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Need to read - History of the FDA
 

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Need to read - History of the FDA


Want to know how long the FDA has been corrupt? And how corrupt it's always been? This is a MUST READ!

Starting at the bottom (FDA History 10) = US Supreme Court Decision: Coca-Cola is an Adulterated, Misbranded Food

FDA History Intro.
FDA History 01
FDA History 02
FDA History 03
FDA History 04
FDA History 05
FDA History 06
FDA History 07
FDA History 08
FDA History 09
FDA History 10

HISTORY OF A CRIME AGAINST THE FOOD LAW
by Harvey W. Wiley, M.D., the very first commissioner of the Food and Drug Administration (FDA), then known as the “US Bureau of Chemistry.”

INTRODUCTION
I suppose after the manner of those who steal the titles of other authors an
apology should be made to Victor Hugo. The crime that he described was one
purely political. It told the story of Louis Napoleon, who, having been elected
President of the French Republic in 1848, following the model of his illustrious
uncle, became Emperor of the French nation in 1852. Victor Hugo was one of the
leaders against this movement and naturally became a persona non grata at Paris.
With hundreds of others who had opposed this coup d'état he sought safety in
Brussels. He arrived there on the 14th day of December, 1852, and began his
"History of a Crime" on that very day. It was completed by May 5, 1853. He did
not publish it for twenty-five years afterward.
It has been only twenty-one years since the crime about to be described was
committed. Perhaps it would be the part of wisdom if its history, still
unpublished, be withheld for another six years. The everthreatening thought of
Anno Domini warns that it is not likely that I may still be on this planet after
the lapse of six years. This fact should absolve me from any blame for a
somewhat premature publication. The theft of his title is not likely to disturb
the ashes of Victor Hugo in the Pantheon, to which they were committed by five
hundred thousand of his fellow citizens in the summer of 1885, three months
after his eighty-third birthday.
Presumably a similar lese majesté might be charged against the author of this
story. Probably the truths which are told in the following pages, and a
Government less violently set up than that of Napoleon III, will be a safeguard
against expatriation. It is advisable and even desirable, while the memories of
this crime are still fresh, to set down in simple language a recital thereof.
There are many embarrassments in connection with writing a story of this kind
which usually would deter or prevent the completion of the work. Many of the
authors and participators in this crime have already joined the great majority
and entered upon the Great Adventure. I am not unmindful of the excellent adage,
nil de mortuis nisi bonum. I will not impute any base motives to those who are
no longer here to defend themselves. It is far better to take the safe course.
That is to assume that the crimes committed against the Food and Drugs Act were
due to errors of judgment and not to any set purpose to destroy the salutary
provisions of this law. While in the recital of these crimes, in spite of a
purpose to the contrary, there may be found at times language which would
indicate that the actors were not simply ignorant, it must be attributed to. the
zeal for proper enforcement of the food law which leads to a recital of these
facts, rather than to a purpose of. misjudging the motives of the actors
themselves.
Twenty years have passed since these offenses against the law began. There
are two reasons why I have waited so long before setting down in order this
history. The principal one is that my time was all consumed with my efforts
toward improving the nutrition, and consequently the health of the nation. The
need of better nutrition is shown in an address opposing the repeal of the mixed
flour law quoted further on. This was an indictment of the severest kind of the
methods of up-bringing our youth. The deplorable condition of our young men was
vividly shown in the Great War. Fully one-third of those called to the colors
were found to be physically and mentally unfit to serve their country in its
hour of need. Another third could only attend to camp and hospital tasks. Only
one-third could go into. the trenches and serve their country on the field of
battle.
It was a matter of supreme importance to endeavor in all honorable ways to
remove the possibility of a similar stigma which might arise from any future
crises of the republic. To instruct young persons to be parents, to teach them
how to bring up their children after they are born, and to eliminate such a
percentage of unfit are problems which require careful study. Having now reached
the age of eighty-four, I am forcibly reminded that if this history of a crime
is ever to be written it must be done now, without undue delay.
The second reason which has made, me hesitate is because of my high personal
regard for those who are not shown as wholly devoted to the public service in
the lapses of their conduct respecting the food and drugs legislation. It is
always painful to say anything which could even be construed as derogatory to
those who have been one's friends.
STATEMENT OF THE CASE
It is the practice in criminal proceedings before the courts for the opposing
counsel to lay before the court and the jury an outline of the points he expects
to prove and the nature of the evidence which it is proposed to offer. It is
advisable to set down briefly the important points in this history. First of all
will be a recital of the efforts made over a period of twenty-five years to
secure a national food. and drugs act. Attention is called to the indifference
of the people at large in regard to the character of the foods and drugs which
they used, and the efforts that were made to overcome this attitude. It was soon
found that individual activities were practically useless in securing national
legislation. Only mass action could produce any progressive results. The
organized bodies of men and women who gradually became interested in this
legislation will be pointed out. At the same time the character of the lobbies
formed efficiently to block national legislation will be described. Particular
attention will be called to the dominant features which always characterized
this proposed legislation. There was very little discussion of the question of
misbranding. The chief points discussed were the results of adding to our food
products preservative substances to keep them from decay, and coloring matters
which made them look more attractive and fresh. Brief citations from the
evidence before the various committees in the House and the Senate will
illustrate the magnitude of the struggle which finally resulted in the approval
of the Food and Drugs Act on June 30, 1906.

PROLOGUE
"Remember how long thou hast already put off these things, and how often a
certaine day and houre as it were, having been set unto thee by the gods, thou
hast neglected it. It is high time for thee to understand the true nature both
of the world, whereof thou art a part; and of that Lord and Governour of the
World, from whom, as a channell from the spring, thou thy selfe didst flow: And
that there is but a certaine limit, of time appointed unto thee, which if thou
shalt not make use of to calme and alay the many distempers of thy soule, it
will passe away and thou with it, and never after returne."
--From The Golden Book of Marcus Aurelius, published by J. M. Dent & Co.,
Aldine House, London, W. C., Page 16.
"Bare tabulation will not do; simple enumeration is plainly insufficient.
There must be a hint of perspective. The historian must select, and in the
awkward process of selection he becomes an artist. One seems to see the
historian at this uncomfortable stage desert the laboratory and furtively
approach the studio. And why not? There is no need for him to blush when we
detect him in the questionable company of artists. For history is an art as
well,--the art of representing past events through facts of scientific accuracy.
If the facts are inaccurate, it is not history. But if they are not embodied in
a picture of a living past, it is not history either. For a smear on a palet is
not a picture. So the historian, when his work among the test-tubes of research
is done, must turn artist, abandoning his overalls for the velvet jacket. If he
can not, so much the less historian he.
"It is so easy for the historian to forget his duty in the multiplicity of
his business. To put it crudely, he is asked to raise the dead, to bring the
past to life, to give a continuous performance of the miracle of Endor. He must
achieve this feat with a restricted armory. For he is not allowed the novelist's
liberty of invention. His incantations are strictly limited to the ascertained
facts, and with their aid alone he is expected to evoke the past. We ask of the
historian a great tapestry, crowded with figures, filled with shifting lights
and crowds and landscapes; and we insist sternly (though with perfect propriety)
that he shall use no single thread for his weaving that can not be vouched for
as to its color, length, and weight by reference to his unvarying authorities,
the scientific facts. "
--From "The Missing Muse," by Philip Guedalla, in The Forum for November,
1927, Page 666.

HISTORY OF A CRIME AGAINST THE FOOD LAW
CHAPTER I: THE FIGHT FOR THE FOOD AND DRUGS LAW
by Harvey W. Wiley, M.D., the very first commissioner of the Food and Drug Administration (FDA), then known as the “US Bureau of Chemistry.”

It would be impossible and perhaps unnecessary to survey the whole field of
effort which led to the enactment of the Food and Drugs Law. It will be
sufficient to take the last of the hearings as typical of all those that had
gone before. If the Latin motto is true, "ex pede, Herculem," we can judge the
whole of this opposition by its last expiring effort, just as we can recreate
Hercules if we have a. part of his big toe.

The final hearings were before the committee on Interstate and Foreign
Commerce, beginning on Tuesday, Feb. 13, 1906. This was just before the time the
bill was completed in the Senate and after an agreement had been made to vote on
it the 21st of February. These hearings are printed in a volume containing 408
pages. Pages 1 to 40 are taken up with testimony that benzoate of soda is a
perfectly harmless substance. These witnesses were made up of both manufacturers
and experts. The experts were Dr. Edward Kremers, of the University of
Wisconsin, Professor Frank S. Kedzie of the Agricultural College of Michigan,
and Dr. Victor C. Vaughan, Dean of the College of Medicine of the University of
Michigan. The manufacturers who testified in this case unanimously said that the
business of keeping food could not be carried on without the use of some
preservative and that eminent scientific men had declared that benzoate of soda,
borax, etc., in the proportions used were entirely harmless. Ex-Senator William
S. Mason was also before the committee in the interest of a bill prepared by Mr.
Meyers, editor of the American Food Journal, ostensibly offered by food
manufacturers. This was a publication devoted to the propaganda of rectified
whisky.

EXCERPTS FROM FINAL HEARINGS
Although food bills of various kinds had been continually before Congress for
a quarter of a century, the character of the opposition thereto had not changed.
The excerpts here given are typical of the whole struggle.
Inasmuch as this closing testimony was the final effort to block the passage
of the food law, it is summarized at some length. Testimony of Walter H.
Williams, President of the Walter H. Williams Company, of Detroit, Michigan.
(Page 19 of the hearings.)
In the most palatable foods that we can find there are traces of benzoic
acid, and it seems to me if the Almighty put it there, the manufacturer ought to
be allowed to use it, if he don't use it in the same quantities as put in the
fruit by nature. * * *
We went to three men, each of them connected with one of the largest
universities in the United States, men who stand at the very top of their class
in the chemical and physiological world.
MR. TOWNSEND: Who were they?
MR. WILLIAMS: Dr. Victor Vaughan, who is dean of medicine and physiology at
the University of Michigan, a man whom I do not believe any one can speak too
highly of, a man right at the top of his profession. Another gentleman, Dr.
Kremers, dean of chemistry of the University of Wisconsin. Another man who has
given the subject the very closest attention is Dr. Frank Kedzie of the Michigan
Agricultural College. * * *
MR. TOWNSEND: Do you know of any manufacturer of these goods who does not use
some form of preservative?
MR. WILLIAMS: I do not.
MR. TOWNSEND: As a manufacturer, do you know of any way to manufacture these
goods and keep them as they have to be kept for sale, without a preservative?
MR. WILLIAMS: I do not.
MR. BURKE: Have you had any trouble in any of the states by reason of the
state laws interfering with your using this preservative?
MR. WILLIAMS: Our firm has not. We have been told that as soon as this
committee gets through with the hearings on this subject there is going to be
trouble in Pennsylvania. That is all we know about it.
MR. RICHARDSON: How? What troubles? In what way?
MR. WILLIAMS: We understand that the use of benzoic acid will be condemned,
and we also know that as soon as this bill becomes a law, if it ever becomes a
law, it will be condemned by the Bureau of Chemistry. * * * Now, the only point
is--and all I wish to bring out now--that I don't think this committee ought to
recommend any legislation that will give one man the absolute power to say what
the manufacturers of this country shall do and what they shall not do. There is
a difference of opinion as to what is injurious and what is not injurious. We
can show that the best scientific thought in this country will differ with the
present Bureau of Chemistry. Now, gentlemen, do not understand for a moment that
I am attacking Dr. Wiley or the Bureau of Chemistry or the Department of
Agriculture. I am simply pointing out, or trying to point out, the principle of
this bill. The principle is wrong. It is not fair; and I think before you allow
anyone to condemn any preservative about which there is a question that you
ought to investigate the subject fully by a committee of scientists--the best
that we can find-appointed by the President or by Congress.
In this connection it is interesting to know that the bill subsequently
passed by the House of Representatives contained, a clause, with my full
approval, and written by myself, in which such a committee was recognized. Its
composition was one eminent chemist, one eminent physiologist, one eminent
pharmacist, one eminent bacteriologist, and one eminent pharmacologist. In view
of the attitude which the Secretary of Agriculture held toward me at that time I
was very certain that he would consult me in regard to the personnel of this
committee which was to be appointed by him, and that not only eminent, but
fair-minded members would be appointed on this committee. When the bill went to
conference with the Senate bill the conferees on the part of the Senate would
not consent to encumbering the bill with an additional authority paramount to
that of the Bureau of Chemistry. The Senate conferees contended that the whole
matter of wholesomeness and unwholesomeness of ingredients in foods would go
before the Federal Courts for final determination. The House conferees yielded
on this point and the food bill was passed without the nucleus of the Remsen
Board. This view of Mr. Williams was shared by practically all the objecting
witnesses, both scientific and legal, as well as all of those interested in
commercial matters throughout the whole course of the discussion of the various
food bills before the committees of Congress. It was also voiced on the floors
of both the Senate and the House. In spite of all this publicity and opposition
the Congress. of the United States conferred upon the Bureau of Chemistry the
sole function of acting as a grand jury in bringing indictments against
offenders or supposed offenders of the law. The Congress specifically provided
that all these indictments should have a fair, free and open trial before the
Federal Courts for the purpose of confirming or denying the acts of, the Bureau
of Chemistry.
TESTIMONY OF PROFESSOR KREMERS
Professor Kremers at the close of his testimony before the Interstate and
Foreign Commerce Committee disclosed the fact that Mr. Williams was the party
who secured the participation of Professors Kremers, Kedzie and Vaughan in this
hearing. I quote from page 39:
MR. KREMERS: I would like to state just what I have been invited to do. I
have been asked as a plant chemist, for that is my specialty in chemistry, to
find out what could be learned about the occurrence of benzoic acid in the
vegetable kingdom, and also to find out what the best literature, the
physiological and therapeutic literature on the subject, has to say with regard
to the administration of benzoic acid to the human system and with regard to the
course that it took in the human system. That is the extent of my knowledge on
this particular subject. I have not gone outside of that.
THE CHAIRMAN: Is there an employment in connection with this matter by you I?
MR. KREMERS: I was employed; yes, sir.
THE CHAIRMAN: By whom?
MR. KREMERS: By Mr. Grosvenor.
THE CHAIRMAN: What Mr. Grosvenor?
MR. KREMERS: Mr. Grosvenor of Detroit. Mr. Elliott O. Grosvenor.
THE CHAIRMAN: Was there a compensation fixed?
MR. KREMERS Yes, sir.
THE CHAIRMAN: Do you have any objection to stating it?
MR. KREMERS: No.
Mr. Kremers in detail stated in the testimony the amount he was to receive
for the work and the amount he was to receive in reporting the results of his
work to the committee. In his testimony, which I was asked to summarize by the
Committee on Interstate and Foreign Commerce, Mr. Kremers gave the results of
his many investigations into natural food products in which he found traces of
benzoic acid and related bodies. I quote from his testimony, page 33:
MR. KREMERS: Gentlemen, I don't want to take up more of your valuable time
unless you desire to ask some questions of me, for I fear I may not have made
myself perfectly clear. I will admit that I am accustomed to talking technically
on technical subjects, and that I am not an expert in the popularization of
scientific subjects. I trust you will pardon my shortcomings in this respect.
But briefly let me summarize the facts I have tried to make clear to you.
Benzoic acid is found in the vegetable kingdom; it is fairly widely distributed
in the vegetable kingdom. We find it among others in the products of the
vegetable kingdom which we use for food purposes. We find it even more widely in
food products which are used by herbivorous animals. In addition to benzoic
acid, we find closely related compounds, namely, benzaldehyde, commonly known as
bitter-almond oil, cinnamic aldehyde and quinic acid.
I have tried to make plain the fact that benzoic acid is formed in the human
system and that the amount of hippuric acid eliminated from the system is
increased whether we administer benzoic acid as such or whether we add it
through certain food products; in other words, that benzoic acid is a natural
product of the human economy.
Finally, I have tried to make clear to you, gentlemen, that whether it seems
desirable to you or not to prohibit the use of benzoic acid from any artificial
source rather than the natural source, and there is no bitter-almond oil which,
after it is a day old, but that contains some benzoic acid,--that benzoic acid
directly or indirectly will be administered to the system through the
bitter-almond flavor, as I have explained.
MR. TOWNSEND: You are not a physiologist, are you?
MR. KREMERS: I am not.
MR. TOWNSEND: Are you able to answer as to whether benzoic acid has an
injurious effect upon the body?
MR. KREMERS: I told you that I am not a physiologist, but I have prepared
myself for a question of that sort, because it occurred to me that it would be a
natural question for you to ask. I have here, in order that I might not be
compelled to rely entirely upon my memory, a copy of the National Dispensatory,
one of the standard commentaries on the United States Pharmacopoeia, a statement
concerning the physiological action of benzoic acid. This statement is written
by Professor Hare, one of the most prominent writers in this country on
therapeutic subjects (Reads) :
"Ordinary doses cause a sense of warmth over the entire body, which feeling
increases with the amount ingested, large quantities causing severe burning
pain, etc. The drug increases the acidity of the urine as it is eliminated by
the kidneys as hippuric acid."
Now, lest the statement might be misunderstood, let us read the last
paragraph; but it will be apparent to you that Mr. Hare does not speak of
benzoic acid here in quantities such as have been under consideration before
you, but in totally different amounts.
"It may be given with benefit in certain diseases due to alkalinity.
Benzoic acid is given in the dose of from ten to thirty grains.
Those amounts may be administered by a medical man, and they are very much
larger than any amount that is necessary to bring about the preservative action.
MR. TOWNSEND: Does any antiseptic that is taken into the system interfere
with digestion?
MR. KREMERS: I dare say it does.
MR. TOWNSEND: In that respect it is injurious?
MR. KREMERS: Not necessarily.
I thought it would be better for me to quote the summary that Mr. Kremers
himself made of his testimony rather than to attempt any condensation of it
myself. I may add here for the further information of the reader of this story
that Dr. W. D. Bigelow, my first assistant in the Bureau of Chemistry, repeated
many of the investigations reported by Mr. Kremers, as to the wide distribution
of benzoic acid in food products, and failed to confirm them.
PROFESSOR KEDZIE'S TESTIMONY
Dr. Kedzie testified that he is the son of Professor Kedzie, the
distinguished chemist of the Michigan Agricultural College. He was associated
with his father as professor of chemistry at that institution, that he undertook
these investigations under the same auspices and practically for the same
remuneration as was given to Professor Kremers and Professor Vaughan. I quote
from page 58:
MR. KEDZIE: I took up this matter of finding where benzoic acid was
distributed among materials which I could purchase in the market. I will read
these articles in about the order in which I found the greatest quantity of
benzoic acid: cranberries, huckleberries, plums, grapes (the Malaga grape),
grapefruit, oranges, pineapples, carrots, parsnips, cauliflower, rhubarb, and
green peppers. The amount of benzoic acid which I found present in cranberries,
taking the dry material, we find the dried substance of the cranberry contains
about, on the average, 1/2 of 1% of benzoic acid, but when we calculate it as to
the wet substance, it then falls to 5/100 of 1% on account of the water present,
or, to put it differently, it is one part in two thousand. * * * In analyzing
the sample of catsup in the Michigan market I have found that the amount of
benzoic acid varies from one part in twelve hundred to one part in two thousand.
These are the first class goods, such as Heinz sells in Michigan, and also sold
by Curtice Brothers.
THE CHAIRMAN: Do you find any benzoic acid in catsup made by Heinz?
MR. KEDZIE: Yes, sir; when it is sold in Michigan we do.
MR. MANN: Do you find it labeled that way?
MR. KEDZIE: The Michigan law requires that it shall be labeled with the
preservative used.
MR. MANN: Was it so labeled?
MR. KEDZIE: I believe that it was, but I am not absolutely certain. Living at
the capital, I would expect that the law would be complied with. The
commissioner's office is right where I live.
MR. MANN: I have been told that it never had been done, and wondered whether
it had or not.
MR. KEDZIE: I am sorry that I can not be absolutely certain in regard to
that.
MR. WAGNER: How recently have you examined Heinz's goods?
MR. KEDZIE: I collected a sample about three weeks ago, and I inquired
particularly in getting the bottle, whether it had been long in stock, and was
told that it had just been received about two or three days before.
MR. MANN: Have you a memorandum showing the percentage of benzoic acid in
these other fruits?
MR. KEDZIE: I made a thorough test of each one and I am prepared to say that
in the grapefruit and the pineapple the amount of benzoic acid present there
will not probably be far from 1/100 to 2/100 of 1 per cent in the fresh fruit.
MR. MANN: Did you ascertain in each of these fruits just how much benzoic
acid was there?
MR. KEDZIE: Only in the cranberries, and that I did over and over again. * *
*
THE CHAIRMAN (Mr. Hepburn): What would be the effect of a large dose of
benzoic acid upon the human stomach?
MR. KEDZIE: Well, now, Mr. Chairman, I am not a physiological chemist. My
work is analytical and what I know about that question is not much. I never took
a large dose of benzoic acid-that is, a large dose, of course, would be 60 or
100 grains or more. I never took it and know nothing about it. I am not a doctor
of medicine.
THE CHAIRMAN: From your knowledge of the properties and qualities of the
acid, what would be the probable effect of benzoic acid upon the human stomach?
MR. KEDZIE: I should expect that if it were taken in very large doses up to
100 grains that it would have an inflammatory action on the stomach.
THE CHAIRMAN: It would be an irritant?
MR. KEDZIE: It would be irritating; yes, sir.
THE CHAIRMAN: You regard it when used as a preservative, in the proportions
that were spoken of by Mr. Williams yesterday, as entirely harmless, do you?
MR. KEDZIE: That is my opinion; yes.
Perhaps the wisest comment I can make upon the testimony of these experts is
that they were honestly of the opinion that because some of these preservatives
were found in natural food products it was perfectly proper to imitate nature
and increase these amounts. The weakness of this argument is so apparent that
only a few of the causes of the fallacy need be mentioned. Hydrocyanic acid,
perhaps one of the most poisonous organic acids known, exists in minute traces
in the fruit of peaches and plums, associated often with benzaldehyde, a
flavoring agent. It exists in some varieties of cassava in such proportions that
fatal effects have resulted from eating the cassava starch. Salicylic acid is
present in a flavoring product known as oil of wintergreen and may exist, in
traces, also in other food products. Passing from the ranks of organic poisons,
arsenic is a widely distributed poisonous material which is often found in our
foods, due to absorption from the soil. The presence of these bodies, instead of
being a warrant for using more of them, points to the necessity of reducing
their quantity to the minimal amount possible.
Another point in this connection is worthy of mention. These experts were
paid for the work they did and for the expense of laying it before the
committee. I mention this without even a suspicion of criticism. I think payment
of this kind is perfectly ethical and proper. On the other hand, during the
twenty-five years in which food bills of various kinds were discussed before
committees of Congress, not a single expert appeared before these committees
urging the enactment of the good sort thereof who received any compensation
whatever for his services. Probably officials of the various states who appeared
frequently before committees of Congress to urge the passage of these bills had
their expenses paid by their respective states, but received -no other
compensation. In the twenty-five years of active opposition to the use of
preservatives it never occurred to me to think of any compensation save that of
my regular salary.
SUMMARY OF THE TESTIMONY OF VICTOR C. VAUGHAN
MR. VAUGHAN: I am thoroughly desirous that something should be done to
regulate the use of preservatives in foods.
MR. BURKE: Where would you draw the line? Where would you fix the point
beyond which it would be dangerous to go in the use of benzoic acid, as to
quantity?
MR. VAUGHAN: That brings up a very interesting point. * * * It seems to me
that that ought to be settled by a commission of experts, as to what
preservatives could be used and in what amounts they could be used, and in what
foods they might be used.
MR. STEVENS: In other words, you want a board or bureau of standards?
MR. VAUGHAN: I think so.
MR. BURKE: Have you not an opinion of your own in regard to the matter?
MR. VAUGHAN: Yes; I have an opinion of my own, but that opinion might be
changed by further study of the subject. I am sure that benzoic, acid in the
quantities in which it is used in tomato catsup, sweet pickles, etc., does not
do any harm. I should be opposed to the use of formaldehyde in milk in any
quantity, or the use of any other preservatives in milk. I have testified
repeatedly against the use of sulphite of soda on Hamburger steak. I am
thoroughly in sympathy with the Hepburn bill. It does seem to me, however, that
it is the part of wisdom not to say that preservatives shall not be used at all,
but to find out what foods need preservatives, and in what quantities they might
be used with safety.
MR. BURKE: Is not formaldehyde used very generally now in preserving cream
and milk?
MR. VAUGHAN: I do not think it is used generally. It is used to some extent.
MR. BURKE: Where cream is gathered up and shipped some distance to a creamery
they use some preservatives, and usually formaldehyde, do they not?
MR. VAUGHAN: I do not know. I have not found much formaldehyde in cream.
Borax is used some, and one-half of one per cent of boric acid is used.
Formaldehyde is used to some extent.
MR. MANN: Do you understand that the Hepburn bill absolutely forbids the use
of preservatives?
MR. VAUGHAN: No, Sir; but I find that it puts into the hands of one man, or
of one Department, at least, the question of deciding as to the harmfulness of
preservatives.
MR, MANN: You say in the hands of one man or of one Department. Eventually it
must be put into the hands of somebody to decide the question, in your opinion,
I take it?
MR. VAUGHAN: Certainly, certainly.
MR. TOWNSEND: Right there I want to ask you this question; as I understand,
some experiments have been made with benzoic acid to determine whether it is
harmful or not, by giving doses of pure benzoic acid to patients. What have you
to say in regard to that method of determining the safety of benzoic
acid--whether it is harmful or otherwise?
MR. VAUGHAN: The experiments upon benzoic acid, I understand, have been
finished by Dr. Wiley, but there is no report on them up to the present time.
Dr. Wiley has made a report on boric acid as to preservatives, and while I am a
personal friend of Dr. Wiley's, appreciate him very highly and think greatly of
him, his experiments have shown that boric acid in large amounts disturbs
digestion and interrupts good health, but they have not shown that boric acid in
the small quantities which would be used as a preservative, if used at all, has
any effect on the animal body.
MR. ADAMS: About what do you mean by "small quantities"?.
MR. VAUGHAN: I mean one-half of one per cent.
Dr. Vaughan then engaged in a somewhat animated discussion with members of
the committee in regard to what kind of board should be provided for in the law
to decide all these questions. At the end of this discussion the following
questions were asked:
MR. BURKE: When benzoic acid is taken in excessive quantities what is the
effect?
MR. VAUGHAN: In large quantities it irritates the stomach. In very large
quantities it causes acute inflammation of the mucous membranes of the stomach,
nausea, and vomiting.
The maximum medical dose of benzoic acid is about ten grams, or one hundred
fifty grains, and larger amounts are likely to cause inflammation of the
stomach.
MR. MANN: How much benzoic acid could one eat, day after day, year after
year, without injury?
MR. VAUGHAN: I could not answer that.
MR. MANN: Have you any idea about it? How much can you eat wholesomely
without injury?
MR. VAUGHAN: I should say certainly that the amount that is found in your own
body, which is from one to ten grains a day.
MR. MANN: That is formed in addition to your own body. I asked how, much can
you eat?
MR. VAUGHAN: I would have to answer only in a general way and say a grain or
two, I am sure, taken day by day for one's life, would not do any harm.
MR. MANN: Do you mean one grain or two grains?
MR. VAUGHAN: One grain.
MR. MANN: Would two grains do any harm?
MR. VAUGHAN: Well, I do not know. I would not like to set up my dictum. I do
not know enough about it.
MR. MANN: I appreciate your position, Doctor; but still, as far as you can,
we would like to have your opinion.
MR. VAUGHAN: Well, I should say one grain would be perfectly safe. I do not
know whether two grains would be or not.
It is not at all surprising that at the end of this examination by Mr. Mann,
Dr. Vaughan had put himself in a most ticklish position. He was arguing for some
amendment to the bill which would permit the use of benzoic acid in food
products, but he, was under the impression that even one grain a day for every
day would be safe, but by eating two grains a day for all one's life it might
not be safe. As two grains a day is a most minute quantity of benzoic acid, a
quantity which would be exceeded if benzoic acid were used in foods in general,
it is evident that such a course of reasoning could have little effect upon a
deliberative body.
TESTIMONY OF DR. ECCLES
The most spectacular of the witnesses who appeared against the bill was Dr.
Eccles of Brooklyn. Dr. Eccles describes himself as a physician residing in
Brooklyn and he appears at the invitation of the National Food Manufacturers'
Association. There was evidently a period approaching when some kind of food law
would be enacted. To protect the manufacturers a bill was introduced by Mr.
Rodenberg, of Illinois. Mr. Lannen, a lawyer in the interest of this measure,
who had been actively opposed to the pending bill, was also present at the
hearing. Dr. Eccles stressed the fact that instead of trying to prevent the
addition of preservatives to foods their use ought to be encouraged. Quoting
(from page 131):
MR. RICHARDSON: Is vinegar deleterious?
DR. ECCLES: No, Sir; I do not think anything is. I would compel them to use
substances less deleterious than vinegar. I would not let them go below vinegar.
I would allow them to use substances the dose of which is smaller than a dose of
acetic acid or vinegar. Substances of larger doses than vinegar I would allow
them to put in a certain fraction of the dose, and I would make the fraction the
same for every substance, with no exception. I would have those gentlemen fixing
the Pharmacopoeia say that no substance could be used that is stronger than the
acid of vinegar under any circumstances. * * * In other places, where the
preservatives have been stopped, the death rate has risen. Two notable
illustrations have occurred lately--exceedingly notable. In North Dakota, the
state of pure food--Senator McCumber's state--they tried the experiment. In
Germany, particularly in Berlin, in the same year they tried the experiment.
These two places were put up as tests. I predicted that the death rate in both
those places would rise fifty per cent in that year. Now, what are the official
figures? The official figures given by the Board of Health of the State of North
Dakota and the :figures of the German Government in their own publications show
that they transcended my prediction; that the deaths were nearly three times as
many as they were during the same period the year before.
THE CHAIRMAN: From what cause?
DR. ECCLES: I predicted it would occur if they stopped the use of
preservatives, and it did occur just as I predicted from the stopping of the use
of preservatives. In no other place in the world did the death rate rise as in
Berlin, and in no other state in the United States did it rise as it did in
North Dakota.
THE CHAIRMAN: The use of what preservatives was stopped?
DR. ECCLES: All.
OTHER WITNESSES
Mr. Lannen followed Dr. Eccles with a long tirade against the pending measure
and in favor of substituting the Rodenberg bill therefor. Warwick M. Hough,
attorney for the National Wholesale Liquor Dealers Association of America,
endeavored to have the pending measure changed so that deleterious substances in
compounded and blended whiskies should have the same protection that similar
substances had in straight whisky. Mr. Hough had appeared many times before the
committees endeavoring to secure immunity for the artificially compounded
whiskies. He evidently saw clearly what would happen to artificial whisky if the
pending measure should become a law. His foresight was prophetic. After the law
became effective and the definitions of the Bureau of Chemistry for whisky went
into effect, Mr. Hough carried the case to several United States Courts. In all
about eight different suits were instituted, the purpose of which was to declare
the standards of whisky established, by the Bureau of Chemistry illegal. In
every single instance Mr. Hough's clients were defeated.
FAVORING WITNESSES
Appearing in behalf of the pending measure Mr. Edward W. Taylor, of
Frankfort, Kentucky, reviewed Mr. Hough's arguments and showed to the committee
their fallacy. On page 173 he says:
MR. TAYLOR: This investigation in 1893 of the whisky trust showed that the
people of the United States were being imposed on to such an extent that this
committee recommended to Congress that it incorporate into law a suggestion made
by the deputy commissioner of Internal Revenue, Mr. Wilson, which was the origin
of what is known as the "Bottling in Bond" act--a national law which enjoys so
much disparagement that it is a pleasure to me to have the opportunity to
explain it. The reason it has such disparagement is because the other 95 per
cent of the so-called whisky on the American market today is the spurious
article and can not get the guarantee stamp which is put over bottled in bond
whisky. * * * And I have here the report of the Ways and Means committee in the
House, in recommending the bill for passage--approving the bill. Here is the
official report. It is all very well for Mr. Hough or myself to come up here and
express an opinion as to the intention of the law, but I think it is to the
advantage of this committee if we can produce some official expression as to the
purpose of the law, and take the matter out of contention. * * *
" The obvious purpose of the measure is to allow the bottling of spirits
under such circumstances and supervision as will give assurances to all
purchasers of the purity, of the article purchased, and the machinery devised
for accomplishing this makes it apparent that this object will certainly be
accomplished.
STATEMENT OF ROBERT M. ALLEN, OF LEXINGTON, KY.
Mr. Allen was the militant administrator of the food laws of Kentucky. As a
state official he realized most keenly the need of a national law. He had heard
the arguments against adopting this measure most patiently. The impression he
gained from listening to this testimony is thus illustrated by his own words
(page 20-5).

ROBERT M. ALLEN
I want to say in this connection right here that there are two sides to this
food proposition. There is the side which agitates and clouds the issue, brings
up this point and that point, which, perhaps, does not materially affect the
question; but when you come specifically down to these questions: Should glucose
be sold as glucose or as honey or maple syrup? Should any synthetic product be
sold under the name and trade terms of the genuine product which it is designed
to imitate? Should a preservative be allowed use without any control or
restriction?--when you come down to those propositions I think that not only the
food commissioners, but the majority of the reputable manufacturers are agreed.
But I say, Mr. Chairman, that I can take a committee from food manufacturers
which would meet good men like yourself and others in Congress who are
interested on this subject and cut aside from all of these issues that have been
clouding and confusing the main central idea, and I believe that you could all
agree upon a bill which would be fair and equitable to all and which would
accomplish the purposes for which we are working along the lines of national
pure-food legislation. In our Kentucky work we are not only the food
commissioners of the people, the consumers, but we are also the food
commissioners of every reputable manufacturer, and he has a hearing, a frank
man-to-man hearing, whenever he wants to come in and discuss the subject.
At that time the chairman of the committee, the Hon. W. P. Hepburn of Iowa,
gave notice that the hearings in favor of and against a food law preventing
adulterations of the kind described were closed. Thus those who had for
twenty-five years favored all kinds of adulterations and misbranding were
finally shut out of any further participation in forming a food and drug act.
CLOSING ADDRESS OF DR. WILEY
The Chief of the Bureau of Chemistry had been informed by Mr. Hepburn and his
lieutenant, the Hon. James R. Mann, that he should have the final summary of the
evidence both for and against preservatives in foods. Accordingly he was given
ample time to summarize the principal arguments for and against preservatives as
affecting the public health. His testimony begins on page 237 and extends to the
end of the report on page 408.
DR. WILEY: Mr. Chairman and gentlemen of the committee: At the request of
your chairman and in harmony with the terms of the resolution passed by your
honorable body, and with the consent of the Secretary of Agriculture, I appear
before you for the purpose of summing up the expert testimony which has been
offered in the hearings held before your committee during the past fortnight on
the pending measure concerning the regulation of interstate and foreign commerce
in foods. Numerous expert witnesses have appeared before your body, mostly in
opposition to the pending measure, and a few witnesses have appeared in favor
thereof. I appear before you not as the advocate of any particular measure, but
as an advocate of legislation of some kind controlling interstate and foreign
commerce in adulterated and misbranded foods and drugs. I shall support with
what influence I may possess any bill which your honorable body in its wisdom
may report, although it might not, and probably would not, meet with my entire
approbation. I do not believe it is possible to draw any measure of this kind
which would receive the unqualified support of all parties. It becomes
necessary, therefore, in measures of this kind to keep in view the principle of
the legislation and to regard as of minor importance the various details which
may be devised to obtain the end in view.
In the discussion of some of the principal points which have been presented,
I wish to be understood as according to each witness the same sincerity, the
same desire to present the facts, and the same freedom from bias in interpreting
them that I shall hope may be attributed to me. The cause of truth is never hurt
by unjust attacks and its citadel never reached by the devious ways of unworthy
foes, but it is sometimes weakened by the unguided enthusiasms of its defenders.
I therefore accord honesty of purpose and sincerity of effort to those whose
contentions I feel impelled to resist. I desire to point out wherein I think
they have fallen into errors of statement followed by fallacious reasoning
leading to wrong conclusions. I want to point out how they have misunderstood
the efforts which have been made to ascertain certain facts relating to the
effect of preservatives, coloring matters, and other substances added to foods
on health and digestion; how they have misinterpreted the purpose and scope of
the food standards which have been proclaimed by the Secretary of Agriculture in
accordance with an. act of Congress, and have, as a result of these erroneous
views, created what seems to them a demon of future dangers, but which is
nothing more than a phantom of a perturbed imagination.
In doing this I shall speak frankly and freely, without any bias or rancor,
without any feeling of resentment for the many denunciations and anathemas which
have been published all over this broad land and in Europe during the past two
years.
I hope you may not conclude from the necessary trend of my argument that I
oppose all use of preservatives and coloring matters in foods. On the contrary,
there are doubtless often conditions when the use of preservatives is indicated.
In countries which are unable to produce their own foods, as for instance
England, on journeys to distant or difficultly, accessible places, such as mines
and logging camps and long journeys on the sea, and in other exigencies,
preservatives may be indicated. I also think that the consumer who prefers them
should not be denied that preference. My argument, therefore, applies to the
usual conditions which obtain in this country and especially to the apparent
fact that the great majority of our people seem to prefer their food untreated
with noncondimental preservatives.
As it has appeared to me from listening to a part of the testimony and
reading a part thereof, the character of the opposition to the pending measure
may be described as follows:
Opposition to the cardinal principles of the bill.
Opposition to some of the prohibition principles of the bill.
Opposition to the method of enforcing the bill.
Opposition to the officials who may be called upon to enforce the bill.
Opposition of special interests engaged in certain industries which apparently
may be affected to a greater or less extent by the provisions of the bill
should it become a law.
I will begin by a statement of the grounds of the opposition of the first
class of objections. This opposition has not been brought out by any of the
witnesses who have been called upon to testify; but is based upon broad
Constitutional grounds and is of a character to command profound respect and
careful consideration. I refer to the views which are held by many distinguished
and earnest men to the effect that the cardinal provisions of the bill are
unconstitutional. This is a matter, therefore, which does not call for any
further consideration on my part.
The second class of objections to the bill: The prohibition principles of the
pending bill consist in the elimination of harmful and injurious ingredients
which may be added to foods. I may say, and the statement is rather a broad one,
that there is no opposition to such a prohibition, as no one has advocated, in
so far as I have been able to find in the testimony, a permission to add
harmful, deleterious, or poisonous substances to foods, except Dr. Eccles.
The objections have rather lain against the possible decisions as of the
courts in such matters, and especially against the, method of collecting
evidence for the prosecution. It is, of course, self evident that no prosecution
could be brought, under these prohibition provisions unless some one should
certify that any given added substance was harmful, deleterious or poisonous.
The opposition, therefore, to this provision of the bill has voiced itself in an
argument that the committee. should insert prohibitive provisions in the bill
against this prohibition. Plainly stated, the contention has been made that the
Congress of the United States should declare by act that certain substances in
certain proportions are not harmful, deleterious, or poisonous substances.
The only expert testimony which has been submitted on this question, which is
worthy of any consideration by your committee, is that which was offered by
Professor Kremers, of the University of Wisconsin, Professor Kedzie, of the
Agricultural College of Michigan, and Professor Vaughan, of the University of
Michigan. The high character and attainments of these experts entitle their
views to the most profound and respectful consideration.
The wide distribution of benzoic acid in vegetable products, as described by
Professor Kremers, is well known to physiological and agricultural chemists. He
says that in the destruction of certain proteins in the human economy benzoic
acid is formed, which is then changed into hippuric acid. There is no evidence
that I have been able to find to show that hippuric acid may not be formed from
the benzol radical without its passing through the benzoic acid state. But this
is of little importance, because even if benzoic acid should precede the
formation of hippuric acid it could only exist in the most minute quantities and
for a relatively very short period of time. Hippuric acid is one of the natural
toxic or poisonous bodies produced in catabolic activity, which, like urea and
other degradation products of proteins, must be at once eliminated from the
system to avoid injury. Uremic poisoning at once supervenes on the suppression
of the excretive activities of the kidneys, and unless this condition is removed
death speedily results.
This brief summary of the opposition to the food and drugs act during the
time it was before Congress accentuates the fact that it is essentially a health
measure, as has been officially confirmed by a decision of the Supreme Court of
the United States.
There had been little discussion during the whole twenty-five years of the
subject of misbranding. This was such an apparent and unnecessary evil that it
had few defenders. During all this time the chief discussion was the effect upon
health of certain preservatives and coloring matters, and as to the selection of
officials for carrying the law into effect. It was the unanimous opinion of all
opponents of the law that the Bureau of Chemistry should have nothing to do with
its enforcement. It was well understood that the attitude of the Bureau of
Chemistry was distinctly hostile to the use of chemical preservatives of any
kind in food and that all such manipulations threatening the health of the
American consumer would be frowned upon. In spite of many attempts to prevent
it, Congress deliberately and overwhelmingly decided to submit the execution of
the law to the Bureau of Chemistry.
SOURCES OF INFORMATION
In the future the student of history who may wish to review all that was said
and done during the fight for the enactment of the pure food law will find all,
the hearings in the libraries connected with the various committees in Congress
in charge of these hearings. They are a thesaurus of interesting facts which the
future historian ought not to overlook.

