wasn’t even in the candy business when their cube took its place among confections. Kraft specialized in dairy processing—their first product was ice cream. Later, Kraft made its fortune in cheese. Caramels were just a sideline, another way to transform fresh milk into a shelf-stable product. Nevertheless, Kraft’s “dairy fresh” caramel cubes, with their particular milky flavor and fudgy texture, became the standard for American caramel—a stark departure from the sophisticated continental confection they once were.

Caramels first appeared on the American candy scene in the 1880s. The lineage of the first American caramel is obscure, and mired in ancient Anglo-Gallic rivalries. In flavor and character, what we know today as caramel candy is closely related to British toffee and butterscotch, which appeared in the early 1800s.  British candy historian Laura Mason suggests that caramels might have evolved in the spirit of dental charity—a softer counterpart to the hard-on-the-teeth British toffee. Stephen Schmidt, author of Dessert in America and an expert in the history of American desserts, looks to the other side of the Channel for caramel origins: “The inspiration behind American caramels were French caramels, which came to this country during the vogue for French cooking of the Gilded Age.”

photo by Julie Frost (Creative Commons: http://www.flickr.com/photos/johnnystiletto)

Whatever its British or French antecedents, the caramel candy that appeared at the end of the nineteenth century was a uniquely American concoction. Home recipes most closely resembled their French cousins, employing basic combinations of butter, sugar, cream and flavorings. But more unique confections were spilling out of professional candy kitchens: In their quest for market share and profit, commercial producers would experiment with such ingredients as paraffin, glucose, coconut butter, flour, and molasses to alter the texture, firmness and quality of the candies.

As for the word caramel, the OED is uncharacteristically vague on the origins of the term. It is traced to France, but questions persist about its reference. Theoretical etymologies attach it to callamellus  little tube or reed, or to cannamella, the Latin term for sugar cane, but these are only theories, and not very persuasive ones. OED concludes, somewhat tersely, “origin uncertain.”

The OED’s lexicographers do not mention a more promising (but likely apocryphal) derivation attributing the name to one Count Albufage Caramel of Nismes, France. Tantalizing references to Count Caramel appear (and disappear) in the 19^th century, most famously in William Jeanes The Modern Confectioner (1861; also known as Gunter’s Modern Confectioner). The Count is credited with first describing the final stage of sugar boiling just before the sugar would begin to darken.  Although Count Caramel sounds more like a character from Jim Henson’s workshop than a bona fide member of the French aristocracy, something in the account rings true.

The French were most daring in experiments with sugar boiling in the 18^th century, and the final “caramel” stage was the last to be added to the codification of stages of sugar boiling. At lower temperatures, the sugar boil is named with obvious descriptors: terms like ball, crack, pearl and feather. By the 19^th century, the term “caramel” was widely used to name the stage just before the sugar began to burn; American candy makers today call it “hard crack.”

Whether or not Count Caramel actually existed, the obfuscation of meaning surrounding the term caramel is real. American caramel lovers beware; once you cross into international territories, a candy sack labeled “caramel” or “caramelo” is likely to contain nothing of the sort. It is a cruel trick, to be offered a “caramelo” and receive instead a lurid hard candy reeking of artificial cherry. These cognate candies evoke the elusive Count Caramel’s high sugar boil: sugar melted and raised to the temperature of “caramel” cools into a hard, glass-like candy.

As Catherine Owen attempted to explain to her 1887 candy-making aspirants: “Caramel is really sugar boiled until it changes color, but the candy understood as ‘caramels’ is something different.” Sara Rorer’s 1889 Home Candy Making, for example, gives a recipe for “caramel” that includes only sugar and water, boiled to “the consistency of molasses.” This would be sugar cooked to a very high temperature, over 330 degrees. Caramel candy recipes, in contrast, cook sugar with milk or butter at lower temperatures. The resultant browning and deepening of flavors is not caramelization, but a related effect known as the Maillard reaction. This is the flavor prized today as “caramel,” but for Americans in the 1880s and 1890s, that distinctive taste was not so closely attached to the caramel candy sensation. Even in caramel candy’s heyday, chocolate’s appeal and marketability were undeniable. Hence the famed Philadelphia Caramel, which was, as everybody on the eastern seaboard knew, a chewy morsel of chocolate.

