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\par }\pard \s19\qc\sl480\slmult1\keepn\widctlpar\adjustright {
\par }\pard \s19\qc\keepn\widctlpar\adjustright {A Brief History of Tea:
\par The Rise and Fall of the Tea Importation Act
\par }\pard \s19\li5760\sl480\slmult1\keepn\widctlpar\adjustright {\fs24 
\par 
\par 
\par 
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\par 
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\par 
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\par }\pard \s19\li5760\keepn\widctlpar\adjustright {\b0\fs24 Patricia JB DeWitt
\par Harvard Law School
\par }{\b0\fs20 Third Year Writing Requirement
\par }\pard \s19\qc\sl480\slmult1\keepn\widctlpar\adjustright {\page Introduction
\par }\pard \s19\sl480\slmult1\keepn\widctlpar\adjustright {\b0\fs24 \tab 
\par }\pard \s19\fi720\sl480\slmult1\widctlpar\adjustright {\b0\fs24 In 1996, Congress passed the bipartisan Federal Tea Tasters Repeal Act,}{\cs18\b0\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 P.L. 104-128, 110 Stat. 1198 (April 9, 1996).}}}{\b0\fs24  repealing the Tea Importation Act,}{\cs18\b0\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 29 Stat. 604 (March 2, 1897) codified at 21 U.S.C. \'a7 41, }{\i et seq.,}{ repealed by 110 Stat. 1198 (April 9, 1996).  This is the Act\rquote s official short title, as provided for by 57 Stat.
 499 (July 12, 1943).  However, the Act has been known by many other names, including the Impure Tea Act, the Impure Tea Importation Act, the Tea Act, and the Tea Inspection Act.}}}{\b0\fs24 
 a relatively obscure 99 year-old piece of legislation.  Passed in 1897, the Tea Act prohibited importation of tea into the United States that failed to meet government standards for quality, purity, and fitness for consumption.}{\cs18\b0\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Tea Importation Act \'a7 1, 21 U.S.C. \'a7 41 (1996). }}}{\b0\fs24   
\par At the time of the repeal, the Food and Drug Administration enforced the Tea Act, pursuant to a delegation of authority from the Secretary of Health and Human Services. The entire regulatory program cost taxpayers less than $200,000 per year;}{
\cs18\b0\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ The precise figure is debated, but no estimate exceeds $200,000, the total cost of the program.}}}{\b0\fs24  although th
e inspection program was ambitious, it was supported largely by industry in the form of user fees.}{\cs18\b0\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Tea Importation Act \'a7 13, 21 U.S.C. \'a7
 46(a) (1996).}}}{\b0\fs24   
\par The Tea Act authorized the FDA to appoint a Board of Tea Experts, whose job it was to set federal standards of quality, purity, and fitness for consumption.}{\cs18\b0\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ Tea Importation Act \'a7\'a7 2-3, 21 U.S.C. \'a7 42-43 (1996).}}}{\b0\fs24   The FDA was also responsible for inspecting each and every lot of tea entering the country,}{\cs18\b0\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Tea Importation Act \'a7 4, 21 U.S.C. \'a7 44 (1996).}}}{\b0\fs24  and for providing administrative adjudication by an appointed Board of Tea Appeals.}{\cs18\b0\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Tea Importation Act \'a7 6, 21 U.S.C. \'a7 46 (1996).}}}{\b0\fs24   Although the Federal Tea Tasters Repeal Act of 1996 ended this regulator
y program, FDA retains the power to regulate the safety and purity of tea under the Federal Food, Drug, and Cosmetic Act of 1938.}{\cs18\b0\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 21 U.S.C. 
\'a7\'a7 301 }{\i et seq.}}}{\b0\fs24   
\par The goal of this paper is to provide a general history of the Tea Importation Act of 1897.  It focuses on the Act\rquote s legislative scheme, the Act\rquote 
s antecedents and amendments, and its legislative history.  Special attention is paid to a twenty-year period of litigation early in the Act\rquote s history, from 1898 to 1918, challenging the Act and its enforcement under the Constitution. 
 However, enforcement practices of the various agencies charged with the Act\rquote s administration are not addressed by the paper, except when significant to litigation or the legislative process.
\par 
\par }\pard \s19\qc\sl480\slmult1\keepn\widctlpar\adjustright {A Few Interesting Notes about Tea
\par }\pard\plain \sl480\slmult1\keepn\widctlpar\adjustright \fs20\cgrid {\fs24 
\par }\pard \sl480\slmult1\widctlpar\adjustright {\fs24 \tab According to legend, tea was discovered quite by accident in 2737 B.C. by Shen Nung, the Emperor of China.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ }{\i See}{ Marian Segal, }{\i Tea: A Story of Serendipity}{, (last modified May 6, 1998; visited April 14, 2000) }{\field\flddirty{\*\fldinst { HYPERLINK "http://www.fda.gov/fdac/features/296_tea.html" }{{\*\datafield 
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ce118c8200aa004ba90b5c00000068007400740070003a002f002f007700770077002e006600640061002e0067006f0076002f0066006400610063002f00660065006100740075007200650073002f003200390036005f007400650061002e00680074006d006c000000}}}{\fldrslt {\cs24\ul 
http://www.fda.gov/fdac/features/296_tea.html}}}{.  Segal is a member of the FDA\rquote s public relations staff.  }{\i Id}{.  The New York City-based Tea Council of the U.S.A provided most of Segal\rquote s statistics and historical information.  }{\i Id
}{.}}}{\fs24   With such illustrious beginnings, it is no surprise that tea has a special place in history.  As the legend goes, the Emperor had a practice of drinking boiled water, because
 he believed that the beverage promoted good health.  One day, the Emperor was sitting outside, boiling his drinking water over an open fire.  By chance, a few leaves from a nearby }{\i\fs24 camellia sinesis}{\fs24 
 fell into the hot water, and steeped, producing the world\rquote s first serving of tea.  The Emperor tried the resulting brew, and declared that it produced "vigor of body, contentment of mind, and determination of purpose."}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   Today, tea remains one of the most popular beverages in the world, second only to water.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
\par }\pard \fi720\sl480\slmult1\widctlpar\adjustright {\fs24 How
ever, Americans too have made their mark on tea history.  Although the popularity of tea in the coffee-drinking United States has decreased over the last century, contemporary Americans continue to consume vast quantities of the beverage.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.  In 1994, American drank 2.25 billion gallons of tea.  }{\i Id}{.}}}{\fs24   Though American
s drink their fair share of tea, however, their methods of doing so are \ldblquote unique\rdblquote  among the world\rquote s nations in that fully four-fifths of all tea consumed by Americans is iced.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   
\par While credit for the discovery of tea may legitimately go to Emperor Shen Nung
, iced tea is a thoroughly American variation, invented in 1904 at the Louisiana State Purchase Exposition in St. Louis, Missouri.  The weather at the Exposition was hot enough that one beverage stand, the Far East Tea House, serving hot tea, was unable t
o lure any customers.  In a desperate attempt to salvage the day, the staff of the Far East Tea House started pouring the unwanted tea over ice.  This \ldblquote iced tea\rdblquote  quickly became the beverage of choice at the Exposition.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   Today, canned and bottled iced tea is one of the fastest growing products on supermarket shelves.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24  
\par }\pard\plain \s20\fi720\sl480\slmult1\widctlpar\adjustright \cgrid {
The innovation of the tea bag is also properly credited to American capitalism.  In the same year that iced tea made its debut, a Boston retailer hit upon a method of providing small samples o
f his teas to prospective customers.  He sent out single servings of various teas in small silk pouches, and the tea bag was born.  Because tea bags were conveniently pre-measured and easy to dispose of, they eventually came to dominate the market, althou
gh in a more economical paper incarnation.}{\cs18\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{  Today in America, nearly all freshly brewed tea is prepared from tea bags.}{\cs18\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{
.  In 1994, 60% of all tea consumed in America came from tea bags, while only 1% was brewed from loose leaves.  The remainder was prepared using instant and iced-tea mixes, indicating the importance of convenience to the American tea market.  }{\i Id}{.}}
}{
\par }\pard\plain \s15\fi720\sl480\slmult1\widctlpar\adjustright \fs20\cgrid {\fs24 Historically, most tea imported into the United States came from China and Japan.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ }{\i Id.}{ }}}{\fs24   However, during World War II, the emphasis switched to India and Ceylon, as commercial relations with China and Japan were curtailed.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Id.}{  }}}{\fs24   Today, the majority of tea entering the nation originates in Argentina, China, and Java.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn 
}{ }{\i Id.}{  During the Korean War, uncertainties about reliable tea supplies resurfaced.  Argentina became an important source, as Argentina was geographically and politically removed from the conflict and tea could be
 grown very quickly in the South American climate.  Although Argentina produces teas of only average quality, they are especially suited to being served iced, which partially accounts for the continuing popularity of Argentinean tea in United States marke
ts.  }{\i Id}{.}}}{\fs24   Also note that significant quantities of tea are produced domestically, in the Southern states of the Union.
\par Tea comes in three basic varieties: Green, Oolong, and Black.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
  Currently, the most popular in the United States is black, although that was not always the case.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{
. Notably, it is suggested that World War II accounts for the prevalent use of black tea in the United States.  Prior to the War, only 40% of tea consumed by Americans was black.  Another 40% was green, and the remaining 20% was oolong.  
However, China and Japan are the major producers of green and oolong tea, and these sources were shut off during the war.  However, trade routes to India, which produces primarily black tea, remained open.  Due to relative availability, and possibly due i
n
 part to anti-Asian sentiments on the part of tea drinkers in the United States, by the end of the War, nearly 99% of tea consumed in America was black.  Although green and oolong teas have regained some of their former popularity, this pattern of consump
tion remains largely intact.  }{\i Id}{.}}}{\fs24   All three types are prepared from the same plant; only the metho
d of preparation differs.  The greatest difference between the three methods lies in the varying amount of fermentation: Tea leaves used to make black tea are withered, rolled in special machines to partially release their natural juices, left to ferment 
i
n a climate-controlled environment, and then oven dried.  Oolong tea goes through the same processes as black tea, except that the fermentation process is substantially shorter.  Leaves used to make green tea are not fermented at all.  In fact, they are h
eated immediately after picking in order to prevent fermentation; then they are rolled and dried.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   
\par Other terms familiar to the reader, such as Orange Pekoe, describe the size}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{
. In terms of size, larger leaves are referred to as orange pekoe, pekoe, and pekoe souchong.  Smaller and broken leaves (from largest to smallest) are called broken orange pekoe, broken pekoe souchong, broken ora
nge pekoe fannings, and fines.  Fines are also referred to as \ldblquote tea dust.\rdblquote   }{\i Id}{.}}}{\fs24  and age}{\cs18\fs24\super \chftn {\footnote \pard\plain \widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 Similar terms are used to describe the age of the leaf.  From youngest to oldest, the terms used are flowery pekoe, orange pekoe, pekoe, souchong 1}{\super st}{, souchong 2}{\super nd}{, Congou, an
d Bohea.  Many teas utilize leaves of different ages, and common combinations have their own names, derived from the terms referring to age, e.g., tea made from souchong and younger leaves is called Pekoe Souchong.  U.S. Department of Agriculture, Divisio
n of Chemistry, Bulletin No. 13, Foods and Food Adulterants, Part VII \endash  Tea, Coffee, and Cocoa Preparations 876 (1892).}}}{\fs24  of the leaves.  Strictly speaking, most of these qualitative terms should be applied only to black tea.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Segal, }{\i supra,}{ note}{\i  }{10}{\i .}{  The terms \ldblquote fannings\rdblquote  and \ldblquote fines\rdblquote  are generally applicable.  }
{\i Id}{.}}}{\fs24   However, it is not unheard of for the terms to be used to describe oolong teas.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   
\par 
\par }\pard \s15\qc\sl480\slmult1\keepn\widctlpar\adjustright {\b\fs28 Early Tea Regulation in England
\par }\pard \s15\fi720\sl480\slmult1\keepn\widctlpar\adjustright {\fs24 
\par }\pard \s15\fi720\sl480\slmult1\widctlpar\adjustright {\fs24 In contrast to the later American Tea Importation Act, early British legislation was not aimed primaril
y at prohibiting the importation of impure tea.  Rather, the first British laws proscribed the very act of adulteration.  Probably due to enforcement difficulties, subsequent laws targeted ancillary activity.  Perhaps the early British approach is explain
ed by a perception that adulteration was more of a local problem than an international one.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ This view is to be contrasted with the late 19}{
\super th}{
 century American perception that adulteration was primarily the fault of the ultimate suppliers, the majority of whom at that time were Chinese wholesalers.  There is some reason to believe that America received tea of far lower quality than did 
England.  However, this is not to suggest that significant adulteration did not occur once teas reached the American market.  It is not inconceivable that the 19}{\super th}{
 century American view was colored by prejudice against China and Chinese nationals.}}}{\fs24   It may also be partially attributed to the fact that the only importers of tea at the time were Crown-chartered businesses.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i See}{ F. Leslie Hart, }{\i Adulteration of Food Before 1906}{, 7 FDC L.J. 5, 12 (1952).  These companies had government-sanctioned monopolies.  }{\i Id}{. }}}{\fs24 

\par Although not easy for us to intuit tod
ay, historically, the English crown had a special interest in regulating the purity of tea.  This is not merely because the crown had an interest in the health of its subjects, although health concerns certainly provided some motivation for prohibiting ad
ulteration.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i See id.; see also}{ 17 Geo. 3, c. 29., \'a7 1 (1730), citing \ldblquote the prejudice of the health of His Majesty\rquote 
s subjects\rdblquote  as a reason for the legislation.  }{\i Id}{.  This and the following English statutes are as taken from Douglas C. Bartley, Adulteration of Food, Statutes, Cases and Regulations, Fourth edition, 1-12, (1929).}}}{\fs24 
  It is likely that the stronger motivation for government involvement came from a desire to protect tax revenues.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{\i See }{Hart, }{\i supra}{
 note 30, at 12 (stating, \ldblquote Increase in public revenue was of more importance than an increase in public health.\rdblquote ); }{\i see also }{17 Geo. 3, c. 29., \'a7 1 (1730) (citing \ldblquote the diminution of the revenue,\rdblquote 
 as another reason for the legislation).  Other purposes included preventing \ldblquote the injury and destruction of great quantities of timber, woods, and underwoods, . . . the ruin of the fair trader, and . . . the encouragement of idleness . . .