FURTHER EXCERPTS FROM THE CLOSING SUMMARY
MR. BARTLETT: I would conclude, then, that you think benzoic acid as a
preservative is not necessary.
DR. WILEY: I think you forecast my argument very well.
MR. ADAMSON: Before you became a chemist, you saw women make catsup and put
it up hot in sealed bottles and keep it a long time, didn't you?
DR. WILEY: Yes, sir.
MR. ADAMSON: Without putting anything in it?
DR. WILEY: Excepting the ordinary spices and condiments. I want to call the
especial attention of this committee to this argument which I am presenting. I
will state it again without reading from my manuscript, so as to make it
perfectly distinct.
The human body is required to do a certain amount of normal work. That amount
of normal work is a beneficial exercise of these organs. If you diminish the
normal work of an organ you produce atrophy--lack of functional activity. If you
increase it hypertrophy ensues, and increase of functional activity. Nearly all
of the organs that wear out do so from one of those causes, not from normal
exercise of their functions. Therefore, assuming that the food of man, as
prepared by the Creator and modified by the cook, is the normal food of man, any
change in the food which adds a burden to any of the organs, or any change which
diminishes their normal functional activity, must be hurtful.
MR. ESCH: If the organs were always normal, death would not ensue?
DR. WILEY: I will not go so far as that, Mr. Esch. I do, refer to longevity,
though, and I believe this with all my heart, that when man eats a normal food
normally the length of human life will be greatly extended. That is what I
believe. But if we consume abnormal food abnormally we shall lessen the length
of human life.
MR. TOWNSEND: Who is going to define normal food; there is a great difference
of opinion about that?
DR. WILEY: I will admit that.
MR. MANN: Doctor, do you think the action of eating cranberries with turkeys
is detrimental to health in any way or to any degree?
DR. WILEY: I will answer that as categorically as I can. I do not believe
that a healthy organism is going to receive any permanent injury or measurable
injury by eating cranberries because they contain benzoic acid. And I want to
add this, that it is not because they contain benzoic acid that they are
wholesome, but that if they did not contain it they would be more wholesome than
they are.
I want to accentuate this point: I noticed very many questions from many
members of the committee which lead me to think that you have this feeling, that
if a substance does not hurt you so that you can measure it it is not harmful.
That does not follow at all. Take this one substance of benzoic acid. Benzoic
acid never takes any part in the formation of tissue, and its. degradation
product is hippuric acid, which is a most violent poison. If the kidneys should
cease to act for twenty-four hours there is not a man on this committee who
would not be at death's door from the hippuric acid and the urea which would be
in the blood. Hippuric acid is perhaps far more poisonous than urea; it is a
deadly poison. Therefore nature gets rid of it directly it is formed, otherwise
health would be destroyed.
Now, is there force in the argument, gentlemen, that in view of the fact that
this degradation product comes from the natural foods which we eat--and I am not
criticizing the Creator at all for putting them in the food--then benzoic acid,
which occurs in natural foods and of which the degradation product is a violent
poison if increased by an infimitesimal amount, and although we may not be able
to note any injury coming from it, yet should we be advised to use it? There is
a subtle injury which will tell in time. For instance, a mathematician desires
to make a curve to express inflnitesimally small values which only the
mathematician can consider, and to do that he has to have experimental evidence.
He can not experiment at the small end of his curve; it is impossible. He
experiments upon the part of the curve that he can measure, fixes the ordinates
and the abscissas with the points that he can measure. Then he draws his curve,
passing into the infnitesimally small values. And it is the same with the
substances added to food. You must construct your curve on data which you can
measure, and then you draw your curve down to the inflnitesimally small. That
curve is a curve the moment it varies from zero, although you can not see it or
measure it. If you add any substance to food--add, I say--which produces a
poisonous degradation product, or adds one additional burden to the secretory
organs, you have changed that infinitesimal small part of your curve that you
can not measure, but the change is there all the same.
MR. MANN: Take the case of cranberries. Does benzoic acid in the cranberries
to the extent that the benzoic acid exists injure cranberries as a food?
DR. WILEY: It is so small. that you can not measure its harmful effects.
MR. MANN: But to the extent that it exists at all; or that the other values
in cranberries as a food in the normal use of them overcome the injurious
effects of benzoic acid. If that be the case, might not that be the case of
other preservatives in other foods?
DR. WILEY: What is true of one is true of all.
MR. MANN: But with artificial preservatives. Might not the case arise where,
although the food is injured to the extent in which the preservative exists, yet
it has preserved the food so that it is better food, the total product is better
than the food would have been without the preservative. That is what we want to
get at here.
DR. WILEY: I stated that particularly in my introduction. I said there were
many places where preservatives were indicated. Wherever you can make food
better, where it is impossible to have it without having a preservative,
certainly the preservative is indicated.
MR. ADAMSON: I am curious to ask you, before you leave the subject of
cranberries, about the effect of berries, in which I am locally interested. I
can give up cranberries, but I can not give up blackberries and huckleberries. *
* *
MR. BARTLETT: Did you see the account in yesterday's Herald about the dinner
that some chemist gave to a friend in New York, at which everything they ate was
made out of acids and things of that kind?
MR. MANN: Synthetic products?
MR. BARTLETT: Yes.
DR. WILEY: Yes, sir; I saw the account, and I know the gentlemen very well. I
don't believe any of them would care to eat that kind of a dinner every day. It
is like my very distinguished friend, Professor Chittenden, perhaps the most
distinguished physiological chemist in this country, who proved conclusively to
himself that man in his natural tastes ate too much protein. The average man
instead of eating 17 grams of nitrogen in a day, as he does, ought not to eat
more than 10 or 11. But almost every man taught to do that, I understand, has
gone back to the old way, although apparently it was beneficial at the time.
MR. TOWNSEND: Professor Chittenden does not agree with you in regard to the
use of preservatives.
DR. WILEY: I think not; I think he does not agree with me. I want to say
here, Mr. Chairman, that experts never think the less of each other because they
disagree; it is the natural condition of humanity.
MR. ADAMSON: You did not really run a boarding house on pills, paregoric, and
other things, did you?
DR. WILEY: I ran a boarding house something of the kind you describe for four
years, and I am running it to-day; and would be pleased to have you come down
and take a meal with us.
MR. ADAMSON: I think I would prefer to have a colored woman do the cooking
for me.
DR. WILEY: We have a colored cook. You will hear more about that boarding
house later on.
MR. BARTLETT: I understood you to say you knew these gentlemen in New York
who gave this dinner that we were speaking about a moment ago?
DR. WILEY: I know them very well.
MR. BARTLETT: They are reliable gentlemen?
DR. WILEY: Oh, yes; perfectly so. In fact, I have a very high opinion of the
chemists of this country. Just as high when they differ from as when they agree
with me.
MR. ADAMSON: While you have such a high opinion, yet you do not take their
judgment in these instances?
DR. WILEY: Certainly not; I should not occupy such a position. I do not want
anybody else to judge for me the results of my own work. I want to do that
myself.
MR. ADAMSON: I wanted to give you a chance to disclaim that.
DR. WILEY: Not only disclaim it, but I never have put myself in any such
position and never intend to.
Now I will go on with my statement.
Because nature produces an almost infinitesimal quantity of substances in
foods which add to the quantity of these poisonous excreta appears to me to be
no valid argument for their wholesomeness. Could even the small trace of
substances in our foods which produces hippuric acid be eliminated, the
excretory organs would be relieved of a useless burden and the quantity of work
required by them be diminished. This would be conducive to better health and
increased longevity. I fail to see the force of the argument that a deliberate
increase of the work required by the adding of substances capable of producing
poisonous degradation products is helpful and advisable. Granting, for the sake
of the argument, the grounds of a trace of benzoic acid and its analyses in all
the substances mentioned by Professor Kremers, we do not find that this is a
warrant to add more of these bodies, but, on the contrary, a highly accentuated
warning to avoid any additional burden. That benzoic acid is a useful medicine,
no one who has ever studied medicine will deny, but I think almost every
practicing physician will tell you that the exhibition of drugs having a
medicinal value in case of health is highly prejudicial to the proper activity
of these drugs when used in disease. The excretory organs of the body become
deadened in their sensibilities by the continued bombardment to which they are
subjected and do not respond at the proper time to the stimulus which a medicine
is supposed to produce. Keeping the hand in cold water constantly would unfit it
to be benefited by the addition of a cold application for remedial purposes.
I think that I need only call the attention of the committee to the wide
distinction between a drug used for medicinal purposes and a food product to
show them that all reasoning based on the value of drugs as medicines is totally
inapplicable to their possibly beneficial effects in foods. I further think I
shall be sustained almost unanimously by the medical profession of the United
States when I say to this committee that the "drug habit," which is so
constantly and so unavoidably, I am sorry to say, formed in this country is one
of the greatest sources of danger to the public health and of difficulty in the
use of remedial agents that can well be imagined. Professor Kremers, on page 33,
seeks to justify the statement he reads from Professor Hare respecting the
properties of benzoic acid by saying that benzoic acid is useful in diseases of
the urinary organs which produce alkalinity. I will show this committee later on
that small doses of borax bring about this abnormal condition of the urine, and
therefore it might be advisable in using borax, which has been pronounced
harmless by some experts here, to be able to counteract one of its particularly
certain effects by administering a remedy at the same time that you supply the
cause of the disease. For this reason your committee might well say in the bill
that whenever borax is used in foods benzoic acid should also be used as a
corrective of its dangerous influences.
I am somewhat surprised also at the reference that Professor Kremers makes to
salt, on page 34. Salt is not only a delightful condiment, but an absolute
necessity to human life, and the fact that excessive doses of salt are injurious
has no more to do with this argument than the fact that you can make yourself
ill by eating too much meat. It seems to me astonishing in these days of rigid
scientific investigation that such fallacious reasoning can be seriously
indulged in for the sake of proving the harmlessness of a noncondimental
substance. Yet this is the argument advanced by Professor Kremers on page 34 in
respect of salt, wood smoke, and other useful, valuable, and necessary
condimental bodies. The argument in regard to benzaldehyde in ice cream is on
the same plane. The substance known as ice cream, as usually made, is an
inferior food product at best, and how it could be improved by the addition of a
substance which increases the quantity of poisonous principles in the excrements
is a matter entirely beyond my comprehension. I am perfectly familiar with the
argument that this small quantity would not produce any harm. It is doubtless
true, Mr. Chairman, that a slight increase for one day or even oftener of these
bodies in the food would produce practically no measurable effect upon a healthy
individual for a long time, but that in the end it would produce no harmful
effect is contrary to all the rules of physiology and logic.
The body wears out and death supervenes in natural order from two causes:
First, from a failure of the absorptive activities of the metabolic processes,
and, second, by an increased activity of the catabolic processes, producing
increased amounts of poisonous and toxic matters in the system, while the
excretory organs are less able to care for them. Thus the general vitality of
the body is gradually reduced, and even old age, which is regarded as a natural
death, is a result of these toxic activities carried through a period of time
varying in extreme old age from eighty to one hundred years. This process is
described by Professor Minot, of Harvard University, as the differentiation and
degeneration of. the protoplasm. On the contrary, it is not difficult to show
that .every condimental substance, by its necessary and generally stimulating
effect upon the excretory organs which produce the enzymes of digestion,
produces a positively helpful result, while its preservative properties are
incidental merely thereto. Condiments are used not simply because they are
preservatives, but because without them the digestive organs would not respond
to the demands of nature, and therefore I ask your very careful consideration of
the arguments based upon a comparison of noncondimental preservatives added to
foods and the use of the condimental substances which are natural and necessary.
I do not believe that your minds will be misled in the consideration of this
important and radical distinction.
A careful review of other parts of the argument of Professor Kremers shows
that he unwittingly admits the poisonous and deleterious properties of benzoic
acid by calling attention, on page 35, to the fact that when doses of it are
added to an kinds of stock, so called, preserved in large quantities, it is
boiled out or disappears by sublimation during subsequent treatment. If benzoic
acid is a. harmless substance, as suggested, why should so much importance be
attached by its advocates to the fact that it is practically eliminated? Thus
the advocates of benzoic acid at once, by their own words, show the insecurity
of the platform on which they stand.
MR. TOWNSEND: Did you understand him to testify in that way as showing that
that was the reason it was not harmful?
DR. WILEY: No; excepting it was boiled out.
MR. TOWNSEND: That was in answer to a question.
MR. ESCH: The use of it more particularly with reference to the preparation
of the stock.
DR. WILEY: Yes; I have mentioned that in large quantities, in relation to the
stock.
You are asked to insert in this bill a provision which will allow the use of
one-fourth or one-fifth of 1 per cent of benzoic acid in food products, which is
practically ten times that found, as stated by Professor Kremers, in the
cranberry, which, of all known vegetable substances used as foods, contains the
largest quantity. Fortunately, cranberries are not an article of daily diet. Do
not, I beg of you, lose view of the fact that because a single dose of benzoic
acid does not make you ill its daily consumption is wholly harmless. This is a
non-sequitur of the most dangerous character.
Professor Kremers says that he has searched through all literature and has
not found a statement that benzoic acid administered even in medicinal doses
would produce harm. I would like to compare this with his own quotation of
Professor Hare, in which it is said:
Ordinary doses cause a sense of warmth through the entire body, which
feeling increases with the amount ingested, large quantities causing severe
burning pain.
Asked by Mr. Richardson, Professor Kremers acknowledged that there might be
many persons who would be injuriously affected by benzoic acid. Now, when anyone
is accused of a crime it is no defense to prove that the crime was not committed
against a hundred or a million individuals. It is sufficient to prove that it
was committed against one. Professor Kremers acknowledges that benzoic acid may
be harmful, therefore Professor Kremers has convicted benzoic acid as being a
harmful substance; and, therefore, his argument that it should be used
indiscriminately in foods, or, as asked when before this committee, be permitted
to the extent of one-fourth of 1 per cent, being ten times the quantity produced
in its most abundant natural substance, seems wholly illogical.
MR. TOWNSEND: That would be true of any article; that not only applies to a
preservative, but it applies to all kinds of foods as well.
DR. WILEY: Well, yes; but foods and drugs must be regarded differently.
MR. BARTLETT: There are people who can not eat food ordinarily regarded as
harmless. There are certain people who can not drink sweet milk; and I know
people who can not eat eggs of any description, nor anything that has an egg in
it. Now, do you think that everybody ought to be prevented from eating eggs or
drinking milk if a half a dozen people in a thousand are injuriously affected by
them?
DR. WILEY: Certainly not; nor would I prevent anybody from using benzoic acid
who wanted to do it, but I certainly would help persons from using it who did
not want to use it. I am not advocating the prohibition of the use of benzoic
acid by anybody who wants to use it. I would be in favor of putting benzoic acid
in a little salt-cellar, the same as is used for salt and pepper, and letting
the people use it if they want to. I think benzoic acid would not hurt me, or be
injurious to my system, if I used it one day--
MR. BARTLETT: You know some people have tried to eat a quail a day for thirty
days, but they get sick.
MR. ADAMSON: Is there not a great difference between the occasional use of
these poisons medicinally, in cases of emergency, and the use of them in any
quantities in food?
DR. WILEY: I think that is a great point. I will come presently to the
statement of Professor Vaughan, which covers that case beautifully in the
testimony he gave here.
There are two points that I wanted to call to the attention of the committee.
One is that we have examined a number of substances in which Dr. Kedzie
testified that he has found benzoic acid, and we have found none.
MR. BARTLETT: What substances are those?
DR. WILEY: Dr. Kedzie testified that he had found benzoic acid in
cranberries, huckleberries, plums, grapes, grapefruit, oranges, pineapples,
carrots, pears, cauliflower, rhubarb, and green peppers.
We have obtained from the open market samples of the following fruits and
vegetables, said by Professor Kedzie to contain benzoic, and tested them for
benzoic acid:
Malaga grapes, grapefruit, oranges, pineapples (two varieties), carrots,
parsnips, cauliflower, rhubarb, and green peppers. We were unable to obtain any
indication of benzoic acid in any of these fruits with the exception of
pineapples, where in one test of one variety there was a reaction which might
have been caused by a trace of benzoic acid. On repeating the test on a fresh
portion of the sample, however, the test could not be confirmed. The test
obtained, however, even if caused by benzoic acid, was so slight that the
substance could not have been present in greater quantity than one part per
million, or one ten-thousandth of 1 per cent. It is certain from our analyses
that benzoic acid is not present in this substance in the quantities stated by
Doctor Kedzie, viz., from one one-hundredth to two one-hundredths of 1 per cent.
In 1904 1 obtained samples of huckleberries grown in three regions of the
United States and did not succeed in obtaining the slightest indication of
benzoic acid in any of them.
Professor Kedzie also dwells upon the fact that in the process of cooking a
great deal of the benzoic; acid escapes. Inasmuch as he contends that it is
harmless, the object of enforcing this view of the case is not apparent,
although I do not doubt its accuracy.
Professor Kedzie found catsup made by Heinz, when sold in Michigan, to
contain benzoic acid. Mr. Allen finds that when sold in Kentucky, it does not
contain any benzoic acid. Professor Kedzie states that he has determined that
the amount of benzoic acid in grapes is not far from one one-hundredth to one
two-hundredths of 1 per cent. It requires, of course, very delicate
manipulations to quantitatively determine these small quantities and very large
quantities of samples must be taken. We feel certain that Professor Kedzie has
utilized much more delicate methods than we have been able to develop in our own
laboratory and I regret that he .did not disclose the methods employed to the
committee.
Professor Kedzie testifies that the artificial product added to a food does
not differ from the article naturally present in food. He testifies that it is
present as pure benzoic acid in either case. This statement would mean that if
you should take some butter and skim milk and beat them up together the product
will be exactly. the same as that of the original full-cream milk. This is a
remarkable doctrine in physiological chemistry, and upon this doctrine could be
established the perfect wholesomeness of all synthetic foods. This will be
strange doctrine to the makers of champagne. For instance, a still wine having
practically the same composition as champagne, when artificially carbonated with
the same quantity of carbonic acid which would be found in the natural
champagne, is exactly the same substance as the article made naturally by
fermentation in the bottle by the slow and tedious process employed. Every
physician who prescribes champagne and every man who drinks it will without
hesitation doubt this statement.
Professor Kedzie testifies that he is not a physiological chemist and not a
doctor of medicine. On the same page, however, he testifies that between 60 and
100 grains, a large amount, a teaspoonful or a tablespoonful or something like
that, would have an inflammatory action upon the stomach. When asked in regard
to its specific effect in small doses, he said:
I eat cranberries right straight through the season. I like the
cranberries, and I see no untoward effects whatever from their use. I never
took benzoic acid except in that form and in the form of catsup.
He therefore testifies, as he says, from his own personal experience, and. at
the same time says that he never took any except that which was natural to
certain foods and introduced in catsup. Professor Kedzie has already testified
that cranberries contain only five one-hundredths of 1 per cent of benzoic acid.
The amount which he took daily he does not state, but it evidently must have
been quite small in quantity, and, more than that, it was in the form in which
the Author of Nature had placed it and not in an artificial or adulterated form.
From this remarkable metabolic experiment Professor Kedzie says that he can
testify from his own experience that benzoic acid is not harmful. I ask you,
gentlemen, to consider in all seriousness expert testimony of that description
and compare it with the elaborate trial and continued experimental work
conducted in the Department of Agriculture on similar lines of inquiry which I
have mentioned.
I quote Professor Kedzie's experiments with boric acid and salicylic acid:
I investigated bulk oysters, for instance, and found the presence of boric
acid in a small amount. We investigated shrimps, also, which I found at the
market and brought to the laboratory. That is my way of teaching. I
investigated the shrimps and found in the shrimp liquor, on evaporating it,
that there was a considerable amount of boric acid. Then, I took a sample of
pickles from my grocer--pickles that I eat myself--and tested them and found
in the vinegar of the pickles sulphurous acid to prevent that little growth of
mold that is so objectionable to the consumer.
MR. BURKE: To what extent did you find sulphurous acid in the vinegar that
you have just spoken of?
MR. KEDZIE: I did not estimate the exact amount, but it was very small. It
takes very little to inhibit the growth of a mold in the vinegar.
MR. ESCH: What determination did you reach in regard to cranberries?
DR. WILEY: His analysis and ours agreed almost exactly.
MR. TOWNSEND: Did you examine more than one specimen of the cranberries?
DR. WILEY: We examined a large number. That is only a question, however, of
analytical detail. I only present that, not to throw any doubt on the fact of
the wide distribution of benzoic acid, which no one denies.
I also want to call the attention of the committee to Doctor Kedzie's expert
testimony to the effect on his health, and ask you to compare the few samples of
cranberries that he has eaten, and few samples of ketchups, with the careful
determination which we have made. That is all. The rest is confirmatory of what
Professor Kedzie says.
I say here that I am sorry that Professor Kedzie did not submit his methods
of examination; and I would like to incorporate in the minutes the methods which
we have used so he can review our work if he desires.
MR. EXCH: Do you know of any other analysts who have found benzoic acid in
these fruits?
DR. WILEY: No; I do not. I have never seen any results excepting these of
Professor Kedzie and Professor Kremers.
DR. VAUGHN'S TESTIMONY
Now I come to the most important testimony, that of Dr. Vaughan, and I shall
ask the indulgence of the committee to speak at some little length on that
point.
DR. VAUGHAN'S thorough training and large experience and scientific methods
of work have fitted him particularly well to speak on a subject of this kind. I
quote, therefore, with pleasure from his testimony.
I want to say, and I should have said in the beginning, that I am very
anxious that Congress should do something to regulate the use of preservatives
in foods. I think that the use of preservatives in foods may be and often is
overdone and that great harm may come from their excessive use. The law
requires of a physician before he can prescribe benzoic acid or sulphurous
acid or anything of that kind a certain degree of education and that he must
pass a State examination.
I am willing to stand with Dr. Vaughan on this one proposition, which I
indorse in every word. Of course he must agree with me that if a physician, who
of all men knows the responsibility which rests upon him in connection with his
profession, is not allowed to prescribe benzoic acid until he has studied four
years or longer in a medical college, received a diploma, and passed an
examination before a State board of examiners, then surely no manufacturer
without any education of a medical character, without ever having passed any
examination, without having a single faculty of knowledge respecting the use of
drugs, should be allowed to put any benzoic acid or any other drug of any kind
in his foods. I think I might omit any mention of the rest of Dr. Vaughan's
testimony with that simple statement of his, which covers the ground so
absolutely and effectively.
MR. TOWNSEND: He was testifying, was he not, as an expert who had had
experience with benzoic acid, and he stated, as an expert, as a physician, who
was trained and experienced in administering this drug, that such an amount was
not harmful. That is what he stated, is it not? He did not state that they
should be allowed to use all that they saw fit; in fact, the trend of his whole
examination was that this should be passed upon by a board of experts as to the
amount that should be used. That was his conclusion.
DR. WILEY: That is true. I only call attention to the basic proposition. He
says in the beginning--I do not think it is unfair to quote Dr. Vaughan's words,
word for word.
MR. BARTLETT: Oh, no, I did not say that; but people can take a Bible and
prove by words and quotations from it that they are justified in believing that
there is no God.
MR. KENNEDY: A doctor would not be permitted to prescribe anything as a
doctor until he had been licensed, but I can prescribe if I do not charge for
it. I can advise the use of meats and other things to be eaten, and so on, with
profit and benefit, and I would not come within any prohibition of law, would I?
MR., BARTLETT: No; not unless you prescribed for pay.
MR. GAINES: Unless I did it as a doctor.
DR. WILEY: The manufacturer charges for his goods; he does not give them
away; and the doctor receives pay for his prescription.
MR. ESCH: If a physician prescribed the amount which could be used without
detriment, would it be dangerous to the manufacturer to use, that or a less
amount?
DR. WILEY: I think so.
MR. ESCH: Provided you could be sure?
DR. WILEY: Yes; because the physician prescribes constantly very poisonous
substances. A drug and a food are quite different things. The physician
prescribes after his training and after an examination of the patient. The
manufacturer asks legal permission to use the same drug that the physician does
in his practice and to put it in the foods with certain restrictions, which, of
course, would be proper if he is permitted at all. But I want to contrast the
difference in the position of the trained man who uses a drug and the untrained
man who uses a drug. I think it is perfectly fair, Mr. Chairman, to call the
attention of the committee to that important distinction.
MR. MANN: There is no difference of opinion between you and Doctor Vaughan on
that subject, as I understand his testimony; you both agreed.
DR. WILEY: We agreed in almost every particular. I indorse almost every word
he said to this committee, absolutely.
THE CHAIRMAN: Dr. Vaughan's statement, you will remember, was made after a
manufacturer had testified that he put 6 ounces of benzoic acid in powder in a
barrel of catsup and trusted to oscillations from the ordinary movement of that
as freight to distribute it.
DR. WILEY: Yes, Sir.
MR. CUSHMAN: As I understand your position, then, you agree with Dr.
Vaughan's statement on technical points, but disagree with his conclusions?
DR. WILEY: Yes; I don't think they are logical in those particular instances.
I think all of his statements and his facts are without question so far as his
examinations have gone.
MR. BARTLETT: Do you agree with him that each one of us, in eating our daily
food, consumes from 1 to 10 grains of benzoic acid? That is one statement that
he made.
MR. KENNEDY: He said that was formed in the human body.
MR. BARTLETT: Do you agree with him upon that?
DR. WILEY: I have never measured the amount of benzoic acid that may be
formed by metabolic activity. We surely do not eat ten grains a day in ordinary
foods, or even one. It is only in rare cases that you would eat one grain a day.
MR. TOWNSEND: Where does it come from if his conclusion is correct that it is
in the system?
DR. WILEY: It is claimed by some physiologists that the benzol ring that I
showed you yesterday--the product of destructive metabolism--that small
quantities of the benzol radical might be formed in the system or unite with
glycocol and form hippuric acid.
MR. TOWNSEND: And would be eliminated by the kidneys?
DR. WILEY: And would be eliminated by the kidneys; yes, sir.
Will Congress pass a law permitting physicians to prescribe a quarter of 1
per cent benzoic acid, or 10 grains or 30 grains of salicylic acid, or any
quantity of boric acid, or any quantity of strychnine or of arsenic in patent
medicines, without medical education and medical training and without studying
the character of the condition of the patient to which it is to be given? I
really do not believe that any claim of that kind would meet with a single vote
of this committee or on the floor of the American Congress. And yet Dr. Vaughan,
after having laid down a principle of ethics, broad, comprehensive, and
indestructible, immediately proceeds to claim for a manufacturer, without any
technical knowledge of medicine, the right to do exactly the thing which he says
no physician by law should be allowed to do. Dr. Vaughan was asked about the
proper law in regard to the use of preservatives, and very promptly says:
That brings up a very interesting point. If you will permit me, I would
like to say just a word about that. I do not know that I am prepared to answer
the question just now. It seems to me that that ought to be settled by a
commission of experts, as to what preservatives could be used and in what
foods they might be used.
Now, Mr. Chairman, let me ask, if Dr. Vaughan, with all his extensive
experience, with all his work in pharmacology and physiology and chemistry, has
not yet reached an opinion, where can you expect any commission or anybody else
to be able to reach one? And, in view of that fact, can Dr. Vaughan or any other
man logically come before your committee and ask to be allowed the use of a
definite amount of certain medicines of the highest value, of which Dr. Vaughan
himself says he does not know what quantity can be used, and which can not be
used by a physician in any quantity without a license?
Then Dr. Vaughan goes immediately on and says, on the same page, that he "has
an opinion," that he is "sure" that benzoic acid in the quantities in which it
is used in catsup, :sweet pickles, ete.--1 part to 1,200 or 2,000--does not do
any harm. He immediately says: "I should be opposed to the use of formaldehyde
in milk in any quantity, or the use of any other preservatives in milk." Why,
may I ask? If it is harmless in catsup, is it harmful in milk? If it is harmful
in milk, is it not harmful in catsup?
DR. VAUGHAN also says: "I have testified repeatedly against the use of
sulphite of soda on hamburger steaks. I am thoroughly in sympathy with the
Hepburn bill." I desire the particular attention of the committee to this part
of the testimony. Dr. Vaughan has said that a physician should only prescribe
benzoic acid after training and license. He then says that he himself, with all
his vast experience, has not reached any conclusion in the matter. He next says
that he believes that the quantity used in tomato catsup does no harm. Then he
says he is opposed to its use in milk in any quantity. I should think a jury
would be somewhat confused by expert testimony of this kind. I believe, with Dr.
Vaughan, that a physician should not be allowed to prescribe benzoic acid until
he has shown the necessary qualifications. I believe, with Dr. Vaughan, that no
preservative of any kind should be used in milk. I agree With him,--that
sulphite of soda, should not be used on hamburger steaks--three points on which
we agree. I agree with Dr. Vaughan that I have not yet reached any conclusion as
to the minimum quantities of benzoic acid which are harmless. Four points,
logical, sequential, and on which perfect agreement is certain. Just what there
is in tomato catsup which should except it from the logical sequence I beg some
one to enlighten me.
It is impossible for me in any way to discover it. Dr. Vaughan states that
nobody but a bacteriologist can decide how much of a preservative must be used
to preserve a food, and therefore objects to the results of the experiments
authorized by Congress. I beg to state to the committee that Congress never
authorized the Secretary of Agriculture to determine how much preservative was
necessary to preserve foods. All it did was to authorize him to study the effect
of preservatives, coloring matters, and other substances added to foods upon
health and digestion. In so far as I can see, bacteriology has nothing in the
world to do with it. It is a question of physiological chemistry and
pharmacology only, and it has been answered solely by the methods of those
sciences.
I will explain in full these methods when I speak of the effect of borax. Dr.
Vaughan states that the experiments with borax did not prove that it was
injurious in small quantities, and when asked what he meant by small quantities
he said, "One-half of 1 per cent." I suppose he means by that, in the foods.
That is all he can mean. I will show you gentlemen that the amount of boric acid
which we used and which produced most disturbing effects upon the health was far
less than one-half of 1 per cent of the weight of the food used. Dr. Vaughan's
statement in this respect is hardly the statement of an expert. It is his
opinion of another expert's findings, and he adduces no evidence on which to
base his opinion.
I may say to you that the Secretary has never taken up the subject of
determining what preservatives shall be used in foods and in what quantities, as
he is authorized to do by act of Conaress. When he does, he will, under the
authority of Congress, be able to call experts on these subjects who shall be
able to help him to a just decision. All the Secretary of Agriculture has done
so far is to determine the effect of preservatives, coloring matters, and added
substances to foods upon health and digestion. These experiments have been
conducted in the manner which I shall soon relate to you.
No board of experts could come in and help another expert decide what his own
experiment taught him. That would be quite an impossible thing to do. Dr.
Vaughan would resent five men going into his laboratory and telling him what the
result of one of his own experiments was. He, being a man of judgment and tact
and knowledge, alone can decide what his own experiments have taught him, and
then when he submits the data on which his judgment is based the board of
experts can come in and criticize the data and reach another conclusion. The
data on borax, which was used in the experiments which I will soon describe, are
here before you. Every fact in connection with that investigation is set forth,
every analysis has its data, every event connected with the conduct of the
experiment, which lasted nine months on twelve young men, is set forth in
detail. Dr. Vaughan did not attack a single fact nor deny its accuracy in all
this mass of material, and then, without doing this, says:
Dr. Wiley has made a report on boric acid as to preservatives, and while I
am a personal friend of Dr. Wiley's and appreciate him very highly and think
greatly of him, his experiments have shown that boric acid in large amounts
disturb digestion and interrupts good health, but they have not shown that
boric acid in the small quantities which should be used as a preservative, if
used at all, has any effect upon the animal body.
Now, Mr. Chairman,. I do not see how Dr. Vaughan, after reading my report,
could make a statement like that. He certainly did not read it carefully. I
therefore take this opportunity to lay before this committee at this opportune
moment a synopsis of the results of the work which has been accomplished under
authority of Congress in feeding borax and boric acid to. young men in splendid
health and to place before you the proof of the deletrious effects which even
small quantities--far less than one-half of 1 per cent-produce. I will
supplement this also by a similar statement from the chemists and physiologists
of the imperial board of health at Berlin, which fully confirms in every
particular every conclusion reached by my own experiments, and candidly ask the
consideration of this committee of these two reports.
Now, that shows how close our agreement is, as I have already stated to the
committee, and I would like to repeat it here: That if benzoic acid is harmful
in milk, and Dr. Vaughan admits it, in any proportion, there is no logical
reason that I can see why it is not harmful in any other food. I admit the
argument, however, that it may be placed there and produce a benefit. Then we
could say that it was placed there to correct some other and a greater evil, and
on that ground alone would I advocate the use of preservatives in food, and not
that they are harmless. I do not see, gentlemen, how anybody can ever admit the
use of preservatives in food on such testimony as Dr. Vaughan has given, and I
will rest it right on his words, on the ground that it is harmless. But you
could very justly, as I said yesterday, admit it on the ground that it is less
of two evils. That is the point that I wanted to insist upon.
MR. TOWNSEND: Have you changed your mind on that subject in the last few
years?
DR. WILEY: Yes, sir; very materially. I formerly believed that certain
preservatives could be used, as Dr. Vaughan believes now, simply by having its
presence mentioned on the label. I was strongly convinced of the truth of that
proposition. I have, before committees in Congress and in public addresses,
stated those sentiments. I was converted by my own investigations, Mr. Chairman,
and by nobody else's in this matter. My former opinion was based upon the weight
of expert testimony. I read the opinions of men that I respected, and the weight
of that opinion was in favor of the position which I have just stated. I
inclined to that view. And I will state that Dr. Vaughan's association with me
was one of the things that led me largely to adopt that view.
LIEBREICH JOINS VAUGHAN
When I went to my office yesterday one of the young men said: "Have you seen
this criticism on your work which has just come out in a German magazine in
January?" As I have been pretty busy in the last few weeks, I had not read the
magazine. It is an adverse criticism of this report of mine on borax. I am
having it translated and typewritten, and I am going to put it in the evidence
so that you can read it. Professor Liebreich I know very well. He is a personal
friend of mine, a very eminent gentleman, and it is fair to say that he is
employed by the borax syndicate; but I don't think -that impugns his testimony
at all, and I accept his criticism as if he had been employed by the German
Government. One of those is the original report of the imperial board of health
and the other the reply to a criticism made by this same Professor Liebreich.
And to show how experts disagree, Professor Liebreich came to this country last
year to testify in some cases in Pennsylvania on behalf of borax and sulphite of
soda, which Professor Vaughan condemns--he would not allow it used in any
quantity.
Professor Liebreich appeared before the court in Philadelphia in the case
where the hamburger-steak people who had been treating hamburger steak with
sulphite of soda were made defendants; and he testified that in his opinion
almost any quantity of sulphite of soda could be used with impunity in meat; and
the court asked him, "Professor Liebreich, do you use it in your meats at your
home I" And he said: "No; I do not." "Would you use it if you wanted to?" was
asked; and he replied, "I don't want to," and his whole testimony fell just on
that. I was told--I don't know just how true it was-that he received $4,000 for
coming over here. One of our young men, who was not nearly so famous as
Professor Liebreich, went over to Philadelphia and testified before the same
court, and on his testimony the judge and jury found against the testimony of
Professor Liebreich, whose criticism of my report I will submit as soon as it is
ready. That shows that Liebreich and Vaughan agree on borax. Vaughan and Wiley
agree on sulphite, and I differ from both of them on the borax question, and
they differ from each other on the sulphite.
That shows the conflict in opinions which you gentlemen are called upon to
consider. It is something confusing, but of course you have to rely upon the
character of the data after all. If you find that the data which I present are
not reliable, have not been obtained in a proper way, my opinion is worth very
little, and, as Professor Liebreich says, "I will accept the data as they are,
and then I will draw an opinion which is entirely different," just what I told
you yesterday could be done.
MR. RYAN: Do you believe a Congressionaf committee, none of whom are
chemists, are competent to judge between those opinions of eminent chemists who
have formed those opinions after having analyzed the food?
DR. WILEY: I think they are absolutely competent, just as a jury would be
upon the same thing in the weighing of evidence.
You see the evidence as the weigher of evidence, and not as experts. You see
it as a jury. I think this committee is absolutely competent to decide a
question of that kind on the evidence submitted here.
MR. BARTLETT: We have a good many bills before us, and there is where this
question must come before the court and the jury.
DR. WILEY: That is true so far as the Hepburn bill is concerned somebody must
render an opinion before you can bring an indictment, and then that opinion is
subject to review of the court. That is the plain principle of the law, and
surely you would never try to bind the court by any statements or anything else
which any expert might set up.
MR. BARTLETT: You will find one court and a jury deciding that a certain
thing ought to be put in, and another that it ought not.
DR. WILEY: It should be carried up to the highest court.
MR. BARTLETT: In one locality a jury and a judge, with men on trial for not
permitting a certain statement, might acquit one man and convict another.
DR. WILEY: Exactly, and you will find when I submit the evidence from the
English courts that that very thing happens all the time. You must leave it to
the court. Every man can have his opinion, but that must not bind the court; an
expert's opinion never can.
MR. ESCH: I noticed that Rost came to the conclusion that the use of borax or
boracic acid resulted in almost every case in a reduction of weight. Did you
find that true in your experiments?
DR. WILEY: Yes, sir; you will find that in this chart. We never found an
exception.
MR. MANN: Before you pass from the subject of borax, I would like to have
your statement in reference to the use of borax under the provision of the bill,
which in the Hepburn bill was removed by maceration.
DR. WILEY: I heartily approve of that provision in regard to preservatives of
food products intended for export. I have a little article that I am going to
submit on that, Mr. Mann, in better form. There is a chart here (in Bulletin 84)
showing by the position of the lines, the loss of weight which these young men
suffered. I don't think it is a very serious matter if a man loses a couple of
pounds in weight.
MR. TOWNSEND: You found some of them were gaining weight, as I understood
you, and you had to reduce their food.
DR. WILEY: Our foods were constant as long as they could eat. Until they
became ill their food was never diminished throughout the preservative period.
MR. TOWNSEND: Didn't you state that you had to watch them closely to see if
they were gaining?
DR. WILEY: That was before we began to establish the equilibrium; that was in
the fore period.
Now, I have a transcript there which I think will prove. very helpful to you
gentlemen. You have heard a great deal about the finding of the English
departmental committee. I want simply to quote the evidence of Professor W. D.
Halliburton, who is the most distinguished physiologist of the English-speaking
people. Professor Vaughan would be very glad to tell you the same thing. He came
over here last year and gave a series of lectures. His work is a textbook on
chemical physiology and pathology. I want to read you just one or two things,
which you might not read, that I have extracted from his testimony.
The English committee forbade the use of preservatives in certain food
products, and recommended that a limited quantity, which they mentioned, should
be permitted in other food products. While that has never been made a law by act
of Parliament, the courts are all guiding their decisions on the report of this
committee. For instance, if they do not find any more than one-half of 1 per
cent of borax, they do not convict a defendant. If they find less than 1 grain
of salicylic acid to the pound, they do not convict a defendant. But they
convict any defendant who puts preservatives in milk of any kind. The evidence
of Professor W. D. Halliburton is as follows--that part which I wish to
read--and it can be verified if anybody wishes to.
I would say at the outset that the kind of evidence that I have to offer is
not very largely clinical. The amount of medical practice which I have seen is
limited. Very soon after my student days, I took to physiological work, and I
have remained at that more or less ever since, so that the actual observations
that I have to make are in the nature of physiological experiments, and deal
principally with the two chief substances that you have under investigation,
as I understand--compounds of boron and formaldehyde. On general principles
one would object to the continuous use of antiseptics. The substance which
would destroy the life of micro-organisms could not be expected to be
beneficial to the life of a higher organism; it would be largely a matter of
dose. I mean to say the same dose that would kill a bacterium would not
necessarily kill a man, but still it would be hostile to the protoplasmic
actions that constitute the life even of a high animal like man.
Q. 7541 (p. 264). Then, as to boric acid, you have made extensive
experiments?--A. With borax and borates I have made a fair number of
experiments. In the introduction I allude to what is known as "borism." The
eruption occurs on the skin of certain individuals as the result of the use of
either boric acid or borax. There have been other cases recorded--although
here again I can not speak personally--in which dyspeptic troubles have
arisen. There have been a fair number of experiments performed upon animals.
Q. 7544. Boric acid is the commoner preservative, is it not?--A. I am not
so sure. I think very largely a mixture is used that is called "glacialin"--a
mixture of boric acid and borax. In animals the chief advantage, if one may
put it so, of the poison is that it is not cumulative; it does not accumulate
in the body, but it is rapidly eliminated by the urine.
Now, I put it to the committee this way: Here is an opinion of a man whose
fame is far greater even than that of Dr. Vaughan. I believe that every person
acquainted with medical and physiological literature in the United States will
say that Professor Halliburton is the greatest living exponent of physiological
chemistry in English-speaking countries. Could there be a more sweeping
indictment brought against these preservatives than Professor Halliburton has
stated? He says of borax and boric acid that the chief advantage of these
poisonous bodies is that they are rapidly eliminated from the system, and he
further states that the continual passage of these foreign bodies through the
cells of the kidneys, to put it mildly, as he does, is not likely to do them any
good. And yet Professor Vaughan advises this committee to permit the use of
boric acid in foods in quantities not to exceed one-half of 1 per cent.
Professor Halliburton says further, in answer to question 7572: " May we take
it, then, that in your view you are absolutely opposed to the use of
formalin?--Yes.
Q. 7573. And with regard to the other preservatives, if they were labeled
that would meet your objection; is that your position generally?--A. No; I
feel that the ideal condition of things would be to prohibit them all.
Q. 7574. All preservatives?--A. All preservatives.
Q. 7575. Even salt?--A. No; I am not speaking of substances which are
normal constituents of the body.
Q. 7576. Would you prohibit nitrate of potash, too?
A. One knows, even from smoking cigarettes, that nitrate of potash is not
absolutely harmless.
So I say to our manufacturers: "Take the American people into your confidence
and your business will be placed upon a foundation from which it can not be
shaken nor removed." I say, as a plain business proposition, that the men who
put preservatives in foods had better stop it for their good and for the good of
their business; and they will. And in five years from now (mark my words, Mr.
Chairman), bill or no bill, we will not have to come here to argue about this
matter, because there will be nothing to argue about--because this ethical
principle, aside from any injury to health or anything of that kind, is one
which appeals, not only to the people who consume, but to the people who make
the goods which they eat. With these remarks, I submit the case to your
judgment, saying that whatever your action is I shall heartily support, with
what little influence I have, any measure which you bring forth, to have it
enacted into law. [Applause.]
PREVIOUS LEGISLATION
Congress enacted a law conferring plenary power on the Secretary of
Agriculture to exclude adulterated and misbranded foreign articles from entry
several years ago. Its terms are as follows:
The Secretary of Agriculture, whenever he has reason to believe that such
articles are being imported from foreign countries which are dangerous to the
health of the people of the United States, or which shall be falsely labeled
or branded either as to their contents or as to the place of their manufacture
or production, shall make a request upon the Secretary of the Treasury for
samples from original packages of such articles for inspection and analysis,
and the Secretary of the Treasury is hereby authorized to open such original
packages and deliver specimens to the Secretary of Agriculture for the purpose
mentioned, giving notice to the owner or consignee of such articles, who may
be present and have the right to introduce testimony; and the Secretary of the
Treasury shall refuse delivery to the consignee of any such goods which the
Secretary of Agriculture reports to him have been inspected and analyzed and
found to be dangerous to health or falsely labeled or branded, either as to
their contents or as to the place of their manufacture or production or which
are forbidden entry or to be sold, or are restricted in sale in the countries
in which they are made or from which they are exported.
DR. WILEY: I will say that the Germans no longer attempt to send boraxed
sausages to this country. They were making them and sending them to this country
when they were not permitted in their own country; but our law says that
anything that is forbidden in any country can not be sent from that country
here, and so we simply excluded those goods because they were excluded in
Germany; not on account of any decision respecting their health.
The same way with salicylic acid. You can not import anything into this
country from Germany or France that contains salicylic acid because that is
forbidden in those countries but you can from England.
MR. TOWNSEND: We do not propose to be as liberal as they are. We forbid their
manufacturing and selling it here but allow them to sell it abroad.
MR. MANN: Is the amount of borax in these duck eggs of such a percentage as
to be, without question, injurious to health?
DR. WILEY: If consumed as food, absolutely without question; and we are not
required, I think, to say that we will follow a man and see whether he tells the
truth or not as to what he is going to do with it. I do not think that this firm
in this case would have done anything but what they said,. because they are most
reputable and honorable men; but suppose some other person had done it?
MR. MANN: If this provision in the Hepburn bill had been in the law, you
would have been required to take some action of that sort, I suppose?
DR. WILEY: Yes; and I hope the committee will read the paragraph where I have
spoken about that. I think it is a very unfortunate thing that we are required
to go into a man's kitchen and supervise his cooking, and I think that when you
come to look into that thing you will find it would be the one unconstitutional
thing in it, because it is a pure police regulation, which is solely committed
to the States.
MR. TOWNSEND: In what bill is that?
DR. WILEY: The Hepburn bill--the clause which says that the thing must be
judged when it is fit for consumption. Now, the preparation of a food for
consumption is certainly under the supervision of the police powers of the
States, and it is not in the unbroken packages which the law specifies as the
only goods to which this law shall apply.
MR. MANN: The provision of the Hepburn bill is not quite that, Doctor.
DR. WILEY: But I want to say to you, gentlemen, that I am not frightened
about that clause of the bill at all. That is just a little principle of ethics
and constitutionality. Not being much of a constitutional lawyer I only suggest
it; but I would like to have my distinguished friend here [Mr. Bartlett] look
into that point of it particularly.
MR. ESCH: Is saltpeter still used as a preservative anywhere, Doctor?
DR. WILEY: I do not think saltpeter was ever used as a preservative. It was
used to preserve color, but not to preserve food.
MR. MANN: Is it injurious?
DR. WILEY: I think saltpeter is a very injurious substance. It acts
specifically on the kidneys very injuriously, and Professor Halliburton, whom I
quoted this morning, agrees perfectly with that statement.
MR. ESCH: Corned beef is colored with the use of saltpeter, is it not?
DR. WILEY: That is just the same principle again. I would not be afraid to
eat a piece of corned beef, because the amount of injury would be immeasurably
small. Do not misunderstand me. I am not saying that it should not be used in
corned beef. I would be sorry to see it left out. But if you put it on the
principle of harmlessness, it could not go in. And that reminds me that I did
not show you the thing which is most indicative of my argument. I am glad you
mentioned that just now. I want that chart that was made this morning. A little
graphic representation of an argument sometimes helps a great deal.
The suggestion has been repeatedly made here that because food was injurious
we should legislate against it. Now, I have drawn here my argument in a graphic
form. This is a graphic chart showing the comparative influence of foods and
preservatives. Of course we have to assume the data on which this chart is
constructed. You will understand that.

We will suppose that a normal dose of a drug in a state of health is nothing.
We do not need it at all. Now, imagine that the lethal dose of a drug--that is,
the dose that will kill--is 100; and then we go to work and measure at three
points--at 75, at 50, and at 25. There are points at which we can measure. We
can not measure up toward the right there, because the line almost coincides
with the basic line, and the deviation is so slight that no method of
measurement that we know of could distinguish them.
Then, if we use a little drug I can measure it here. I can measure it again
here [indicating], and I can measure it again here [indicating]. Now from those
three points I can construct a curve and calculate the lethal dose, which we
will assume to be 100. That much drug would kill; no drug would not hurt at all.
The relative injury of a drug can be calculated mathematically from a curve
constructed like that on experimental data, and I could tell you mathematically,
by applying the calculus there, just what the hurtful value of that drug would
be at an infinitely small distance from zero. You have doubtless, an of you,
studied calculus, and you know how you can integrate a vanishing function. I
used to know a good deal about calculus myself, and I could by integral calculus
tell you the injurious power of a drug at an infinitely small distance from
zero--that is, an infinitely small dose.
Now, see what a contrast there is between a food and a drug.
The lethal dose of a food is none at all. What kills you? You are starved to
death. The normal dose is what you eat normally, 100. I starve a man, and I
measure the injury which he receives at different points. I can mathematically
plat the point where he will die.
That one chart shows to this committee in a graphic form, better than any
argument could, the position of a drug in a food as compared with the food
itself. They are diametrically opposite. The lethal dose of one is the normal
dose of the other, and vice versa. Therefore the argument de minimis as far as
harmlessness is concerned is a wholly illogical and unmathematical argument, and
can be demonstrated by calculus to be so.
When the committee went into executive session to put this bill into its
final shape, I was asked to sit with them. This is as near to being a member of
Congress as I ever reached.
FINAL ACTIVITIES
Thus ended the struggle for legislation controlling interstate commerce in
foods and drugs. It had been going on nearly a quarter of a century. In the
beginning the efforts were feeble and attracted very little attention. As the
work continued more and more interest was taken in the problem. Many of the
state authorities were keenly alive to the importance of national legislation.
They felt that without some rallying point their own efforts in individual
states would be lacking in completeness. The state officials who were most
active in this crusade were Ladd of North Dakota, Sheppard of South Dakota,
Emery of Wisconsin, Bird of Michigan, Abbott of Texas, Frear of Pennsylvania,
Barnard of Indiana, Hortvet of Minnesota, Allen of Kentucky, and Allen of North
Carolina. Many other food officials were interested and helpful, but these were
the outstanding members of the state food commissioners who took the most active
part in the matter. All the great organized bodies interested in the health of
the people, namely, the American Medical Association, the American Public Health
Association, together with the Patrons of Husbandry, and the Federated Labor
organizations of the country were actively engaged in promoting this measure.
Perhaps the greatest and most forceful were the Federated Women's Clubs of
America and the Consumers League, They took up the program with enthusiasm and
great vigor. Two of the leaders of this movement were Mrs. Walter McNab Miller,
representing the Federated Women's Clubs, and Miss Alice Lakey, representing the
Consumers League. Their services were extremely valuable.

EDWARD FREMONT LADD
Militant Food Administrator of North Dakota, at Denver Convention

MRS. WALTER McNAB MILLER
Representing Federated Women's Clubs

MISS ALICE LAKEY
Representing the Consumers' League
Finally the movement received the approval of President Roosevelt in a
one-line sentence in his message to Congress at the opening of the fifty-ninth
Congress in December, 1905. The stage was set for action. The force of the
movement had passed beyond all restraining influences. The opposition of the
vested interests had lost all momentum. Victory was in the air. People talked
about the food bill on the streets, discussed it in clubs, passed resolutions in
favor of it in their meetings. It was evident the day of success so long looked
for and so eagerly awaited was at hand. It remained only for the Congress of the
United States to compose the differences between the Senate and the House bills
and put the final touches on legislation. It was a foregone conclusion that a
measure so popular and so universally acclaimed would receive without hesitation
the approval of the President.
The bill passed the Senate February 21, 1906, yeas 63, nays 4. The House
passed a similar bill June 23, 1906, yeas 241, nays 17. The conferees agreed
soon thereafter and President Roosevelt signed the bill June 30, 1906.

HISTORY OF A CRIME AGAINST THE FOOD LAW
CHAPTER II: THE POISON SQUAD
by Harvey W. Wiley, M.D., the very first commissioner of the Food and Drug Administration (FDA), then known as the “US Bureau of Chemistry.”

Vulnuratus, non victus.--Proverb

PROLOGUE
Confucius says:
"The commander of the forces of a large state may be carried off, but the
will of even a common man can not be taken from him."
In the foregoing pages attention was called to the experiments making on
healthy young men to determine the influence of preservatives and coloring
matters on health and digestion. The general method of conducting these
investigations was discussed. Altogether nearly five years were devoted to these
experimental determinations, beginning in 1902 and lasting until 1907.
The total number of substances studied was seven, namely, boric acid and
borax, salicylic acid and salicylates, benzoic acid and benzoates, sulphur
dioxide and sulphites, formaldehyde, sulphate of copper, and saltpeter.
Reports of these investigations were published, with the exception of
sulphate of copper and saltpeter, which were denied publication. In 1908 further
investigations of this kind were allotted to the Remsen Board whose activities
will be described in the following pages. The Bureau of Chemistry was
"grievously wounded but not conquerered" by this transfer of its activities.
ANOTHER THREATENING STORM
Anyone who has observed the occurrence of tornados, cyclones, and thunder
storms, especially in the spring, has noticed their tendency to occur in groups.
This is especially true of any particular locality and generally of those parts
of our country in which these visitations, often destructive to life and
property, are common. The storms which threatened the integrity of the food law
were of this kind. They were different, however, from the caprices of the
weather in the time of the year they occurred. The most threatening of them
arose, not in the spring, but in the winter of 1907. The transfer of authority
to execute the law from the Bureau of Chemistry to the Board of Food and Drug
Inspection, and from that Board to the Solicitor, was a very good introduction
to what occurred soon after January 1st, 1907. Even after the Bureau of
Chemistry was deprived of its power of autonomy, it still retained intact its
function of judging what was a threat to health.
WISE FORESIGHT
Prior to the enactment of the food and drugs law it was evident from the
increase in popular interest in this matter that the enlistment of organized
bodies of men and women interested in securing this legislation would sooner or
later become effective. It was considered the part of wisdom to prepare for this
much wished-for consummation. Numerous attempts had been made before the
Congress of the United States to change the wording of the proposed bill in such
a way as to eliminate the Bureau of Chemistry as the active executive
organization of the law when passed. All of these attempts had been almost
unanimously negatived by the Congress as often as they were offered. It seemed,
therefore, quite certain that when the law finally was secured the Bureau of
Chemistry would be retained as its executive agent. As early as 1902 authority
was obtained from Congress to carry on feeding experiments on healthy young men.
The language of the law follows:
"To enable the Secretary of Agriculture to investigate the character of
food preservatives, coloring matters, and other substances added to foods, to
determine their relation to digestion and to health, and to establish the
principles which should guide their use."
The object was to see if the preservatives and coloring matters added to
foods would have any effect upon the digestion and health of these young men.
Young men as a rule are more resistant to effects of this kind than children or
older persons. They represent the maximum of resistance to deleterious foods.
The deduction from this theory is that if the young men thus selected showed
signs of injury other citizens of the country less resistant would be more
seriously injured. Having received authority from Congress to proceed in this
matter, a small kitchen and dining room were provided in the basement of the
Bureau and a call issued for volunteers to join this experimental class. We
asked chiefly employees of the Bureau. We had no difficulty in securing twelve
healthy young men who volunteered their services and took an oath to obey all
rules and regulations which should be prescribed for the experimental dining
table. Their term of enlistment was made for one year. Up to this time no such
extensive experiment on human beings had been planned anywhere in the world. It
was not necessary to ask any publicity to this matter. It was a problem which
interested not only newspaper reporters and editors, but the public at large.
One reporter who was most constant in his attendance, and this was the beginning
of his reportorial work, had the happy faculty of presenting the progress of the
experiment in terms which appealed to the public imagination. He early
designated this band of devoted young men as "The Poison Squad." There was
rarely a day in which he did not visit the experimental table and write some
interesting item in regard thereto. This cub reporter is now the celebrated
author of the "Post-Scripts" in the Washington Post, George Rothwell Brown.

The Dining Room of "The Poison Squad"

LENGTH AND PURPOSE OF THE EXPERIMENT
For five years these experiments continued and investigations of an extensive
character were carried on with the preservatives which were in most common use.
The chemical and physiological data accumulated were vast in extent and
presented great difficulties in interpretation. Following the rule adopted by
the Bureau, every doubtful problem was resolved in favor of the American
consumer. This appeared the only safe ethical ground to occupy. Decisions
against the manufacturers who used these bodies could be reviewed in the courts
when the food law became established, whereas if these doubtful problems had
been resolved in favor of the manufacturers the consumer would have had no
redress. Without going into further detail in regard to these experiments it may
be said that one of the common colors and all the common preservatives used in
foods were banned from use by a unanimous verdict against them.

DATA PUBLISHED
The greater part of these data was published as parts of Bulletin 84, Bureau
of Chemistry. They comprise: Part I--Boric Acid and Borax; Part II--Salicylic
Acid and Salicylates; Part III--Sulphurous Acid and Sulphites; Part IV-Benzoic
Acid and Benzoates; Part V--Formaldehyde; Part VI--Sulphate of Copper; Part
VII--Saltpeter.
When the data relating to benzoic acid were submitted, the Remsen Board had
already been appointed. The Secretary, about to depart on vacation, sent for
George W. Hill, Editor of the Department, and said:
"Publish what you like during my absence except that the bulletin on
benzoic acid is not to go to the printer."
Mr. Hill misunderstood his instructions. He sent the benzoate bulletin to the
public printer with instructions to hurry it through. When the Secretary
returned the printing was finished. A reprint of it was promptly denied. The
total number of pages in the parts of Bulletin 84 which have been published is
1500.
DATA REFUSED PUBLICATION
Vigorous protests from those engaged in adulterating and misbranding foods
were made to the Secretary of Agriculture against any further publicity in this
direction. As a result of these protests he refused publication of Parts VI and
VII of Bulletin 84. Part VI contained a study of the effects on health and
digestion of sulphate of copper added to our foods. The conclusions drawn by the
Bureau were adverse to its use. The Remsen Board subsequently made a study of
sulphate of copper and reached a like decision. The ban on copper was based on
the work of the Remson Board and not on that of the Bureau, which preceded it by
three years. During this interval the use of this deleterious product was
unrestricted.
The seventh part treated of the use of saltpeter (sodium nitrite), particularly in meats.
Owing to the well-known results of the depressing effects of saltpeter on the
gonads, and for other reasons, the Bureau refused to approve the use of this
coloring agent in cured meats. These two bulletins still repose in the morgue of
the Department of Agriculture. They are not, however, deprived of companionship.
In the testimony of the Secretary of Agriculture before the committee on
expenditures in the Department of Agriculture (the Moss Committee), it is found
that the following additional manuscripts prepared by the Bureau of Chemistry
were refused publication, namely, Experiments Looking to Substitutes for Sulphur
Dioxides in Drying Fruits, by W. D. Bigelow; Corn Sirup as a Synonym for
Glucose, offered for publication in 1907; Sanitary Conditions of Canneries,
Based on Results of Inspection, by A. W . Bitting, offered for publication in
1908; Reprint of Part IV of Benzoic Acid and Benzoates, asked for in 1909;
Medicated Soft Drinks, by L. F. Kebler, offered in 1909; Drug Legislation in the
United States, by C. H. Greathouse, offered in 1909; Food Legislation to June
30, 1909, offered in 1910; The Estimation of Glycerine in Meat Preparations, by
C. F. Cook, offered in March, 1910; Technical Drug Studies, by L. F. Kebler,
offered in 1910; Experiments on the Spoilage of Tomato Ketchup, by A. W.
Bitting, offered in 1911; the Influence of Environment on the Sugar Content of
Cantaloupes, by M. N. Straugh and C. G. Church, offered in May, 1911; A
Bacteriological Study of Eggs in the Shell and of Frozen and Desiccated Eggs, by
G. W. Stiles, May, 1911; The Arsenic Content of Shellac, offered June, 1911.
All of these publications are in the morgue. They were objected to by parties
using preservatives and coloring matters and articles adulterated with arsenic,
and these protests against publication were approved and put in force by the
Secretary of Agriculture. In other words, all the principles which animated the
Inquisition were used by the Department of Agriculture to prevent any further
dissemination of the studies and conclusions of the Bureau in regard to the
wholesomeness of our foods. The whole power of the Department of Agriculture was
enlisted in the service of adulteration which tended to destroy the health of
the American consumer. On the appointment of the Remsen Board further
investigations by the Bureau were ordered to be suspended.
Further information regarding the activities of the Poison Squad were
presented to the Committee of Interstate and Foreign Commerce during the final
hearings on the Food and Drug Legislation. This information has the
distinguishing tone of question and answer which adds much to its interest and
value. Quotations from those hearings follow:
THE BORAX INVESTIGATION
HEARINGS BEFORE THE COMMITTEE ON INTERSTATE
AND FOREIGN COMMERCE
DR. WILEY: Now, I want to introduce the borax bulletin in evidence; not to
have it copied, but simply to have it as an exhibit, because all of you have
copies in your desks. That will answer the question which was asked me yesterday
about the kind of work done by these young men. You gentlemen need only to
glance through this book of 477 pages to see the amount of labor that has been
put upon this investigation.
MR. TOWNSEND: When did you begin your investigation of boric acid?
DR. WILEY: In the autumn of 1902.
MR. TOWNSEND: How long were you experimenting on that?
DR. WILEY: We were from the 1st of October to the 1st of the following July.
MR. TOWNSEND: About nine months?
DR. WILEY: Yes, sir.
MR. TOWNSEND: How soon after that did you make a report?
DR. WILEY: On the 25th of June, 1904; just about a year after the close of
the investigation.
MR. TOWNSEND: You did not publish it in 1903?
DR. WILEY: We published a synopsis--a preliminary report--in 1903.
MR. TOWNSEND: You said yesterday that you had not had time, as I remember it,
or had not been able--I don't remember just exactly how you answered it--to
report your investigation of benzoic acid, which had only occupied three months
and which was completed in the fall, as I remember it, of 1902.
DR. WILEY: On benzoic acid?
MR. TOWNSEND: Yes; benzoic. acid.
DR. WILEY: The benzoic-acid investigation was not begun until the spring of
1904, and was completed before November, 1904.
MR. TOWNSEND: Are you sure about that? As I took it down yesterday in a note,
it was begun in the fall of 1902.
DR. WILEY: Then you misunderstood me; it was not. I was referring to the time
I commenced the first investigation.
MR. TOWNSEND: Then I misunderstood you. Who assisted you in making those
investigations on borax and benzoic acid?
DR. WILEY: About twenty or twenty-five men besides the subjects.
MR. TOWNSEND: Were any of them of national reputation as scientists?
DR. WILEY: Dr. Bigelow, who is here, is a man of good reputation. He is the
one who collaborated with me in, particular. The others are chemists in fair
standing, but they are not men of great reputation in a personal way.
MR. TOWNSEND: Connected with the Department?
DR. WILEY: Connected with the Department of Agriculture here; yes, sir. I
will explain the method of investigation briefly, because I know you gentlemen
do not care to read this voluminous document.
The young men were selected mostly from the Department of Agriculture--I
believe the first were all from the Department of Agriculture. They were young
men who had passed the civil-service examinations, and therefore came to us with
a good character, as is usual in such cases. These young men were volunteers. We
explained to them fully the character of the work that we proposed to do, not
particularly stating what we were going to give them, or how, but what our
general purpose was, and that was to place in good wholesome foods certain
quantities, which we were to select ourselves, of the ordinary preservatives and
coloring matters used in foods, and to feed them on these foods with such
materials in them.
MR. TOWNSEND: Exclusively with those materials?
DR. WILEY: Oh, no. I will explain, and you will understand how we did it.
These men signed a pledge in which they agreed on their honor to carry out all
the necessary regulations. They signed a pledge to eat nothing or drink nothing
excepting what we gave them at the table. They signed a pledge to pursue their
ordinary vocations without any excesses and to take their ordinary hours of
sleep. They agreed that they would collect and present to us every particle of
their secreta, so that none of it should be lost, and to follow out the rules
and regulations necessary to carry out the conduct of the work.
MR. ESCH: Did you require any physical examination?
DR. WILEY: Yes, sir; we had a surgeon detailed from the Public Health
Service, who examined all of these men physically and saw that they had no
disease, and that they had had no disease within a year, or any sickness of any
kind.
MR. TOWNSEND: They were allowed to live at their homes?
DR. WILEY: Yes, sir.
MR. TOWNSEND: How did you collect their perspiration?
DR. WILEY: Perspiration was not collected excepting in one case. We collected
perspiration in one case to determine how much borax was exuded through the
skin, but in no other.
MR. BARTLETT: You had a release if they died?
DR. WILEY: Yes, sir; from any injury that they might receive.
That was their preliminary work. The first thing which we did was to
ascertain, by their own choice largely, the character of good wholesome foods to
be used, absolutely free of adulterants, a natural diet which would keep their
bodies in a state of equilibrium so that, neither the question of added weight
or of losing weight--that is to say, in a fore period, which was a period of
about ten days, the body was weighed every day, the amount of food which they
ate was weighed, and if they gained a little we cut it off, and if they lost a
little we added a little to it--so that by the end of ten days we could get
their normal ration. Meanwhile their excreta were collected and analyzed, so
that we had a complete check on the normal metabolic process by which the food
was utilized in the body and the refuse matter excreted. You will understand
that the only excretions that we got were the urine and the feces. All of the
others were so small in proportion to the whole mass that they were neglected;
in fact, it is impossible to get them; no one has ever attempted it. Then we
began by adding to the food one of the common preservatives--borax was first. We
had twelve young men, and to six of them we gave borax in the form of boracic
acid, and to the other six borate of soda, to see if there was any difference in
the effect of those two forms of borax attending the metabolic process.
MR. TOWNSEND: Did you explain that this was a dangerous process?
DR. WILEY: We told them that they might receive some injury from it.
MR. TOWNSEND: That is the reason you took a release?
DR. WILEY: We certainly would not ask the young men to submit to it without
an explanation. We told them, of course, that there was no danger by poisons,
but that there might be some disturbance to their systems.
MR. TOWNSEND: You thought that there was nothing; but you took a release
because there was danger of losing life, in a sense.
DR. WILEY: Yes, sir; we kept nothing from them at all.
MR. TOWNSEND: Do you think that had any effect upon them?
DR. WILEY: We discuss that in the book. That has been one of the objections
urged against this work, and it would be urged against any work of the same
kind.
MR. CUSHMAN: Is that the bunch known to the public as the "poison squad"?
DR. WILEY: That is the one. I suppose it was the most widely advertised
boarding house in the world.
Now, when we had established their normal diet, then they agreed to eat it
every day whether they wanted it or not, because that was the important part of
the experiment, that the food ingestion must be constant, otherwise you could
not study the effect of the added substance on metabolism.
MR. TOWNSEND: Do you explain the effect in your book?
DR. WILEY: That is all explained in the greatest detail.
Now, of course, they did that as long as their digestion was not impaired.
When it did become impaired they were released at once from any further
administration of the drug. That was all we wanted to do--to get the first
effects, never any more. We did not carry it to any extreme. Once a man was
undoubtedly affected he was released. You may ask how we knew how any
disturbance produced was due to borax, and I answer because we eliminated all
the variables but that one. in the case of the man who had led the same life,
pursued the same vocation, eaten the same food, and who did the same things, the
only variable was the preservative; so that if the variations are those which
would be expected to be produced by such a variable, we logically traced the
result of those variations to that one variable, and especially so if when we
withdrew it the disturbance was removed. Then the symptoms which had ensued
would be removed, and that was additional proof. Therefore as far as possible we
ruled out every influence excepting the one which we were controlling. Then we
had what we called "periods" of five days, so that we studied them in periods of
five days. We called it the first preservative period, the second preservative
period, and so on, until we had usually the preservative periods lasting for
about twenty days. That was the usual rule. That was followed by a period in
which nothing but pure food was given for ten days, the object being if possible
to restore the man to the normal state. I will say very frankly that ten days as
a rule was not long enough to do that; but as they then had a holiday and rested
for some time, it didn't make so much difference to us.
MR. TOWNSEND: What do you mean by a holiday?
DR. WILEY: We kept our table going all the time, but when a man had worked
for about forty days on these experiments we then allowed forty days' rest, the
same time that we had been working on him.
MR. BARTLETT: That is, you discontinued this character of food.
DR. WILEY: We gave him then nothing but pure food. We did not have to measure
his food or collect his excreta; and he simply rested and got ready for another
trial.
Now, in our first year's work we only fed six men at a time, so that we had
constant observation--six men on holiday and six men on observation--but in
subsequent investigations we found it much more convenient to feed all of the
men at the same time and give them the holiday at the same time. That appears
from the fact that the chemical work, so far as analysis of foods is concerned,
is just as great for six men as it is for twelve, because we did not analyze
each person's food, but the food which we gave all, so that we knew the
composition of it. Therefore one analysis would do for a hundred men just as
well as six. But the excreta that were turned in had to be analyzed
separately--that is, every day, or the composite for a number of days, whichever
seemed desirable.
MR. TOWNSEND: When you examined that excreta: did you examine for any other
substance besides boric acid or benzoic acid?
DR. WILEY: In the digestion of food the process is of two kinds. We have what
is called metabolized food and nonmetabolized food, which is found largely in
the feces. Parts of the feces never enter the system at all; they are the refuse
matter, and therefore we say that they are.nonmetabolized. We simply wanted to
determine how much protein, how much fat, how much sugar, etc., had come out in
the feces and had escaped digestion. Then we examined the urine, which contains
the principal part of the degradation products of the metabolized food. When the
food enters the system, after the process of digestion, it has two great
functions, as you gentlemen know. One is to supply heat and energy. That food is
all burned up and converted into water and carbon dioxide, just the same as you
burn a piece of coal in the fire and convert it into carbon dioxide and into
water. And the great mass of food which we eat is burned in the body and
produces heat and energy. Of course the water and the carbon dioxide that come
from the lungs and the skin we did not collect.
Then the food which goes to build the tissues, or enters into the tissue,
pushes out the degradation products in the same quantity when the body is in
equilibrium, just as you fill a tube full of marbles, and when you put one
marble in it you will push out another at the other end. Now, if I feed you on
nitrogen to-day or to-morrow, when I go to determine the nitrogen in your urine
I do not determine the nitrogen that you have eaten to-day or yesterday, but if
your body is in equilibrium the amount of nitrogen pushed out is exactly what
you push in. That is what we call the balance, and in that way we can determine
whether any substance added to the food disturbs the metabolic process and
interferes with digestion. And you can only determine it in that way. The amount
of disturbance is so slight that you will never notice it and yet so pronounced
that our chemical balance will reveal it.
MR. BARTLETT: Doctor, I see in the bill of fare that you give here that some
of the gentlemen took cranberries. What did you add to the cranberries,
anything?
DR. WILEY: No, sir; we took cranberries without anything. We did not add any
benzoic acid to those. I say that we used the ordinary foods, a plain ration, so
that each man would eat on the same day the same number of calories, the same
amount of nitrogen, the same amount of phosphoric acid, the same amount of
sulphur. We gave an excellent food, the very best of the retailed canned goods.
I will say that nearly all of our vegetables are canned vegetables. That shows
our attitude toward canned foods, which has been said to be very hostile. We
used them because they are more uniform in character, and when put up by
reputable firms are apt to be better than the vegetables that you can buy in the
open market. Our canned foods were canned to order, so that all that we used
during the year were exactly alike. And so important was that fact in the eyes
of an enterprising advertiser that he went to one of the firms that sold us
these goods--we didn't buy all from one firm--and wanted them to pay him
hundreds of dollars to write articles saying that we were using his canned
foods. Of course, we promptly refused to allow his name to be used.
MR. LOVERING: Did these young men know when they were eating pure food or
not, and in what proportion?
DR. WILEY: They did not know what it was, necessarily, or how much. That was
our business. All they knew was the fact that they were using something.
MR. MANN: For a long time the daily papers published what they were being fed
upon.
DR. WILEY: You can not always rely upon newspaper accounts of scientific
investigations.
MR. MANN: I suppose the young men read the accounts, and if you did not tell
them exactly what they were being fed they might have thought they were being
fed on something else.
MR. RYAN: This so-called "poison squad" was selected from employees of the
various departments.
DR. WILEY: Almost altogether from the Department of Agriculture. We had a few
from the other departments, however, and a few from a medical school.
MR. RYAN: Did they receive additional compensation for entering into this?
DR. WILEY: Not those that were in our Department. Those that came from the
outside were paid $5 a month in addition to the other. We had to give them some
compensation; they could not serve in the Department under other circumstances,
because it was illegal. We gave them a mere nominal sum so as to make their
employment legal. We would not take anybody who was not in the Department in
some capacity.
MR. BARTLETT: Did you use real butter or oleomargarine?
DR. WILEY: The butter was made to order, and contained neither salt nor
coloring matter--pure butter.
MR. ESCH: How about milk?
DR. WILDY: The milk came from dairies inspected by the District authorities
and by myself.
MR. ESCH: Did you at any time adulterate the milk?
Dim. WILEY: We sometimes put the preservative we used in the milk.
MR. BARTLETT: Formaldehyde?
DR. WILEY: Formaldehyde we did constantly, and borax part of the time.
MR. ESCH: How did the health of these men continue; have you any statistics
on that?
DR. WILEY: That is all here; everything is recorded in full.
MR. CUSHMAN: Can you tell, in a general way, some of the symptoms, or would
that be interrupting the effect of your remarks?
DR. WILEY: If you would like a résumé of the borax matter, I will give that
in a few words. I will take the experiment where we gave a minimum quantity,
such as you would ordinarily get if you ate meat and butter containing one-half
of 1 per cent of borax, in the ordinary quantities of meat and butter and other
preserved foods which a healthy man would eat. With the ordinary quantities of
butter and meat preserved with borax there would be consumed about 7-1/2 grains
of borax per day by each individual; and so we fed that for sixty days in
succession, beginning with the preliminary period of ten days, then following
sixty days in which we gave the borax.
MR. MANN: How much borax?
DR. WILEY: Seven and one-half grains a day. That was given in two doses. Part
of the time in one dose, and part of the time we divided it and gave 3-3/4
grains at one time and 3-3/4 grains at another time.
MR. TOWNSEND: How did you give it?
DR. WILEY: In butter and in milk and in capsules. We tried all methods.
MR. BARTLETT: Did you give any tomato catsup with any of these meats?
DR. WILEY: I don't think we did.
Now, I want to say this, because I regard it as important. For fifteen or
twenty days, or even longer in some cases, no visible effects were produced in
what you would call "symptoms. " The young men had normal appetites and
performed their work without any discomfort, and had no complaints. After that
time they began to eat their ration with some little discomfort. They were under
obligation to do it, but they often said: "I wish you could let this go; I don't
want it." Their appetites began to fail. At the end every one of their appetites
was very badly affected, and some of them were unable any longer to eat the full
amount. Of course we never required anything that was impossible. They developed
persistent headaches in most cases, followed by general depression and debility.
It was extremely well marked in every instance.
MR. KENNEDY: Did they get nauseated and want to refuse the food with the
preservative in?
DR. WILEY: They were occasionally nauseated. We had every variety of food
that anybody commonly eats. We varied their menu every day.
MR. KENNEDY: Did the boys seem to get tired of it; did they want to refuse
the food?
DR. WILEY: That is the reason we had to resort to capsules, because the very
moment he found it in the milk or in the butter he didn't want to use the
butter. I would say that this is all set out in here. We were led to the use of
capsules because of the objections to which you refer. It may be all wrong, but
that, of course, is a matter for you gentlemen to decide.
MR. ADA MSON: When they took the food, did it have some effect on the
appetite?
DR. WILEY: It had a worse effect in the food when they knew it was in the
food, because it became repugnant to them.
MR. KENNEDY: Don't you think this repugnance is nature's own method of
correcting these things I I remember that out in our town two fellows made a
wager with another fellow that he could not eat a quail a day for thirty days in
succession. He did it, but it made him sick. That was because there was nothing
wrong with the quail, but he was taking it too consistently.
DR. WILEY: There is a great difference between a quail and borax; the latter
is a drug.
MR. KENNEDY: A man's life was imperiled by his trying to win that bet; he
became very sick.
DR. WILEY: I will answer that by saying that it is the universal experience
of physicians that the drug habit grows; the more drug you take the more you
need to produce the effect, and the less its effect; so that it is just the
opposite to the effect that you mention.
MR. TOWNSEND: Did you try the same experiment with benzoic acid?
DR. WILEY: Not for so long a time, but a shorter length of time.
MR. TOWNSEND: But on the same plan?
DR. WILEY: The same plan. That will be fully brought out in the publication.
MR. WANGER: Was there, at the end of the period of the administration of
these preservatives, an immediate relief and restoration of the appetite, or was
that a slow process?
DR. WILEY: Unfortunately the effects in some cases were very much prolonged.
Some of the young men--the experiments ended in July, or in June, the end of the
year--and some of the young men complained even through the summer, and it was
late in the autumn before they recovered their full normal appetites.
MR. WANGER: That would furnish a strong presumption that it was not the
mental idea connected with the daily use of the preservatives that caused the
loss of appetite.
DR. WILEY: It might be that the mental attitude was a strong factor, but when
you get used to a thing after three or four days the mental attitude becomes
less important. And I got a beautiful illustration of that in our own
investigation, because I realized that a very reasonable objection is made
against experiments of this kind, against all pharmacological experiments, by
reason of the mental attitude of the patient, and I give full credit to the
objection in the book, which you will see. I discuss that fully and frankly, and
give value to the objections.
But this strange thing happened when we came to salicylic acid. We had an
almost new set of young men. We had a few that had come over from the borax
period, but one year of this kind of life is as much as a young man wants. They
enlisted for a year. So we had a new list. They must have had the same attitude
toward salicylic acid that the first set had toward borax, and yet when we began
to feed them salicylic acid there was an immediate improvement in the appetite;
most of the young men seemed better, wanted more to eat, and it had exactly the
opposite effect that borax had. Now, if it had been mental attitude in both
cases the effect upon these men would have been the same. But we had the
opposite effect. So I think that is the most happy proof. It came instantly,
unexpectedly; we were not looking for it. The effect of the mental attitude,
which must be considered, does not have the great importance that has been
ascribed to it.
MR. TOWNSEND: These men made releases?
DR. WILEY: Yes, sir.
MR. TOWNSEND: How do you explain the effect of a drug--the fact that the
constant use of it inures a person to it?
DR. WILEY: I think that is easily explained. As you get used to the effect of
a drug you never improve in health. The man who forms the opium habit takes more
and more of the drug, but his health goes down all the time. You can tolerate
more of the drug, but your health is going all the time, and it takes more of
the drug to produce a given effect.
MR. MANN: You say that in the experiments with borax the effects continued
some time after the feeding of the borax to the young men, so that there is a
cumulative effect of borax upon the system?
DR. WILEY: I referred to that yesterday, and I will restate it. Professor
Rost, of the imperial board of health of Berlin, whose work I have here,
criticized our work because we said that practically all of the borax was
eradicated from the body after ten days. He contends that a lot of it remains in
there for a longer time and comes out in the waste material a little at a time
for weeks and months, so that his testimony is very much more in favor of the
cumulative effects of those substances than our own.
MR. TOWNSEND: Have you tested for that?
DR. WILEY: We have made some tests on that during this last winter, but I
have not as yet collated and studied the data.
MR. MANN: Does your report show that in your opinion the use of borax has a
deleterious effect upon the organs of the body?
DR. WILEY: Of course you understand, Mr. Mann, the tests that we have made
are not the same as those made upon animals fed for pharmacological experiments,
because after a given time the animals are killed and their organs are examined,
and the changes in the cells are studied by the microscope. We were precluded
from doing that.
MR. MANN: Is that your conclusion?
DR. WILEY: My conclusion is that the cells must have been injured, but I had
no demonstration of it, because I could not kill the young men and examine the
kidneys.
MR. MANN: Your judgment was that the borax was excreted from the body; it did
not remain, but that the effects did remain? How else could the effect remain
excepting in some way affecting the organs of the body?
DR. WILEY: I think it must have affected the organs of the body. I think that
is conclusive proof of it.
MR. ADAMSON: Is the process of resolving these foods into their original
elements so difficult that scientists cannot furnish the people any practical
method of safely separating preservatives from food when they get ready to use
them?
DR. WILEY: It is quite impractical to separate the whole of any preservatives
from food, though it probably can be done.
MR. MANN: Does it make any difference how borax is administered, whether
administered by itself or administered in connection with foods, and is there a
difference in the effect between the administration of a preservative in milk or
in some kind of solid food, for instance?
DR. WILEY: The ideal way to administer substances of this kind would be in
solution in the food. But that has such practical difficulties that in almost
all pharmacological experiments like these which have been performed by the
thousand in the world, the method which we finally adopted as the best has been
adopted--that is, the introduction of the substance into the stomach in the form
of capsules, where nature quickly mixes it entirely up with the contents of the
stomach.
MR. MANN: Do not some scientists think that there is a difference in effect
whether it is administered in one food or another?
DR. WILEY: That is the objection I have seen in scientific publications and
in the public press urged against our work by Mr. H. H. Langdon, who has written
a great many letters condemnatory of the work. Mr. Langdon, as I have learned,
is employed by the borax company to do this work. He has called attention to
that point in the public press.
Many poetic descriptions of the poison squad were published, among the best
of which are the following by S. W. Gillilan and Lew Dockstader:

THE SONG OF THE POISON SQUAD
(Respectfully Dedicated to the Department of Agriculture)
By S. W. GILLILAN
0 we're the merriest herd of hulks
that ever the world has seen;
We don't shy off from your rough
on rats or even from Paris green:
We're on the hunt for a toxic dope
That's certain to kill, sans fail.
But 'tis a tricky, elusive thing and
knows we are on its trail;
For all the things that could kill
we've downed in many a gruesome wad,
And still we're gaining a pound a day,
for we are the Pizen Squad.
On Prussic acid we break our fast;
we lunch on a morphine stew;
We dine with a matchhead consomme,
drink carbolic acid brew;
Corrosive sublimate tones us up
like laudanum. ketchup rare,
While tyro-toxicon condiments
are wholesome as mountain air.
Thus all the "deadlies" we double-dare
to put us beneath the sod;
We're death-immunes and we're proud as proud--
Hooray for the Pizen Squad!

As Sung by Lew Dockstader--
in His Minstrel Company
Washington, D. C., week of October 4, 1903
If ever you should visit the Smithsonian Institute,
Look out that Professor Wiley doesn't make you a recruit.
He's got a lot of fellows there that tell him how they feel,
They take a batch of poison every time they eat a meal.
For breakfast they get cyanide of liver, coffin shaped,
For dinner, undertaker's pie, all trimmed with crepe;
For supper, arsenic fritters, fried in appetizing shade,
And late at night they get a prussic acid lemonade.
(Chorus)
They may get over it, but they'll never look the same.
That kind of a bill of fare would drive most men insane.
Next week he'll give them moth balls,
a LA Newburgh, or else plain.
They may get over it, but they'll never look the same.

HISTORY OF A CRIME AGAINST THE FOOD LAW
CHAPTER III: RULES AND REGULATIONS
by Harvey W. Wiley, M.D., the very first commissioner of the Food and Drug Administration (FDA), then known as the “US Bureau of Chemistry.”

After the enactment of the food and drugs law the necessary rules and
regulations for carrying it into effect were prepared. The law provided that a
period of six months should elapse and that the enforcement of the law should
begin on the first day of January, 1907. In the preparation of these rules and
regalations not only were the rights of the public at large to be conserved, but
also a due regard for the ethical interests in the food and drug industries. The
committee appointed to formulate these regulations held meetings in Washington,
New York and Chicago. Extensive advertisements of these meetings were published
and all interests involved were invited to appear and give their views.
Secretary Wilson named the Chief of the Bureau of Chemistry as his
representative on the committee authorized by the law to draft the rules and
regulations for the enforcement of the new act. The representative of the
Treasury Department was Mr. James L. Gary; the representative of the Department
of Commerce and Labor was Mr. S. N. D. North. The Chief of the Bureau of
Chemistry was named chairman. My colleagues entered most enthusiastically into
the discharge of the duties assigned to them. First of all they studied the act
in all of its relations. We sat almost continuously every day, and always with
cordial collaboration and mutual sympathy in the difficult task set before us.