Milton Hershey, who would go on to found the Hershey’s chocolate empire, began as a caramel man; his Lancaster Caramels were advertised to include a mix of 30 varieties. Prior to Hershey’s chocolate innovations of the 1890s, milk chocolate was a closely guarded European secret. Chocolate bars for eating were imported, expensive delicacies. Caramel, in contrast, could be made for every taste and budget. Caramel candy in that era was not a specific variety, but a generic form: so Hershey sold chocolate, strawberry, coffee, maple, and coconut caramels. Our familiar plain caramel would have been known in that day as another flavor, vanilla. Soon, the caramels got fancier. Nuts, cream centers, or even chocolate dipped. One day, Hershey looked at those chocolate dipped caramels and saw a new direction for his company. Exit caramels, enter the Hershey Bar.

These days, chocolate rules the candy shop and dominates the dessert cart. But caramel can be every bit as interesting and delicious—and thanks to small producers, the chewy, rich candy is entering a renaissance. Some makers find their audience through visible placement by the CVS register, while others reach an enthusiastic market through the wonders of artisan retail channels like Etsy.

It seems the candy universe is inviting an outcast back into its midst. Fifteen years ago, the makers of the film Good Will Hunting made caramel the candy of choice for the main character, a nerdy social misfit played by Matt Damon. Today, nerds are the masters of the universe and caramel has gone mainstream.

Samira Kawash lives in Brooklyn. When she is not prowling the markets in search of the perfect caramel, she is writing a book about the social history of American candy.

What this reveals is that the relationship between our eating habits and what gets planted on most of America’s farms is a lot less direct than we might imagine. Even with the local food movement taking root widely, industrial agriculture in this country holds its ground, because consumer choices influence only a marginal piece of this highly efficient operation. The ruthlessness with which businesses look to exploit an unused resource can be truly breathtaking. Name a by-product of virtually any agricultural operation, and someone will find a use for it. Heck, there is an active business in feeding chicken litter to cattle. Got something you don’t want to truck down to the landfill? What’s the caloric value of that stuff? Is it a decent source of protein? Maybe someone will take it off your hands.

(iStockPhoto)

Soy crushers make the majority of their profit from the meal, not the oil, of the bean. But in the 1920’s, when the industry figured out how to hydrogenate soy oil and turn it into margarine, what was ostensibly waste became gold. Not long after that, soy oil became our major source of salad oil, and it also expanded into the baking and frying industries. There was a time not that long ago when it seemed just about any food you bought, be it in the supermarket or at a restaurant, contained at least a little soy oil.

Then came the revelation that the hydrogenated transfats which had become a backbone of the U.S. frying and baking industries were not very good for you, even when consumed at relatively low levels. The role of transfat as a contributory factor in heart disease, and possibly other ailments, has been well documented and widely publicized, and demand for this major use of soybean oil has—for good reason—fallen on hard times.

Here are a few of the particulars: Back in 2003, the U.S. baking and frying industries consumed 8.289 billion pounds of soy oil. In 2010 (the latest complete year that the U.S. Census Bureau provided this data), baking/frying consumption had fallen by more than half to 3.610 billion pounds, and the precipitous fall has presumably continued since. Soy oil used for margarine also declined by 28 percent between 2003 and 2009. Initially, salad oil producers took up much of the slack, using 10.321 billion pounds in 2008, up 23 percent from 2003. But even this total has been falling in recent years, dropping to 9.207 billion pounds in 2010, and the available data from the National Oilseed Processors Association (an umbrella organization of crushing firms that provides the only relatively comprehensive crushing data around now that the Census Bureau has terminated its crush report) indicates that this number has also continued to decline.

Meanwhile, canola imports into the U.S. totaled a record-large 3.125 billion pounds in 2010/11, and the imports so far in 2011/12, at 552 million pounds, are a fresh record for the first two months in the marketing year. It seems that major U.S. food producers are now in active pursuit of what are at least perceived to be healthier types of fat. In other words, if you are a big food maker, having a cheap, dependable raw material at your disposal may be nice, but it pales to the concern that you may not be able to sell your product if the public no longer considers that raw material to be safe.