\rdblquote  }{\i Id}{.}}}{\fs24   Reliable enforcement of tea taxes depended on regulating the purity of tea.
\par In England, tea was a perfect subject for taxation.  First, although tea is relatively inexpensive in our economy, at that time it was considered a luxury product.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ Hart, }{\i supra}{ note 30, at 12.}}}{\fs24   Excise taxes on luxury items assured that government revenues came from those who had the funds to supply them.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 13.  Although Hart is discussing taxes on coffee at this point in his article, the principle remains the same.}}}{\fs24   The crown received its reven
ues out of the discretionary income of the upper classes, and the poor did not suffer extreme tax burdens.  Second, tea could not be grown domestically.  It had to be imported, necessarily passing through one of a limited number of ports.  Evasion of the 
tax was difficult, since it could be assessed at the point of entry.
\par Unfortunately, the tax scheme exacerbated the problem of adulterated tea in English markets.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 17 (stating, \ldblquote 
Tea, being subject to an excise tax, was particularly subject to adulteration.\rdblquote )}}}{\fs24   The practice was already common, as the economic incentives were undeniable.  Dishonest impor
ters and merchants could realize higher profits by adulterating tea and selling it at competitive prices.  Tea was often adulterated at its eastern source, but adulteration also occurred once the tea reached the local market.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 12, }{\i citing}{ Ukers, }{\i All About Tea}{ (1935).}}}{\fs24   As tea was sold to local mer
chants by weight, importers increased its density with the admixture of iron filings, clay, and gypsum.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
  In their turn, the local merchants further adulterated the tea by mixing in exhausted tea leaves}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{
.  The previously used tea leaves could be purchased in quantity from hotels and coffee-houses.  }{\i Id}{.  Exhausted leaves were sometimes treated with the bitter extracts of elder and catechu (terra japonica) in order to impart flavor.  }{\i Id}{
.  They could also be dyed with catechu, molasses, clay, logwood, and other ingredients in order to improve their color.  }{\i See}{ 4 Geo. 2, c. 14 \'a7 11 (1730).  This process was referred to as \ldblquote sophisticating\rdblquote  tea.  }{\i Id}{.}}}{
\fs24  and the leaves of foreign plants.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.  Commonly used foreign leaves included licorice, sloe, ash, and elder.  }{\i See}{
 17 Geo. 3, c. 29 \'a7 1 (1776).  These foreign leaves were processed in the same way as exhausted leaves.  }{\i Id}{.}}}{\fs24   There was a great demand for inexpensive tea, and consumers, unaware of the fraud, were ready and willing to buy the 
\ldblquote tea\rdblquote  at competitive prices.  This adulteration was extremely difficult to detect.
\par This pre-existing incentive to adulterate tea was further compounded by a desire to avoid paying the crown its cut.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Hart, }{\i supra}{
 note 30, at 17.}}}{\fs24   Tea was taxed as a luxury product, but the leaves commonly used to adulterate tea were not subject to duties.  Although selling a mixture of tea and other leaves may not technically been an illegal tax evasion,
 adulterated tea was effectively taxed at a lower rate than pure tea.  Since consumers generally believed they were buying pure tea, the actual demand for tea on the English market was lower than it would have been absent the adulteration.  Obviously, the
 less tea imported into the nation, the lower the revenue collected by the crown on through its tax scheme.  Therefore, the English government therefore had a significant fiscal interest in maintaining the purity of tea sold in its markets.
\par The English government attempted to counter the practice by enacting laws prohibiting the adulterated tea.  In 1724, during the reign of George I, a law was passed which forbid mixing tea with any other substance.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id.}{ at 12; }{\i see also}{ 11 Geo. 1, c. 30 (1724).}}}{\fs24   The penalties were forfeiture of the adulterated tea and a fine of one hundred pounds.}{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i See }{11 Geo. 1, c. 30 (1724).  }}}{\fs24 
  However, this law only dealt with the manufacture of adulterated product; it did not, for example, penalize selling impure tea.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{
\fs24   
\par George II strengthened the law a few years later in 1730.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Hart, }{\i supra}{ note 30, at 12; }{\i see also}{ 4 Geo. 2, c. 14 (1730).}}}{\fs24 
  In addition to the previous prohibition, the new law forbid dealers in tea to sell adulterated tea.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i See}{ 4 Geo. 2, c. 14 \'a7
 11.  In an effort to include as much undesirable activity as possible in the scope of the prohibition, the Act forbid dealers in tea to \ldblquote sell and vend, or utter, offer, or expose to sale\rdblquote  adulterated tea.  }{\i Id}{.}}}{\fs24 
  A dealer\rquote s possession of adulterated tea or of non-tea leaves commonly used to adulterate tea also subjected him to penalties under the law.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super 
\chftn }{ }{\i Id}{.  }}}{\fs24   For every pound of adulterated or imitation tea, the dealer had to pay ten pounds.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
 This fee structure guaranteed that those convicted of the most egregious offenses paid the largest penalties.
\par Decades later, the English found that disturbing amounts of adulterated tea remained in their markets.  Although the prohibitions in the previous laws were fairly comprehensive, only tea dealers could be convicted of the majority of offenses.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ The prohibition o
f adulteration was generally applicable under 11 Geo. 1, c. 30 (1724), but penalties under 4 Geo. 2, c. 14 (1730) only applied to dealers.}}}{\fs24   This left a gaping whole in the enforcement scheme; anyone who wasn\rquote 
t a dealer in tea was free to manufacture imitation tea and tea \lquote stretchers\rquote  from non-tea leaves.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i See}{ 17 Geo. 3, c. 29, \'a7
 1 (1776).}}}{\fs24   They were also free to sell it to tea dealers, who would subsequently mix the imitation leaves with actual tea, and sell the mixture as pure.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ }{\i Id}{.  Though previous laws made this sale criminal, apparently the incentive and ease with which tea could be adulterated overcame good citizenship.}}}{\fs24   Apparently, the practice was so widespread that the gatherin
g of huge quantities of leaves endangered the health of English forests.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. (citing \ldblquote 
the injury and destruction of great quantities of timber, woods, and underwoods,\rdblquote  as a motivating factor in the passage of the legislation).}}}{\fs24   
\par }\pard\plain \s17\fi720\sl480\slmult1\widctlpar\adjustright \fs20\cgrid {\fs24 In 1776,}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i See}{ Bartley, }{\i supra}{ note 31, at vii; }{\i 
but see}{ Hart, }{\i supra}{ note 30, at 13 (referring to the Act as a 1777 law).}}}{\fs24  an additional law was passed to combat the problem.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 17 Geo. 3, c. 29, \'a7 1 (1776).}}}{\fs24   Non-dealers were now subject to the same prohibitions as dealers.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id.}}}{\fs24 
  However, the penalty was lower; offenders were fined five pounds for every pound of adulterated or imitation tea, rather than the ten pounds fine to which dealers were subject.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   An additional measure was aimed at the production of imitation tea: the Act provided penalties for possession of more than six pounds of leaves of }{\i\fs24 any kind}{\fs24 
 if the possessor was unable to satisfactorily prove he had permission to gather the leaves from the trees\rquote  owner.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7 2.}}}{
\fs24 
\par }\pard \s17\sl480\slmult1\widctlpar\adjustright {\b\fs24 
\par }\pard\plain \qc\sl480\slmult1\keepn\widctlpar\adjustright \fs20\cgrid {\b\fs28 Federal Regulation of Tea in the United States
\par }\pard \sl480\slmult1\keepn\widctlpar\adjustright {\b\fs24 
\par }\pard \fi720\sl480\slmult1\widctlpar\adjustright {\fs24 Though tea is not the contemporary beverage of choice, it was of the utmost importance to 19}{\fs24\super th}{\fs24 
 century American society.  However, as in England, the importance of tea in American culture did nothing to protect the public from the evils of the laissez-faire marketplace.  In fact, the American market subjected consum
ers to many of the same problems suffered by English consumers.  
\par As in England, adulteration of tea was commonplace and occurred in several forms.  Tea leaves would be mixed with the leaves of other plants and sold as pure tea.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ 22 Stat. 451 \'a7 1 (March 2, 1883), repealed by 29 Stat. 604 \'a7 12 (March 2, 1897).}}}{\fs24   Previously used tea leaves would be sold as new.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   Consumers expected that particular teas would be colored \endash  or \ldblquote faced\rdblquote  - to improve their aesthetic appearance,}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Thomas Taylor, Report of the Microscopist, First Report of the Secretary of Agriculture 194-5 (1889).  Particularly, green teas from Japan were expected to be color enhanced.  }{\i Id}{
. at 194.  Demand for colored teas was a relatively recent phenomenon, beginning in around 1870.  }{\i Id}{.}}}{\fs24  but coloring was also used to disguise inferior quality and the presence of foreign leaves.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 195.  Taylor notes that American tea dealers favored colored teas because, \ldblquote in teas so colored coarse leaves may pass undetected.\rdblquote   }{\i Id}{
.  Additionally, Taylor partially attributes the decreased quality in Japanese green tea to cultural misunderstanding.  He asserts that the American demand for colored tea lead the Japanese, \ldblquote who value tea for its fragrance and delicacy
\rdblquote  to \ldblquote naturally conclude that the quality of the leaf which is subjected to such treatment [i.e., coloring] is not important.\rdblquote   }{\i Id}{.}}}{\fs24    Additionally, facing te
a was a common method of increasing its weight and therefore its price.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i See}{ Macy v. Browne, 215 F. 456, 459 (S.D.N.Y. 1914).}}}{\fs24 
  Though many facing substances were relatively safe for human consumption, others were not.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Taylor, }{\i supra}{ note 59, at 195; }{\i see also}
{ U.S. Department of Agriculture, Division of Chemistry, Bulletin No. 13, }{\i supra}{ note 26, at 886; }{\i see also}{ H. Rep. No. 54-3029, at 1 (1897) (stating that imported teas were \ldblquote injurious to health\rdblquote  and \ldblquote deleterious
\rdblquote ).}}}{\fs24   
\par Therefore, purchasing tea was a gamble, for health reasons as well as economic ones.  But impure tea was not the only - nor the greatest - threat to the health and safety of the American consumer in the late 19}{\fs24\super th}{\fs24 
 century.  So the question arises as to why regulation of imported tea became a congressional imperative in 1883, prior to extensive federal involvement in the regulation of food in general.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ The first general federal food legislation was the Food and Drugs Act, passed in 1906.  Hutt and Merrill, Food and Drug Law, Cases and Materials, Second Edition, 4 (1991).}}}{\fs24 
  However, it is not so strange as it sounds to us that tea would be the first subject of federal food regulation.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.; }{\i see also}{
 H.W. Schultz, Ph.D., Food Law Handbook 333 (1981).}}}{\fs24   
\par First, it must be understood that the vast majority of tea consumed in the Unit
ed States was imported. While it is unclear what proportion of this adulteration occurred domestically, there is no question that a great deal of the tea entering the country was unacceptable.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ F. K. Killingsworth, }{\i Import Control}{, 2 FDC L.J. 498, 500 (1947).}}}{\fs24   Contemporary wisdom blamed foreign importers for the bulk of 
the problem.  Reportedly, the most egregious of the offenders were Chinese wholesalers, who purportedly viewed America as a dumping ground for the world\rquote s worst tea.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ Terence Samuel, }{\i To the Bitter End, Congress is eliminating government\rquote s official tea taster}{, The Dallas Morning News, April 21, 1996, at 1A.  }}}{\fs24 
  However correct or incorrect that perception, it can not be denied that vast quantities 
of imported tea was adulterated in one fashion or another.  Targeting adulterated tea as it crossed the border was considered an effective strategy for improving the purity of tea as it reached the consumer.
\par Further, the power to regulate imports was squarely within Congress\rquote 
s Article I Section 8 plenary power to regulate commerce with foreign nations.  In contrast, for Congress to effectively regulate foods in general would require exercise of the interstate commerce power.   As most food consumed in the U
nited States at the time was not imported, but produced domestically, the foreign commerce power could have little effect on the nation\rquote s food supply.  
\par Even if Congress were to pass a law regarding the food safety pursuant to the interstate commerce power
, a large proportion of the market would remain unregulated, as the commerce power would not have reached locally grown and processed foods.  In the 1880\rquote 
s, the reach of the commerce power was limited.  The national economy was far less integrated that it 
is today, and the reach of the commerce power is largely dependent on the economic interaction between states.  As the economy became increasingly nationalized, Congress\rquote 
s power under the commerce clause expanded.  The contemporary commerce clause has few limits.  
\par Under 19}{\fs24\super th}{\fs24  century circumstances, states were the natural defenders of the food supply.  However, most states were in no position to regulate imports.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i But see}{ }{\i Fraudulent Butter and Adulterated Tea}{
, The Central Law Journal, Vol. 21, No. 8, 142. Apparently in New York (the port of entry for most imported tea at that time), distribution of adulterated tea could be enjoined as a nuisance, providing the adulteration was severe.  }{\i Id}{.}}}{\fs24 
  Therefore, if regulation of imported tea was desirable, it was only natural that the federal 
government should step into the breach.  In addition to the constitutional power to deal effectively with the problem, Congress also had practical experience with import legislation, having passed similar regulatory programs relating to imported medicines
.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Letter from the Treasury Department (January 15}{\super th}{ 1883) as reprinted in H. Rep. No. 47-1927, at 1 (1883).}}}{\fs24 
  Perhaps most significantly, the executive branch already has institutions in place with the capacity to carry out an ambitious inspection program: U.S. Customs under the Department of the Treasury was available to take on the task of enforcement.
