In 2011, I was the sole writer for Wired Magazine’s What’s Inside column. Every month, we would take a look at the ingredient list of various household products: from aerosol cheese to body spray, from Cool Whip to golf balls. We’d investigate what made them work, and how their components interacted with each other to make the product do what it did.
When I decided to look at eggnog for the December issue, I spoke with a food chemist about some of the ways the drink’s various ingredients react with each other. As a good interview will sometimes do, our talk ventured off into other topics, and the scientist casually mentioned that the United States’ food laws — regulations determining what can and cannot be used in food — are not always very strictly enforced.
I knew that already. The FDA has produced a series of regulations called “Standards of Identity”, which are part of the US federal code and therefore have the force of law. In them, the FDA describes in minute detail what various foodstuffs are, and what they are permitted to be. Ice cream, for instance, must contain at least 10% milkfat; butter can only be made from milk, cream, and salt; the moisture content of Limburger cheese must not exceed 50%, and so on.
I told the chemist that I was amazed to read in the Standard of Identity for eggnog, 21CFR131.170(e)(4), that the FDA makes it absolutely clear that eggnog may not contain any type of food coloring that makes it look as if there are more egg yolks in the eggnog than there actually are.
This essentially means that any sort of yellow, or orange and yellow, food coloring should be banned from eggnog. This includes substances like the standard Yellow #5 food coloring, as well as more natural food colorings, such the plant-based extracts annatto or turmeric.
Yet, when I’d look at all the varieties of eggnog, nearly every brand used some form of orange / yellow food coloring, in clear violation of the FDA’s rule. I casually asked the food chemist how the dairy companies could get away with that.
The chemist got very, very quiet, and said “This kind of thing happens all the time”. I asked what she meant by that. She said that over the past 15 years or so, the FDA has had its funding cut dramatically. Because of this, they pretty much have lost the ability to do standard proactive enforcement of many of their regulations. They spend too much of their time running around “putting out fires”; dealing with an E coli outbreak in hamburger, say, or tainted pharmaceuticals from China. And because of that, it has sort of become open season for those manufacturers who would like to bend the rules a little bit. She warned that she couldn’t be certain that that’s what was happening with eggnog, but she wouldn’t be surprised if the dairy companies that make eggnog decided to push the rules a bit to see what they could get away with.
It sounds like a cliché, but the back of my scalp was literally tingling when she told me this. I seriously might be on to a pretty big story. Was the entire dairy industry violating the law?
“Because there is no loophole I can see. They’re breaking the law.”
I called a university law professor who specialized in food law. I laid out the problem for him: According to government regulation 21CFR131.170(e)(4), eggnog could not contain egg-like food coloring; yet every eggnog I examined contained yellow or orange food coloring. I asked him what loopholes were the dairy companies using to clearly go against the letter and the spirit of this regulation.
I waited on the phone as I heard that clickity-clack of his computer keyboard as he looked up the regulations. He was quiet for what seems like a long time (though probably only about one minute), and then he said “And you say that nearly every eggnog you’ve looked at contains a yellow or orange food coloring?” And I said yes, either Yellow #5 or annatto or turmeric.
The professor took a deep breath, and let it out in long sigh. “If any of these companies hired me to be their adviser on food law, I would tell them to stop doing this immediately. Immediately.”
“Why?”
“Because there is no loophole I can see. They’re breaking the law.”
I’d like to thank the Pulitzer committee for awarding me this prize in investigative journalism. Could this story really be serious? This professor was regularly hired by food companies to be an expert witness when the companies were brought to trial because of some violation they may have committed in the food laws. He told me that he generally worked on the side of the food companies against the government. Yet here he was, in essence, telling the food companies that they were wrong. What they were doing could not be defended in court. Their champion was telling him to give it up.
The story was getting bigger than I ever thought. If this expert witness was willing to come down against the food companies, than it was more than likely that they really were breaking the law. I had to take my inquiries even further.
“You could conceivably be responsible for getting the FDA to remove all eggnog from store shelves just before Christmas.”
So I called the law firm of [REDACTED], [REDACTED], [REDACTED], and [REDACTED]. They described themselves as top litigators against the FDA on behalf of food companies. These were the actual lawyers who went up against the government. They claimed that they frequently won, and their attitude as winners showed.
When I identified myself as a reporter, the receptionist immediately passed me to Mr. [REDACTED], one of the founders of the firm (and now partner emeritus). I kind of got the impression that he was more or less semi-retired, and the firm trotted him out whenever someone from the media needed a quote about something. I identified myself, and once again laid out the entire story for him: 21CFR131.170(e)(4) says no eggy food coloring, yet nearly every eggnog contains a yellow-orange food coloring. What was the deal?
The old man laid the phone on his desk, without hitting the hold button. Mr. [REDACTED] had the voice of a very old man, but he displayed a youthful mental energy, and zeal for the fight. He ordered his assistants to pull the relevant volumes off the shelves, because he wanted to look up
21CFR131.170(e)(4) for himself. I then heard him ask for other tomes, all recited from memory. He barked orders, and told people what to look up, using obscure legal terminology. As the minutes dragged on, I could hear some of his younger minions report back to him, and I sat there at my desk with my headphone pressed up against my ears, straining mightily to overhear what they were saying. He asked more questions and barked more orders. I got the impression Mr. [REDACTED] was thoroughly enjoying himself. I heard him pick up the phone off the desk.