But don’t shed a tear for the American soybean crusher, because where there is an abundant resource, demand is sure to follow. In this case, the new demand takes the form of the U.S. government’s mandate for renewable fuel. The USDA projects that about 3.6 billion pounds of soy oil will be used by the U.S. biodiesel industry in 2011/12, or about 19 percent of all U.S. soy oil supplies. Biodiesel mandates totaled 800 million gallons in 2011 and will total 1 billion gallons in 2012, but have not been yet determined for future years. However, what we do know is that the law currently mandates that 5 billion gallons of “undifferentiated advanced biofuel” be produced by 2022, and currently the only commercially viable option in this category is biodiesel.  Assuming soy oil makes up a similar percentage of the source material for biodiesel production as it does today, this means that virtually all the soy oil currently produced by the U.S. crushing industry would have to go to the biodiesel industry to meet this “advanced biofuel” mandate.

This is, in microcosm, why the corn/soybean monoculture that has dominated the landscape of the American Midwest for decades is so difficult to break. This was confirmed in USDA’s annual prospective plantings report, released on Friday, which projected 2012 U.S. corn seeding at 96.4 million acres, the highest level since 1937. U.S. soybean planting was increased in the report from USDA’s March estimate, up to 76.1 million acres, making combined corn and soy planting in 2012 a new record high.

On those occasions when the demand for a product dries up, such as we are witnessing with hydrogenated soybean oil, there is almost guaranteed to be a new buyer for the relatively cheap, abundant supply of whatever product this land can most efficiently produce, even in the case, such as today, where much of that new demand is driven by the government.

Even after major food makers have switched from soy to alternative oils, such as sunseed and canola, the crops planted to produce those make up 1.8 and 1.6 million acres, respectively—each about 2 percent of the farmland devoted to soybeans. Consumer habits do not alter the soil and climate patterns that make one crop work better than another, and the history of crop production in this country demonstrates that supply will eventually drive demand.

James Barnett is the commodities analyst for “A Contrarian’s Dilemma,” a futures market letter. He has worked in the commodity futures industry for the past 14 years, initially as a grain market reporter for Bridge News, and for the past decade as a grain analyst, including the research departments of Refco and MF Global, which at the time were two of the pre-eminent U.S. futures brokerage houses. He has presented long-term price analyses at industry conferences across the U.S., Canada, Brazil and China.

In one way, it seemed fortuitous that my mother (also a Lea) should discover this book precisely when I was confronting the realities of apartment life — among them clogged drains and gas leaks — as well as my new job as a food writer. On the other hand, I wasn’t sure what relevant homemaking knowledge a 19^th century Quaker woman could impart on a 21^st century New York renter.

Nonetheless, the journey from college dorm room to New York apartment required a steeper learning curve than I imagined and it was comforting to find that even distant relatives of mine went through similar trials (though maybe not in a recession). Lea wrote the book for her own daughter who was unsure of how to navigate married life. Her daughter’s concerns — including how to store silver and mend china — appeared more elegant than my own questions about how to install smoke alarms and successfully ward off mice. But Lea’s constant emphasis on resourcefulness and patience applies to even the most menial chores and recipes in the book, making my less appealing problems still seem worthy of my full attention.

The book’s mere existence today — and the reason I own a copy — is thanks to food historian William Woys Weaver, who brought Lea’s work out of obscurity with his revised edition in 1982 followed by another edition in 2004. But the persistence of Lea’s Domestic Cookery in the 19^th century (it went through nineteen editions by 1879) was due to its practical and often thrifty approach to homemaking. “Never try a new dish when you expect company,” she instructed her young readers, “Your guests will be more gratified with a neat and moderate table, with a few plain and well cooked dishes, accompanied with the smiling countenance of the hostess, than with a great variety of ill cooked and badly arranged viands.” Memories of crumbling veggie burgers that I’ve served to guests of my own confirmed Lea’s advice.

In his extensive introduction, Weaver outlines Lea’s life from her upper class Quaker upbringing in Ellicott City, Maryland to her marriage in 1812 to Thomas Lea to her eventual position as a widowed farm owner.  Elizabeth and Thomas settled in Delaware and Lea was promptly thrown into household life. In Domestic Cookery, she writes that she was “frequently embarrassed by her ignorance of domestic affairs.”2 But through trial and error (and some help from neighbors) Lea pieced together the necessary domestic knowledge expected of her and in 1821, she began a manuscript of recipes that would make up part of her book.

