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To provide an overview of the Commodity Futures Trading Commission’s (the “CFTC” or “Commission”) recent amendments to CFTC Rule 1.31, which sets forth recordkeeping requirements for all records required to be kept pursuant to the Commodity Exchange Act (“CEA”) and Commission regulations.

This article discusses the significant May 2017 amendments to CFTC Rule 1.31 and the practical impact of these amendments for entities subject to the rule’s requirements.

The CFTC’s recordkeeping amendments do not impose any new substantive recordkeeping requirements, but modernize and make technology neutral the form and manner in which regulatory records must be kept. By eliminating a number of prescriptive and outdated requirements, the amendments should provide greater flexibility to “records entities” to adopt new technologies in response to evolving technological developments.

Practical guidance from experienced commodities, futures and derivatives lawyers.

That ice‐creams prepared with dirty materials and under dirty conditions will themselves be dirty is a proposition which, to the merely ordinary mind, appears to be sufficiently obvious without the institution of a series of elaborate and highly “scientific” experiments to attempt to prove it. But, to the mind of the bacteriological medicine‐man, it is by microbic culture alone that anything that is dirty can be scientifically proved to be so. Not long ago, it having been observed that the itinerant vendor of ice‐creams was in the habit of rinsing his glasses, and, some say, of washing himself—although this is doubtful—in a pail of water attached to his barrow, samples of the liquor contained by such pails were duly obtained, and were solemnly submitted to a well‐known bacteriologist for bacteriological examination. After the interval necessary for the carrying out of the bacterial rites required, the eminent expert's report was published, and it may be admitted that after a cautious study of the same the conclusion seems justifiable that the pail waters were dirty, although it may well be doubted that an allegation to this effect, based on the report, would have stood the test of cross‐examination. It is true that our old and valued friend the Bacillus coli communis was reported as present, but his reputation as an awful example and as a producer of evil has been so much damaged that no one but a dangerous bacteriologist would think of hanging a dog—or even an ice‐cream vendor—on the evidence afforded by his presence. A further illustration of bacteriological trop de zèle is afforded by the recent prosecutions of some vendors of ice‐cream, whose commodities were reported to contain “millions of microbes,” including, of course, the in‐evitable and ubiquitous Bacillus coli very “communis.” To institute a prosecution under the Sale of Food and Drugs Act upon the evidence yielded by a bacteriological examination of ice‐cream is a proceeding which is foredoomed, and rightly foredoomed, to failure. The only conceivable ground upon which such a prosecution could be undertaken is the allegation that the “millions of microbes ” make the ice‐cream injurious to health. Inas‐much as not one of these millions can be proved beyond the possibility of doubt to be injurious, in the present state of knowledge; and as millions of microbes exist in everything everywhere, the breakdown of such a case must be a foregone conclusion. Moreover, a glance at the Act will show that, under existing circumstances at any rate, samples cannot be submitted to public analysts for bacteriological examination—with which, in fact, the Act has nothing to do—even if such examinations yielded results upon which it would be possible to found action. In order to prevent the sale of foul and unwholesome or actual disease‐creating ice‐cream, the proper course is to control the premises where such articles are prepared; while, at the same time, the sale of such materials should also be checked by the methods employed under the Public Health Act in dealing with decomposed and polluted articles of food. In this, no doubt, the aid of the public analyst may sometimes be sought as one of the scientific advisers of the authority taking action, but not officially in his capacity as public analyst under the Adulteration Act. And in those cases in which such advice is sought it may be hoped that it will be based, as indeed it can be based, upon something more practical, tangible and certain than the nebulous results of a bacteriological test.

A point repeatedly brought forward for the defence, or at all events for the purpose of mitigating the fine, in adulteration cases, is the statement that defendant's goods have been analysed on former occasions and have been found genuine. As illustrating the slight value of analyses of previous samples may be taken the average laudatory analyses on patent or proprietary foods, drinks, or medicine. The manufacturer calculates—and calculates rightly—that the general public will believe that the published analysis of a particular specimen which had been submitted to the analytical expert by the manufacturer himself, guarantees all the samples on the market to be equally pure. History has repeatedly proved that in 99 cases out of 100 the goods found on the market fall below the quality indicated by the published analyses. Not long ago a case bearing on this matter was tried in court, where samples of cocoa supplied by the wholesale firm were distributed; but, when the retailer tried to sell the bulk of the consignment, he had repeated complaints from his customers that the samples were a very much better article than what he was then supplying. He summoned the wholesale dealer and won his case. But what guarantee have the general public of the quality of any manufacturer's goods—unless the Control System as instituted in Great Britain is accepted and applied ? Inasmuch as any manufacturer who joins the firms under the British Analytical Control thereby undertakes to keep all his samples up to the requisite standard; as his goods thenceforth bear the Control stamp; and as any purchaser can at any time submit a sample bought on the open market to the analytical experts of the British Analytical Control, free of any charge, to ascertain if the sample is up to the published and requisite standard, it is plain that a condition of things is created which not only protects the public from being cheated, but also acts most beneficially for these firms which are not afraid to supply a genuine article. The public are much more willing to buy an absolutely guaranteed article, of which each sample must be kept up to the previous high quality, rather than one which was good while it was being introduced, but as soon as it became well known fell off in quality and continued to live on its reputation alone.