COMMITTEE TO FORMULATE RULES AND REGULATIONS FOR ENFORCEMENT OF PURE FOOD LAW
From left to right: Dr. S.N.D. North, Dept. of Commerce; Dr. H.W. Wiley, Dept.
of Agriculture; and Mr. James L. Gary, Treasury Dept.
On the completion of our labors we each undertook to secure the signature of
our respective secretary. The Secretary of Agriculture promptly signed our
report; likewise the Secretary of Commerce and Labor. Mr. Gary had some little
difficulty in securing the signature of the Secretary of the Treasury. He
thought that the regulations were a little bit too severe upon some of the food
industries. Finally, however, he affixed his signature without any amendment
whatever to the rules and regulations as presented.
During the hearings accorded interested parties there appeared before the
committee practically the same interests that had been active in opposing the
enactment of the law. The same arguments with which the chairman of the board
had been so long familiar were repeated. Pleas for recognition of the use of
borax under the regulations were made by the fishing interests of Massachusetts;
the interests engaged in the manufacture of catsup begged for recognition of
benzoic acid. The manufacturers of syrups pleaded for permission to use sulphur
dioxide and were joined in this plea by the interests engaged in drying fruits
in California.
An interesting incident occurred in this connection. It was while the
committee was sitting in New York that the advocates for the recognition of
sulphurous acid and sulphites were heard. A particularly earnest plea was made
by the representative of the California interests, in which we were told that
failure to use sulphur dioxide would ruin the dried fruit industry of that
state. Reporters were constantly present at these hearings and this story of the
California interests got into the afternoon papers of this city. About seven
o'clock that evening the card of the California advocate was brought up to my
room. When he himself appeared he was considerably embarrassed. Finally he
stated the object of his visit. He said:
"My wife read an account of my remarks in the afternoon papers. On my
return to my apartment she chided me for what I had said. She urged me--almost
commanded me--to come to see you in regard to the matter and here I am. My
Wife does not allow any sulphur dioxide fruit to come onto our, own table. She
is so firmly convinced of the undesirability of this kind of preservative that
she will not allow me or any of my family to eat foods preserved with sulphur
dioxide."
This confession on the part of the representative of the California interests
I imparted to my colleagues the next morning before the hearings began.
It is hardly necessary to say that any regulation for carrying a law into
effect shall not presume to ignore any function of that law. As it was provided
in the law that the Bureau of Chemistry alone was to be the judge of what was an
adulteration and misbranding any decision of that kind under the rules and
regulations would be illegal.
The report of the committee after receiving the signature of the three
cabinet officers authorized to make the rules and regulations was finally
published on Oct. 17,1906.
FOOD STANDARDS COMMITTEE
Quite as important as the rules and regulations for carrying out the
provisions of the law was dependable information respecting the methods of
judging the quality of foods and drugs by standards which were legal and
conclusive in their character. About the time of the beginning of the
experimental work for determining the effect of preservatives and coloring
matters upon digestion was originated the idea of establishing under proper
authority standards of foods. Accordingly about 1902 a section was added to the
appropriation bill of the Department of Agriculture, authorizing the Secretary
of Agriculture to appoint a committee of this kind. Similar action was taken by
the Association of Official Agricultural Chemists. When this authority was
secured the following named representatives of Agricultural Colleges and
Experiment Stations were selected for this very difficult and important work:
Mr. M. A. Scovell, Director of the Agricultural Station of Kentucky, Mr. H. A.
Weber, Professor of Agricultural Chemistry in the College of Agriculture of the
State University of Ohio, Mr. William Frear, Assistant Director of the
Agricultural Experiment Station of Pennsylvania, Mr. E. H. Jenkins, Director of
the Agricultural Experiment Station of Connecticut, at New Haven, and Mr. H. W.
Wiley, Chief of the Bureau of Chemistry of the Department of Agriculture, at
Washington, D. C.

FOOD STANDARDS COMMITTEE
Left to Right: Prof. M. A. Scovell, Director, Agricultural Station of Kentucky,
H. A. Weber, Prof. Agricultural Chemistry, University of Ohio, Dr. William
Frear, Assistant Director, Agricultural Experiment Station of Pennsylvania, Dr.
E. H. Jenkins, Director, Agricultural Experiment Station of Connecticut; Dr. H.
W. Wiley, Chief of the Bureau of Chemistry, Department of Agriculture

This committee was enlarged subsequently by additional members, but the five
original members remained as its nucleus and principal actors until the
Secretary of Agriculture at the instigation of the Solicitor of that Department
abolished the committee by having the authority for its continuance withdrawn
from the appropriation bill. This, however, only temporarily prevented its
activities. Subsequently, after the Chief of the Bureau resigned, it was
reorganized and is still at work. The value of the contribution made by these
five original members is almost incalculable. We had frequent meetings lasting
for days at a time, usually held at the Department of Agriculture, but in many
cases we met in other cities where it was more convenient for interested parties
to attend. You may have some idea of the extent of our investigations by seeing
the official papers piled up on the table before us, as shown in the
illustration. The results of the deliberations of this committee were published
from time to time by the Department of Agriculture as official documents. They
have become the guide and director, not only of the national food law, but also
they have been approved and adopted by the various states.
Before this committee also appeared practically the same interests which on
the enactment of the food law appeared before the committee to establish rules
and regulations to carry the law into effect. They continually presented their
claims for indulgences before the Food Standards Committee. The character of
this opposition has already been definitely illustrated. It was not based on
ethical grounds but on individual and industrial interests without relation to
the welfare of the consuming public.
The result of all these preliminary investigations shows the wisdom and
timeliness of their inauguration. Had it not been for these fundamental
investigations the Bureau of Chemistry would have been totally unprepared to
have organized the machinery which immediately went into effect January 1, 1907.
It is hardly necessary to add. that all the conferences, indulgences and
collaborations with vested interests which thereafter were resorted to as a
means of defeating the purpose of the law have effectively nullified the
efficiency of the standards originally established.
The Secretaries of the Treasury and Commerce cannot be blamed for affixing
their signatures to these documents. They assumed that these decisions were
intended to carry the provisions of the law into effect. The Secretary of
Agriculture stood in a different position. He knew the exact purpose of putting
the decisions of the Remsen Board into effect. He boldly proclaimed that the
Board was created to protect the manufacturers. Leaving his Solicitor to
interpret the law, he was firmly convinced that these restrictions were legal
and binding. He gave himself wholeheartedly to the effective plan of prohibiting
the Bureau of Chemistry from exercising its duty to enforce the law according to
its letter and spirit. The food and drugs law became a hopeless paralytic. It
still breathed but its step was tottering and its hand shaky. The clot on its
brain has become encysted. There is no hope that it will ever be absorbed. Only
a capital operation will restore it to health.
FOOD INSPECTION DECISIONS
From June 30, 1906, the date the Food and Drugs Act became a law, until
January 1, 1907, when it went into effect, numerous questions were propounded to
the Bureau of Chemistry by interested parties respecting the scope and meaning
of many of its requirements. The Bureau of Chemistry to the best of its ability
interpreted, as the prospective enforcing unit, the intent of the law. Following
the usual customs in such cases these opinions were taken to the Secretary of
Agriculture for signature. The last Food Inspection Decision prior to 1907 was
No. 48, issued Dec. 13, 1906.
For a few days after January 1, 1907, the Bureau of Chemistry was
unrestricted in its first steps to carry the law into effect. Although all
matters relating to adulteration or misbranding were now solely to be
adjudicated by the Bureau, it was decided to continue to have these opinions, as
heretofore, signed by the Secretary. The first decision under the new regime was
signed by the Secretary Jan. 8, 1907. It discussed the time required to render
decisions. It was prepared because many persons presenting problems were
complaining of delay.
An open break in the plan of preparing decisions by the Bureau of Chemistry
for the Secretary came in the case of F. I. D. 64, signed. by the Secretary
March 29, 1907. The question was, "What is a sardine?" The Bureau prepared a
decision that only the genuine sardine prepared on the coasts of Spain, France
and the Mediterranean Islands was entitled to that name. The Secretary, due to
protests from the Maine packers, referred this problem to the Fish Commission of
the Department of Commerce. The Fish Commission, which had no function whatever
in describing what was a misbranding, made a decision diametrically opposed to
that reached by the Bureau. It was as follows:
Commercially the name sardine has come to signify any small, canned
clupeoid fish; and the methods of valuation are so various that it is
impossible to establish any absolute standard of quality. It appears to this
Department that the purposes of the Pure Food law will be carried out and the
public fully protected if all sardines bear labels showing the place where
produced and the nature of the ingredients used in preserving or flavoring the
fish.
The Fish Commission, being in the Department of Commerce, would consider any
commercial process or practice as of more importance than the plain provisions
of the food law looking to the protection of the public against misbranding. The
Secretary of Agriculture ignored the protest of the Bureau of Chemistry to this
decision, placing a trade practice above the plain precepts of the law. The
Secretary of Agriculture said:
In harmony with the opinion of the experts of the Bureau of Fisheries, the
Department of Agriculture holds that the term "sardine" may be applied to any
small fish described above and that the name "sardine" should be accompanied
with the name of the country or state in which the fish are taken and prepared
and with a statement of the nature of the ingredients used in preserving or
flavoring the fish.
The Ambassador of France earnestly indicated to me in a personal interview
his feeling that the sardine packers in France would be subjected to a ruinous
competition by permitting young sprats and young herrings to be prepared
according to the manner of the French sardine and thus enter into direct
competition therewith. I believe also the French Ambassador voiced his objection
to this decision in a diplomatic way with a protest filed with the Secretary of
State. Both this protest and the plain provision of the law that the Bureau of
Chemistry should decide all cases as to whether or not the articles were
adulterated and mi sbranded failed to have any effect whatever on the Secretary
of Agriculture. This was the second official departure of the Secretary of
Agriculture from the plain provisions of the law. His whisky decision, which
Secretary Bonaparte turned down, was the first.
THE BOARD OF FOOD AND DRUG INSPECTION
Soon after this incident the Board of Food and Drug Inspection was formed in
the Secretary's office. Theretofore the Chief of the Bureau of Chemistry had not
affixed his official signature to the Food Inspection Decisions which he had
prepared and the only signature these decisions carried was that of the
Secretary of Agriculture. After the organization of the Board of Food and Drug
Inspection the Secretary required that all the decisions of that Board submitted
to him for approval should be signed by at least two members of the Board. The
first decision thus signed was Food Inspection Decision No. 69. The three
members of the Board affixed their signatures to this and the Secretary of
Agriculture approved it on May 14, 1907.
FOOD AND DRUG DECISIONS SIGNED BY THE SECRETARIES
AUTHORIZED BY LAW TO MAKE RULES AND REGULATIONS
It so happened that when the decisions of this board were deemed of
extraordinary importance the practice arose of having them approved, not by the
Secretary of Agriculture alone, but by the three Secretaries authorized by law
to make rules and regulations for the enforcement of the act. When these
Secretaries therefore signed a Food Inspection Decision it became a rule and
regulation. The first decision of this kind thus signed was Food Inspection
Decision No. 76, concerning dyes, chemicals and preservatives in foods.
OPINIONS OF EXPERTS
Some time prior to the issuance of this decision, and in fact long before
there was any hint that the functions of the Bureau of Chemistry would be
usurped illegally, questionnaires had been sent to three or four hundred
prominent physiologists and dietitians in the United States as to their attitude
in regard to the use of preservatives and coloring matters in foods. The
questions propounded and the number of answers received, both negative and
affirmative, are as follows:
1. Are preservatives, other than the condimental preservatives, namely,
sugar, salt, alcohol, vinegar, spices and wood smoke, injurious to health?
Affirmative, 218; negative, 33.
2. Does the introduction of any of the preservatives, which you deem
injurious to health, render the foods injurious to health? Affirmative, 222;
negative, 29.
3. If a substance added to food is injurious to health, does it become so
when a certain quantity is present only, or is it so in any quantity whatever?
Affirmative, 169; negative, 79.
4. If a substance is injurious to health, is there any special limit to the
quantity which may be used which may be fixed by regulation of our law?
Affirmative, 68; negative, 183.
5. If foods can be perfectly preserved without the addition of chemical
preservatives, is their addition ever advisable? Affirmative, 12; negative,
247.
It is readily seen from this tabulation that the opinion of physiologists,
hygienists, health officers and physicians in the United States to whom these
questionnaires were sent is overwhemingly against their use. These opinions of
distinguished experts were obtained before the Remsen Board was ever thought of.
(Food Inspection Decision No. 76, Pages 5 and 6.)
Food Inspection Decision No. 87 is signed by the three Secretaries as a rule
and regulation. It is neither. It was an opinion that the term "corn sirup" is a
proper label for the substance commonly known as glucose. This opinion repealed
the opinion of the Bureau of Chemistry, which, after a long argument, was
endorsed also by the other two members of the Board of Food and Drug Inspection.
Thus the three Secretaries authorized by law to make rules and. regulations
usurped the function of the Bureau of Chemistry in regard to what was a proper
label under the law.
Food Inspection Decision No. 102 was signed by the three Secretaries,
legalizing the introduction into the United States of vegetables greened with
copper. This was clearly another usurpation of the functions of the Bureau of
Chemistry.
Food Inspection Decision No. 104 legalized the use of benzoate of soda and
benzoic acid and was signed by the three Secretaries authorized by law to make
rules and regulations for carrying out its purposes. It was directly contrary to
the decision of the Bureau of Chemistry that these preservatives were illegal
under the Act.
Food Inspection Decision No. 107 is the opinion of the Attorney-General that
the Referee Board was appointed in a perfectly legal way. In making this
decision Mr. Wickersham vetoed the decision of Assistant Attorney-General
Fowler, holding that the Referee Board was illegally appointed. He adopted in
the main the decision of Solicitor George P. McCabe that it was legally
appointed. The Referee Board usurped many of the specific functions of the
Bureau of Chemistry, committted to that Bureau by express wording of the Act.
Food Inspection Decision No. 113 as to the proper labeling of whisky and its
mixtures, a function specifically confided to the Bureau of Chemistry by law,
was signed by the three Secretaries, authorized to make rules and regulations
for carrying the law into effect. It repealed the decision of the former
Attorney-General, Mr. Charles J. Bonaparte, and all previous Food Inspection
Decisions relating thereto.
Food Inspection Decision No, 118 is an extension of No. 113, just described,
and of the same character.
Food Inspection Decision No. 127 is a decision of Attorney-General Wickersham
in regard to the proper labeling of whiskies sold under distinctive names. It is
also a complete reversal of the decisions in regard to proper labeling reached
by the Bureau of Chemistry, and confirmed by many decisions of federal courts.
Food Inspection Decision No. 135, in regard to saccharin, is a direct
assumption of authority granted specifically by law to the Bureau of Chemistry.
It was signed by the three Secretaries authorized to make the rules and
regulations for carrying the law into effect.
Food Inspection Decision No. 138 refers to the same subject and is signed by
the three Secretaries.
FAREWELL TO McCABE AND DUNLAP
On the publication of the report of the findings of the Moss Committee Mr.
George P. McCabe retired from the Board of Food and Drug Inspection, and Mr. F.
L. Dunlap was given an indefinite leave of absence. Mr. R. E. Doolittle was
appointed in Mr. McCabe's place.
Food Inspection Decision No. 140, issued Feb. 12, 1912, was signed by H. W.
Wiley and R. E. Doolittle and approved by James Wilson.
On Feb. 17, 1912, Mr. Dunlap, having returned from his vacation, signed
together with H. W. Wiley and R. E. Doolittle Food Inspection Decision No. 141.
On Feb. 29, 1912, Food Inspection Decision No. 142, in regard to the use of
saccharin in foods, was signed by two of the Secretaries, namely James Wilson
and Charles Nagel, but the Secretary of the Treasury dissented. This was a
function specifically committed to the Bureau of Chemistry by the law.
The last Food Inspection Decision which I signed was No. 141 as to the proper
labeling of maraschino cherries. Mr. R. E. Doolittle was appointed as acting
chief and took my place as Chairman of the Board of Food and Drug Inspection for
the remainder of its hectic career.
Mr. F. L. Dunlap resigned from his position as Associate-Chemist at the time
of the inauguration of President Wilson in his first term as President. Dr. Carl
L. Alsberg, who had been appointed Chief of the Bureau of Chemistry in the place
of R. E. Doolittle, became by that office the Chairman of the Food Inspection
Board and became associated with Dr. W. D. Bigelow and Dr. A. S. Mitchell as the
new Board of Food and Drug Inspection, the first decision of which was approved
by James Wilson, Secretary of Agriculture, Jan. 24, 1913.
RESIGNATION
On March 15, 1912, having been convinced that it was useless for me to remain
any longer as a Chief of the Bureau which had been deprived of practically all
its authority under the law, I resigned.
Letter of Resignation of Dr. H. W. Wiley March 15, 1912.
In retiring from this position after so many years of service it seems
befitting that I should state briefly the causes which have led me to this
step. Without going into detail respecting these causes, I desire to say that
the fundamental one is that I believe I can find opportunity for better and
more effective service to the work which is nearest my heart, namely, the pure
food and drug propaganda, as a private citizen than I could any longer find in
my late position.
In this action I do not intend in any way to reflect upon the position
which has been taken by my superior officers in regard to the same problems. I
accord to them the same right to act in accordance with their convictions
which I claim for myself.
After a quarter of a century of constant discussion and effort the bill
regulating interstate and foreign commerce in foods and drugs was enacted into
law. Almost from the very beginning of the enforcement of this act I
discovered that my point of view in regard to it was fundamentally different
from that of my superiors in office. For nearly six years there has been a
growing feeling in my mind that these differences were irreconcilable and I
have been conscious of an official environment which has been essentially
inhospitable. I saw the fundamental principles of the food and drugs act, as
they appeared to me, one by one paralyzed or discredited.
It was the plain provision of the act, and was fully understood at the time
of the enactment, as stated in the law itself, that the Bureau of Chemistry
was to examine all samples of suspected foods and drugs to determine whether
they were adulterated or misbranded and that if this examination disclosed
such facts the matter was to be referred to the courts for decision. Interest
after interest, engaged in what the Bureau of Chemistry found to be the
manufacture of misbranded or adulterated foods and drugs, made an appeal to
escape appearing in court to defend their prac tices. Various methods were
employed to secure this end, many of which were successful.
One by one I found that the activities pertaining to the Bureau of
Chemistry were restricted and various forms of manipulated food products were
withdrawn from its consideration and referred either to other bodies not
contemplated by the law or directly relieved from further control. A few of
the instances of this kind are well known. Among these may be mentioned the
manufacture of so-called whisky from alcohol, colors and flavors; the addition
to food products of benzoic acid and its salts, of sulphurous acid and its
salts, of sulphate of copper, of saccharin and of alum; the manufacture of
so-called wines from pomace, chemicals and colors; the floating of oysters
often in polluted waters for the purpose of making them look fatter and larger
than they really are for the purposes of sale; the selling of mouldy,
fermented, decomposed and misbranded grains; the offering to the people of
glucose under the name of "corn sirup," thus taking a name which rightfully
belongs to another product made directly from Indian corn stalks.
The official toleration and validation of such practices have restricted
the activities of the Bureau of Chemistry to a very narrow field. As a result
of these restrictions I have been instructed to refrain from stating in any
public way my own opinion regarding the effect of these substances upon
health, and this restriction has interfered with my academic freedom of speech
on matters relating directly to the public welfare.
These restrictions culminated in the summer of 1911 with false charges of
misconduct made against me by my colleagues in the Department of Agriculture,
which had it not been for the prompt interference on the part of the President
of the United States (William Howard Taft), to whom I am profoundly grateful,
would have led to my forcible separation from the public service. After the
President of the United States and a committee of Congress, as a result of a
searching investigation, had completely exonerated me from any wrong doing in
this matter, I naturally expected that those who had made these false charges
against me would no longer be continued in a position which would make a
repetition of such an action possible. The event, however, has not sustained
my expectations in this matter. I was still left to come into daily contact
with men who secretly plotted my destruction.
I am now convinced that the freedom which belongs to every private American
citizen can be used by me more fruitfully in rallying public opinion to the
support of the cause of pure food and drugs than could the limited activity
left to me in the position which I have just vacated. I propose to devote the
remainder of my life, with such ability as I have at my command and with such
opportunities as may arise, to the promotion of the principles of civic
righteousness and industrial integrity which underlie the food and drugs act,
in the hope that it may be administered in the interest of the people at
large, instead of that of a comparatively few mercenary manufacturers and
dealers.
This hope is heightened by my belief that a great majority of manufacturers
and dealers in foods and drugs are heartily in sympathy with the views I have
held, and that these views are endorsed by an overwhelming majority of the
press and of the citizens of the country.
In severing my official relations with the Secretary of Agriculture I take
this opportunity of thanking him for the personal kindness and regard which he
has shown me during his long connection with the department.
In a supplemental statement to Secretary Wilson Dr. Wiley says:
In transferring the management of the Bureau of Chemistry to other hands I
desire to direct your attention to a few matters in which I think you will be
interested.
I have always been a believer in the civil service law and have endeavored
to carry out both its spirit and its letter. For this reason I have strongly
opposed, except in cases of extreme necessity, the appointment of any person
in the bureau not secured from the civil service register.
It is also a matter of extreme gratification to me that in the twenty-nine
years which I have been chief of this bureau to my knowledge there has never
been a cent wrongfully expended and no officer or employe of this bureau has
ever been accused of misappropriation of public funds.
Those whose memories carry them back As far as 1912 will recall that the
resignation of the Chief of the Bureau of Chemistry created quite a commotion.
Not only were the newspapers and magazines full of references thereto, but the
caricaturists took up the fight. One of these cartoons in the Rocky Mountain
News depicted Uncle Sam bidding adieu to the departing Chief of the Bureau.
Another striking cartoon depicted Uncle Sam measuring the shoes of the departed
chief. Among the hundreds of editorial comments perhaps the most interesting are
those made also by the Rocky Mountain News., under the caption "The Borgias of
Business."
"If the people exhibited the same persistence in looking after their
interests that Illegitimate Business displays in looking after its interests,
the things of which we complain would soon be brought to an end, and
prosperity, like a tidal wave, would flood the land.
"For twenty years at least, the food poisoners of the country have waged
warfare on Dr. Harvey W. Wiley, and since the passage of the Pure Food act in
1906 they have trebled efforts to have him discharged. These Borgias of
business have won, for the circumstances attending Dr. Wiley's recent
resignation make it, in practical effect, a dismissal.
"Dr. Wiley resigned because the fundamental principles of the Pure Food law
have been strangled; because he has been powerless to punish the manufacturers
of misbranded and adulterated drugs and foods; and because the powers of his
position had been nullified by executive orders. * * *
"Dr. Wiley was only head of the Bureau of Chemistry, but there is every
reason to believe that President Taft will find that Dr. Wiley gave the
position an importance out of all proportion to its standing."
--From the Rocky Mountain News, March 21, 1912.

HISTORY OF A CRIME AGAINST THE FOOD LAW
CHAPTER IV: WHAT IS WHISKY?
by Harvey W. Wiley, M.D., the very first commissioner of the Food and Drug Administration (FDA), then known as the “US Bureau of Chemistry.”

RECTIFIED WHISKY THE FIRST CAUSE OF PARALYZING THE FOOD LAW
Whisky is a distillate, in a pot still, of the fermented mash of a cereal
or mixtures of cereals, containing all the natural elements of the grain and
the ethyl alcohol and its congeners, volatile at the temperatures of
distillation. It contains also the coloring matters and other soluble products
extracted from the wood (oak), in which it is stored and any new compounds
arising during storage. Potable whisky is kept in storage for four years.
--Definition by Bureau of Chemistry.
Whisky is used extensively as a medicine. Physicians differ widely in regard
to its medicinal value. The greater number of physicians think it has medicinal
value. A very respectable number look upon whisky as unsuitable for any
medicinal purpose whatever.
The ethyl alcohol in whisky, when taken in moderation, is oxidized and thus,
to that extent, becomes a food product. The damaging effects of whisky, however,
are so great as to render it impractical for food purposes. As a beverage whisky
was used extensively in this country before it was prohibited by Constitutional
amendment and the Volstead Act was passed regulating the enforcement of the
Constitutional provision. At the present time whisky for beverage purposes can
only be obtained illegally. The sources of all illegal alcoholic beverages are
shrouded in mystery, and severe and often fatal results follow their illegal
use. The Volstead Act prescribes the conditions in which they may be used for
medicinal purposes.
UNE CAUSE CELEBRE
In the fight for the food law the question "What is Whisky?" cut quite a
figure. As early as 1898 the question of the character of distilled alcoholic
beverages became quite acute. A heavy tax was laid on manufactured alcohol, both
for beverage and industrial use. A great change had been made in the method of
making pure alcohol. The continuous still, an implement which was continuously
charged with a fermented mash and which continuously produced a very pure spirit
revolutionized the process of distillation and made pure untaxed alcohol
remarkably cheap. This method of making neutral spirit was entirely different
from the manufacture of beverage whisky. The Congress of the United States had
legalized the mixing of genuine whisky with this neutral spirit, and coloring
and flavoring the mixture, by an Act defining rectifying. The so-called
rectified product was placed on the market under the name and appearance of the
genuine article. Existing law provided no penalties for this fraud.
In order that consumers might be able to protect themselves, certain
precautions were provided in the law. When a genuine whisky was first made it
was always placed in oak barrels for aging purposes. A stamp was placed on the
package, giving date produced, distillery making it, and other data required for
revenue purposes. When the package was tax paid and ready for consumption, an
additional stamp was affixed. The double stamp was the consumer's evidence that
no rectifier had handled that package. This assurance however, affected only the
first owner. When he decided to put the contents on the retail market he was
under no further obligation. He sold it by the drink at the bar or in small
packages to carry away.
For the protection of the individual consumer, Congress, in 1898, passed the
bottled in bond act. This law permitted dividing the product in fractions of a
gallon, each package having a United States little green stamp pasted over each
cork, showing the distillery where made, the size of the package, the date of
manufacture, and a guarantee of freedom from rectification.
This guarantee followed a rigid investigation of the wiles of the rectifier,
carried on in 1898, in which the Bureau of Chemistry took an active part. It was
then learned that there was a radical difference between a genuine whisky at
least four years old and the rectified product bearing the same name. Under the
pending food bill the rectifiers clearly saw that the products they were making
would have to bear labels showing just what they were. Their whole business was
founded on fraud. They made heroic efforts to prevent the passage of the Act.
After its passage they moved heaven and earth, or better, hell and earth, to
nullify its provisions. In the following pages will be found the high lights of
these efforts.
In the final hearings the rectifiers made every possible endeavor to kill the
bill. Anticipating the probability of the passage of the bill, it was deemed
advisable to study ab initio the whole question, historical and technical, of
the manufacture of whisky in this and other countries. The investigations made
by the Bureau of Chemistry covered fundamentally all angles of the problem. The
results were collected in typewritten form and were the basis of all the
testimony before the courts in the cases subsequent to the passage of the law. A
witness to the sound conclusions drawn therefrom is the universal approval given
by every Federal court before which the problem has been presented. No further
publication of this brief has been made. I have, as one of my most precious
documents, a copy, which, by the way, was the document called for by Judge
Thompson of Cincinnati in the effort of the rectifiers to have Food Inspection
No. 65 declared illegal.
In closing the discussion of the pending food bill before the Interstate and
Foreign Commerce Committee in 1906, the following reference to whisky (page 322)
was made:
Now we are ready, Mr. Chairman, for a short talk on whisky, if my assistants
will bring the samples forward.
I will not call attention to the testimony of Mr. Hough, because he was not
under oath; it is not expert testimony, but I want to say just this in regard to
his contention: As you know, I was instructed last year, with a view of
executing our food law respecting imported food products, to visit the
manufacturers in Europe, as far as I could in the time I had at my disposal;
and, especially, I was instructed by the Secretary to visit the distilleries in
Scotland and Ireland, where Scotch and Irish whiskies are made. I may say that
it was a very pleasant task to which I was assigned. [Laughter.] I was also
instructed to visit the Charente to see how the real French brandy is made, and
the Gironde to see how the real French wines are made, and the Rhine and Mosel
to see how the real German wines are made. I spent three months in this very
delightful task.
On my return I made a report to the Secretary of Agriculture, which he gave,
in abstract, to the press, and which was published all over this country and in
Europe. I stated that I had found that in Scotland whisky was made solely from
pure barley malt, fermented in the proper way and distilled in a pot still, and
that nothing else, in my opinion, was entitled to be called Scotch whisky except
that product.
I stated also that in Glasgow and Edinburgh I found distilleries importing
American maize, Indian corn--I was glad they were doing it; it is a good market
for us--and making a spirit out of it, and that this spirit was mixed with the
real Scotch whisky and sent to this country; and I doubted if there was a
barrel--and that was about true, as events have shown--of real Scotch whisky in
the United States.
I went to Ireland, and I found that whisky was made there exactly as it is in
this country in Kentucky, just as Mr. Taylor (who is the only expert called on
the question) has testified it was made. It is made there of barley malt and
unmalted grain, just as in this country, the malt being used to convert the rest
of the starch, and then it is fermented and distilled in a pot still and placed
in the warehouse, just as it is in England and in Scotland.
In this country, too, we have great distilleries of spirits which make
immense quantities of alcohol, and our law permits the mixing of different
spirits, under what is known as the rectifiers' clause of the internal-revenue
law, which says that anyone who "mixes without rectifying" these spirits and
makes a spurious whisky or gin or brandy shall be deemed to be a rectifier and
must take out a rectifier's license. So that the law specifically says in this
country that every mixed whisky is a spurious imitation of whisky. That is the
act of Congress of the United States, a pretty good authority when it comes to
definitions of that kind.
I said to the Secretary that in my opinion, if I were enforcing the law about
whiskies coming to this country--I am not; I have simply tried to get all the
information I could, and I did not want to begin to enforce a law without
knowing what I was doing--I believed I could exclude from this country, under
our law, any of these rectified whiskies which were offered.
At that time, while I was in London, they were about to begin a great trial,
which it was said would be the greatest trial that ever took place in that city
in regard to a manufactured product, in which a publican had been cited under
the English foods act for selling a bottle of whisky which was not of the
character, quality, and kind demanded. That is the language of the English food
act, and a very good one it is. That one sentence is the whole essence of the
act.
This publican was cited to appear. He was defended by the greatest lawyer in
England, Mr. Frederick Moulton, the leader of the English bar; and I was told
that $50,000 (£10,000) had been raised simply to pay the legal expenses of the
defense. This poor publican was worth nothing, but he was the man who was
charged with this offense, and this great rectifying industry was behind him.
They wanted to establish the fact that a rectified whisky was a Scotch whisky;
and that was what this suit was brought for, to show that it was not. I was
asked to go over there as a witness, and of course I could not go; but they
introduced my report to the Court, which the judge promptly ruled out unless
they produced me.
Yesterday, after I left the committee, I got this cablegram from London:
"Wiley, Agricultural Department, Washington. Whisky defendants convicted." And
it is the best news I have had across the ocean in my opinion, for a long time.
MR. MANN: Did you not see the account in the newspapers?
DR. WILEY: Yes, this morning; but this came yesterday.
Now, I want to say, Mr. Chairman, that I have not the least opposition to
rectified whisky. I will admit, for the sake of argument, that it is better than
the straight whisky. I. will admit it for the sake of the argument; I do not
really think so, but I will say that it is better. That is what the magistrate
said. I got the printed proceedings of the trial as they came off every week;
they sent out a. bulletin, and they had expert witnesses to testify that the
rectified whisky was less injurious, had less poisonous matter in it than the
straight whisky, and the magistrate said: "Well, perhaps that is true. If so,
why not say 'This is a rectified whisky'? because then you will get the trade."
MR. RYAN: But that was not the question at issue in that case, was it?
DR. WILEY: That was not the question at issue. The question was whether a
spirit that had any Indian corn spirit in it was a Scotch whisky or an Irish
whisky.
MR. RYAN: That was it?
DR. WILEY: Yes, sir.
MR. BARTLETT: It was sold as Scotch or Irish whisky?
DR. WILEY: It was sold as Scotch or Irish whisky.
MR. BARTLETT: And it turned out to be a rectified whisky.
MR. RYAN: The extract of corn is what they objected to?
DR. WILEY: Yes--spirit made from Indian corn. That covers this whole
contention.
A STRANGE OBSESSION
When Lloyd Bowers reached the opinion that a neutral spirit, even one made
from grain, was not entitled to the designation of whisky, even if it should be
colored and flavored, it is difficult to understand why he decided that this
article which was not a whisky could be added to real whisky, and then the
mixture could be called whisky, provided the characteristics of the real whisky
would not be too greatly diluted. Especially is this true when he had before
him, not only the decisions of the Federal Courts, but also the opinion of the
father of President Taft to the effect that neutral spirit was an entirely
different article from whisky. He also had before him the opinion of the English
Courts contained in Bureau of Chemistry Bulletin No. 102, issued Dec. 20, 1906.
1 give here a synopsis of the decision of the English case:
A whisky claimed to be Irish on the one hand and a second sample which
claimed to be Scotch on the other, was sold to a customer as the best Irish and
the best Scotch whisky. On analysis it was determined that it contained not less
than 90% of silent or neutral spirit made of maize. In passing sentence the
magistrate said:
"The offence committed by both defendants is the same, and the same
practically in degree. * * *
"It is time the fraud upon the public in the matter of the sale of whisky
was stopped, and, though doubtless these prosecutions are very costly to those
who engage in them, the information obtained and published in the course of
the hearing of these two summonses is most valuable, and the result of this
trial seems to me to afford ample justification for the prosecutions.
"Great blame attaches, in my opinion, to the 'blenders' who supplied Wells
and Davidge with the articles they sold. I do not think much moral blame
attaches to the defendants themselves, as I believe they trusted to those who
sold the articles to them to supply them with that which they might fairly and
honestly retail to the public as Irish and as Scotch whisky, respectively; but
at the same time, in my judgment, it was careless of the defendants to sell
what they, did as they did, and since they only are before me they must pay
the penalty for their infringement of the law. * * * The defendants, Thomas
Samuel Wells and James Davidge, will each pay a fine of 20s and 100 pounds
costs or be imprisoned in default of distress for two months in the second
division.
To continue the quotation from the final hearings:
"Now, I say that that is a business which is perfectly legitimate in this
country. I am sorry that our laws are so hard on the man who makes a straight
whisky, and so easy on those who make the mixed whisky; because you can not
make or sell straight whisky except under a Government stamp, under Government
supervision. You can add nothing whatever to it, not even coloring matter,
except that when you take it out of bond and sell it you are permitted to
reduce it with distilled water under the supervision of Government officials,
to proof--that is, half alcohol and half water.
That is the only thing that can be done. Then, if it is in a barrel, it has
the double stamp put on it to show that it is whisky right out of the
distillery. It can be. sold in bottles; you can pay the tax on it and take it
out of bond and put it up in any shape you please, or you can, under the law,
if you want to, have it bottled in bond. Those are the three forms in which
straight whisky can reach you. It can come in barrels, or it can be put up in
any kind of a package you please after you pay your tax on it, it makes no
difference what; or it can come bottled in bond, as this is. If any of you
have never seen a bottle of whisky bottled in bond, this is one.
MR. RYAN: The fact that it is bottled in bond is no evidence of purity or
quality?
DR. WILEY: It is evidence of quality; it shows that nothing has been added to
it except what nature put in the distillate.
MR. RYAN: Do you believe that when a blender or a rectifier adds anything to
whisky he is doing something deleterious to health ?
DR. WILEY: I do not think he intends to. He may do it unwittingly.
MR. RYAN: The blenders and the wholesale liquor dealers and rectifiers in New
York, for instance, are very much disturbed about this. I will state that I have
received some seventy or eighty telegrams since last evening in connection with
this matter. They fear that this law will show to the public, or attempt to show
to the public, or the public will assume, that whisky bottled in bond is the
proper thing and will injuriously affect their business, when, as a matter of
fact, it is no evidence of quality or purity that it is bottled in bond, as you
state now yourself.
DR. WILEY: Oh, I do not think you have quite quoted me, Mr. Ryan. I said it
was a guaranty of quality.
MR. RYAN: Of quality, yes.
DR. WILEY: But the word "purity" is used in two senses, unfortunately.
With regard to foods, I never use the word "purity" except in one sense. A
pure food is what it is represented to be. It has nothing to do with its
wholesomeness at all. A pure food may be unwholesome, as has been testified
here. You will see in my manuscript there that in showing what things occur in
nature in foods I show that hydrocyanic acid, the most violent poison, occurs in
a great many food products. They are pure foods, but they contain poisonous
matter."
TROUBLE BEGINS
The food bill became a law June 30, 1906. Immediately activities were began
by the fake whisky interests to nullify its requirements. Rectifiers appeared by
counsel or in person before the committee forming rules and regulations to carry
the law into effect. They made no impression on that body. They then began to
get in touch with the Secretary of Agriculture. These rectifiers were deeply in
earnest. They wanted to know "just where they were at." They feared most of all
the decisions of the Bureau of Chemistry. Here is one of the problems
propounded:
(FOOD INSPECTION DECISION 45.)
BLENDED WHISKIES
Many letters are received by the Department making inquiries concerning the
proper method of labeling blended whisky. Manufacturers are anxious to know the
construction placed by the Department upon this particular part of the food and
drugs act of June 30, 1906 and to ascertain under what conditions the words,
"blended whisky" or "whiskies" may be used. The following quotation from one of
these letters presents a particular case of a definite character:
"On account of the uncertainty prevailing in our trade at the present time
as to how to proceed under the pure-food law and regulations regarding what
will be considered a blend of whiskies, I am taking the liberty of expressing
to you to-day two samples of whisky made up as follows:
"Sample A contains 51 per cent of Bourbon whisky and 49 per cent of neutral
spirits. In this sample a small amount of burnt sugar is used for coloring,
and a small amount of prune juice is used for flavoring, neither of which
increases the volume to any great extent.
"Sample B contains 51 per cent of neutral spirits and 49 per cent of
Bourbon whisky. Burnt sugar is used for coloring, and prune juice is used for
flavoring, neither of which increases the volume to any great extent.
" I have marked these packages 'blended whiskies' and want your ruling as
to whether it is proper to thus brand and label such goods.
"My inquiry is for the purpose of guiding the large manufacturing interests
in the trade that I represent."
In a subsequent letter from the same writer the following additional
statement is made:
"The reason for wanting your decision or ruling in this matter is just
this: No house in the trade can afford to put out goods and run the risk of
seizure and later litigation by the Government on account of the odium that
would be attached. to fighting the food and drugs act."
To this a formal answer was prepared by the Bureau of Chemistry, and signed
by the Secretary.
The question presented is whether neutral spirits may be added to Bourbon
whisky in varying quantities, colored and flavored and the resulting mixture
be labeled "blended whiskies." To permit the use of the word "whiskies" in the
described mixture is to admit that flavor and color can be added to neutral
spirits and the resulting mixture be labeled "whisky." The Department is of
the opinion that the mixtures presented cannot legally be labeled either
"blended whiskies" or "blended whisky." The use of the plural or the word
"whisky" in the first case is evidently improper for the reason that there is
only one whisky in the mixture. If neutral spirit, also known as cologne
spirit, silent spirit, or alcohol, be diluted with water to a proper proof for
consumption and artificially colored and flavored, it does not become a
whisky, but a "spurious imitation" thereof, not entirely unlike that defined
in Section 3244, revised statutes. The mixture of such an imitation with a
genuine article can not be regarded as a mixture of like substances within the
letter and intent of the law.
(Signed) JAMES WILSON,
Secretary of Agriculture.
Washington, D. C.,
December 1, 1906.
Early in January, 1907, in the very first days of the enforcement of the law
it was discovered that the Secretary of Agriculture was very much perturbed in
regard to F. I. D. 45. At that time the star of the Solicitor of the Department
was rapidly increasing in brilliancy. The time was speedily approaching when the
head of the Department became only the vehicle to carry the will of the
Solicitor into action. I was cited to appear in the Secretary's office on the
22nd of February, 1907, for a conference on the whisky question. The birthday of
Washington was used to perpetrate the first overt act against the food law.
There were present at this conference the Secretary, and the Assistant Secretary
of Agriculture, the Solicitor, Mr. George P. McCabe, and the Chief of the Bureau
of Chemistry. The conference began by a statement by the Secretary that this
conference should be behind closed doors and no report of it should be made in
any way to the press.
I was first asked by the Secretary if the Bureau of Chemistry still held to
the principles contained in F. I. D. 45. I replied in the affirmative. He asked
the Assistant Secretary, Mr. Hayes, his opinion in the matter. Mr. Hayes
promptly voted in favor of the Bureau's definition of whisky. He then asked the
Solicitor his opinion. He replied, "Dr. Wiley's definition of whisky is absurd.
Whisky is any alcoholic beverage made from grain, properly colored and flavored,
according to the prevailing custom of the trade." The Secretary said, "I agree
with my Solicitor." I immediately called his attention to the fact that there
was only one body appointed by the Act to make an initial decision as to what
constituted misbranding or adulteration of foods and drugs, namely, the Bureau
of Chemistry. The only authority recognized by the Act to review this decision
was a United States judge. I said, "The Bureau of Chemistry decision will
therefore stand until over-ruled by a court of the United States." He replied,
"I will not take your construction of the law, but that of my Solicitor; that is
what he is here for, to interpret the law to me." This act of the Secretary and
Solicitor constituted the first abrogation of the Food Law by executive
authority and laid the foundation for a succession of similar violations.
As a matter of history I may say that I obeyed the Secretary's injunction to
make no report of this matter to the press. Immediately on leaving his office I
went to the Cosmos Club and called up Mr. Loeb, secretary to President
Roosevelt. I related to him what had happened in the Secretary's office and
asked him if he could come over to the Club and take luncheon with me. Loeb was
immediately and greatly interested in this decision. I pointed out in detail all
the circumstances which led to it. I felt certain that Secretary Wilson would go
to President Roosevelt with this illegal decision.
I asked Mr. Loeb to acquaint the President of what had happened and to get a
promise from him, if possible, that he would not give his approval to Secretary
Wilson's decision until I had an opportunity to lay the whole matter before him.
Later in the day Mr. Loeb called me over the telephone and said the President
had agreed to this delay. Meanwhile the papers were full of this decision. It
had been given to the press by some one of the four people who were present at
the conference. I was not the one who gave it to the press.
A DAY OF JUBILATION
The following day was one of rejoicing by the rectifiers all over the
country. They felt assured that F. I. D. 45 would be repealed without carrying
the matter to the courts. There was a slight error in their judgment. For two
weeks subsequent to this event the newspapers were filled with accounts of
pilgrimages, under the leadership mostly of United States Senators, of bodies of
rectifiers to the White House. Senator Foraker conveyed the rectifiers from
Cincinnati. Senator Lodge accompanied those from Boston. Senator Penrose led the
Philadelphia delegation. Meanwhile I was patiently waiting word from President
Roosevelt. One day while I was taking lunch at Harvey's a telephone message from
my office said the President would see me at two o'clock. I had prepared a
movable laboratory with all the elements necessary to manufacture ten year old
Bourbon or Scotch in a minute. I carried with me samples of pure, refined
alcohol from half a dozen different sources, namely from corn, barley, molasses,
and fruits, all alike in character, and all of equal degree of purity. I carried
an assortment of colors and flavors used by the rectifiers. When I drove up to
the White House with this peripatetic laboratory, I encountered a dozen or more
newspaper men who were eager to know what it all meant. I told them I had been
invited to give a lecture to the President of the United States. One of the
well-informed correspondents said to me: "You may think so, but you will find
that the President will do the lecturing." I carried my laboratory into the
President's office where I was politely received by the attendant and told that
the President would soon be in. In five minutes my audience appeared, the
President of the United States, and Mr. William Loeb, his secretary. For two
hours I performed experiments showing the President how all kinds of rectified
whisky, brandy and rum could be made in a minute. I received his undivided
attention. If he interrupted me at all it was only to ask for more definite
information on some points. At the close of this two hour lecture he came around
to my side of the table and grasped my hand, saying to me, "Dr. Wiley, I have
heard nothing but whisky for the last three weeks, and you are the first person
who has ever given me a single idea that I can comprehend. Then turning to Mr.
Loeb he said, "Send all these documents and samples, together with Dr. Wiley's
brief to Mr. Bonaparte, and ask Mr. Bonaparte to advise me on this question." Mr
Bonaparte did advise him. He sustained every single point that had been
presented by the Bureau as to what is really whisky. President Roosevelt ordered
the Commissioner of Internal Revenue and the Secretary of Agriculture, both of
whom were friends of the rectifiers, to publish jointly a decision defining
whisky in the light of evidence which had been presented. Thus ended the first
attempt to violate the Food Law by a complete triumph of the law itself. The
Secretary was convicted but not convinced. The breach thus made was never
closed. The Secretary was irrevocably allied with the foes of the food law.
BONAPARTE'S DECISION
The decision of the Attorney-General was sent to the White House on April 10,
1907. President Roosevelt wrote a letter to Secretary Wilson in the following
terms:
The White House,
Washington, April 10, 1907.
My Dear Mr. Secretary:
In accordance with your suggestion,* I have submitted the matter concerning
the proper labeling of whisky under the pure-food law to the Department of
Justice. I inclose the Attorney-General's opinion. I agree with this opinion
and direct that action be taken in accordance with it.
Straight whisky will be labeled as such.
A mixture of two or more straight whiskies will be labeled 'Blended whisky'
or 'whiskies.'
A mixture of straight whisky and ethyl alcohol, provided that there is a
sufficient amount of straight whisky to make it genuinely a 'mixture,' will be
labeled as a compound of, or compounded with, pure grain distillate.
Imitation whisky will be labeled as such.
Sincerely yours,
(Signed) THEODORE ROOSEVELT.
Hon. James Wilson,
Secretary of Agriculture."
*The President sent this problem to Bonaparte at his own suggestion as I have
already stated, not by request of Secretary Wilson.
The full opinion of Attorney-General Bonaparte is printed as an appendix to
Food Inspection Decision 65, issued April 12th, 1907. The Attorney-General's
opinion is a blend of legal learning and charming sarcasm. Those who are
interested in documents of this kind will do well to read the opinion in full.
As an illustration of the keen satire used by Attorney-General Bonaparte I
quote the following closing paragraphs of his decision:
" The following seem to me appropriate specimen brands or labels for (1)
"straight" whisky, (2) a mixture of two or more "straight" whiskies, (3) a
mixture of "straight" whisky and ethyl alcohol, and (4) ethyl alcohol flavored
and colored so as to taste, smell, and look like whisky:
(1) Semper Idem Whisky: A pure, straight whisky mellowed by age.
(2) E Pluribus Unum Whisky: A blend of pure, straight whiskies with all the
merits of each.
(3) Modern Improved Whisky: A compound of pure grain distillates, mellow
and free from harmful impurities.
(4) Something Better than Whisky: An imitation under the pure food law,
free from fusel oil and other impurities.
In the third definition it is assumed that both the whisky and the alcohol
are distilled from grain."
THE RECTIFIERS REFUSED
It is hardly necessary to add that the rectifiers who had been engaged for
many years under Government license in the manufacture of compounded and
imitation whiskeys failed to avail themselves of the method of labeling
suggested by the Attorney-General. After having secured the support of Secretary
Wilson for continuing their frauds upon the consumers of whisky, they were
dumbfounded by their failure to have F. I. D. 45 repealed. They were still more
greatly disturbed by having F. I. D. 65 substituted in its place. They were
defeated and discouraged, but not eliminated.
They immediately took steps to secure Court decisions for the purpose of
declaring both F. I. D. 45 and F. I. D. 65 illegal and void. To this end they
were wise in selecting the courts before which they proposed to bring their
petition.
They filed their first petition before the Federal District Court, sitting at
Cincinnati, Hon. A. C. Thompson being the presiding judge. Cincinnati was the
great center of the rectifying industry. For years the rectifiers had been
making in that city compounded and imitation whiskies designated by
high-sounding names and sold under claims of great age. This product was
derisively known locally as "Nigger whisky." The income from these spurious
whiskies was too large to be given up without a struggle. Some of the most
influential citizens of Cincinnati were engaged in the rectifying industry. They
were also supporters of the dominant political party. For this reason the court
of Cincinnati was considered the most favorable one in which to secure a
judgment declaring these standards of whisky illegal. The filing of this suit
was not made known to me until the Saturday previous to the hearing of the case
on the following Monday. I received an S. 0. S. telegram from the United States
District Attorney asking for my immediate presence in Cincinnati. I had only
time to secure a copy of the brief which I had left with President Roosevelt,
and which he had forwarded to Attorney-General Bonaparte, and take the train on
Sunday afternoon. The train was late and I did not reach the District Attorney's
office until 15 minutes before ten o'clock on Monday morning. The District
Attorney was utterly helpless in this matter. He knew nothing of the case and it
was impossible to instruct him in fifteen minutes. I told him the only hope was
to obtain from the judge a postponement of the trial, in order that we might
secure proper witnesses and that he should have opportunity to understand the
case properly. When Court opened the District Attorney promptly moved for a
postponement of two weeks. The attorney for the rectifiers, Mr. Warwick M.
Hough, vigorously opposed any postponement. The Judge also seemed reluctant to
grant the District Attorney's petition. Finally, however, he consented to an
adjournment of one week. At the end of the week the District Attorney was fully
acquainted with the nature of the proceeding and a number of competent witnesses
were on hand to defend the Government's position. Judge Thompson was
acknowledged to be one of the best District judges on the Federal Bench. He was
held in high esteem, not only for his legal ability, but as a citizen, always
interested in what was right and proper in regard to civic duty. At the
beginning of the trial he announced that it must be completed on that day,
including an hour granted to each side to make arguments before the court. He
also declared that each side should have an equal time for presenting the views
of witnesses. The matter for the state was forcibly presented, particularly by
Dr. Joseph P. Remington of Philadelphia, and Dr. John Uri Lloyd of Cincinnati.
Competent chemical testimony was also presented by the Bureau of Chemistry
before the Court.
After the arguments were made and the trial was over, all the witnesses for
the Government congregated in the office of the District United States Attorney.
We were speculating as to what the verdict would be. The Judge had taken the
matter under consideration and we knew there would not be a decision on that
day. The District Attorney was very hopeful of securing a favorable verdict and
based that hope largely on the testimony of Dr. John Uri Lloyd, who was not only
a most eminent pharmaceutical chemist but a very personal friend of the Judge
himself. We of course realized that the Judge's opinion would not in any way be
influenced by personal friendship, and this was particularly the case because
some of the most prominent rectifiers of Cincinnati were also intimate friends
of the Judge.. While we were discussing these probabilities a messenger came
from the Judge's chambers with a note to the District Attorney asking that he be
furnished with a copy of the brief of Dr. Wiley which had been offered in
evidence in the court. We all felt that this was an important request, believing
that if the Judge would read this report in full he would not be inclined to
support the contention of the rectifiers. Our fondest hopes in this matter were
justified. When Judge Thompson issued his report in about three weeks subsequent
to the trial, it was found to be a complete vindication of F. I. D. 45 and F. I.
D. 65.
Not at all discouraged by their failure, the rectifiers appealed to other
Federal Courts in other localities. Among these localities were Springfield,
Illinois; Covington, Kentucky; Indianapolis, Indiana; Buffalo, New York;
Baltimore, Maryland; and San Francisco, California. In each case the opinions of
the Court were entirely in harmony with the original opinion of Judge Thompson.
Meanwhile the Bureau of Chemistry, shackled by the Board of Food and Drug
Inspection, deemed it inadvisable to bring any cases against rectified spirits
masquerading as whisky as long as the matter was still before the courts. It was
known that finally the decision would have to be made by the courts anyway and
any punitory steps might prove to be entirely futile.
Mr. H. Parker Willis in an article published at this time made the following
comment on this procedure under the heading, "The Public Will Not Buy Whisky
Labeled 'Imitation.'"
"The new regulations, and the cases brought under them, developed one
particularly interesting fact in the situation: the distillers and rectifiers
could not dispose of their goods for drinking, either as alcohol or as
'imitation whisky.' The actual name 'whisky,' without modification, was
necessary to disposal of their product, notwithstanding that it was precisely
the same article under another name. This was clearly brought out when the
Western distilleries applied to Judge Van Fleet of the Northern District of
California for an injunction restraining the marking of alcohol as ordered by
the Bureau of Chemistry, alleging that they had been obliged to shut down
their plant through inability to dispose of their product when marked
'alcohol.'
"Because of the hostile attitude of the courts, whisky manufacturers
resolved to turn their attention in other directions. They had hoped to secure
an easy victory through the judicial machinery of the Government; but having
been defeated there, and knowing that there was nothing to expect from
Congress, they now turned again to the Executive. The new rules, with the
requirement that whisky be branded as 'imitation' when it consisted of neutral
spirits primarily, had gone into effect July 1, 1908, although prior to that
date the distilling interests had accumulated as large stocks as possible
under the old regulations for marking in order that they might continue to
send out their goods as 'rye,' 'Bourbon,' or 'copper distilled' whisky,
instead of being compelled to use the term 'imitation.'
"Pressure upon the Roosevelt administration for action designed to
'relieve' the rectifiers now became acute. Congressman Longworth, son-in-law
of President Roosevelt, and friend of representatives of the Cincinnati
distilling district, exerted himself in behalf of the rectifiers, and a simlar
position was taken by numerous other members of Congress. Representative
Perkins of New York, now chairman of the Foreign Relations Committee of the
House and a historian of some reputation, had already devoted himself to
securing a favorable ruling in the interest of Duffy's Pure Malt Whisky. An
interesting correspondence passed between Mr. Perkins and the Department of
Agriculture, in the course of which Mr. Perkins noted for the benefit of
Secretary Wilson that 'the Duffy Malt Whisky Company * * * is controlled by
our most prominent and leading citizens, and I trust matters can be adjusted
in such a way as not to injure a long-established industry.' Other statesmen
wrote that the Duffy Company 'controlled considerable political influence.'
Not to be outdistanced in his efforts for the rectifying interests was
Representative Sherman, now Vice-President.
APPOINTMENT OF THE 'WHISKY COMMISSION'
"During the winter a committee of rectifiers and spirit distillers,
represented by A. J. Sunstein and others, visited Washington, and sought to
persuade the administration of the great harm that was being done to the
rectifying interests. The President finally harkened to the representations of
the rectifiers, and appointed a 'Whisky Commission,' consisting of Secretary
of Agriculture James Wilson, Dr. F. L. Dunlap, Associate Chief of the Bureau
of Chemistry, and John G. Capers, head of the Bureau of Internal Revenue of
the Treasury Department. Secretary Wilson and Commissioner Capers were already
known as advocates of the views of the rectified whisky interests, while Dr.
Dunlap had shown a strong disposition to dissent from the existing rulings of
the Government. There was a good deal of mystery about this Commission.
Although the Associated Press sent out a frank statement by President
Roosevelt to the effect that such a Commission had been appointed, Secretary
Wilson took occasion to assure newspaper men that the Commission did not exist
as such, and that the President had merely asked for a little advice.
Commissioner Capers admitted the existence of the Commission, but Dr. Dunlap
said nothing.
"After several weeks of discussion and inquiry, the three advisers reported
to the President in favor of allowing liquor made from neutral spirits to be
designated as whisky. Mr. Sunstein and his committee had said that they would
be satisfied if they could, be allowed to brand their liquor as 'redistilled
whisky,' 'rectified whisky,' or 'neutral whisky.' The three commissioners, or
conferees, now advised that some such plan be followed, telling the President
that this was substantially the verdict that had been arrived at by the Royal
Commission. on Whisky, which had been sitting in England, and which, they
stated, had decided that any spirits made from grain was whisky. In a letter
written on behalf of the Commission, Dr. Dunlap said, 'It is my opinion that
the term 'whisky' should not be denied to neutral spirits diluted with water
to a proper strength and colored with caramel,' though he recommended the use
of some qualifying name, such as 'rectified whisky.'
The approval of President Roosevelt of Attorney-General Bonaparte's
definitions of whisky created a curious environment in the Bureau of Chemistry.
The Secretary of Agriculture, the associate chemist, Dr. Dunlap, the solicitor,
Mr. George P. McCabe, together with the chief of the Bureau of Internal Revenue,
Mr. John G. Capers, were all on the other side of the question. The President,
Attorney-General Bonaparte, and the Chief of the Bureau of Chemistry were all
agreed on the definitions.
It was hard, however, to get Court action. Attorney-General Bonaparte was
very insistent that cases be brought in order to test the accuracy of his
definitions. Cases could only be brought, under the existing conditions, when a
majority of the Board of Food and Drug Inspection would initial requests either
for criminal action or seizure of goods. There was much hesitation on the part
of two members of the Board of Food and Drug Inspection in regard to this
matter. It was not until the Secretary of Agriculture ordered them to proceed
that they joined me in bringing actions before the Court. All effort to bring a
criminal action, however, was negatived. We did bring a number of cases of
seizure of goods; that is, action in rem. In every ease of this kind which
reached the courts, unanimous approval of the Attorney-General's opinion on
whisky was obtained. In all seven cases were finally brought to the bar of
justice out of hundreds recommended by: the Bureau.
CASE 1. Notice of Judgment 15. The United States of America, Libelant, vs. 93
Cases, containing 12 bottles each, of alleged Whisky, C. Person's Sons,
Defendants, before the Western District Court of New York, Case No. 79. Judge,
the Hon. John R. Hazel.
This Whisky was adjudged adulterated and misbranded and, under the law, the
seized liquor was ordered to be destroyed or, after proper branding, delivered
to the claimants under a bond of $2,000 that it would not be sold in
contravention of the existing law. Date of judgment, August 27, 1908.
CASE 2. Notice of Judgment 45. United States vs. 4 Barrels of Liquid
Purporting to be Whisky. This case was brought in the District of Columbia, Case
No. 790. The libel alleged that the product was, 4 'colored and mixed by the
addition of coloring matter, in a manner whereby inferiority is concealed and in
order to imitate old mature whisky and whereby the said product does imitate and
appear to be old mature whisky."
The Judge who issued the decree of condemnation was the Hon. Thomas H.
Anderson. Date of the Judgment, March 13, 1909.
CASE 3. Notice of Judgment 68. United States of America vs. Fifty Barrels of
Whisky, Labeled "Bourbon Whisky," Manufactured in New Orleans from fermented
molasses. The presiding Judge was the Hon. Thomas J. Morris of Baltimore. The
decree of condemnation was in the same terms as those already reported. In his
decision Judge Morris was particularly luminous. This was a jury trial. After
the evidence had been given and the counsel for the defense had addressed the
jury, Judge Morris said: "I will not call upon the counsel for the United States
to reply. The case as it is presented to the jury is a very clear one. I reject
the only prayer offered by the defense. Really, that prayer concedes the
misbranding of the liquor, and asks me to say to the jury that if they shall
find that this was done under the control- and by the agents of the United
States, the United States is estopped from proceeding to condemn these goods and
forfeit the goods from misbranding." The examination of this whisky by the
Bureau of Chemistry disclosed that it was distilled from fermented molasses, and
was called Bourbon Whisky. Date of Judgment, May 14, 1909.
CASE 4. Notice of Judgment 112. United States vs. 10 Cases of Quinine-Whisky,
Case No. 10142, the Hon. Kenesaw M. Landis, United States District Judge. The
goods were ordered destroyed or to be released on a bond of $1,000. Not to be
sold contrary. to the Food and Drugs Act as is usual in such cases. Date of
Judgment, November 20, 1909.
CASE 5. Notice of Judgment 349. United States vs. H. A. Thierman & Co. of
Louisville, Ky. Seizure of five barrels of whisky transported from Kentucky to
Indiana. The name of the Judge in this case is not disclosed. The decision was
not rendered until after the advent of the administration of President Taft, and
the notice of judgment carried this statement: "This decree was rendered prior
to the issuing of Food Inspection Decision 113, which revoked Food Inspection
Decisions 45, 65, 95. In other words, the Secretary of Agriculture, under the
law, was forced to, regard the opinion of this Court although it had
been-determined that the Bonaparte decision, which was the one which had been
supported by all of these decisions, was soon to be revoked by the action of the
United States itself, thus nullifying the Court's decision to the effect that
the Bonaparte opinion was wholly legal. Date of Judgment, May 17, 1910.
CASE 6. Notice of Judgment 353. United States vs. the Hannis Distilling Co.
of Philadelphia, Pa. The usual course was followed and the decision rendered,
but the name of the Judge is not given. The date of the decision is May 17,
1910. It has the same notice in regard to decision 113 as carried by the former
case.
CASE 7. The final case is Notice of Judgment 361. United States vs, Davis &
Atkins of Richmond, Va. The name of the Judge is not given, but the whisky was
condemned in the same manner as those just preceding. This also contains the
same notice in regard to decision No. 113 as the two preceding cases.
This makes seven cases in the Federal Courts supporting the validity of the
opinion of Attorney-General Bonaparte, and in not a single instance did any
United States Court before which the matter was presented, nullify that
decision. Nevertheless, in spite of all these Court decisions the opinion of the
Attorney-General Bonaparte was revoked by executive authority and a
diametrically different opinion supporting all the contentions of the rectifiers
substituted in its place. Thereafter, no mention of any case against whisky is
found in the Notices of Judgment. It was not necessary because the United States
authorities, in plain violation of Court decisions, had decided that the
Bonaparte opinion was all wrong.
I never was able, even in the two years that intervened from the time of the
decision of Attorney-General Bonaparte to the close of the Roosevelt
administration, to get the Board of Food and Drug Inspection to approve of any
criminal case against any dealer who was an offender of the law. I have all the
correspondence in which Attorney-General Bonaparte urged that his decision be
taken before the Courts, and in every instance when it did reach the Court he
was sustained. In all the attempts of rectifiers to nullify his decision by
bringing Court cases themselves, and this they did in eight separate cases, the
rulings of the Court were always against them.
To show the attitude of the Board of Food and Drug Inspection in this matter,
I made determined efforts to bring a case against Duffy's Pure Malt Whisky,
either to seize the whisky or to bring a criminal action against the
manufacturers. Every move in this direction was blocked by my collegues on the
board. Under date of October 3rd, 1908, the following note in regard to this
matter was made:
"Doctor Dunlap states that he initialed the first named seizure under a
misapprehension, thinking that the Duffy Malt Whisky hearing was to be held
here instead of in Buffalo, although it had been signed by the Secretary. I
understood from Doctor Dunlap that the matter was held up by the Solicitor and
that it would not be sent to the District Attorney until after the report of
the hearing at Buffalo had been received. In regard to the seizure of October
3, he refused to initial the recommendation on the ground that it would not be
proper to do so until the hearing of the Buffalo case had been received. I
stated to him that the cases were entirely distinct, the Buffalo case being a
criminal action recommended several weeks ago and the seizures are actions to
be brought at the time mentioned, namely September 30 and October 3, 1908, a
and if not seized without delay the goods would escape. I stated that Duffy's
Malt Whisky was one of the most gigantic frauds of the age and a flagrant
violation of the law, and that there was no necessity that we delay at all in
the matter. He still, however, refused to initial."
This sufficiently illustrates the determined efforts of my colleagues to
protect Duffy's Pure Malt Whisky from being molested either by seizure or
bringing any criminal case against the maker. The few cases that were brought
against rectified whisky were at the direct request of the Attorney-General,
followed by the order of Secretary Wilson to proceed as the Attorney-General
requested.
On the 3rd of October, 1907, 1 addressed the Solicitor of the Department of
Agriculture, as follows:
"In a recent conversation with me the Attorney-General urged that cases be
prepared as soon as possible in the whisky case. Fortunately, acting under the
direction of the Secretary, we had already secured a great many cases. I have
prepared three of these typical cases to be sent to the Attorney-General
according to his request, with the least delay possible. They represent types
of mixture which might well be seized under the law for a test case. The
Attorney-General informed me that he believed Mr. Hough was trifling with him
and it was not possible to secure any agreement and that he proposed to go
ahead at once if such an agreement as dictated by him should not be
acceptable. These cases are all ready for seizure and I urge that they be sent
to the Attorney-General as requested without delay."
Following this, I cited to the Solicitor fifteen localities in the City of
Washington where illegal whisky was on sale, describing each one minutely.
On November 6, 1907, the Attorney-General addressed a letter to the Secretary
of Agriculture, in which he informed him that he bad been unable to come to any
agreement on a statement of facts, and, therefore--"it will be appropriate for
you to proceed with the enforcement of the law relating to the subject of
labeling whisky in accordance with the procedure prescribed by law."
In the midst of these discussions the Secretary of Agriculture received a
letter from John G. Capers, Commissioner of Internal Revenue, looking to a
reopening of the questions decided by Attorney-General Bonaparte which it
appears was due to the express desire of President Roosevelt. The letter dated
Dec. 17, 1907, is as follows:
"I have the honor to acknowledge receipt of your letter of December 13,
written following the conference between you, Mr. McCabe of your Department,
and Assistant Secretary Winthrop and myself of this Department. In conformity
with the suggestions made by you at that time and the suggestion made in your
letter of December 2, the Secretary of the Treasury has referred the matter to
the Attorney-General for an opinion upon the matter of labeling whisky, etc.,
under the pure food law in its application to internal revenue laws, as well
as to the Department of Agriculture as set out in his opinion approved by the
President and addressed to you April 10 last.
"This action by the Secretary is also taken in view of the expressed desire
of the President in a communication addressed to the Secretary December 8,
that the matter be taken up by the Treasury Department. The Attorney-General
has been requested to render an opinion as early as possible."
I referred to this movement on the part of the President in a letter which I
wrote to Dr. James H. Shepard of Brookings, S. D., Jan. 4, 1908, which I quote:
"I cannot tell you much about the present status of the whisky case except
this: The rectifiers, through Senator Hopkins and other influential senators,
made a proposal to the President that they would withdraw all suits to set
aside the present regulations if the present regulations could be modified so
as to suit their views, or in so far as this could be. I understand the
President appointed a commission consisting of Commissioner Capers, the
Secretary of Agriculture, and Dr. Dunlap, to make the necessary revision of
the regulations. In so far as I know the revision is to be made on a brief
submitted by the rectifiers. I do not think that anyone who is in favor of
maintaining the present regulations requiring imitation and compound whiskies
to be so marked has been invited to appear before the Commission. Commissioner
Capers has said in at least two printed interviews that he was going as far as
he could to meet the requests of the rectifiers, even if possible to open up
the question of like substances. I don't know what attitude either the
Secretary or Dr. Dunlap will take in this matter but I would like to wager you
a peanut that I could guess.
ASK FOR A REHEARING
President Roosevelt communicated to Attorney-General Bonaparte the protests
that had been made against his decision, and their plea for a rehearing. On May
29, 1907, Attorney-General Bonaparte filed with the President his reasons for
not re-opening the case in which he made the following statements:
"The President,
The White House.
SIR: In accordance with your instructions, I gave a hearing on Wednesday, May
15, to persons desiring to submit to the Department criticism or other comment
on my opinion of April 10 last past, as to the construction of section 8 of
the act approved June 30, 1906, and generally known as the Pure-Food Law.
About thirty persons appeared on this occasion and a number of oral arguments
were presented; some critical and some approbatory of the opinion in question.
At the conclusion of this argument I announced my willingness to receive and
consider any matters in writing which might be submitted to me touching its
subject-matter, and, in response to several requests for a further hearing,
stated that I would give these requests due consideration and announce later
whether I saw any sufficient reason to comply with them. As heretofore stated
to you verbally, I do not think any useful purpose would be served by another
oral argument, and, with your approval, I have, therefore, announced that, in
this respect, the matter must be considered closed. I received a large number
of written communications from various persons commenting on the opinion in
question, and I have carefully considered all of them. I find no reason to
withdraw the said opinion, or to modify it in any respect, and I respectfully
report that, in my judgment, this opinion correctly states the law on the
subject to which it relates."
(Signed) Charles J. Bonaparte.