\par 
\par }\pard\plain \s16\qc\keepn\widctlpar\adjustright \cgrid {\b\fs28 1883: Congress\rquote s First Attempt}{\fs28 
\par }\pard \s16\sl480\slmult1\keepn\widctlpar\adjustright {
\par 
\par }\pard\plain \fi720\sl480\slmult1\widctlpar\adjustright \fs20\cgrid {\fs24 In 1883, Congress passed \ldblquote An act to prevent the importation of adulterated and spurious Teas.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 22 Stat. 451 (March 2, 1883), repealed by 29 Stat. 604 \'a7 12 (March 2, 1897).}}}{\fs24 
  The Act prohibited the importation of teas adulterated with foreign or exhausted leaves, as well as teas that were unfit for use due to the \ldblquote admixture of chemicals or other deleterious substances.\rdblquote }{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7 1.}}}{\fs24   The Secretary of the Treasury was given authority to promulgate appropriate regulations in order to enforce the prohibition.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7 8.  U.S. Customs was (and is) a bran
ch of the Treasury department.  At the time, no other federal agency was competent to enforce the inspection program.  As the Secretary of the Treasury had the ultimate responsibility for enforcement of the 1883 Act, granting the Secretary rulemaking auth
ority was not incongruous.}}}{\fs24 
\par Upon arriving in the country, all shipments of tea were warehoused to await inspection.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7 2.}}}{\fs24 
  The importer was to submit a sample of tea of every line item in his invoice to be examined along with a signed written statement that the samples represented the true quality of the lot.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   If an examiner had reason to believe the importer falsified his samples, the examiner had three days to examine the lots themselves.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   Importers were required to give bond that the tea would not be removed from the warehouse unless and until it passed an examination by customs officials for p
urity and fitness for consumption.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   
\par At some ports, inspections were made by \lquote duly qualified appraisers,\rquote  but at smaller ports a qualified appraiser might not be available.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super 
\chftn }{ }{\i Id}{. \'a7 5.}}}{\fs24   In these circumstances, the same officials responsible for collecting duties examined teas.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}
{\fs24   Once the tea passed inspection, it would be immediately released from the control of the customs authorities.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7 2.}}}{
\fs24   In the event that an importer was unhappy with the result of the inspection, he could call for a re-examination.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7 3.}}}{
\fs24   Additionally, on the importer\rquote s request, disputes over examination results were referred to arbitration to a committee of three experts.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super 
\chftn }{ }{\i Id}{. \'a7 4.}}}{\fs24   However, once a lot of tea was ultimately rejected, it had to be re-exported within six months.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{
.}}}{\fs24   If the importer instead abandoned his tea at the warehouse, customs would destroy the tea after six months.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 

\par }\pard\plain \s20\fi720\sl480\slmult1\widctlpar\adjustright \cgrid {A Congressional concern for consumer protection partially explains the passages of the Act.}{\cs18\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super 
\chftn }{ H. Rep. No. 47-1927, at 1 (1883), stating, \ldblquote The necessity of such legislation as will fully protect the consumers of teas in this country against teas which have been deprived of their \lquote 
proper quality, strength, or virtue, by steeping, infusion, decoction, or other means\rquote  cannot be questioned . . . .\rdblquote   }{\i Id}{.}}}{  Britain had recently passed a similar law, which contributed to the House Committee on Ways and Means
\rquote  favorable report.}{\cs18\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.  In fact, some of the language utilized in the 1883 Act was borrowed from the B
ritish legislation, General Statutes of Great Britain, 38 Victoria 583.  }{\i Id}{. }}}{  However, the strongest motivation appears to have been an appeal by the American tea industry for federal protection from foreign tea interests.}{\cs18\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Killingsworth, supra note 65, at 502.}}}{  In fact, the 1883 Act was drafted by American importers and dealers, who lobbied heavily for its passage.}{\cs18\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Letter from the Importers and Grocers\rquote  Exchange of New York to A.P. Ketchum, Chief Appraiser of the New York Custom-House (written betwe
en Jan. 30 and Feb. 13, 1884), as re-printed in H.R. Ex. Doc. 61, Part 2, 2 (1884).  The letter states, \ldblquote 
The act approved March 2, 1883, was prepared by the importers and dealers in tea generally, and was urged upon Congress by them for their own protection as well as for the protection of the consumer.\rdblquote   }{\i Id}{.}}}{
  Further, Ways and Means consulted with industry associations before recommending the bill\rquote s passage}{\cs18\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 H. Rep. No. 47-1927, at 1 (1883) (stating, \ldblquote The bill as reported has been examined by the executive committee of tea trade of New York City and the Board of Trade of Philadelphia, and likewise by oth
ers engaged in the tea trade in other sections, and meets with a unanimous indorsement [sic] as far as your committee is informed\rdblquote ).}}}{ and expressed a desire to prevent any serious inconvenience to American tea dealers.}{\cs18\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{
\par }\pard\plain \fi720\sl480\slmult1\widctlpar\adjustright \fs20\cgrid {\fs24 In the fullness of time, Congress\rquote 
s first attempt to regulate tea imports was widely considered unsuccessful.  First, the Act failed to protect consumers from adulterated tea.  Second, while it may have offered American industry some protection from foreign interests, enforcement of the A
ct caused significant injury to American businesses.  It became apparent that the regulatory scheme was fraught with opportunities for slipups and for arbitrary enforcement.
\par }\pard\plain \s15\sl480\slmult1\widctlpar\adjustright \fs20\cgrid {\fs24 
\par }\pard \s15\qc\sl480\slmult1\keepn\widctlpar\adjustright {\b\fs28 Attempts to amend the 1883 Act fail
\par }\pard \s15\sl480\slmult1\keepn\widctlpar\adjustright {\b\fs24 
\par }\pard \s15\fi720\sl480\slmult1\widctlpar\adjustright {\fs24 Within a year, it became clear that the regulatory scheme required legislative adjustment.  In early 1884, draft legislation was proposed by the Secretary of the Treasury.}{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ H. Rep. No. 48-665 (1884).}}}{\fs24   While the 1883 Act had \ldblquote 
worked a great public benefit in the exclusion of worthless stuff heretofore imported and sold as tea,\rdblquote  amendment was necessary \ldblquote so as to cure the defects which experience [had] shown to exist in its execution.\rdblquote }{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   
\par Among the proposed improvements was provision for special examiners at the ports of San Francisco and Chicago, ports of entry for large amounts of tea.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super 
\chftn }{ }{\i Id}{.}}}{\fs24   While it is not clear from the legislative history, there are suggestions that only the port of New York had a qualified examiner.  This would explain the inclusion of a salary raise only for the New York examiner.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.  However, the raise could also be explained by the fact that the large
st amount of tea entered the United States through the port of New York.  }{\i Id}{.}}}{\fs24   Certainly it would be of grea
t concern if revenue collectors untrained in examining tea inspected the large amounts of tea entering the country through San Francisco and Chicago. 
\par Additionally, the arbitration process would be improved by providing that differences of opinion as to a tea\rquote s quality and purity among the board of arbitrators could be resolved by \ldblquote appeal to chemical analysis.\rdblquote }{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24 
  While the 1883 Act did not actually forbid such testing, not did it specifically provide for any kind of scientific analysis.  Though the contempo
rary legislative history does not detail the reasoning behind this amendment, later complaints about the arbitration process indicate that its results were based on little more than the arbitrators\rquote  subjective opinions.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ H. Rep. No. 54-1529, 2 (1897).}}}{\fs24   Any kind of objective standard would streamline the arbitration process as well as increasing its fairness.
\par The substantive prohibitions were also to be tightened.  First, an attempt to provide an enforcement standard for the prohibition of tea \ldblquote adulterated with spurious leaf\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 22 Stat. 451, }{\i supra}{ note 69, \'a7 1.}}}{\fs24  was proposed.  Tea containing more than 8% ash was to be forbidden entry.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Letter from the Importers and Grocers\rquote  Exchange of New York, s}{\i upra}{ note 86.}}}{\fs24  Under the 1883 Act, examiners had discretion to decide how much adulteration was \lquote 
too much.\rquote   
\par Second, tea dust, which could be \ldblquote used only for adulteration\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ H. Rep. No 48-665 (188
4).  Note that this was before tea dust and tea sweepings were commonly used as raw materials in the manufacturing of caffeine and theine.}}}{\fs24  was to be excluded, in order to re
duce the possibility of adulteration after inspection by customs.  While tea dust by definition was supposed to be composed of very fine particles of tea leaves, most material imported as \ldblquote tea dust\rdblquote  had very little actual tea in it.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Taylor, }{\i supra}{ note 59, at 194.  Taylor found that most tea dust consisted mainly of \ldblquote raspberry leaves or other wort
hless substance purposely reduced to a fine powder to make detection difficult.\rdblquote   }{\i Id}{.}}}{\fs24   As impurities in tea dust were extremely difficult to detect,}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.  Taylor, in 1889, was able to detect adulterations in tea dust with difficulty, and only with the use of a microscope.  }{\i Id}{. }}}{\fs24 
 absent a blanket prohibition of tea dust, examination by customs officials could do nothing to prevent the entry of the false article.  As a result, it was extremely easy for dishonest dealers to adulterate their tea locally.
\par The draft legislation was circulated to the industry, which generally supported the amendment.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Letter from the Importers and Grocers\rquote 
 Exchange of New York, s}{\i upra}{ note 86.  The writers generally \ldblquote approve of the proposed amendments . . . \rdblquote   }{\i Id}{. }}}{\fs24   However, at least some industry members were unconvinced that the legislation was necessary.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.  The letter states, \ldblquote 
experience has proved that the safeguards imposed by the present act are amply sufficient, if the provisions thereof are strictly and honestly administered . . .\rdblquote   }{\i Id}{.}}}{\fs24   One provision in particular, the percentage limitati
on on teas adulterated with ash leaves, inspired protest from the tea trade.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 Letter from A.P. Ketchum, Chief Appraiser of the New York Custom House (Feb. 4, 1884), as reprinted in Ex. Doc. 48-61, Part 2 (1884).  Ketchum writes, \ldblquote The opposition . . . to the fifth section of the pr
oposed act, seems to be practically unanimous and certainly is very earnest.\rdblquote   }{\i Id}{.  Notably, Ketchum also urges that industry members \ldblquote 
should receive the fullest consideration in respect to any suggestions which they have to make with regard to any change in the existing tea law.\rdblquote   }{\i Id}{. }}}{\fs24 
  The House Committee on Ways and Means unanimously recommended passage, but in reporting the bill to Congress, the committee suggested that the ash limitation be deleted: 
\par }\pard \s15\li720\ri720\widctlpar\adjustright {\fs24 If the
 law be amended as proposed by the bill herewith submitted, the committee are of opinion that exhausted, adulterated, and poisonous teas will not hereafter find their way to the United States as they have heretofore done, and that the public health will t
hereby be greatly promoted.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ H. Rep. No. 48-665 (1884).}}}{\fs24   
\par }\pard \s15\fi720\li720\ri720\widctlpar\adjustright {\fs24 
\par }\pard \s15\sl480\slmult1\widctlpar\adjustright {\fs24 However, the House did not pass the legislation.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 A related bill, S. 2037, passed the Senate but was not voted on in the House.  48 Cong. Rec. S5334.}}}{\fs24   
\par }\pard \s15\fi720\sl480\slmult1\widctlpar\adjustright {\fs24 A second attempt to amend the Tea Importation Act was made six years later, in 1890.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 }{\i See}{ H. Rep. No. 51-2317 (1890) (reporting on H. R. 16720, an amended version of H. R. 8744). }}}{\fs24   In reporting the bill to the House, the Committee on Ways and Means once again focusse
d attention on the problems presented by the importation of tea dust.  Strong language was addressed to this particular failing of the 1883 Act: 
\par }\pard \s15\fi720\li720\ri720\widctlpar\adjustright {\fs24 This law is now evaded by the importation in large quantities of \ldblquote tea-dust,\rdblquote  which is afterwards mingled with 
tea, and the admixture sold to our people as the pure article.  This tea is full of dirt and deleterious substances, and its importation and sale as an article of food is a fraud upon all consumers.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 1.}}}{\fs24 
\par 
\par }\pard \s15\fi720\sl480\slmult1\widctlpar\adjustright {\fs24 Two other alterations in the regulatory scheme were inc
luded in the House bill.  First, under the 1883 Act, the samples to be inspected were not drawn by customs officials, but by the importers themselves.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super 
\chftn }{ 22 Stat. 451, }{\i supra}{ note 69, \'a7 2.}}}{\fs24   The new legislation would have closed this opportunity to evade thorough inspection of imported tea.  Under the proposed amendment, customs examiners would take the samples.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ H. Rep. No. 51-2317, at 1 (1890), quoting a letter from Acting Secretary of the Treasury Batcheller.}}}{\fs24 
  Second, the composition of the arbitration boards was to be changed, \ldblquote the present requirement of the statute not being entirely satisfactory.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ }{\i Id}{.  The committee report does not specify the changes to be made.}}}{\fs24   All three amendments received approval from the Acting Secretary of the Treasury.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.  The report quotes Batcheller, who suggested changes in the proposed legislation.  }{\i Id}{
.  The original bill, H.R. 8744, provided for the appointment of additional tea examiners, which the Secretary thought unnecessary.  }{\i Id}{.  Additionally, the bill would have changed the source of the examiners\rquote 
 salaries, which would have been drawn from the appropriation to customs for collecting revenues.  }{\i Id}{.  The Secretary thought this change inappropriate, as tea inspections had little to do with revenue collection.  }{\i Id}{
.  The Committee adopted the changes suggested by the Secretary, and the bill as amended was reported as H.R. 16720.  }{\i Id}{.}}}{\fs24   
\par Though the Committee on Ways and Means reported favorably on the bill as amended,}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24 
 as with the earlier reform attempt, the legislation did not pass the House.  To a certain degree, both of these failures can b
e attributed to the relative indifference on the part of industry.  The Americans in the tea trade did not object to the draft legislation as reported to Congress, but neither did the bills receive the more intense lobbying effort behind the 1883 Act.