“Young fella, you there?” I said I was.
“You’re a reporter?” I said I was a writer for Wired magazine. He asked what the circulation was. I told him about three quarters of a million. I added that the magazine was part of the Condé Nast media empire. I had a subtle need to convey to him that I, too, was in the big leagues.
“Well, I’ll tell you, if you write this up, and get it out there, it’s going to have a big impact. A big impact.”
Before, I had been filled with the excitement of finding a big story. Now, I was filled with responsibility of having a big story.
“What kind of big impact do you think it might have?” I asked.
“You said that the story’s coming out around Thanksgiving?” the partner emeritus asked. “Well, if Condé Nast gives a big play, and if it gets picked up by other media, you could conceivably be responsible for getting the FDA to remove all eggnog from store shelves just before Christmas.”
Ho-leee Shiiiiiiiiiit. It was one thing to come up with a big story; to be denigrated on ‘Fox and Friends’ and interviewed by Rachel Maddow. It was an entirely different thing to be the Grinch who destroyed Christmas. I needed some guidance, and fast. I called my editor at Wired.
Once again I laid out the entire story. I told him what the food chemist had hinted, what a food professor had said, and what the food lawyer had said. I told him that we were potentially facing a story that might make a real change in the world, in a way that might get us all killed by angry mobs denied their Holiday cheer.
He questioned me relentlessly. Were the chemicals used to create the yellow color harmful in any way? I told him annatto and turmeric were totally natural vegetable based colors. Yellow #5 had its detractors, but it was still legal to use. Was I sure that annatto and turmeric were used to color egg yolks? I sent him links to various companies that encouraged chicken farmers to feed annatto and turmeric to their brood hens specifically to deepen the yellow color of their egg yolks. He asked if I had checked with the FDA? I told him I had spoken to their spokesperson several times, and now the poor guy was not returning my calls or emails anymore. He asked if I had checked with the various eggnog manufacturers. Yes, but they hadn’t yet gotten back to me. He suggested that a check with the American Dairy Association, and told me to keep him informed. He thought this was a good story.
Then I got a call from one of the eggnog manufacturers.
“All those people may be dead, or at least retired by now,” I said.
“Mr. Di Justo, it’s Charlie X from XXX Dairies, how are you today? I’m calling about that question you asked us yesterday, and boy let me tell you, you gave us quite as scare. For a while there I thought that we really had been breaking the law.”
My entire psyche started to fragment. “You’re not breaking the law when you add yellow food coloring to eggnog?”
“No, we are not, thank goodness,” Charlie said. “It’s kind of complicated, so I suggest you call Athena* at the American Dairy Association, and she can explain the whole thing to you. Here’s her number.”
I could barely speak. If his company wasn’t breaking the law by coloring eggnog, it’s possible no company was breaking the law. My story was dissolving in front of me. “I’ll certainly do that,” I said with a certainty I did not feel.
Athena at the American Dairy Association was efficiency personified. She asked me for my e-mail address, and send me an excerpt from a 1981 Federal Register, the official journal of the United States government. In it, the government explained its ruling on the use of color additives in eggnog. The report explained that some eggnog manufacturers objected to the new rule, saying that the public has come to expect deep yellow eggnog, a color that can not be reached by pure egg yolk alone. Another manufacturer argued that different eggs (especially from chickens fed on annatto) have yolks that are different shades of yellow, and if egg farmers can tint their products to obtain a uniform appearance, eggnog manufacturers should be able to do the same.
The Federal Register document showed that ultimately, the FDA agreed with those arguments. The final sentence of that section of the document is as follows:
“Therefore, FDA is staying the effective date of that portion of § 131.170(e)(4) that prohibits the use of color additives that simulate the color of egg yolk, butterfat, or milkfat, pending the outcome of a public hearing.”
I said to Athena, “Was the public hearing ever held?” Athena said she did not know.
“But that was more than 30 years ago!” I said. Athena agreed that it was, in fact, more than 30 years ago.
“All the people who were working at the FDA at that time, all the people who ever knew about this ruling, all those people may be dead, or at least retired by now,” I said. Athena admitted that, yes, they may be dead or retired. She asked if there was anything else she could do for me. I said no, there wasn’t, and thanked her.
My story was dead, and for the worst reason. A law was put into place for a good cause, and it was being subverted in a way that made that subversion legal, in the most cynical way possible: The law would remain on the books. It would just never, ever be enforced.
As of June 2009, the last date the FDA could check, "due to competing priorities and limited resources, FDA has not held a public hearing to resolve these issues and the effective date for these provisions remains stayed.” It looks as though they always will be.
Now for the scary ending: I found this story by accident, and I found the solution only after weeks of research. How many other products are “technically” very tightly regulated, but practically hardly regulated at all? And how will we ever find out?
Reprinted from “This Is What You Just Put Your In Your Mouth? From Egg Nog to Beef Jerky, the Surprising Secrets of What’s Inside Everyday Products” Copyright © 2015 by Patrick Di Justo. Published by Three Rivers Press, an imprint of the Crown Publishing Group, a division of Penguin Random House LLC.
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