It was exactly 105 years ago this day, on 30 June 1906, that Congress passed the Pure Food And Drug Act, ensuring that food and drugs bought and sold in the United States would be safe, sound, and unadulterated, and that claims made about food or drugs could be substantiated.
For 88 years, from the passage of the Pure Food and Drug Act in 1906, and continuing with the Food, Drug, and Cosmetic Act of 1938, up to the Dietary Supplement Act of 1994, Americans could be confident that their food was safe and that their medicines were effective, and that not only outright lies, but also false, misrepresented, or misleading claims were not permitted in the advertising of food or drugs. Of course, this is not to say that no advertisers ever misled the public; look at the tobacco industry as a case in point. Nevertheless, Americans had confidence that the food and drugs they bought were substantially what they claimed to be, worked as they claimed to work, and contained what they claimed to contain.
Until the late 1800’s, no one really had a clear understanding of how or why some medicines worked. For example, Tincture of Quinine was clearly effective against malaria, but it was not until the Nineteenth Century that anyone even had a guess as to why. So, in the absence of scientific understanding, most anything was tried and many compounds ranging from the ineffectual to the deadly were sold as Patent Medicines.
By the beginning of the twentieth century, scientific knowledge had advanced to the stage where it no longer made sense to allow every compound to be sold as medicinal. Too many patent frauds were being sold as Patent Medicines. And at the same time, the need to guarantee a healthful, safe food supply was evident: manufacturers had been selling food such as a sweet, sugary, artificially dyed and flavored jelly as “strawberry jam.” To add realism, they had included tiny grass seed. But that was not as bad as canned peas being greened up with poisonous copper salts. Processed meat was often spoiled or tainted with rodent contamination (read Upton Sinclair’s The Jungle for a truly unpalatable look into early 20th Century meat processing.) Clearly the consumer could not rely on the quality or safety of what was being sold, and the consumer had no means of testing or verifying that certain foods were safe or healthful.
Congress took action with the Pure Food and Drug Act, a landmark in modern legislation. Americans could rightly have confidence in the foodstuffs they ate and the drugs they took. Thus, now, after more than three generations of this confidence, Americans still suppose that “they couldn’t advertise that if it wasn’t so.” The pigeons have been primed for the harvest. The Dietary Supplement Act of 1994 greatly lowered the bar on the claims and assertions that may be advertised for dietary supplements. It also requires the FDA to prove that a supplement is harmful in order to restrict it, rather than requiring that a supplement be shown to be effective or at least harmless. Section 4 of the 1994 act states:
In any proceeding under this subparagraph, the United States shall bear the burden of proof on each element to show that a dietary supplement is adulterated. The court shall decide any issue under this paragraph on a de novo basis.
The Dietary Supplement Act provides that almost any claims may be made for a supplement so long as the statement includes:
“This statement has not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease.”
One can see commercial after commercial about “wonder supplements” for a variety of quite specifically identified diseases, yet – bizarrely – the apparently contradictory proviso exonerates the advertiser of all liability. We are therefore subjected to advertising which essentially says: “Take ‘Cactus Squeeze’ for your heart (we don’t really mean for your heart!)” Or: “Use ‘Extract of Spanish Moss Blossoms’ for your prostate health (just kidding about the prostate.)”
Companies that lie in their advertisements may still be fined or sued, but the supplement business is mercurial: new firms spring up as old ones get shut down. These days our airwaves, print media, and internet are filled with inane and potentially harmful claims for dubious supplements. To the protean nature of these supplement sellers, add the fact that Congress has routinely refused to provide funding to support adequate numbers of inspectors and evaluators for the FDA, and we really have a hard time knowing just what we are ingesting these days. That seems poor progress after more than a century’s passage.
It is not at all likely that new legislation will address this ludicrous state of affairs. There is simply too much advertising revenue to be made from Snake Oil, and too many palms are crossed with the profits from exploiting the trusting ignorance of the American public. But I would close with an old and important word to the wise: if a product sounds too good to be true, it is. Do not rely upon the notion that “they couldn’t advertise that if it wasn’t so.” They can. They do.
Happy Birthday, Pure Food and Drug Act! And rest in peace. You are sorely missed.
– Jamie Rawson