Substances Inherent and Substances Added | jgersen | February 11, 2016

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Substances Inherent and Substances Added

by jgersen Show/Hide
  1. 1 Show/Hide More United States v. Forty Barrels and Twenty Kegs of Coca Cola
    Original Creator: jgersen
    Notes:
    1. Adulteration in a special sense. The court notes that “adulteration” is used in the statute in “a special sense.” In what sense does the Court think adulteration is used in a special sense? The Court seems to distinguish between two sorts of foods. For naturally occurring foods, like a banana, adulteration means the introduction into the banana of something harmful. For non-naturally occurring foods like coca-cola, however, what does it mean to be adulterated? If a food is manufactured from a set of ingredients, how can it be deemed adulterated because one of those ingredients is included? Prior to its inclusion, the drink was not Coca-cola. After its addition, the drink was coca-cola, but it was not adulterated because nothing new had been added after it became coke. In any event, such was Coke’s argument. The Supreme Court, however, disagreed. A manufactured food product may be adulterated if a deleterious or harmful substance is added as part of the manufacturing product. <br /> 2. Added v. Inherent. The adulteration doctrine has developed to distinguish between substances inherent in a food and substances added to food. The same food may be adulterated when a substance is added to it, but not adulterated when the same substance occurs naturally as part of the food product. As the Court said, “[y]ou can extract poison from grain or its products and when it is extracted it is a deadly poison; but if you leave that poison as nature embodied it in the original substances it is not a dangerous poison or an active agency of poison at all.” Why does it make sense to hinge legality on whether a substance is inherent in a food or whether it is added to a food? Would not a more rational system simply ask whether the substance was harmful or injuries to human health, whether inherent or added? <br /> 3. Is caffeine added? Although the Court had little trouble concluding that caffeine is an added substance, consider the difficulty that processed foods or manufactured foods generate for the food safety regime. When a food is processed together from a set list of ingredients and has only a trade name like coca-cola, the company has a sensible argument that until all the ingredients are mixed together, it is not coke. And after all the ingredients have been mixed, nothing has been added. <br /> 4. Is caffeine a poisonous or deleterious substance? As the Supreme Court noted, the government presented evidence that caffeine is a poisonous or deleterious substance. The industry presented evidence that caffeine is safe. That question, however, is for the jury. <br /> 5. Caffeine today. One hundred years later, the <span class="caps">FDA</span> is once again inquiring whether caffeine is safe. After concluding that food products mixing alcohol and caffeine are not safe, <span class="caps">FDA</span> is inquiring whether caffeinated chewing gum is dangerous. One piece of caffeinated gum has the same amount of caffeine as half a cup of coffee. After initial <span class="caps">FDA</span> investigation, several chewing gum companies withdrew the product.
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March 16, 2017

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Jacob Gersen

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