The necessity of standards of purity for certain kinds of agricultural produce being now recognised by the new Adulteration Act—4, (1)—no apology is needed for attempting to bring the application of the principle into actual practice. Some few standards have already been generally adopted, and the legalization of limits relating to many of those substances with which the Adulteration Acts deal would undoubtedly be welcomed.

A pæan of joy and triumph which speaks for itself, and which is a very true indication of how the question of poisonous adulteration is viewed by certain sections of “the trade,” and by certain of the smaller and irresponsible trade organs, has appeared in print. It would seem that the thanks of “the trade” are due to the defendants in the case heard at the Liverpool Police Court for having obtained an official acknowledgment that the use of salicylic acid and of other preservatives, even in large amounts, in wines and suchlike articles, is not only allowable, but is really necessary for the proper keeping of the product. It must have been a charming change in the general proceedings at the Liverpool Court to listen to a “preservatives” case conducted before a magistrate who evidently realises that manufacturers, in these days, in order to make a “decent” profit, have to use the cheapest materials they can buy, and cannot afford to pick and choose; and that they have therefore “been compelled” to put preservatives into their articles so as to prevent their going bad. He was evidently not to be misled by the usual statement that such substances should not be used because they are injurious to health— as though that could be thought to have anything to do with the much more important fact that the public “really want” to have an article supplied to them which is cheap, and yet keeps well. Besides, many doctors and professors were brought forward to prove that they had never known a case of fatal poisoning due to the use of salicylic acid as a preservative. Unfortunately, it is only the big firms that can manage to bring forward such admirable and learned witnesses, and the smaller firms have to suffer persecution by faddists and others who attempt to obtain the public notice by pretending to be solicitous about the public health. Altogether the prosecution did not have a pleasant time, for the magistrate showed his appreciation of the evidence of one of the witnesses by humorously rallying him about his experiments with kittens, as though any‐one could presume to judge from experiments on brute beasts what would be the effect on human beings—the “lords of creation.” Everyone reading the evidence will be struck by the fact that the defendant stated that he had once tried to brew without preservatives, but with the only result that the entire lot “went bad.” All manufacturers of his own type will sympathise with him, since, of course, there is no practicable way of getting over this trouble except by the use of preservatives; although the above‐mentioned faddists are so unkind as to state that if everything is clean the article will keep. But this must surely be sheer theory, for it cannot be supposed that there can be any manufacturer of this class of article who would be foolish enough to think he could run his business at a profit, and yet go to all the expense of having the returned empties washed out before refilling, and of paying the heavy price asked for the best crude materials, when he has to compete with rival firms, who can use practically anything, and yet turn out an article equal in every way from a selling point of view, and one that will keep sufficiently, by the simple (and cheap) expedient of throwing theory on one side, and by pinning their faith to a preservative which has now received the approval of a magistrate. Manufacturers who use preservatives, whether they are makers of wines or are dairymen, and all similar tradesmen, should join together to protect their interests, for, as they must all admit, “the welfare of the trade” is the chief thing they have to consider, and any other interest must come second, if it is to come in at all. Now is the time for action, for the Commission appointed to inquire into the use of preservatives in foods has not yet given its decision, and there is still time for a properly‐conducted campaign, backed up by those “influential members of the trade” of whom we hear so much, and aided by such far‐reaching and brilliant magisterial decisions, to force these opinions prominently forward, in spite of the prejudice of the public; and to insure to the trades interested the unfettered use of preservatives,—which save “the trade” hundreds of thousands of pounds every year, by enabling the manufacturers to dispense with heavily‐priced apparatus, with extra workmen and with the use of expensive materials,—and which are urgently asked for by the public,—since we all prefer to have our foods drugged than to have them pure.

