Loco ‘local’ food law and Lewis and Clark

Jeff Havens

They were on the verge of starvation in the Bitterroot Mountains in mid-September 1805.

The 34 members of the Lewis and Clark expedition were so hungry that they started eating their own horses. They also supplemented the meat with canned soup on September 14, 15, 16, 18 and 19 in this difficult year.

When Captain Meriwether Lewis paid for canned soup in Philadelphia in May 1803, he never imagined that his emergency food had a fair chance of killing all members of the expedition. This fact was largely dependent on whether the soup was cooked before consumption. To make matters worse, the emergency food was kept in lead canisters, which prevented oxygen from flowing into the food.

This ignorance, understandable by today’s standards, was due to the fact that science had not yet understood both the germ theory and the negative health consequences of lead ingestion. In addition, scientists and food processors had no idea about the deadliest food poison known: botulinum toxin.

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Reasonable people believe that we have come far beyond the ignorance of the 19th century, and in many ways we have made progress. In a way, however, we are taking a step backwards, much to the detriment of public health.

Botulinum is a powerful neurotoxin. It is formed in low acid and low oxygen environments and cannot be detected by sight, smell or taste. One tablespoon of purified botulinum toxin has the potential to kill everyone on earth if no antitoxin is administered, usually within the first 48 hours of symptom onset. In the worst case, the toxin can be neutralized if the food is cooked for at least 10 minutes before consumption, or longer in mountainous areas.

This fact may have saved the expedition. As Pvt. Joseph Whitehouse suggested in his journal on September 15, “We have melted snow to drink and make portable soup.”

In 1803, Lewis had chef Francois Baillet make a thick paste made from water, cuts of beef, egg whites, and chopped vegetables known as “portable soup.” Baillet probably learned his canning method indirectly through the efforts of French chef Nicholas Appert, who developed his canning process from 1799 to 1809. Appert packaged food in glass bottles, corked the openings, and immersed the bottles in boiling water for seven to 120 minutes. Appert eventually won a prize of 12,000 francs from Emperor Napoleon Bonaparte of France in 1810 for his efforts.

Napoleon wanted a way to feed troops for campaigns.

The soup Lewis bought would today be classified as a low-acid canned food. Similarly risky canned foods, to which substances such as vinegar are added, are classified as acidified foods. Both foods are high-risk canned products regulated by either the Food and Drug Administration (FDA) or the United States Department of Agriculture (USDA).

Which authority has jurisdiction over high-risk canned goods depends on two factors: most relevant is whether ingredients or products have been or will be the subject of interstate trade.

Under the circumstances of the Montana Local Food Choice Act of 2021, the law bends backwards to bypass USDA authority on both ingredients and products. However, this only applies to FDA products. In other words, it’s impossible to legally justify that local “homemade” commercial food products that use non-local ingredients are outside FDA jurisdiction.

“Local” cannot also mean “non-local”. Worse, the law claims to fall outside of the consumer protections that any sane person would expect from such homemade commercial foods.

One of the reasons for the extremely low number of incidents related to commercial foodborne botulism is that these foods are subject to federal consumer safety standards.

If a state has no regulations or refuses to enforce regulations for high-risk canning, and the product contains interstate ingredients, the manufacturer of that canned product is exempt from FDA emergency use authorization only if it meets minimum standards. In such a case, the FDA officer must investigate whether to take emergency action on behalf of the public. Because most botulism cases involve homemade foods, it is highly unlikely that an FDA officer would determine that the emergency authorization provision does not apply to Montana’s commercial homemade foods law.

According to federal surveillance data, most cases of botulism in the lower 49 states are attributed to homemade foods. For example, the latest available data for 2018 showed that there were 17 laboratory-confirmed cases. Of the 17 cases, nine were attributed to homemade foods.

But this botulism risk is acceptable to State Senator Greg Hertz, Gov. Greg Gianforte and Health Department Director Charles Brereton, who refuses to legally challenge the law despite its apparent interstate trade problems because the risk outweighs their extremely anti-government agenda dictated to them by theirs Americans for Prosperity overlord. Also, let this column serve as a public announcement of the primacy of federal law that Montana has violated through willful inaction.

I think Lewis and Clark – the embodiment of public service – would expect a lot more from government officials to protect public health than what is happening in Montana now.

Jeff Havens was a paramedic registered in six states during his decades of public service and specialized in commercial food safety. He was the lead author of the 2015 amendment to Montana’s Grocery Retail Act and Regulations, allowing for the production of low-risk, homemade groceries. Havens, a state employee, is not an official spokesman for the Montana Department of Public of Health and Human Services.