\par }\pard\plain \sl480\slmult1\widctlpar\adjustright \fs20\cgrid {\fs24 
\par }\pard \qc\sl480\slmult1\keepn\widctlpar\adjustright {\b\fs28 1897: An enduring regulatory program is enacted
\par }\pard \sl480\slmult1\keepn\widctlpar\adjustright {\fs24 
\par }\pard \fi720\sl480\slmult1\widctlpar\adjustright {\fs24 On March 2, 1897, fourteen years to the day after the 1883 Act became law, Congress enacted \ldblquote An Act To prevent the importation of impure and unwholesome tea.\rdblquote }{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 29 Stat. 604, }{\i supra}{ note 2.}}}{\fs24   This new Tea Importation Act constituted an overhaul of the 1883 Act\rquote 
s regulatory system.  In fact, the 1897 Act repealed the 1883 Act as a whole}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7 12.}}}{\fs24 
 and started with a clean slate, instituting several major changes in the regulatory scheme.  Some of these changes were the very similar to reforms proposed in 1884 and 1890.
\par First, the substantive prohibitions were tightened; tea would be examined for \ldblquote quality\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7\'a7 1, 3.}}}{\fs24 
 as well as for \ldblquote purity\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.; }{\i see also}{ 22 Stat. 451, }{\i supra}{ note 69, \'a7 2.}}}{\fs24  and \ldblquote 
fitness for consumption.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 29 Stat. 604, }{\i supra}{ note 2, \'a7\'a7 1, 3; }{\i see also}{ 22 Stat. 451, }{\i supra}{ note 69, \'a7 2.
}}}{\fs24   The motivation behind this provision was not discussed in either the House or the Senate Com
mittee reports.  However, it can be surmised that this was an attempt to improve the quality of teas available to the American consumer.  Additionally, it is likely that the provision worked to protect certain American tea dealers from having to compete w
ith low quality (and low cost) product.
\par Second, the Secretary of the Treasury was given the authority to adopt federal standards for what tea would be allowed into the United States.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 29 Stat. 604, supra note 2, \'a7 3.}}}{\fs24   Under the new law, the Secretary appointed a seven-member board of experts in teas, later to be known as the Board of Tea Experts, who would recommend standards to the Secretary.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7 2.}}}{\fs24   These seven individuals served for one-year terms, and were at all times subject to removal by the Secretary.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24   Each expert received a $50 per year salary, to be paid out of the portion of the customs budgets allocated for the collection of duties.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24   
\par Under the Board of Tea Experts\rquote  recommendation, the Secretary of the Treasury would adopt uniform standards of purity, quality, and fitness for consumption for all varieties of tea imported into the country.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7 3.}}}{\fs24   Samples conforming to each of the standards would be placed at customs in New York, San Francisco, Chicago, and other places as the Secretary saw fit.}
{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   Importers and dealers in tea were entitled to duplicate samples at cost.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24 
\par The lack of standards under the 1883 Act had been one of its greatest flaws.  Because there were no standards, consistent enforcement of the 1883 Act was impossible.  Examiners, whether \ldblquote duly qualified\rdblquote }{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 22 Stat. 451, supra note 69, \'a7 5.}}}{\fs24  or not, had only their subjective \ldblquote momentary impressions\rdblquote  to guide their determinations.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ S. Rep. No. 54-1527, at 2 (1897).}}}{\fs24   Impure and even dangerous tea was released to the United States market and purchased by consumers.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ H. Rep. No. 54-3029 (1897).}}}{\fs24    The lack of standards presented problems for importers as well:  \ldblquote Importers have impo
rted the same grade of tea admitted during the previous season and found, to their consternation, that in the second season it was excluded, no reason being given beyond the inspector\rquote s or the arbitrator\rquote s impressions . . ..\rdblquote }{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ S. Rep. No. 54-1527, at 2 (1897).}}}{\fs24   Importers could not rely on 
past experience; every shipment of tea to the United States became a gamble.  In summary, \ldblquote The public are suffering; the importers are suffering; and all because there is no standard or guide . . .\rdblquote }{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
\par Third, the arbitration process of the 1883 Act was scrapped entirely and an administrative appellate procedure was put it its place.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 29 Stat. 604, }{\i supra}{ note 2, \'a7 6.}}}{\fs24   The Secretary was to designate a board of three United States general appraisers to sit as an appellate body.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   This Board of General Appraisers, to be known in later years are 
the Board of Tea Appeals, were not expected to be tea experts themselves; they were furnished with the statutory authority to obtain the advice of \ldblquote persons skilled in the examination of teas.\rdblquote }{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7 8.}}}{\fs24   When such expert advice was utilized, the expert was to be paid a \ldblquote compensation not exceeding five dollars\rdblquote  for a single case.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   Unlike under the 1883 Act, the right to appeal was provided to the collector of the port, as well as the importer.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7 6.}}}{\fs24   
\par The arbitration provisions under the 1883 Act were especially troubles
ome to importers and legislators alike.  The arbitration boards were composed of three members, one chosen by the government, one chosen by the importer, with these two to come to a mutual decision on the third.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 22 Stat. 451, }{\i supra}{ note 69, \'a7 4.}}}{\fs24   While arbitration might have seemed an amicable way of resolving conflict, in practice, \ldblquote 
The arbitrations [were] in many cases a farce, and always variable and uncertain.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ S. Rep. No. 54-1527, at 2 (1897).}}}{\fs24  
\par In most disputes, the government would choose a strict arbitrator and the importer would choose a lenient arbitrator.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   Choo
sing the third arbitrator could take up to a month.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
  This was because the arbitrators, like the examiners, were left without objective guidance - almost invariably ended in a two to three vote based on opinion alone, with the third arbitrator\rquote s vote being determinative.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   Thus, the selection of the third arbitrator was often more important to the result than the quality of the tea.  
\par Because the arbitrators\rquote  determinations were discretionary, they were unreviewable.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.  Also stating, \ldblquote 
All this injustice may occur while inspectors or arbitrators are strictly honest, but without any standard or guide for their judgement.  But it is difficult to estimate the disaster is any should not be honest.\rdblquote   }{\i Id}{.  }}}{\fs24 
 As there was no \ldblquote danger of being proven dishonest,\rdblquote  the entire system was rife with opportunities for inspectors and arbitrators to act on the basis of favoritism rather than the quality of the tea.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.  }}}{\fs24   The unfairness of the arbitration process under the 1883 Act contributed to the bankruptcy of 
at least one respected importer, which likely contributed to the industry position in favor of increased regulation.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{
.  The house of Purdon &Wiggin offered approximately 200,000 pounds of Amoy tea for import.  The tea was rejected after arbitration, \ldblquote causing the house a disastrous loss, which helped to bring about their final bankruptcy.\rdblquote   }{\i Id}{
. A short time later, another importer successfully imported a shipment twice as large of the very same grade of tea after arbitration.  }{\i Id}{.}}}{\fs24   In summarizing the problems, the Committee on Commerce reported, \ldblquote 
The consequences of the present law are that thousands of dollars are lost unjustly to strictly honest importers every year, while millions of pounds of tea unfit for use are being constantly admitted . . ..\rdblquote }{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   
\par Fourth, to further standardized enforcement, the 1897 Act improved the inspection procedure with several minor alte
rations.  Recall that under the 1883 Act, if the port of entry lacked a qualified examiner, any customs official was free to conduct the tea examination.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super 
\chftn }{ 22 Stat. 451, }{\i supra}{ note 69, \'a7 5.}}}{\fs24   Under the 1897 Act, if there was no qualified examiner at the port of entry, tea samples forwarded to a qualified examiner at another location.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 29 Stat. 604, }{\i supra}{ note 2, \'a7 7.}}}{\fs24   As proposed in the 1890 House bill,}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ H.R. 16720, 51}{\super st}{ Cong. (1890).}}}{\fs24  examiners (and arbitrators) were specifically authorized to utilize chemical analysis in evaluating tea offered for import.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 29 Stat. 604, }{\i supra}{ note 2, \'a7 7.}}}{\fs24   Additionally, the Secretary of the Treasury was
 granted the discretion to have the examiner, rather than the importer, draw tea samples for inspection.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7 4.}}}{\fs24 
  This was a compromise position between the 1883 Act and the 1890 bill.  In the 1883 Act, examiners could only draw samples if they had reason to believe the samples drawn by the importer were not representative;}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 22 Stat. 451, }{\i supra}{ note 69, \'a7 2.}}}{\fs24  the 1890 bill would have required customs officials to draw the samples.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ H. Rep. No. 51-2317, at 1 (1890).}}}{\fs24 
\par Finally, the new Tea Importation Act imposed the penalty of forfeiture when an importer attempted to re-import previously rejected tea.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 29 Stat.
 604, }{\i supra}{ note 2, \'a7 9.}}}{\fs24   As with the 1883 Act, importers had 6 months to re-export rejected tea.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. \'a7 6.}}}{
\fs24   However, under the previous law, the import prohibitions could be evaded because rejected tea could be offered for import a second time without penalty.  Although
 this practice could not be described as a common one, there were frequent reports tea being successfully re-imported, sometimes even passing inspection by the same examiner at the same port.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ S. Rep. No. 54-1527, at 2 (1897).}}}{\fs24  
\par After fourteen years, the failings of the 1883 Act had become clear to everyone involved.  Consumers, dissatisfied with the quality of tea available on the market, were turning to other beverages in significant numbers.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 1, (stating, \ldblquote while the per capita consumption of tea is increasing in Great Britain statistics show a decided reduction in this country
\rdblquote ).}}}{\fs24   Industry, too, was desperate for systemic reform}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 3.  \ldblquote The petition for this
 amendment has been signed by all the leading importers of tea in the United States, representing all the capital invested in the tea business in first hands.  The petitions have been signed by all the leading importers and wholesale houses of New York, C
hicago, Boston, Philadelphia, Portland, Baltimore, and San Francisco.\rdblquote   }{\i Id}{. }}}{\fs24  and the Secretary of the Treasury supported the movement.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ }{\i Id}{. at 1, (stating,  \ldblquote The Treasury Department is fully alive to the situation and has cooperated with the committee . . .\rdblquote ).}}}{\fs24 
  The United States legislature was eager to accommodate these rapidly converging interests.  Bills were introduced in both the Senate}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 S. 3581, 54}{\super th}{ Cong. (1897).}}}{\fs24  and the House}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ H.R. 9946, 54}{\super th}{ Cong. (1897).}}}{\fs24 
 to deal with the issue.  The House Committee on Ways and Means}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ H. Rep. No. 54-3029 (1897).}}}{\fs24  and the Senate Committee on Commerce,}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ S. Rep. No. 54-1527 (1897).}}}{\fs24  cooperating with the Treasury Department}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 1; }{\i see also}{ H. Rep. No. 54-3029 (1897).}}}{\fs24 , revised the proposed legislation and reported back to both Houses of Congress in favor of its passage.}{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ S. Rep. No. 54-1527, at 1 (1897) (reporting favorably on S. 3725, 54}{\super th}{ Cong. (1897)); }{\i see also}{ H. Rep. No. 54-3029 (1897) (reporting in 
favor of H.R. 10350, 54}{\super th}{ Cong. (1897)).}}}{\fs24   
\par The Senate committee reported, \ldblquote It is well known that the people of the United States receive on 
an average poorer teas than the consumers of any other civilized country.  Much of the merchandise sold as tea is unwholesome and is disposed of at an enormous profit.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ S. Rep. No. 54-1527, at 1 (1897).}}}{\fs24   Likewise, the House committee stated, \ldblquote It is believed that it will do much to relieve our people of much of the worthless and deleterious stuff that is now impose
\tab d upon them.  The evil is widespread, and should this bill furnish a remedy great good would result.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ H. Rep. No. 54-3029 (1897).}
}}{\fs24   
\par In a relatively short period of time, the Senate bill was approved by both houses of Congress and signed into law by the President.  The system put in place by the 1897 Act regulated the importation of tea into the United States until its repeal in 1996 
\endash  ninety-nine years after its enactment.  Although, from time to time, enfo
rcement responsibility for the Tea Importation Act was shuffled from one administrative agency to another, the basic structures, policies, and substantive rules remained largely intact.
\par }\pard \sl480\slmult1\widctlpar\adjustright {\fs24 
\par }\pard\plain \s3\qc\keepn\widctlpar\outlinelevel2\adjustright \b\fs28\cgrid {1898-1900: Jurisdictional bars thwart 
\par Importers\rquote  attempts to invalidate the 1897 Act
\par }\pard\plain \sl480\slmult1\keepn\widctlpar\adjustright \fs20\cgrid {\fs24 
\par 
\par }\pard\plain \s15\fi720\sl480\slmult1\widctlpar\adjustright \fs20\cgrid {\fs24 
The earliest litigants challenging enforcement of the 1897 Tea Importation Act failed in their efforts.  Instead of seeking monetary damages after tea had been destroyed by customs,}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Destruction would occur if rejected tea was not exported within six months, pursuant to 29 Stat. 604, }{\i supra}{ note 2, \'a7 6.}}}{\fs24 
 these plaintiffs sought to prevent destruction of their tea.  They asked federal courts to enjoin final decisions by the Board of General Appraisers, and therefore faced jurisdiction obstacles that proved to be insurmountable.  
\par First, the 1897 Act did not provide for judicial review of the decisions of eithe
r port examiners or the Board of General Appraisers.  Federal courts found that they were unable to exercise direct review of administrative determinations under the Act.  Nor were federal courts free to enjoin customs officials from enforcing such an adm
i
nistrative judgement.  For a court to issue an injunction, it had to exercise equity jurisdiction.  While the federal courts possessed equity jurisdiction, it was extremely limited: an injunction, even against unlawful government activity, was available o
nly when remedies at law, i.e., monetary damages, were insufficient.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ This rule has subsequent
ly been relaxed.  Today courts are more willing to issue injunctions, partially due to the 1933 merger of chancery and equity jurisdiction under the Federal Rules of Civil Procedure.}}}{\fs24 
  As the plaintiffs seeking injunctions were engaged in importing tea, invariably an economic activity, monetary damages were considered especially suited to remedy illegal seizures or destruction of tea under the Tea Importation Act. 