The food standards of the Indiana State Board of Health, which appear on another page, show that it is quite possible to lay down official definitions of various articles of food; and a study of these regulations may be of assistance to those authorities who are striving to arrive at some form of order out of the chaos which at present exists in this country in matters relating to food standards. With reference to milk, it will be seen that not only is the question of composition dealt with, but strict directions are given that milk derived from a cow which can in any way be considered as diseased is regarded as impure, and must therefore, says the Board, be considered as adulterated. In regard to butter and margarine, limits are given for the total amount of fat—which must consist entirely of milk‐fat in the case of the former substance—water, and salt; and not only are all preservatives forbidden, but the colouring matters are restricted, only certain vegetable colouring matters and some few coal‐tar colours being permitted. All cheese containing less than 10 per cent, of fat derived from milk must be plainly labelled as “ skim‐milk cheese”; and if it contains fat other than milk‐fat, it must be described as “ filled cheese.” Some exception is taken to the use of preservatives in cheese, inasmuch as it appears that cheese may contain a preservative if the name of such preservative is duly notified upon the label ; and the rules for the colouring of cheese are the same as those which apply to butter and margarine. All articles of food containing preservatives are considered as adulterated unless the package bears a label, printed in plain type and quite visible to the purchaser, stating that a preservative is present, and also giving the name of the preservative which has been used. Articles of confectionery must not contain any ingredient deleterious to health, such as terra alba, barytes, talc, or other mineral substance, nor may they contain poisonous colours or flavours.

The statements which have recently been made in various quarters to the effect that Danish butter is losing its hold on the English market, that its quality is deteriorating, and that the sale is falling off, are not a little astonishing in face of the very strong and direct evidence to the contrary furnished by the official records. As an example of the kind of assertions here alluded to may be instanced an opinion expressed by a correspondent of the British Food Journal, who, in a letter printed in the March number, stated that “My own opinion is that the Danes are steadily losing their good name for quality, owing to not using preservatives and to their new fad of pasteurising… .”

An appeal under the Food and Drugs Acts, reported in the present number of the BRITISH FOOD JOURNAL, is an apt illustration of the old saying, that a little knowledge is a dangerous thing. In commenting upon the case in question, the Pall Mall Gazette says: “The impression among the great unlearned that the watering of the morning's milk is a great joke is ineradicable; and there is also a common opinion among the Justice Shallows of the provincial bench that the grocer who tricks his customers into buying coffee which is 97 per cent. chicory is a clever practitioner, who ought to be allowed to make his way in the world untrammelled by legal obstructions. But the Queen's Bench have rapped the East Ham magistrates over the knuckles for convicting without fining a milkman who was prosecuted by the local authority, and the case has been sent back in order that these easygoing gentlemen may give logical effect to their convictions.”

Some misconception appears to have arisen in respect to the meaning of Section 11 of the Food and Drugs Act, 1899, owing, doubtless, to the faulty punctuation of certain copies of the Act, and the Sanitary Record has done good service by calling attention to the matter. The trouble has clearly been caused by the insertion of a comma after the word “condensed” in certain copies of the Act, and the non‐insertion of this comma in other copies. The words of the section, as printed by the Sanitary Record, are as follows: “Every tin or other receptacle containing condensed, separated or skimmed milk must bear a label clearly visible to the purchaser on which the words ‘Machine‐skimmed Milk,’ or ‘Skimmed Milk,’ as the case may require, are printed in large and legible type.”

As yet there are no indications that the President of the Local Government Board intends to give the force of law to the recommendations submitted to him by the Departmental Committee appointed by the Board to inquire into the use of preservatives and colouring matters in food. It is earnestly to be hoped that at least some of the recommendations of the Committee will become law. It is in the highest degree objectionable that when a Committee of the kind has been appointed, and has carried out a long and difficult investigation, the recommendations which it finally makes should be treated with indifference and should not be acted upon. If effect should not be given to the views arrived at after the careful consideration given to the whole subject by the Committee, a very heavy responsibility would rest upon the Authorities, and it cannot but be admitted that the Committee ought never to have been appointed if it was not originally intended that its recommendations should be made legally effective. Every sensible person who takes the trouble to study the evidence and the report must come to the conclusion that the enforcement of the recommendations is urgently required upon health considerations alone, and must see that a long‐suffering public is entitled to receive rather more protection than the existing legal enactments can afford. To refrain from legalising the principal recommendations in the face of such evidence and of such a report would almost amount to criminal negligence and folly. We are well aware that the subject is not one that is easily “understanded of the people,” and that the complicated ignorance of various noisy persons who imagine that they have a right to hold opinions upon it is one of the stumbling blocks in the way of reform; but we believe that this ignorance is confined, in the main, to irresponsible individuals, and that the Government Authorities concerned are not going to provide the public with a painful exhibition of incapacity and inaction in connection with the matter. There is some satisfaction in knowing that although the recommendations have not yet passed into law, they can be used with powerful effect in any prosecutions for the offence of food‐drugging which the more enlightened Local Authorities may be willing to institute, since it can no longer be alleged that the question of preservatives is still “under the consideration” of the Departmental Committee, and since it cannot be contended that the recommendations made leave any room for doubt as to the Committee's conclusions.