Osgoode Hall Law School of York University Osgoode Digital Commons LLM Theses Theses and Dissertations 8-27-2018 Toxic Enactments: Materializing Estrogen and Regulation Under Canada's Food and Drugs Act, 1939-1953 Lara Jessie Tessaro Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/llm Part of the Legal History Commons TOXIC ENACTMENTS: MATERIALIZING ESTROGEN AND REGULATION UNDER CANADA’S FOOD AND DRUGS ACT, 1939-1953 LARA TESSARO A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS GRADUATE PROGRAM IN LAW OSGOODE HALL LAW SCHOOL, YORK UNIVERSITY TORONTO, ONTARIO August 2018 © Lara Tessaro, 2018 ABSTRACT The study describes how estrogen was standardized in Canada, in the 1940s and early 1950s, under the Food and Drugs Act. Contributing to interdisciplinary conversations, it provides an empirical case of how regulatory practices enact material realities. Using archival material, the study describes how estrogen was achieved, in part, through heterogeneous practices of the Canadian Committee on Pharmacopoeial Standards, National Health, and government solicitors. These regulators disagreed on whether, how, and by whom estrogens should be standardized. Rather than resolve these disagreements, Canada enacted multiple regulations purporting to standardize estrogen, and government solicitors practiced “techniques of validating” to render the regulations as lawful. I argue that these regulatory enactments materialized estrogen as a potent, unpredictable, and multiple object. Further, I show how estrogen spawned novel regulatory techniques in Canada, particularly the use of consumer product labels. In this way, estrogen catalyzed an early example of risk regulation in Canada. ii ACKNOWLEDGEMENTS First and foremost, I acknowledge my co-supervisors, Dr. Dayna Nadine Scott and Dr. Roxanne Mykitiuk, for their guidance, mentorship, care, and many hours of labour. Dayna steered me early on towards STS and historical scholarship that proved important to this project. She has helped me throughout to sharpen and expand my thinking about toxicity and law. However, her mentorship has extended well beyond the thesis. She ensured that I had the chance to try my hand at lecturing and delivering seminars, invited me to participate in academic events, and opened doors at the Law and Society Association conference, giving me useful and direct feedback throughout. In low-key conversations, she helped me to enculturate, sharing insights into academic practices, norms, funding, publishing. Always unapologetically political, Dayna has modelled – in word and deed – what it means to be a feminist scholar. Roxanne mentored with kindness and patience. It has not been easy to shake off lawyerly practices, among others “writing like a lawyer”. Roxanne always attended to the quality of my writing, and I am grateful for her close reading of draft presentations and chapters. In the early days of this project, as I groped towards an argument, she would let me “think aloud” in her office. Being able to ramble through my overexcited and inchoate ideas with Roxanne was such a privilege, and it boosted my confidence after so many years away from academic spaces. Dayna and Roxanne also provided me with valuable opportunities to collaborate with them (and with Dr. Alana Cattapan and Dr. Jennie Haw) on CIHR-funded projects on toxics regulation. Dr. Elaine MacDonald, Margot Venton, and Professor Lynda Collins put much time and energy into supporting my funding applications. Their efforts were crucial. I remain very grateful. I began thinking about endocrine disruption as a staff lawyer at Ecojustice, when scheming up toxics projects with Elaine. In that capacity, I had the fortune of co-supervising Sally MacKinnon and Ian Arnold. I appreciate their efforts to help me start tracing estrogen’s legislative histories. Many people at Osgoode Hall Law School supported me during my LLM program. Dr. Stepan Wood invited me to be a Fellow with Osgoode’s Environmental Justice and Sustainability Clinic and, with Clinic Co-Director David Estrin, gave me opportunities to develop my teaching skills. After Stepan departed for more temperate climes, the new co-directors, Dr. Estair Van Wagner, Dr. Dayna Scott and David Estrin, continued that practice. Dr. Shelley Gavigan gifted me much time and wise counsel, from practical tips on archival research to galvanizing stories that let me glimpse the possibility of academia after practice. Research librarian Sharon Wang fielded innumerous questions. With inspired searches, Professor John Davis located a key regulation hidden in the Canada Gazettes, and gave cheery encouragement. Professors Ruth Buchanan and Cynthia Williams gently reintroduced me to learning in a classroom