The couple and their seven children eventually moved to rural Walnut Hill farm in Sandy Spring, Maryland. In 1829, Thomas Lea died and Elizabeth was left to manage both a household and a farm. In addition to these duties, Lea took on the massive project of authoring this cookbook for her newly wed daughter Mary Lea Stabler, even though she was often confined to bed from illness. During such times she stationed herself in a room above the kitchen stairs and would bellow out instructions to the family cook or her friend and assistant Rebecca Russell below. By all accounts she was an exacting and extremely stubborn figure.

photo by Eleanor West

After I received my copy of Domestic Cookery, I immediately wanted to try my hand at some of Lea’s recipes. I was optimistic if only because I knew they would not require a food processor, an appliance whose absence in my kitchen constantly foils me in modern recipes. Lea presents all of her recipes in paragraph form without the glossy photos we’re accustomed to and doesn’t waste any words in her instructions. The recipe for stewing sweet breads is all of one sentence: “Stew them in a little water, with butter, flour, and a little cream; season with salt, pepper, parsley and thyme.” The directions for rice pudding and mulled jelly are much the same: “Pour a quart of boiling milk on a pint of rice flour, stir it well, and put in six spoonfuls of sugar, one of butter, and four eggs; beat all together, and bake in deep plates, with or without crust.” This makes them look deceptively easy, until you realize that ratios are often left unmentioned and cooking times are few and far between. I could already feel Lea forcing her zeal for independence on me.

I bypassed the recipes for baking a pig’s head and cooking pigeons and tried out some of the lighter fare, like Philadelphia milk-less ice cream (milk-less, but not dairy-less — the recipe calls for large quantities of cream). I grew up outside of Philadelphia so this seemed like an appropriate place to start. Luckily, Philadelphia ice cream required zero cooking. All I had to do was break a few eggs, mix a pound of sugar with cream, vanilla, and lemon juice and stick it in the freezer. Here things got slightly problematic since my freezer could barely contain that much ice cream even after halving the recipe. But I crammed the creamy mixture in and moved on to Lea’s recipe for bacon potato dumplings.

I approached the recipe on the triumphant high of having so easily mastered Philadelphia ice cream. Plus, any relative who has a recipe for bacon and potatoes wrapped in dough is a relative after my own heart. But there was trouble from the beginning. Lea writes, “Roll out crust as for apple dumplings.” As for apple dumplings? I turned to the apple recipe to be further frustrated. It read, “Make crust as for plain pies.” Eventually, I found the pie crust recipe, but I couldn’t help but feel like Lea was sending me in circles. Clearly, Lea’s daughter had more experience making pie crusts than I did.

I managed to construct the dumplings and they looked picture perfect uncooked, but when I dropped them in the boiling water several unwrapped immediately and others became a viscous mess. I desperately tried to dry out the slimy-looking dough by fishing the few intact dumplings from the water and transferring them to the oven, to no avail. They smelled wonderful, but I can’t imagine that these were the savory bacon-filled dumplings Lea was talking about.

Slightly chagrined with Lea, I turned to her recipe for “mush cakes,” a dish that the Europeans in the region had inherited from the Delaware Indians. Name notwithstanding, the cakes sounded appetizing. Mush turned out to be simply a boiled mixture of cornmeal and water that is stirred for an hour. Once the mixture cools, it’s combined with wheat flour and butter (or lard), molded into small balls by hand, floured and cooked on a griddle. The cakes looked a lot like pancakes and paired perfectly with jam.

photo by Eleanor West

Emboldened by this success I tried her recipe for pickled oysters. The recipe was easy and though Lea did not give any ratio for cloves to pepper to vinegar, there wasn’t much that could go wrong. When finished, the oysters looked shriveled and alien, but their profoundly briney flavor won me over. All in all three out of four of Lea’s recipes proved they had staying power, but I can only imagine how my version of her “hash made of fowls” would have turned out. As it stood, my roomates had to deal with a freezer overflowing with milk-less ice cream, a trash can full of half-cooked dough, and a refrigerator stacked with jars of oysters that looked more like a science experiment than food. There was hardly room to tackle the fowl section and even if there were, I was too exhausted to try.