CHARLES JOSEPH BONAPARTE
Attorney-General, who wrote the answer to "What Is Whisky?"
while Roosevelt was President

BONAPARTE'S STATE PAPERS
Attorney-General Bonaparte issued three short state papers on the subject
"What is Whisky?" The first of these papers bears the date April 10, 1907. In
this paper the question of what is whisky was answered in harmony with the
provisions of the food and drugs act. The points covered in this paper were so
distasteful to the rectifying interests as to call for numerous requests for
rehearing. The Attorney-General granted them a rehearing. On May 29th, 1907, he
gave his new opinion in which he stated that he found no reason to modify in any
respect the opinion of April 10th. Toward the close of the Roosevelt
Administration, the rectifiers made a last desperate effort to have the
Attorney-General's opinion changed. This has been thoroughly set out in the
quotations from the article of H. Parker Willis. The new effort was evidently
inaugurated by the President who often referred to Dr. Dunlap, Associate Chemist
of the Bureau of Chemistry, as "my chemist." In the light of Dr. Dunlap's career
in the Bureau no one will likely dispute Roosevelt's often repeated claim to
proprietorship. The Committee having in charge this matter was thoroughly
devoted to the rectifying interests. It is only natural therefore that the
report they brought in, which was written by Dr. Dunlap, would be favorable
thereto. The gist of Dr. Dunlap's report is as follows:
"Under the Pure Food Law as administered now, neutral spirits, diluted to
proper strength and colored with caramel, must be marked 'imitation whisky.'
The spirit distillers request that this name be not forced upon them, but that
they may use in its place one of the three names, 'neutral whisky,' 'rectified
whisky,' or 'redistilled whisky.' * * * It is my opinion that the term
'whisky' should not be denied to neutral spirits diluted with water to a
proper strength and colored with caramel. I believe that the use of the term
'whisky' on such a product should be qualified by some term which will carry
notice to the consumer of the nature of the product. For this purpose the term
'neutral whisky,' 'redistilled whisky,' and 'rectified whisky,' have been
suggested."
Mr. Bonaparte proceeds to comment on this suggestion of Dr. Dunlap's with
rare sarcasm for which lie was distinguished. He says:
"It seems obvious, from the juxtaposition of these extracts from my two
opinions and those from Dr. Dunlap's letter, that the Associate Chemist of the
Department of Agriculture suggests that, on the question of the construction
of a statute, a very carefully considered and reconsidered opinion of the
Attorney-General should be disregarded. He bases this recommendation upon
certain conclusions which he says have been reached by the English 'Royal
Commission on whisky and other potable spirits,' in what is described as an
'interim report.'
"He describes this Commission as composed of 'eminent scientific men,' but
it does not appear from his letter that the said Commission consists of
lawyers, or that they have had under consideration the construction of the Act
of Congress generally known as the Pure Food Law. I am, therefore, unable to
recognize their conclusions as entitled to weight in determining the above
mentioned question of statutory construction, and I may add that I am unable
to see how these conclusions, in so far as stated by Dr. Dunlap, have any
bearing upon the question considered in my two opinions.
"It appears to me that these 'eminent scientific men,' in these
conclusions, made suggestions as to what legislation on the subject should
contain. They do not assume to construe legislation already enacted.
Especially they do not express any opinions as to the construction of an
American law dealing with American conditions.
"Inasmuch, however, as I cannot fail to recognize in Dr. Dunlap's
recommendation a challenge of the correctness of my conclusions as announced
in the two opinions heretofore rendered you, I think it is but proper that I
should call your attention to certain judicial decisions rendered upon the
questions discussed in his letter subsequently to the date of the said two
opinions. In the case of Levy vs. Uri, the Court of Appeals of the District of
Columbia, speaking by Mr. Justice Robb, says on this question:
'Each kind of whisky mentioned has its own peculiar flavor and character
and is sought after as a beverage because of that flavor and character.
Neutral spirits, on the contrary, as the term suggests, is a colorless
liquid, has neither flavor nor character, and is not a beverage at all. It
may be produced from any fermented substance, such as corn, potatoes, and
sugar beets.
'Formerly it was used exclusively in the arts, but with the advent of
cheaper methods of production it has been palmed off on the public as a
beverage by mixing it with something to give it flavor and character. Since
it costs far less to produce than rye whisky, it is apparent that its use by
the distiller increases his profits in proportion as the public is deceived.
* * *
'As before stated, neutral spirits is not a beverage, has none of the
distinguishing characteristics of rye whisky, and is, therefore, matter of
another kind."
Mr. Bonaparte then proceeds to quote the decision of Judge Thompson of the
Southern District of Ohio and also the opinion of the District Court of the
Southern District of Illinois, and refers to other Court decisions in which his
definitions of whisky had been unanimously supported. He then says:
"It thus appears that the correctness of the conclusions reached by this
Department in the two opinions to which I have referred has been tested in at
least four decisions by competent courts upon the precise question discussed
in Dr. Dunlap's letter; and the decision in every instance has been that what
he advises is forbidden by the true construction of the Pure Food Law. So far
as I am aware, there has been no decision by any court to the contrary. * * *
At present, however, in so far as informed by the decisions heretofore made on
this question, I can only advise you that the conclusions announced in the
opinions of April 10th and May 29th, 1907, are sound, and that to give effect
to Dr. Dunlap's suggestions would be to violate the Pure Food Law."
The action of President Roosevelt in again sustaining the Attorney-General
received universal press support. Mr. Louis Ludlow, then President of the
National Press Club and now member of Congress elect described the event in the
Indianapolis Star under date of February 23rd, 1909. He says:
" The President indorses and makes public an order of Attorney-General
Bonaparte, which declares the position of the rectifiers and the conclusions
of the commission to be in error. Dr. Wiley's views on whisky are thus
upheld."
In the same publication under date of Feb. 24, 1909, is an editorial, "A
Victory for Wiley," from which I quote the following:
"For the third time Attorney-General Bonaparte has decided that neutral
spirits diluted with water to a proper strength and colored with caramel is
not whisky, but 'imitation whisky' and must be labeled as such. This was the
ruling of Dr. Wiley. * * * It is evident that the authorities have no
intention of weakening the Pure Food Law any further at the present time. The
benzoate of soda ruling is enough for the present time. It is realized, of
course, that there will always be pressure to have the law construed favorably
to those who want to evade it. Probably it will gradually be much weakened.
One concession will be made, and then another. The people will be less
watchful, and at last we may find that we have virtually no law at all."
This prophetic disaster has long since been realized.
ADDITIONAL COMMENTS
In view of the positive character of Mr. Roosevelt to stand by his own
decisions, at first it was thought that this investigation was not at his
suggestion. A letter written by H. Parker Willis, published in Collier's Weekly
of April 6, 1912, throws additional light upon this matter. Mr. Willis says in
his letter:
Secretary Wilson was now in a position of peculiar strength. He had full
charge of the Food and Drugs Act; he understood the precedents that had been
established during the past four years; the matter had been referred to the
Department of Justice by his own assent; he had nothing to do but apply the
law vigorously. But it was well known that neither he nor his Solicitor
approved the decision in the whisky case. The politicians were more and more
active. Mr. Perkins of New York brought strenuous pressure to bear upon the
Department of Agriculture in behalf of Duffy's Pure Malt Whisky, which would
have to be labeled 'imitation' under the new rules. He was strongly seconded
by Vice President Sherman. President Roosevelt finally designated Secretary
Wilson, Dr. P. L. Dunlap, and John G. Capers, the head of the Bureau of
Internal Revenue, as a Whisky Commission. Secretary Wilson was thus given full
power to shape the decision as he pleased. A report from him would have
settled the situation once for all. No such report was forthcoming. Secretary
Wilson even denied in conversation that any such commission existed, and
finally the three men rendered a report in favor of allowing liquor made from
alcohol to be branded as 'rectified whisky,' thus giving the use of the word
whisky to the interests that had been demanding it."
There is no longer any doubt that the new committee to inquire into the
accuracy of the opinions of Attorney-General Bonaparte was appointed by the
President. Dr. Dunlap, in submitting the report of this committee under date of
February 19, 1909, says:
"In accordance with the request of the President, I have continued the
consideration of the labeling propositions submitted to him by the spirit
distillers."
The Secretary of Agriculture in a letter to the Hon. W. W. Armstrong, member
of the State Senate of New York, under date of December 17, 1908, says:
"Pursuant to my conversation with you of yesterday in regard to a proposed
hearing on the 21st instant concerning 'Duffy's Pure Malt Whisky,' I beg to
inform you that this hearing will be postponed pending the report of the
gentlemen appointed by the President to take up questions in connection with
the labeling of products such as you manufacture."
On December 13, four days prior to the writing of this letter by the
Secretary of Agriculture, the Washington Post carried this editorial under the
caption "Keep the Ginger in the Pure Food Law!"
"It is good to read a direct denial of the report that the President has
reopened the whole subject of what is whisky. The story was that he has
selected the Commissioner of Internal Revenue and one of the officers of the
Agricultural Department to take up the existing regulations and revise them
with the Secretary of Agriculture. * * *
"Above everything, the President has not reopened the main question. * * *
At the instance of Dr. Wiley that query has been answered with a loud 'NO.'
Any other answer would have jeopardized the whole * * * regulations governing
'compounded' and 'imitation' whisky. To the outsider those regulations would
seem to be already sufficiently considerate.
A few days before the Washington Post had carried the story of the
appointment of the above commission. It printed another news story as follows:
"The uncertainty caused some of the large distilleries of the country to
present the matter to the President to-day. They were introduced to him by
Senator Hopkins and Representative Graff, of Illinois. Secretary Wilson and Mr.
Capers were present."
Although the President repudiated the report of his own commission and again
sustained the opinion of Attorney-General Bonaparte, the activities of the Board
of Food and Drug Inspection in protecting the interests of Duffy's Malt Whisky
and Canadian Club Whisky were continued right along just as if nothing had
happened.
On June 12, 1908, after a large number of shipments of Canadian Club whisky
had been seized by the officials of the pure-food law, the following order was
issued:
"By direction of the Secretary, no more seizures of imported whiskys are to
be made until further orders. There have been twenty-one cases reported and,
in the Secretary's opinion, that number is sufficient for the present. Please
cause the necessary instructions to be sent to the Inspectors.
Very respectfully,
(Signed) G. P. McCabe
Acting Chairman,
Board of Food and Drug Inspection."
The reason for suspension of seizures is probably the following incident
which occured at the hearing accorded Duffy's Malt Whisky representative. I
quote from this hearing:
"Senator Armstrong urged that the Bill of Libel against carloads of goods
shipped to Boston be dismissed, stating that the Company had stopped shipment.
Dr. Wiley suggested that if they would stop interstate shipments of this
material, it would be very proper to grant them additional time until after
election. Mr. Perkins, Mr. Armstrong and Mr. Duffy raised vigorous objections,
stating that the firm had been in business for fifty years, had spent millions
of dollars in advertising, had built up a trade, and that it ought not to be
interfered with."
Following this hearing came the order of suspension of further seizures.
These official data show that the President appointed this commission, that
the commission considered the subjects referred to it, that it made its report
through Dr. Dunlap on the 19th of February, 1909, and that the Attorney-General
most decidedly and emphatically repudiated the findings of this commission and
the President thereupon approved the Attorney-General's report.
An unconfirmed rumor current at the time was the effect that Bonaparte told
the President that would immediately resign if his report did not again receive
approval.
MR. BONAPARTE REFUSES TO ACCEPT THE
"WHISKY COMMISSION'S" DECISION
Mr. H. Parker Willis says:
"Attorney-General Bonaparte was now in an embarrassing position. He had
already rendered his opinion with reference to the nature of whisky, and the
proper methods of branding it under the existing law of the United States.
President Roosevelt had sent Mr. Bonaparte the report of the Whisky
Commission, which had just been transmitted to the White House, with a request
for the Attorney-General's opinion.
" Two questions presented themselves to Mr. Bonaparte--whether he should
reverse himself and accept the findings of Messrs. Wilson, Capers, and Dunlap,
or whether he should stand neutral and idle, in case President Roosevelt
should see fit to put into effect his Commission's recommendations. Mr.
Bonaparte decided both of these points negatively. In a rather scathing letter
to President Roosevelt, he pointed out that the Whisky Commission had based
its suggestions almost entirely upon work that had been done in England by a
body not known to American law,--the British Royal Commission,--while he had
found it his duty to guide himself by the laws of the United States. He could
not, therefore, as a matter of law, consent to the proposal now made. Noting
that 'the assistant chemist of the Department of Agriculture suggests that on
the question of the construction of a statute (the Pure Food Law) a very
carefully considered and reconsidered opinion of the Attorney-General should
be disregarded,' he went on to say that he could not 'fail to recognize in Dr.
Dunlap's recommendation a challenge of the correctness of' his conclusions. He
therefore called attention to the interpretations of the Food Law, in line
with the views of the Department of Justice that had lately been handed down
by the courts. It was stated by officers of the Government that he had
privately conveyed to the President the intimation that although only about a
week remained before his termination of office as Attorney-General, he should
feel compelled to resign, in the event that the President saw fit to overrule
his decision in the whisky matter. The President had been largely animated by
his own sense of fair play in giving the rectifiers every opportunity to set
forth their ideas; and he now made his own stand evident by approving Mr.
Bonaparte's views, and continuing the existing methods of marking and branding
liquors."
In the Washington Herald of Feb. 27, 1909, is an editorial from which I
quote:
"VICTORIOUS MR. BONAPARTE
Our good right hand, palm up, to Mr. Charles Joseph Bonaparte in warm
congratulation extended! 'Whisky is whisky, and nothing else is whisky,' says
the Attorney-General; and so sayeth his Chief, the President of the United
States! * * *
"We regard this as -a great victory for the common people, and we trust
they appreciate fully its momentous significance. Heretofore every old thing
that could assume the most remote whisky-like disguise has labeled itself
whisky, and posed in the open market as the real, genuine, simon-pure article.
* * *
"Mr. Bonaparte need not fear that it is not the people's tremendous
applause he hears ringing in his ears! It is just that very thing. Pat with
him they stand. 'Whisky is whisky, and nothing else is whisky.'"
If the rectifiers had only been endowed with prophetic vision, they would not
have made a continuous fight for two long years against the Attorney-General and
the President and the Food Law. They would not have commenced numerous actions
in Federal Courts, all of which they lost with monotonous regularity. They would
not have spent hundreds of thousands of dollars in retaining great advocates
like Mr. Choate, and others of the same character as mentioned in the article by
H. Parker Willis. They would simply have waited. This final rebuff by President
Roosevelt occurred on the 19th of February, 1909, thirteen days. before the
advent of the new administration. On the morning of the 5th of March the storm
clouds which had darkened the sky of the rectifiers for two long weary years
broke asunder. The rays of victory shot through the rift, and the full sunlight
of triumph shone forth. The principles which had guided the Roosevelt
administration were eternal and just. The law was not altered, but its
interpretation was radically changed in the interest of the rectifiers of whisky
and other alcoholic distilled beverages.
ADVENT OF PRESIDENT TAFT
When the last of these cases was finally decided in the District Courts,
President Taft came into the White House. A very remarkable event is now to be
recorded. He ordered a rehearing of the whisky problem. A classmate of President
Taft, Mr. Lloyd Bowers, had been made Solicitor of the Department of Justice.
President Taft first requested Mr. Capers to conduct the new hearings on whisky.
This was equivalent to instructing the jury to bring in a verdict. Owing to the
protests of the straight whisky interests President Taft finally appointed his
Solicitor-General, Lloyd Bowers, to hold these hearings. They have been printed
under the title "Proceedings Before and By Direction of the President Concerning
the Meaning of Whisky." They cover 1328 printed pages. Following is the order of
the President constituting this tribunal:
In the Office of the Solicitor-General,
Thursday, April 8, 1909.
These proceeding are had pursuant to an order of the President of the
United States, reading as follows:
EXECUTIVE ORDER
A number of distillers and importers of spirits and whisky, represented by
Lawrence Maxwell, Esq., Hon. Joseph H. Choate, Alfred Lucking, Warwick M.
Hough, and Hon. W. W. Armstrong, having appealed to the President for a
hearing with respect to the order issued by the Commissioner of Internal
Revenue, known as Order No. 723, pursuant to the rules and regulations for the
enforcement of the food and drugs act and food and inspection decision No. 65,
promulgated and made by the Secretary of Agriculture under date of May 14,
1908, claiming that the provisions of said order are in violation of the terms
of the said act in that they require to be branded as imitations or compounds,
or otherwise, whiskies which have well-settled names in the trade, and which
it was not the intention of Congress by the said food and drugs act to require
to be described by any other designation; and certain distillers of whisky
having appeared by Edmund W. Taylor and the Hon. John G. Carlisle, after
consideration the matter is hereby referred to Hon. Lloyd W. Bowers,
Solicitor-General of the United States, to take testimony and report to the
President his opinion upon the following points, namely:

I.
What was the article called whisky as known (1) to the manufacturers, (2)
to the trade, and (3) to the consumers at and prior to the date of the passage
of the pure food law?

II.
What did the term whisky include?

III.
Was there included in the term whisky any maximum or minimum of congeneric
substances as necessary in order that distilled spirits should be properly
designated whisky?

IV.
Was there any abuse in the application of the term whisky to articles not
properly falling within the definition of that term at and prior to the
passage of the pure food law, which it was the intention of Congress to
correct by the provisions of that act?

V.
Is the term whisky as a drug applicable to a different product than whisky
as a beverage? If so, in what particulars?

The Solicitor-General will from time to time determine the extent and
character of the hearing and will report with his opinion the evidence taken
by him pursuant hereto.
(No. 1061, Apr. 8, 1909.)
(Signed) WM. H. TAFT.

PRESIDENT TAFT DRAWN INTO THE WHISKY CONTROVERSY
Quoting further from the article by H. Parker Willis:
"When President Taft entered the White House, on the 4th of March, 1909,
the rectifying interests were by no means inclined to let the whisky question
rest. They knew that, while Secretary of War, he had been decidedly friendly
to their views at the time when the subject had originally come up before the
Cabinet for settlement. It was determined to make a fresh and vigorous effort
to secure a reversal of the Roosevelt rulings that would permit the rectifiers
to continue placing their neutral spirits on the market under the name of
whisky. Consequently, shortly after the President took office, he was
approached by all the original interests that had urged a change in the
methods of marking whisky and, yielding to their pressure, he consented to
reopen the question and to hear argument in person.
"Early in April a distinguished array of counsel appeared at the White
House. Straight whisky interests had employed ex-Secretary John G. Carlisle to
coöperate with Edmund W. Taylor, the original representative of the straight
whisky distilleries, while for the rectifying interests appeared Joseph H.
Choate, former ambassador to England, Senator Armstrong of New York, Lawrence
Maxwell, Esq., and Warwick M. Hough, the high-priced lawyer who had been sent
to Washington as a representative of rectified interests and of the wholesale
liquor trade. Mr. Alfred Lucking also appeared in behalf of the Canadian Club
whisky interests, which had found themselves hampered by the rulings of the
Government, and in whose interest the powerful offices of Ambassador James
Bryce had been enlisted with President Roosevelt to secure the admission of
the Canadian product without the imitation label.
"President Taft listened to the arguments on both sides, and showed a
strong disposition to refer the matter directly to Commissioner Capers, the
head of the Bureau of Internal Revenue. Mr. Capers, however, had long been
associated with the work of the Bureau of Internal Revenue, under the old
regulations which permitted the marking of rectified spirits as whisky; and he
was known to be favorable to the retention of the old system of markings,
having shown this feeling when, in conjunction with Secretary Wilson and Dr.
Dunlap, he had recommended the changes demanded by the rectifying and blending
interests. The President's disposition to throw the question back into adverse
hands at once called forth a protest from the straight whisky men, based upon
the ground that Mr. Capers was somewhat prejudiced, and President Taft.
necessarily recognizing the justice of this claim, directed Solicitor-General
Bowers to serve in place of Mr. Capers.
"The points that Mr. Bowers was to take up included an inquiry as to the
true definition of the term 'whisky' at the time of the passage of the Pure
Food Law, and an inquiry into the chemical constituents whose presence
necessarily designated a liquor as being unmistakably whisky. He was further
called upon to determine whether, as urged by the 'Duffy's Pure Malt Whisky'
interests, whisky as a drug was a different product from whisky as a beverage.
The old controversy burst forth afresh, and, beginning April 8, (1909), Mr.
Bowers conducted almost continuous hearings, lasting nearly a month. More than
twelve hundred pages of printed testimony were taken. At times the room in
which the meetings were held resembled a chemical laboratory more than it did
a courtroom, while at others, as the witnesses sat about a table, freely
tasting the various samples that had been submitted for examination, it was
strongly reminiscent of a German drinking club.
At the completion of the testimony and the arguments of the attorneys the
Solicitor-General made his report to the President on May 24, 1909. This report
is found in the Whisky hearing above referred to beginning on page 1243. Mr.,
Bowers' opinion, summarized is as follows:
"1. A neutral spirit derived by distillation from any thing else than grain
has not been known to the consumer as whisky, whether or not it was colored or
flavored or both colored and flavored; and a neutral spirit derived by
distillation from grain, but lacking a substantial amount of by-products
(other than alcohol) which are derived by distillation from grain and give
distinctive flavor and properties, has not been known to the consumer as
whisky, whether or not it was colored or flavored or both colored and
flavored.
2. A neutral spirit derived by distillation from grain, but lacking a
substantial amount of by-products derived by distillation from grain and
giving distinctive flavor and properties, was not at or prior to the passage
of the Pure Food law, and has not since been, whisky.
3. There was included in the term whisky a minimum of congeneric substances
as necessary in order that the distilled spirit should be properly designated
as whisky, viz., such substantial amount of those congeneric substances as is
requisite to give to whisky distinctive flavor and properties, differing from
the flavor and properties of alcohol and of other distilled spirits. There was
no maximum of such congeneric substances, however, except as potability might
demand.
4. There were many abuses in the trade. The evidence, however, has not been
such as to make possible, or to justify an attempt at, enumeration of the
particular abuses, beyond saying that they included the application of the
term 'whisky' to spirits distilled from other substances than grain, or to
mixtures of such spirits with whisky, or to neutral spirits derived from grain
but not whisky within the description of it given in answer to question II, or
to such mixtures of neutral spirits and whisky as do not fall within the
description of whisky given in answer to question II.
5. The term whisky as a drug is not applicable to a different product than
whisky as a beverage."

:
LLOYD BOWERS
Solicitor-General, who conducted the re-hearing of "What Is Whisky?"
On page 404 of my brief on whisky (unprinted) I draw the following
conclusions:
"FIRST: The principle enunciated in Food Inspection Decision No. 45 is
correct, and no modification of this decision should be made.
"SECOND: When Neutral spirits are diluted with water and artificially
colored and flavored, the resulting product should not be called whisky. Under
the ruling of the Internal Revenue such a product may be called imitation
whisky if not sold as a genuine whisky, or spurious if it be sold as a genuine
whisky.
"THIRD: If whisky be mixed with neutral spirits and colored and flavored,
it forms that well-known class of bodies called compounds, and should be
marked 'Compound of whisky and neutral spirits' or some similar appellation.
"FOURTH: If two or more whiskies be mixed together, the resulting mixture
should be marked 'blend,' 'A mixture of two or more whiskies' or some similar
appellation.
UNIVERSAL CRITICISM OF BOWERS' REPORT
Perhaps no public decision ever issued received such unanimous condemnation
as Bowers' report. Everybody was dissatisfied. Warwick M. Hough and Lawrence
Maxwell objected to it because it denied to neutral spirit the name of whisky.
Joseph H. Choate and Alfred Lueking objected on behalf of Canadian Club whiskies
for the same reasons. John G. Carlisle and Edmund W. Taylor objected on behalf
of the straight whisky producers because it permitted the addition of alcohol to
whisky provided the congeners which gave the whisky its character were not too
greatly diluted. Wm. W. Armstrong objected to it on behalf of Duffy's Malt
Whisky. J. D. Rouse objected to it because it denied alcohol made from molasses
to be called whisky. The Columbus Distilling Company objected to it for the same
reason. The Michigan Chemical Company objected to it because alcohol to be mixed
with other whisky must be made out of grain. All appealed to the President of
the United States for help. The President appointed a hearing which was held in
the Executive Mansion on June 28, 1909. There were present the President of the
United States, presiding; Hon. George W. Wickersham, Attorney-General of the
United States; Hon. James Wilson, Secretary of Agriculture; Mr. Warwick M.
Hough, Mr. Lawrence Maxwell, Mr. Joseph H. Choate, Hon. John G. Carlisle, Mr.
Edmund W. Taylor, Mr. William W. Armstrong, Mr. J. D. Rouse, Mr. Bullitt, Mr.
Youngberg, Mr. Brangier, Mr. Smith, Mr. Thompson, and others.
THE PRESIDENT: We are here this morning to hear the exceptions to a report,
and I believe that the report has the first indication of correctness in that
there are exceptions from every side.
MR. CARLISLE: Nobody satisfied.
THE PRESIDENT: Nobody satisfied.
President Taft, after considering the protests made by the rectifiers in the
decision of the Solicitor-General on the whisky question, disapproved the most
important of these findings of his own Solicitor-General and adopted in toto
many of the principles presented to him by the rectifiers. However, he suggested
a method of labelling which was in some respects distasteful to the rectifiers.
DECISION OF PRESIDENT TAFT OVERRULING
ATTORNEY-GENERAL BONAPARTE AND THE
HONORABLE LLOYD BOWERS
"It is undoubtedly true that the liquor trade has been disgracefully full
of frauds upon the public by false labels; but these frauds did not consist in
palming off something which was not whisky as whisky, but in palming one kind
of whisky as another and better kind of whisky. Whisky made of rectified or
redistilled or neutral spirits and given a color and flavor by burnt sugar,
made in a few days, was often branded as Bourbon or Rye straight whisky. The
way to remedy this evil is not to attempt to change the meaning and scope of
the term 'whisky,' accorded to it for one hundred years, and narrow it to
include only straight whisky; and there is nothing in the Pure Food Law that
warrants the inference of such an intention by Congress. The way to do it is
to require a branding in connection with the use of the term 'whisky' which
will indicate just what kind of whisky the package contains. Thus, straight
whiskies may be branded as such and may be accompanied by the legend 'aged in
wood.' Whisky made from rectified, redistilled, or neutral spirits may be
branded as whisky made from rectified, redistilled, or neutral spirits, as the
case may be.
"With this result, the question arises what ought the order to be so that
the purpose of the Pure Food Law can be carried out. The term 'straight
whisky' is well understood in the trade and well understood by consumers.
There is no reason, therefore, why those who make straight whisky may not have
the brand upon their barrels of straight whisky with further descriptive terms
as 'Bourbon' or 'Rye' whisky, as the composition of the grain used may
justify, and they may properly add, if they choose, that it is aged in the
wood.
" Those who make whisky of 'rectified,' 'redistilled,' or 'neutral' spirits
can not complain if, in order to prevent further frauds, they are required to
use a brand which shall show exactly the kind of whisky they are selling. For
that reason it seems to me fair to require them to brand their product as
'whisky made from rectified spirits,' or 'whisky made from redistilled
spirits,' or 'whisky made from neutral spirits,' as the case may be; and if
aged in the wood, as sometimes is the case with this class of whiskies, they
may add this fact. * * *
"This opinion will be certified to the Secretary of the Treasury, the
Secretary of Agriculture, and the Secretary of Commerce and Labor to prepare
the regulation in accordance herewith, under the Pure Food Law; and to the
Secretary of the Treasury and the Commissioner of Internal Revenue to prepare
the proper regulation under the Internal Revenue Law.
(Signed) WILLIAM H. TAFT.
The White House,
December 27, 1909.
President Taft in revising the opinion of his Solicitor-General that neutral
spirits or alcohol, even when carrying flavor, were not entitled to be defined
as whisky, also revised the opinion of his distinguished father, Alphonso Taft,
who rendered an opinion, as Attorney-General, on the 21st of August, 1876, as
follows:
"I agree with my predecessor's opinion that the shipment of alcohol under
the name of whisky (the offense charged), is a violation of section 3449,
Revised Statutes, notwithstanding 'the trade,' generally may have fallen into
such a practice. Alcohol and whisky are, unquestionably, different articles,
in contemplation of law, as they are in fact, having different qualities and
different values. It appears, also, that they are placed by common carriers
under different rates in their freighting schedules; * * *
"When the act prescribes how spirits may be stored or bonded, it must be
presumed that it means spirits that have been lawfully distilled.
"This being patent, it is obviously important that there should be an
absolute agreement in character of all the acts which together go to make up
the act of shipping; and I must believe that the law intends to secure this. *
* * This would be difficult or impossible if shippers, carriers, consignees,
etc., were permitted to use one name for another, at their pleasure, or for
any purpose."
Very respectfully,
(Signed) Alphonso Taft,
Attorney-General.
Accordingly the three Secretaries, who under the authority of the law were
empowered to make rules and regulations for carrying the law into effect,
prepared the definitions which did not, however, follow President Taft's
directions above.
Food Inspection Decision No. 113 is as follows:
" Under the Food and Drugs Act of June 30, 1906, all unmixed distilled
spirits from grain, colored and flavored with harmless color and flavor, in
the customary ways, either by the charred barrel process, or by the addition
of caramel and harmless flavor, if of potable strength and not less than 80°
proof, are entitled to the name whisky without qualification.* If the proof be
less than 80°, i.e., if more water be added, the actual proof must be stated
upon the label and this requirement applies as well to blends and compounds of
whisky.
"Whiskies of the same or different kinds, i.e., straight whisky, rectified
whisky, redistilled whisky and neutral spirits whisky are like substances* and
mixtures of such whiskies, with or without harmless color or flavor used for
purposes of coloring and flavoring only, are blends under the law and must be
so labeled. In labeling blends the Act requires two things to be stated upon
the label to bring the blended product within the exception provided by the
statute: First, the blend must be labeled, branded or tagged so as to plainly
indicate that it is a blend, in other words that it is composed of two or more
like substances, which in the case of whisky must each be of itself a whisky
and Second, the word 'blend' must be plainly stated upon the package in which
the mixture is offered for sale. A mixture of whiskies, therefore, with or
without harmless coloring or flavoring, used for coloring and flavoring only,
is correctly labeled 'Kerwan Whisky. A Blend of Whiskies.'*
*All three of these statements are not in harmony with Taft's decision.
"Since the term whisky is restricted to distillates from grain, and
distillates from other sources are unlike substances to distillates from
grain, such distillates from other sources without admixture with grain
distillates are misbranded if labeled whisky without qualification, or as a
blend of whiskies. However, mixtures of whisky, with a potable alcoholic
distillate from sources other than grain, such as cane, fruit or vegetables,
are not misbranded if labeled compound whisky, provided the following
requirements of the law are complied with: First, that the product shall be
labeled, branded or tagged so as to plainly indicate that it is a compound,
i.e., not a mixture of like substances, in this case whiskies; and, Second,
that the word 'Compound' is plainly stated upon the package in which the
mixture is offered for sale. For example, a mixture of whisky, in quantity
sufficient to dominate the character of the mixture, with a potable alcoholic
distillate from sources other than grain and including harmless color and
flavor is correctly labeled 'Kerwan Whisky. A compound of whisky and cane
distillate.' Unmixed potable alcoholic distillates from sources other than
grain and including harmless color or flavor, are not misbranded if labeled
'Imitation Whisky.'
"When an essence or oil is added to a distillate of grain, which without
such addition is entitled to the name whisky, and the effect of such addition
is to produce a product which simulates a whisky of another kind different
from the kind of whisky to which the essence is added, the mixture is an
imitation of the particular kind of whisky which is simulated, e.g., if rye
essence be added to a highly rectified distillate of corn, the mixture is
misbranded if labeled rye whisky. Such a mixture is not misbranded if labeled
'Whisky--Imitation Rye.'
"Nothing in the Food and Drugs Act inhibits any truthful statement upon the
label of any product subject to its terms, such as the particular kind or
kinds of whisky, vended as whisky or as blends or compounds thereof, but when
descriptive matter, qualifying the name whisky, is placed upon the label, it
must be strictly true, and not misleading in any particular. The law makes no
allowance for seller's praise upon the label, if false or misleading, and the
product is misbranded if a false or misleading statement be made upon one part
of the label and the truth about the product be stated upon another part.
Similarly a product is misbranded if the label is false or misleading through
the use of a trade-marked statement, design or device. The fact that a phrase,
design or device is registered in the U. S. Patent Office gives no license for
its deceptive use. All descriptive matter qualifying or particularizing the
kind of whisky, whether volunteered or required by the law to be stated, as in
the case of blends and compounds, must be given due prominence as compared
with the size of type and the background in which the name whisky appears, so
that the label as a whole shall not be misleading in any particular.
Food Inspection Decisions 45, 65, 95 and 98 and all rulings in conflict
herewith, are hereby revoked.
(Signed) Franklin MacVeagh,
Secretary of the Treasury.
James Wilson,
Secretary of Agriculture.
Charles Nagel,
Secretary of Commerce and Labor.
Washington, D. C., February 16, 1910."
This decision directly contrary to the findings of many Federal Courts,
promulgated by the three Secretaries charged with the duty of making rules and
regulations for carrying the law into effect, is the most astonishing exhibition
of illegality ever perpetrated. No higher flight of open contempt of judicial
findings has ever been made by any one whose duty it is to follow the courts'
decisions. It would have been bad enough as an attempt at construing the meaning
of a law prior to judicial opinions. In the face of the facts it is a flagrant
contempt of Court.
The regulations made by the three Secretaries are most remarkable. In the
first place they attempt to decide what is an adulteration or misbranding, a
function which was never committed to them but was specifically given to the
Bureau of Chemistry.
In the second place, they utterly failed to include the fundamental
principles of branding laid down by President Taft in the above extract from his
letter. There is absolutely no trace in this decision of requiring whisky to be
labeled neutral spirit whisky, or a blend of that whisky and a whisky made from
neutral spirits. Those were the fundamental principles which President Taft laid
down for correct labeling. These two phrases were highly objectionable to the
rectifiers. Under the very nose of the President the rectifiers so controlled
the action of the three Secretaries that neither one of these phrases was
incorporated into the necessary labeling of whiskies made from neutral spirits.
Not only was every decision of the courts violated by this order, but President
Taft's specific directions for labeling were also disregarded. It is very
strange that the President himself did not make a protest against the utter
disregard of the fundamental principles upon which his labeling order was based.
RECTIFIERS GAINED EVERY POINT
On publication of this food inspection decision in which the rectifiers
gained everything they had lost in the decisions of the Federal Courts, their
petitions of appeal to the Circuit Courts were in all cases withdrawn. By
executive proclamation they had obtained what the courts had denied them. All
the interests which were engaged in adulterating and misbranding foods were
greatly heartened by this victory of the rectifiers. If one class of misbranders
and adulterators could receive immunity by executive order, why not apply the
same principle to all forms of adulteration and misbranding?
BECOMING A PROHIBITIONIST
I am very strongly of the opinion that this approval of neutral spirits
colored and flavored as whisky and this, of course, would apply to gin and rum,
and all other distilled spirits, including brandy, and by implication also, to
adulterated and misbranded beer and wine, was one of the principal causes which
enabled the doctrine of prohibition to achieve such a sweeping victory a few
years afterward under the stress of promoting the public welfare during the
period of the world war. At least in so far as I was concerned I had spent many
years of hard labor in trying to have all kinds of distilled spirits as well as
fermented beverages comply with ethical requirements and pure food laws. The
dikes that held the swelling floods of adulterations and misbranding of our
beverages were broken down and waves of food adulterations swept over and
devastated the country.
THE LAST WORDS OF LLOYD BOWERS
On the morning after the President issued his proclamation Mr. Lloyd Bowers
called me over the telephone. He said: "Have you read the President's decision?"
I said, "I have, with great astonishment." He asked, "What do you think about
it?" I replied, "I feel as if I had been spanked," to which he replied, "So do
I." This was the last time I heard Lloyd Bowers' voice. The next morning the
newspapers carried the notice that the Solicitor-General had left Washington for
a few weeks' rest. About three weeks after that I saw, with great regret, a
notice of his death. Thus passed a great lawyer and a great jurist. I think I
was right in thinking that probably his premature death was due to a broken
heart. Nobody was satisfied with the laborious effort which he had made. Upon
the whole my deep sympathy was with Lloyd Bowers. I was impressed with the
conviction that he was earnestly seeking the truth. Three-fourths of his,
decision was in harmony with my own views, so that I believe that he was at
least three-fourths right.
JUSTICE HARLAN SPEAKS
On the evening after the President Is decision was published Mr. Charles H.
Butler, reporter of the Supreme Court, entertained the Supreme Court at his
residence, 1535 Eye St., N. W. I was one of the invited guests at this function.
Among other members of the Supreme Court who were there was Justice Harlan of
Kentucky. Accosting me he said, "Come over here, my boy, where there are not so
many people. I would like to talk to you." Retiring to a secluded spot somewhat
distant from the punch bowl we sat down upon a sofa. Justice Harlan said to me,
"What is this I hear about holding Supreme Court in the White House?" I replied,
"You know as much about it as I do, Mr. Justice, you have read the newspapers."
To which he replied, "Things are coming to a pretty pass in this country. The
question of 'What is whisky?' was on its way to my Court and now it will never
reach there."
What a pathetic void in classic Supreme Court decisions was caused when
Justice Harlan was denied this opportunity of writing the opinion of the Supreme
Court on this case!
Fortunately the rectifiers did not have many years to enjoy the fruits of
their great victory. The enactment of the Prohibition Amendment and the Volstead
Act placed all dealings in beverage alcoholic drinks outside of the law. The
question now is not "What is whisky?" but "Where is whisky?" The adulterations
of the bootleg brand are now more deadly than were the combinations of the
rectifiers in the old days. These illegal decisions that permit alcohol to
masquerade as whisky have never been repealed. They remain sonorous witnesses of
the triumph of the unholy.
DISASTERS PREVENTED
All of these disasters would have been prevented if the food law had been
administered as Congress enacted it. One of the most amazing events in the
recital I have just made is to see the three Secretaries who were authorized to
make rules and regulations for carrying out the food law attaching their
signatures to a decision which clearly prevented the law from being enforced.
This misconception of the law has continued until the present day and has been
the cause of all the crimes committed against it.

HISTORY OF A CRIME AGAINST THE FOOD LAW
CHAPTER V: BOARD OF FOOD AND DRUG INSPECTION AND REFEREE BOARD OF CONSULTING SCIENTIFIC EXPERTS
by Harvey W. Wiley, M.D., the very first commissioner of the Food and Drug Administration (FDA), then known as the “US Bureau of Chemistry.”

PROLOGUE
It has often been said that, to make discoveries, one must be ignorant.
This opinion, mistaken in itself, nevertheless conceals a truth. It means that
it is better to know nothing than to keep in mind fixed ideas based on
theories whose confirmation we constantly seek, neglecting meanwhile
everything that fails to agree with them. * * *
"Men who have excessive faith in their theories or ideas are not only ill
prepared for making discoveries; they also make very poor observations. Of
necessity they observe with a preconceived idea, and when they devise an
experiment, they can see, in its results, only a confirmation of their theory.
In this way they distort observation and often neglect very important facts
because they do not further their aim. This is what made us say elsewhere that
we must never make experiments to confirm our ideas, but simply to control
them; which means, in other terms, that one must accept the results of
experiments as they come, with all their unexpectedness and irregularity.
"But it happens further quite naturally that men who believe too firmly in
their theories, do not believe enough in the theories of others. So the
dominant idea of these despisers of their fellows is to find others' theories
faulty and to try to contradict them. The difficulty, for science, is still
the same. They make experiments only to destroy a theory, instead of to seek
the truth. At the same time, they make poor observations, because they choose
among the results of their experiments only what suits their object,
neglecting whatever is unrelated to it, and carefully setting aside everything
which might tend toward the idea they wish to combat. By these two opposite
roads, men are thus led to the same result, that is, to falsify science and
the facts."
From Experimental Medicine, by Claude Bernard, pages 37 and 38.

PURPOSE OF CREATING BOARDS
In the enactment of the Food Law the Congress plainly provided the mechanism
of its enforcement. There was no provision in the law for any additional
machinery. It was evident that the Bureau of Chemistry was the dominant factor
in bringing offenders of the law before the Courts. Those who "felt the halter
draw" had "no good opinion of the law" as the poet has pertinently and wittily
said. The elimination of the Bureau was therefore the thing of prime importance.
The President of the United States seems to have taken the initiative in this
matter.
President Roosevelt wrote to the various universities to secure a chemist,
not to replace me, but to be placed in such a position as to counteract all my
activities. Accordingly on the recommendation of President Angell of Ann Arbor
the President issued an order permitting Dr. Frederick L. Dunlap to be
appointed, without Civil Service examination, as associate chemist in the Bureau
of Chemistry without being subject to the orders of the Chief of that Bureau,
but reporting directly to the Secretary. (Moss Committee, page 921.)
In order to make this point perfectly clear I quote the following from page
849, Moss Committee:
MR. MOSS: " It is also stated in the record that a board of food and drug
inspection was organized to advise the Secretary of Agriculture on matters
concerning which the Pure-food law says he must make a decision."
SECRETARY WILSON: "That is substantially correct."
MR. MOSS: " These two boards were created by executive order?"
SECRETARY WILSON: "Yes."
MR. MOSS: "Then the powers and the duties of either one of the boards were
fixed by executive order and not by statute?"
SECRETARY WILSON: "That is right. I do not think there was any special order
sent to me to do that, but President Roosevelt appealed to the presidents of the
big universities to get an additional chemist put on there and that brought Dr.
Dunlap from Ann Arbor. So I doubt if I had a special order, although there was a
very clear understanding what was to be done."
MR. MOSS: "The question I had in mind was that the Board of Food and Drug
Inspection was not created by statute but was created by executive order."
SECRETARY WILSON: "That is what I was doubting. It was not created by
statute. I created it for the purpose of getting information and all that, but
of the three gentlemen on the board, two were in the Department, and in bringing
in Dr. Dunlap, an additional chemist, made the third one, so technically there
was no general order of the President to do that, but there was a clear
understanding that it would be done. "
SPECIFIC DUTIES
We should not forget that in the legislation of Congress specific duties are
often assigned to particular units of administration of a character which does
not permit of executive interference. I may cite in this connection the
activities of the Comptroller of the Treasury. To the Comptroller of the
Treasury is assigned by Congress certain specific duties. Even the President of
the United States can not legally interfere with the Comptroller's prerogatives.
The story is told of a case in the Grant administration where the decision of
the Comptroller was particularly objectionable to certain citizens. They went to
the President and asked him to rescind the comptroller's opinion. President
Grant, who believed in obeying the law, replied that he could not legally alter
a comptroller's decision. He said:
"If I thought it was a very bad decision I might change comptrollers and
get one who would decide the way I think he should. In this case there does
not seem to be any exigency demanding any such action."
The Bureau of Chemistry had specific duties assigned to it. Theoretically
these duties could not be repealed by executive order. Practically in this case
they were, but, of course, illegally. The proper way was to follow the
suggestion of Grant, and remove the Chief of the Bureau and put Dunlap in his
place.
Soon after the episode of the whisky conference, on February 22, 1907, was
ended the Secretary of Agriculture walked into my office one morning in company
with a young man whom I had never before seen, and introduced him as Professor
F. L. Dunlap, your associate.
I said:
"Mr. Secretary, my what?"
He said:
"Your associate. I have appointed an associate in the Bureau of Chemistry
who will be entirely independent of the Chief and who will report directly to
me. During the absence of the Chief he will be acting chief of the Bureau."
I was astounded and dumbfounded at this action. He handed me at the same time
the letter in which he had established this office and described the duties of
the officer. Whatever qualification Dr. Dunlap had for the office to which he
was appointed does not appear. In the first place he was to take the office of
Acting Chief in my absence, a position which was filled most ably by Dr. W. A
Bigelow, my principal assistant in the Bureau. Dr. Bigelow had rare judgment and
discrimination. I depended upon him largely for the control of the personnel of
the Bureau. He was efficient, firm, just and capable. He had grown up in the
Bureau from a humble position to be, for several years, my first assistant.
There was no one else so capable as he to discharge the duties of Chief in my
absence. This action of the Secretary was a direct insult to one of the most
able men with whom I have ever worked. At the same time he put in charge of the
Bureau during the absence of the Chief a person who knew nothing of its
personnel, nothing of its activities, nothing of its duties either under the
food law or otherwise, and wholly unskilled and untrained in the control of a
large Bureau of several hundred members, as was the Bureau of Chemistry at that
time. This was an astounding action. At the same time I was informed that the
Secretary had organized a Board of Food and Drug Inspection. Such a board was
not authorized by law nor by any action of Congress, nor by any appropriation
made by Congress. Its purpose was to take away from the Bureau all its power and
activities under the Food Law. This body was composed of the Chief of the Bureau
as Chairman, with Dr. F. L. Dunlap and Mr. George P. McCabe as its other two
members. As long as Dr. Dunlap acted with Mr. McCabe--and that was always--all
decisions in regard to food adulteration, placed by law in the hands of the
Bureau of Chemistry, were approved or disapproved by the other two members of
the Board. This was a complete paralysis of the law. This Board was appointed by
General Order III, on April 25, 1907. The time that elapsed from February 22d,
when the whisky case was erroneously decided by the Solicitor, to April 25th,
1907, was only a little over two months. This order was issued before the final
decision on the whisky question by the Attorney-General was published. The order
reads as follows:
United States Department of Agriculture,
Office of the Secretary,
Washington, D. C., April 25, 1907.
There is hereby created in the Department of Agriculture a Board of Food
and Drug Inspection. The members of this board will be Dr. Harvey W. Wiley,
Chief, Bureau of Chemistry, chairman; Dr. Frederick L. Dunlap, associate
chemist, Bureau of Chemistry; and Mr. George P. McCabe, Solicitor of the
Department of Agriculture. The board will consider all questions arising in
the enforcement of the food and drugs act of June 30, 1906, upon which the
decision of the Secretary of Agriculture is necessary, and will report its
findings to the Secretary for his consideration and decision. All
correspondence involving interpretations of the law and questions arising
under the law not theretofore passed upon by the Secretary of Agriculture
shall be considered by the board. The board is directed to hold frequent
meetings, at stated times, in order that findings may be reported promptly.
"In addition to the above duties, the Board of Food and Drug Inspection
shall conduct all hearings based upon alleged violations of the food and drugs
act of June 30, 1906, as provided by regulation 5 of the rules and regulations
for the enforcement of the food and drugs act approved October 17, 1906.
(Signed) JAMES WILSON, Secretary of Agriculture.
(Expenditures in Department of Agriculture, Hearings July-August, 1911, page
429.)
First you will note that this Board was created in the Department of
Agriculture and not in the Bureau of Chemistry.
The result of the appointment of a board of Food and Drug Inspection was that
the functions of the Bureau as defined by the law were entirely paralyzed. The
Solicitor of the Department was made, by General Order No. 140, the supreme
arbiter in all cases. In all of the decisions which he rendered, without
exception, the Secretary of Agriculture supported him.
ORIGIN OF THE REMSEN BOARD
Encouraged by the success of the first effort to evade the provisions of the
law through the appointment of the Board of Food and Drug Inspection, the time
was propitious to push the matter further. The services of President Roosevelt
in securing the appointment of a chemist who would sympathize with the efforts
to defeat the purpose of the law had made that result possible. There was still
needed some further encouragement to attack the activities of the Bureau in the
matter of what was injurious to health. Up to this time the decisions of the
Bureau on these points had been respected. To eliminate the Bureau completely,
some plan had to be devised to counteract the decisions reached. A remarkable
incident made it possible to use the President of the United States in the
accomplishment of this purpose. As an eye and ear witness of the event about to
be described I am able now to set down exactly what occurred.
Adulterators of our foods who were using benzoate of soda particularly in
ketchup, and saccharin particularly in canned corn, had visited President
Roosevelt and urged him to curb the activities of the Bureau of Chemistry in its
opposition to these practices. They had spent the greater part of the day in the
President's office. He promised to take these matters into consideration the
very next day and asked these protestants to stay over. He invited the Secretary
of Agriculture and the Chief of the Bureau of Chemistry to come to his office at
ten o'clock on the day following and listen to the protests of the gentlemen
mentioned above.
At the appointed hour we all met in the President's office, or as I recall,
in that part of his office where Cabinet meetings were usually held. When all
were assembled he asked the protestants to repeat in the presence of the
Secretary of Agriculture and the Chief of the Bureau of Chemistry the demands
which they had made upon him the day before. The three chief protestants were
Curtice Brothers of Rochester, N. Y., Williams Brothers of Detroit, Michigan,
and Sherman Brothers of New York, represented by James S. Sherman, M.C., who was
near his election as Vice-President of the United States in 1908. There were a
number of lawyers and others closely related to the protestants, making a very
goodly number in all. They were loath to repeat the charges but Mr. Roosevelt
insisted that they should do so. Whereupon the representative of the ketchup
industries spoke. He told the well-known "sob" story of how the business of
putting up ketchup would be utterly destroyed if the decisions of the Bureau
banning benzoate were carried into effect. It was a touching and pathetic
recital of the ultimate confiscation of hundreds of thousands of invested
capital. There was no way in which this disaster could be diverted except to
overrule the conclusions of the Bureau. The Chief of the Bureau was dramatically
set forth as a radical, impervious to reason and determined to destroy
legitimate business. After this recital was completed, Mr. Roosevelt turned to
Mr. Wilson and said: "What is your opinion about the propriety and desirability
of enforcing the rulings of your Chief of Bureau?" Mr. Wilson replied:
" The law demands that substances which are added to foods for any purpose
which are deleterious to health shall be forbidden. Dr. Wiley made extensive
investigations in feeding benzoated goods to healthy young men and in every
instance he found that their health was undermined."
The President then asked me what I thought of this ruling. I replied as
follows:
"Mr. President, I don't think; I know by patient experiment, that benzoate
of soda or benzoic acid added to human food is injurious to health."
On hearing this opinion the President turned to the protestants, struck the
table in front of him a stunning blow with his fist, and showing his teeth in
the true Rooseveltian fashion, said to the protestants:
"This substance that you are using is injurious to health and you shall not
use it any longer."
If matters had rested there the crowning blow to the food law would have been
prevented. Mr. Sherman, however, took the floor and said:
"Mr. President, there was another matter that we spoke to you about
yesterday that is not included in what you have just said about the use of
benzoate. I refer to the use of saccharin in foods. My firm last year saved
$4,000 by sweetening canned corn with saccharin instead of sugar. We want a
decision from you on this question."
Unfortunately I did not wait for the President to ask the customary
questions. I was entirely too precipitate in the matter. I addressed the
President without his asking me, which is considered an offense to royalty or to
a President. In the presence of rulers, we should always wait until we are
spoken to before joining in the conversation. Had I followed this precept of
respect the catastrophe which happened might have been avoided. I immediately
said to the President:
"Every one who ate that sweet corn was deceived. He thought he was eating
sugar, when in point of fact he was eating a coal tar product totally devoid
of food value and extremely injurious to health."
This answer was the basis for the complete paralysis of the Food Law. Turning
to me in sudden anger the President changed from Dr. Jekyll to Mr. Hyde, and
said:
"You tell me that saccharin is injurious to health?" I said, "Yes, Mr.
President, I do tell you that." He replied, "Dr. Rixey gives it to me every
day." I answered, "Mr. President, he probably thinks you may be threatened
with diabetes." To this he retorted, "Anybody who says saccharin is injurious
to health is an idiot."
This remark of the President broke up the meeting. Had he only extended his
royal Excalibur I should have arisen as Sir Idiot. That distinction has not
departed from me to this day. The thing which hurts most is that in the light of
my long career I fear I deserved it. The next day the President issued an order
establishing the Referee Board of Consulting Scientific Experts. In order that
his favorite sweetener might have fair hearing he asked Dr. Ira Remsen, who held
a medal given him by the Chicago Chemical Society as the discoverer of
saccharin, to be chairman and to select the other members. According to the
ordinary conception of a juror Dr. Remsen would not have been entitled to sit on
the subject of saccharin. Such little matters as those, however, were not
dominating with the President of the United States. As Milton describes the
episode in the Garden of Eden--
"Of man's first disobedience and the fruit
Of that forbidden tree whose mortal taste
Brought death into the world and all our woe"
the creation of the Remsen Board of Consulting Scientific Experts was the cause
of nearly all the woes that subsequently befell the Pure Food Law. Joined to the
creation of the Board of Food and Drug Inspection there was little left of the
method prescribed by Congress for its enforcement.
UNIFICATION OF ADULTERATORS
From this time on all the interests seeking to paralyze the enforcement of
the food and drugs act acted as one body under the leadership of the Department
of Agriculture. The rectifiers were perhaps the best organized of the enemies of
the pure food and drugs legislation. The interests that supported and demanded
the use of benzoate of soda represented only a minority of the manufacturers of
ketchup. Those who demanded the free use of sulphurous acid and sulphites were
confined to the manufacturers of cane molasses and of dried fruits. Those who
demanded the use of saccharin were only a very small part of the interests
engaged in the canning and preserving of our foods. The people who were anxious
to use alum, however, represented a great majority of baking-powders. Those
manufacturers who made baking powder out of phosphates and tartrates were not so
numerous and did not do so big a business as the makers of alum powders. The
whole body of adulterators and misbranders of our foods who were depressed by
the results of the decision of the question of what is whisky were restored to
optimism and tremendous activity by the appointment both of the Board of Food
and Drug Inspection and of the Remsen Board. By this time, however, public
sentiment which had been so unanimously in favor of food and drug legislation
was awakened to the danger which came from the betrayal of the cause of pure
foods by these executive proclamations. The daily, weekly, and monthly press of
the United States were almost solidly opposed to these illegal activities of the
executive officers in charge of the pure food and drugs legislation. Not a day
passed without numerous attacks upon this laxity of administration appearing in
all parts of the country.
I will return to this condition of affairs later on. The Secretary of
Agriculture was perfectly acquainted with the incident just described in regard
to the origin of the Remsen Board. Nevertheless, in the following statements to
the fruit growers of California he ascribed the origin of the Remsen Board to a
totally different cause. I quote from page 847 of the Moss Committee on
Expenditures in the Department of Agriculture:
I went out to the Pacific Coast, I think it was in 1907 to look at the
forests which had just come to our department. Telegrams began to come all
around me, and finally reached me that something was seriously the matter at
San Francisco, and I wired back that I would be there at a certain day, and I
went there. I found the mayor, the bankers, the business men and the farmers
in a very great commotion. They wanted me to talk. I said, "I do not know what
to say, I will listen; you talk, gentlemen." "Well," they said, "we have a
$15,000,000 industry here in the growing and drying of fruits. These dried
fruits are contracted for by the big eastern merchants. Our people borrow
money from the banks, and when the fruit is sold everything is straightened
out and things go on, but you people in Washington say we can only use 350
milligrams of sulphur to the kilo, and the eastern men who have contracted for
our fruit will not make their contracts good; they are afraid it will not
keep."
After listening to these good people all day I said, "I see the condition
you are in, gentlemen. I do not think the American Congress in making this law
intended to stop your business. We have not learned quite enough in Washington
to guide your business without destroying it; we will know better by and by,
but I will tell you what to do. Just go on as you used to go on and I will not
take any action to seize your goods or let them be seized or take any case
into court until we know more about the number of milligrams to the kilo, and
all of that. In the meanwhile I shall send a chemist from our Bureau of
Chemistry out here, and I want to get the best chemist in your state at your
State University at Berkeley, put the two together and try to get the facts,"
and we did that. They worked that summer; and before I think they completed
all they would like to have done the Referee Board came * * * I think that
about answers the question why the Board was created.
When the chemists made their report, Secretary Wilson promptly refused to
have it printed because they had found a harmless substitute for sulphur fumes.
The hearings accorded the users of saccharin, after the report on saccharin
by the Referee Board had been published, developed the following curious
incident.
The President selected the alleged discoverer of saccharin as Chairman of the
new committee to revise the findings of the Bureau of Chemistry. This committee
entirely reversed President Roosevelt's decision that benzoate of soda was a
harmful substance. They did not, however, agree with him entirely in regard to
the harmlessness of saccharin. In their report they permitted the use of a
sufficient amount of saccharin to sweeten foods, but they were of the opinion
that if one consumed over 3/10th of a gram of saccharin at any one time it might
prove injurious and that also as a sweetener it was a fraud. The manufacturers
of saccharin asked for and secured a hearing on this point. The hearing was held
before Secretary Wilson and Secretary Nagel. Addressing the saccharin
manufacturers, Secretary Wilson (Page 908, Moss Committee) made the following
statement:
I want to say frankly to you gentlemen that the Referee Board was organized
and put in action for the very purpose of conserving the interests of the
manufacturers, by insuring them a sane hearing, and, that being the case, it
is the best the Government can do.
To the users of burning sulphur he promised complete immunity until the
Remsen Board made its decision. In point of fact, that came only after many
years. It was never published by the Department of Agriculture. The indulgence
has continued for twenty-two years and bids fair to go on forever. Now to the
makers of saccharin he says the Remsen Board was created to be sure
manufacturers get a "sane hearing." The plain inference is that the hearing
specified in the Act is not "sane."
Of course Secretary Wilson was right in so frankly stating the purpose for
which the Referee Board was created. Manufacturers of adulterated goods were
never shut out from a full and fair hearing. That was always available before
the Courts when they were cited to appear as violators of the law. The Referee
Board was an effective buffer for all this class of manufacturers. It prevented
a full and fair hearing of the case before a jury and a United States Court. It
was the most baleful influence toward the degradation of the food supply of our
country that ever existed. The Referee Board has passed away, but the evil
effects of its activities will be felt for all time to come. Its decisions and
its activities are still regnant in the mal-administration of the pure-food law.
The only hope of the future lies in the possibility of some day getting a
Secretary of Agriculture who with one stroke of his pen will erase forever from
the records of the Department every decision of the Referee Board and every
regulation made in conformity therewith, and remove every administrative officer
who willingly carries these decisions and regulations into effect.
SENSITIVE TO NEWSPAPERS AND MAGAZINES
The officials, paid experts and aides of the low-grade manufacturers realized
very keenly their unpopularity as reflected in the notices of their activities
which appeared in the newspapers and magazines. This sensibility caused Dr.
Remsen at the end of his testimony before the Moss Committee to express his
feelings which have been recorded in another place. Prior to this he was keenly
sensitive to what the newspapers were saying about him and his Board. On Feb.
11th , 1910, in a letter to the Secretary of Agriculture, (Moss Committee, Page
366) he said:
"A representative of our principal newspaper brought me yesterday an
inflammatory article which had been sent by the Washington correspondent. The
object of the article was to discount the reports of the Referee Board on the
sulphur question. It was venomous and inflammatory to the last degree. It also
took up the benzoate question with the object of showing how entirely
unreliable the work of our Board had been. Our bombastic friend, C. A. L.
Reed* of Cincinnati, was held up as a great and good man and a high authority.
I presume this attack has been sent all over the country. I made some comments
on it and the newspaper to which it was sent here declined to publish it. I
have no doubt as to the source of that article. It was altogether the worst
thing that I have seen."
*Eminent surgeon and Past-President of the American Medical Association. Died in
1928.
The curious thing about all this is that the Secretary of Agriculture and his
aides, the Remsen Board and their followers were continually insinuating that
there was some one in Washington who inspired all these criticisms of the Remsen
Board. They were never bold enough to come out openly and say who this person
was. It is perfectly plain who was in their minds. The report of Dr. Bigelow,
who was the chemist sent to California, not by Secretary Wilson, but by myself,
was refused publication when it was completed and has never yet seen the light
of day. Dr. Bigelow in this report showed how by dipping the freshly cut fruits
in a weak solution of common salt and then drying them a product was produced
equal in color to the sulphured article and far more palatable, wholesome, and
desirable in every way.
Large quantities of dried fruits made by this process were shipped to
Washington, submitted to dealers and pronounced a far superior product in every
way to the ordinary sulphured article. Also attention should here be called to
the fact that the meat inspection law specifically denies the use of sulphur
dioxide and sulphites in the preparation of meats on the ground that a
preservative of this kind is injurious to health. Its use had been discarded
practically before the regulation forbidding it was made by reason of the
scandal of embalmed beef which stirred this country deeply during the Spanish
War. In other words the use of any sulphur dioxide or sulphites in meat was an
adulteration, but in dried fruits it was necessary to prevent the destruction of
the dried fruit business, in the eyes of the Secretary of Agriculture.
Further questioning of the Secretary threw additional light on this point:
MR. FLOYD: You, personally, as Secretary, were made responsible, but
President Roosevelt acted in harmony with you in establishing this referee
board?
SECRETARY WILSON: We have to obey the President of the United States when he
indicates what he wants.
MR. FLOYD, I understand. The President, sanctioned this board?
SECRETARY WILSON: Oh, yes. He wrote to the presidents of the great
universities and got them to recommend men, and when the men came that he wanted
he ordered me to appoint them, and I appointed them.
MR. HIGGINS: Mr. Secretary, in your observation of the enforcement of this
law, is it your opinion, based upon that observation, that it was a wise thing
to have a referee board?
SECRETARY WILSON: It certainly was my judgment that we should have a referee
board.
MR. HIGGINS: Is that confirmed by your experience with it?
SECRETARY WILSON: I have no reason to conclude that it was not wise.
MR. HIGGINS: Are you familiar with the character of the gentlemen who make up
that board and their scientific attainments?
SECRETARY WILSON: By reputation only; I did not know them personally, any of
them.
MR. HIGGINS: Have you ever imposed any restrictions on them as to the methods
of investigation?
SECRETARY WILSON: No. I told them frankly when they began that nobody had any
business to interfere with them anywhere; that they were to find us the facts
with regard to what we submitted to them; and I did not impose any restrictions
and nobody else had any right to, unless it was the President, and I did not
think he would.
MR. MAYS: Did you have any doubt in your mind as to the legality of their
appointment at the time?
SECRETARY WILSON: Never.
MR. FLOYD: Now, Mr. Secretary, how many of these great questions have been
submitted to the referee board?
SECRETARY WILSON: I suppose I could count them on my fingers.
MR. FLOYD: The chairman tells me that that is in the record.
SECRETARY WILSON: Very likely it is in the record.
MR. FLOYD: Now, under the pure-food law, as I understand it, Mr. Secretary,
the work of the Bureau of Chemistry is preliminary to a prosecution?
SECRETARY WILSON: Oh, surely.
MR. FLOYD: And no prosecution can be instituted against anyone in a criminal
procedure until the Bureau of Chemistry has made an adverse finding and you have
so certified to the district attorney?
SECRETARY WILSON: That is the way it is done.
MR, FLOYD: Now, I am going to ask you a question that I would ask other
witnesses as to the effect of the decision of the referee board. In case the
Bureau of Chemistry should make a finding adverse to the use of a certain
commodity on the ground that it was deleterious to health and that should be
referred to the referee board and the referee board should make a contrary
decision, is there any way, under the regulations, to your knowledge, that the
question at issue between the Bureau of Chemistry and the referee board could be
taken into the courts and be settled by the courts?
SECRETARY WILSON: Of course, I can not state intelligently with regard to how
a thing might get into the courts, but the department would enforce the decision
of the referee board. They would do that, I suppose
MR. FLOYD (interposing) : If the decision of the referee board was adverse to
that of the Bureau of Chemistry the effect of enforcing the decision of the
referee board would be to prevent the prosecution of anyone using that
commodity?
SECRETARY WILSON: Well, it would depend on--yes, I see your point; yes, it
would.
The unanimous decision of the committee investigating the expenditures of the
Department of Agriculture completely exonerated the accused officials and
censured their accusers.

