The History and Theory of Food and Drug Law

Kara W. Swanson, Northeastern University School of Law, has published Food and Drug Law as Intellectual Property Law: Historical Reflections at 2011 Wisconsin Law Review 329. Here is the abstract.

This Article returns to the late nineteenth and early twentieth centuries to consider food and drug law as intellectual property law. Today, Americans are engaged in two separate debates about food and drugs. One centers on the safety of these consumables, and the effectiveness of the Food and Drug Administration. The other is spurred by serious questions of equity involving the ownership and pricing of patented pharmaceuticals and crops, and centers on patent law and the Patent and Trademark Office. These debates were once part of a single broad conversation about food and drugs. This Article uses an historical perspective to understand the separation of these debates and to consider the opportunities that arise from considering food and drug law as intellectual property law. It argues both that early food and drug law was influenced by intellectual property concerns and that the separation of intellectual property policy from federal food and drug regulation was neither inevitable nor inconsequential. Drawing on the history of science, technology, and medicine, this Article reexamines the early pure-food-and-drug movement as, in part, an anti-intellectual-property movement. It uncovers the opposition to trade secrets that supported an alliance between medical opponents to proprietary medicines and agricultural opponents to artificial foods that successfully supported early federal food and drug regulation, and the simultaneous failure of a medical campaign against drug patents. By considering the historical shift in the pharmaceutical market from trade secrets to patents in relation to the recent trend toward patents in agribusiness, this Article considers the lessons from history for a reunification of food and drug policy with intellectual property policy.

Download the article from SSRN at the link.