One problem with using antique recipes is assuming ingredients have not changed. When I told William Woys Weaver about my dumpling disaster, he expressed surprise that I didn’t have more trouble with the mush cakes since modern cornmeal is denser than the kind Lea used. Additionally, names can have different connotations today than they did in the past. Lea’s recipe for pickled mangoes is actually a recipe for pickled cantaloupe. Mango was used colloquially to refer to any fruit or vegetable that could be stuffed and pickled like a bell pepper.

I asked Weaver if women in Lea’s day would have been expected to know how to cook so extensively, as well as to have a thorough knowledge of medicinal cures, many of which are listed in Lea’s book. He answered that some women did, especially those like Lea who had been widowed or were on their own. But he continued, “I really think that one of the reasons for her book’s popularity was its usefulness as a reliable reference. If you needed to know how to make bacon, she gives you the basic advice.”

Basic for 19^th-century Quaker women maybe, but not always for a 21^st century apartment renter like myself. Nonetheless, Weaver is right, Lea’s steady advice does endure beyond her time because of the sincerity with which she addresses young cooks and homemakers. She succeeds in making you believe that if she could learn to boil a cow’s head, cure lock jaw, and manage a farm, then you can probably learn to unclog the drain. Probably.

Eleanor West is a New York-based food politics writer for Food Republic where she covers everything from heritage meats to the farm bill (and the occasional pickle festival). You can follow her on twitter at @Eleanor_West.

[1] Lea, Elizabeth E., and William Woys Weaver. A Quaker Woman’s Cookbook: The Domestic Cookery of Elizabeth Ellicott Lea. Mechanicsburg, PA: Stackpole, 2004, 7-8.

[2] Lea, Elizabeth E., and William Woys Weaver. A Quaker Woman’s Cookbook: The Domestic Cookery of Elizabeth Ellicott Lea. Mechanicsburg, PA: Stackpole, 2004, 7

In 1931 Winston Churchill claimed “fifty years hence, we shall escape the absurdity of growing a whole chicken in order to eat the breast or wing, by growing these parts separately under a suitable medium.” Churchill’s prophecy may seem like just another episode of futurism unfulfilled, but there is a chance that he was only off by a few decades. Since the Industrial Revolution we have tried in vain to create a “food of the future” which would keep pace with growing populations and avoid the mass malnutrition and starvation feared by Thomas Malthus. Some scientists and technology trend-spotters think we are now very close. They point to early 21^st-Century research that might realize Churchill’s vision by producing in-vitro or “vat” meat, pieces of animal protein cultured in petri dishes or “bio-reactors.”1 Seemingly ripped from the pages of science fiction novels (Margaret Atwood and William Gibson are only two of the most prominent authors who have described artificially-grown animal protein), “vat” meat has been touted as a solution not only to mass malnutrition in the developing world but also to the cruel treatment of livestock. The organization People for the Ethical Treatment of Animals (PETA) currently offers a one million dollar prize to the team who can bring a convincing cultured chicken product to market in 2012.

From Eindhoven, The Netherlands to Tokyo, Japan, scientists are attempting to culture the future of food. This future would be made of millions of cells of protein grown from a small sample – in some cases, a single cell – taken from a food animal, usually a cow, pig, or chicken. While the motivations of the scientists involved vary, all are aware of the growing human population (expected to rise from the current 7 billion to 9 by 2050) of the enormous environmental impact of the livestock industry  (which accounts for about 20% of global greenhouse gas emissions) and of the fact that we face not just population growth but the expansion of the middle class, especially in growing economies like India and China, where becoming middle class often means acquiring status markers like a meat-rich diet. Michael Specter claims that between 2000 and 2030 meat consumption will likely increase by 70%, far out of proportion with population growth.2 This would, of course, have commensurate effects on our use of grain; according to geographer Vaclav Smil, in 1900 only 10% of the world’s grain was fed to animals but by 1990 that had risen to 45%, and such change would be greatly outstripped by the mid-21^st century.3

Creative Commons licensed from Flickr (http://www.flickr.com/photos/lobsterstew/132240555/).