ATTORNEY-GENERAL WICKERSHAM
Who certified to President Taft that Dr. Wiley was worthy of "condign
punishment."

The activities of two Presidents, three cabinet officers, and one
Attorney-General in promoting the efforts to exclude the Bureau of Chemistry
from any efficient steps looking to the enforcement of the Food and Drugs Act
created a veritable storm of protest, as has already been indicated, in the
press of the country. This protest was voiced most effectively by the attitude
of The World's Work under the able editorship of Walter H. Page. In the issue of
that magazine for September, 1911, the following editorial comment is found,
under the title, "The Fight on Dr. Wiley and the Pure Food Law."
There is no better illustration of the difficulty of really effective
government than the obstructions that have been put in the way of Dr. Wiley,
the head of the Bureau of Chemistry at Washington. So long as the Pure Food
and Drugs Act ran foul of only small violators, it was easy to enforce it;
but, as soon as it hit the vested interests of the rich and strong, the most
amazing series of successful. obstructions were put in the way--so amazing and
so successful that the story will be told with some fullness in the succeeding
numbers of this magazine.
Here is a man--Dr. Harvey W. Wiley--who has given his whole working life to
the protection of the people from bad and poisonous food and drugs. There is
no more unselfish or devoted public servant. He has time and again declined
offers of lucrative and honorable private work. He has lived and labored for
this one purpose.
It is to him that we owe the law and the agitation for its enforcement. It
is to him that we owe the education of the public which has brought state laws
and municipal ordinances for pure food and drugs. It is to him that we owe
such an important advance in more careful living and such a quickening of the
public conscience as we owe to hardly any other living man; and the whole
people are his debtors. He is the direct cause of a wider and safer public
knowledge and of more healthful habits of life.
Still the Pure Food and Drugs Act is not yet enforced against the great
offenders. Dr. Wiley has had his hands tied from the time of its enactment.
The Board, whose duty it is to report violations of the law, consists of Dr.
Wiley, Dr. Dunlap, a chemist, and Mr. McCabe, the solicitor of the Department
of Agriculture. But out of the thousands of cases of adulteration and fraud
that have been discovered, practically no cases against the strongest
corporations and groups of law-breakers have been brought to trial. Dr. Wiley
is a man of scientific distinction, of accuracy, and of responsibility. Yet
his two associates on this board, men, to say the most for them, of far less
ability and less distinction, have been permitted to check almost every move
that he has made. The aged Secretary of Agriculture has given his confidence
and his support to them and withdrawn it from Dr. Wiley.
More than this--the Attorney-General, reversing an opinion prepared by one
of his own subordinates and accepting an opinion by Mr. McCabe, declared that
the referee board of distinguished chemists (the Remsen Board) was authorized
by the law--a very dangerous and very doubtful construction of a plain
statute; and this Board has been used to prevent the enforcement of the law
against the use of benzoate of soda. This Remsen Board has never declared that
benzoate of soda is a permissible preservative. It has never been asked
whether it can be or is extensively used to preserve rotten food. It was asked
only if it proved injurious to the health of strong young men when taken for a
time in small quantities. They found that it did these young men no
appreciable harm. Then this declaration was used to permit the canners and
packers of rotten fruits and vegetables to continue to put them up in benzoate
of soda. Even if benzoate of soda does no harm to health, its use in
disguising rotten food brings it within the proper prohibition of the law.
This incident is a good illustration of the way in which Dr. Wiley has been
balked and hindered. Influences, legitimate and illegitimate, have been used
to prevent the enforcement of the law in its most important applications.
Inside the Government and outside, the manufacturers of dangerous and
unwholesome food and drugs have carried on a continuous and effective campaign
against Dr. Wiley and his work. He has been practically without power to put
the law into effect against strong offenders. He has been humiliated by being
overruled by his subordinates. He has suffered from an inefficient
administration of the Department of which his bureau is a part; for the
venerable Secretary of Agriculture is too old vigorously to administer his
great Department. Yet Dr. Wiley, purely for patriotic reasons, has suffered
this hindrance and humiliation till some change might come which should
unshackle him.
On the outside the bad food and drug interests--or some of them--have
maintained a lobby in Washington, have kept "syndicate" newspaper writers in
their pay to write about the unfairness and the injustice of the law and the
unreasonableness and "crankiness" of Dr. Wiley. One such organization--or
pretended organization--some time ago sent a threatening letter to all the
most important periodicals, saying that large advertisers would withdraw their
patronage if they published articles favorable to the law!
There has been an organized fight, therefore, against the law and the man.
And, although the man's official power has been curtailed, he has won--won
such a victory for the people as will insure the continuance, with new vigor,
of the campaign for pure food and drugs, by national law and by local laws.
The "charge" against Dr. Wiley that provoked this popular outburst of
approval, is not worth explaining. He made an arrangement to pay Dr. Rusby, a
distinguished specialist, a higher rate for work per day than the law
specified for per them payments, but less than the law permitted as a yearly
salary. By this arrangement the services of Dr. Rusby to the Government were
secured for less than if the letter of the law had been followed and he had
been paid the yearly salary that the law specified--since he gave and was to
give only a small part of his time to the work. This technical violation of
the letter of the law--if it were a violation of its real meaning--has long
been customary in many departments of the Government; for it has common sense
and economy to commend it.
When the Attorney-General wrote that this offence deserved "condign
punishment,"--the Attorney-General--what shall be said of him with respect?
Surely it was a narrow and silly recommendation. He put a greater value on a
microscopic legal technicality than on the incalculable service of a man whose
work is worth more to the health and happiness of the people than the work of
many Presidents and Attorneys-General. Dr. Wiley's "offence" was instantly
forgotten by the public, which has some common sense if not much legal
knowledge. But the accusation was important for this reason: it showed the
determination of those who brought it to get rid of him.
Now, if Dr. Wiley deserves dismissal for any sufficient reason, it is
proper and it is the duty of somebody to present such a reason. But to propose
"condign punishment" for saving the public money by following a common custom
of paying for professional service-that shows a personal and private purpose
to be rid of him.
The upshot of it all is that Dr. Wiley has been made a sort of popular
hero. Now popular heroism has decided disadvantages and even dangers. It is
fair to Dr. Wiley to say that he has not sought such a place on the stage. He
has his vanities (who hasn't?) and the popular appreciation of his work is of
course welcomed by him, as it ought to be. But mere personal popularity and a
personal "fight" are likely to obscure the main matter at stake. The main
matter is the Pure Food and Drugs Act--not only nor mainly Dr. Wiley and his
personal vindication, but the firm and permanent establishment of this fact
and purpose: that no opposition of interested law-breakers, no personal
jealousies, no departmental feuds, no infirm and feeble administration of any
Department, no narrow legal technicalities, shall longer hinder the execution
of the law that guards the health of the people. This is of far greater
importance than anybody's tenure of office or than anybody's official "face"
or dignity.
It has been made plain that the administration of the Agricultural
Department is feeble. Feuds and cliques are not permitted to obstruct the laws
in well-administered institutions. And it has again been made plain by the
Attorney-General that this is a "legal" administration; and, again, that the
President's amiable qualities lead him to patch-up and smooth-over troubles
that become worse with every patching and smoothing and can then be removed
only after public discussion and possible scandal. The incident ought and
seems likely to bring big results in rallying public opinion to the support of
the law and of its author and zealous and useful guardian. The investigation
by the Congressional Committee that has the subject in hand will bring out
facts that are likely to make the law far stronger than it has ever been.

:
Committee on Expenditures in the Department of Agriculture, 1911, investigating
charges preferred against Dr. H. W. Wiley, Representative Ralph W. Moss,
presiding. At the right of Mr. Moss are the three of the Democratic members of
the Committee, namely, Hon. J.C. Floyd, Hon. R.L. Doughton, Hon. D.H. Mays;
Henry E. Davis and Hon. W.P. Hepburn, attorneys for Dr. Wiley. On the left of
Mr. Moss are the Hon. Edwin W. Higgins, Hon. Burton L. French, and the Hon.
Charles H. Sloan, the stenographer and H.W. Wiley.

The editor of The World's Work did not have to wait long to know the
conclusions reached by the committee investigating the expenses of the
Department of Agriculture. The report was issued early in 1912. It was a
complete vindication of the Bureau of Chemistry and a complete reversal of the
penalties which the personnel board had inflicted, or tried to inflict on the
Chief of the Bureau and his assistants. Before the committee's report was
published, however, the President of the United States, who had been asked to
approve the dismissal of the Chief of the Bureau, wrote the following letter to
the Secretary of Agriculture (Page 2 of the Report):
"The truth is, the limitations upon the bureau chiefs and heads of
departments to exact per diem compensation for the employment of experts in
such cases as this is of doubtful legislative policy. Here is the pure-food
act, which is of the highest importance to enforce and in respect to which the
interests opposed to its enforcement are likely to have all the money at their
command needed to secure the most effective expert evidence. The Government
ought not to be at a disadvantage in this regard, and one can not withhold
one's sympathy with an earnest effort on the part of Dr. Wiley to pay proper
compensation and secure expert assistance in the enforcement of so important a
statute, certainly in the beginning, when questions arising under it are of
capital importance to the public."
Other high lights of the report of the committee are summarized below:
"The committee on expenditures in the Department of Agriculture beg leave
to submit the following report of the recent hearings commonly referred to as
the "Wiley Investigation." This inquiry was instituted on information that an
alleged conspiracy had been entered into between certain high officials of the
Bureau of Chemistry and Dr. H. H. Rusby whereby Dr. Rusby was to be paid a
compensation for his services at a higher rate than authorized by law. * * *
In the discharge of its duties under the rules of the House, your committee
made a patient and careful investigation of the whole controversy. * * * Your
committee regards the "Wiley Investigation," so-called, only an incident in
its broader inquiry into the organization and administrative routine of the
Bureau of Chemistry and the Referee Board. * * * We failed to find from the
evidence in the whole case that there existed any secret agreement or that the
terms of compensation or rates to be paid Dr. Rusby were withheld from the
Secretary designedly or otherwise. * * * We therefore find from the evidence
adduced that the charges of conspiracy have not been established, but, on the
contrary, that the accused officials were actuated throughout solely by desire
to procure for the Bureau of Chemistry an efficient assistant in the person of
Dr. H. H. Rusby under terms and conditions which those officials believed to
be in entire accord with the law, regulations, and practice of the Department
of Agriculture. * * *
"The record shows that three members of the Referee Board were in
attendance at the trial at Indianapolis, Indiana, in the capacity of witnesses
at the instance and on behalf of the plaintiffs in the suit to which Curtice
Brothers and Williams Brothers, who are interested in the sale of food stuffs
to which soda benzoate has been added as a preservative, and that the expenses
of these witnesses were paid by the Department of Agriculture. In the opinion
of your committee the payment of these expenses by the Department of
Agriculture was wholly without warrant of law. * * *
"Your committee does not question the motives or the sincerity of the
Secretary of Agriculture, whose long service as the head of the Department of
Agriculture has been of signal service to the American people. From the
beginning, however, the honorable Secretary has apparently assumed that his
duties in the proper enforcement of the pure-food laws are judicial in
character, whereas in fact they are wholly administrative and ministerial.
This misconstruction of the law is fundamental and has resulted in a complex
organization within the Department of Agriculture, in the creation of offices
and boards to which have been given, through Executive order, power to
overrule or annul the findings of the Bureau of Chemistry.
"The statute created the Bureau of Chemistry as an agency to collect
evidence of violations of the food and drug act and to submit this evidence
duly verified to the Department of Justice for judicial action. The Secretary
of Agriculture is the officer whose duty it is to transmit this evidence from
the Bureau of Chemistry to the Department of Justice. Added to this simple
duty is the more responsible obligation delegated to him by the three
Secretaries to review the findings of the Bureau of Chemistry by granting a
hearing to parties from whom samples were collected and in the light of these
hearings, of deciding whether or not the findings of the bureau are free from
error.
"This construction of the law, which, in the opinion of your committee, is
the correct one, places the judicial determination of all disputes in the
courts, where the standard of purity in foods must finally be established. It
also makes it the imperative duty of district attorneys to proceed against all
violators of the law on receipt of certified record of cases prepared by the
Bureau of Chemistry; but if we accept this construction of the law in its full
meaning, it is apparent that at the time of the taking effect of this law the
prompt prosecution of every infraction, whether of major or minor importance,
was an impossibility, as such a course would have utterly congested the
business of the courts. * * *
"Thus the administration of the law began with a policy of negotiation and
compromise between the Secretary and the purveyors of our national food
supplies. * * *
"The strength of the statute and the jurisdiction of the courts cannot be
affected by the executive orders of the Secretary of Agriculture, though they
be issued in obedience to the suggestion of the President of the United
States.
These respective duties of the Secretary and Bureau are enumerated
separately in the statute and whatever other duties either may be charged with
in the administration of the Act come by virtue of the rules and regulations
established by the Secretary of Agriculture, the Secretary of the Treasury,
and the Secretary of Commerce and Labor. * * *
"The Act of Congress approved March 4, 1907, contains this provision, 'and
hereafter the Secretary of Agriculture is hereby authorized to make such
appointments, promotions, and changes in salaries, to be paid out of the lump
sum of the several bureaus, divisions and offices of the Department as may be
for the best interest of the service.' In view of these provisions of law your
committee is of the opinion that there may be authority under the law for the
creation and maintenance of such Board (Referee Board) to aid the Secretary in
the discharge of any duty enjoined on him in his official capacity; but raises
the question as to its legality on the sole ground that the determination of
the general questions submitted by the Secretary to the Referee Board is not
enjoined upon him under the law.
"We have here presented the very crux of the controversy which has been
waged over the terms of the pure-food law, and which, fortunately for your
committee, has been recently discussed (by the Supreme Court) in a decision of
the United States vs. Morgan, et al. * * * The weight of this decision clearly
denies to the Department of Agriculture any judicial authority. * * * We have
thus presented another weighty question to be considered in this connection as
to the necessity, wisdom, or sound policy of maintaining such a board at a
heavy expense to the Government when the work done by it is largely a
duplication of work performed, or which might be performed by the Bureau of
Chemistry. The functions of this board as at present constituted are purely
advisory. Their decisions have no legal or binding effect upon any body. The
Secretary can follow or ignore their recommendations as he sees fit. * * * The
Honorable Secretary of Agriculture seems to have regarded the findings of this
board as conclusive in all cases over the opinions and findings of the Bureau
of Chemistry, the tribunal which by express terms of statute is vested with
authority to determine the questions of adulteration and misbranding within
the meaning of the act. In the practice of the Department, the Bureau of
Chemistry has been restrained from examining any specimens of foods and drugs
under any general subject which is submitted to the Referee Board during the
time of examination of such questions by such Board; and if such general
subject is submitted to the Referee Board before the Bureau of Chemistry has
made any examination of specimens to determine the question of adulteration
and misbranding, then the Bureau is not permitted by the Secretary to make any
such examination until the Board shall have made its report.
"It has resulted in another remarkable situation, namely, that under the
practice of the Department the decisions of the Bureau of Chemistry, if in
opposition to the findings and opinions of the Referee Board cannot be
referred to the Courts and thus permit a judicial decision to be made as is
comprehended under the plain provisions of the law. It would thus happen that
if the Bureau of Chemistry were right and the Referee Board were in error that
violations of the law would receive protection through the proposed
enforcement of the law; because the effect of such a policy is to give this
advisory Board, created by Executive order paramount authority over the Bureau
of Chemistry and lodges in the personal advisers of the Secretary the power to
annul the decisions of the Bureau within the Department of Agriculture which
was created by law."
These luminous opinions of the committee investigating the expenditures of
the Department of Agriculture show that not a dollar of the money expended by
the Referee Board was legally expended. At the time this investigation took
place the total expenditures made by the Referee Board of the money appropriated
by Congress to enforce the Food and Drugs Act amounted to over $175,000. Every
dollar of this money was expended in protecting and promoting violations of the
law. It seems strange in view of these findings which were approved by the House
of Representatives that no effort was made to impeach the Secretary of
Agriculture and the President of the United States who had thus perverted money
appropriated for a particular use to activities totally repugnant to the purpose
of the appropriation. The following violations of law were permitted and
protected by this crime, namely, the use of benzoate of soda as a preservative
of foods, the use of sulphur dioxide and sulphites as bleaching agents and food
preservatives, the use of saccharin as a sweetener in foods up to an amount not
exceeding three-tenths of a gram, and the free and unrestricted use of alum in
food products. It is a striking comment also on the attitude of Congress and the
people at large that no steps have ever been taken from 1911 to 1928 to correct
these outrages on the Americaia people and to attempt to restore the law to its
power and purpose as enacted. Administration after administration has come and
gone and these abuses still persist.
THE REFEREE BOARD ALREADY DECLARED ILLEGAL
After considering all the evidence adduced over a period of six weeks the
House committee on expenditures unanimously declared the Referee Board to be an
illegal organization. It had a very good reason for doing so even before the
evidence was considered. The matter had been decided by an assistant to
Attorney-General Wickersham in a report from the Department of Justice dated
March 31, 1909. This was fully two years and more before the decision of the
investigating committee was rendered. This report of the Department of Justice
was signed by J. A. Fowler, assistant to the Attorney-General. It is printed in
full in the proceedings of the committee, pages 205 and following.
Attorney-General Fowler called attention to the fact that at the time the
committees of the House and the Senate met for final conference on the food and
drugs bill, the House bill contained a provision authorizing the appointment of
a committee of five experts to consider questions of deleterious or injurious
substances in foods, and to establish food standards. The Senate bill did not
contain a provision of this kind but did contain a statement of the duties of
the Bureau of Chemistry to perform these functions. The Senate conferees
insisted on the elimination of the House provision for a special board and this
was acceded to by the conferees from the House. When the conference report was
presented to the two houses Mr. Mann, manager for the House made the following
statement in answer to a question by Mr. Pollard:
MR. POLLARD: Was there any change made in the provision of the House bill
wherein we provided that a board, of five inspectors should be selected to pass
upon the wholesomeness or deleteriousness of the foods?
MR. MANN: That provision was in Section 9, directing the Secretary of
Agriculture to determine standards and the entire section goes out. As I stated
in the House when the bill was before the House, it is the courts which must
determine in the end as to the question of the wholesomeness or the
deleteriousness of preservatives or of any article of food. * * * The Senate
conferees were unalterably opposed to that provision and as it was not an
essential provision of the law we gave way on that provision in order to save
the rest of the bill practically intact as the House had enacted it. (Record
59th Congress, First Session, Page 9738, Expenditures in the Department of
Agriculture, page 269.)
MR. FOWLER: "This statute authorizes the prescribing of such regulations as
are consistent with law, and for the reason above stated I regard the
appointment of this Board of Referees as inconsistent with law.
Senator McCumber also commented in the Senate on this same subject, as
follows:
"Now what have we eliminated from this bill? Senators will remember that
the House measure provided for the fixing of standards and it called to the
assistance of the Secretary of Agriculture certain experts who were to aid him
in determining what the standards should be and also provided that the
standards so established by them should be for the guidance of the court. The
Senate has always contended that the power to fix standards should not be
given to any man and the House conferees receded from that portion of the
House amendment and it goes out."
In spite of this clear intention of Congress the Solicitor of the Department
of Agriculture wrote an opinion to the effect that the appointment of the
Referee Board was legal and this opinion was adopted by Attorney-General
Wickersham as a choice between the opinion of the Solicitor of the Department of
Agriculture and the opinion of his own assistant in the Department of Justice.
With the promulgation of the opinion of the Attorney-General, the effacement
of the Bureau of Chemistry from any further participation in the enforcement of
the food and drugs act was completed. Even the Board of Food and Drug Inspection
was deprived of its office of confirming or overturning the decisions of the
Bureau of Chemistry. Under General Order No. 140 the Solicitor of the Department
was made the sole arbiter of the recommendations which should go to the
Secretary in regard to whether or not an article was misbranded or adulterated.
General Order No. 140 is found on page 10 of the report of the committee. The
committee expressed the following opinion thereon:
"Under the terms of this order all the evidence in all cases examined in
the Bureau of Chemistry, together with such summaries as the solicitor may
prescribe is referred to the solicitor to determine whether or not a prima
facie case has been made. * * * We are at a loss to understand what favorable
results can come from the preparation of such summaries in the Bureau of
Chemistry and their further study in the solicitor's office."
The committee realized that this was the consummation of the plan of the
solicitor. It totally disregarded the provisions of the food law as to the
methods of its execution. It placed the solicitor, not mentioned nor recognized
in the law, in the place of the Bureau of Chemistry as the sole arbiter of all
processes looking to the enforcement of the act. With this final blow at the
vitality of the law its enforcement passed entirely into the hands of the
enemies of the law. The public which it was intended to protect was left without
any redress. The result was a wild orgy of adulteration and misbranding, paid
for by the money of tax-payers appropriated for the enforcement of the law. The
members of the Referee Board became experts paid by the Government to protect
the interests of adulterators and misbranders. Their eff orts in this direction
were put into effect by the Solicitor of the Department. All the fruits gained
by the victory in the enactment Of the legislation were thus sacrificed by the
direct negation of the law's demands. The fai-reaching effects of this crime
against law I have tried to set down in as small a space as possible to do
justice to the story.
UNCONTROLLED FOOD SUPPLY
If an expert dietitian and physiologist should take up for study a report on
metabolism made by a scientific authority, he would expect first of all that the
composition and weight of food ingested should be accurately stated. Without
knowing the amount of intake, data respecting the outgo have no significance. In
Bulletin 84, Part 4, Benzoate of Soda, containing the experimental data of the
Bureau of Chemistry, it will be noticed that careful analytical examinations
were made of all the foods ingested and the quantities of each kind of food for
each subject is accurately stated. The data in this investigation therefore
obtained by the examination and analyses of the feces and urine have a direct
significance. In the experiments on the same subject conducted by the Referee
Board no attempt was made to have complete analyseg of the foods administered
nor the quantities thereof eaten. It was all left to the experimentees
themselves. This is forcibly brought out by the statement of Dr. Chittenden on
page 17 of Report No. 88 of the Referee Board. He says:
First, the subjects were not restricted to a limited dietary, but on the
contrary were allowed reasonable freedom of choice, both as to character and
quantity of the daily food. 1n other words, there was no interference with the
normal desires of the individual but each subject was allowed full latitude in
the exercise of his personal likes and dislikes. To be sure each day a
definite menu was arranged for all three meals, but this was sufficiently
generous in character to admit of choice; further' after a short time
sufficient knowledge was acquired of the special tastes of the subjects, so
thdt a daily dietary could easily be provided quite satisfactory to all. By
this method of procedure there was no violation of that physiological good
sense so essential in experiments of this character.
In the experiments of the Bureau of Chemistry no such latitude was permitted.
In the fore period in each case sufficient quantities of the diet prescribed,
which was a thoroughly wholesome and well-balanced one, were used to establish
an even daily weight of each one. This quantity was given to the subject each
day, during the experimental administration of the drug. If during the
administration of the benzoic acid the subject would not feel like eating his
whole meal, the amount he did not eat was weighed and deducted. This failure of
appetite, if no other cause could be found for it, was an indication of the
effects produced by the administered preservative. I suppose this method of
procedure would be designated by members of the Referee Board as "physiological"
nonsense.
The records printed in Report No. 88 indicate the wildest riot in diet ever
recorded in a physiological investigation. Enormous differences in the amount of
food consumed are recorded in that report. In the evidence before the court in
the Indiana case, page 33, this matter was brought to the attention of Dr.
Remsen in the following question:
Now, Doctor, in order to conduct an examination of that. kind, an
investigation that was of any very great value, oughtn't every article of food
that was given to the subject to be analyzed, some part of it, so as to know
what it contained?
A. I suppose there are other ways of getting at that besides analyzing it.
You can often form generally an opinion of the character of the food you are
giving or examining without analyzing.
Q. Are there not variations, for instance in breads?
A. There are variations, undoubtedly.
Q. And they are variations of wide extent, are they not, doctor?
A. Well, wide--depends on the meaning of the word wide. That is a technical
question that I should want to refer to the experts of this Board.
Q. You would not be prepared to say what would be a normal range in the
quantity of nitrogen that would be found?
A. Not I, no. I could get the information very readily. One moment--my
impression is that there were analyses of some foods made--very many.
Some time in the remote future when all personal matters have passed away and
an expert chemist and physiologist calmly reviews the data obtained by the
Bureau of Chemistry and the data obtained by the Referee Board on the same
subject, they will show a comparison of values of the two investigations which I
am quite content to leave to the judgment of the unbiased future.
As has been clearly illustrated, the Remsen Board was appointed to protect
manufacturing interests. The Chief of the Bureau of Chemistry under his oath was
trying to protect the neglected American consumer. One would have thought that
in selecting five eminent scientific men that at least some one of them might
have revolted from the purpose to which he was assigned. The quotation from
Claude Bernard discloses most emphatically the proper psychological attitude of
the true investigator when he undertakes his task.
PROFESSOR CARLSON ON THE REMSEN BOARD
The Supreme Court has ruled that the user of a deleterious product in foods
must justify that use. Prof. A. J. Carlson* sees a scientific reason therefor:--
Modern chemistry has opened up another avenue of poisoning the human system
through the field of food preservatives and food substitutes. We have the
problem of the harmfulness or the harmlessness of the various baking powders,
of benzoic acid as a permissible food preservative, of saccharin as a
substitute for sugar, etc. Many of the experiments purporting to prove the
permissibility or harmlessness of the substance or preservative, even those
carried out by competent scientists, seem to me wholly inadequate. I have in
mind, as an example, the experiments and finding of the Remsen Consulting
Board, on the question of saccharin in foods. Under the direction of this
board, composed of leading biochemists and chemists, varying quantities of
saccharin were fed to a small number of healthy young men, daily, for periods
up to nine months. The board concluded that the daily ingestion of this food
substitute below a certain quantity (0.3 gram per day) is without injurious
effects; above this saccharin produces injury. This conclusion became guide to
federal legislation and regulation. Was the above conclusion warranted by the
experiments performed? We think not. All the experiments proved was that the
substance (saccharin) when taken by healthy young men over this period did not
produce any injury that the commission could detect by the tests used. Society
is composed of individuals other than healthy young men, and nine months is a
short period in the span of human life. There are many deviations of
physiological processes that can not be detected by body weight, food intake,
or the chemical examination of the urine. Most of the organs in the body can
be injured a great deal before we become actually sick. It would seem a safer
principle for governments and society to insist that the burden of proof of
harmlessness falls on the manufacturer or the introducer of the new food
substitutes rather than on society, and the test of the harmfulness or
harmlessness should involve all phyidological processes of man.
*Prof. A. J. Carlson, Science, April 6, 1928, page 358.
POLITICS AND PURE FOOD
One of the most remarkable episodes in the activities of the Remsen Board was
in connection with the Convention of State, Dairy and Food Officials in their
annual meeting in Denver, in 1909. The previous meeting of this official body
was held at Mackinac Island in 1908. At this meeting vigorous protests against
the mutilation of the food law by the creation of the Remsen Board were voiced
in the resolutions adopted by the convention. These resolutions reflected
severely upon the attitude of the Secretary of Agriculture and other officials
of the Department in accepting the decisions of this Board which were held to be
contrary to law. The Secretary of Agriculture was indignant at this feature of
the meeting in 1908. It is evident that he did not want a repetition of it to
occur in 1909. Previous to the date of the meeting George P. MeCabe, Solicitor,
made an official trip to the Central West, which, according to the testimony
given, was for the purpose of interviewing prospective delegates to Denver and
urging them to vote to support the policies of the Department of Agriculture. As
related in the testimony in the Moss Committee on the expenditures of the
Department of Agriculture, Mr. McCabe was somewhat hazy as to the purposes of
this trip and as to exactly when it was made. Only two years had passed, but
they seemed to have had a remarkable effect upon his memory. Under the urgent
questioning of members of the Committee and in a burst of loyalty to his chief
he finally told the whole story.
To strengthen still further the administration lines in the forthcoming
convention, the Secretary of Agriculture requested the members of the Referee
Board also to attend this convention. In addition to this urgent request of the
Secretary, the President of the forthcoming convention, the Hon. J. Q. Emery,
Food and Drug Commissioner of Wisconsin, invited the members of the Referee
Board to attend the convention and justify, if they could, the conclusions
already reached in the benzoate of soda question. It was particularly desirable,
also, to hear their opinions on the saccharin question, inasmuch as that was the
chief motive of the appointment of the Remsen Board. The attitude of Dr. Remsen,
the Chairman of that Board, and the part played by it in the Denver convention
are luminously set forth in the testimony of the Moss committee which follows.
The memory of Mr. McCabe, as I have said, was somewhat short, andthis seemed to
be the case with the memory of Dr. Dunlap. He was specially sent by the
Secretary of Agriculture to acquaint Dr. Remsen with his plans for controlling
the Denver convention. Dr. Dunlap's memory in regard to the plan which he
discussed with Dr. Remsen was quite as hazy as was Mr. McCabe's memory in regard
to his trip to interview the delegates to the Denver convention. One of the most
striking features in connection with this event was the fact that special
commissions were issued to the members of the Remsen Board to cover their
expenses in connection with this trip. It was shown by the questioning of the
committee that there was cloubt as to the legality of these expenses under the
general proclamation establishing the Remsen Board. That no question might arise
with the disbursing officers, this special dispensation was given. The reading
of the testimony will be sufficient to illustrate the other points in regard to
the appearance of the Remsen Board at Denver. Following this are quotations from
the Denver press at the time the meeting was in session. The pages of the
testimony are given in each selection.

HON. J. Q. EMERY

EXCERPTS FROM TESTIMONY BEFORE MOSS COMMITTEE
Dr. Remsen's Testimony
Page 257.
MR. FLOYD: What is saccharin, Doctor?
DR. REMSEN: I can explain that if you want a scientific lecture. I happen to
be the discoverer of that substance. I could not explain it in a few words very
well.
MR. FLOYD: Did you say you were the inventor of saccharin?
DR. REMSEN: No; I would not say I was the inventor. The substance was
discovered in the laboratory under my direction in an investigation carried out
way back, over 30 years ago. A young man was associated with me in the work, and
his name is generally connected with "saccharin." That man is Mr. Fahlberg.
MR. FLOYD: Is it a patent?
DR. REMSEN: He patented it. I did not. Incidentally he made a good deal of
money out of it. I did not.
MR. FLOYD: For what reason, if to your knowledge, was saccharin referred to
your board for investigation?
DR. REMSEN: I have no idea why it was referred except the general idea that
in every case it was desired to know whether the substance mentioned in the
reference is or is not harmful That is the main point.
MR. FLOYD: When used in food?
DR. REMSEN: When used in food; yes.
MR. FLOYD: Is saccharin a food within itself or is it a preservative used in
foods? I do not want you to go into a long scientific explanation, of course.
DR. REMSEN: It is not a food; it is to a slight extent a preservative. But
the purpose for which it is used is as a sweetening agent. It is about 500 times
sweeter than ordinary sugar and can be made at a rate which renders sweetness
per unit very much cheaper than ordinary sugar.
MR. MAYS: Is it harmful?
DR. REMSEN: That was the question.
MR. MAYS: And have you decided it?
DR. REMSEN: Yes; we have made our report.
MR. FLOYD: Their opinion is printed in the record.
DR. REMSEN: I may say also that it is used as a medicine in diabetes. I
believe it is very useful in that disease, as diabetic patients cannot take
sugar, but can take saccharin and thrive under it.
MR. FLOYD: Do you know whether any members of the board selected by you
previous to their appointment had taken any special interest in or expressed any
opinion of chemical preservatives of food?
DR. REMSEN: I can not answer that question fully, but I can give an answer to
the best of my knowledge. They had all been interested in the general problem of
the use of preservatives. Two of them--possibly only one; I know Dr. Chittenden
was interested in the effect of saltpeter on meat and was engaged in an
investigation on that subject until quite recently. He also, I believe, although
I am not sure about that--I have seen this in the newspapers and have not
followed it in detail otherwise--was interested at one time in the investigation
of the effects of borax* or boracic acid as a preservative. I think Dr. Long was
on that same committee that investigated saltpeter. I am not sure.
*Dr. Chittenden appeared before a legislative committee and declared borax a
harmless preservative.
MR. FLOYD: Did you attend the convention of State and National dairy and food
departments at Denver, in 1909?
DR. REMSEN: Yes, sir; on the way back from California I stopped there.
Page 262-263.
MR. FLOYD: Did you attend on your own volition, or were you directed by the
department to attend?
DR. REMSEN: I was not directed; I was requested.
MR. FLOYD: You were requested to attend?
DR. REMSEN: Yes.
MR. FLOYD: How long did you remain at Denver during that convention?
DR. REMSEN: Two or three days; I am not sure just exactly how long.
MR. FLOYD: What was the purpose of that convention, and what were the
questions discussed there? Did they relate to pure foods?
DR. REMSEN: Well, I do not know much about the association. I do know that I
was asked by the president of the association to give an address on the subject
of the work of the referee board, I think, or, at least it had reference to the
benzoate question, and after finding I could stop there conveniently on the way
from California and that the other members of the board could do the same, I
accepted the invitation. The association discussed all sorts of questions
pertaining to things of which I have no knowledge, but I do know that they took
up this benzoate question in rather an active way, and I suppose it was felt by
the Secretary that it was desirable to have some one there to explain what it
all meant. They seemed to be going on the wrong track, so far as we could
gather. They got some wrong impressions of the thing and the nature of the work,
or what we were appointed for, or what we were doing, and it did seem wise not
to let them go too far that way without some explanation from us, which we gave
in a dignifled way, I think I can safely say.
MR. FLOYD: And the expenses of yourself and the other members of the board
for this trip to California and this trip to the convention in Denver were paid
by the department?
DR. REMSEN: Yes. Of course, the trip to the convention amounted to very
little. That was simply stopping over.
MR. FLOYD: You state that you addressed the convention yourself. Did any of
the other members of the board address the convention, and if so, who?
DR. REMSEN: Dr. Chittenden, Dr. Long and Dr. Herter all addressed the
convention, at the request of the president of the association, Mr. Emery.
MR. FLOYD: I will ask you to state if in the address you made before the
convention on the question of benzoate of soda you made a defense of the use of
benzoate of soda?
DR. REMSEN: No, sir.
MR. FLOYD: You just discussed the findings?
DR.. REMSEN: I discussed the general method of procedure which we had
followed. I have nothing to do with the use of benzoate of soda. We were not
asked to decide whether it was,a good thing to use or not, and we have never
expressed ourselves upon that point.
THE CHAIRMAN: Your expenses at Denver were also paid by the Department of
Agriculture?
DR. REMSEN: We went, as I said yesterday, to California for an important
purpose, looking into the sulphuring process, and on our way back we stopped
there. We did make a little effort to time our trip back so that we could attend
the meeting, because we had been asked to give addresses. We were asked by the
president of the association. We stayed there possibly three days. I am not sure
whether it was two or three, but not more than three. The slight expense of the
board during that period in the way of traveling expenses was paid by the--
THE CHAIRMAN (interposing): You gave an address there?
DR. REMSEN: Yes.
THE CHAIRMAN: And the purpose of that address was to explain and defend the
report you had made to the Secretary of Agriculture?
DR. REMSEN: I did not defend the work. I didn't think that was my business.
The report had been made. But I did do this: I explained, somewhat as I have
explained to this committee, how the board came into existence, and very little
else. I don't think that the address was ever published. Then, I may say, that
after that the work of the board was attacked very violently by Dr. Reed, of
Cincinnati, which was most astonishing to me. After that attack I felt it my
duty to respond, which I did in measured manner, and I didn't say anything I
would not repeat. I will add that to what I said yesterday, because I made
really two addresses there. The other members of the board I think did not
answer the attack. I think they were satisfied with my answer.
THE CHAIRMAN: In making either one of those addresses did you go beyond the
official work of your board and defend the use of benzoate of soda as a
preservative of food?
DR. REMSEN: No, Sir.
Dr. Reed's address was solely in the interest of public health. The criticism
he made of the Remsen Board was for its open support of adding benzoate of soda
and saccharin to foods. If it was "violent" it was because of Dr. Reed's
indignation that a law passed, as the Supreme Court has said, for the protection
of public health, was so flagrantly flouted by the Remsen Board in the two cases
then decided, namely, benzoate of soda and saccharin.

DR. C. A. L. REED
Who led the fight against the Remsen Board at the Denver Convention

DR. REMSEN'S AVERSION TO NEWSPAPERS
Page 292-293.
MR. HIGGINS: Did you desire to make any other statement that has not been
covered by the questions that have been asked?
DR. REMSEN: There is just one point that I should like to refer to, that has
not been brought out in the examination. This board has been aware for some time
that there is some influence at work to undermine it and discredit it. We do not
pretend to know and have not discovered what the source of that influence is;
but it is perfectly clear that that influence is at work.
MR. HIGGIN: How does it manifest itself?
DR. REMSEN: Newspaper articles. So far as I know the newspapers almost
without exception are opposed to the Remsen Board. Why, I am sure I don't know.
The Remsen Board is an innocent board and does not quite like to be considered
guilty before it has been tried, at all events. I have noticed that within the
last month nearly every reference to the Remsen Board that has appeared in the
papers has put the board in a bad light, and anybody reading those articles day
after day would get the impression that Remsen and his whole tribe ought to
disappear from the face of the earth. Sometimes friends of mine come up to me
with long faces and say, "Remsen, it is too bad about this matter." I say,
"What's the matter?" They say, "Haven't you seen that article about your board?"
I say, "Oh, no, and don't show it to me; I have seen enough." Now, those
articles would not appear day after day, at least I can not imagine they would
appear, without there being some influence at work to inspire them. I merely
make this statement to show my state of mind. I am getting, as I have confessed,
somewhat thicker skinned, and I rather rejoice that I have been through this
experience because I think on the whole a thick skin is worth something.
The attack upon the Remsen Board by the public press was nation-wide. The
only people who were pleased with it, aside from the high officials of the
Government, were the adulterators and misbranders of our foods. At the hotel in
Denver I saw a most remarkable phenomenon. There was gathered at Danver a strong
lobby of the supporters of the Remsen Board. At the head of this lobby, which
apparently numbered 100 at least, was Warwick M. Hough, chief attorney for the
rectifiers. There seemed to be little enthusiasm among the people of Denver for
the Secretary of Agriculture, his solicitor, and the members of the Remsen
Board. There was, however, tremendous enthusiasm of the lobby above referred to
for all of these individuals. After adjournment of the afternoon session I saw
this lobby gathered around the members. of the Remsen Board and Warwick M.
Hough's arm was lovingly encircling the shoulders of Dr. Ira M. Remsen, eminent
chemist and president of Johns Hopkins University, and according to his own
statement, discoverer of saccharin. Although each member of the Remsen Board was
personally known to me except Dr. Alonzo Taylor and Dr. C. A. Herter, not one of
them spoke to me during the three or four days they were in Denver except Dr.
Herter. He came up and introduced himself to me and attempted to make some
apology for his part in the activities of the Remsen Board. He realized very
keenly the condition they were in, in espousing the cause of adulteration,
becoming the paid agents of the adulterators, and incurring the universal
condemnation of the press and the people of the country. Dr. Herter was then a
very sick man. In a few months from that date he died. I have often wondered
with what misgivings he approached his end and what feelings the other members
of the Board must have had when they realized the universal condemnation which
was heaped upon them. I doubt if any reference is ever made in the biographies
of these men, as they pass away one by one and their deeds while living are
recorded, to the service they rendered their country as members of this Board.
Page 293-294.
THE CHAIRMAN: Might not the fact that you gave certain testimony and the fact
that you appeared at the Denver convention making speeches there be at the
bottom of some of this influence that you are speaking about as being inimical
to the Remsen Board?
DR. REMSEN: I am sure I don't know, but I can say that it was found that the
influence, whatever it was, was at work long before the Denver meeting.
THE CHAIRMAN: When the Remsen Board was appointed of course no one expected
that it was going to do anything more than give advice to the Secretary of
Agriculture in his official duties, and yet, according to your testimony, the
Department of Agriculture has suggested to different members to appear in court
and give testimony, has paid their expenses at that trial, when the effect would
be to affect the decision of the courts in the State of Indiana.
DR. REMSEN: Well, it might affect the decision of the court in so far as it
would enable them better to get at the truth, which I suppose was the object of
the court.
THE CHAIRMAN: That may be the object of the court, but it surely was not the
object of the creation of this referee board, was it?
DR. REMSEN: Of course the referee board was never defined exactly--exactly
what it should do.
THE CHAIRMAN: Well, let us define it. Do you understand it now to be part of
the purpose of the referee board to in fluence the decisions of the courts of
this country?
DR. REMSEN: Why, no; in no sense, except--
MR. HIGGINS: Except so far as the truth is concerned?
DR. REMSEN: Except so far as the truth is concerned by telling the facts, and
if I am asked to do so I should do so, so far as it would influence the action
of the court I should think it would be proper for the board to do so.
THE CHAIRMAN: However, I believe you admit that your official report is not
evidence?
DR. REMSEN: Yes, sir.
THE CHAIRMAN: And it is voluntary with you whether you should appear and give
this testimony?
DR. REMSEN: I think I could have been subpoenaed. I am not sure.
THE CHAIRMAN: And you referred the matter to your superior and it was upon
his advice that you gave this testimony?
DR. REMSEN: Yes.
THE CHAIRMAN: That is the point I wanted to get at, and that you advised Dr.
Chittenden also to give his testimony?
DR. REMSEN: Yes; I did the second time.
THE CHAIRMAN: Yes; and that Dr. Chittenden's expenew were paid by the
Department of Agriculture?
DR. REMSEN: I believe so. I am not entirely clear about that.
MR. HIGGINS: And the Indiana courts had the benefit of the decision which
your board had reached as the result of its scientific investigations as to the
effect of benzoate of soda?
DR. REMSEN: That was the effect of our appearance, that is all. We did not
argue the case, of course.
Page 858.
To Secretary Wilson:
THE CHAIRMAN: You are speaking there about the Board of Food and Drug
Inspection; you are referring to some advice to be given to Dr. Taylor about
some testimony to be given at Indianapolis, Ind., and you state there: "I shall
consult with our people on the Board of Food and Drug Inspection (that is,
Dunlap and McCabe)." What meaning do you attach to that language--if you dare to
attach any?
SECRETARY WILSON: There is no hesitation in my mind in telling you all that
was in my mind there.
THE CHARMAN: I recognize the fact that you need not answer unless you wish.
SECRETARY WILSON: Oh, I am going to answer it, My answer is this: You are
pretty well aware that there was friction between those men, there. You have got
that pretty much every bit in your testimony. It would have been an insult to
Dr. Wiley to have consulted him in regard to anything concerning benzoate of
soda.
THE CHAIRMAN: Why?
SECRETARY WILSON: Because he despised it, and everything connected with it,
and believed that a big mistake had been made, and a big mistake had been made
by ever getting the Referee Board; that is why. I do not gratuitously offer
insults to any of my people.

INVESTIGATIONS OF THE BUREAU OF CHEMISTRY
REFUSED PUBLICATION BY SECRETARY WILSON
Page 868-869.
THE CHAIRMAN: I understand also, Mr. Secretary, that you have referred the
report of the Bureau of Chemistry on the copper question to the Referee Board
without publication?
SECRETARY WILSON: Oh, yes; I remember now. I had two bureaus considering the
sulphate of copper, and there was a man in the Plant Industry named Woods who
had done a most remarkable lot of work with sulphate of copper. He found by
taking a little bag of sulphate of copper and going into a large reservoir that
had green scum over it, if he would sail around for an hour and drag that bag
after him he would kill every single particle of that green scum there; and he
went to a number of States in the country, and he went to Panama and cleaned up
every one of the reservoirs they had. He and the doctor did not come within
gunshot of agreeing on sulphate of copper. In a case of that kind, Mr. Chairman,
one must go slow when they have two scientists in two different lines and they
do not quite agree. It is not best to bring any arbitrary rulings in there, but
wait and see if we can not get more light.
THE CHAIRMAN: It is a matter of fact, however, the Bureau of Chemistry did
make a report upon copper, and it has not been published?
SECRETARY WILSON: Yes; and that is the reason, Mr. Chairman; that is the
reason.
THE CHAIRMAN: Mr. Secretary, will you be willing to have prepared and
inserted in the record at this point a complete list of the investigations of
the Bureau of Chemistry which you have refused or have failed for any reason to
have published?
SECRETARY WILSON: I could do that; yes; I could do that.
(Manuscripts relating to subjects involved in the enforcement of the food and
drugs act, approved June 30, 1906, submitted for publication by the Bureau of
Chemistry, but not published:)
Corn Sirup as a Synonym for Glucose. Submitted as Food Inspection Decision
83, November, 1907.
Investigations of a Substitute (weak brine) for Sulphur Dioxide in Drying
Fruits, by W. D. Bigelow.
Sanitary Conditions of Canneries, Based on the Results of Inspection. By A.
W. Bitting, February, 1908.
Influence of Food Preservatives and Artificial Colors on Digestion and
Health:
VI. Sulphate of Copper. By H. W. Wiley and others, April, 1908.
VII. Potassium Nitrate. By H. W. Wiley and others. April, 1908.
The Bleaching of Flour. By H. W. Wiley, February, 1909.
Influence of Food Preservatives and Artificial Colors on Digestion and
Health:
IV. Benzoic Acid and Benzoates. By H. W. Wiley and others. Submitted for
reprint, June, 1909.
Medicated Soft Drinks. By L. F. Kebler and others. July, 1909.
Drug Legislation in the United States:
II. Indexed Digest of Drug Legislation. By C. H. Greathouse. October, 1909.
Food Legislation During the Year Ended June 30, 1909. January, 1910.
Estimation of Glycerin in Meat Preparations. By C. R Cook. March, 1910.
Technical Drug Studies. By L. F. Kebler and others. April, 1910.
Experiments on the Spoilage of Tomato Ketchup. By A. W. Bitting. January,
1911.
The Influence of Environment on the Sugar Content of Cantaloupes. By M. N.
Straughn and C. G. Church. May, 1911.
A Bacteriological Study of Eggs in the Shell and of Frozen and Desiccated
Eggs. By G. W. Stiles. May, 1911.
The Arsenic Content of Shellac. June, 1911.
THE CHAIRMAN: Is it the policy of the Department of Agriture, Mr. Secretary,
to suppress or refuse publication of the reports which the Bureau of Chemistry
may make to you on any questions which are referred to the Referee Board, until,
after the board has made its final report?
SECRETARY WILSON: I may have done that. I think probably there is
justification for having anything which treats with benzoate of soda handled in
that way. I believe that is the question, is it? Benzoate of soda is a question
that was referred to the Referee Board. I think I would not favor printing
anything in the department until we heard from them.
THE CHAIRMAN: As a matter of fact, whether the findings of the Referee Board
govern your action, or whether the findings of the Bureau of Chemistry govern
your action, is a question which you yourself decide within your own diseretion,
is it not?
SECRETARY WILSON: Surely. You have to have a secretary there who must decide.
THE CHAIRMAN: In other words, the decisions of the Referee Board have no
value whatever until approved by you? I am speaking now legally, and as to its
influence upon the administration of the pure food law.
Page 865-866.
THE CHAIRMAN: It is true, is it not, Mr. Secretary, that money which you
allot to the Referee Board is drawn from money appropriated for the Bureau of
Chemistry, and that this allotment is anticipated in the estimates which you
make?
SECRETARY WILSON: Yes; anticipated and understood by the Committee on
Agriculture when they appropriate the money.
THE CHAIRMAN: And for that reason you do not consult with the chief of bureau
in regard to making that particular allotment? Is that true?
SECRETARY WILSON: The chiefs of the bureaus are always consulted. Dr. Wiley,
the chief of that bureau, is a little touchy on anything of that kind, and one
has to bethink himself quite often about getting along smoothly in this world,
you know.
THE CHAIRMAN: Has Dr. Wiley ever recommended that any money be allotted to
the Referee Board from the appropriation under his department?
SECRETARY WILSON: I think I would not want to hurt his feelings by ever
mentioning it at all.
We had a referee board, and I think a pretty expensive referee board, you
will confess. We had gone after big men, and it was costing a good deal of
money, and those people met there at Mackinac Island and got themselves outside
of sympathy with the department along those lines, attacked me personally,
misrepresented things, and I thought the amount of effort the United States was
making and the amount of money it was expending to get facts from the greatest
chemists in the land made it worthwhile for us to get those big men there before
that class of men and let them see them and let them hear them. I did not think
they comprehended the difference there was between a small chemist and a big
one. That was the one thing in my mind. They were in California studying the
drying of foods with sulphur, and the arrangement was that they should stop over
at Denver on the way back. I was going to the forests, and I arranged and it was
my plan to stop there on my way to the forests. I went into the forests from
Denver and stayed a month. Those were the plans. There is nothing I care to
conceal here, noththing. Those were the plans and we talked them over, and
everyone of them addressed that convention, everyone of them, and I think those
people got new light from those men.
THE CHAIRMAN: I wish to refer to you page 338 of the hearings of August 3, to
correspondence between yourself and Dr. Remsen. Dr. Remsen says, in this letter:
"It is clear from the newspaper reports that there is 'pernicious activity'
somewhere." In your reply you say: "The pernicious activity you speak of is
quite evident." Will you kindly tell the committee what you referred to as
"pernicious activity"?
SECRETARY WILSON: Yes. The activity of people attacking that Remsen Board.
That is just what it was.
THE CHAIRMAN: It was correspondence between you and the chairman of the
board. Of course, if this "pernicious activity" is without the Department of
Agriculture it would not be proper for us to go into it. But if it is within the
Department of Agriculture, it would seem to me proper for us to know what you
referred to as "pernicious activity."
SECRETARY WILSON: If you have been watching the public press you have
discovered that there has been a good deal of criticism. If you have been
watching the proceedings of Congress you will no doubt have seen there has been
a desperate effort made there for the purpose of destroying the Remsen Board,
and things of that kind. That is what I had reference to.
THE CHAIRMAN: In your letter of April 19, 1909, you say further: "Things will
come to a head before a great while, I think, along this line." Would you care
to explain what that means?
SECRETARY WILSON: I thought the work of that board, as it was being done and
reported, would settle all those questions.
THE CHAIRMAN: Do you consider, or did you consider at the time, that the
attendance of members of the Remsen Board and Solicitor McCabe at this Denver
convention, which we were speaking about heretofore, was in line with their
official duties?
SECRETARY WILSON: Yes; it was a kind of public trial we were having, really,
of the Remsen Board.
THE CHAIRMAN: Their attendance being in the line of their official duty, will
you explain why you issued to each one of them a special authorization for
traveling expenses to attend this particular convention, when each one of them
had an annual authorization for travel anywhere in the United States upon
official business?
SECRETARY WILSON: If you have evidence of that special authorization, you had
better call my attention to it.
THE CHAIRMAN: Very well, I will be glad to do that.
(Reads letter from Secretary Wilson to Dr. Remsen, dated August 6, 1909,
wherein it is stated that authorization No. 1163 is amended so as to permit Dr.
Remsen and his assistants to attend the Denver convention.)
SECRETARY WILSON: I guess that is correct. What do you want to know about it?
THE CHAIRMAN: I want to know, if this attendance was in line with their
official duties, as stated here, why it was necessary they should have special
authorization when they had a regular authorization?
SECRETARY WILSON: I 'Presume they had some doubts about stopping off at
Denver being in their original authorization. If they had, then I gave them all
the authorization they would need.
THE CHAIRMAN: If there were any doubt it would be doubt as to whether or not
that came within their official duties?
SECRETARY WILSON: Precisely.
THE CHAIRMAN: Do you hold that you have executive authority to add to the
official duties of the Remsen Board other than that prescribed in the order
creating them?
SECRETARY WILSON: To this extent, yes.
THE CHAIRMAN: To that extent you have?
SECRETARY WILSON: Yes.
One of the most detestable features of the persecution of those delegates to
the Denver Convention of 1909 who opposed the decision of the Remsen Board was
the dismissal of Floyd Robison. This action was investigated by the Moss
Committee. Mr. Robison was one of a group of state chemists who were
occasionally requested to cooperate with the officials of the Bureau of
Chemistry in enforcing the Food Law. (Pages 522-524.)

MR. FLOYD ROBISON
MR. Moss: Were there any charges filed against you?
DR. ROBISON: None.
MR. Moss: Have you the letter of dismissal with you?
DR. ROBISON: I have.
MR. Moss: Please read it to the committee.
(I will quote only last line of this letter.)
DR. ROBISON (reading): "He is removed from the department for the good of the
service. James Wilson, Secretary of Agriculture."
Dr. Robison appealed to the Secretary of Agriculture for reasons which led to
such drastic action. The Secretary, in his reply, under date of July 25, 1911,
says:
"* * * At the meeting of the Association of State and National Food and
Dairy Departments at Denver, in July, 1909, you attracted attention by taking
a strong and public position against the policies of the department and of the
administration. You appeared in the Federal court in Indianapolis in
opposition to the policies of the administration with regard to the reports of
the Referee Board on benzoate of soda and the report of the three secretaries
with regard to it. * * * I have approved your dismissal for the good of the
service. There are no charges against you; we make none. I recognize the fact
that you have a perfect right to occupy any position you see fit. with regard
to the policies of the administration or of the department, but I do not think
you should draw salary while you are taking this stand."
Question by MR. MOSS: Were you a delegate to the Denver convention?
DR. ROBISON: I was.
MR. MOSS: Whom did you represent?
DR. ROBISON: The State of Michigan.
MR. MOSS: Who paid your expenses for attending that convention?
DR. ROBISON: The State of Michigan.
MR. MOSS: Were you drawing any salary from the Government at that time?
DR. ROBISON: I was not.
MR. MOSS: Did you draw any money, either directly or in. directly, from the
National Government for your attendance at the convention or for your expenses?
DR. ROBISON: I did not.
MR. MOSS: What position did you hold at the Denver convention?
DR. ROBISON: I held the position of chairman of the committee of eleven State
food chemists appointed by the president of the Association of State and
National Food and Dairy Departments.
MR. MOSS: Did you make any report?
DR. ROBISON: As chairman of the committee, I did.
MR. MOSS: Will you read into the record that report?
DR. ROBISON: I will read the final recommendation:
"'Your committee therefore respectfully suggests to this association the
wisdom of asking the President of the United States and the honorable
Secretary of Agriculture to institute investigations along some such broader
lines as indicated above."
MR. MOSS: Did you make any address to the Denver convention in which you
referred to the Remsen Board one way or the other?
DR. ROBISON: I did not.
MR. MOSS: Did you receive any information from Secretary Wilson or any person
representing him as to the policy of the Department of Agriculture?
DR. ROBISON: I received none.
MR. MOSS: Did you make any address to the convention advocating or opposing
the use of benzoate of soda?
DR. ROBISON: I did not.
MR. MOSS: In your capacity as delegate did you cast a vote for president of
that association?
DR. ROBISON: I did. I voted for Mr. Bird, the commissioner of the State of
Michigan.
MR. MOSS: Did Mr. Bird receive the support of the Department of Agriculture?
DR. ROBISON: He did not.
MR. MOSS: So far as you know, then, did you appear in opposition to the
Department of Agriculture in any other manner except casting your personal vote
for the president of the association?
DR. ROBISON: I did not.
MR. MOSS: At whose request did you appear at Indianapolis to give testimony
at that trial?
DR. ROBISON: At the request of the Board of Health of the State of Indiana.
MR. MOSS: Were you paid any fee?
DR. ROBISON: I received no fee.
MR. MOSS: In your testimony, did you give your original work as a chemist?
DR. ROBISON: I testified according to the truth as, I understood it to be and
had found it from my own investigations, and according to my oath, and without
any regard in any capacity to any other policy.
MR. MOSS: Were you warned in any way by the Department of Agriculture not to
do this?
DR. ROBISON: I was not.