\par }{\i\fs24 Sang Lung et al. v. Jackson}{\fs24 ,}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Sang Lung et al. v. Jackson}{, 85 F. 502 (C.C.N.D.Cal.  1898).}}}{\fs24 
 decided in 1898, was the earliest reported case involving the Tea Importation Act.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Notably,
 there does not appear to have been any litigation surrounding the 1883 Act.}}}{\fs24   In }{\i\fs24 Sang Lung}{\fs24 , a federal circuit court refused to issue an injunction against Jackson, the collector for the port of San Francisco.}{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Sang Lung}{, 85 F. at 508.}}}{\fs24 
  The plaintiffs, Chinese nationals residing in the United States, sought to keep Jackson from destroying several shipments of \ldblquote canton tea\rdblquote  that had arrived in San Francisco shortly after the 1897 Act took effect.}{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s15\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 503.}}}{\fs24  The Treasury regulations in place at the time of the administrative ruling set no standard for \ldblquote canton tea.\rdblquote }{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
  Therefore, both the examiner and the Board of General Appraisers rejected the tea for not conforming to government standards.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{
\fs24   The plaintiffs refused to export their tea, and Jackson was set to destroy it once the requisite six months had passed.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{
\fs24   Before he could do so, the plaintiffs filed in suit in federal court, challenging his authority to destroy their tea, arguing that the Treasury regulations, under which the tea was rejected, were unauthorized by the Act.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 504.}}}{\fs24 
\par First, the court noted that the 1897 Act did not provide for judicial review of the administrative adjudication, stating, \ldblquote The act of congress contemplates that the decision of the board o
f general appraisers shall be final, and not subject to revision by the courts.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 508.}}}{\fs24 
  Thus, the court was unable to reverse the decision of the Board of General Appraisers on direct review.  The court continued, explaining that the presumption of unreviewability was qualified by a limited equity jurisdiction.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 507.}}}{\fs24   If the plaintiffs could show irreparable injury by virtue of interference with a vested right, the court would issue an injunction.
\par The plaintiffs argued that they had a vested right to import tea not inferior to government standards.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
  The Treasury regulations, as interpreted, deprived them of this right, as the regulations effectively precluded tea from entering the country that was equal to government standards in quality, purity, and fitness for consumption.}{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 503.}}}{\fs24   The plaintiffs reasoned that they had a right to bring their tea into the country under the Tea Importation Act, and it was }{
\i\fs24 this}{\fs24  right the regulations interfered with, not any constitutional right to property.  The regulations caused them irreparable injury, as they would be precluded from bringing \ldblquote canton tea\rdblquote 
 into the country, thereby destroying their business.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   Interference with }{\i\fs24 this}{\fs24 
 right could not be cured with mere monetary damages, and therefore an injunction was proper.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
\par However, the court the found that the plaintiffs possessed no such vested right.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 507.}}}{\fs24 
  It noted that the claimed right didn\rquote t exist under the Constitution, as Congress had plenary power to prohibit the importation of any class of tea it chose.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   Further, Congress had used its plenary power to make the Board\rquote s decisions final and unreviewable.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super 
\chftn }{ }{\i Id}{. at 508.}}}{\fs24   Therefore, the court revealed, Congress hadn\rquote t actually prohibited the importation of tea not meeting government standards.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ Contrary to the statement in 29 Stat. 604, }{\i supra}{ note 2, \'a7 1.}}}{\fs24   Rather, the Act prohibited entry of tea not receiving approval from the examiner or Board.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Sang Lung}{, 85 F. at 507.}}}{\fs24   The determination of whether teas met government standards was entirely in the discretion of the administrative agency:  \ldblquote 
[T]he right to import tea into the United States is made by the act of congress to depend entirely upon the final judgement of the board of general appraisers . . . .\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s15\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
\par In making this determination, the circuit court interpreted the Tea Importation Act differently than later courts would, and its ruling is somewhat difficult to reconcile with the later c
ases. The 1897 Act clearly specifies that the Secretary was supposed to fix standards for \ldblquote all kinds of tea imported into the United States.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ 29 Stat. 604, }{\i supra}{ note 2, \'a7 3.}}}{\fs24   It is certainly possible that \ldblquote canton tea\rdblquote  simply slipped through the cracks, and perhaps it could not be expect
ed that the first set of standards would cover everything they should.  However, \ldblquote canton tea\rdblquote  was in general use across the United States and had been regularly imported from China for at least 30 years.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Sang Lung,}{ 85 F. at 503.}}}{\fs24   So, arguably, the Secretary had an enforceable statutory duty to set standards applicable to the plaintiffs\rquote  tea.
\par Be that as it may, the circuit court found that the only right at issue was the plaintiffs\rquote  property right in their tea.  Obviously, the plaintiffs would not sustain irreparable injury by reason of the tea\rquote s destruction.}{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 504.}}}{\fs24   If it later turned out that the collector improperly destroyed the tea, monetary damages would be a sufficient remedy:  \ldblquote 
[I]f the defendant should destroy the tea referred to in the bill, . . . damages would be an adequate compensation for any loss . . ..\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 }{\i Id}{.}}}{\fs24   Therefore, the court could not issue an injunction, as its equity jurisdiction did not extend so far, and the case was dismissed for lack of jurisdiction.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 508.}}}{\fs24   
\par Thus, the real issue in the case was never reached \endash  whether tea
 could be properly rejected on the sole ground that there were no applicable standards.  The court did not even reach the issue as to whether the Board had correctly interpreted the Treasury regulations to exclude the plaintiffs\rquote 
 tea.  In fact, it stated explicitly, \ldblquote 
I do not deem it necessary to determine whether such regulations, property construed, prohibit the admission of Canton tea, if it is not inferior in quality to either of the special standards named in such regulations.\rdblquote }{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 507.}}}{\fs24 
\par In 1900, the Supreme Court had its first opportunity to consider the constitutionality of the Tea Importation Act for in the case of }{\i\fs24 Cruickshank v. Bidwell}{\fs24 .}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Cruickshank v. Bidwell,}{176 U.S. 73 (1900).}}}{\fs24   In }{\i\fs24 Cruickshank}{\fs24 , the Supreme Court affirmed the lower court\rquote s dismissal for lack of jurisdiction.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id.}{ at 82.}}}{\fs24   The lower court had denied the plaintiffs an injunction against the collector of customs at the port of New York.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 74.}}}{\fs24   The collector refused to release the tea to the plaintiffs unless they allowed him to mark the invoices and other papers relating to the teas 
\ldblquote condemned under the laws of the United States\rdblquote  and gave \ldblquote security satisfactory to him\rdblquote  that the tea would be exported.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ }{\i Id}{. at 78.}}}{\fs24  
\par The plaintiffs argued that marking the teas as condemned \ldblquote renders the said teas worthless for export and entry or sale in the markets of other countries . . ..\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24 
  The fact that the importers could not gain possession of their tea in the first place, and that it would be especially marked as condemned in the second place, meant they would be unable to sell it \endash  even for export - in the U.S. market 
\ldblquote for the reason that dealers will not purchase or handle the said goods under the cloud or threat of illegality . . ..\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i 
Id}{.  }}}{\fs24   For this reason, the plaintiffs asserted that the 1897 Act was unconstitutional.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   
\par However, the Court did not reach the merits, as the case was dismissed for lack of equity jurisdiction, on the grounds that \ldblquote no tenable basis for equity interposition was shown.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 82.}}}{\fs24   For a unanimous Court, Chief Justice Fuller wrote:
\par }\pard \s15\fi720\li720\ri720\widctlpar\adjustright {\fs24 It is settled that the mere fact that a law is unconstitutional does not entitle a 
party to relief by injunction against proceedings in compliance therewith, but it must appear that he has no adequate remedy by the ordinary processes of the law, or that the case falls under some recognized head of equity jurisdiction.}{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 80.}}}{\fs24 
\par }\pard \s15\fi720\sl480\slmult1\widctlpar\adjustright {\fs24    
\par }\pard \s15\sl480\slmult1\widctlpar\adjustright {\fs24 Although the plaintiffs claimed that they would suffer \ldblquote irreparable injury\rdblquote  if their teas were condemned or destroyed, they offered no evidence to support the assertion.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 81.}}}{\fs24   The Court commented, \ldblquote in this particular we think the bill fatally defective.\rdblquote }{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   The plaintiffs also claimed that their \ldblquote right to import and deal in teas\rdblquote  was destroyed by the collector\rquote s acts.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 79.}}}{\fs24   To this assertion, the Court responded, \ldblquote 
The law does not prohibit the importation of teas coming up to the standards, and it is difficult to perceive the elements of irreparable injury in the denial of permission to import inferior teas.\rdblquote }{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 82.}}}{\fs24 
\par }\pard\plain \fi720\sl480\slmult1\widctlpar\adjustright \fs20\cgrid {\fs24 
\par }\pard\plain \s1\qc\sl480\slmult1\keepn\widctlpar\outlinelevel0\adjustright \b\fs20\cgrid {\fs28 1904: The Supreme Court upholds the 1897 Act.
\par }\pard\plain \sl480\slmult1\keepn\widctlpar\adjustright \fs20\cgrid {\fs24 
\par }\pard \fi720\sl480\slmult1\widctlpar\adjustright {\fs24 Perhaps the most litigious person in American tea history is Mr. William J. Buttfield, who brought no less than three cases c
hallenging the constitutionality of the 1897 Act to the Supreme Court in a single year.  The most important of these cases is }{\i\fs24 Buttfield v. Stranahan}{\fs24 ,}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid 
{\cs18\super \chftn }{ }{\i Buttfield v. Stranahan}{, 192 U.S. 470 (1904).}}}{\fs24  which upheld the Act as constitutional in an opinion by Justice White.  The two remaining cases, }{\i\fs24 Buttfield v. United States}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Buttfield v. United States}{, 192 U.S. 499 (1904).}}}{\fs24  and }{\i\fs24 Buttfield v. Bidwell}{\fs24 ,}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Buttfield v. Bidwell}{, 192 U.S. 498 (1904).}}}{\fs24  decided on the same day as }{\i\fs24 Stranahan}{\fs24 , were disposed of with only cursory opinions, also by Justice White. 
\par In }{\i\fs24 Stranahan}{\fs24 , Buttfield sued the collector of the port of New York for damages arising out of the destruction of his tea, pursuant to \'a7 6 of the1897 Act.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Stranahan}{, 192 U.S. at 475.}}}{\fs24   In 1902, Mr. Buttfield\rquote s firm offered several lots of tea for import.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ }{\i Id}{. at 472.}}}{\fs24   The tea was examined at the port of New York under Treasury standards, and 8 packages were found to be inferior in quality.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 474.}}}{\fs24   The tea had not been adulterated, and was fit for consumption;}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{
. at 477.}}}{\fs24  the only complaint to be made about it was that it was inferior in \ldblquote cup quality\rdblquote , i.e., flavor.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{
. at 475.}}}{\fs24   Buttfield\rquote s firm appealed the examiner\rquote s determination to the Board of General Appraisers, but the Board affirmed that the tea was inferior to the government standard.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   After this decision, Mr. Buttfield bought his partner\rquote s interest in the tea.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid 
{\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24   However, by the time Buttfield attempted to export his tea, over six months had passed and Buttfield was notified that his tea would be destroyed.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
\par Buttfield sued Stranahan to recover damages for the alleged wrongful seizure, removal, and destruction of his tea.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24 
 Buttfield made two arguments under the Constitution that his tea was improperly destroyed.  First, he argued that the Secretary of the Treasury\rquote s standard setting authority was an unconstitutional delegation of legislative power.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 491.}}}{\fs24 
  Second, he argued that the 1897 Act violated due process because it did not provide importers with a hearing at any point.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 492.}}
}{\fs24   
\par In determining that the Act did not constitute an unconstitutional delegation, the Court asserted that the authority delegated to the Secretary of the Treasury was not \ldblquote legislative.\rdblquote 
 Although the Secretary had some discretion, Congress had fixed a primary standard when it expressed the Act\rquote s purpose to exclude tea \ldblquote [of] inferior purity, or unfit for consumption, or presumably so because of their inferior quality.
\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 496.}}}{\fs24   Therefore, the power delegated to the Secretary, even the power to promulgate regulations, was a 
\ldblquote mere executive duty to effectuate the legislative policy declared in the statute.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24  
\par The Court also ruled that there was no due process violation.  While an importer has constitutionally protected property rights, he has no constitutional right to bring that property into the country.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 493.}}}{\fs24   The Court affirmed that the Congressional power to regulate imports was plenary, a \ldblquote complete power . . . over foreign commerce.\rdblquote }{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   It followed that there could be no vested right to import tea, and therefore rejec
tions of tea for importation were not subject to the limitations of the Due Process Clause.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 497.}}}{\fs24 
  Therefore, neither customs officials nor the Board of General Appraisers was constitutionally required to hold a hearing prior to rejecting tea under the government standards.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24  
\par The destruction of the tea, however, involved a deprivation of property and therefore was subject to due process limitations.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{
\fs24   Nevertheless, the Court ruled that no hearing was required by the Constitution.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 498.}}}{\fs24 
  The Court assumed, without so holding, that the Act itself did not provide the right to a hearing.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 497.}}}{\fs24 
  Notice and the six months waiting period, both of which Buttfield received, were sufficient procedural protections under the Constitution.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{
\i Id}{. at 498.}}}{\fs24   Though Buttfield received no hearing, he was fully aware that the tea would be destroyed once he failed to export it within six months after the final decision of the Board of General Appraisers.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   The Tea Importation Act was found constitutional.
