FOOD AND DRUG LAW AS INTELLECTUAL PROPERTY LAW: HTSTORICAL REFLECTIONS.

This Article returns to the turn of the twentieth century to consider food and drug law as intellectual property law. Today, Americans are engaged in two separate debates about food and drugs, one centering on safety and the effectiveness of the Food and Drug Administration, and the other on patent law and questions of equity, pricing, and profits. Arguing both that early food and drug law was influenced by intellectual property concerns and that the separation of intellectual property policy from federal food and drug regulation was neither inevitable nor inconsequential, this Article uses an historical perspective to understand the separation of these debates and to consider the opportunities that arise from considering food and drug law as intellectual property law. Drawing on the history of science, technology, and medicine, this Article reexamines the early pure-food-and-drug movement as, in part, an anti-intellectual-property movement, concentrating on the problems of trade secrets in food and drug markets. It reviews the alliance between medical opponents to proprietary medicines and agricultural opponents to artificial foods that successfully supported early federal food and drug regulation, and the simultaneous failure of a medical campaign against drug patents. By considering the early twentieth-century shift in the drug market from reliance on trade secrets to reliance on patents in relationship to the recent move toward patents in agribusiness, this Article considers the lessons from history for a reunification of food and drug policy with intellectual property policy. [ABSTRACT FROM AUTHOR]