In the mid-twentieth century there was increasing concern about the levels of lead present in maple syrup. Numerous sources of lead were present in maple syrup making equipment at that time which had the potential to introduce unacceptable levels of lead into maple sap and ultimately be concentrated in maple syrup. Lead-based paint was used on pails and equipment. Brass components and sheet metals like terne-plate and galvanized steel contained lead in their alloys or as exterior coatings, and lead solder was used in fabricating metal evaporators, gathering tanks, and collection pails.
With the enactment of the Food and Drug Act of 1906 the Federal Government took a more active role in addressing food safety concerns, although the primary focus at that time was on protecting consumers from being sold fake, impure, dangerous products through false labeling and adulteration. Substances like lead were known to be poisonous, but how much and in what forms was a topic of great debate. State departments of agriculture in the maple syrup producing regions were aware of the problem and conducted limited testing of maple syrup for lead levels and begun research on alternative lead-free paints appropriate for the maple syrup industry.
The Federal Food and Drug Administration (FDA) began expressing its concerns with lead levels in maple syrup in the early 1930s. With the enactment of the Food, Drug, and Cosmetics Act (FDCA) of 1938, new language empowered the FDA to develop standards and safe levels of otherwise dangerous substances like lead in maple syrup and engage in more direct enforcement actions.
The nexus for the application and enforcement of the FDCA of 1938 was through the constitutional provision allowing congress to regulate interstate commerce. The FDA needed to make a point with its initial enforcement and get the attention of the maple industry, but at the same time to not punish a small maple syrup producer who couldn’t afford the court challenge. Wisely the FDA selected the biggest in the business for its test case. In June of 1938, United States Marshalls seized over 900 barrels of maple syrup being shipped by United Maple Products, LTD. of Croghan, New York, to St. Johnsbury, Vermont for the Cary Maple Sugar Company. The Cary Company was the largest buyer of maple syrup in the world, conducting its bottling operations at their four-story plant in St. Johnsbury, Vermont.
FDA chemists tested the maple syrup in the confiscated barrels and determined that some of the syrup contained an “added poisonous or deleterious ingredient, lead, which may render the article injurious to health” and brought civil charges under the curious title of United States vs. 52 Drums Maple Syrup in which the civil action was brought against the property itself and not specifically the Cary Maple Sugar Company who was the owner of the maple syrup.
The following year, on July 24, 1939 in Montpelier in the United States District Court of Vermont presentation of the case began in front of a jury and Federal Judge Harland B. Howe. As it turns out, Judge Howe was to retire on medical disability the following year and this case was one of the very last cases he oversaw from the bench in Montpelier. Moreover, as a life-long Vermonter and native of St. Johnsbury, Judge Howe was more than familiar with the world of maple syrup production and the Cary Maple Syrup Company. Howe was also undoubtedly familiar with St. Johnsbury attorney Arthur L. Graves, who represented the Cary Company on numerous occasions.
The trial lasted seven days spread across two weeks and as recounted in detailed daily blow-by-blow reports in the Burlington Free Press, “the courtroom was packed with spectators including representatives of the State Department of Agriculture which is interested in the proceeding as a test case having serious bearing on the future of maple syrup in interstate commerce.”
As suggested, this case garnered a great deal of attention in Vermont and among the maple syrup industry. Interestingly, the initial editorial response by the Burlington Free Press was to point out that the lead levels in the syrup were minuscule and there were no known cases of anyone ever getting poisoned by lead in maple syrup, and moreover, that the in spite of the case being heard in a Vermont court, the syrup in question came from New York.
FDA chemists testified that lead levels in the tested syrup ranged from .001 to .136 grains of lead per pound. However, Cary Company chemist testified that the average lead levels in the tested syrup amounted to .0101 grains per pound. Against the objection of prosecuting Federal District Attorney Joseph A. McNamara, Cary’s attorney Graves offered as further evidence a federal government bulletin that stated that “maple syrup containing not more than .025 grains of lead is proper, not poisonous and not injurious”. Attorney McNamara counted that “there was no authority for the statements contained in the bulletin since the department had never established a regulation on lead tolerance”.
Cary attorney Graves further argued that the Cary Company considered the syrup coming into its plant as a raw product and not consumer ready food product. Once in the plant the syrup would be processed and “de-leaded” prior to being bottled or repackaged, thus it was premature to test the syrup in the barrels coming into the plant for lead levels.
On August 1st, 1939, the jury of Vermonters ruled against the Federal Government and in favor of the 52 barrels of syrup and the Cary Company. In reviewing their decision, Judge Howe “expressed open and enthusiastic approval of the verdict” and was quoted as saying to the jury “I think your verdict speaks the truth” and “I am very proud of you, it shows good sense”. He further added that “he regretted there were no more cases for a jury of such high caliber to consider”.
By the end of the trial the Burlington Free Press did come around to promoting the need for maple producers to “take reasonable measures to completely eliminate such small amounts of lead as may be discovered in maple syrup produced in this state”. The Cary Company, feeling vindicated by the jury decision, took out ads on August 8th thanking the FDA for their efforts to protect the public’s health and echoing the words of the Editors of the Burlington Free Press.
However, the Cary Company possibly spoke to soon, and the following day Federal District Attorney McNamara announced that the U.S. Government would appeal the decision on technical grounds to the U.S. Circuit Court of Appeals. It was agreed that all the syrup with the exception of one barrel would be returned to the Cary Company, and the one barrel would be retained for evidence in moving the case to appeal.
In April of 1940, after hearing appeals testimony from attorneys McNamara and Graves, the three member U.S. Court of Appeals for the Second Circuit in New York City reversed the decision of the District Court jury. The appeal was granted on the grounds that Judge Howe should never have allowed testimony claiming that the syrup was an unfinished product that would later be processed and the lead removed prior to being made available and sold to consumers. The federal government argued, and the appeals judges agreed, that the claim that the syrup in the barrels was an unprocessed raw product and what happened or how it was later handled (supposedly de-leaded) in the plant in St. Johnsbury was immaterial and should not have been admitted.
The maple industry had hoped that one outcome of the case would be that the federal government would establish a lead tolerance level to serve as a guide for the industry in the future. The appeals judges made no definitive statement on the relative levels of lead in the syrup or what standards constituted lead contamination outside of acknowledging that “the government has established what is called a working tolerance of .025 grains of lead per pound which for present purposes may be treated as the maximum amount of lead maple syrup may contain without being barred from interstate shipment”.
In the end the maple industry, with the urging and assistance of state and provincial departments of agriculture, has worked to reduce and eliminate lead in maple syrup through the elimination of lead-based paints, and the modernization and replacement of equipment containing lead-based metals, solder, or coatings, like tin, terne-plate, bronze and galvanized steel. The widespread use of stainless steel, welding rather than solder, and a variety of plastics has nearly eliminated lead in maple syrup.