EXTRACTS FROM THE DENVER PRESS, AUGUST 25-28, 1909
WILSON'S HOT REPLY
Replying to President Emery, Secretary Wilson said:
"I came out here to listen, and I glean from the address of your president
that the Department of Agriculture, which I thought had been doing much, has
been doing nothing. Now let me tell you some of the things that it has done
within the last year.or so."
The Secretary then enumerated some of the achievements of the department.
"Now with regard to a few preservatives, there is, a difference of opinion
among the chemists of the world. One of these questions is benzoate of soda.
"The manufacturers of the United States went to the President when the use
of this was prohibited and asked for fair play. Finally he concluded to ask
the presidents of the great universities to appoint some men to conduct an
investigation who were competent to do the work. Under his authority I
appointed five such gentlemen, who, I believe, are the best chemists in the
United States, if not in the whole world.
"President Emery has attacked their report. Now I have but one request. You
have arranged a place upon your program to have the Referee Board here on
Thursday to be heard. All I ask is that the hearing be a full and fair one."
With representatives of interests aggregating more than $500,000,000
present to enter protest against a tentative "model" food law bill, which will
probably be presented to the pure food convention for endorsement, the
committee which drafted.the bill met last night at the Brown and gave the
manufacturers' side a hearing.
(The Daily News, Denver, Colo., Aug. 25, 1909.)
The morning session was quite as pungent, although in another way. The
convention was called to order at 10 o'clock and Gov. John F. Shafroth made an
address of welcome. He complimented both Secretary Wilson and Dr. H. W. Wiley,
Chief of the Bureau of Chemistry at Washington, upon the work they have done
for the country. He termed Secretary Wilson "the greatest Secretary of
Agriculture the country has ever known," and the remark was greeted with
enthusiastic cheers. He favored a uniformity in the state and national food
laws and finished with an eulogy of Colorado's growth and development.
PRESIDENT EMERY:
"We held that if the National Government should indorse benzoic acid it
would thus license one of the preservatives which encourages the same
conditions in fruit and vegetable manufacture as were abolished in the
meat-packing establishments by the national meat inspection law.
In view of this position we appealed to President Roosevelt in the latter
part of his term to appoint another committee to investigate the findings of
the Remsen Board. This request was referred by President Roosevelt to
Secretary of Agriculture Wilson, who reported back to the President against
granting that request.
Secretary Wilson's remarks were greeted with cheers, yet before he had
stepped from the platform President Emery angrily said: "This Referee Board
was asked to come to this convention by the executive committee, and the
insinuation that it is not to be given fair play comes with poor grace. The
report went to the Secretary of Agriculture and he sent it back without
comment. We took it that it did not meet his approval.
Secretary Wilson asked a moment to answer, and said dryly:
"You gentlemen up Mackinac way took it upon yourselves to condemn us down
at Washington unheard, and so we figured you were not the material from which
judges of the Supreme Court can be made."
R. W. Dunlap, of Ohio, is the only commissioner in the United States who is
elected by the people instead of being, appointed. Commissioner Dunlap was
elected by 12,000 majority, and is one of the most popular officials in Ohio.
(From Denver Republican, Aug. 25, 1909.)
After apparently having been whipped upon every question brought up during
the pure food convention until there was no further fight left in them, the
opposers of Secretary of Agriculture James Wilson's policies developed a
remarkable strength in the battle for the electiort of the association's
officers and put up one of the hottest contests ever seen during a convention
meeting in this city. George L. Flanders, of New York, was elected president.
New Orleans was chosen as the next place of meeting.
The thirteenth annual convention of the National Association of State Food
and Dairy Departments developed at its termination yesterday afternoon into a
political struggle for the officers for next year, in which the Wilson, or
administration, crowd won the presidency by three votes and lost all but one
of the other officers. Had not Secretary Wilson been in Denver on the spot the
administration would have been badly defeated not only on the election of the
president but on many other questions as well. It was his political power and
prestige as a member of the President's Cabinet and his experience in
political campaigns that won the support of the convention for the
administration. He seconded the nomination of Flanders. Supporters of
President J. Q. Emery and Dr. Charles Reed, of Cincinnati, the opponents of
benzoate of soda and of the administration, were quite free to call Secretary
Wilson's crowd apolitical "ring" and a "clique." Certainlyitwas largely by a
political trick that. the election of George L. Flanders, of New York, was
secured and the defeat of A. C. Bird, of Michigan, was encompassed. George P.
McCabe, Solicitor of the Department of Agriculture, and director of the battle
for Secretary Wilson, was very busy just before the vote was taken and the
votes upon the other officers looked as if he had made some advantageous
trades for Flanders. This did not prevent Mr. McCabe's defeat for the office
of executive committeeman, A. N. Cook, of South Dakota, winning against him.

GROUP AT SECOND DENVER CONVENTION IN 1925
Left to right: Dr. W. D. Bigelow, my first assistant in the Bureau of Chemistry;
Dr. Harry E. Barnard, formerly Food Commissioner of Indiana; Dr. Harvey W.
Wiley, former Chief of the Bureau of Chemistry; Mr. I. L. Miller, present Food
Commissioner of Indiana; Dr. Robert M. Allen, former Food Commissioner of Ken.
tucky; Mr. W. C. Geagley, Sec.-Treas. Association of Dairy, Food and Drug
Officials of the United States

Field Marshal McCabe became busy in his travels about the convention room,
and when the vote was finally taken it was 57 to 54 in favor of Flanders, or
the Wilson administration had only one state the best of the argument. The
fact that the Secretary took the floor to second Flanders' nomination
personally operated greatly for the latter's benefit, it is said.
When the vote was taken on the other officers the Wilson slate was broken
so badly that the pieces could not be found.
(Denver Republican, Aug. 28, 1909.)
After one of the stormiest sessions any convention of any kind ever had in
Colorado, in which a great national organization at times took the aspect of a
bitter political ward meeting, and in which politics was played every moment
of the time, Dr. George L. Flanders, of New York, Secretary Wilson's
candidate, yesterday was elected president of the Association of State and
National Food and Dairy Departments, adding another point to the Secretary's
sweeping victory in the benzoate of soda battle.

A. C. BIRD
State Dairy and Food Commissioner of Michigan
The Secretary of Agriculture led the fray in person. Flanders defeated A.
C. Bird, State Dairy and Food Commissioner of Michigan, Wiley's candidate, by
a vote of 57 to 54. Thirty-six states voted, each state having three votes.
The vote by states was: Flanders 18, Bird 18, but the Department of
Agriculture had three votes, and these three votes went to Flanders.
The votes by states on the presidency was as follows: Flanders--Arizona,
California, Colorado, District of Columbia, Georgia, Idaho, Illinois, Iowa,
Louisiana, Massachusetts, Missouri, Nebraska, Nevada, New York, Oklahoma,
Department of Agriculture, Utah, Washington and Wyoming, three votes each,
total 19; total votes, 57.
Bird--Connecticut, Florida, Indiana, Kansas, Kentucky, Maine, Michigan,
Minnesota, New Jersey, North Carolina, North Dakota, Ohio, South Dakota,
Pennsylvania, Tennessee, Texas, Virginia, Wisconsin, total 18; total votes,
54.
(The Daily News, Denver, Colo., Aug. 28, 1909.)

J. S. ABBOTT
Food Commissioner of Texas, in attendance at Denver Convention
Thus ended that most turbulent exhibition of disreputable politics ever
witnessed in a so-called scientific convention in any country. It was the vote
of the Department of Agriculture that elected Mr. Flanders. The Bureau of
Chemistry took no part in this discreditable affair. The Health Office of the
District of Columbia through Dr. Woodward cast its three votes in favor of the
candidate of the food adulterators. The eminent members of the Referee Board
must have been amazed at the character of their enthusiastic admirers. It was an
astounding apotheosis of the Unholy.

HISTORY OF A CRIME AGAINST THE FOOD LAW
CHAPTER VI: POLITICS AND PERSECUTION OF A STATE
by Harvey W. Wiley, M.D., the very first commissioner of the Food and Drug Administration (FDA), then known as the “US Bureau of Chemistry.”

FURTHER ACTIVITIES OF THE REMSEN BOARD
The Attorney-General of the State of Indiana, Mr. James Bingham, desired to
have testimony in favor of the State Board of Health from.the Chief of the
Bureau of Chemistry and from other employees of the Bureau who had taken an
active part in the investigations of benzoic acid and benzoate of soda (sodium benzoate). A suit
had been filed against the State of Indiana in the Federal Court before Judge
Anderson on the ground that the ban placed on benzoated foods by the State Board
of Health was unconstitutional. Mr. Bingham came to Washington for the purpose
of securing permission from the Secretary of Agriculture for these officials to
appear before the Federal Court in Indianapolis. The Secretary refused to grant
the request of Mr. Bingham on the ground that the Department of Agriculture was
on the other side of the question and that it would not be in harmony with
official etiquette for the employees of the Bureau of Chemistry to appear
against the Remsen Board and their assistants and experts who were attending the
trial in the interest of the complainant by the executive order and request of
the Secretary of Agriculture. In order to secure this testimony Mr. Bingham
found it necessary to remove the Federal Court from Indianapolis to Washington.
When this was done the Solicitor of the Department of Agriculture on the request
of the Chief of the Bureau made a ruling that the Federal Court had no right to
issue a subpoena for attendance of the employees of the Bureau of Chemistry in
the sense that they were compelled to attend and give testimony. He informed the
members of the Bureau of Chemistry that it would not be a contempt of court if
they should refuse to appear and give testimony on the summons unless they
wanted to. I volunteered to give my testimony before the Federal Court. It
begins on page 3,212 of the printed record and continues to page 3,548,
inclusive, 336 pages. When Dr. W. D. Bigelow was called to the stand, after
qualifying, in response to the first question asked him, he declined to answer
on the ground that his testimony would be of a character not approved by the
Department and he availed himself of the privilege given by the Solicitor of
refusing to answer (Page 3,693 of the Record of the Indiana Case). Mr. Bingham
immediately carried the case to Justice Barnard of the District Supreme Court.
Justice Barnard promptly ruled that the employees of the Department of
Agriculture were compelled to give their testimony if subpoenaed by the Federal
Court and that the statement made by the Solicitor that they were not thus
compelled to testify was an error. Under this ruling Dr. Bigelow and other
employees of the Bureau gave their testimony. It would not be proper to go into
any extended explanations of the nature of this testimony given contrary to the
opinion of the Solicitor. A sufficient explanation of it is found in the fact
that Judge Anderson of the Federal District Court of Indiana, to whom all the
testimony in the case of over 5,000 pages was placed, with the summary by the
master, promptly decided the case in favor of the State of Indiana. He said, in
point of fact, that the State's rights in regard to the regulation of the sale
of foods inside the State could not be questioned before the Federal Courts by
citizens of other states.

MR JAMES BINGHAM
Attorney-General of Indiana

This recital shows plainly that although the privilege was denied the Bureau
of Chemistry of bringing suit against anyone using benzoic acid, the employees
were compelled to testify before the Federal Court. The users of these
preservatives lost their case due largely to the testimony of the experts of the
Bureau of Chemistry. Thus it appears as if the "big chemists"--as the Secretary
of Agriculture called them--of the Remsen Board, when opposed by the "little
chemists" of the Bureau of Chemistry, were defeated. This incident shows the
danger of unwise greed. The right to use these preservatives was guaranteed to
those manufacturers who felt like doing so by all the power and authority of the
United States Department of Agriculture. They should have been satisfied with
that perversion of the law, but they were not. They determined to force
benzoated goods upon the citizens of the State of Indiana. Fortunately they did
not succeed. More fortunate still is the fact that one of the complainants
against the State of Indiana was converted by the evidence adduced at the trial
and abandoned the use of these preservatives. Still more fortunate is the fact
that manufacturers in general, although this dispensation has now been in full
force and authority for twenty-two years, have rarely indulged in the use of
these preservatives. The goods manufactured under the aegis of the Department of
Agriculture with these preservatives are distinctly inferior in quality and
strength.
The activities of the Remsen Board were not devoid of doubts as to their
wisdom. In a letter dated September 9, 1909, Dr. Remsen called attention to what
might happen (Page 879, Moss Committee):
My Dear Mr. Secretary: The Referee Board is going to be subjected to very
severe criticism for testifying in the Indiana suit, and in order to protect
ourselves it is our desire that we should have from you a written request that
we should give this testimony. I hope you will have no objection to sending
this request to me. We are to testify at Seal Harbor, Me., on the 17th. We are
all glad to have been at Denver, and we all recognize the soundness of your
judgment in asking us to go.
Mr. Moss asked the Secretary to explain why the Remsen Board whose usefulness
in so large a measure must depend on the respect and confidence which the public
have for the high character of its membership should be subjected to severe
criticism in order to assist in an effort by private corporations to overthrow
the pure food laws of a sovereign state. To which Secretary Wilson replied that
it was never in his mind to help overthrow the pure-food laws of a sovereign
state, and that he would have been perfectly willing to have the Referee Board
go where the people seemed to need information; but as to an attack upon the
State of Indiana, that was not to be thought of. The Chairman continued by
asking him if he did not know that the suit filed by Curtice Brothers and
Williams Brothers was inaugurated before the Referee Board had made its report
on benzoate of soda; to which he replied that he did not know anything about the
nature of these proceedings. The Chairman of the committee continued by asking
him if he had been requested by Attorney-General Bingham to permit Dr. Wiley to
go to Indianapolis and testify in person in the Indiana case on behalf of the
State of Indiana; to which the Secretary responded that he did not think Dr.
Wiley had ever asked him whether he could go to Indianapolis or not. Whereupon
the chairman submitted a letter dated May 31, 1910, which the Hon. James Bingham
had written the Secretary in regard to this matter. This letter is so pertinent
that it is given in full:
Hon. James Wilson,
Secretary of Agriculture,
Washington, D. C.
Dear Mr. Secretary: I am in receipt of a letter from President Taft with
copy of your letter attached in re testimony of Dr. Wiley in the so-called
benzoate case. I am taking the liberty of writing you personally for the
reason that I feel quite sure that you misapprehend the position of the State
in this matter. You understand that Dr. Long, of Chicago, and Dr. Taylor, of
California, both members of the Referee Board, attended in person here at
Indianapolis and testified in this case.
The master, who is hearing the evidence, is manifesting considerable
interest in the testimony of the different witnesses and personally
interrogates them, and it is my desire to give him this opportunity in the
case of Dr. Wiley if possible.
There is no attempt on my part to make it appear that the Government is not
supporting the work of the Referee Board. On the other hand, whatever appears
in the record to indicate that the Government has taken sufficient interest to
sustain the decision of the board is there at my instance, since I personally
asked the witnesses who have testifled that they were testifying at your
request, at whose request they were testifying in the case, and I did this
after a personal interview with them, and learning the facts with reference
thereto before asking the questions.
My position is that this question is one not capable of scientific
demonstration, and this fact, I think, I have pretty thoroughly established by
the testimony of the members of the Referee Board themselves. I think,
however, that such a test was perfectly proper for whatever value it might
have in the investigation of the injurious effects of sodium benzoate, but I
feel very certain that the results of such an investigation are not
conclusive. Indeed, I would not hesitate to try this question before you or
any other fair man regardless of any conclusion you may have reached based
upon the results of the work of the Referee Board.
1 attach more importance to an investigation made by Dr. Wiley than I do to
that of the Referee Board, in view of his practical experience in such matters
and especially in view of the experience of the corps of workers he must have
had to assist him. In the case of the Referee Board work was carried on by
students in many instances, and in the investigation I have made I am
satisfied that many of the results obtained, upon which the Referee Board
bases its opinion, are unreliable. That the members of the Referee Board were
conscientious and thoroughly capable scientists there can be no doubt, but
their conclusion, vased upon a false premise due to inaccuracy in analytical
work and want of regularity in habits of living by subjects, would, in my
opinion, destroy the value of any such conclusion.
In justice to you I can not go into detail, but the evidence in this case
shows in some instances variations in duplicate analyses where the same
articles were being analyzed under the same conditions, running from 15 per
cent. to 1,800 per cent., when every member of the Board testifies that there
should not be a variation to exceed 2 per cent.
I am very desirous of having Dr. Wiley appear in person in order that the
master may personally interrogate him as to his premises most thoroughly, and
I think you will readily appreciate the merit of my position. I assume that
you have no interest in this question except to have it decided right, and in
this case we are not only availing ourselves of the results obtained by the
Referee Board and Dr. Wiley, but of a vast number of other experiments, and
especially of-the results of practical demonstrations, and it occurs to me
that when the evidence is concluded in this case the court will be in a better
position to reach an intelligent conclusion as to what the real effect of
benzoate of soda is upon the human system when administered in food than the
department was with nothing to depend upon but the result of a scientific
investigation standing alone.
Thanking you for your courtesy in offering to permit the deposition of Dr.
Wiley to be taken, but hoping that you will see your way clear to permit him
to attend in person, I remain,
Very truly yours,
(Signed) JAMES BINGHAM,
Attorney-General
This letter of Mr. Bingham evidently removed every reason to justify, even in
the smallest degree, the determined purpose of the Secretary of Agriculture,
with the collaboration of the Remson Board, to break down the Board of Health of
Indiana which had placed its ban on food products containing benzoate of soda.
Driven to the last extreme the Secretary sought to justify his action against
the State of Indiana because the law of Indiana forbade the manufacture of beet
sugar within the State! In answer to the question of the chairman of the
committee he said it was his purpose to help every state to the limit of his
efforts, but when a state came out and said one could not use beet sugar it gave
him pause. He continued as follows:
We are making 500,000 tons of beet sugar every year in the United States.
Indiana, can make all the sugar she needs and supply half a dozen other
states. But I have come up square against this law, and I do not want to break
the laws of Indiana; I would not for the world do that.
It appears that William Brothers and Curtice Brothers alleged, in their suit
to abolish the ruling of the State Board of Health as being unconstitutional,
that there were other points in the Indiana law which were likewise
unconstitutional, and among these was an expression in the law delining sugar as
"cane suagar." Of course every one knows that cane sugar is frequently used to
designate sucrose. Indiana in her statement for defense against the suit of
Curtice Brothers used the following statement:
These defendants, farther answering, say that they deny that the use of
beet sugar is prohibited by law in food products in the State of Indiana, or
by any rule adopted by these answering defendants, as such State Board of
Health of the State of Indiana.
Dr. Alonzo E. Taylor, whose absence in Europe had prevented him from taking
any active part in the investigations of benzoate of soda, was nevertheless very
eager to appear against the State of Indiana in the benzoate trial. Under date
of March 1, 1910, he made the following report to the Secretary of Agriculture:
"I have just been giving testimony in the Indiana sodium benzoate case. I
understand it was inferred that because I did not sign the report of the
Referee Board that I was not in agreement. I therefore testified, not as a
member of the Board, but as an expert, pure and simple. Since last summer,
being engaged on the sulphite question, I have been making a lot of control
observations with the purpose of determining the normal variations in the
metabolism of nitrogen, sulphur and phosphorus. These data, I believe the best
in literature, I wish to use in my evidence, as they support strongly the
position of our Board and are in contradiction with the work of Dr. Wiley on
the action of benzoate. In a word, these investigations indicate that many of
the reported deviations of Dr. Wiley are entirely within the range of those to
be seen in normal persons on a normal diet, and show that the figures obtained
by my colleagues are normal figures for normal men. Have I your permission to
offer these normal charts of normal metabolism to the United States Circuit
Court in the Indiana Case?".
To which the Secretary replied under date of March 12, 1910, in a letter to
Dr. Remsen in the following words:
"I enclose a very interesting letter from Prof. A. E. Taylor which please
return to me. I shall leave this matter entirely with you."
Dr. Remsen in his reply to the secretary recommended that he be given
permission to use the data in the manner suggested. The Secretary left no stone
unturned in his determined effort by all means, fair and foul, to secure a
declaration from the Federal Court that the Indiana law was unconstitutional.
(Pages 367, 368, Moss Report.)
The testimony of Dr. A. E. Taylor in the Indiana case is found on pages 2137,
to 2207 of the printed testimony. He repeated in his testimony that he thought
the data he had obtained were the best in literature. Dr. Taylor in his
experiments, which were not made, by the way, on the subject of benzoic acid,
employed a plan greatly superior to that followed by the other members of the
Referee Board. He employed as his subjects trained scientific men. He took over
bodily the whole force of the California State Board of Health. He employed
state chemists who made all the examinations for fertilizers in the state. When
asked on cross-examination in regard to control of the diet of these trained men
he stated that their diet was rigidly weighed and apportioned to them. When
attention was called to the fact that the other members of the Referee Board did
not control either the quantity or the kind of diet, therefore the results which
they obtained could not be comparable to his own, he replied that he thought his
own plan was better but that the uncontrolled diet might lead to similar
results. He was particularly opposed to the use of benzoate of soda in milk. On
direct examination he was asked this question:
Q. What are the reasons for not using it in milk?
A. For the simple reason that a large amount of experience has taught us that
the bad milk ought to be allowed to spoil and that an absolutely harmless
preservative, or even refrigeration, or pasteurization ought to be equally
prohibited. (Page 2162).
Speaking further (page 2163) in regard to milk, he says:
A very minute trace of formaldehyde will keep milk for 48 hours but the
tubercular and typhoidal bacilli will not be killed, and it is objectionable
on that account. We object to anything that keeps milk without killing those
germs, not being of a type to affect the common defects of sourness or
souring. That is the reason I guarded myself absolutely in the use of this
other substance. I would object to the use of benzoate of soda, of hydrogen
peroxide, of the pasteurization of milk, this being the result.
Evidently Dr. Taylor was not aware of the fact that pasteurization of milk at
145° for thirty minutes would destroy both typhoid and tubercular germs. The
spores of germs require a much higher temperature for their destruction. By
reading his testimony, the historian of the future will gather valuable
information respecting the attitude of Dr. Taylor in general toward
preservatives in foods and pasteurization.
Dr. Taylor also was particularly opposed to the use of benzoate of soda in
meat as well as in milk. He cites the attitude of Hammerstein, the Scandinavian
chemist and physiologist. He asked him:
Q. Do you use benzoate of soda?
A. No, sir.
Q. Is there any law against it?
A. No.
Q. Do you use salicylic acid?
A. Yes.
Q. why?
A. It is cheaper.
Q. Is it injurious?
A. Possibly it is, but it is so easy we take the chance.
FURTHER EXCERPTS FROM THE REPORT OF THE MOSS COMMITTEE AND THE RECORD OF THE
INDIANA CASE
Page 878.
THE CHAIRMAN, MR. MOSS, of Indiana: Please tell me in what sense you regarded
the Indiana case as an important one?
SECRETARY WILSON: Simply because it was in the. Federal court, and it was
taking up the question of whether the decision of the Referee Board was to be
sustained.
THE CHAIRMAN: That brings me to a question I want to ask you. At that time,
what did you understand the issues of this suit at Indianapolis to be?
SECRETARY WILSON: I understood it was a question of whether--I do not know
that I am entirely clear. I think it was an injunction asked by somebody.
THE CHAIRMAN: It was by Curtice Bros. and Williams Bros.?
SECRETARY WILSON: Yes; to require the board that you have there in Indiana to
do something they wanted done.
THE CHAIRMAN: We have a board of health; yes, sir.
SECRETARY WILSON: That is my recollection. It was something of that kind. But
there was benzoate of soda on one side and opposition to it on the other.
THE CHAIRMAN: Would you mind telling us where you obtained that information?
SECRETARY WILSON: Oh, I could not do that; I do not remember.
THE CHAIRMAN: I have the original complaint here, and your information was so
badly apart from what the real issues were that I wanted to find out your source
of information.
Page 882.
THE CHAIRMAN: You did request, both orally and in writing, the members of the
Referee Board to attend the Indianapolis hearing?
SECRETARY WILSON: They are on a little different basis.
THE CHAIRMAN: As the Indiana law expressly permits the sale of food products
which are guaranteed under the provisions of the pure food law, how can the
defense of this suit by the State or any of its agents be considered as an
attack on the decision of the Referee Board?
SECRETARY WILSON: That is an academic question, I think, Mr. Chairman.
THE CHAIRMAN: You have stated that Dr. Robison in appearing to testify there
was opposing your policy?
SECRETARY WILSON: He was a subordinate of the department.
THE CHAIRMAN: The question is that inasmuch as the Indiana law expressly
permits the sale in Indiana of any food product guaranteed under the pure food
law of your department, when you guarantee it, how can a defense against a suit
to strike down that law be considered an attack upon the Referee Board?
(There is no apparent answer to this question, save the following.)
Page 883.
SECRETARY WILSON: I would not be known to do a discourtesy to the State of
Indiana for the world, and besides, Mr. Chairman, I find in looking over my
behavior toward Indiana that I have a great lot of scientists there, and it
might be wise for me to get them back out of there. I have men from nearly all
our scientific bureaus there, helping the State of Indiana along these
scientific lines, and cooperating with them.
TESTIMONY OF DR. IRA REMSEN
Pages 31-33-Indiana Record.
Q. Well, there was a meeting, wasn't there, of chemists, Doctor, recently,
out at Denver, Colo., where a great number of scientific men congregated, wasn't
there?
A. There was no doubt about it.
Q. And you had an election out there at which benzoate of soda was the
candidate, didn't you?
A. I don't know. I had nothing to do with the election. I wasn't a member of
the association. I was present as an interested spectator, but not a member of
the association, had no vote.
Q. Now the fact is that of late there has been great interest manifested on
both sides of this question by scientific men throughout the country, hasn't
there, Doctor?
A. Apparently. I am out of that. I am not at all a part of the excitement.
Q. And were you present when the vote was finally taken at Denver on the
question?
A. Which vote do you mean?
Q. On the harmfulness of benzoate of soda, the adoption of the
resolution--not vote, but resolution.
A. I was present, yes, sir, the resolution approving the action of the board,
the report of the board. They approved.
Q. By what vote?
A. That is too much for me--57 to 42, maybe, I don't remember exactly what it
was; in the fifties for one and forties for the other; fifty-odd in favor and
forty-odd against; I couldn't remember that, I am sure; I am near the truth.
Q. Now in the talks that you had with the Secretary of Agriculture, did you
learn that the plaintiffs, Curtice and Williams, here, were interested in this
question?
A. I do not remember that I ever heard them mentioned by the Secretary of
Agriculture.
Q. When did you first learn that the plaintiffs were interested in this
question, Doctor?
A. In this--you mean in this particular suit?
Q. No, in this question as to whether benzoate of soda was harmful.
A. Oh, I remember. I remember it was at a meeting, a hearing we gave, our
Referee Board gave in New York before we began our investigation. We sent word
to those who were interested in the general problem, not only those who use
benzoate but those who do not use benzoate, informing them that we would like to
get such information as possible to aid us in our work. And they were
represented by a number of large manufacturing interests who appeared before us
to state their problems; mind you, they were not those who use benzoate alone
but those who do not use it. We felt that it was only fair to hear what they had
to say, representatives of both sides--I regret that there are sides--there are
sides, unquestionably, I recognize it. And my recollection is that this is the
first that I ever heard of these firms, except so far as I had become familiar
with them through labels that everybody has seen.
Q. Well, now, have you met them since that time?
A. Only as--except at Denver I saw these gentlemen, at Denver; saw them in
passing. I had very little to say to them--I think they almost accused me of
discourtesy.
Q. Did the manufacturers appear out at the Denver convention?
A. These gentlemen were there--I do not remember, I do not know them
sufficiently well to say.
Q. Well, when you had this hearing of the Referee Board at which you heard
both sides, did Dr. Wiley appear at the hearing?
A. No.
Q. Was he invited?
A. No. It was restricted to those who used benzoate of soda.
Q. I understood you to say that you did not, it was not only--
A. I don't say use--but who either use or do not use it, but who are
interested in it from the manufacturing point of view, that is what I meant.
Q. You mean as confined to manufacturers?
A. Oh, yes, wholly.
Q. Now, you also stated that there had been a world of work on the
physiological effect of benzoate of soda on the human system.
A. That is a question which has perhaps not been very fully investigated, and
yet I recall in this connection an investigation which came to my notice when I
was a very young man. I went to Gdttingen in 1868. I carried a letter to a
distinguished physiologist who was there, Professor Meissner. He had just
completed an elaborate series of experiments of the ffect of benzoic acid on the
human organism. Mr. Charles U. Shepard, an American student, took large doses of
benzoic acid, much larger than the quantities that have been used in our
experiments. Those large quantities left no permanent effects.
Q. Now, so far as you know all these works of the original research upon the
effect of benzoic acid or benzoate of soda upon the human system are referred to
in that report, in the bibliography.
A. All the important ones.
CROSS EXAMINATION OF DR. REMSEN
Q. This experiment of Dr. Meissner, about which you have testified is that
experiment which is reviewed in the bibliography?
A. It is.
Q. I read from exhibit 1, in which this experiment is referred to as follows:
There is no hippuric acid or benzoic acid in the blood of animals which
excrete hippurie acid abundantly in the urine. According to the authors'
experimenis on man, ingestion of 7.6 grams of benzoic acid as sodium salt in
solution after breakfast was followed suddenly, 30 minutes later, by nausea
and vomiting. When 5.7 grams were taken after breakfast there was vehement
vomiting after about 35 minutes. When vigorous exercise was taken after the
same dose (5.7 grams) there was some nausea, but no vomiting. The nausea can
be made to disappear by violent exercise, with deep inspirations, etc. After
taking 5.8 grams, when the subject was kept quiet in a warm room there was no
nausea or vomiting. A stronger and heavier person repeatedly took 7.6 grams
without these symptoms.
The authors conclude from their experiments on animals that the kidney is
the only organ where benzoic acid is normally transformed into hippuric acid.
When 2 grams of benzoic acid per day were fed to a rabbit during 3 days there
was no decrease in urea output. In a dog of 12 to 13 kilograms, 8 grams of
benzoic acid given in solution per os caused vomiting. Later 8 grams were
given twice a day as dry powder packed in meat. There was apparently no
decrease in urea. After several days a toxic effect was noted--difficulty in
urinating, spasm, attack of rage, attempts to bite, foam at mouth. Benzoic
acid was continued 2 days more and the attacks recurred. Appetite remained
good. Convulsions occurred the day after the benzoic was stopped, and then
they ceased. Similar attacks were observed in a small dog which received 10
grams benzoic acid for 3 days. The authors conclude that the continued
administration of large amounts of benzoic acid is not without danger,
although Keller took 2 grams per day for some time without feeling any ill
effects. Hippuric acid is formed from benzoic acid in all animals. Authors
conclude that in herbiverous animals the excretion of hippuric acid is
dependent on the cuticular substance of plants ingested. The small amount in
normal human urine probably derives its origin from metabolism products.
Q. Is that a correct review of that experiment as you understood it, Doctor?
A. Of course I cannot positively say that these details are correct, but
I.believe them to be correct.
(Page 45 and page 46.)
In the cross examination of Dr. Remsen it was brought out that the reason
young men were selected was because they would show the greatest resistance to
any pathological effects that were probably produced. Dr. Remsen stated that he
did not think the age of the subject would have much to do with the case and to
the question that in selecting young men he would have all the power of
resistance that could be found in the human system he said yes. Nevertheless he
made an answer to the following question:
"And if there was a tendency of benzoate of soda or sodium benzoate in small
quantities to affect the system, it would appear less in a test of young men
than it would upon any other character of subjects that you could select,
wouldn't it?"
A. "I am not sure of that." (Page 26.)
On Page 27 Dr. Remsen was asked what are the variations in temperature, what
variations in pulse, what variations in the specific gravity of urine, what
variations are there in the volume of urine in normal health. Dr. Remsen
answered:
Those matters are not at all within my ken. I am not an expert in those
lines, I have never claimed to be. My medical training is so far remote that I
confess that that kind of information is not at my fingers' ends.
Page 30. Q. Well, who is at the head of the Chemical Department of the
Government?
A. Dr. Wiley, I suppose.
Q. Were you in touch with him?
A. I had nothing to do with him, sir; I didn't see him about it at all.
Q. Well, he is quite an eminent chemist, is he not?
A. He is very well-known. I may say that he is an eminent chemist. Yes.
Q. Now he has been devoting a great deal of time to study of this question,
the effect of benzoate of soda upon food products, has he not?
A. Some time, I don't know about a great deal.
Q. Don't you know that he made an investigation on this subject and got out a
report on it?
A. He had the investigation made by others. He didn't do it himself.
Q. Well, was he as close in touch with his job as you was in yours?
A. I don't know the facts, but I know the work was carried out by his
assistants in the laboratory of the United States Department of Agriculture.
Q. Well, now, Dr. Wiley reached the conclusion as a result of his
investigation to which I have referred that benzoate of soda was harmful when
used in foods in what you denominate "small quantities" didn't he?
A. Yes, sir.
Q. And all over the country there are scientific men who have been studying
this question who agree with Dr. Wiley upon that question, do they not?
A. I don't know that scientific men all over the country have been studying
that question in any scientific way. We have no records of experiments. I won't
say there are none, but there are very few, if any, and so far as I understand
the situation these gentlemen who agree with Dr. Wiley simply agree with him,
accept his opinion.
Page 32.
Q. Well, when you had this hearing of the Referee Board at which you heard
both sides, did Dr. Wiley appear at that hearing?
A. No.
Q. Was he invited?
A. No. It was restricted to those who used benzoate of soda or those who do
not use it but who are interested in it from the manufacturing point of view;
that is what I meant.
Page 35.
Q. Well, do you approve of the result that Dr. Wiley got in investigating
this question?
A. I can't answer that question. I don't like to.
Q. Well, I would like to have you do it.
A. I do not. Or I should rather put it in this way, that our Board does not.
Q. That is to say you reached a different conclusion from Dr. Wiley? That is
what you mean to say?
A. Yes, sir.
Q. You are not criticizing his work.
A. Not at all.
Q. But you say you approve the work of an expert because it is done by an
expert?
A. Yes.
Q. Dr. Wiley is an expert, isn't he?
A. Not in physiological work.
Q. You think he has had no experience in physiological work?
A. I am unable to say, but my impression is that it has been very little. I
am very sorry to testify in this way but you have pushed me to it.
Q. I understand that you yourself are not a physiologic chemist?
A. No, I am not.
Q. So that is the opinion of one non-physiological chemist upon another?
A. Hardly. My opinion is based upon my experience with a board of men who are
thoroughly familiar with that kind of work.
Q. What peculiar knowledge now would a chemist have to have in order to
conduct an investigation of this kind?
A. He would have to be an expert in physiological work, physiological chemist
is really what you would want, a pharmacologist is a form of physiological
chemist, a man who studies the effects of substances upon the system, but in
order to judge the effects he must have physiological knowledge and must bring
that into play at every step.
Q. Now you are not a pharmacologist, I believe you call it, is that correct?
A. That is the name; I am not a pharmacologist.
Q. And you are not a physiological chemist?
A. No.
Q. And it is necessary to have both these elements of education in order to
be able to conduct properly this sort of investigation.
A. Undoubtedly.
Q. Well, if it is necessary that we shall have a pharmacologist and a
physiological chemist and you are neither, isn't it a fact that your opinion is
influenced by the conclusions reached by those who are pharmacologists and
physiological chemists who are on the Board?
I desire at this point to introduce a statement in regard to my personal
attention to the work carried on in the Bureau of Chemistry in studying the
effect of small quantities of benzoic acid and benzoate of soda on the health of
the young men who were undergoing these experiments. I may say that the Referee
Board were not the authors of the plan of experiment which they followed. It was
copied directly from the plan adopted by the Bureau of Chemistry in all of these
investigations, with this exception. All foods used were carefully analyzed by
the Bureau of Chemistry, very few foods were analyzed by the Referee Board. I
gave my personal attention for five years to all the details of this work.
During the winters I rose long before daylight, even before the street cars were
running and walked two miles to my laboratory, which I reached by seven o'clock.
I supervised the preparation of the breakfast, I weighed, with assistance of
others, every article of food which was administered, I supervised the actual
analyses of these foods in the laboratory, I studied the condition of the young
men every day as a medical man. I saw that their excreta, solid and liquid, were
collected and delivered to the laboratory. I dined with the young men except
that I did not take the foods to which the preservatives were added. I felt that
my continued good health would be at stake if I did, but I ate the same kinds of
foods that they ate otherwise. When nine o'clock came I went to my office and
performed the ordinary duties connected therewith until luncheon time. I then
went into the kitchen and supervised the preparation of their lunch under the
same conditions. After luncheon was over I again went to my duties as Chief of
the Bureau of Chemistry. At five o'clock I again went back into the kitchen and
supervised the preparation of dinner. I remained in the kitchen and dining room
and dined with the young men at dinner. By seven o'clock the dinner was over.
This was the routine which I followed for five years winter and summer except at
such times as I was called away from Washington. When I was called out of town,
Dr. W. D. Bigelow, my first assistant, took my place as supervisor of the
experimental work; yet Dr. Remsen without making any effort to learn the truth
about the matter said I took no part in this work, that I was not a
physiological chemist.
In 1910 I was awarded the Elliot Cresson medal of the Franklin Institute for
leading work in physiological and agricultural chemistry. This medal was given
me for inaugurating the most extensive investigations ever undertaken in this
country in improving the valuable properties of plants. I inaugurated and
carried into effect, in connection with A. A. Denton of Kansas, experiments in
improving the quantity and quality of sorghum for sugar-making purposes carried,
over a period of many years in which the percentage of sucrose in sorghum was
raised from nine to fourteen per cent. These experiments were published in
numerous bulletins of the Department of Agriculture extending over a period of
many years. In like manner I inaugurated and carried into effect a work
extending over several years of ascertaining the factors which would produce the
best quality of sugar beet in the United States. The results were published in
the bulletins of the Bureau of Chemistry and enabled the manufacturers who were
intending to go into the sugar-beet industry to locate their plants in those
areas in which the best sugar beets were grown. In all some five hundred
thousand analyses of sugar beets grown under similar conditions with the same
seeds were made. Following this physiological chemical work I originated and
carried into effect a series of experiments extending from Maine to Florida of
the factors which produce the largest amount of sugar in sweet corn. These
results were also published as bulletins of the bureau of Chemistry of the
Department of Agriculture. It was for these far-reaching investigations of
physiological chemical problems, and for similar work in studying the effects of
preservatives and coloring matters on health, that the directors of the Franklin
Institute awarded me the Elliot Cresson medal. The gold medal bears this
inscription:
To HARVEY W. WILEY
For Distinguished Leading and Directive Work
in Agricultural and Physiological Chemistry, 1910
Yet Dr. Remsen under oath said I was not a physiological chemist.
Pages 112 to 116-Indiana Record.
DR. HERTER'S TESTIMONY
Q. As a matter of fact, you know, don't you, Doctor, that the very opposite
effect to which you testified has been found by other eminent scientists with
reference to some of these subjects that you have testified about even in the
administration of small doses of benzoate?
A. Well, I don't believe that I can agree to that.
Q. Have you not examined Dr. Wiley's report of his investigation?
A. I have.
Q. Well, do you not know that he so found?
A. I do.
Q. And what position does he hold, Doctor?
A. He holds that sodium benzoate--
Q. Well, I know--what official position does he hold?
A. He is chief of the bureau of chemistry of the Department of Agriculture.
Q. What Government?
A. The United States Government.
Q. That is rather a responsible position?
A. Very.
Q. And Doctor Wiley has occupied that position for many years, has he not?
A. I believe he has.
Q. And he conducted quite an extensive investigation on this subject, did he
not?
A. I believe that he did.
Q. You know, too, don't you, Doctor, that a number of eminent scientists who
have read and studied the report that was published of the work of the so-called
Referee Board have reached different conclusions from the board as to the effect
of benzoateof soda in foods, even based on the facts included in those published
reports, don't you?
A. I have been told that there has been criticism of the report of the
Referee Board, but I have felt that the criticism that has come to my notice has
been for the most part, or wholly, from such sources as lead me not to give
great confidence, to place great confidence in those results or in those
opinions I should say--they are not results--opinions. In general I would say
that that is my attitude.
Q. Well, you know that Dr. Wiley has criticized this report and draws a
different conclusion from what the Board did from the facts that are published
in the report, do you not?
A. I think so. Dr. Wiley told me so himself the other day when he talked with
me.
Q. Now, you know Dr. Reed of Cincinnati, do you?
A. I had that pleasure at Denver.
Q. He is an ex-president of the American Medical Association, is he not?
A. I don't know that of my own knowledge. I will have to answer that on sQme
kind of hearsay.
Q. Well, he is an eminent physician, is he not, and a scientist?
A. I don't think there is any reason to regard him as a scientist. I have
been told that he was a good gynecologist.
Q. Well, do you know what his training is, Doctor?
A. No, I can't say that I do. That is a matter of hearsay.
Q. You know that he reaches a different conclusion from what the board did?
A. I do.
Q. I didn't get my question in--you know he reaches a different conclusion
from what the board did as to the effect of administering benzoate of soda in
the foods, based on the facts published in the report of the board, do you not?
A. I had a different idea of what he bases his views on.
Q. You know that he does not agree with the conclusions of the board, do you
not?
A. I infer that.
Q. Now there was some sort of an association of chemists held at Denver
recently, wasn't there, Doctor?
A. I think that the association contained some chemists. Whether they are all
chemists or.not, I don't know.
Q. What is the name of that association?
A. That is the--I ought to remember on account of the squabble over the
Mississippi, but I have forgotten--that is the National Pure Food and Dairy
Association--no, that isn't right--The Association of State and National Food
and Dairy Departments--I think that is what it is.
Q. Now that is made up of people who are connected with the study of foods,
is it not?
A. Certain aspects.
Q. Study and manufacture of foods?
A. Certain aspects of the study of foods.
Q. You were present at that association?
A. I was present.
Q. Did you address the association?
A. Well, I spoke to the association.
Q. What was the subject of your address?
A. It had to do with the action of sodium benzoate on the human organism.
Q. Did you discuss the work of the Referee Board in that connection any?
A. I referred to it, but I particularly referred to the work done in my
laboratory.
Q. Was there any of the other members of the Referee Board there?
A. They were all there.
Q. Did any of the other members address that meeting?
A. They all spoke except Dr. Taylor.
Q. What were the subjects of their addresses?
A. The same general topic, I should say.
Q. That you discussed?
A. Well, for their own reports--they did for their reports what I did for
mine.
Q. And were there any other addresses delivered there on this subject of the
use of benzoate of soda in foods?
A. Well, I suppose that the chairman's address might be so regarded and Dr.
Reed's address; they contained reference to it.
Q. Who was the chairman?
A. Mr. or Dr. Emery--Mr. Emery.
Q. Now there was some sort of a report passed upon there by that association
with reference to this effect of benzoate of soda upon the human system as
administered in the food, and also as to the result of all investigations made
on that subject up to the date of that association, was there not?
A. I think there was. I think that I have in mind probably the same report
that you have in mind, but I am not sure.
Q. And that report that was made to the association was a report made by a
committee of eleven men, was it not?
A. I believe that there was a committee which reported.
Q. I will ask you now if that committee was not composed of chemists
entirely?
A. I don't know, sir; I don't think that I had heard the name of any one of
the number.
Q. And you know that it was reported there by that committee that the
investigation of that subject had not been carried to an extent sufficient to
determine the question as to whether the use of benzoate of soda in food was or
was not injurious to the human system--do you not?
A. I have only a very vague recollection of what was said in the report.
Q. You heard the report discussed, did you?
A. I think that I did. My impression is that a recommendation was made by
that committee asking for further investigations. That is my recollection of it.
Q. You do know, don't you, Doctor, that there is now, and has been, a
diversity of opinion among scientists upon this very question?
A. Which question, may I ask?
Q. The question as to whether or not the administration of benzoate of soda
in foods to the human being is injurious to the human system.
A. I know that there has been a diversity of opinion about that.
Q. And you know, too, that this diversity of opinion has existed since the
Referee Board report was published, do you not?
A. Well, you mean it has existed in spite of the publication, or do you mean
that it was initiated then?
MR BINGHAM: Listen to the question, Doctor; I think it will explain itself.
A. Well, I wouldn't say since; it existed before.
Q. Well, you know that scientists have criticised it since it was published,
do you not, and that they have even told you that they did not agree with you on
the question?
A. I have never heard any adverse opinion of the report of the Referee Board
from any person that I would class as a scientist.
Q. How do you class Dr. Wiley?
A. Well, I don't know Dr. Wiley very well, and I find it is a rather
difficult task to class him. I don't know what you expect of me.
Pages 160-161.
Q. One more question as to Dr. Lucas. (Dr. Lucas was one of Herter's squad.)
It is a fact, is it not, Doctor, that Dr. Lucas disagreed with you as to the
result of the injurious effect of the use of benzoate of soda in food in small
quantities?
A. I do not know very accurately what Dr. Lucas' views are, but I know he has
done some work particularly on the action of benzoic acid and I judge from the
paper that I heard read at Denver that his views are in some respects at least
different from mine. I do, not know to what extent.
Page 165.
Q. Did you know that the Department of Agriculture of the United States
Government stood ready to furnish this Referee Board with everything at its
command that was necessary for making this experiment that is under
consideration?
A. I heard that stated by the President of the United States and by the
Secretary of Agriculture more than once.
Q. Did you know that the United States Government had a chemical laboratory
in the City of New York?
A. I did not.
Q. Did you not learn from the Department that it had numerous analytical
chemists in its employ at the time and before this experiment was begun, in the
City of New York?
A. I was not aware of that fact.
Q. Well, you did know that it had a Department of Chemistry?
A. I did.
Q. And-you knew, too, that that department was engaged in the administration
of pure food laws of the United States, didn't you?
A. So I had heard.
Q. And you knew that it had a corps of workers, of chemists, analytical and
otherwise, constantly engaged in the work of analyzing foods and their
analytical testing, did you not?
A. I assumed that to be the case.
Q. How did it come that you did not secure your analytical chemists and men
for doing the routine work from the force of the Department of Agriculture?
A. Because it was intimated to me that it was the desire of the Department of
Agriculture and by the President of the United States that in the investigation
carried on by me I should be free to use my judgment as to all points connected
with the matter of personnel in my laboratory.
Q. Why was it that you preferred to select such men as Dr. Lucas and Dr.
Ringer and Mr. O'Brien and Dr. Harvey, some of whom at least are neither
graduates or chemists and who, according to your own statement, would need
instruction, rather than those experienced men in the Department of Agriculture
who are regularly engaged in that class of work?
A. It never occurred to me that they would be available, partly because they
had their own occupations for the entire year and partly for the reason that it
nevef occurred to me that men such as I wanted would be willing to come from the
Department of Agriculture. We canvassed the situation with regard to the
universities particularly and if I had known there was a branch department of
the Department of Agriculture in New York I certainly should have applied to
them.
Pages 176-177.
Q. Well, you were impressed at that time, were you not, with the fact that
this expenditure of time and money was not being made as a matter of idle
curiosity, but for the purpose of opening the door, if possible, to the use of
benzoate of soda for such purpose?
A. I did not hear the case stated so fully nor so eloquently as that, but I
got the impression that the manufacturers felt that if they had to give up
benzoate of soda--or at least that some of them felt that if they had to give up
benzoate of soda--they would either have to be shown some other way of carrying
on their preservation of food or they would be put to financial loss.
Page 178.
Q. Who was it that said that this benzoate of soda question was a pressing
question?
A. I do not know that anybody said that it was a pressing question; I may
have said it myself.
Q. How did you get the impression that that was a pressing question?
A. Well, I said that there were two or three questions, the sulphite
question, the benzoate question, the saccharine question, that it was important
to act on. The President wanted the saccharine question investigated.
Q. Who was it that gave you to understand that these two subjects were the
most important?
A. I am unable to answer that question.
Q. Did you not get the idea that these questions were pressing because they
involved large interests?
A. Yes, I did.
Q. Yes, I know; but getting this settled was desired owing to the fact that
large interests were involved?
A. That was the general impression of the board.
Q. You knew that the interests involved were the ones that were clamoring for
some sort of a chemical preservative, did you not?
A. I knew from the meeting of the manufacturers to which I have referred that
many of them desired either to be permitted to continue to use benzoate of soda
or requested a substitute for it, and I understood, principally from Dr. Taylor,
that the question was a very live one in the west.
A CHANGE OF MIND
While writing these memoirs I was told that one of the principals in the
Indiana case, namely Walter H. Williams of Detroit, was convinced by the
evidence brought before the Federal Court that he was wrong in believing that
benzoate of soda sliould be used in food products. Probably the adverse
decisions of Judge Anderson and the Circuit Court of Appeals in confirming it
strengthened Mr. Williams' opinion in regard to the matter. In order to be
certain about this matter I addressed a letter to Walter H. Williams on May 7,
1927, from which I quote:
In some way I have received the impression that the Williams Brothers
withdrew from further activity in the case when it was carried to the Supreme
Court. They had become convinced that the use of benzoate of soda was either
unnecessary or injurious and had taken the position that they could put up
their catsup just as well or better without it than they could with it. Before
I submit this statement in my autobiography to the printer I should be glad to
hear from you in regard to this matter.
To this I received a reply under date of May 31, 1927. I quote the following,
with Mr. Williams' permission:
Your remembrance of the Indiana benzoate case is substantially correct. The
Williams Brothers of Detroit did join with Curtice Brothers of Rochester, New
York, in seeking a Federal Court order in an endeavor to restrain the Health
Department of Indiana from enforcing its ruling in regard to the use of
benzoate of. soda as a preservative in food products.
The Williams Brothers Company later came to believe that benzoate, or any
other preservative was entirely unnecessary in such food products as ketchup,
sweet pickles, preserves, etc., and then withdrew as a party to the suit.
Not only did Williams Brothers find that a preservative such as benzoate
was unnecessary, but were convinced that permission to use it allowed food
manufacturers to be very careless in their methods of manufacture.
The writer well remembers the hearing before committees of both houses of
Congress and the strong opposition food manufacturers presented against the
passage of the national food and drugs act. At that time we all believed we
were absolutely and honestly right in our contention, but most of us have
since found that we were wrong, and that working under proper factory methods
and conditions we can comply with all regulations called for by the national
food and drugs act and turn out much better products than under the slip-shod
methods generally used before the passage of the act.
In the early days of enforcement many of us thought, Dr. Wiley, that you
were too radical in your ideas of pure food and felt that you were doing harm
to our industry. When I look back over the changes that have come to the food
industry during the past twenty-five years and see the great changes for the
better that have come to our methods and our products, I wonder why we were
all so blindly asleep as we were and why, much sooner than we did, we did not
welcome and follow your teaching.
I am glad, indeed, Dr. Wiley, that this correspondence between us has
started so that I am able to tell you what I have many times said to my
friends and competitors in the industry, that Dr. Wiley was many years ahead
of us in his thoughts and we had been terribly slow in awakening to the
possibilities of pure food manufacture.
We should bear in mind that through the illegal creation of the Board of Food
and Drug Inspection and of the Remsen Board of Consulting Scientific Experts,
and by illegally transferring to the Solicitor the duties of the Bureau of
Chemistry in enforcing the law, probably as much as $500,000 of public money
appropriated for enforcing the food law was spent in protecting the business of
adulterators and misbranders and in trying to force upon the people of Indiana
these adulterated and misbranded products. The conversion of a man like Mr.
Williams is a most pertinent fact. It is an additional evidence of the enormity
of the crime commited. against the Food and Drugs Act.
This statement of Mr. Williams illustrates the wisdom of carrying into effect
the food law in the way the food law itself provides. It is a much more
excellent way of showing adulterators and misbranders the desirability of
changing their ways than any amount of coaxing, persuading and other methods of
procedure intended to wean the offenders of the law from their habits of
infracting it. Moreover, it is the method of procedure which the law itself has
laid down, and which the Supreme Court has affirmed with the added injunction
that all unnecessary delay should be swept aside.
It is interesting to see that in the correspondence I lately had with Mr.
Walter Williams he informed me that Mr. Grosvenor, who was his attorney, was
also converted during the Indiana trial and subsequently moved to Indiana to
establish a very extensive business in the production of non-benzoated catsup
and other food products.
The record of the Indiana benzoate case will prove a mine of information to
the subsequent historian who has opportunity and desire to review the whole
case. Its 5,000 pages of printed matter disclose the magnitude of the conspiracy
formed in the Department of Agriculture to destroy the provisions of the
pure-food law and to seek to declare unconstitutional the Indiana pure-food law.
This record will be found, I feel certain, in the State library of Indiana, in
the Library of the Federal Court of Indiana, and in the Library of the Supreme
Court of the United States. The copy which I have belongs to a private law firm
in the city of Indianapolis. Owing to the courtesy of this firm I have been able
to keep this copy of the record many years, and during that time as leisure was
afforded me, I have studied its pages and prepared from time to time the
abstracts thereof which are here presented. I wish I could give more space to
this remarkable document.
I cannot leave these topics without summarizing briefly the testimony which
the State of Indiana, defendant in this case, offered before the Moss Committee
(pages 531 to 549, inclusive). The first witness called was Dr. Harry E.
Barnard, Food and Drugs Commissioner of the State of Indiana, named as one of
the defendants in this case. Dr. Barnard testified to the fact that Indiana had
a pure-food law and he was the commissioner thereof. The particular section of
the law which was under fire was Section 2 of Division 7, which reads as
follows:
If it (a food) contains any added antiseptic or preservative substance
except common table salt, saltpeter, cane sugar, vinegar, spices, or, in
smoked food, the natural products of the smoking process, or other harmless
preservatives whose use is authorized by the State Board of Health, it shall
be deemed adulterated.
Dr. Barnard testified further that the complainants in filing their suit
asked of Judge Anderson a restraining order preventing the State Board of Health
from enforcing this law until the hearing for an injunction was completed. He
explained why the suit was brought in the Federal Court, that there was no
sentiment in the State favoring the repeal of the law, that it was supported
enthusiastically by both political parties and that the press of the state was
unanimously in favor of the enforcement of the law according to the
interpretation put upon it by the State Board of Health. He showed that if the
injunction were made permanent it would result in the repeal of the entire law
and not simply one section of it.
He also testified that all the canners of the State putting up ketchup and
other products were heartily in sympathy with the law as interpreted by the
State Board of Health.

DR. HARRY E. BARNARD,
Former Food and Drugs Commissioner of Indiana

Mr. Barnard also explained that he was present at practically all the
proceedings before the Federal Court and generally attended the
Attorney-General. of the State, Mr. Bingham, in the taking of depositions
without the state. He also testified that in taking these depositions they
frequently were given by employees of the Department of Agriculture in areas
extending from Maine to California. This part of the testimony of Dr. Barnard is
quoted verbatim:
Mr. Moss: In the taking of these depositions, did Curtice Brothers and
Williams Brothers take any testimony from any employees in the national
Department of Agriculture?
A. They did.
Q. State to the best of your recollection how many employees of the
Department of Agriculture gave testimony in this case for the firms of Curtice
Brothers and Williams Brothers.
A. With the exception of two or three young men, subjects and clerks, any
person who did any work in connection with the benzoate of soda investigation,
employed by the Department of Agriculture, was examined. This included all
members of the Referee Board, chemists, physicians, medical experts, clerks,
stenographers, janitors--everyone who had any thing to do with the case.
Q. About how many in total.
A. I cannot say exactly, but more than 75.
Q. Did the State of Indiana secure testimony from any employees of the
national Department of Agriculture?
A. We wished to secure the testimony of Dr. Wiley, Chief of the Bureau of.
Chemistry, and those of his assistants who helped him in his benzoate of soda
investigation.
Q. Did any of the employees appear voluntarily to give their testimony on the
request of the State of Indiana?
A, No, we found it impossible to get their testimony.
Q. Have you any reason to believe that these employees were personally averse
to giving such testimony.
A. No.
Q. Did any of these employees appear finally and testify, or give their
depositions.
A. Yes; after we went to the Supreme Court of the District of Columbia to
compel them to testify.
Q. In actual tests, then, did you find the Department of Agriculture
cooperating with the State of Indiana in the enforcement of the pure-food law or
operating in opposition to the enforcement of the pure-food law?
A. We found the Department of Agriculture opposing the State of Indiana in
every move which we made to defend the pure-food law of our State.
This astounding attitude of the Department of Agriculture, with the exception
of the Bureau of Chemistry of that Department, is the most remarkable
illustration of how funds appropriated for the enforcement of the Federal
pure-food law were squandered in helping adulterators of foods in their attempt
to break down a popular state law with all the eagerness and enthusiasm, and
moral and material support which a great department of the Government could
command. Evidence has already been given that the members of the Referee Board,
during their efforts to break down the Indiana law, were paid their salaries and
expenses out of the money appropriated by Congress to carry out the provisions
of the national pure-food law. While no evidence was asked for in regard to the
persons employed by the Referee Board in their investigation, and who appeared
as witnesses against the State 6f Indiana, as to the payment of their salaries
and expenses while engaged in this activity, it is reasonable to suppose that
they were treated in exactly the same manner as their principals. This was a
great boon to the complainants as it saved them perhaps many thousand dollars
which they would have had to pay for the testimony of over 75 witnesses whom
they called for the support of their complaint.
Attorney-General Bingham was also a witness before the Moss Committee (pages
537 to 549, inclusive).
Mr. Bingham was asked by Mr. Moss to state concisely to the Committee just
what was involved from a legal standpoint in the Indiana Case. Mr. Bingham
replied that the constitutionality of the pure-food law of Indiana was in
question. No federal law was involved. That if Judge Anderson sustained the
prayer of the complainants the Indiana pure-food law would be practically
destroyed. That in so far as he was acquainted with the public sentiment of the
State it was entirely favorable to the proper enforcement of the law. Mr.
Bingham reported also that in the case of the Referee Board he began taking
depositions at Seal Harbor, Maine, and wound up in San Francisco, California. He
testified that as representative of the State of Indiana he wished to take the
testimony of employees of the Bureau of Chemistry, and he first applied to the
Department of Agriculture. Mr. Bingham said he first approached Dr. Wiley who
informed him that he would prefer that he first approach Secretary Wilson. He
testified that his request that Dr. Wiley should appear in Indianapolis was not
granted.
He testified that he next appealed to the President of the United States. As
a result of this attempt of Mr. Bingham he felt certain that he could not get
any of the employees of the Bureau of Chemistry to go to Indianapolis. He was
compelled, therefore, to remove the court to Washington.
He tells how he first put Dr. W. D. Bigelow on the stand, who after giving
his name and his profession declined to answer a question in regard to the
benzoate matter unless he had permission to do so from the Secretary of
Agriculture. He carried the request to compel the testimony of members of the
Bureau of Chemistry to the Supreme Court of the District of Columbia before
Justice Barnard. A lawyer from the Solicitor's office of the Bureau of Chemistry
appeared before the Judge to argue against the order requiring the evidence to
be given. The lawyer from the Department of Agriculture urged that as this was
expert evidence it could not be given without the consent of the expert. To
which Judge Barnard replied:
"It was about as much expert evidence as if they had seen a dog fight on
the street and had been asked to testify about it."
He entered an order that the witnesses should go before the master and
testify.
I am quoting just now verbatim from page 545:
MR. Moss: I will ask you if at any time during the taking of these
depositions you received on behalf of the State of Indiana any encouragement or
cooperation on the part of any official of the Department of Agriculture.
MR. BINGHAM: Voluntarily, no. But I may say this for Dr. Wiley. When I said
to him that I wanted to take his deposition and question him about whether he
would testify as an expert or not-I wanted his opinion of the results--he said
that he would testify and that he would answer any questions that were put to
him; that he would not hesitate to testify to anything that he was able to
testify about.
Q. He explained to you that he was not in a position to act voluntarily, did
he not?
A. He explained to me with reference to that particular thing that he did not
propose to have any padlock put on his mouth.
I have given these copious extracts from the Indiana case because I consider
it to be a most amazing attempt to pervert the national pure-food law and the
purposes for which it was enacted to protect the interests of food adulterators
and misbranders.
END OF THE INDIANA CASE
Judge Anderson of the Federal Court of Indiana decided this celebrated case
in favor of Indiana. It was appealed to the Federal Circuit Court. The decision
of the lower court was approved.
Appeal to the Seventh Circuit of United States Court of Appeals in the Case
of Curtice Brothers, vs. Harry E Barnard, et al, Willis Baldwin, E. 0.
Grosvenor, and John Barton Payne, attorneys for Curtice Brothers, Thomas M.
Honan, Attorney-General of Indiana, attorney for Harry E. Barnard. Judge
Kohlsatt delivered the opinion of the Court.
From the evidence and the master's report thereon, it is evident that the
question of the harmfulness and harmlessness of benzoate of soda is as yet an
open one in the scientific world. While the voluminous record of this case deals
largely with that question, it is a question of fact. The finding of fact of the
master may not in the absence of convincing evidence to the contrary be set
aside. To show that the report is erroneous and not justified by the evidence
the burden rests upon the appellant. That burden is not convincingly sustained
by the record. We, therefore, start with the proposition that the question is
yet an open one in the scientific world and, therefore, an open one for the
purpose of this hearing. This being so, it was within the power of the Indiana
Legislature to prohibit the use of benzoate of soda in the preparation of foods.
Manifestly, if the Legislature of Indiana in the reasonable exercise of its
police power and for the welfare of its citizens condemns as an adulteration the
use of benzoate of soda in the preparation of articles of food, then in the
absence of a general acceptance of the proposition by the scientific world that
such is not the case there can as to that matter arise no question of the
violation of the Constitution of the United States, or, as here charged, of the
State of Indiana. When deemed necessary by the Legislature for the public health
property rights such as here involved must give way. It is therefore apparent
that the position taken by the appellant with reference to the constitutionality
of the act in question is without merit, as are also the other matters covered
by the assignment of errors. The decree of the District Court is affirmed.
At the time of the decision of the Seventh Circuit Court of Appeals Williams
Brothers of Detroit became convinced that benzoate of soda was an injurious
substance and withdrew from the further prosecution of the case. It was carried
by Curtice Brothers to the Supreme Court of the United States. In 1915
negotiations were begun between the State of Indiana and the Curtice Brothers
looking to abrogation of hostilities. A stipulation was agreed upon in which
Curtice Brothers obtained all.they had fought for in the district and circuit
courts of the United States as follows:

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM--1915
The Curtice Brothers Co.)
Appellant,) No. 243
Harry E. Barnard, et al.)
STIPULATION TO DISMISS
Whereas, the statute of the State of Indiana known as Chapter 104 of the Acts
of 1907 forbids the sale of adulterated or misbranded drugs and foods within the
meaning of the act;
And whereas, subsequent to the passage of said act, and under date of
November 10, 1908, the appellees herein notified the appellants, and the
purchasers of their said products in the State of Indiana, that the use of
benzoate of soda was illegal in said State, and that if they wished to find a
market in said State they must not use the same;
And whereas, on the 22nd day of December, 1908, a bill in equity, being the
bill in equity involved in this case, was filed in the District Court of the
United States for the District of Indiana, in which an injunction was prayed to
restrain the defendants, their successors in office, their agents and servants,
from enforcing their determination to prosecute these selling appellant's goods
as aforesaid;
And whereas, sundry proceedings were had resulting in the entry of a decree
in the said District Court of the United States for the District of Indiana on
June 21, 1912, dismissing said bill in equity;
And whereas from said decree an appeal was taken to the circuit Court of
Appeals for the Seventh Circuit, which Court, on October 7, 1913, affirmed the
decree of the said District Court of the United States for the District of
Indiana;
And whereas, an appeal was taken on August 10, 1914, to the Supreme Court of
the United States from said decree of the Circuit Court of Appeals for the
Seventh Circuit, which appeal is now pending in said Supreme Court, entitled,
"Curtice Brothers Co., Appellant, v. Harry E. Barnard, et al.," and numbered 243
on the docket thereof for the October Term, 1915;
And whereas, since the institution of said proceedings in the District Court
of the United States for the District of Indiana, the government of the United
States, acting by its proper officers, hereinafter named, and under authority of
the Act of Congress, approved June 30, 1906, known as the "Food and Drug Act"
promulgated a rule authorizing food products containing benzoate of soda to pass
into commerce between the States, which rule is in the following language:
" It having been determined that Benzoate of Soda mixed with food is not
deleterious or poisonous and is not injurious to health, no objection will be
raised under the Food and Drugs Act to the use in food of benzoate of soda,
provided that each container or package of such food is plainly labeled to
show the presence and amount of benzoate of soda.
(Signed) George B. Cortelyou,
Secretary of the Treasury
James Wilson,
Secretary of Agriculture
Oscar S. Straus,
Secretary of Commerce & Labor
(F.I.D. 104, issued March 3, 1909.)
And whereas, the paramount and controlling authority of the Federal
government over foods in original unbroken packages entering into interstate
commerce is now recognized and admitted, in accordance with which recognition
and admission the Board of Health of the State of Indiana, successors in office
to the said appellees, under date of April 9, 1915, did promulgate the following
regulations:
"Whereas, the decisions of the Supreme Court of the United States in cases
concerning the sale of food transported in interstate commerce, and sold in
original packages, reserve to officials charged with the enforcement of the
Federal Food and Drug Act the authority to regulate the labelling and character
of such food, the chemist to the State Board of Health, who is the state food
and drug commissioner, is hereby instructed to follow, without exception, the
regulations for the enforcement of the Food and Drug Act, promulgated by the
Secretary of Agriculture, the Treasury, and Commerce and Labor, in the
enforcement of the pure food and drug law, Chapter 104, 1907, in the cases of
food sold in interstate commerce in the original unbroken packages;"
"And whereas, there now, therefore remains no question at issue before the
Supreme Court of the United States for adjudication between the parties to said
proceedings, entitled "The Curtiee Brothers Co., Appellant, v. Harry E. Barnard,
et al;"
NOW THEREFORE, in consideration of the foregoing, IT IS HEREBY STIPULATED by
counsel for the parties thereto, that the appeal herein shall be dismissed
without prejudice, and without costs to either party as against the other.
(Signed) Lawrence Maxwell,
Counsel for Appellants.
Evan B. Stotsenburg,
Attorney General of the
State of Indiana.
This stipulation gave as a free gift to Curtice Brothers everything that they
were asking for through both the District and Federal Circuit Court of Appeals
which it had been denied by both Justice Anderson and Justice Kohlsatt. The
whole stipulation appears to have been composed by Lawrence Maxwell, attorney
for Curtice Brothers. It assumes that the contention of the Curtice Brothers
that benzoate of soda is a perfectly harmless substance is true. It has never
been pronounced so by a Federal Court. In so far as experts are concerned, there
is always a difference of opinion, but the far greater number of experts have
held that benzoate of soda is harmful. Those who used it have been led by one
cause and another to entirely abandon its use. Even the persons who sought to
restrict the Indiana State Board of Health from obeying the rules and
regulations under the State law finally came to see the error of their ways and
joined the ranks of the non-users of benzoate. The three Secretaries who signed
Food Inspection Decision 104 had no warrant by law to make such a ruling. There
was only one authority named by the law to bring an indictment under the law.
This indictment was not valid unless it was sustained by the Federal court. The
publication of this order on March 3, 1909 was a plain violation of law. The
Indiana Board of Health on the 9th of April, 1915, issued an order forbidding
interference with the sale of benzoated goods as long as they were in the
original packages. The Attorney-General of the State of Indiana advised the
commissioner of foods that there were certain conditions in which imported
packages never ceased to be in the original containers. This of course is a
reductio ad absurdum. The very moment an Indiana dealer sells goods it is an act
of intrastate commerce and brings that article directly under the control of the
Indiana law.
CONTEMPT OF COURT
In my testimony in the Indiana case, Mr. Baldwin, the attorney for the
complainants in cross-examination endeavored to fix the responsibility of the
almost unanimous sentiment expressed in the newspapers and magazines on me. He
asked me if I kept in touch with the progress of the case. I told him I did as I
was greatly interested in it, that I knew it was under way and had been pending
for a long while. He asked me this question:
Q. Now then, you have stated your opinion here to the reporters of the
different papers as to the outcome of that case?
A. I think I have said that I hoped it would be decided in favor of the State
of Indiana.
Q. You said that to the reporters of the papers.
A. I think so. I do not see any reason why I should not say so.
Q. You said that to them with the expectation that they would use those
statements in the press.
A. I think reporters usually do.
Q. It is your experience that they do use those things.
A. I have no objection to my opinion being expressed in the public press on a
question of that kind; none whatever;
I have a right to my opinion in this country and will exercise it.
Q. Didn't you know that it is improper for any person to express an opinion
as to what the Court was going to do in a pending case.
A. In what sense? In what way?
Q. I say in a way so that that opinion would get in the newspapers.
A. As to the outcome of the case?
Q. Yes.
A. I did not know that it was improper to express the hope in a civil suit
without a jury that the decision would be this way or that. If it were an
illegal or an improper thing I am sorry I said it. I have done it dozens of
times as to cases I have seen on trial.
Q. You made it in such shape that that opinion got.into the newspapers?
A. I suppose it did get into the newspapers. I had no objection to its
getting in.
Q. In fact you wished it to get in?
A. I did not think of that.
Q. You must have volunteered it, because it was not forced from you.
A. I did not run around and hunt them up. They came to me.
Q. You voluntarily made those statements?
A. Oh, yes. Nobody tried to force me to make any.
Q. Do you keep a set of clippings from different papers at all?
A. I am not a subscriber to any agency. I usually cut out articles in which I
am interested that come to my notice.
Q. And don't you know that those statements of your opinion were published
generally throughout the country?
A. I don't know if they were or not.
Q. Don't you know they were published in other papers than those in
Washington?
A. Oh, I suppose so; I don't know.
Q. Do you know whether they were published in any Indianapolis papers or not?
A. I do not.
Q. Don't you know they were published in the Detroit Free Press?
A. I do not.
At this point Mr. Baldwin offered an article published in the Washington
Post, July 13, 1910. This article related the facts that at the 66th Convention
of the American Institute of Homeopathy, held at Pasadena, California, a
resolution was adopted denouncing food-laws that prohibit the use of
preservatives in food and the use of sulphur in curing fruit. He stated that
12,000 homeopathic physicians had sent telegrams to President Taft and Secretary
Wilson in favor of the farmer, the fruit-grower and the preserving factories and
against the pernicious rulings of Dr. H. W. Wiley, Chief of the United States
Bureau of Chemistry. The latter part of this clipping reads as follows:
"Although the American Institute of Homeopathy at its convention at
Pasadena, Cal., Monday, adopted a resolution rescinding its action taken last
year condemning the use of benzoate of soda as a food preservative, Dr. Wiley,
chief chemist of the Department of Agriculture, has stronger opinions than
ever on that subject. Dr. Wiley's views did not prevail in the department, as
the board appointed by Secretary Wilson under the pure food law disagreed with
the chief chemist and sanctioned the use of benzoate of soda as a food
preservative.
" 'The developments during the last year,' said Dr. Wiley, 'have
accentuated my opinion as to the harmful character of benzoate of soda as a
food preservative. I expect to see that view sustained by the Federal courts,
as the evidence that has been submitted recently in Indiana cases points that
way.' "
(Page 3460, Indiana Case.)
I never lost faith, in the whole two or three years during which the Indiana
case was considered, in the character of the outcome. I think Mr. Baldwin, the
attorney for the complainants, was justified also in his optimism that the
Referee Board would win. He realized that all the heavy artillery of the most
powerful government in the world had been brought into play and directed against
the crackling reports of the short shot-guns fired by the Bureau of Chemistry.
Later he must have realized the truth of the poem;
Truth crushed to earth will rise again;
The eternal years of God are hers;
While error languishes in pain
And dies amid his worshippers.