\par The rulings in }{\i\fs24 Buttfield v. United States}{\fs24  and }{\i\fs24 Buttfield v. Bidwell}{\fs24  followed directly and logically from the }{\i\fs24 Stranahan }{\fs24 holding.  In }{\i\fs24 Buttfield v. Bidwell}{\fs24 
, Buttfield sued a different collector at the port of New York for damages over 4 packages of tea.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Buttfield v. Bidwell}{
, 192 U.S. at 498.  Note that this Bidwell is the same collector who was the defendant in }{\i Cruickshank}{, decided by the Supreme Court four years earlier.}}}{\fs24   Unlike in }{\i\fs24 Stranahan}{\fs24 , Buttfield did not allow his tea to 
be destroyed, but instead exported the rejected tea within the six month period allowed by the statute.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   
\par Buttfield had argued in the Second Circuit that the statute\rquote s reference to \ldblquote quality\rdblquote  did not mean that tea could be excluded for inferior quality alone.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Buttfield v. Bidwell}{, 96 F. 328, 329 (2}{\super nd}{ Cir. 1899).}}}{\fs24   Utilizing the legislative history, the Second Circuit rejected Buttfield\rquote s assertion.  Congress had specifically added the word 
\ldblquote quality\rdblquote  to the 1897 Act for the purpose of raising the quality of tea on the American market and protect consumers from \ldblquote worthless rubbish;\rdblquote  the term had not been present in the 1883 Act.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   }{\i\fs24 Stranahan}{\fs24  confirmed this reading of the statute,}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Stranahan}{, 192 U.S. at 494.  The Court echoed the Second Circuit\rquote s language in describing Congress\rquote  insertion of the term \ldblquote quality,\rdblquote  stating, \ldblquote 
the word was industriously inserted to make the act a more stringent substitute for the existing legislation.\rdblquote   }{\i Id}{.; }{\i see also}{ }{\i Buttfield v. Bidwell}{, 96 F. at 329.}}}{\fs24  rendering }{\i\fs24 Buttfield v. Bidwell}{\fs24  an 
\lquote easy\rquote  case.
\par }\pard\plain \s15\fi720\sl480\slmult1\widctlpar\adjustright \fs20\cgrid {\fs24 The circumstances of }{\i\fs24 Buttfield v. United States}{\fs24  were, again, slightly different.  As in }{\i\fs24 Buttfield v. Bidwell}{\fs24 
, Buttfield exported several lots of tea after they was rejected under the government standards by the Board of General Appraisers.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i 
Buttfield v. United States}{, 192 U.S. at 500.}}}{\fs24   However, unlike in the other cases, he attempted to re-import the tea.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{
\fs24   Recall that under the 1883 Act, importers frequently did this in order to evade the importation prohibition.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 S. Rep. No. 54-1527, at 2 (1897).}}}{\fs24   The re-imported tea was forfeited and destroyed under \'a7 9 of the 1897 Act. In a suit for damages, Buttfield\rquote s only argument was that the Act was unconstitutional.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Buttfield v. United States}{, 192 U.S. at 500.}}}{\fs24   Under }{\i\fs24 Stranahan}{\fs24 \rquote 
s determination that the Act was indeed constitutional, the Court held for the United States in a one-paragraph opinion.
\par 
\par }\pard\plain \s2\qc\keepn\widctlpar\outlinelevel1\adjustright \b\cgrid {\fs28 1908: The Tea Act is amended to exempt
\par }\pard\plain \qc\widctlpar\adjustright \fs20\cgrid {\b\fs28 tea dust under special circumstances}{
\par }\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\par }\pard\plain \sl480\slmult1\keepn\widctlpar\adjustright \fs20\cgrid {\fs24 
\par }\pard \sl480\slmult1\widctlpar\adjustright {\tab }{\fs24 In 1908, a Congress recognized a legitimate use for inferior tea products such as tea dust: the manufacturing of caffeine, theine, and other useful chemicals.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 35 Stat. 163 (May 16, 1908), codified at 21 U.S.C. \'a7 41, substantially amended by
 76 Stat. 77 (May 24, 1962), further amended by 102 Stat. 1158 (August, 23, 1988), repealed by 110 Stat. 1198 (April 9, 1996).  In 1962, the language regarding the exemption was replaced with a reference to the Tariff Schedule of the United States.  76 St
at. 77. The Tariff Schedule, not included in the U.S. Code, could well have preserved the exemption, although this is not clear.  In 1988, a minor change was made in statutory language to refer to the renamed Harmonized Tariff Schedule.  102 Stat. 1158.}}
}{\fs24   In 1884, the House Committee on Ways and Means had supported prohibiting these products entry, reporting that tea dust was \ldblquote only used for adulteration.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ H. Rep. No. 48-665, }{\i supra}{ note 103.}}}{\fs24 
  While the 1897 Act had not expressly provided for exclusion of tea dust, any standards the Secretary of the Treasury would fix were likely to surpass tea dust in quality.  However, caffeine and theine could be produced as easily from tea dust as
 from tea passing government standards.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ S. Rep No. 58-4367, at 1 (1905).}}}{\fs24 
  As tea dust was far less expensive than quality tea, it made economic sense for it to be imported for the limited purpose of chemical manufacture.  }{
\par }\pard \fi720\sl480\slmult1\widctlpar\adjustright {\fs24 Twice in 1905 the Senate Committee on Commerce reported favorably
 on bills that would amend the act to allow entry of tea sweepings for this limited purpose.  The first, S. 5600, was reported too late in the Third session of the 58}{\fs24\super th}{\fs24  Congress to be considered.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i See}{ S. Rep. No. 59-7, at 1 (1905).}}}{\fs24   The second, S. 1548, \ldblquote a like bill\rdblquote  was reported early in the First session of the 59}{\fs24\super th}{\fs24 
 Congress (largely by quoting the report on the previous bill).}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i See}{ i}{\i d}{.}}}{\fs24 
  This bill failed to pass the Senate as well.  However, three years later in 1908 the amendment passed, despite concerns that the amendment would undermine enforcement of the 1897 Act:  \ldblquote 
The only objection would seem to lie in a possibility that these tea wastes might be sold as tea to be used as a beverage.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}
}}{\fs24 
\par In the 1908 amendment, an exemption was created in the Tea Act to allow manufacturers to bring inferior teas, including \ldblquote tea waste, tea siftings, [and] tea sweepings,\rdblquote  into the country.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 35 Stat. 163, }{\i supra}{ note 239.}}}{\fs24    The importers had to give bond that the inferior teas would be used \ldblquote 
for the sole purpose of manufacturing theine, caffeine, or other chemical products whereby the identity and character of the original material is entirely destroyed or changed.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24  
\par Notably, the Secretary of the Treasury consulted the Board of Tea Experts in considering the amendments.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i See}{
 letter of H.A. Taylor, Acting Secretary of the Treasury (Feb. 9, 1905), as printed in S. Rep. No. 59-7, }{\i supra}{ note 242, at 2.}}}{\fs24   A majority of the Board believed that enforcement of the Tea Act would be 
compromised if the amendment passed.  However, the Secretary along with a minority of the Board, believed otherwise: \ldblquote 
the minority is of the opinion that the intent and purpose of the tea act can be fully safeguarded under the proposed bill by proper departmental regulations, and I concur in this opinion . . ..\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   
\par }\pard \sl480\slmult1\widctlpar\adjustright {\fs24 \tab Precisely why the 1908 amendment was deemed necessary is unclear.  Only six months after passage of the 1897 Act, the Secretary of the Treasury had promulgated a regulation to allow these produc
ts entry for the purpose of theine and caffeine production.}{\cs18\fs24\super \chftn {\footnote \pard\plain \widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Schaefer Alkaloid Works v. United States}{
, 7 U.S.Cust.App. 128, 130 (1916).  The regulation was passed on August 12, 1897.  }{\i Id}{.  }{\i Schaefer}{ did not involve enforcement of the Tea Act.  Rather, it answered the question whether tea sweepings were legally \ldblquote tea\rdblquote 
 for tariff purposes if they were mixed with lime and asafetida.  The court found they were, and therefore subjected the product to a duty of 1 cent per pound.  }{\i Id}{. at 132.}}}{\fs24 
  However, this regulation required the raw product to be mixed with a small amount of lime and asafetida to make \ldblquote impossible the unlawful use of rejected teas.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id. }{at 130. This preparation was a common requirement; apparently the British had a similar rule.  }{\i Id}{. at 132.}}}{\fs24   The amendment \ldblquote made it unnecessa
ry to mix lime and asafetida with tea sweepings in order to permit of their entry at the customhouse,\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 131.}}}{\fs24 
 and instead required a bond from importers.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 35 Stat. 163, }{\i supra}{ note 239.}}}{\fs24 
  It is possible that the 1908 amendment was passed for economic reasons, i.e., to allow tea dust to be imported more cheaply.
\par }\pard\plain \s15\sl480\slmult1\widctlpar\adjustright \fs20\cgrid {\fs24  
\par }\pard \s15\qc\sl480\slmult1\keepn\widctlpar\adjustright {\b\fs28 Further litigation clarifies the scope of the Tea Act
\par }\pard \s15\fi720\sl480\slmult1\keepn\widctlpar\adjustright {\fs24 
\par }\pard \s15\fi720\sl480\slmult1\widctlpar\adjustright {\i\fs24 Buttfield v. United States}{\fs24  left open the question whether the forfeiture penalty for attempting to re-import rejected tea could be applied to an importer who was unaware that his t
ea had been previously examined and rejected.  In 1913, a New York district court ruled that it could in }{\i\fs24 United States v. Twenty Chests of Tea}{\fs24 ;}{\cs18\i\fs24\super  \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ }{\i United States v. Twenty Chests of Tea}{, 208 F. 89 (N.D.N.Y. 1913).}}}{\fs24  the forfeiture provision contained no requirement of scienter.  
\par In }{\i\fs24 Twenty Chests of Tea}{\fs24 , customs officials had rejected a shipment of tea, and pursuant to \'a7 6 of the Tea Act, the importer exported the tea to Canada.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 89.}}}{\fs24   When the importer sold the tea, he did not advise the purchaser that it had been rejected by U.S. customs.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 90.}}}{\fs24   The tea subsequently passed through the hands of several merchants, none of whom were aware that the tea was ineligible for importation into the United States.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24   The tea was eventually sold to Kearney Bros. Limited specifically for the purpose of importing it into the United States.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24   The vendor, himself unaware of the tea\rquote 
s history, represented to Kearney Bros. that the tea conformed to United States standards and was eligible for importation.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
  
\par In the forfeiture action, Kearney Bros. argued that, because they were innocent of their tea\rquote s defect, it was not subject to forfeiture.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }
{\i Id}{. at 91.}}}{\fs24   They also asserted that the examiner who had initially rejected the tea should have stamped or labeled the packages in such a way as to make it obvious that they had been rejected.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   However, the court determined that the Tea Act did not require the examiner or the collector to do mark the tea as condemned.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   
\par Expressing a concern that customs must not be required to reexamine previously rejected tea \ldblquote again and again at the same or different ports of entry,\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 93.}}}{\fs24  the court held the importers responsible for knowing the history of their tea.  It stated, \ldblquote 
When this tea was examined and rejected and sent out of the country, the owner and all who purchased from such owner thereafter were bound at their peril to know the status of such tea . . ..\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 91.}}}{\fs24    
\par The court justified its position by stating that due inquiry would have revealed the tea\rquote s legal status.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 93.}}}{\fs24 
  It also reasoned that Kearney Bros. could have determined for themselves that the tea was not up to U.S. standards by comparing it with the government samples available from the Treasury Department.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   It concluded, \ldblquote On the whole, I do not see that any injustice is done importers by casting on them the responsibility . . ..\rdblquote }{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24 
\par 
\par }\pard \s15\qc\sl480\slmult1\widctlpar\adjustright {\fs24 *   *   *   *   *
\par }\pard \s15\qc\fi720\sl480\slmult1\widctlpar\adjustright {\fs24 
\par }\pard \s15\fi720\sl480\slmult1\widctlpar\adjustright {\fs24 While Buttfield must be considered the most active Tea Act litigant, the firm of Carter, Macy & Co., Inc. comes in a close second.  Though the firm brought only one case to the Supreme Court, }{
\i\fs24 Waite v. Macy}{\fs24 ,}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Waite v. Macy}{, 246 U.S. 606 (1918).}}}{\fs24 
 it was more successful than Buttfield in its challenge under the Tea Act.  However, before recounting the firm\rquote s victory at the Supreme Court, it is worth noting its previous defeat in a separate case, }{\i\fs24 Macy v. Loeb}{\fs24 .}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Macy v. Loeb}{, 205 F. 727 (2}{\super nd}{ Cir. 1913).}}}{\fs24 
\par In }{\i\fs24 Macy v. Loeb}{\fs24 , a 1913 case, the firm sued a revenue collector for the port of New York to enjoin the destruction of its tea on the theory that the Tea Importation Act required a pre-deprivation hearing.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 727.}}}{\fs24   The Second Circuit determined that the Tea Importation Act did not grant importers the statutory right to a hearing at any state.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 729.}}}{\fs24   It held that the 1897 Act did not re
quire that the initial examination of tea, or any appeal taken to the Board of General Appraisers for that matter, occur in the importer\rquote s presence.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ }{\i Id}{. at 728.}}}{\fs24   The Act provided no opportunity for the importer to offer evidence or testimony at any stage.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 }{\i Id}{.}}}{\fs24   Under }{\i\fs24 Stranahan}{\fs24 ,}{\cs18\fs24\super  }{\fs24 the lack of hearing was perfectly constitutional,}{\cs18\fs24\super  \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i 
Stranahan}{, 192 U.S. at 497.}}}{\fs24  and the Second Circuit reaffirmed that, \ldblquote Congress has undoubtedly the power to exclude all teas, or to admit them under the most arbitrary regulations it may choose to prescribe.\rdblquote }{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Macy v. Loeb}{, 205 F. at 728.}}}{\fs24   To the importers\rquote 
 novel assertion that the 1897 Act did not apply to teas equal to or above the standards set by the Secretary of the Treasury, the Second Circuit colorfully responded, 
\par }\pard \s15\li720\ri720\widctlpar\adjustright {\fs24 This is a mistaken idea.  The act provides in substance that no tea shall come here unless it meets the requirements of the statute \endash 
 that is unless it can secure a finding from the examiner or from the Board of General Appraisers that it is in their opinion up to standard.  Unless an importation of tea can secure such a finding it must b
e taken away, even though it be the highest grade of brick tea that ever left China by caravan.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 729.}}}{\fs24 
\par }\pard \s15\fi720\ri720\widctlpar\adjustright {\fs24 
\par }\pard \s15\sl480\slmult1\widctlpar\adjustright {\fs24 This decision was not appealed.