Vat meat might save us from malnutrition or environmental disaster or even cruelty to animals, but not every future is to everyone’s taste. Mention vat meat to a friend, especially a meat-loving friend, and you are likely to get, at best, a quizzical look. How could anything grown in a vat taste as good as braised pork shoulder from a pig, a beautifully marbled piece of Wagyu beef from a cow, or beer-battered fried chicken from one of those served over cheddar cheese grits with bacon-biscuit garniture? Scientists and promoters of vat meat face a double challenge: One of development and engineering, and another of social acceptance. While hamburger-like meat products are feasible today, palatable equivalents of steak and other recognizable cuts of meat will take far more sophisticated versions of tissue engineering than are currently possible. Technically perfected and scalable versions of vat-meat may lie in the future, but so does an audience hungry for the product, even though it is precisely the global population of the future world of 2050 that vat meat’s creators hope to feed. Scientists thus struggle to design a food source that gratifies many types of need at once, even as they dream of needs to come – these are what historian Warren Belasco has called “the stakes in steaks.”4

But the most immediate question for those trying to bring about a future of vat meat is not whether it is technically possible, nor whether it can make mouths water, but whether or not laboratories can get funding to create it in the first place. Any emerging technology like in-vitro meat competes with other emerging technologies in a broad marketplace, and only some attract the attention and dollars, of venture capitalists. One of the most prominent venture capitalists interesting in emerging technologies, is the futurist Peter Thiel, who claims that we have lost our taste for the future, and especially for imagining futures that might be wildly better than the present.5 Interestingly, food technologies seem to fall outside of Thiel’s area of interest, for reasons that may be linked to the ideology underlying his investment strategies. Why, it is worth asking, might visions like Churchill’s fail to interest Thiel? What attracts (or repels) a futurist from the subject of the future of food?

According to Thiel, previous American generations did the future better. They dreamed of colonizing the moon, of traveling by jetpack or flying car, of growing food in hydroponic rings around space stations, and of curing diseases previously thought incurable. And crucially, they understood these as features of the near future, expected in their own or in their childrens’ lifetimes. Thiel hopes to rekindle that sort of thinking by encouraging new technologies through entrepreneurship, building better futures through business. The slogan of Thiel’s venture-capital firm expresses his disappointment succinctly: “We wanted flying cars, instead we got 140 characters,” or in other words, Twitter is a neat story but not an Amazing Story, one of the more disappointing products of the Information Age (and this despite the role of Twitter in numerous pro-democracy movements worldwide). Amazing Stories, Thiel suggests, can only be produced by capitalism unfettered by governmental controls. Thiel has been careful to say that he is not a utopian, but his hopes for the future do come in response to a perceived demise of utopian thinking. Thiel is convinced that financial markets and private technology firms, rather than government-funded Big Science of the sort that built Los Alamos, will produce futures worth living in.

Vat meat could prove to be precisely the kind of disruptive technology Thiel prefers to fund – it is certainly Promethean enough – but Thiel has focused little attention on the food and energy sectors, which affect us all. His pattern has been to fund projects which promise to use technology to open up new areas of freedom; Thiel’s most famous fortune-building investments have been PayPal (which he co-founded, and which he interprets as freeing users from the tyranny of currency) and Facebook, in which he now holds a 7% ownership stake. However, some of Thiel’s pet investment projects would be far more dramatically disruptive than alternate technologies of exchange, or social networking websites; these include artificial intelligence and regenerative medicine, which some see as a vector leading towards the extension of the healthy human lifespan. Thiel’s friend Patri Friedman’s SeaSteading Institute, which plans to establish floating independent city-sized states, is yet another project which expresses (and forthrightly) Thiel’s libertarian principles. If any of these projects are realized they would have far greater consequences than a 140-character answer to the question “what’s happening?”

Vat meat could, in theory, appeal to Thiel because of its intimate links to regenerative medicine. Scientists in both areas must master similar techniques of tissue engineering, and those with medical backgrounds move between the two areas with relative ease.6 There are also historical connections between the effort to culture meat, and the effort to regrow organs and limbs: Winston Churchill’s remark about growing chicken meat was inspired by the work of the French scientist Alexis Carrel, who successfully kept tissue cultured from an embryonic chicken heart alive for over twenty years through the regular addition of nutrients. Carrel’s interest was not in food security but rather in demonstrating that cellular senescence could be thwarted – an interest in which he was joined by the aviator and politician Charles Lindburgh, who became his collaborator.7 The promises of regenerative medicine and “vat meat” are, in some senses, the same: both attempt to set forms of life – gross somatic parts and individual cells – free of the natural constraints of life as we understand them. Both promise to introduce novel productive capacities, namely growing meat in factories or the ability to combat organ failure through regeneration. And both projects require massive capitalization and would shake their respective domains – meat production or medicine as it has been conventionally practiced – to the marrow.

