Crime and Punishment in American History - Lawrence M. Friedman [182]
The Public Health
One major theme of regulatory law is, of course, public safety and health. There were laws on this subject, in a somewhat rudimentary way, going back to the very beginnings of American legal history. The sheer amount grew steadily over the years, mostly in the states. Thus, Louisiana passed a law about the slaughter of diseased cattle in 1880; a general law against the sale of “adulterated” food and drugs in 1882; an elaborate general food and drug law in 1914. Other laws were more specific: the state passed a law in 1910 against selling watered or adulterated milk, skimmed milk (unless frankly labeled as such), “milk produced by diseased cows,” or milk “produced, stored, handled or transported in an improper, unlawful, unclean or unsanitary manner.”39 Still another law, passed around the turn of the century, forbade the adulteration of sugar and molasses, or of candy, “by the admixture of terra alba, baryter, talc or other mineral substance, by poisonous colors or flavors or other ingredients deleterious or detrimental to health.”40
These laws, of course, had decidedly mixed motives. Some of them were basically protectionist; the health motive was a sham. A notorious example was the epic struggle of dairy interests against their worst enemy, “butterine,” or oleomargarine. Oleo had been invented in the 1860s. The first state statute aimed against it was New York’s, in 1877. By 1886, thirty-four states and territories had passed labeling laws, and nine others had gone as far as enacting some form or other of prohibition. In striking its blow against this intruder, New Hampshire passed a bizarre law in 1885 outlawing “imitation butter” if it were any color “other . . . than pink.”41
State laws did not work well enough for the dairy interests, so in 1886, Congress enacted a tax and regulatory act to fight this dreaded substance.42 The battle continued in the twentieth century; as late as 1931, Congress imposed a crushing tax on the sale of any margarine that was colored yellow (specifically, as measured on the “Lovibond tintometer scale”).43 But the power of farmers was receding in this urban, industrial nation. The federal law was repealed in 1950, and state laws subsequently went into oblivion one by one. The last holdout was Wisconsin, “the dairy state,” whose dairy farmers had enough muscle to fight on. Colored oleo was not fully legalized in Wisconsin until 1967.44
Oleo had become a federal issue because no one state in this economic union could keep unwelcome products from streaming across its borders. This was one factor that lay behind the passage of the Pure Food Act, which got through Congress in 1906. The politics of this law were interesting. There had been a pure food movement for some time in the United States, but the food industries had managed to block any federal legislation. Then Upton Sinclair published his sensational novel The Jungle. A horrified public read about moldy meat products, contaminated sausage, and putrefied goods put in cans and marketed. One disgusting passage described how a worker fell into a vat and was processed as lard. Sinclair’s point in writing the book, he said, was to improve the lot of the “wage slaves” who toiled away for the “beef trust” in Chicago. But, as he put it later, “I aimed at the public’s heart ... and I hit . . . the stomach.”45 Indeed, after Sinclair’s novel was published and made headlines, sales of meat products plummeted. For business, regulation turned out to be better than bankruptcy. Anything to restore public confidence. The Pure Food Act sailed through Congress.
This was not the only time that scandal helped push along some piece of