and granted meaningful accommodations when my mom was hospitalized. Professor Sonia Lawrence, with good humour and remarkable persistence, helped with everything: navigating guidelines, puzzling through ethical questions, pondering copyright, signing so many forms. Staff in the Graduate Program Office, including Heather Moore and Chantel Thompson, provided frequent help. iii At York University, Dr. Miriam Smith and Dr. Kean Birch kindly let me audit their graduate courses in law and social theory, and science and technology studies, respectively. I am grateful to them, and to my classmates in those courses, for helping me learn how to think again. Dr. Jim Phillips and Dr. Philip Girard welcomed me into the Osgoode Hall Legal History Workshop. They provided me with a truly marvelous opportunity to workshop an early version of Chapter Four, and the workshop participants provided generous and insightful suggestions. This project also benefitted from valuable feedback at the Canadian Science and Technology Historical Association’s biennial conference, the Technologies of Justice Conference organized by the University of Ontario Institute of Technology and the Canadian Law and Society Association, and the Institute for History and Philosophy of Science and Technology’s 50th Anniversary Conference. I extend appreciation to the conference organizers and participants. At Library and Archives Canada, archivists and other staff contributed expert and timely assistance. I also thank the talented investigators at the Office of the Information Commissioner. A number of organizations provided generous financial support for this research. I could never have pursed this degree without the support of the Law Foundation of British Columbia Graduate Fellowship, the Honourable William Z. Estey Graduate Fellowship in Law (supported by Osgoode Hall), the Ontario Graduate Scholarship, and the York Graduate Scholarship. Friends and colleagues were willing to engage with my ideas about hormones, cosmetics, law, and history, in brief intense sessions or in ongoing conversations. My thanks to Danielle Allen, Deb Casey, Sandra Ka Hon Chu, Pierre Cloutier de Repentigny, Alexandra Dosman, Julie Falck, Lana Hanna, Megan Howatt, Else Knudsen, Gitanjali Lena, Sylvie Prud’homme, Simon Routh, Risa Schwartz, Tess Sheldon, and Maggie Wente. Shadowy members of The Chemical Castration allowed me to keep in sight the toxic present whilst playing in the hormonal past. In Vancouver, Colleen Fulton, Jason Gratl, Susan Howatt, Susan Pinkus, and Sarah Townsend likewise entertained and refined my ideas – though admittedly they were captive audiences. In housing me at short notice, at various times in the last two years, they made difficult moments much easier. For nourishing me while I invaded your establishments with my Machinetta and books: merci à Le Baratin (what I wrote), the Federal (what I wrote about), and the Wallflower (what I became). For more-than-human companionship while I was writing: Joey, Moses (Mossimo), Taco. Lana, Clarke, Lola, and Emeline Hanna gave me a home away from home, and turned my own wee nest into a much more exciting place. But for the gastroenteritis, I treasured every moment. Gratitude and love to Judy Tessaro, Mark Tessaro, Leslie Summers deLuca, Matilda Tessaro, and Fern Summers. iv TABLE OF CONTENTS Abstract ii Acknowledgments iii Table of Contents v List of Figures vi PART I 1 An introduction 1 Chapter One: History and theory: toxic enactments 10 Section 1: Sex hormones and drug standardization in the 1930s-1940s 11 1.i. Sex hormones on the edge of transformation 11 1.ii. Standardization of biological drugs in the mid-twentieth century 19 Section 2: Theoretical literatures on enactment 27 2.i. Annemarie Mol and the enactment of multiple ontologies 27 2.ii. Enactment and the sociology of standards 35 2.iii. Enactment in interdisciplinary legal studies 37 Chapter Two: Legal history, in theory: historical approach and research methods 43 Section 1: An historical approach – but, to what? 43 Section 2: Research methods – or, how practices enact realities 46 PART II Chapter Three: Delegating standards, assembling regulators: new ways of regulating drugs in Canada at the start of the 1940s 52 Section 1: Delegation and standard-setting under the Food and Drugs Act prior to 1940 55 Section 2: The formation of the Canadian Committee on Pharmacopoeial Standards, 1940-1942 73 Chapter Four: “At some loss as to the precise object you have in mind”: enacting estrogen multiply, 1943-1944 91 Section 1: The Committee attempts to standardize estrogen, 1943 93 1.i. “Canadian Standards should specify methods of assay around which everything seemed to centre”: the Committee meets, January 1943