For futurists to promote and invest in new food technologies, they have to be willing to contemplate working within an inherently political domain – that of the food system. Interestingly, a view Thiel expressed in a brief personal essay of 2009, “The Education of a Libertarian,” may help to explain why most of his past investments have been in domains less highly regulated, less inherently political and tied to issues of social justice, than food production and distribution. In that essay he suggested that technology, understood as one of the forces moving human history, tends to advance freedom whereas politics limits freedom; as he put it, “we are in a deadly race between politics and technology.” Thiel’s claim that politics limits human freedom was recognizably libertarian; one need not read too deeply in the canon of Western political thought to find the contrary notion that politics is either the expression of human freedom, or even the social structure in which the capacity for freedom develops. The assumption that technology advances human freedom likewise demands closer attention; science fiction has of course produced many visions of technologically-enabled utopias, but it has produced dystopias as well. But Thiel’s underlying intuition, in 2009, seemed to be that government involvement was bad for progress. Investing in vat meat—indeed, investing in any project intended to change highly regulated domains like food or health—could produce scenarios that put that intuition to the test, proving either its deep wisdom or its inherent limitations.

William Gibson, who speculated about vat meat decades before the first patent on an in vitro process was secured, famously remarked that the future is already here, but not evenly distributed. For many of its promoters, vat meat means a future in which both food and health are more evenly distributed—perhaps creating a developing world of better-fed entrepreneurs in whom Thiel and other venture capitalists might invest time and money. But the effort to create foods of the future, like vat meat, will test the ability of technology promoters and futurists to act in concert, convincing others to share their vision and mobilizing not only scientific and technical knowledge but also networks of political actors. And this is precisely why futurists of any political orientation should think about food – none of us will see much future without it.

Benjamin Aldes Wurgaft is an intellectual historian who also writes on food. His essays have appeared in Gastronomica, Meatpaper and other magazines and journals, and he has taught at Berkeley and at the New School for Social Research. Author photo by Lydia Daniller.

[1] Michael Specter, “Test-Tube Burgers,” The New Yorker, May 23, 2011

[2] Specter 34

[3] Vaclav Smil, Feeding the World (Cambridge: MIT Press, 2001)

[4] See Belasco, op. cit.

[5] George Packer, “No Death, No Taxes,” The New Yorker, Nov 28, 2011

[6] On contemporary progress in regenerative medicine, see Mason C and Dunnill P, “A brief definition of regenerative medicine.” Regenerative Medicine 3 (1): 1–5, 2008

[7] See Alexis Carrel and Charles A Lindbergh, The Culture of Organs (New York: P.B. Hoeber, 1938) and David M. Friedman, The Immortalists: Charles Lindbergh, Dr. Alexis Carrel, and their daring quest to live forever (New York: Ecco, 2007) And see Hannah Landecker, Culturing Life: How Cells Became Technologies (Cambridge: Harvard University Press, 2007).

I’ve long thought a chronological and geographic update is in order. When I finally pulled the well-thumbed copy of the book from the shelf and turned to page 186, I was struck again by the elegance of such complex information displayed so simply. Parts of the chart hold true 30-plus years later and a continent away (raw and recherché food can still be seen as the purview of those with more cultural than economic capital), and yet other elements have completely flip-flopped. Charcuterie, listed as a choice of those without economic or cultural capital, has, if nothing else, become recherché.

So here is a new take on Bourdieu’s “The food space” chart. It has none of the deep sociological research that spawned the original behind it, and questions of women’s free time and status, as well as rates of food and cultural consumption, have been left off. I have embraced and re-positioned some of Bourdieu’s original categories and items, but also added some specific to 21st-century America. What I found rather glorious was how, when I thought through any single food item (i.e. yogurt), it couldn’t really be placed in one specific location. Rather, specific versions of it would belong in different places. Such are the choices and range of our foodstuffs. Such is the ever-widening world of human taste.