HISTORY OF A CRIME AGAINST THE FOOD LAW
CHAPTER VII: ATTITUDE OF ROOSEVELT
by Harvey W. Wiley, M.D., the very first commissioner of the Food and Drug Administration (FDA), then known as the “US Bureau of Chemistry.”

Absurdum est ut alios regat, qui seipsum regire nescit.

"The world has a sure chemistry, by which it extracts what is excellent in its children, and lets fall the infirmIties and limitations of the grandest mind."
Emerson, Essay on Swedenborg.

IN EARLY DAYS
In the early days of the enforcement of the food and drugs act great
encouragement was given, due to the soundness of President Roosevelt's views as
to what is whisky. On the other hand the temporary support of the harmfulness of
benzoate of soda, which lasted for only a few minutes, was then entirely
abandoned. There was another incident which led me to believe that the President
thought the Bureau of Chemistry was entirely too radical in its efforts to carry
out the provisions of the law under the mandates which the law gave it. Of
course the Bureau simply tried to do, to the best of its ability, the duties
imposed upon it by the law. All the Bureau of Chemistry could do was to serve as
a grand jury. Any indictments it might bring could only be reported to the
Department of Justice and could only be ratified by the decision of the Court.
Soon after the law went into effect I was called to the White House by the
President and directed to bring with me Mr. Harrison, the chemist in charge of
the New Orleans laboratory. At the appointed time Mr Harrison had not arrived,
due to a failure of the Southern Railway to reach Washington on time. I
therefore went to the President's office alone. On my arrival I found the
President in rather an ugly mood. The French Ambassador had complained to him
that a shipment of vinegar from France to New Orleans had been refused admission
because of a cluster of grape vines hanging full of grapes portrayed upon the
label. The analysis had disclosed that the vinegar in question was not sour
wine, as both name and label indicated, but was an artificial vinegar made by
passing dilute alcohol, presumably distilled from beet sugar molasses, over
beech shavings. The shipment was ordered returned to France, with the
instructions that the grapes should be removed from the label. This was done but
the grapevine was left. The shipment a second time reached New Orleans,
whereupon I instructed Mr. Harrison to send it back as the grapevine was just as
indicative that the vinegar was made of sour wine as were the grapes themselves.
On reaching the President's office and explaining why young Harrison had not
accompanied me, he said very sternly:
"The Food Law is an excellent measure, but it should be administered with
some discretion. Full particulars in regard to the proper branding should have
been furnished at once."
Explaining as best I could to the President I quoted the very words of the
law itself, namely that an article was misbranded if the label bore any design
or device or statement which was false or misleading in any particular, that as
the executive officer I had no choice in the matter, but my only purpose was to
execute the law as it was written. The scowl on the President's died away and a
rather benignant smile took its place. He grasped my hand cordially and said:
" If the French Ambassador bothers you again in matters of this kind tell
him to go to Hades."
Inasmuch as I valued my friendship for the French Ambassador and his for me
very highly, I am certain that no one would have expected me to use any such
language in any subsequent protest made from the French embassy in regard to the
exclusion of French products from this country under the law. Nevertheless, this
incident increased the feeling in my own mind that the President was not
entirely in sympathy with a rigid enforcement of the food and drugs act.
He evidently felt that the Congress had made a great mistake in placing the
execution of the law in the Bureau of Chemistry. Mr. Loeb, private secretary to
President Roosevelt, was strongly impressed that the President considered the
Chief of the Bureau entirely too radical in his views concerning the harmfulness
of preservatives. He thought the Chief of the Bureau was lacking in diplomatic
discretion. The President was undoubtedly still of the opinion that an underling
who had the temerity to appear before a Congressional committee and denounce a
presidential policy on reciprocity had few, if any, redeeming traits.

ROOSEVELT FAVORED LEGISLATION
During the progress of the campaign for pure food legislation, and especially
during the last one or two years when apparently public sentiment was
sufficiently aroused and unanimous to warrant the expectation of a speedy
successful issue, I felt that President Roosevelt was heartily in favor of this
legislation. The appearance in 1906 of Upton Sinclair Is novel entitled "The
Jungle," brought public opinion to the pitch of indignant excitement. President
Roosevelt was eagerly in quest of a law supervising the packing of our animal
food products. The time of the session was so nearly at an end, that it seemed
hopeless to bring in a meat inspection bill as an expansion of the food and
drugs bill. It was deemed best, therefore, to try to engraft the meat inspection
bill as a rider on the agricultural appropriation measure. I am not aware
whether at that period it was a violation of the rules to introduce legislation
on an appropriation bill; at the present time it is. At any rate, a rider
satisfactory to the President was offered to the appropriation bill in the House
of Representatives. It was not adopted, however, except after serious mutilation
of the measure. The chairman of the House Committee on Agriculture, Mr.
Wadsworth, thought the offered measure was too drastic and uncalled for by those
engaged in our meat industry. President Roosevelt was greatly disturbed at the
changes made in the measure, but was powerless to prevent such modification as
the House Committee on Agriculture thought desirable. It is not quite certain
whether the Agricultural Appropriation Bill carrying these meat inspection
provisions became a law prior to, or subsequent to the food and drugs act. Only
a search of official documents could determine this fact. Nevertheless, it is a
matter of some importance, for if the appropriation of the Department of
Agriculture was approved subsequent to the approval of the food and drugs act,
any disagreements between the two acts would be construed by the courts in favor
of the later bill. In point of fact, no effort whatever was made by the Bureau
of Chemistry to enforce any provisions of the meat inspection law. The reason
for mentioning these matters here is because President Roosevelt's intense
interest in the meat inspection bill seemed to obscure, at least for the time
being, any interest he had in the food and drugs act.
I had the good fortune to know somewhat intimately two or three of the
newspaper men who had the ear of the President and I learned from them that the
President's interest in the food and drugs act was genuine and unreserved.
Particularly I knew well Harry Needham, intimate associate of the President. Mr.
Needham subsequently met an untimely death in an accident in an aeroplane in
Paris. As was recited in the chapter on "What is Whisky," I learned from Mr.
William Loeb, the President's private secretary, his great interest in that
matter. This was subsequent to the passage of the food and drugs act.
I had close relations also to two other men who had more or less free access
to President Roosevelt. These were Mr. Mark Sullivan and Mr. Robert M. Allen. I
have secured interesting data from each of these gentlemen in regard to
President Roosevelt's interest in the passage of the pure food bill. Mr. Allen
has furnished me with the following data, which I have permission to quote. he
says:
"I do not believe that President Roosevelt had shown any interest in the
pure food law prior to 1905. 1 feel without any doubt that Roosevelt sincerely
and earnestly supported the passage of the act after his message to Congress
in December, 1905. When he took this stand it was characteristic of him to
back it. Hapgood, Sullivan, Needham, and Gilson Gardner were close to the
President, as was also Dr. Abbott, editor of The Outlook.
"The White House had a strong influence on their activities for the bill.
Needham told the Dalzell story at the time it happened. If it is true, and I
believe it was true, Roosevelt's statement to Cannon that he would call
Congress into extra session if they did not pass the food bill, was one of the
decisive factors in bringing the bill to a vote in the House. There are so
many people, like the writers that I have mentioned, so earnest in their
feeling that Roosevelt strongly supported the passage of the Act from the fall
of 1905, that I do not want you to make any mistake in this matter in your
memoirs. You have a big and important message to get over. The country needs
it."
I have the following statement from Mr. Mark Sullivan, also :
"I cannot say that I have any positive recollection of ever having
discussed the pure food bill specifically with President Roosevelt. I did
discuss it very often with Harry Needham and with R. M. Allen. I also did
discuss it occasionally with yourself, as you will remember. Based on my
recollections of conversations I had with Needham and Allen, my strong belief
is that Roosevelt not only believed in the Pure Food Bill but was energetic in
getting it passed. It is true that the pure food bill.and the railroad rate
bill were before Congress during the same session. I think it possible, or
even likely, that Roosevelt's major interest was in the railroad rate bill,
because at the time that was the great controversy; but I have recently been
over the records sufficiently to show that Roosevelt gave powerful aid to the
pure food bill."
Mr, Sullivan then discusses another overlapping and supplemental measure, the
meat inspection bill.
To continue the quotation:
"That Roosevelt threw immense energy into the meat inspection rider there
can be no doubt whatever. In effect the one went with the other. Roosevelt's
pressure for the meat inspection bill is proved by scores of documents and
publications in old newspaper files. The two bills, the pure food bill and the
meat inspection rider, went through the lower house substantially on identical
dates. Everybody thought of the two as one."
To this I wish to add my own recollection and impression at the time. I was
fully convinced that although Mr. Roosevelt came into action late in the fray he
was enthusiastic and earnest in his support of the pure food and drugs act. It
was not until nearly five years later that I had any intimation whatever that I
was wrong in this opinion. I did feel that I was under a serious handicap at the
White House by reason of my opposition to Cuban reciprocity.

HON. JAMES R. MANN
Leader in the House of Representatives for the enforcement of the Food Law

Two important statements were made to me in 1912, after my resignation from
the Bureau of Chemistry. Mr. James R. Mann, leader of the final fight in the
House for the food bill, thought the President not only was indifferent about
the matter, but considered the measure the work of impractical cranks. Mr.
Roosevelt made a similar statement in a letter published in a Kansas paper at
that time. Senator Heyburn, who led the final fight in the Senat% showed me a
letter written to him by Mr. Roosevelt while the bill was under discussion,
begging him to cease his efforts for such an impractical measure, and aid him in
passing a bill to restore to the Naval Academy three students who had been
dismissed for drunkenness. Even if it be granted that the President favored the
food bill, it is perfectly clear that he took the most active part in pre
venting the Bureau of Chemistry from enforcing it.
ORIGIN OF THE WHITE HOUSE PREJUDICE
The prejudice which the President had against the Chief of the Bureau of
Chemistry was most pronounced. It arose early in his administration when he was
urging Congress to pass the law remitting part of the duties on imported sugar
coming into this country from Cuba. I have no desire to criticize the President
for his attitude in this matter. At that time the planter and manufacturer of
sugar in Cuba scarcely got a cent a pound on his product. All the nations of
Europe producing beet sugar were paying large bounties on beet sugar when it was
exported. The result was that practically all the sugar consumed by Great
Britain, which was one of the great sugar consuming countries of the world was
cheapened by bounties paid by France, Germany, Belgium, Russia and Austria on
exported beet sugar. Sugar was so cheap in London that the makers of cane sugar
in the West Indies had lost the greater part of their trade. At the time (1902)
the United States was considering the subject of a rebate of import duties on
sugar to Cuban planters a congress called by beet-sugar producing countries in
Europe was sitting in Brussels considering the question of abolishing export
duties on beet sugar. Sereno E. Payne of New York was chairman of the House
Committee on Ways and Means before which the question of rebate on Cuban sugar
was under consideration. I was very much embarrassed on receiving a summons to
appear before that committee. I had no sympathy with the proposed legislation. I
had devoted many years of study to the domestic sugar problem, in investigating
the possibilities of extending our domestic production from sorghum, sugar beets
and sugar cane. I was naturally a high protectionist on sugars imported from
abroad. I went to the Secretary of Agriculture and explained to him that I was
opposed to this legislation but that I did not want to appear in opposition to
the President's plan. I asked him to communicate with Chairman Payne and have
him withdraw the summons. The Secretary said:
I am just as much opposed to this legislation as you are but being a member
of the President's cabinet I can not say anything; I think the committee ought
to know the truth about this matter. (Quoted from memory.)
I replied that I also thought they ought to know the truth, but that I didn't
see any difference between his telling them the truth and 1, who was only one of
his assistants. The result was, however, that I had to appear before the
committee. I was two days in giving them the data which to my mind clearly
disclosed that the trouble in Cuba was not due to our import tax, but to the
giving of bounties in Europe on exported beet sugar. I quote from the hearings
of the Ways and Means Committee.
"It follows as a logical conclusion, therefore, that the people who come to
this committee for relief from the low price of sugar should strike at the
true cause, not the false one, of the evil of which they complain. * * * Their
cause should be pleaded in the Parliaments of Europe, not in that of America;
their plaints should go before the Reichstadt, Bundesrath, and the Corps
Legslatif, and not before the American Congress. The place to plead their
cause is before the Congress of Brussels, not before the Ways and Means
Committee of the Congress of the United States. "

RECIPROCITY WITH CUBA
THE COLLOQUY WHICH UNDID ME
(Hearings Before Committee on Ways and Means, Fifty-Seventh Congress, First
Session, Wed., January 29, 1902, Page 572)
MR. RICHARDSON: You have read the report of the Secretary of War?
DR. WILEY: Yes, Sir.
MR. RICHARDSON: And the recommendation of the President?
DR. WILEY: Yes, Sir.
MR. RICHARDSON: And General Wood?
DR. WILEY: I have not read that, but I have heard of it. I have read the
other two, however.
MR. RICHARDSON: You do not agree with them in the recommendations in respect
to the treatment of Cuba on this question?
DR. WILEY: I do not.
MR. RICHARDSON: I ask you this, doctor, for this reason: Do you contemplate
remaining in the Agricultural Department? Is that your ideal (Laughter.)
You need not answer if you do not wish. I ask simply because I have heard
that you did not.
THE CHAIRMAN: You need not answer that question, doctor.
MR. RICHARDSON: Not unless he wishes to.
MR. HOPKINS: I do not think that is proper.
MR. RICHARDSON: I do not want him to answer it unless he is willing to do so.
MR. ROBERTSON: That has not anything to do with the case.
MR. RICHARDSON: The object of my question is just this, Mr. Chairman, as I am
frank to state, and he need not answer it if he does not wish to do so: I have
understood that the doctor contemplated leaving the Agricultural Department and
going into the sugar-beet industry. Whether that is true or not I do not know.
DR. WILEY: It is the very first I have heard of it. (Laughter.) Mr. Chairman,
it is the first intimation of the kind I have ever had. I thought the gentleman
implied that I would be removed because I did not agree with the Secretary or
the President. (Laughter.)
As I left the committee room, a famous artist, Mr, Augustus C. Heaton, who
had been in attendance, handed me the following rhyme:
"A chemist both learned and witty
Came before a sugar committee,
And O such statistics and learned linguistics
He poured upon Recipro-city."
As it turned out it was no laughing matter.
The result of my testimony was what I had anticipated. President Roosevelt
was furiously angry. He sent at once for Secretary Wilson and ordered him to
dismiss immediately that man Wiley. The Secretary pleaded for my life,
explaining that I did not go up there willingly, but had earnestly tried to have
my subpoena recalled. The President relented and said to let it go this time,
but to tell Wiley never to do Such a thing again. The result was that I never
was a favorite at the White House as long as Roosevelt was president. I was not
surprised, therefore, to find that he took the lead in so limiting the
activities of the Bureau of Chemistry as to deprive the Chief of that Bureau
from performing the functions placed upon him under the law.

HISTORY OF A CRIME AGAINST THE FOOD LAW
CHAPTER VIII: THE UNITED STATES PHARMACOPOEIA
by Harvey W. Wiley, M.D., the very first commissioner of the Food and Drug Administration (FDA), then known as the “US Bureau of Chemistry.”

The United States Pharmacopoeia is a book prepared by a national organization
chosen by the medical and pharmaceutical colleges and societies of the country.
This organization meets once in each ten years. The principal object of these
decennial conventions is to appoint a committee for revising the United States
Pharmacopoeia. At the Convention which assembled in Washington in 1910, much to
my surprise, I was elected president of the Convention for the decennial period
ending in 1920. Ex officio I became a member of the committee on revision. The
food-law specifically recognizes the United States Pharmacopoeia, both as to the
standard of quality of the remedies described therein and the methods of
analysis by which the purity of remedies is established. Its activities,
therefore, are specifically prescribed by the Congress of the United States as
one of the methods of administering the Food and Drugs Act. Essential oils are
frequently standardized and prescribed in the Pharmacopoeia. I was allowed to
select the particular part of the revision work over which I was chosen to
preside. I had for several years, on account of essential oils being
agricultural products, collected and studied large numbers of these bodies. This
work was assigned to the committee studying essential oils. I was very much
surprised, therefore, to receive from the Secretary of Agriculture a written
statement for the amount of time consumed in these investigations and the
probable expense to date of the work done. Any one who is interested in the
further details of this remarkable request will find them recorded on page 808
and following of the proceedings of the Moss Committee.
The methods of analysis and the standards of purity of drugs prescribed by
the Pharmacopoeia are specifieally adopted by the Food and Drugs Act. The
regulations enacted for the enforcement of the Food and Drugs Act are as
follows:
Unless otherwise directed by the Secretary of Agrieulture, the methods of
analysis employed shall be those employed by the Amociation of Official
Agricultural Chemists and the United States Pharmacopoeia.
I made the following statement to the committee:
I may say, Mr. Chairman, that never in the history of the Pharmacopoeia has
such pains been taken to make it as perfect as possible. In view of the fact
that Congress has made it the official standard of drugs and medicines, the
present committee is taking special pains to get all the information possible
to make the new edition as useful as possible, for the purpose of securing
purity of drugs in this country.
During my absence from the city I was informed by the Secretary of
Agriculture on June 15 that Dr. Dunlap had told him he had information that work
was going on in the Bureau of Chemistry in the revision of the Pharmacopoeia.
When Dr. Dunlap appeared as a witness before the committee he was asked:
"What are your duties as associate chemist?"
He replied: "I have none."
Evidently he was mistaken. It was he who by his detective abilities
discovered that the Chief of the Bureau of Chemistry had deceived the Secretary
of Agriculture and induced him to appoint Dr. Rusby illegally. Continuing the
exercise of these Sherlock Holmes activities he discovered the Bureau of
Chemistry was doing illegal work in examining the agricultural products known as
essential oils. These were noble and important functions that somebody had to
perform. It was a great stroke of good luck that put Dr. Dunlap into the
Department for this worthy purpose. President Roosevelt deserves the gratitude
of the future for discovering and having appointed a scientist of such ethical
activities and achievements. As a result of Dr. Dunlap's activities the
Solicitor had told the Secretary that these activities of the Chief of the
Bureau were clear violations of law and the Secretary instructed me to do no
more work of any kind in connection with revision of the Pharmacopoeia. At this
same time the members of the Referee Board were paid salaries exactly as Dr.
Rusby was and had spent already several hundred thousand dollars in their
attempts to prevent the food law from being enforced. I found that the total
expense which had been incurred by the Bureau of Chemistry up to the time the
order was issued to "cease and desist" from these activities as violations of
law was exactly $55. Of all the tremendous inconsistencies in regard to illegal
expenditures in the Bureau of Chemistry in connection with the Remsen Board,
there was nothing so clearly and distinctly disclosed as the complete propriety
of the activities of the Bureau of Chemistry in securing a proper revision of
the Pharmacopoeia. This order forbidding work in the Bureau of Chemistry along
that line was still in force in 1912 when I retired from the Bureau. I do not
think it was removed during the remainder of my decennial term.
This pusillanimous persecution of itself amounts to nothing. It illustrates
the petty meanness of the environment which the Chief of the Bureau was forced
to endure for so many years. The report of the Moss Committee disclosed the
whole fabric of the net in which the enemies of the food law had planned to
enmesh those charged by law to enforce it. In regard to this matter the
following quotation from the Moss Committee's record' is illuminating:

(MOSS COMMITTEE)
Page 887-888.
THE CHAIRMAN: Did I understand you correctly in your testimony, when I was
asking questions, to say you can extend the functions of the Bureau of
Chemistry, provided it is not prohibited by law?
SECRETARY WILSON: I can use administrative discretion that is not prohibited
by law. * * * I can illustrate that by what happened at Denver. Dr. Long is a
member of the Referee Board from Chicago. There had been going through the
papers and being stated by the chemists, and so forth, that the best use to
which we could put benzoate of soda, and the use to which it generally was put,
was to preserve decaying vegetables and fruits. Dr. Long had made some extensive
investigations and reported there that benzoate of soda would not preserve
either vegetables or fruits.
THE CHAIRMAN: Did I understand you to say, in answer to Mr. Sloan, that there
was no authority in law for this pharmacopoeia work--that it was absolutely
forbidden by law to do this work?
SECRETARY WILSON: No authority.
THE CHAIRMAN: Coming back to your idea that you can extend the functions of
the Bureau of Chemistry, providing it is not forbidden by law, would you not
have authority, under your construction, to permit Dr. Wiley to do this work if
you had cared to do so?
SECRETARY WILSON: No; administrative discretion can only be used in
furtherance of the object of the law.
Page 894-895.
MR. HIGGINS: Have you pursued, Mr. Secretary, any different policy toward the
Chief of the Bureau of Chemistry than with reference to any other chief in your
department?
SECRETARY WILSON: Not a particle. You could not understand, if you happened
to look over the transom of the door and see Dr. Wiley and me discussing one of
his new farms
MR. HIGGINS (interposing): He is also an agriculturist?
SECRETARY WILSON: He has farms, but he and I discuss them. I give him advice.
I am no chemist; but, then, he is no farmer (laughter), and so we swap
information, you know. There is one delightful thing about the Doctor: he has
humor, and unless I once in awhile get a laugh I would run back to Iowa and stay
there. The Doctor has pleasant humor, and he is a pleasant companion. If you saw
us in one of these interviews you would not believe there ever was any trouble
about benzoate of soda.
MR. HIGGINS: You discuss pleasant subjects at those interviews?
SECRETARY WILSON: Always.
MR. SLOAN: You are both bonnie Scots, are you not?
SECRETARY WILSON: I am direct, but I imagine he is tainted with the blood.
The Bureau of Chemistry was not treated like other Bureaus. Secretary Wilson
was well aware of that fact. In no other Bureau did he appoint an Associate
Chief, as he did in the Bureau of Chemistry, without ever consulting the Chief
of that Bureau. In no other bureau were funds specifically appropriated for
definite purposes used without the consent of the chief for diametrically
opposite purposes. In no other Bureau were changes made in administration
without consulting the Chief of the Bureaus involved. No other Chief of Bureau
was ever secretly tried before the personnel board, found guilty, and sentenced
to be dismissed from the service, as was the Chief of the Bureau of Chemistry.
In no other Bureau were important component parts thereof separated and put into
an independent bureau as was the case in the Bureau of Chemistry with Soils and
Investigations of Road Building Materials. While it is true that the Secretary
and the Chief of the Bureau were on friendly terms personally, the Secretary
never took the advice of the Chief of the Bureau of Chemistry on the important
matters above mentioned. In no other bureau were funds appropriated for a
specific purpose used for paying employees who were ordered to report to the
Solicitor of the Department. These are only a few of the illustrations of the
different treatment accorded to the Bureau of Chemistry.

DR. F. L. DUNLAP'S DUTIES
Page 644.
THE CHAIRMAN: Will you please state your precise duties as existing in the
department when you are not acting as chief chemist; what are your precise
duties today in the Bureau of Chemistry?
DR. DUNLAP: I am associate chemist of the Bureau of Chemistry and member of
the Board of Food and Drug Inspection.
THE CHAIRMAN: As associate chemist, what are your duties?
DR. DUNLAP: I have no duties.
THE CHAIRMAN: Then, having no duties as associate chemist, your sole duty is
as a member of the Board of Food and Drug Inspection?
DR. DUNLAP: Exactly.

Dr. Dunlap seems to forget the important office be was to perform, namely, to
see that the Chief of the Bureau did no unauthorized work to make the official
standard of drugs as perfect as possible.

HISTORY OF A CRIME AGAINST THE FOOD LAW
CHAPTER IX: THE BUREAU OF STANDARDS
by Harvey W. Wiley, M.D., the very first commissioner of the Food and Drug Administration (FDA), then known as the “US Bureau of Chemistry.”

"Under free government trade must be free, and to be of permanent value it
ought to be independent. Under our standard we do not expect the government to
support trade; we expect trade to support the government. An emergency, or
national defense may require some different treatment, but under normal
conditions trade should rely upon its own resources, and should therefore
belong to the province of private enterprise."--President Calvin Coolidge,
address to the Pan American Commercial Congress; The Nation's Business, May
20, 1927.

STICKING TO THE BASE
In the great national game, theft is an important element of success. The man
who reaches first must stick to his base as long as the first baseman is at the
sack. When the first baseman goes off to quite a distance, the runner leaves his
place of safety and goes as far as he dare toward second. He must keep a keen
eye, however, as either the catcher or the pitcher may return the ball to the
first baseman, who has crept up unawares, and the runner is "out." If the
basestealer is put out he is booed; if he succeeds he is wildly cheered.
In general it is the first principle of safety to stick close to your base.
An army that leaves its base too far may run into danger. Its supply of
provisions and munitions may be cut off. The enemy may send an armed force to
cut off retreat.in case of defeat. Upon the whole, sticking to one's base is not
only considered a mark of good judgment, but often of honesty of purpose in
fulfilling the duties imposed upon a player. Stealing bases in scientific
matters is quite another story.

RISE OF BUREAUCRACY
While the bureau is an important element in Government activities, it also
affords an opportunity for ambitious directors (and all directors should be
ambitious) to leave the base on which they are supposed to stay. I do not except
even the bureau over which I presided for nearly thirty years from having at
various times had attacks of this grasping disposition. The Honorable Frank A.
Lowden says, in World's Work, December, 1926:
"The Government official is inclined to exaggerate the importance of his
office. He is constantly endeavoring to expand its scope. He is properly
jealous of his authority. * * * I think that this tendency is inevitable. * *
* Where, however, the enterprise is a vast one, as in Government, or as in a
great business organization, these tendencies, if left uncontrolled, are
likely to inflict serious injury upon the service. * * * The original purpose
of the creation of the Bureau is finally lost sight of and it is likely to
seem to those who direct it an end and not a means."
It would be well to add to the warnings of President Coolidge and Governor
Lowden in regard to mixing up business with Government, the opinion also of
another expert along the same line. Mr. Merle Thorpe, editor of Nation's
Business, published under the auspices of the National Chamber of Commerce, made
this interesting statement before the National Association of Real Estate Boards
held (Sept. 18, 1927) in Seattle, Washington. The title of his address was "From
Bottom Up or Top Down."
"Because of our failure to do things for ourselves, we are calling upon the
government to do everything under the sun. Statute books are groaning.
Regulations are myriad. Bureaus and commissions spring up overnight. Taxes are
mounting, and naturally, because every one of the laws we put upon the statute
books requires administration and more people on the tax payroll. To-day it is
estimated that each ten families in the United States feed and keep another
family on the tax payroll. Two months' production of each man, woman, and
child, out of the twelve, now go to keep up the tax payroll.
"'Let the Government do it!' is our favorite panacea. Of course, the
politicians do not object. In fact, there have been occasions where they have
been known to encourage legislation and join in the national anthem, 'There
ought to be a law--'
"The waste and inefficiency and mounting costs, however, are not the
greatest penalties we pay for doing the nation's work from the top down. Most
of the legislation is directed at business and business is no longer the
simple act of trade and barter it once was. It has become most complex.
Business is so interrelated, so interdependent, that a law regulating this
industry reaches out and out and affects scores of us thousands of miles away.

"It is a wise man indeed, who can see through and through to its conclusion
a simple piece of economic legislation. We shall never know how much the orgy
of lawmaking has slowed down the legitimate task of furnishing food and
shelter and clothing, to say nothing of the luxuries of life, to those who
need and want them, but it is safe to say it has done a great deal.
"The breaking point will come. Already there have been four parliamentary
governments overthrown and dictators rule to-day. As Mussolini says,
'Democracy, with its endless talk and politics, has miserably failed.' We may
never come to that situation of dictatorship in the United States, but we may
reach a stage where democracy and its accredited representatives are
discredited. That would be disastrous, for democracy is based upon confidence.

"Disastrous, too, for it would destroy the one thing which has made this
country great, 'individual reward for individual initiative.' Every time we
ask government to do something which we as individuals, or groups, or
communities, can do better for ourselves, we are striking at that
individualism which has given us our strength."
Bureaus are either created by Act of Congress or by executive order. In the
latter case Congress must approve the executive act by appropriations for
specific purpose. By specific legislations Congress also assigns to certain
bureaus special duties which presumably can not be abrogated by executive
orders. It follows that all expansive work must lie in the scope of the bureau
and in harmony with problems already allocated.

SCIENTIFIC ETHICS
In Science, July 19, 1927, page 103, is found a proposed code of ethics for
scientific men. No. 2 of this code reads as follows:
"Exemplify in your conduct and work a courageous regard for the whole
people, and not alone some powerful and influential faction thereof with which
you come in close personal contact."
This is most excellent advice in connection with the above observations.

CHEMICAL ETHICS
The American Chemical Society has no printed code of ethics. There is,
however, an unwritten code which every member of the society is under obligation
to respect.
There are two cardinal principles involved in the unwritten code of ethics of
the American Chemical Society. The first is that no member of the society shall
seek by improper means to deprive any other chemist of his employment. The
second is that a field of investigation which is already occupied shall not be
entered by an outsider without full cooperation and agreement with the party
already occupying the field of investigation. These two fundamental principles
guide and control the relations of the members of the Society toward each other.
A much younger association of chemists, namely, the American Institute of
Chemical Engineers, has already adopted a code of ethics. Inasmuch as some of
the activities of the Bureau of Standards are essentially those of chemical
engineers, it is probable that most of the chemists in the Bureau of Standards
are members of the American Institute of Chemical Engineers. This code of ethics
is not very long but it is very pertinent. The principal elements of this code
are the following:
1st. That in all their relations, they shall be guided by the highest
principles of honor.
2nd. The upholding before the public at all times of the dignity of the
chemical profession generally and the reputation of the Institute, protecting
its members from misrepresentation.
3d. Personal helpfulness and fraternity between its members and toward the
profession generally.
4th. The avoidance and discouragement of sensationalism, exaggeration and
unwarranted statements. In making the first publication concerning inventions
or other chemical advances, they should be made ithrough chemical societies
and technical publications.
5th. The refusal to undertake for compensation work which they believe will
be unprofitable to clients without first advising said clients as to the
improbability of successful results.
6th. The upholding of the principle that unreasonably low charges for
professional work tend toward inferior and unreliable work, especially if such
charges are set at a low figure for advertising purposes.
7th. The refusal to lend their names to any questionable enterprise.
8th. Conservatism in all estimates, reports, testimony, etc., especially in
connection with the promotion of business enterprises.
9th. That they shallnot engage in any occupation which is obviously
contrary to law or public welfare.
10th. When a chemical engineer undertakes for others work in connection
with which he may make improvements, inventions, plans, designs, or other
records, he shall preferably enter into a written agreement regarding their
ownership.
The 4th, 7th, 8th and 9th sections of the above code of ethics are not
italicized in the original.

PURPOSE OF ESTABLISHING THE BUREAU OF STANDARDS
The object of establishing the Bureau of Standards is luminously set forth in
the hearings before the comittee on weights and measures and in the debates in
Congress on this measure.
I desire to call attention to a bureau in which it appears that the desire to
get control of all forms of activities has developed into a megalomania, and to
point out some of the crimes it has committed or attempted to commit against the
battered and bleeding food law.
Professor Edward Murray East, eminent biologist of Harvard University, says:
In our most cherished beliefs, from the earliest ages to the present, there
is a great deal to justify the opinion of the cynic that man is to be
distinguished from the apes not by his lack of a tail, but by his megalomania.
Since becoming the dominant animal on the surface of this cosmic atom, he has
never, until recently, had the slightest doubt concerning his supreme
importance in the general scheme of things.
I am not looking into the activities of the Bureau of Standards in any way
which would reflect upon any member of the Bureau, either as to his capacity and
ability, or as to his honesty. I assume, and I believe the disease of
megalomania is to some extent epidemic; it attacks people against their desire
and will. We do not lose our esteem for those who are ill of influenza or high
blood pressure. We might attach some personal blame to those who suffer from
typhoid fever. We should regard megalomania as a sad misfortune.
It is not in any way my purpose to review all the expansive activities of the
Bureau of Standards. I will confine my remarks to those activities which affect
scientific ethics, public health, and adulteration of foods.
The Bureau of Standards was intended to be a natural enlargement of the old
office of Weights and Measures. This office for some mysterious reason was
connected with the Department of the Treasury. The enlargement of the office and
its change of name to the Bureau of Standards was first publicly suggested by
the Secretary of the Treasury, the Hon. Lyman J. Gage (50th Congress, first
Session, House of Representatives, Document No. 625.) The general purpose of the
new Bureau is outlined by the Secretary of the Treasury in the following
language:
The functions of the bureau shall consist in the custody of the standards;
the comparison of the standards used in scientific investigations,
engineering, manufacturing commerce, and educational institutions with the
standards adopted or recognized by subdivisions; the testing and calibration
of standard measuring apparatus; the solution of problems which arise in
connection with standards; the determination of physical constants, and the
properties of materials when such data are of great importance to scientific
or manufacturing interests and are not to be obtained of sufficient accuracy
elsewhere.
Under the head of conditions which necessitated the establishment of a
National Standards Bureau the Secretary makes, among others, the following
remarks:
Throughout our country institutions of learning, laboratories,
observatories, and scientific societies are being established and are growing
at a rate never equaled in the history of any nation. The work of original
investigation and instruction done by these institutions requires accurate
reliable standards, which in nearly every case must be procured from abroad,
or can not be procured at all. * * *
The recent acquisition of territory by the United States more than
proportionately increases the scope and importance of the proposed
institution, since the establishment of a government in these possessions
involves the system of weights and measures to be employed. During the near
future large public improvements will be undertaken in these countries;
schools, factories, and other institutions will be established, all of which
require the use of standards and standard measuring apparatus.
The National Academy of Sciences endorsed the movement in the following
resolution:
Whereas the facilities at the disposal of the Government and of the
scientific men of the country for the standardization of apparatus used in
scientific research and in the arts are now either absent or entirely
inadequate, so that it becomes necessary in most instances to send such
apparatus abroad for comparison: Therefore, be it
Resolved, That the National Academy of Sciences approves the movement now
on foot for the establishment of a national bureau for the standardization of
scientific apparatus.
The American Chemical Society approved the measure:
Resolved, That the Congress of the United States be urged to establish a
national standard bureau in connection with the United States Office of
Standard Weights and Measures, which shall provide adequate facilities for
making such verification of chemical measuring apparatus and for stamping the
same as are provided by foreign governments for similar work."
Prof. Simon Newcomb, U. S. N., said:
I do not think that anything I could do or say is necessary to emphasize
the practical and scientific importance of introducing the highest standard of
efficiency and precision in the work of such a bureau.
Prof. Albert A. Michelson (head of department of physics, University of
Chicago) made the following statements:
It gives me great pleasure to indorse the measures proposed regarding the
importance of the establishment of a central bureau of weights and measures,
the functions of which shall be:
(1) The calibration of all standards and measuring instruments used in
scientific or commercial work.
(2) The investigation of problems which arise in connection with standards
or standard measuring apparatus.
(3) The determination of physical constants and the properties of
materials.
A large number of eminent scientists joined in the same general way in urging
the enactment of the measure. Wherever reference was made to foreign
institutions they were institutions for standardizing weights and measures of
various kinds in all the different countries.
When the measure went before the Senate (50th Congress, Second Session,
Document No. 70), the Secretary of the Treasury appeared also before the Senate
Committee. Among other reasons which he advanced are the following:
In this particular of standardizing weights and measures and testing
apparatus of every kind the older countries are far ahead of us; in fact, it
may be said that there is no comparison between us. We are dependent utterly
upon Germany, perhaps France to some extent, and England for our measurements
and those standards which we are obliged to resort to in testing and comparing
when we enter into competitive work against them. * * *
Now the establishment of a bureau like this, where the Government is the
custodian and the originator of these standards of weights and measures as
applied to all the higher scientific aspects of life which we are so rapidly
developing in, has, to my mind, a value far and above the mere physical
considerations which affect it, although those physical considerations are
fundamental and most important. Nothing can dignify this Government more than
to be the patron of and the establisher of absolutely correct scientific
standards and such legislation as will hold our people to faithfully regard
and absolutely obey the requirements of law in adhesion to those true and
correct standards.
Before the Senate, as was recorded in the document above mentioned, many
scientific men appeared and all in the same strain stressing the importance of
standards of accuracy for all kinds of weights, measures and instruments of
precision. Among those was Mr. 0. H. Tittmann, Superintendent of the United
States Coast and Geodetic Survey, and Professor H. A. Rowland of Johns Hopkins
University.
The Association of Official Agricultural Chemists adopted the following
resolution:
Resolved, That the Association of Official Agricultural Chemists most
heartily indorses the movement in progress for the establishment in this
country of a national standardizing bureau, and hereby declares that the
absence of facilities such as would be provided by the proposed bureau has
seriously hampered the work of this Association, owing to the difficulty of
obtaining in this country, with official certificates of accuracy, the flasks,
burettes, pipettes, weights, thermometers, polariscopes, and other apparatus
needed in the work of official chemists. The use of apparatus which bears the
official stamp of the Government would eliminate one element of dispute in
commercial analyses, thus preventing the expense of litigation, and would, in
general, increase the value of the work of this Association by facilitating
the attainment of uniform results.
Not only were scientific men all over the country interested in the
establishment of standards invited to give testimony, but the heads of
departments in which scientific work was carried on were also asked their
opinions respecting the proposed legislation. The Secretary of Agriculture asked
the head of the bureau most interested to prepare his paper. Mr. Southard, in
introducing the discussion in the House said:
Mr. Speaker, the functions of the present office of weights and measures
are confined to the ordinary measurements of mass, length, and capacity. That
was sufficient, perhaps, when that office was established. In the early days
the standards in question were the pound, the yard, the bushel, and the
gallon. Now, however, the progress of science and the complexity of industrial
processes resulting from it require derived standards of a thousand and one
kinds--all kinds of measuring apparatus--volumetric apparatus used in the
chemical laboratories of the Government and similar laboratories all over the
country--standards of measurement for high and low degree of temperature, etc.

I must stop here to indicate some of the different kinds of measuring
apparatus. They are barometers, thermometers, pressure gauges, polariscopes,
instruments of navigation, steam-engine indicators, and instruments of a
thousand different varieties. That the graduations and indications of these
instruments should agree with the fundamental standards is a question of most
vital importance, and without the facilities for such tests and comparisons
the public is deprived of the greatest benefits to be derived from the
standards recognized by the Government. We have in this country to-day no
means of testing these different instruments of precision. The result is, we
have to send them to Germany or France or England or somewhere else to have
them tested and calibrated.
The bill has been enthusiastically indorsed by all the heads of Department of
the General Government having scientific bureaus, as well as by all the chiefs
of such bureaus. As furnishing an illustration of the necessity and value of
this proposed bureau to the General Government, I will quote from the statement
of the Secretary of Agriculture:
"I have the honor to acknowledge the receipt of your letter of April 24,
and beg to assure you that the establishment of a national standardizing
bureau, having the function outlined by you, will be of the highest value and
importance, not only to the scientific bureaus, offices, and divisions of this
Department, but to the country at large. Its influence will be felt wherever
the quality and value of substances are fixed by chemical and physical tests,
whether this be in connection with scientific investigations, in connection
with manufacturing and other industrial processes, or in connection with
commercial transactions.
"Speaking for this Department alone, I wish to say that it has been our
policy to patronize the American manufacturers of scientific apparatus
whenever practicable without hampering our investigators by compelling them to
use apparatus of an inferior grade. The art of the construction of scientific
apparatus has been brought to such a high degree of perfection under the
fostering care of European govemments--notably Germany--that we have been
compelled to send abroad a large proportion of our orders, either directly or
indirectly, through importers. The greatest disadvantage resulting from this
state of affairs is not the delay, inconvenience, and expense connected with
making purchases abroad; nor is it to be found in the danger of injury to
delicate and expensive apparxtus during transportation across the sea.
"It is the necessity of importing the certificate of a foreign government
whenever an official certiflcate of accuracy is desired with apparatus. In
Germany an order can be issued for apparatus with the specification that the
goods delivered must be of the quality and accuracy recognized by the
regulations established by the standardizing bureaus of the Imperial
Government. Apparatus made in accordance with these regulations are regular
commodities, and are described in the catalogues of all the apparatus makers
and dealers. When the goods are received the purchaser is able to send a
proper proportion of the shipment to the government standardizing bureaus and
base his acceptance or refusal of the goods upon the results of the official
tests. For the accommodation of customers who need certified apparatus for
immediate use most of the dealers keep in stock apparatus bearing the official
stamp.
"The disadvantage under which American scientific workers--notably
chemists--labor is evidenced by a recent experience of the Division of
Chemistry of this Department. The confusion of standards and carelessness
which has characterized the manufacture of graduated chemical glassware in the
past is notorious. Some months ago the Division of Chemistry issued to an
American dealer and importer an order for graduated glassware, to be made in
accordance with the regulations of the German Imperial Testing Commission.
"While all this apparatus was to fulfill the requirements in point of
construction and limits of error in graduation of the regulations named,
certain pieces were to bear the official stamp of the Imperial commission. At
the special request of the American dealer to whom the order was sent
permission was granted to import only the pieces of apparatus requiring the
official stamp and to supply for the remainder of the order apparatus of
American manufacture, but made in accordance with the regulations named. After
considerable delay the goods were delivered. The certified pieces were
eminently satisfactory; the uncertified ones were quite the opposite. They
were unsatisfactory both in the form of construction and in regard to
accuracy.
"As an example of the degree of inaccuracy, it may be stated that a flask
marked to contain 100 cubic centimeters was found to contain 100.3 cubic
centimeters. I do not believe that this experience was due to unworthy motives
on the part of either the manufacturer or dealer. This experience is simply
the result of the absence in this country of any well-established and
authoritative standards governing the forms of construction, the system of
graduation, and the allowable limits of error for apparatus of this kind. The
mere adoption of regulations relative to the character of apparatus admissible
for stamping by a national standardizing bureau will cause a revolution in the
apparatus manufactured and give to it that highly important quality,
uniformity.
"As a further illustration of the great desirability of such an
establishment, I may call your attention to the contention which has arisen in
the courts in the United States in the last few years concerning the
regulations prescribed by the Treasury Department governing the polarization
of imported sugars. These regulations were prepared by a joint commission
consisting of the Chemist of the Department of Agriculture as chairman, a
representative of the Coast and Geodetic Survey, Office of Weights and
Measures, and the Chemist of the Bureau of Internal Revenue.
"The regulations were based upon the most careful scientific determinations
and the apparatus and utensils employed by the customs-house officers
standardized by the Office of Weights and Measures of the Coast and Geodetic
Survey. Nevertheless, the accuracy of these officials has been called into
question by the importers, and the question is now the subject of expensive
and tedious litigation. The existence of such an office of your Department as
you propose to establish would have avoided all sueh trouble by the weight of
its authority. This is only one of the many instances where the utility of
such a bureau would prove of practical advantage to official operations."
It is not because of any desire to claim credit for supporting the campaign
to establish the Bureau of Standards, but for other reasons which are important
that the Chief of the Bureau of Chemistry at the time mentioned desires to state
that he was the author of the letter signed by the Secretary of Agriculture.
It is a matter of some interest to know that the importers of sugar paid
import duties under protest according to the regulations above cited. The case
finally reached the Supreme Court. The Chief of the Bureau was asked by the
Solicitor of the Treasury to write the scientific part of the brief before the
Court. It was unanimously decided in favor of the Government. Nearly a million
dollars were saved by this decision. It would be illuminating to cite many other
cases but the records of the discussion of this bill are all on file and those
who are interested in the matter can find them in the references given. The
Congressional Record of Feb. 1, 1901, pages 1793 to 1795, and March 2, pages
3473 to 3478 in the House; and 3487 and 3515 in the Senate may be consulted.
The wonderful unanimity of scientific men in support of this measure is best
illustrated by the words of Mr. Southard's address on page 1794 of the Record
above referred to:
Shortly after the reference of the measure to the Committee on Coinage,
Weights and Measures that committee received a deluge of indorsements, most
commendatory in character. They came from almost every Department of the
Government and from the different bureaus in the various Departments. They
came from the governors of States and from the departmental officers in the
States. They came from scientific bodies, from scientific men, and from
associations of scientific men. They came from men engaged in educational
pursuits everywhere. They came in the form of resolutions adopted by the
faculties of universities and colleges throughout the country. They came from
the great railroad corporations, many of which maintain, as gentlemen know,
chemical laboratories in connection with the operation of their roads. They
came from the great iron and steel industries of the country and from the
manufacturers of electrical machinery and appliances, and they came from
agricultural associations and from other sources. In other words, they came
from almost everywhere. and I may say that these were no mere perfunctory
indorsements, but were characterized by a remarkable zeal and earnestness,
indicating clearly and strongly the desire, in this connection, of the people
making them.
The attitude of all these supporters of this measure, who practically
represent all the scientific men of this country interested in physics and
chemistry, shows that they all understood the bill exactly the same way; it was
to be a real bureau of standards, of all weights and measures. There was no hint
of extending the functions of this bureau to standards of purity of foods,
drugs, soaps, or anything else; nor was there the least hint of the Bureau of
Standards engaging in manufacturing, or promoting manufacturing in any way
except by furnishing accurate standards of measurements for all the processes
that go on under the guidance of accurate measurements in official industrial
and commercial activities. To invade the domain of agriculture and to furnish
plans for building dextrose manufactories were never even suggested.
Rarely has any topic been presented to Congress in which members of the
committees considering the measures, and witnesses brought before them, and
speakers on the floor of each house, have shown greater unanimity than was
exhibited in connection with the establishment of the Bureau of Standards. The
character of the work was fully understood by all participants in these
discussions. The standards which were to be established were those in every case
of precision and accuracy for the use and enlightenment of all parties needing
standards of measurement of all kinds. Only one witness, Professor Rowland, saw
in the wording of the proposed act any possibility of departing in the
activities of the bureau from the basic purpose for which it was organized.
Professor Rowland, with that keen sense of accuracy and definiteness for which
he was so renowned, pictured some future Director, who, by misinterpreting the
spirit, and also the words of the act, might proceed to explore fields of
investigation entirely foreign to its purpose. In his testimony before the
Committee of Coinage, Weights and Measures, Professor Rowland made the following
suggestion:
There is one point that is left out in this bill, and I do not see how it
can be covered, and that is with regard to the kind of standards that are to
be adopted. Shall the director of this standardizing bureau have the right to
introduce any standards he pleases, or shall they be more carefully defined?
Many of the activities of the Bureau of Standards illustrate the prophetic
wisdom of Professor Rowland's foresight. As an illustration of how far the
Bureau of Standards has departed from its base, a few quotations from the budget
submitted for the fiscal year 1928 will show.
THE BUDGET FOR 1928
(Page 369) For structural materials, such as stone, clays, cement, etc.,
and for collecting and disseminating approved methods in building, planning
and construction, economy in the manufacture and utilization of building
materials and supplies, and such other matters as may tend to encourage,
improve and cheapen construction and housing.
For the authority to do this the original Act of March 3, 1901, is quoted.
(Page 371) For investigation of fire-resisting properties of building
materials and conditions under which they may be most efficiently used, and
for the standardization of types of appliances for fire prevention.
The original act is also quoted as authority for this investigation:
(Page 375) "To study the methods of measurement and technical processes
used in the manufacture of pottery, brick, tile, terra cotta, and other clay
products, and the study of the properties of the materials used in that
industry." The original Act is again cited.
(Page 376) "To develop methods of testing and standardizing machines,
motors, tools, measuring instruments,. and other apparatus and devices used in
mechanical, hydraulic, and aeronautic engineering. " The original Act is
cited.
(Page 377) "To investigate textiles, paper, leather and rubber, in order to
develop standards of quality and methods of measurement." Original Act cited.
(Page 380) "For investigating the conditions and methods of use of scales
and mine cars used for weighing and measuring coal dug by miners for the
purpose of determining wages due and of conditions affecting the accuracy of
the weighing or measuring coal at the mines." Original Act quoted.
Again on the same page: "For metallurgical research, including alloy
steels, foundry practice and standards for metals and sand; casting, rolling,
forging, and the properties of aluminum alloys; prevention of erosion of
metals and alloys; development of metal substitutes; as for platinum;
behaviour of bearing metals; preparation of metal specifications;
investigation of new metallurgical processes and studies of methods of
conservation in metallurgical manufacture and products; investigation of
materials used in the construction of rails; wheels, axles, and other railway
equipment; and the cause of their failure." Again the original Act is cited.
(Page 381) "For laboratory and field investigations of suitable methods of
high temperature measurements and control in various industrial processes, and
to assist in making available directly to the industries the results of the
Bureau's investigations in this field." Same Act is cited.
(Page 382) "For the investigations of the principles of sound and their
application to military and industrial purposes." Same Act cited.
(Again on the same page) "For technical investigations in cooperation with
the industries upon fundamental problems involved in industrial development
following the war with a view to assisting in the permanent establishment of
the new American industries." Same Act cited.
(Page 384) "To enable the Bureau of Standards to cooperate with Government
departments, engineers and manufacturers in the establishment of standards,
methods of testing and inspection of instruments, equipment, tools, and
electrical and mechanical devices used by the industries and by the
Government, including the practical specifications of quality and performance
of such devices and the formulation of methods of inspection, laboratory and
service tests." Same Act cited.
(Page 388) " During the fiscal year, 1928, the head of any Departmed or
independent establishment of the Government having funds available for
scientific investigation and requiring cooperative work by the Bureau of
Standards on scientific investigations within the scope of the functions of
that Bureau, and which the Bureau of Standards is unable to perform within the
limits of its appropriations, may, with the approval of the Secretary of
Commerce, transfer to the Bureau of Standards such sums as may be necessary to
carry on such investigations."
These transferred funds in 1926 amounted to $173,250. They were used to
investigate oil pollution, radio direction for the coast guard, helium
recorders, chromium plating, corrosion, fatigue and embrittlement of duralumin,
electrically charged dust, optical glass, substitutes for parachute silk,
goldbeaters skin, storage batteries, internal combustion engines, fuels,
lubricants, photographic emulsions, stresses in riveted joints, machine guns,
bomb ballistics, rope and cordage, chemical and metallurgical tests, wind tunnel
tests of models, aircraft engines, velocity of flame in explosives, etc.
According to Industrial and Engineering Chemistry, one of the largest
publications of the American Chemical Society, the Bureau of Standards has just
completed an investigation of the suitability of caroa fiber for paper making,
also the development of suitable lubricants for glass stopcocks.
Since the publication of budget estimates, a supplemental grant of funds to
the Bureau of Standards has been submitted by the budget authorities, to the
amount of $50,000, to enable the Bureau of Standards to investigate farm wastes.
These illustrations show how in nearly all cases the Bureau has introduced the
word "standardization" or "measurement" in some way to connect these
miscellaneous investigations into everything under the skies with the original
Act. This Act is cited as authority for these universal studies which can in no
way be connected with the basic idea of the standards implied in the hearings.

DISCOVERY OF A NEW PRODUCT
In the annual report of the Bureau of Standards for the fiscal year ended
June 30, 1920, page 129, is found the first report on a commercial process for
manufacturing pure dextrose. In this report it was announced that for the first
time dextrose had been separated from a water solution. It is stated:
"Previous methods for the preparation of the pure substance have demanded
the use of alcoholic solvents."
It is stated further down on the same page:
"In carrying this investigation to a successful conclusion the Bureau has
-virtually created a new industry of great magnitude. * * * The magnitude of
the commercial possibilities of the new sugar is shown by the fact that one of
the largest corporations in the country requested the Bureau to design a large
scale experimental plant costing approximately one-half million dollars. This
has been done and the plant is now practically completed."
A careful re-reading of the original bill which was enacted into a law, fails
to find any warrant for, the architectural excursions which the Bureau of
Standards confesses to have made. Let us examine for a moment some authorities
relating to this discovery. In Industrial and Engineering Chemistry, issue of
July 10, 1924, News Edition, on page 2, Ifind the following copied from an
address made by T. B. Wagner, for many years chief chemist for the Corn Products
Company, the corporation for which the Bureau of Standards designed a
half-million dollar factory. It was on the occasion of the presentation to the
Chemists Club of New York City of a portrait of Dr. Arno Behr, for many years
chief chemist of the Corn Products Company, and one of the most eminent
carbohydrate chemists this country has produced. Dr. Wagner said, in speaking of
the earlier investigations of Dr. Behr, some Menty or twenty-five years prior to
the new discovery of the Bureau of Standards:
"It was while engaged in the refining of cane sugar that Dr. Behr turned to
a study of the chemistry of corn and while following these pursuits he
discovered a simple method of producing without the aid of alcohol,
crystallized, anhydrous dextrose of great purity and beauty. * * * That was
over forty years ago, and it is curious therefore to note the Director of one
of,the important Government Bureaus in Washington coming forth at so recent a
date as July 1, 1920 with the announcement * * * that * * * the Bureau has
shown that a pure, white dextrose may be obtained by crystallization from a
water solution and may be easily separated from the mother liquor by using a
centrifugal machine. Previous methods for the preparation of the pure
substance have demanded the use of alcoholic solvents.
Dr. Wagner adds:
"These are almost exactly the words employed by Dr. Behr in his patent
specifications of 1883. Being on the subject I will be pardoned, perhaps, for
commenting upon another discovery pertaining to the discovery of pure dextrose
and described in the same report in the following language:
'Two processes were investigated. In the one which met with almost
immediate success the converted starch liquor was boiled in a vacuum until
concentrated to 42° Baumé, and was then dropped into a crystallizer. It was
then inoculated with pure crystals of dextrose and agitated until the
crystallization was complete.'"
Dr. Wagner then continues as follows:
"That is the substance of U. S. Patent 835, 145, issued on Nov. 6, 1906, of
which I happen to be the author. "
The Bureau of Standards sent a representative to a large glucose
manufacturing company to apply the process on a large commercial scale of
operation. It is interesting to inquire whether the Bureau's process, which was
discovered about one hundred and thirteen years before the Bureau discovered it
and had been practiced in commercial production frequently, succeeded in making
the new discovery practical in the special factory costing a half million
dollars, which was built upon architectural plans supplied by the Bureau of
Standards. As we are dealing here with United States patents there is no harm in
calling names. Mr. Newkirk, who was the man sent to introduce this new process,
which was to establish a new industry on a magnificent scale, succeeded in doing
so with the knowledge he obtained in working out these plans in the Bureau of
Standards. It was not long before he resigned from the Bureau of Standards to
accept the position of chief dextrose-maker for the Corn Products Company. After
he left the Bureau of Standards Mr. Newkirk began to take out patents on the new
process of manufacture. He filed an application for a patent on Nov. 16, 1922,
and the patent was issued to him, No. 1,471,347, on October 23, 1923, and
assigned by him to the Corn Products Refining Company, a corporation of New
York. The title of the patent is "Method of Making Grape Sugar." He says in this
application:
"I have found that by making a radical departure from the methods usually
employed in the manufacture of grape sugar, a sugar of very close to absolute
purity can be produced by a process which is relatively simple and is
economically practical."
This shows, if it shows anything, that the method devised by the Bureau of
Standards wouldn't work economically. He clinched this conclusion by continuing:
" Dextrose or grape sugar of high purity has been made heretofore, but
never, so far as I am aware, on a commercial scale by methods which can be
regarded as feasible from its economic point of view."
The Bureau of Standards' own expert in this language denies that the great
discovery which founded a new industry was economically workable.
Mr. Newkirk continues his assertions of the failure of all previous
processes, as follows:
"Failure of previous experimentors to realize the importance of these
considerations accounts for the practical unworkability of many of the
processes described in the literature for manufacturing high purity grape
sugar. By accident when conditions were just right a satisfactory product
might be produced. But there was no certainty that another batch, treated in
apparently the same way, would not prove a failure. Obviously manufacture on a
commercial scale under these conditions was impossible. Other processes,
theoretically possible, have proved too expensive for commercial utility.
Hence a literature disclosing apparently repeated successful solution of a
problem, which as a matter of fact, has not prior to the present invention
received any satisfactory solution."
It seems, therefore, that the Bureau of Standards was somewhat mistaken in
having claimed to make the only discovery which put this great industry on its
feet. Either a mistake was made by the Bureau, or Mr. Newkirk has done the
Bureau of Standards a grievous wrong.
The Bureau of Standards not only claims the discovery of a process which has
created, or will create a new industry, but it specifies particularly the things
which it has discovered. Before their experiments, which evidently were carried
on immediately prior to 1920, they stated that all previous preparations of
dextrose were from alcoholic solutions. In a patent, No. 256,623, dated April
18, 1882, issued to Arno Behr, he makes the following statement:
In carrying out my process I form a watery solution of grape-sugar
containing, say, thirteen per cent. of water and deposit the same in a
suitable tank or vessel, and maintain it at a temperature of about 90°
Fahrenheit for a period of one to two weeks, or until thorough crystallization
has taken place. * * * In order to somewhat hasten crystallization, I
introduce into the concentrated solution a minute quantity of finely-divided
crystallized anhydrous grape-sugar previously prepared."
Thus it is seen that two of the discoveries of the Bureau of Standards, one,
that dextrose could be crystallized from an aqueous solution, and the other that
it could be hastened by the addition of previously crystallized dextrose, were
known and patented forty years prior to this great discovery. The fact that the
temperature should be kept up to or, above blood heat for the purpose, of making
anhydrous dextrose is clearly pointed out in the patent issued to T. B. Wagner
(No. 259,794, dated June 20, 1882). He says:
"Prior to my invention it was known that crystallized anhydride of
grape-sugar could be produced by dissolving grape sugar in strong alcohol and
crystallizing it from the alcoholic solution; but in this process it is
difficult to entirely free the resulting product from all traces of alcohol
and from an unpleasant flavor resulting from impurities contained in
commercial alcohol. My improved product,, which consists of pure crystallized
anhydrous grape-sugar, entirely free from all traces of alcohol, may be made
in various ways from water solutions of grape sugar."
The claim he makes is as follows:
"I claim as my invention a new article of manufacture, crystallized
anhydrous grape-sugar, free from any trace or flavor of alcohol or its
impurities, produced from a watery solution of grape-sugar.
In a patent issued to T. B. Wagner, No. 835,145, dated Nov. 6, 1906, the
following purpose of the invention is described:
"The object of my invention is to produce anhydrous grape-sugar from corn
or other analogous farinaceous material by a method in which the yield of
sugar is larger, its quality is purer, the time required for its production is
shortened, and the amount of labor required is materially lessened. I have
found that all of these results may be obtained by abandoning that part of the
present process which has heretofore been considered neeessary--that is
keeping the crystals during the process of generation in as quiet and still a
condition as possible, and on the contrary employing the principle of
crystallization in motion."
From the above citations it seems plain that the claims made by the Bureau of
Standards as the original discoverers of this great industry are, to say the
least, contrary to historical evidence.