\par }\pard \s15\fi720\sl480\slmult1\widctlpar\adjustright {\fs24 In 1918, the Supreme Court decided }{\i\fs24 Waite v. Macy}{\fs24 ,}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i 
Waite v. Macy}{, 246 U.S. 606 (1918).}}}{\fs24  which upheld an importer\rquote s right under the Tea Importation Act to import colored tea. The case has an unusually well recorded history, as the opinions of both the Second Circuit}{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Macy v. Browne}{, 224 F. 359 (2d Cir. 1915).}}}{\fs24  and the district court}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Macy v. Browne}{, 215 F. 456 (S.D.N.Y. 1914).}}}{\fs24  are reported.  Macy and his business associates attempted to import a shipment of green tea into the United States through the port of San Francisco.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 457.}}}{\fs24 
  The tea was far superior in quality to the government standard, being worth approximately four times more on the open market.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{
. at 460.}}}{\fs24   However, it contained a \ldblquote microscopic\rdblquote  amount of Prussian blue, a non-deleterious substance commonly used to color green teas during that era.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   The government standard tea contained no coloring matter whatsoever,}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super 
\chftn }{ }{\i Id}{.}}}{\fs24  but the firm\rquote s tea was in all other ways superior to the standard in terms of purity.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{
.  Though the standard contained no color, it had a greater amount of other impurities.  }{\i Id}{.}}}{\fs24  
\par The examiner rejected the tea under Treasury regulations that effectively forbid the importation of artificially colored teas.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 459.
}}}{\fs24   Under Treasury Regulation 22, examiners were required to utilize the relatively new \lquote Read method\rquote  to test for the presence of coloring matter.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24  Regulation 23 required that imported teas meet government standards in all requisites, including the amount of artificial coloring.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   That is, if a tea contained more color than the government standard, the examiner was forced to reject it regardless of its relative purity as a whole.}{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   
\par Customs and the Treasury Department had apparently waged a long campaign to exclude colored tea from entering the United States.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{
\fs24   Why it held such a policy not entirely clear; however it is very likely that the authorities regarded the policy as the only effective method of deterring the use of color to deceive consumers as to a tea\rquote s quality.}{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i See}{ Taylor, }{\i supra}{ note 59, at 195.}}}{\fs24 
  As the Secretary of the Treasury had authority to fix government standards, it was within his discretion to choose sample teas that were absolutely free of coloring matter.  Thus, assuming the regulations were within the Secretary\rquote 
s authority, he could prevent the entry of all colored teas.
\par The importers appealed the examiner\rquote s decision to the Board of General Appraisers.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Macy v. Browne}{, 215 F. at 458.}}}{\fs24 
  However, before the Board could render its decision, they cleverly sued the Board to enjoin it from applying Treasury Regulations 22 and 23, asserting that the regulations were not authorized by the Tea Act.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 460.}}}{\fs24   The importers attacked the Treasury\rquote s policy on two fronts: First, they argued, the Act did not 
provide for use of the Read method. The 1897 Act provided only that tea offered for importation \ldblquote 
shall be tested according to the usages and customs of the tea trade, including the testing of an infusion of the same in boiling water, and, if necessary, chemical analysis.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 29 Stat. 604, supra note 2, \'a7 7.}}}{\fs24   As the Read method was neither a chemical analysis, nor known to the tea trade in 1897,}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Macy v. Browne}{, 215 F. at 460.}}}{\fs24 
 any regulation requiring its use must be unauthorized.  Second, they asserted that the Act made three and only three demands on tea offered for import: equivalent purity, quality, and fitness for consumption.  It was outside the Secretary\rquote 
s authority to add a fourth requirement, unspecified by the legislation, i.e., relative absence of coloring matter.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
\par In }{\i\fs24 Macy v. Browne}{\fs24 ,}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ The case was so captioned in both the district and circuit court proceedings.}}}{\fs24 
 the district court did not reach the merits of either argument, and for a now familiar reason: dismissal due to lack of equity jurisdiction.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{
\i Macy v. Browne}{, 215 F. at 461.}}}{\fs24   However, Judge Hough provided some analysis of the situation, and came to an interesting conclusion: the Board of General Appraisers was not strictly bound by the Treasury Regulations.  He reasoned: 
\par }\pard \s15\li720\ri720\widctlpar\adjustright {\fs24 the powers of the tea board are derived from the statute itself \endash 
 it is quite independent of the Secretary . . . .  The Secretary can no more compel the tea board to decide any question lawfully coming before it in any particular way than he can so act toward any other lawfully constituted tribunal.}{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
\par 
\par }\pard \s15\sl480\slmult1\widctlpar\adjustright {\fs24 The \ldblquote real question\rdblquote  before the Board was \ldblquote whether the standard samples of tea are to be interpreted (so to speak) narrowly or broadly.\rdblquote }{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24   Whether failure to meet the government standard in respect to color alone constituted inferiority in purity was \ldblquote 
emphatically a matter of opinion, of discretion.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24 
  Since the Board of General Appraisers was not required to follow the Treasury Regulations, \ldblquote it must have a chance to do right before it is assumed to be about to go wrong.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. }}}{\fs24 
\par }\pard \s15\fi720\sl480\slmult1\widctlpar\adjustright {\fs24 The Second Circuit reversed Judge Hough\rquote s dismissal of the case for want of equity jurisdiction.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ }{\i Macy v. Browne}{, 224 F. at 363.}}}{\fs24   Rather than simply remanding the case, the court ruled on the merits and found that Regulations 22 and 23 went beyond the Secretary\rquote s statutory authority.}{\cs18\fs24\super 
\chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 362.}}}{\fs24 
  The court remanded the case with instructions to issue an injunction, ruling that, under the Tea Importation Act, tea could not be excluded solely on the basis that it contained coloring matter.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 363.}}}{\fs24   The circuit judges noted that if Congress had intended that teas should be rejected on this basis alone, it would have expressed the policy in the Act.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 361.}}}{\fs24   Hence, the regulatory provisions were: 
\par }\pard \s15\li720\ri720\widctlpar\adjustright {\fs24 inconsistent with the statute, because they undert
ake to direct the tea board to reject tea . . . although the board may be convinced . . . that the coloring matter is present in such harmless quantities that the tea is not inferior to the statutory standards in purity, quality, or fitness for consumptio
n.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 362-3.}}}{\fs24 
\par }\pard \s15\fi720\sl480\slmult1\widctlpar\adjustright {\fs24 
\par }\pard \s15\sl480\slmult1\widctlpar\adjustright {\fs24 On the other hand, the Board\rquote s use of the Read method was entirely proper, regardless of whether it could be described as a \ldblquote chemical\rdblquote  analysis.}{\cs18\fs24\super \chftn 
{\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 362.}}}{\fs24   In fact, the Board was free to utilize \ldblquote whatever means they may adopt to satisfy themselves as to the deg
ree of purity, or quality, or of fitness [for consumption].\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   
\par }\pard \s15\fi720\sl480\slmult1\widctlpar\adjustright {\i\fs24 Macy v. Browne}{\fs24  could be distinguished from}{\i\fs24  Stranahan}{\fs24 : while the Board \ldblquote was the final judge in its allotted field,\rdblquote  as found in }{\i\fs24 
Stranahan, }{\fs24 the Supreme Court\rquote s earlier opinion \ldblquote did not indicate that the Board had any power to extend that field.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super 
\chftn }{ }{\i Id}{. at 361.}}}{\fs24   Nor was the district court correct in finding the Board independent of the Secretary of the Treasury: \ldblquote The members of the board are appointed by the Secretary, who has the power to remove them . . ..
\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 362.}}}{\fs24 
\par Strangely, the Second Circuit did not specifically analyze the issue of equity jurisdiction.  However, in order to find that the district court had equity jurisdiction, the judges must have believed that enforcement of the regulations would have constitut
ed an interference with a vested right that could not be adequately repaired with monetary damages.  Though the court indicated that rejection of the teas \ldblquote would be an invasion of the rights of complainants,\rdblquote 
 it did not further explain its decision.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   
\par In 1918, the Supreme Court upheld the Second Circuit\rquote s ruling in }{\i\fs24 Waite v. Macy}{\fs24 , an opinion by Justice Holmes.  The Court agreed with the Second Circuit\rquote s assertion that }{\i\fs24 Stranahan}{\fs24 
 presented a different issue than did the case at hand:
\par }\pard \s15\li720\ri720\widctlpar\adjustright {\fs24 No doubt it is true that t
his Court cannot displace the judgement of the board in any matter within its jurisdiction, but it is equally true that the board cannot enlarge the powers given to it by statute and cover a usurpation by calling it a decision on purity, quality, or fitne
ss for consumption.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Waite v. Macy}{, 246 U.S. at 608.}}}{\fs24  
\par }\pard \s15\fi720\li720\ri720\widctlpar\adjustright {\fs24 
\par }\pard \s15\sl480\slmult1\widctlpar\adjustright {\fs24 Holmes forcefully concluded, \ldblquote 
It cannot be made a rule of law that any tea that has an infinitesimal amount of innocuous coloring matter is inferior in those respects to a standard that has a much greater amount of other impurities and is worth only a quarter as much.\rdblquote }{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 609.}}}{\fs24   }{\i\fs24 Waite v. Macy}{\fs24 
, was the final reported case challenging the enforcement or constitutionality of the Tea Importation Act.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 However, another case relating to the Tea Act may be of interest to the reader, as it involves familiar a familiar party, the firm of Carter, Macy & Co.: }{\i Carter, Macy & Co. v. Matthews}{, 220 A.D. 678, 222 N.Y.S. 472 (1927). 
 One aspect of the case was a controversy as to the interpretation of a contract that incorporated the government\rquote s tea standards.  Carter, Macy & Co., the plaintiffs, alleged they had a contract to import \ldblquote government standard Congou tea
\rdblquote  for the defendant
s.  The teas offered to the defendant were of a lesser market value (for aesthetic reasons) than government standard Congou.  However, the examiner at the port of New York had allowed the teas into the country under the Congou standard; under the Departme
nt of Agriculture\rquote s regulations, tea examiners should not take the appearance of the tea leaves into account when determining whether quality standards were met.  The plaintiffs claimed that \ldblquote government standard Congou\rdblquote 
 for purposes of the contract meant Congou tea which government examiners allowed into the country.  The defendants argued that \ldblquote government standard Congou\rdblquote 
 meant Congou tea equal to government standards in all aspects, including appearance and market value.  The court held that the contract t
erm was ambiguous and that the question should be submitted to a jury.  However, the complaint was dismissed on other grounds.}}}{\fs24    
\par }\pard\plain \sl480\slmult1\widctlpar\adjustright \fs20\cgrid {\fs24 
\par }\pard \qc\sl480\slmult1\keepn\widctlpar\adjustright {\b\fs28 A Short Summary of the Post-litigation years
\par }\pard\plain \s4\sl480\slmult1\keepn\widctlpar\outlinelevel3\adjustright \cgrid {
\par }\pard \s4\fi720\sl480\slmult1\widctlpar\outlinelevel3\adjustright {In 1920, enforcement of the Tea Act was partially transferred to the Bureau of Chemistry in the Department of Agriculture.}{\cs18\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 41 Stat. 712 (May 31, 1920), repealed by 110 Stat. 1198 (April 9, 1996).}}}{  Enforcement was now a cooperative endeavor between Chemistry and U.S. Customs.}{\cs18\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Customs officials remained responsible for approving bonds offered by importers.  }{\i Id}{.}}}{  The Board of Tea Experts was now to be appointed by the Secretary of Agriculture.}{
\cs18\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{  The Board of General Appraisers was substituted with a new \ldblquote United States Board of Tea Appeals,\rdblquote 
 to be made up of three employees of Agriculture, to be designated by the Secretary.}{\cs18\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{
  Enforcement of the Act was subsequently re-transferred several times.  
