Food, Drug, and Cosmetic Act (1938)

The Food, Drug, and Cosmetic Act of 1938 strengthened the power of the Food and Drug Administration, a federal regulatory agency created in 1906 to protect American consumers from harmful food and drug products. Strengthening the FDA was consistent with New Deal efforts to increase the regulatory power of the federal GOVERNMENT. It was also consistent with New Deal efforts to better balance consumers’ and producers’ interests and to include consumers as a constituency in the agencies of the federal government, beginning with the establishment of the Consumer Advisory Board of the National Recovery Administration in 1933.

In working to protect the public from unsafe food and drugs in the 1930s, the Food and Drug Administration was constrained by inadequate statutory power and by limited funding and staffing. Products continued to come on the market that harmed, and sometimes killed, consumers, despite the best efforts of the FDA’s modest staff of fewer than 250 chemists and inspectors. In 1937, the Massengil Company distributed a new drug for syphilis, Elixir of Sulfanilamide, which contained an untested lethal solvent that caused more than 100 deaths. The ensuing stir revealed the FDA’s weaknesses and spurred the passage of a stronger statute the following year.

The resulting law, the 1938 Food, Drug, and Cosmetic Act, one of the last New Deal successes in strengthening the regulatory powers of the federal government, gave the FDA new power to eliminate abuses in production, labeling, and advertising, as well as additional authority over cosmetics and medical devices. The law also gave the FDA power to establish legally enforceable food standards, to conduct factory inspections, to enforce injunctions on seized products and companies, and to require the premarket approval of drugs.

In the years after 1938, the FDA enjoyed enhanced power, activity, and success, even though wartime priorities brought some decrease in the agency’s staffing. Supreme Court decisions in the 1940s and 1950s upheld FDA actions on ADVERTISING and confirmed its power in overseeing and regulating food, drugs, and cosmetics.

Further reading: Charles O. Jackson, Food and Drug Legislation in the New Deal (Princeton, N. J.: Princeton University Press, 1970).

—David Slak