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National Cookie Day – What Constitutes Butter?

At the October blog team meeting, I was encouraged to write something about National Cookie Day, which is celebrated on December 4th.  I thought one of my colleagues who likes to eat the cookies I bake might be better placed to write on this topic but instead the team elected me.

So, as this is a legal blog, how was I to relate the law to cookies? I decided to trace the regulations governing butter–an essential ingredient in most cookie recipes.  The Code of Federal Regulations (CFR) is published annually and contains the rules and regulations issued by federal agencies.  The CFR is organized into 50 subject areas.  It is available online through GPO’s govinfo website, but for my quick searches on butter regulations I referred to GPO’s eCFR website.

When I ran a simple search for “butter” on this website, I retrieved regulations from Title 7 (Agriculture), part 58 which is titled “Grading and Inspection, General Specifications for Approved Plants and Standards for Grades of Diary Products.”  This was interesting but had more to do with standards at the plants processing dairy products than regulations governing dairy products.  A more promising regulation was from Title 21, Food and Drugs, part 101 which covers food labeling for various items including butter.  Section 101.67 addresses the nutrient content for butter which needs to be covered in the packaging and labeling for this product.  While this regulation was interesting, it did not provide a legal definition of butter.  However, it did include a reference to a section of the United States Code which provides “the statutory standard for butter.”

So I turned to the United States Code for information on what constitutes butter under United States law.  The information can be found in Title 21 of the U.S. Code, section 321a.  The title of this section is “‘Butter’ defined” and states:

For the purposes of the Food and Drug Act of June 30, 1906 (Thirty-fourth Statutes at Large, page 768) “butter” shall be understood to mean the food product usually known as butter, and which is made exclusively from milk or cream, or both, with or without common salt, and with or without additional coloring matter, and containing not less than 80 per centum by weight of milk fat, all tolerances having been allowed for.

Now, 80% butterfat sound pretty high but many bakers like to use butters which have higher butterfat contents in their baking.  The reason for this being that the higher the butterfat the lower the percentage of water in the butter and the flakier the baked good.  That at least is the argument but I also find that the higher the butterfat the more quickly it softens and the better it tastes when I blend it with sugar!

My colleague Jennifer looked up U.S. Supreme Court cases in our U.S. Reports collection concerning butter and butter substitutes: N.B. the first case in the result list is not about butter, but one of the parties is named Butters.

I looked up the laws and regulations around chocolate.  Chocolate has been a popular topic in our blog over the years both from the historical and regulatory perspectives.  Moreover, there is a running debate in our office about the quality of U.S. versus UK chocolate – and if we are nice to our British colleague Clare, we are sometimes able to conduct taste tests at our desks.  The regulations for chocolate and cocoa appear Title 21 of the CFR part 163.  They include information on the composition of breakfast cocoa, lowfat cocoa, sweet chocolate, milk chocolate and buttermilk chocolate, the last being unfamiliar to me.

As well as laws and regulations governing cookie ingredients, there are state laws that designate certain confections as state cookies.  The first state to do this was New Mexico where I grew up.  In 1989, the New Mexico legislature designated the  biscochito (sometimes called the  bizcochito) as the state cookie.  There is a recipe for this cookie on the New Mexico Secretary of State’s website.  However, I have to confess that I did not make these cookies for work today.  Though I like shortbread style cookies, generally cookies flavored with anise, a licorice taste tend not to be popular.  Instead, I baked the classic chocolate chip cookie–the state cookie of Massachusetts where I was born and always a favorite with the staff at the Law Library.

Homemade chocolate chip cookies / Photograph by Andrew Weber

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