\par }\pard\plain \fi720\sl480\slmult1\widctlpar\adjustright \fs20\cgrid {\fs24 In 1940, FDA (formerly Chemistry) was transferred from Agriculture to the Federal Security Agency.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ 54 Stat. 1237, \'a7 12 (1940 Reorganization Plan No. IV \'a7 12) (effective June 30, 1940).}}}{\fs24   Additionally, Congress failed to appropriate any funds for enforcement of the Tea Act for fiscal year 1940-41.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Killingsworth, }{\i supra}{ note 65, at 502.}}}{\fs24   In order to preserve the program, industry agreed to pay
 for enforcement through an inspection fee of 3 \'bd cents for every hundred pounds of tea imported.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.; }{\i see also}{
 55 Stat. 478 (July 1, 1941), repealed by 110 Stat. 1198 (April 9, 1996).}}}{\fs24   In 1943, the compensation and expenses for the Board of Tea Experts, formerly paid by the Secretary of the Treasury, was transferred to the FSA\rquote s appropriation.}{
\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 57 Stat. 499, 500 (July 12, 1943).}}}{\fs24   The 1943 amendment also provided the 1897 Act with its official statutory title, the \ldblquote 
Tea Importation Act.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{. at 499.}}}{\fs24  
\par In 1953, Congress created the Department of Health, Education and Welfare (HEW),}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 67 Stat. 631, \'a7 1 (Reorganization Plan No. 1 of 1953).}}}{
\fs24  later to be renamed Health and Human Services (HHS).}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 93 Stat. 695 (October 17, 1979).}}}{\fs24   Al
l functions of the former Federal Security Agency (including FDA and its Tea Act enforcement authority) were transferred to the new department.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 67 Stat. 631, supra note 323, \'a7 5.}}}{\fs24 
\par }\pard\plain \s3\keepn\widctlpar\outlinelevel2\adjustright \b\fs28\cgrid {\b0\fs24 
\par }\pard\plain \widctlpar\adjustright \fs20\cgrid {
\par 
\par }\pard \qc\keepn\widctlpar\adjustright {\b\fs28 The 1990\rquote s push to repeal the Tea Act}{\fs24 
\par }\pard \sl480\slmult1\keepn\widctlpar\adjustright {\fs24 
\par 
\par }\pard \sl480\slmult1\widctlpar\adjustright {\fs24 \tab Starting shortly after the Great Depression, those in favor of cutt
ing the federal budget made occasional murmurs about repealing the Tea Importation Act.  In more recent years, Presidents Nixon, Carter and Reagan were all in favor of ending the inspection program.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i See}{ Tom Teepen, }{\i Bag the Federal Tea Board?  The Case for the Tasters}{, The News and Observer, Raleigh, NC, Sept. 28, 1995, at A15; }{\i see also}{ Carl Peel, }{\i 
Tea act is still intact}{, Tea and Coffee Trade J. 48, Dec. 1, 1995; Martin Anderson, }{\i Teeing off board of tenacious tea tasters Cutting waste: Tactics to stay alive leave a bad taste}{
, The Detroit News, Sept. 19, 1993.  Anderson, a former White House staff member, tells an interesting story about the Nixon administration: in 1970, Nixon was increasingly concerned with the rise in federal spending and wanted to \ldblquote 
find some program, any program, that deserved to be eliminated and to do so simply to prove that it could be done.\rdblquote 
  They chose the Tea Board to make an example of, and it was simply crossed off the budget.  The administration was pleased with itself until informed that th
e Board could not be eliminated absent an act of Congress.  A law to repeal the 1897 Act was drafted, sent to Congress, and was quashed by tea industry lobbyists.  Congress refused to pass the bill, with the justification that the savings would be too ins
ignificant.  }{\i Id}{.}}}{\fs24   None of these half-hearted attempts had much support, in large part because the savings to the budget were so small.  
\par }\pard \fi720\sl480\slmult1\widctlpar\adjustright {\fs24 The 1990\rquote 
s saw several attacks on the tea program, most of which were unsuccessful.  Politicians who wanted to end the program did not entirely understand its workings.  Simply cutting the program\rquote s budget wouldn\rquote 
t end the program itself: As long as the Tea Importation Act was on the books, FDA had the obligation to set tea standards and enforce them, regardless of whether Congress appropriated funds for the activity.}{\cs18\fs24\super \chftn {\footnote 
\pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Cindy Skyzycki, }{\i The Cup Board isn\rquote t Bare Yet; Apparently the FDA\rquote s Teatasters Will Get Federal Funding Again}{, The Washington Post, Aug. 9, 1995, at F01; }{\i 
see also}{ David Brotherton, }{\i Tea-tasters\rquote  survival angers Reid}{, The Las Vegas Review-Journal, Dec. 19, 1995, at 9D (quoting FDA spokesman Don McLearn: \ldblquote The law doesn\rquote 
t say we should not have a tea taster at the FDA.  It places restrictions on how our tea tasters can interact with the tea board and raises questions about how any of these positions are supposed to be funded\rdblquote ).}}}{\fs24   
\par Additionally, targeting any single part of the three-part scheme of standard setting, enforcement, and adjudication would accomplish little.  In regards to this phenomenon, Senator Reid \endash  the Tea Importation Act\rquote 
s most vocal and tenacious opponent - stated, \ldblquote These tea-tasting people are just like lizards.  You grab them and jerk something off and they are right back.\rdblquote }{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ Teepen, }{\i supra}{ note 326. }}}{  
\par }{\fs24 In 1993, for example, some Congress members tried to kill the Act, but the legislature instead reached a compromise with the industry: the Act would not be repea
led if the tea trade was willing to pick up the tab.   First, the Board of Tea Experts would receive no federal funding for its activities, which totaled approximately $7,000 per year.}{\cs18\fs24\super  \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Skyzycki, }{\i supra}{ note 327.}}}{\fs24   Industry would take responsibility for this expense.  Second, the inspection fee was raised from raised from 3 \'bd
 cents per hundredweight to 10 cents per hundredweight in order to cover all enforcement costs.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ 107 Stat. 378 (August 10, 1993).}}}{\fs24 
  Through an oversight in the Harmonized Tariff Schedule, this higher duty was never enforced.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{  H. Rep. No. 104-467(II) (1996).}}}{\fs24 
  If it had been, the government would have easily collected the $200,000 enforcement cost.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24 
\par It was in 1996 that the Tea Importation Act was finally repealed.  Congress passed the Federal Tea Taster\rquote s Repeal Act,}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
  110 Stat. 1198 (April 9, 1996).}}}{\fs24  finally bringing the program to a close. This move was not supported by industry, which lobbied against the repeal.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{  Peel, }{\i supra}{ note 326.  Peel quotes Simrany, president of the Tea Association of America: \ldblquote It\rquote s something the industry feels strongly about.  And its worth fighting for.\rdblquote   }{\i Id}{
.  Simrany also states, \ldblquote Having the Tea Importation Act is a signal to all the growers of the world over that the U.S. is not the place
 to unload your adulterated tea.  It assures quality and also provides a first line of defense for the industry.\rdblquote   }{\i Id}{.}}}{\fs24 
  However, the tenacity of a few legislators, including Senator Reid, overcame the tea lobby.  Parallel legislation was introduced in the House}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 H.R. 2969, 104}{\super th}{ Cong. (1996).}}}{\fs24  and the Senate.}{\cs18\fs24\super \chftn {\footnote \pard\plain \widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ S. 1518, 104}{\super th}{
 Cong. (1996). On a side note, this Senate bill had a colorful history: Reid apparently got the bill through the Senate by holding other legislation \lquote hostage.\rquote 
  One such piece of legislation was a law to honor the Reverend Bill Graham, 77 at the time and suffering serious health problems.  The Graham bill was important to Senator Paul Coverdell, R-Ga, who\rquote d placed a hold on the Federal Tea Taster\rquote 
s Repeal Act.  John Monk, }{\i Tiffs over even smallest bills can turn bitter}{, The Orange County Register, Feb. 3, 1996.  Reid is quoted as saying, \ldblquote I put a hold on everything and said nothing\rquote s going to h
appen until we get the tea board taken care of.\rdblquote  }{\i Reid wins round in battle to kill controversial Board of Tea Experts}{, The Las Vegas Review-Journal, Feb. 2, 1996.  Though Reid\rquote 
s legislation passed the Senate, it was thwarted again - this time by the House.  The House deemed the bill an unconstitutional violation of Art. I \'a7
 7.2, which provides that all revenue measures shall be initiated in the House.  The bill was returned to the Senate.  H.R. Res. 387, 104}{\super th}{ Cong. (1996).  This last scuffle was inconseque
ntial, as the House was concurrently considering identical legislation of its own.}}}{\fs24   The House bill was passed by Congress and signed into law by President Clinton.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright 
\fs20\cgrid {\cs18\super \chftn }{ 110 Stat. 1198 (April 9, 1996).}}}{\fs24 
\par The House reports cited three major reasons for the repeal.  First, Congress wished to reduce the cost to taxpayers.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 H.R. Rep. No. 104-467(I) and (II).}}}{\fs24   Second, they stated that the Tea Act was redundant; the Federal Food, Drug, and Cosmetic Act provided consumers with sufficient protection.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i Id}{.}}}{\fs24   Finally, legislators felt that the tea trade was over-regulated.}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super 
\chftn }{ }{\i Id}{.}}}{\fs24  
\par }\pard \sl480\slmult1\widctlpar\adjustright {\fs24 
\par }\pard\plain \s3\qc\keepn\widctlpar\outlinelevel2\adjustright \b\fs28\cgrid {Conclusion:
\par }\pard\plain \qc\widctlpar\adjustright \fs20\cgrid {\b\fs28 All a Matter of Principle?
\par }\pard \sl480\slmult1\keepn\widctlpar\adjustright {\fs24 
\par 
\par }\pard \sl480\slmult1\widctlpar\adjustright {\fs24 \tab The repeal of the Tea Importation Act has not greatly affected the quality of teas on the American market.  Certainly, consumers are not subjected to the sorts of evils they faced in the late 19}{
\fs24\super th}{\fs24  century.  So, to a large extent, there is some truth to the assertion that the Tea Importation Act was made redundant by FDA enforcement of the Federal Food, Drug, and Cosmetics Act.  
\par \tab However, the justifications for passing the Act given by the House reports are somewhat suspect.  Over-regulation of the industry was cited as a central reason for ending the program, yet it is clear that industry did not, and ne
ver did, favor repeal of the Tea Importation Act.  American industry viewed the Act as a first line of defense for merchants, as well as an additional layer of computer protection.  Indeed, industry described the relationship between itself and the govern
ment as unusually congenial.  Thus, any justification that the repeal was good for industry should not be taken at face value.
\par }\pard\plain \s20\fi720\sl480\slmult1\widctlpar\adjustright \cgrid {Cost to taxpayers was ultimately a red herring as well.  Industry had proved it was ready and willing to pay the expenses of the p
rogram.  Industry leaders already paid all expenses of the standard setting meetings of the Board of Tea Experts.  As in 1940 and 1993, the trade was content to pay increased inspection fees to fully fund enforcement of the Board of Tea Expert\rquote 
s standards.  Indeed, had the inspection fee increase of 1993 been properly enforced, the Tea Act\rquote s program would already have been self-funding, with no additional fee increase necessary.
\par }\pard\plain \sl480\slmult1\widctlpar\adjustright \fs20\cgrid {\fs24 \tab To use Senator Reid words, the repeal must have come down to a matter of principle}{\cs18\fs24\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {
\cs18\super \chftn }{ \ldblquote This is a matter of principle with me.  It didn\rquote t involve a lot of money, but it was a matter of principle.\rdblquote  }{\i Reid wins round in battle to kill controversial Board of Tea Experts}{
, The Las Vegas Review-Journal, Feb. 2, 1996, at 3B.}}}{\fs24 
 - a firmly held belief as to the proper role of government in American life.  In this view, the federal government should not be in the business of setting and upholding quality standards.  Instead, competition could be trusted to uphold tea quality.
  Americans were capable of choosing what they wished to drink, and if consumers wished to sacrifice quality for price, it was their right to do so.  
\par \tab Behind this expressed libertarian view, other members of Congress may have had another hidden worry: reg
ulatory capture.  While the Act did not directly delegate standard setting to the industry, traditionally, six of the seven members of the Board of Tea Experts had been industry members.}{\cs18\fs24\super \chftn {\footnote \pard\plain 
\s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ }{\i See}{ Killingsworth, }{\i supra}{ note 65, at 500.}}}{\fs24   It may be that the government was hard pressed to find \lquote experts in tea\rquote 
 who were not also in the business.  Nevertheless, the relationship described by industry leaders as \ldblquote congenial\rdblquote  may have been more troubling to federal lawmakers than it was to the tea trade.  
\par }\pard\plain \s26\fi720\sl480\slmult1\widctlpar\adjustright \cf2\cgrid {\cf0 It is also possible that the repeal was passed in large part due to a misunderstanding of the industry\rquote 
s position on the matter - and a miscalculation of the actual cost to taxpayers.  From the justifications given in the House reports, it is fairly clear that legislators did not understand (or chose to ignore) 
the actual state of things.  Some speculate that one factor in this was that Mr. Robert H. Dick,}{\cs18\cf0\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{
 Mr. Dick was highly respected by the industry.  On article described him as \ldblquote a dozen-sample-a-minute connoisseur who could identify a brew right down to its exotic origin, sometimes its particular garden.\rdblquote   Calvin Woodward, }{\i 
Tea and Milk: A Brew for Budget Cutting and Political Gain}{, The Associated Press Political Service,
 April 10, 1996.  The various articles written on Mr. Dick disagree as to his age at the time of the repeal (and his retirement from government service).  However, all place him in his mid to late 70\rquote 
s as of 1996, and all state that his entire 50-odd year career with the government was spent tasting tea.  }{\i See e.g.,}{ Skyzycki, supra note 327; }{\i see also}{ Sean Holton, }{\i 
Budget had tea tasters in hot water Clinton want to dump tasting panel to save money}{, San Francisco Examiner, Feb. 15, 1993.}}}{\cf0  the nation\rquote 
s Chief Tea Examiner and president of the Board of Tea Experts, was unable to lobby for the program due to his failing health.}{\cs18\cf0\super \chftn {\footnote \pard\plain \s17\widctlpar\adjustright \fs20\cgrid {\cs18\super \chftn }{ Teepen, }{\i supra}
{ note 326, commenting, \ldblquote taking cruel advantage of an illness that has sidelined the redoubtable chemist Dick, Congress is after the tea tasters in earnest.\rdblquote }}}{\cf0   With no knowledgeable voice to counter Reid\rquote 
s tenacious politics, Congress was left with the false impression that the Tea Importation Act was useless - an anachronism.
\par }\pard\plain \s25\sl480\slmult1\widctlpar\adjustright \cf2\cgrid {\cf0 \tab Tracing the Tea Importation Act\rquote s history serves as a small lesson in the development (and subsequent pa
rtial dismantling) of the administrative state.  In the end, the story of the Act is most interesting not for itself, but for the exposition it presents on changing political attitudes toward the role of government \endash 
 and its proper relationship to industry - over the last century.  
\par }}