(illustration by Leigh Wells, http://leighwells.com)

I’m sure plenty of people will disagree with where some item has been situated, and even more people will think something essential has been left off. This graph is but a starting point. What would you include?

Walker Evans, Kitchen Wall, Alabama Farmstead (1936). Courtesy Williams College Museum of Art.

On March 16, 2012, Gastronomica and Orion magazines presented “An Evening of Art, Literature and Food” at the Williams College Museum of Art as part of the Berkshire Women Writers Festival. Gastronomica’s Darra Goldstein and Orion’s Hannah Fries asked several celebrated women writers to respond to Walker Evans’ photograph Kitchen Wall, Alabama Homestead, in WCMA’s collection.

In the summer of 1936 the photographer Walker Evans collaborated with the writer James Agee on an article about cotton farmers in the American South. The article was never published, but the material they gathered eventually became the book Let Us Now Praise Famous Men, published in 1941. For four weeks in July, Evans photographed three sharecropper families and their environment. Agee noted the significance of “bareness and space” in these homes: “general odds and ends are set very plainly and squarely discrete from one another. . . [giving] each object a full strength it would not otherwise have.” These objects only hint at the lives of the inhabitants of this house, which remain essentially unknown to us. We asked writers Ruth Reichl, Francine Prose, and Elizabeth Graver, and poets Ellen Doré Watson, and Patty Crane to reflect on Evans’ photograph, to imagine the lives beyond the kitchen wall.

Their beautiful responses are gathered here. Click each name or photo to read.

Ruth Reichl		Francine Prose		Elizabeth Graver		Ellen Dore Watson		Patty Crane

L: Roy Orbison and Rufus Thomas records -- from 99 Cent Records; R: Lonnie Mack -- from Russel Quan (of the band The Mummies)

Even vegetarians can appreciate good chicken metaphors. In early Blues, R&B, and rock and roll, Gallus gallus domesticus proved a pliable and versatile stand-in for limber legs, funky dance moves, cowardly lovers, and sexual positions. A partial list of chicken-themed songs would include Link Wray’s legendary “Run Chicken Run,” Louis Jordan’s “Ain’t Nobody Here But Us Chickens,” Amos Milburn’s “Chicken Shack Boogie,” Lightnin’ Hopkins’s “Henny Penny Blues,” and Andre Williams’s “The Greasy Chicken.” Taken alone, the titles are amusing, but below their plucked skin lies evidence of the hardscrabble, rural world in which these songs were written.

The South—birthplace of Blues and rock and roll—remained largely rural during the early twentieth century. People kept livestock and gardens. Bluesmen often worked on farms, and many musicians who later built careers in big cities grew up in the country. Naturally, agrarian elements appeared in their art. Biscuits, boll weevils, and tar paper shacks all make appearances, yet few motifs seem as widespread as the lowly chicken. Chickens are cheap and easy to raise. They produce both eggs and meat. Their appearance and personality lend themselves to parody and comic representation, generating such familiar phrases as “don’t be a chicken,” a reputation captured in Roy Orbison’s “Chicken-Hearted.”

L: Link Wray -- from Garage Hangover blog; R: Louis Jordan -- hytam2 via Flickr

Also, the bird’s signature strut resembles human dance. “Come on baby, do a chicken, chicken walk,” sang Hasil Adkins in his classic 1956 rockabilly clucker “Chicken Walk.” Still, one can’t help but wonder why hogs didn’t enjoy equal musical popularity. Mid-century rural Southerners kept hogs in great number, and they seem easy to caricature. Why no “Hog Jowl Blues?” And why no vegetable-themed songs, maybe a “Shucked-Bean Boogie?” With the ubiquity of health-food options today, I can imagine a modern urban analog might be “Mock Chicken Blues” by The Vegan Soy Stompers.

Aaron Gilbreath has written about food, music, and culture for many publications, including Men’s Journal, the Paris Review, The Believer, Tin House, and Gettysburg Review. He lives in Portland, Oregon.

—Rónadh Cox, Notes on Pat Quinn’s “The Great Potato Feud”
(Gastronomica 11:2, Summer 2011)

Listen to “The Great Potato Feud”:

© Pat Quinn, Inis Oírr, Ireland
Used with permission of the artist