ATTEMPT TO MODIFY THE FOOD LAW
While the foregoing is interesting as a sample of bureaucratic ethics it
serves solely as a background to an assault on the food law.

The most objectionable effort of the Bureau of Standards was in trying, by
the great weight of its authority as the original discoverers, to force this
product ("corn syrup")upon the American people under the guise of real sugar.

A bill was introduced into the House of Representatives by Mr. Cole, on
December 7, 1925 (H. R. No. 39), providing that the Food and Drugs Act be
amended so that the presence of dextrose in food products would not be regarded
as a misbranding and would not require any notification of its presence. The
same bill (S. 481), was introduced into the Senate of the United States by Mr.
Cummins on Dec. 8, 1925.
The Senate bill was considered by the Committee on Manufactures, beginning
Thursday, January 7, 1926. There was no very great publicity given to this
hearing and the only persons who appeared, besides the members of the Committee,
were Senator Cummins, Representative Holaday, and Representative Cole. Senator
Cummins said to the Committee:
"Introduction of that paragraph into the law would avoid the charge that
any article of food in which corn sugar is used is either misbranded or
adulterated."
Mr. Holaday said:
"Mr. Chairman, I should like to voice my approval of the measure before
you, and the feeling is somewhat general throughout the agricultural regions
of the country that this bill may be of benefit to corn producers. The fact
that the producer of goods sweetened with cane sugar is not compelled to place
anything to that effect on his label, while the manufacturer who sweetens with
corn sugar is required to mention that fact on his label, creates an unjust
impression in the minds of the people."
Representative Cole stated:
" The difference between dextrose and sucrose, a chemist has told me, is as
small as a molecule of water.
"Now what does that mean? It means that it will be used very largely,
especially in the case of sweetened fruits. You buy canned peaches, sweetened
apples, in many cases too sweet, in fact they have to put in so much cane
sugar in preserving these fruits that they become almost like a sirup. In
using corn sugar that degree of sweetness would not be obtained, but still the
preserving power would be there.
The Committee, after hearing these witnesses and no one appearing in
opposition, made a favorable report and as a result of this report the Senate
unammously passed the bill.

LEGALIZING ADULTERATION OF FOODS
When these bills came before the House, the Bureau of Standards appeared as
the chief protagonist of this effort to mutilate the Food Law. At the time the
hearings were begun on March 2, 1926, a formidable array of opponents to the
measure was on hand. Among these were Mr. George S. DeMuth, representing the
bee-keepers, the Hon. Franklin Menges, representative in Congress from
Pennsylvania, Mr. W. G. Campbell, chief of the Regulatory Service of the
Department of Agriculture, Dr. George M. Kober, .eminent physician and Dean of
the Georgetown University Medical School, and Mr. Harvey W. Wiley, farmer. Among
the protagonists of this measure was Mr. Frederick Bates of the Bureau of
Standards. Following is a brief outline of his testimony.
He said he did not feel it would ever be necessary to defend the creation of
industries of such momentousi importance, and when the Bureau of Standards
created crystallized dextrose, a carbohydrate of great food value, great
stability, great purity, and great cheapness, it was deemed a waste of time to
attempt to take out a basic patent on a subject in which the process of
manufacture requires so many individual steps. .He called attention to the fact
that the Bureau of Standards for the first time in one hundred years had
successfully crystallized manite and dextrose from.a water solution, and that is
the crux of the whole matter.
He referred to the fact that there had been, he presumed, several hundred
patents on the subject of dextrose. As an example he cited Mr. W. B. Newkirk, a
practical sugar-maker.
"He was the man I sent to the Corn Products Refining Company to perform the
first experiment, and he threw down four thousand pounds of chemically pure
crystallized dextrose after forty years of failure."
Mr. Bates grew more enthusiastic as he was questioned in regard to whether
Mr. Newkirk in his patents had mentioned any of the things discovered by the
Bureau of Standards. Like the men in Buckram, these patents "grew apace."
Finally (page 122) Mr. Bates said:
" I suppose 500 would be a conservative estimate of the number of patents
on dextrose processes now in existence. Possibly there are 1000."
These patents must have been granted in foreign countries. Very few are found
in our patent office, even including the six taken out by Mr. Newkirk after he
left the Bureau of Standards.

NUMBER OF PATENTS
A careful search was made in the archives of the patent office, aided by the
experts employed therein, to determine the number of patents issued in the
conversion of starch into other products, and particularly to dextrine, gums,
glucose and grape-sugar or dextrose. Possibly a few patents may have been
overlooked, and perhaps two or three may have been included which do not belong
to this category. A total of 64 patents treat of making dextrose or grape-sugar
from starch. It is curious to note that the greatest activity in taking out
patents was in the years 1880 to 1886 inclusive, during which time 27 patents
were issued for this purpose. This was at the time the glucose industry was
attracting public and financial attention, and naturaJly marked the era of
greatest activities and inventions.
As has already been shown, all the principal methods used, with the exception
of those covered by the patents of Mr. Newkirk, included substantially the
processes employed in all dextrose factories at that time and subsequently.
There seems to be nothing fundamentally new in any of the patents taken out by
Mr. Newkirk since his resignation from the Bureau of Standards and his
employment by the Corn Products Company. The patents taken out by Mr. Newkirk
were at first assigned to the Corn Products Company, but later ones were
assigned to the International Patents Developing Corporation, of Wilmington,
Delaware.

RELATIVE SWEETNESS OF SUCROSE AND DEXTROSE
The Bureau of Standards claims a relative sweetness for dextrose of about 75
per cent. of the sweetening power of sucrose.
Dr. C. A. Browne presented a paper to the Thirtieth Annual Conference of the
Association of Dairy, Food and Drug Officials of the United States in
Washington, October, 1926. On Page 6 of the printed proceedings I find the
following:
"Gottloeb Kirchof about the year 1806 discovered that the starch of cereal
grains from heating with acid could be converted into a crystallizable sugar.
* * * The process as originally described by Kirchof consisted in beating 100
pounds of starch with 400 pounds of water and 1-1/2 pounds of strong sulphuric
acid, boiling for a period of 25 hours with constant renewal of the evaporated
water. After clarification the neutralized mass was evaporated to a thick
syrup, set aside for several days until crystallization was complete. The
inventor, Kirchof, made the following observation :
'Although starch sugar does not have the sweetness of ordinary sugar, the
ratio of its sweetness to that of the latter being only 1 to 2-1/4, it can
nevertheless replace cane sugar for many purposes.'
Dr. Browne continues (page 11)
"Certain advocates of 'corn sugar' have employed, as their measurement of
its sweetness, the recently determined value of Biester, Wood and Wahlin for
pure anhydrous dextrose which is 74.3 per cent of the sweetening power of
sucrose. . This value is much higher than any reported by previous
investigators. The values in the literature for the sweetness of anhydrous
dextrose range from 40 to 74.3 per cent, the variations being due to the
differences in the methods of determination and to differenes in individual
taste perception. In such cases the only legitimate procedure is to take the
average of the results of all observers and this average, including the very
high figure of Biestor, Wood and Wahlin, for the nine determinations which I
have found in the literature is 54.4 per cent. This value when corrected for
the 8.43 per cent of water in 'corn sugar' gives a true value of 49.81 per
cent for the sweetness of the product as compared with sucrose. In other words
'corn sugar' is only about one-half as sweet as cane and. beet sugar and twice
as much of it must be used in food products as of cane or beet sugar, if the
same degree of sweetness is to be obtained.
This discussion of the subject by Dr. Browne is in strict conformity with
scientific ethics and leads to a conclusion entirely different from that assumed
by the Bureau of Standards. If dextrose is used for sweetening purposes, twice
as much of it is required as.for ordinary sugar. If it is used as a, filler,
that is an adulterant, the more you put in the better the purpose of its use is
secured. This is the kind of sugar which the committee decided, chiefly under
the influence of the Bureau of Standards, was the proper thing to offer the
American consumer without notice of its presence. What a remarkable change from
the attitude of the members of the Interstate and Foreign Commerce Committee at
the present time to that which characterized their deliberations in 1906!

CAN OTHERS DO IT?
The following question was propounded to Mr. Bates, Page 127. Hearing, before
the Interstate Commerce Committee:
Is it possible for any one else to produce corn sugar that you know of now,
profitably, that is this crystallized dextrose sugar without using the process
that was perfected .in your laboratory and subsequently patented by the men
that represent you?" To which Mr. Bates answered, "Yes."
Another embarrassing question is found on page 130;
"Right here let me ask, was your study of dextrose instigated by the Corn
Products Refining Company?" to which Mr. Bates replied, "Oh, no, they had
nothing whatever to do with it."
Evidently, however, the first mass experiment made by the Bureau of
Standards' process was not made in the Bureau at all. On the same page Mr. Bates
said:
"Our contribution was to demonstrate to the world that a man could take
ordinary sugar-making machinery and throw down pure crystallized dextrose on a
factory scale. We made 4000 pounds on the first experiment."
On the same page the question was asked:
"The Corn Products Refining Company had been unable to do that?"
To which Mr. Bates replied:
"They.had spent about $6,000,000 in effort to make dextrose. They had built
one factory in Chicago costing $1,500,000 and had abandoned it many years
before, after attempting to operate it. for a year or two."
Mr. Bates finally acknowledged that dextrose is not a new sugar, and in
answer to a question he said:
"There is nothing new in the product. It is a new sugar in the sense that
after forty years of failure by the anufacturers who are interested in utilizing
corn we have sueceeded in throwing down the material from water solutions."
The fact is that Kirchof in 1806 described the process and Dr. Arno Behr, in
1882, took out a patent for producing dextrose from water solution, and Dr;
Wagner in 1906 described in detail the technique of crystallizing and how to
secure anhydrous crystals.
According to the records of the Bureau of Standards, their experiment in
creating this new industry was made in 1919. In 1923 Mr. Newkirk had already
been in the service of the Corn Products Company for about two yeaxs. In. 1922
he filed his first application for patents which were assigned to the Corn
Products Company. Mr. Bates informed the Committee that according to the best
figures he had available, so-called corn sugar, that is dextrose, can be
produced under present methods at about 2 cents per pound, when corn is a dollar
a bushel. He told the Committtee that there is no pure corn sugar produced in
the world today on a commercial scale except that produced by Americans, and
that this fact is entirely due to the initiative of the Congress of the United
States, which provided the funds to make this work possible. When asked to give
some idea of the future of the industry, Mr. Bates replied:
"Experience has taught me that it is better to remami silent. But I leave
it to your experience and knowledge as to what happens when any basic material
of great stability, purity and cheapness can be produced."

OPPONENTS IGNORED
In point of fact, the members of the Committee on Interstate and Foreign
Commerce had very little confidence in those who appeared in opposition to the
pending bill. In the report of the sub-committee, which was adopted by the whole
committee, it is stated on the first page:
"In arriving at this conclusion we have had the benefit of conferences and
frequent consultations and advice with the Bureau of Standards, the Department
of Agriculture, and with the legislative Counsel, to all of whom we
acknowledge our obligation. We are, however, under special obligation to Dr.
George K. Burgess, Director, and to Dr. Frederick Bates, of the Bureau of
Standards, and attach hereto as a part of our report their concise and clear
statement regarding these new sugars which were first developed by their
department, and call your especial attention to a definite statement made
therein by eight of the leading medical authorities of the United States as to
the complete wholesomeness of these sugars, which opinion is supplemented by a
letter dated March 18, 1926, from Dr. H. S. Cumming, Surgeon General of the
United States Public Health Service, which we also attach with this report. We
call attention also to the numerous citations of authorities furnished us by
the Bureau of Standards in support of their position."
Not a syllable is said concerning the luminous opposing data presented by the
Honorable Franklin Menges, Member of the House, Mr. George DeMuth, representing
the bee-keepers, Mr. W. G. Campbell of the Regulatory Service of the Department
of Agriculture, and H. W. Wiley, in defense of the Food Law. The only quotation
from the Department of Agriculture is the Secretary's approval of the amended
bill.

REQUEST BUREAU OF STANDARDS FOR HEALTH DATA
In securing this information the Bureau of Standards entered on a new
activity, namely as promoters of the public health. Director Burgess in his
letter of March 28, 1926, said:
"In addition we would state for your information that the Bureau of
Standards does not deal with the subject of foods in relation either to health
or to physiologic action in their primary aspect. Investigations of the
character involved in these subjects belong to the realm of medical science."
The above is a most important statement. There is one field of activity in
which the Bureau of Standards has not yet entered. Nevertheless they have made a
fine beginning and the nose of the camel is now under the edge of the, tent. It
is to be expected that within a short time the Bureau of Standards will assume
all of these medical investigations in which they have made already a very
considerable start.
When the Bureau of Standards was asked to do this public health work by the
committtee, it looked around to see where it could best direct its efforts. Dr.
Burgess says:
"In deciding upon the sources from which to obtain the information you
requested, the staffs of various Government institutions, such as the United
States Public Health Service, the Hygienic Laboratory, the Army Medical
School, and the Bureau of Home Economics have been consulted, and their able
suggestions followed. And it may pertinently be noted at this point that in
our search we have failed to find a statement by a single authority that is
detrimental to the use of dextrose and levulose as human foods, or that their
use as foods would cause diabetes mellitus. On the contrary we have found that
all authorities are positive as to the desirability of these sugars as human
foods. Their commendation of the Bureau's work on the sugars, whenever they
have. had occasion to comment, has been unstinted.
This investigation into the realms of public health made by the Bureau of
Standards, at the request of the Committee on Interstate and Foreign Commerce
was due to a statement I made before the Committee in regard to the
undesirability of increasing the amount of prechewed and predigested foods in
the American dietary.
On page 113 of the hearings I said:
Now let me give you just a few more words about another feature of injury.
You understand that we eat starch and fruit sugars. We digest those. If the
sucrose has not been digested we digest it. If the starch has not been
digested we digest it, with the functions which we have achieved in this life,
and then the sugar enters the blood stream. Now what becomes of the levulose?
We never find levulose in the blood stream. We find only dextrose. The sugar
that is in the blood and goes to the tissnes and there is burned is always
dextrose, it is never levulose. I wish I knew what became of levulose. I do
not; but it is possible that there may be an enzyme, a digestive enzyme, that
converts levulose into dextrose. Suppose you have too much starch and too much
sugar. You cannot burn it all at once. It is converted into an inert substance
called glycogen and is stored up in this condition in the liver and in the
tissues. The burning of the sugar in the blood is activated by the pancreas.
Now if we flood our stomachs with dextrose ("corn syrup"), then we will need half a dozen artificial pancreases to take care of it, and there is the real danger, the threatening danger, as every wise physiologist will tell you, from that source. So that both by reason of paralysis of our digestive apparatus through lack of functioning that is a threat in itself, and by reason of the increase of the amount of dextrose which we ingest far above what we need we endanger our health in the most serious way. So that I voice now, and with all the emphasis I can put on it, my disagreement with every other person, except Dr. Menges, who has testified here, and it has been unanimous almost, who has said that this predigested and prechewed dextrose is harmless. I deny it and I think I have most scientific grounds to convince you, gentlemen, that it is not a harmless substance. In closing, Mr. Chairman, I want to say that I
labored for 22 years before I saw the fruits of my labors in the Food and
Drugs Act. I did not give myself the name ' but I am universally acclaimed as
the father of the Food and Drugs Act, as I am universally acclaimed as the
father of the Beet Sugar Industry. I see both of my children threatened, and I
have a parental love. Now I have lived long enough to see my two alleged
children grow up almost to their majority. Twenty years old they are. I do not
want to live long enough to see them crucified."

INJURY TO HEALTH
The activities of the Bureau of Standards in securing expressions from
various eminent medical authorities to the effect that levulose and dextrose as
found in honey and in invert sugar are not prejudicial to health was a work of
supererogation. I can not find in any of the hearings before the committee, or
otherwise, that any such question was under consideration. Evidently the purpose
of this investigation by the Bureau of Standards into the region of health was
to counteract the statements I made before the committee that predigested starch
(glucose), in such quantities as was suggested by the Bureau of Standards, was a
real threat to health.
I desire to refer to page 135 of the hearings on Interstate and Foreign
Commerce on H. R. No. 39.
MR. HOCH: "Are you familiar with the quotations that Mr. Cole makes from
medical authorities?"
DR. WILEY: "Certainly, I am. I do not deny the virtue of dextrose as a
medicine for any man who cannot digest his own food. It is a valuable remedy;
for use in a hospital. I should hate to see dextrose moved out of the hospital,
because people in the hospital usually have poor digestive faculties and need
blood sugar."
MR. HOCH: "If corn sugar should be used generally throughout the country
instead of cane sugar or beet sugar what would be the effect upon the health of
the country?."
DR. WILEY: "I have no quarrel for use of dextrose in hospitals, and if you
should use dextrose in place of sugar that would be all right as to food but all
wrong as to conservation of natural digestion."
I quote here two statements, one from a physiologic chemist and one from a
celebrated physician. Dr. Albert P. Mathews, Professor of Physiological
Chemistry, University of Cincinnati, under date of Jan. 11, 1927 says:
"As regards the effect of lack of use of our digestive apparatus by eating
predigested food, I dare say the point you make is correct. It seems to be the
general experience throughout the animal kingdom that the use of an organ
increases its efficiency and keeps its health. What you say as to the quantity
of this new sugar which would probably be consumed staggers me, but it is true
that it can't be told by its appearance from a good grade of granulated sugar,
and if it is cheaper I have no doubt it would drive the other out of the
market, which would be a great calamity."
The other authority, the eminent physician, is Dr. E. L. Fiske, Director of
the Life Extension Institute of New York. Writing under date of Jan. 21, 1927,
he says:
"I concur in your views that it is unwise to make any change in the present
law requiring that dextrose should be so labeled. While it is quite true that
dextrose is just as available a fuel as sucrose, indeed more available because
of the fact that the action of digestive enzymes is not required, I feel that
the present consumption of sugar is far beyond the physiological needs of the
population and tends to narrow the diet. I believe that food sugars should be
drawn from natural sugars, such as fruit sugars and sucrose. Statistics would
indicate that diabetes is increasing in this country and I can see some point
in your caution that the use of a predigested sugar may in itself not be in
the interest of public health. In regard to no other food is predigestion
looked upon as a physiological advantage, but rather the contrary, except in
the emergencies of illness."
These opinions of these two eminent experts would be supported by every
competent physiologist and dietitian in the country not under the influence of
the Bureau of Standards and the Corn Products, Company. Predigestion of our
foods to the extent indicated would tend to undermine and destroy public health.
In regard to the quantity of sugar I quoted to Dr. Mathews the statements
before the committee that if this bill (39 H. R.) should pass, permitting
dextrose to be used in food. products without notice, as much as two billion
pounds would enter into the stomachs of the American public annually. In a book
entitled "What Price Progress?" by Hugh Farrel, page 183, reference is made to
the work of the Bureau of Standards and of the Corn Products Refining Company,
stressing somewhat gingerly the importance of "If."
"Did you ever think about the word "if" as a shock absorber? Probably not.
"If" is usually used as a license for loose talk. If I couldn't use "if" in
telling you about the probable effects of recent scientific research on the
sugar industry, I would keep quiet, I wouldn't say anything. I'm not timid,
not to speak of, but I wouldn't like to. assume the responsibility for a bald
statement that researches of chemists in the employ of the Bureau of Standards
and of the Corn Products Refining Company meant the beginning of the end of
the cane and beet sugar industries, I wouldn't like to make that a flat-footed
statement even though it might be and probably would be true."
This enthusiastic follower of the Bureau of Standards makes the Bureau's
modest estimate of 2,000,000,000 pounds look like the prognosis of a piker, by
predicting a possible 40,000,000,000 crop.
It is of interest to know that while the Corn Products Company was perfectly
satisfied to leave its case with the Bureau of Standards, it was in deep
sympathy with this measure. In the American Food Journal of January 1927, Page
24, is an article entitled "Some Facts About Corn Sugar," by W. R. Cathcart of
the Corn Products Refining Company, New York City. In this article Mr. Cathcart
says:
Of course the production of dextrose in commercial quantities did not
remain hidden under the bushel. Corn sugar soon figured conspicuously in the
public press, particularly in papers circulating in the corn growing, states,
and dextrose entered the political arena. It was clear that an increased
market for corn sugar meant an increased market for corn. The movement for the
relief of the corn grower was strong in the corn growing states and several
measures were introduced into Congress to meet the situation. Identical bills
were introduced by Senator Cummins and Congressman Cole to amend the Pure Food
Act so that a product could not be deemed misbranded or adulterated if it
contained corn sugar. Hearings before the House Committee developed opposition
on the part of the Department of Agriculture and Dr. Harvey W. Wiley, former
Chief of the Bureau of Chemistry. It was denied by Dr. Wiley that dextrose is
a wholesome product. * * * The Corn Products Company is a strong supporter of
the Pure Food Law and has no desire to change from this position. Speaking as
the representative of that industry, we intend to work in harmony with the
constituted authorities and obey the prescribed regulations. We believe in
hard common sense. We will continue to present arguments which we know to be
economically and scientifically sound. We are confident that eventually reason
and well established facts will overcome fanaticism and misstatement."
The persons who manufacture commercial glucose and commercial dextrose may
not engage in adulterating foods therewith, but they do furnish the raw
materials which adulterators use. The predecessor of the Corn Products Company
manufactured "Flourine" which was used to adulterate wheat flour. To correct
this abuse it was necessary for Congress to pass the mixed flour act. This
effectually stopped the use of "flourine" in wheat flour. It was the Corn
Products Company that secured the change of label for one of its products,
namely glucose, to "corn sugar," a clear violation of the food law. The natural
sugar of corn, both in the stalk and in the ear, is sucrose and the law forbids
calling any other object or product by the same name as one already established.
The Bureau of Standards also referred to dextrose as the ideal filler. To a food
adulterator the ideal filler is a cheaper substance which he can substitute for
a dearer substance. Mr. Cathcart's statement that the Corn Products Company does
not desire to misbrand or adulterate any product is hardly borne out by well
known facts. Glucose and its near relations have been, are and will continue to
be the champion adulterants.

FINAL DISPOSITION OF THE SO-CALLED CORN SUGAR BILL
The committee on Interstate and Foreign Commerce rejected the Senate bill
which would open all foods indiscriminately for the use of dextrose without
limit and without notice to the purchaser. The committee reported the bill in
which the permission to use dextrose in this way was limited to frozen products,
such as ice cream, and to bakers' products and meat products. This bill was
approved by the House of Representatives but only with a very small majority.
The opposition to it had grown to enormous proportions.
. The bill, as it passed the House, was entered on the Senate calendar and it
was understood that when it was called up the Senate would not insist upon its
own measure, but would be content to adopt the measure as it passed the House.
It was called up on the 2nd of July, 1926, just two or three days before both
houses of Congress had voted to adjourn. Unless it could be acted upon on this
occasion there would be no additional time in which it could be considered by
the Senate.
Senator Neely of West Virginia had become convinced that this was a vicious
measure. He felt also that if it came to a vote the Senate, having already
passed a more drastic bill, would probably concur in the bill as modified by the
House. He therefore determined to defeat the measure by a lone filibuster. He
secured the floor of the Senate and openly announced his determination to hold
it until the hour at which the bill could be considered had passed. He held in
his hand A copy of Good Housekeeping, and read from time to time paragraphs
therefrom, showing the enormity of the crime intended. By that time, however, a
large number of Senators had seen the error of their way and expressed their
sympathy with Senator Neely who was trying to prevent a national crime.
I addressed to Senator Neely after his successful filibuster the following
letter:
"The country owes you a vote of thanks for your heroic and successful
endeavor yesterday to block the approval of the so-called 'Corn-Sugar' Bill. *
* *
"As determined by Dr. C. A. Browne, the sweetening power of corn sugar is
only 50% of that of sucrose. It is much more insoluble. It leaves a very
disagreeable, bitter after-taste. To foist this sugar upon the American public
without knowledge is a crime of the deepest dye. I sincerely hope you will be
on your guard if any subsequent attempt is made to rush this legislation
through the Senate.
To this letter Senator Neely, on the 3rd of July, replied as follows:
"I regret to confess there are no words in my vocabulary sufficiently
vigoious to convey to your mind my sincere appreciation of your more than
gracious letter of the second day of July. Frankly, whatever service I have
rendered the country's consumers of sweetened food products, I have been able
to perform solely by virtue of the information contained in your illuminating
article which recently appeared in Good Housekeeping.
"Sincerely hoping that the public may be thoroughly informed as to the
menace of the pending legislation on the subject of corn sugar before Congress
reconvenes in December, I am, with the best of wishes and the kindest of
regards, always,
Faithfully yours,
(Signed) M. M. Neely."
On December 16th, 1926, I wrote Senator Neely as follows:
"I am writing to ask if there is any immediate prospect of the so-called
Corn Sugar Bill being taken from the calendar and considered by the Senate? I
am preparing a document which I wish to submit to each member of the Senate
when it is likely that such consideration will take place. Your work last
summer in blocking this legislation was most notable and successful. I hope
you have not lost any of your enthusiasm in this case and will be on guard,
with the other Senators who stood by you on that occasion, to prevent any
mutilation of our food law."
To this letter Senator Neely on the same day replied as follows:
'Replying to your very acceptable letter of the sixteenth day of December,
I regret to inform you that it is quite probable that the so-called
'Corn-Sugar Bill' will-be 'called up' at almost any hour of any day.
"Yesterday, a Senator from a western state inquired of me particularly as
to the possibility of my discontinuing my opposition to this measure. I told
him, and I now assure you, that I purpose to oppose the passage of the Corn
Sugar Bill to the limit of my capacity as long as I continue a member of the
Senate.
"In view of the article on the subject which appeared in the last number of
'Good Housekeeping,' I feel impelled to tell you that I have absolutely no
selfish interest of any kind or character in seeking to defeat this
legislation. I am prompted to the course I have adopted by a single motive,
and that motive is to preserve, protect, and defend the Pure Food Law and
thereby protect the health of the people of the country."
On December 17th, 1926, I wrote Senator Neely as follows:
"I hope, even if Congress should pass this measure, that the President will
refuse to sign it. I feel certain President Coolidge could not complacently
approve of the perpetration of such a huge.fraud upon the American public. It
means fraud in every household in this broad land. I sincerely hope you may be
able again to block this vicious legislation, either by force of reason, or,
if necessary, by filibuster.
Under date of December 18, 1926, Senator Neely wrote me as follows:
"Yesterday Senator Ashurst and I conferred at considerable length about the
subject matter of your communication, and rededicated ourselves to the task of
preventing the enactment of a measure (despite the good faith of its
proponents) which he and I believe thoroughly vicious."
There was organized, therefore, a number of Senators into a committee who
promised to guard carefully the rights of the people by objecting to any
unanimous consideration of taking the bill from its regular place on the
Calendar. This was particularly true in the last days of, the session when night
sessions were called to consider bills to which no objection was made. I wrote
Senator Neely and asked him to organize a watch-meeting to see that at least one
Senator was always present who would object to taking the so-called. Corn Sugar
Bill from its place on the. calendar, by unanimous consent. In this way all
legislation of this kind was blocked until the 69th Congress expired at noon on
the 4th day of March,1927.
All pending bills are now dead. If the 70th Congress undertakes to enact a
measure of this kind, a powerfully organized minority at least, will be ready to
interpose all required parliamentary obstacles to such legislation. It is quite
certain, therefore, that any other bill of a similar character would have a very
rugged future before it, and it is almost morally certain that no such
legislation can now be enacted.
ALWAYS THE PROBLEM OF AGRICULTURE
ESTABLISHMENT OF THE DEPARTMENT OF AGRICULTURE
"There shall be at the seat of Government a Department of Agriculture, the
general design and duties of which shall be to acquire and to diffuse among
the people of the United States useful information on subjects connected with
agriculture, in the most general and comprehensive sense of that word, and to
procure, propagate, and distribute among the people new and valuable seeds and
plants"--Act May 15,1862.
From the very beginning of the investigations of sugar they were given by
Congress to the Bureau of Chemistry, Department of Agriculture. Dr. MacMurtrie
in the early 70's, first as an assistant and then as Chief of the Bureau, worked
upon these problems and particularly carried on investigations looking to the
establishment of the beet sugar industry. His successor, Dr. Collier, my
immediate predecessor, made extensive investigations as to the possibility of
using sorghum as the principal source of sugar.
When I was put in charge of the chemical work in 1883 it was with the
distinct understanding that the sorghum investigations would be completed. To
that end, in collaboration with A. A. Denton, the first study of the possibility
of increasing the content of sugar and the percentage of purity in the sorghum
plant was undertaken and continued for eight years. Varieties of sorghum were
developed showing an average content of 4% increase in sugar. All of these
investigations have been published in numerous bulletins of the Bureau of
Chemistry. My successor, Dr. Alsberg, continued these investigations. His
successor, Dr. C. A. Browne, has kept the work up. Thus from 1870 to 1927, a
period of 57 years, Congress has continuously provided the funds for carrying on
these investigations in the Bureau of Chemistry.
The appropriation for the fiscal year ended June 30, 1926, provided funds:
"To investigate the chemical composition of sugar and starch-producing
plants in the United States and their possessions.
For the fiscal year ended June 30, 1928, the appropriation bill for the
Department of Agriculture contains the following authorization:
"For the investigation and development of methods for the manufacture of
table syrup and sugar by utilization of new agricultural sources."
If this means anything, it means that levulose is one of the new sources of
sugar production, which Congress in its regular session committed to the new
Bureau of Chemistry and Soils. Does not then this problem by right of possession
and by a continued recognition by Congress for 57 years entitle the Bureau of
Chemistry to carry on all investigations of this kind? By right of possession,
as well as by ethical considerations. that rule ought not to be transgressed.
A careful survey of the original act establishing the Bureau of Standards
fails even to give a hint that any investigations of this kind should be
assigned to any other department than that of agriculture. The investigations
which led to the establishment of the beet sugar industry were given exclusively
to the Department of Agriculture, as the original act provided. There is one
point, however, in which perhaps it is wise to permit the investigations of
levulose through another department. The Bureau of Standards has proclaimed that
when levulose under its initiative is made as cheaply, as dextrose, then there
is no longer any reason for the existence of either the beet sugar or the cane
sugar industries. Of course Congress never intended that the Department of
Agriculture should be used for the destruction of established agricultural
industries. So, naturally, investigations which would destroy these industries
would not be germane to the fundamental idea around which the Department of
Agriculture has been built. It does seem a little bit strange that Congress
which is now bending all its energies to do something for the relief of the
farmer should give to the Bureau of Standards a large sum of money for the
purpose of endeavoring to destroy some of our most profitable agricultural
industries.

DEVELOPMENT OF DEXTROSE AND LEVULOSE INDUSTRIES
Speaking before the committee in favor of a defieiency appropriation for the
development of the levulose industries, the Director of the Bureau of Standards
gave glowing accounts of what could be done with the Jerusalem artichoke. In
answer to a question of the chairman as to the difficulty of gathering the wild
artichoke economically, it was stated that it would be cultivated, and he
illustrated the improvement in the content of sugar, that is levulose, in the
artichoke from what had been done in breeding beets. He called attention to the
fact that the percentage of sugar in the wild beet had been, by careful
breeding, more than doubled.
The chairman asked Dr. Burgess (page 279 of the hearings),
"Is any of this sugar which you have shown it is possible to produce used
anywhere?"
DR. BURGESS: "Not yet. It has only been actually produced in sugar form in
our laboratory. The trick was to get it out of water solution."
The director enlarged on the problems they were about to undertake (page 288
of the hearings.)
"The production of sugar is one of the world's largest industries. A new
industry which threatens to modify this production is a thing of first
importance to mankind. The Bureau of Standards is considering not merely the
question of modification, but the possibility to a great extent of replacement
of ordinary sugar (sucrose) by levalose.
It is no wonder, therefore, that the $50,000 asked for were given to the
Bureau of Standards, which is a branch of the Department of Commerce, and not to
the Department of Agriculture, which is immensely interested in the maintenance
of both the cane and the sugar beet industries. The purpose of the Bureau of
Standards is to abolish both of these industries.
There are many serious difficulties in the way of developing an economical
levulose industry. It is stated by the Bureau of Standards that the present
price of levulose is approximately $100 a pound. They proposed to make it as
cheaply as they have been able to manufacture dextrose. The director promised
the committee that the experimental work would be finished in.1927. This time
has come and gone but no publication of levulose at 5 or 2 cents. a pound has
yet been issued. The wisdom of the proverb, as it is read in Boston to the
effect that it is undesirable to enumerate the number of progeny arising from
the incubation of the ova of gallinaceous birds until the process is entirely
completed, is a matter which the Bureau of Standards should take under careful
consideration. It is quite evident that if this policy of the Standards Bureau
be carried out any further the original intent of Congress will be entirely
lost, sight of. Evidently there is nothing going on in this world which,
following out the plan already adopted, may not come within the limits of
investigation of this all embracing Bureau. Meanwhile, the work which it was
intended to do must of necessity be neglected in order to gather in all these
miscellaneous activities which plainly are foreign to the purpose of the
original act. An unbiased study of these activities magnifies to colossal
proportions the dangers which Professor Rowland pointed out.

NO DELAY IN STARTING WHAT ROWLAND FEARED
From the first the Bureau of Standards immediately began a system of
accretion from all sources, which it has practiced ever since. The following
year, 1903, it was transferred to the Depaxtment of Commerce. It took over at
once the supervision of polarizing imported sugars, which for many years had
been a function of the Bureau of Chemistry. This was its first offense of
scientific ethics, the cardinal canon of which is, "Don't butt into any problem
already in charge of some one else. This was followed by the invasion of fields
fully occupied by the Bureau of Chemistry in studies of leather, paper, farm.
wastes, and other strictly agricultural problems. This was followed by occupying
the field of specifications for civil and military supplies, establishing new
definitions for Castile soaps, and finally an assault on the Food and Drugs Act.

TRADE PRACTICES
The encroachments of trade practices on the enforcement of the Food Law will
be shown in the last chapter.
I refer solely to the illegal and unethical practices. They are also likely
to be dominant in the activities of the Bureau of Standards in the case of
scientific associates. It is even possible that activities of the Food and Drugs
Act, or the investigations of the Federal Trade Commission may be invoked to
restrict the scientific investigations of the Bureau of Standards. One of the
dangers which attend the exploitation of trade practices is illustrated by the
attitude of the Bureau of Standards in regard to Castile soap. The methods
employed by the manufacturers of so-called Castile soaps are thoroughly outlined
in Circular No. 62 of the Bureau of Standards devoted to this subject. The trade
practices are set out in detail. Brands of Castile soap are made which are
entirely foreign to the original idea universally accepted of this article. In
the data below it will be noticed that the principal chemist who has been
consulted in this matter, and whose suggestions have appaxently been adopted, is
the chemist of a firm making so-called Castile soaps of different kinds without
any olive oil whatever entering into their composition.
The Food and Drugs Act was passed for the purpose of correcting trade
practices. Now the efforts of the Bureau of Standards seem to be directed toward
establishing them as ethical processes. This, of course, means great danger to
the consuming public. A great government organization ought not to aid
fraudulent trade practices and try to foist them upon the public, even by
mentioning them approvingly.
" Castile Soap was originally made from low-grade olive oils. The name now
represents a type of soap, the term 'castile' being applied to a soap intended
for toilet or household use, sold usually in large, unwrapped, unperfumed
bars, which are cut up when sold or when used. It is often drawn directly from
the kettle without 'crutching,' but is sometimes crutched a little or even
enough to make it float and is sometimes milled. It is also sold. in small
bars both wrapped and unwrapped. The type is not one easily defined, so now
when made from olive oil it is invariably sold as olive-oil castile. There are
soaps made entirely from cocoanut, oil which are sold as cocoanut castiles or
hardwater castiles. Many other castiles are made from a mixture of cocoanut
oil and tallow." (Dept. of Commerce--Circular of the Bureau of Standards, No.
62--SOAP--p. 9, Jan. 24, 1923.
NOTE: Previous Edition of Standard Circular No. 62 (Second Edition June 17,
1919, p. 7) reads as follows:
'Castile soap, otherwise known as Marseilles or Venetian soap, is prepared
from low-grade olive oil.
A letter from Director of the Bureau of Standards, dated September 22, 1924,
explains the change in language note above:
"As stated in our letter of Sept ember 9, the statements made in paragraph
(c) page 9, of the third edition of our circular No. 62 were intended to give
information as to conditions as they are at the present time rather than as to
what they should be.
"The Bureau has not issued a specification or set up a standard for Castile
Soap, nor has the bureau intentionally, in a passive way or otherwise, injured
any existing standard or trade practice regarding this commodity. Our sole aim
in circular 62 was to state the facts as we found them." * * * (Signed F. C.
Brown, Acting Director; George K. Burgess, Director.)
A further explanation by Dr. Burgess, Director, in letter to T. R. Lockwood,
March 27, 1926, is as follows:
" The statements were approved by the Soap Committee of the Soap Section of
the American Specialty Manufacturers Association, as indicated by the
following quotation from Circular No. 62 (page 4):
'The Bureau has received much valuable assistance in the preparation of
this circular from the Soap Committee .of the Soap Section of the American
Specialty Manufacturers Association, and especially Messrs. A. Campbell and C.
P. Long, chairman and secretary of the soap and soap products committee of the
American Chemical Society, for which it wishes to express its grateful
appreciation.
Further explained by Dr. Percy H. Walker, U. S. !Bureau of Standards, in his
testimony at Trade Practice Submittal at the office of Federal Trade Commission,
March 30, 1926 (Transcript, Page 31).
"The gentleman sitting near me has asked me to read from a circular of the
Bureau of Standards. I may preface this by saying that THIS IS A PIECE OF
INFORMATION FOR WHICH WE ARE INDEBTED TO THE SOAP TRADE. I SUBMIT IT AS A
PIECE OF INFORMATION. IT IS AS FOLLOWS:" (Then follows the quotation from
Circular No. 62, 1923, Ed. p. 9, quoted above.)
C. P. Long, referred to as a source of information for Bureau of Standards
Circular No. 62, is, or was, Chemical director of the Globe Soap Company,
Cincinnati, which manufactured or manufactures four brands of "Castile" referred
to as "Castile in combination," namely, GLOBE CASTILE, GLOBE LION CASTILE, GLOBE
WHITE CASTILE, and LION CASTILE.
The statement above that true Castile is "invariably sold as olive-oil
Castile" is a gross error. This statement is undoubtedly due to the regrettable
mistake of the revisers of the tenth decennial pharmacopoeia, for the first time
in its history of defining Castile soap as olive oil Castile. This gives no
warrant for calling other soaps, not made wholly from olive oil, Castile.

DUPLICATION OF WORK OF BUREAU OF CHEMISTRY
BY THE BUREAU OF STANDARDS
The work of the Bureau of Chemistry on tanning materials, hides, tanning, and
leather which is conducted under the appropriations for agricultural
investigations, has been and is being duplicated in part by the Bureau of
Standards of the Department of Commerce. Work along those lines has been done in
the Department of Agriculture almost since its organization in 1862, and was
specifically provided for in 1904, 23 years ago. Investigations on leather,
according to the annual reports of the Bureau of Standards, were inaugurated as
a new line of work in that Bureau in 1917, but 12 years ago. The attention of
the Bureau of Standards has been called to this duplication which several times
has been the subject of conference between the two Bureaus. Nevertheless the
more recent annual reports of the Bureau of Standards continue to outline a
program on leather which involves a striking and extensive duplication of lines
of work plainly within the scope of the following long established and published
projects of the Bureau of Chemistry:
Investigation of the Wearing Quality of Sole leather.
Investigation of the Composition of Leather and Tanning and Finishing
Materials.
Deterioration of Upper, Bookbinding and Other Light Leathers.
Tanning Sole and Harness Leather on a Small Scale.
These projects were known to the Bureau of Standards not alone through annual
reports, program of work, and other publications, but also through the fact that
before the Bureau of Standards had organized and equipped its laboratories the
courtesy of the laboratory of the Bureau of Chemistry was extended to them and
its force was temporarily housed in the laboratories devoted to the leather,
tanning and related work of the Bureau of Chemistry. Nevertheless, the Bureau of
Standards later entered these fields despite this knowledge and ignored the
usual customs of scientific bureaus to referring inquiries and work within the
province of other bureaus to those bureaus. In other words, the Bureau of
Standards has, without discussing the subject with the Bureau of Chemistry,
duplicated and started to build up on this work, knowing that it was already
organized and had been in operation for some time in the Department of
Agriculture.
Moreover, with the view to eliminate the duplications which had become
intolerable and indefensible, the Bureau of Chemistry, in July, 1914,
transferred to the Bureau of Standards and itself discontinued the work it had
been doing for many years, and before the existence of the Bureau of Standards,
on paints, varnishes, inks, oil, and miscellaneous supplies for the Government
departments with the distinct verbal understanding between Dr. Alsberg, then
Chief of the Bureau of Chemistry, and Dr. Stratton that work in certain fields,
among them leather and tanning, should remain in the Bureau of Chemistry.
Authority for the Work. Authority for the work on tanning materials, hides,
tanning and leather, which the Department of Agriculture has been doing, is
contained:
(a) In the organic act creating the Department of Agriculture, which act
defines its duties as "to acquire and to diffuse among the people of the
United States useful information on subjects connected with agriculture in the
most general and comprehensive sense of that word,
(b) In subsequent annual appropriations made for work on these and related
subjects after statements by the several bureau chiefs before Congressional
committees, describing the work being done;
(c) In a special order, by the Secretary of Agriculture, on July 1, 1904,
as follows:
"There is hereby established in the Bureau of Chemistry a laboratory to be
known as the Leather and Paper Laboratory to which are to be committed the
analyses and investigations relating to the following subjects:
"Investigations of tannins and tanning materials and their effects upon the
strength and properties of leather with a view to promoting the agricultural
industries relating to the production of tannins and tanning materials and
leather of a high quality.
"All technical problems of a chemical nature relating to the production of
tannins and tanning products and of leathers.
"All technical problems of a chemical nature relating to the production of
leather, * * *."
(Signed) James Wilson, Secretary.
The substance of this order has been made public in Bureau of Chemistry
Circular No. 14, 1904, on " The Organization of the Bureau of Chemistry."
History of the Work. Work on tanning materials, hides, tanning and leather,
began in the Deparment of Agriculture in the early days of its existence, and
has been described in the various annual reports as far back as 1872. The nature
and results of this work were laid before Congress not only in these annual
reports but in the hearings before the appropriation committees. This work had
progressed so that by 1900, that is before the establishment of the Bureau of
Standards, it was definitely organized and a cooperative basis between the then
Divisions of Forestry and of Chemistry. The work on all these lines has
continued uninterruptedly. Since the specific organization of this work the
Bureau of Chemistry has developed an experienced and informed personnel which
has done much valuable work in the conservation and development of raw
materials; in the development and improvement of methods of examination to
determine quality: on the care and serviceability of leather; and in an advisory
capacity to the Government, the public and the industry, the results being
published from time to time either as Government bulletins or in scientific
journals until the publications now number in all more than eighty-five.
It has been the claim of the Bureau of Standards that all standardization
work and even all scientific work of the Federal Government should be done
there. Obviously this Teutonic, imperialistic viewpoint can not be admitted by
any of the Federal Departments, first because it is not fair, economical or
efficient, and second, because such has never been the intent nor practice in
government work. It would seem clear that from any reasonable point of view each
Department should, so far as feasible, standardize those materials which fall
within its functions, and this has been the practice until the Bureau of
Standards has constantly encroached upon the fields of other bureaus of the
several departments.
This ruthless and expensive duplication of fields of work has actually, as is
to be expected, resulted in needless duplication on specific problems, as
strikingly shown by the duplication of the work done by the Bureau of Chemistry
on the wearing quality of shoe leather, published as Department Bulletin 1168 in
1923, which work was duplicated even to the conclusions and published by the
Bureau of Standards in 1925 as Technological Paper 286, "Comparative Durability
of Vegetable and Chrome Sole Leathers."
The last and most astonishing encroachment of the Bureau of Standards on the
functions of the Department of Agriculture is found in the appropriation to
investigate agricultural wastes. These studies heretofore have been almost
continuously conducted by the Bureau of Chemistry. It will result in useless
repetition of many studies in the past thirty years looking to utilization of
cornstalks, salvaged fruits and watermelons, waste of canning factories,
unmerchantable marketable products, and various other agricultural wastes. These
may not rise to the dignity of crimes but they afford striking instances of bad
ethics.

RESEARCH ASSOCIATES
The most objectional feature of the activities of the Bureau of Standards,
aside from the attempt to mutilate the Food Law, is seen in employment of
research assistants. This activity seems to fly directly in the face of the
statements of President Coolidge, at the beginning of this chapter.
In Circular No. 296, Bureau of Standards, Page 3, is the following statement:
"Devices developed during the research are for the free use of the
industry, the government, and the public and will not be patented unless the
patents are dedicated free to such use."
Immediately following this statement is another to this effect:
"The work of a research associate is one of peculiar trust, often
confidential, on problems of concern to an entire industry."
It is thus seen that much of the research work done may be of this
confidential character and if so would not be published in any manner to,
prejudice the interest of the industry concerned. While associate scientists
conform to government regulations in regard to conduct, hours of work and leave
of absence, they are paid by the industries interested in their work. I can find
no statement in Bulletin 296 as to the total amount of compensation of these
workers. Correspondence with the industries is sent free of postage, and all
facilities of every description for the work are provided by government
appropriation. No estimates of the total value of these contributions by the
government are given. The total number of research associates in 1926 is given
at 62. On page 8 the amounts saved by the researches of the Bureau in many
instances are stated. From study of brakelining methods fifteen million dollars,
from tire studies forty million dollars, and from motor-fuel investigations one
hundred million dollars are saved annually. With such savings as these the
pitifully meager $2,000,000 appropriation granted to the Bureau of Standards
proves Uncle Sam a. piratical piker.
The limit of activities seems. to have been reached in the following case
copied from the Washington Star, April 4, 1927. It is an illustration of one of
the experiments of the Bureau of Standards with a machine intended to measure
the shock absorbed by the driver of an automobile. The description is as
follows:
"To find out how much shock the driver of an automobile absorbs through the
bumping and rolling of his car on the road is the purpose of this delicate
measuring device designed by the Bureau of Standards. The information will be
given to manufacturers for its bearing on driving efficiency.
The following pertinent suggestions find an appropriate place here:
From "YOUR MONEY'S WORTH," by Stuart Chase and F. J. Schlink, published by
The Macmillan Company, comments on the Bureau of Standards.
BUREAU OF STANDARDS
The Bureau of Standards was set up by legislative enactment in 1901. It was
placed under the control of the Secretary of Commerce and Labor (now
Commerce), but has always functioned with a considerable degree of
independence. Its director is appointed by the President, upon nomination by
the Secretary of Commerce; its staff is under civil service regulations and
protected to an almost unique degree from political pressure.
Its original duties were simple--the erection of suitable scientific
standards for weights and measures. Page 198.
Gradually the Bureau began to take on other duties. Its scientific staff
provided a nucleus for further investigations on the Government's behalf, (and
later on behalf of industry at large.) On account of its excellent equipment
and expert staff, other departments got into the habit of referring dubious
materials and devices to it for analysis and test. Page 198.
Which brings us to ask a blunt and necessary question. Why does a service
run by taxpayers' money refuse information covering competitive products--to
that same taxpayer? The answer is obvious but not altogether convincing. It is
argued that the general release of test results covering competitive products
by the name of maker will promote commercial injustice. Page 203.
In the long run would not the great savings which the Government achieves
through the Bureau's work be multiplied a hundred fold if all could take
advantage of its findings-both ultimate consumer, manufacturer and dealer?
Page 204.
Furthermore there is no reason why the citizens who pay for the Bureau and
the other Government laboratories should not have the right to initiate a
series of tests when the field is important and the known information either
inadequate or non-existent. Manufacturers and promoters can now secure all the
results of competitive tests (maker's names deleted); and they have initiated
thousands of new tests which the Bureau has conducted often without cost to
themselves. Has not the ultimate consumer an equal right? Page 204.
The Bureau of Standards meanwhile has ruled that proper coöperation of the
federal authorities with state and other governmental bodies, justifies the
release to the latter of technical information. It is willing to approve or
condemn commercial products by name in a table giving comparative quality or
performance. Local governments can thus secure what the taxpayer can not. If
any state or city government wishes to know what is the best typewriter ribbon
or lubricating oil to buy, its officers need only write the Bureau to learn
the detailed results of tests that have been made upon the product before its
acceptance or rejection for Government purchase under specification. If the
article has not already been tested by the Bureau, it is likely that the
needed analysis can be arranged for without charge. Page 216.
It is clear from the foregoing that a real start in the testing technique
has been made in American Government--federal, state and municipal. There is
the beginning of solid ground Under our feet. It is equally clear that an
.enormous amount remains to be done, both in the direction of coördinating and
making available the results of present activities, and in the development of
new activities. Uniform state laws and city ordinances would seem to be
essential next steps. Another is the release to taxpayers of the invaluable
information of the Bureau of Standards, and of the other federal, state and
municipal bureaus. Page 217.
During 1926 sixty-two associates representing various industries were
stationed at the Bureau of Standards. The Portland Cement Association maintains
a corps of eight chemists and physicists at the Bureau. The Natural Terra Cotta
Society has two, the National Dyers and Cleaners has three, the Society of
Automotive Engineers four. Circular, No. 296, describes in part the gigantic
association of the Bureau with big business. Such intimate union as this justly
merits the condemnation which President Coolidge has pronounced against
collaboration of government with business.

AUTHORITY FOR THE COLLABORATION OF REPRESENTATIVES
OF BIG BUSINESS WITH THE BUREAU OF STANDARDS
In a circular of the Bureau of Standards, No. 296, which describes the
activities of the research associates of that Bureau, on page 1 is given the
authority for such collaboration.
On April 12, 1892, Congress passed a joint resolution for the promotion of
learning in the City of Washington, for the express pupose of opening Government
scientific exhibits and collections to students of higher education. The joint
resolution provided as follows:
"Whereas, large collections illustrative of the various arts and sciences
and facilitating literary and scientific research have been accumulated by the
action of Congress through a series of years at the National Capital; and
"Whereas it was the original purpose of the Government thereby to promote
research and the diffusion of knowledge, and is now the settled policy and
present practice of those charged with the care of these collections specially
to encourage students who devote their time to the investigation and study of
any branch of knowledge by allowing to them all proper use thereof; and
"Whereas it is represented that the enumeration of these facilities and the
formal statement of this policy win encourage the establishment and endowment
of institutions of learning at the seat of Government, and promote the work of
education by attracting students to avail themselves of the advantages
aforesaid under the direction of competent instructors; Therefore,
"Resolved, That the facilities for research and illustration in the
following and any other governmen al collections now existing or hereafter to
be established in the city of Washington for the promotion of knowledge shall
be accessible, under such rules and restrictions as the officers in charge of
each collection may prescribe, subject to such authority as is now or may
hereafter be permitted by law, to the scientific investigators and to students
of any institation of higher education now incorporated or hereafter to be
incorporated under the laws of Congress or of the District of Columbia, to
wit: 1. Of the Library of Congress. 2. Of the National Museum. 3. Of the
Patent Office. 4. Of the Bureau of Education. 5. Of the Bureau of Ethnology.
6. Of the Army Medical Museum. 7. Of the Department of Agriculture. 8. Of the
Fish Commission. 9. Of the Botanic Gardens. 10. Of the Coast and Geodetic
Survey. 11. Of the Geological Survey. 12. Of the Naval Observatory. (Approved,
April 12, 1892.) "
It will be observed that this joint resolution was passed about ten years
before the Bureau of Standards was established. In 1901 another authority is
quoted. It is entitled:

GOVERNMENT TO PROMOTE RESEARCH
AND ENCOURAGE STUDENTS
This is found in a Deficiency Appropriation Bill which became a law on March
3, 1901. The provisions of this bill are as follows:
"That facilities for study and research in the Government departments, the
Library of Congress, the National Museum, the Zoological Park, the Bureau of
Ethnology, the Fish Commission, the Botanic Gardens, and similar institutions
hereafter established shall be afforded to scientific investigators and to
duly qualified individuals, students, and graduates of institutions of
learning in the several States and Territories, as well as in the District of
Columbia, under such rules and restrictions as the heads of the departments
and bureaus mentioned may prescribe."
This legislation also was enacted before the Bureau of Standards was
established. It provided facilities for study and research along the line of the
joint resolution above mentioned. There is no indication of any collaboration
with big business of any kind but only with students who were seeking
opportunity for education and research.
On Page, 20 of Circular No. 296 it is stated, under the caption, 'Actions by
Congress":
"The full text of the two actions by which Congress opened the way for the
admission of qualified individuals to the use of the research facilities of
the National Bureau of Standards is given below."
It seems rather strange that this statement should be made by reason of the
fact that there was no National Bureau of Standards in existence at the time of
either of these Congressional authorizations. It is plain that only students of
universities and higher institutions of learning were included in this
authorization.
That it should be the basis of linking up Government activities with
corporations who desire research for their own individual benefits or that such
activities as scientific associates could by any means be included in either one
of these enactments is not even to be inferred. It is a well known principle of
nearly every kind of business that research is absolutely necessary to keep pace
with the progress of science. A business that does not conduct research is
likely to go upon the rocks. Those corporations which have the most extensive
research laboratories are those that are making the most progress and securing
the best results from their activities. In most instances these great
corporations conduct their own researches. In some instances they appeal to such
institutions as the Mellon Institute of the University of Pittsburgh, or to such
scientific institutions as the A. D. Little Corporation of Cambridge, Mass. In
all cases where new processes are devised and new products perfected, the
corporations protect themselves by letters patent. In the Mellon Institute,
according to, the official report (1925) it is stated that about 300 patents on
industrial procsses have been the result of their investigations. When we turn
to the activities in the Bureau of Chemistry in which new discoveries are
patented for common benefit, we find that 81 patents have been taken out.
The number of investigators and importance of the investigations at the
Bureau of Standards almost equals those of the Mellon Institute of the
University of Pittsburgh.
"At the close of the Institute's fiscal year on February 28, 1927, as shown
in the accompanying chart, fifty-eight industrial fellowships were operating,
employing one hundred and two research chemists and engineers. The sum of
$598,493 was paid during the year in support of research in the Institute by
the fellowship donors--an increase of $70,942 over the payments of the
preceding year. The total amount of money appropriated by companies and
associations to the Institute, for the sixteen years ended February 28, 1927,
was $4,318,397, all of which was disbursed in sustaining fellowship research.
"The extent and variety of the Institute's scientific investigations on
behalf of industry are shown in the appended list of the industrial
fellowships in operation during the entire fiscal year, February 28, 1926, to
February 28, 1927. There were sixty-seven fellowships--twenty-two multiple
fellowships and forty-five individual fellowships--on which 124. scientists
and engineers were occupied in research.
The Mellon Institute and the A. D. Little Corporation of Cambridge, Mass.,
are doing the same kind of work. as that conducted by the Bureau of standards
and are in direct competition therewith. This is unfair competition.
Apparently all of the expenses of the Scientific Associates in the Bureau of
Standards and in addition their postage are paid by the tax-payers of the United
States.
No statement is made of the amounts paid by the industries to the sixty-two
associates employed in the Bureau of Standards in 1926, nor of the number of
experts belonging to the Bureau or cooperating with them. If the industries paid
the representatives $2,500 a year, their contribution amounted to $155,050 per
annum.
SUMMARY
While I have called attention to only a very few of the activities of the
Bureau of Standards, and chiefly those that belong by all right and custom to
the Department of Agriculture, at least I have shown the ground work of the
indictment against this Bureau. It has attempted to repeal some of the most
important features of the Food and Drugs Act. It has claimed as its own the
inventions of others. It has broken deeply into the activities already started
by the Bureau of Chemistry and some of the other Bureaus of the Department of
Agriculture, violating the fundamental principle of ethical standards. The
Bureau of Standards should violate no standards. It has undertaken collaboration
with great industries in such a way that the extent of its activities have not
been disclosed, nor do we know, from any reports that have come to my notice,
just how great a contribution is made by these industries in the way of paying
the salaries of the scientific associates. In this respect it is in competition
with the Mellon Institute and other organizations of a similar character
specifically intended to conduct this research work in an open and proper
manner. The Mellon Institute has given information of the amount contributed by
those industries. I have not been able to discover any such information in the
reports of the Bureau of Standards.
No kind of investigation seems to be foreign to the Bureau of Standards. It
has departed so widely from its fundamental conception as to be no longer
recognized chiefly for the purpose for which it was specifically designed,
namely, the determination and preservation of all standards of measures of all
deseriptions for all legal and technical purposes. Either the original act
establishing the department of Agriculture should be repealed, or any further
incursions of the Bureau of Standards into the domain of Agriculture "in the
most general and comprehensive sense of that word," should cease.

HISTORY OF A CRIME AGAINST THE FOOD LAW
CHAPTER X: THE PASSING OF THE BUREAU OF CHEMISTRY
by Harvey W. Wiley, M.D., the very first commissioner of the Food and Drug Administration (FDA), then known as the “US Bureau of Chemistry.”

CHEMISTRY FIRST RECOGNIZED
In the organic act establishing the Department of Agriculture in 1862, no
scientific department was mentioned. The Commissioner evidently regarded
chemistry as the dominant science in the promotion of agriculture. The first
scientist appointed in the Department of Agriculture was the chemist, Prof.
Charles Wetherell, of Philadelphia. The activities of the chemist were first
designated as the Division of Chemistry. At a latter date a more resounding
title was adopted, namely, "Bureau." The term "Bureau" has since then been
extended as a name to many activities, not only in the Department of Agriculture
but in all the other departments and subdivisions of scientific research. The
whole activities of the Government from the organizing point of view are now
designated as "Bureaucracy." In the present agricultural appropriation bill, as
passed by both houses of Congress and signed by the President, this original
activity of the Department, viz., the Bureau of Chemistry, has been eliminated.
This was done without any action of Congress, except as found in the
appropriation bill. The rule of procedure forbids the inauguration of new
legislation in an appropriation bill. Unfortunately, when the bill was before
the House of Representatives no one interposed a point of order on the abolition
of the Bureau of Chemistry. The Food and Drugs Act specifically charges the
Bureau of Chemistry with its enforcement. The present appropriation bill,
1927-28, not only destroys the Bureau of Chemistry, but violates the law in
transferring the activities of food administration to a new unit under the
immediate supervision of the Secretary of Agriculture.
Naturally one of the great problems of chemistry in its application to
agriculture is the study of the soil. The Bureau of Chemistry did not neglect
this primary activity. There was established in the Bureau the most extensive
soil investigation that had ever been attempted. The purpose of this
investigation was to determine the natural productivity of soils, gathered from
all quarters, and kept under standard environment of light, moisture and
temperature. Typical soils were secured from the various states of the Union.
There was added to this collection samples of the. celebrated field at
Rothamsted, England, which had been cultivated in wheat for nearly one hundred
years without receiving any artifical fertilizer whatever. In the midst of these
investigations a new Bureau of Soils was created in the Department of
Agriculture, entirely distinct from the Bureau of Chemistry. At the demand of
this new Bureau of Soils all activities of the Bureau of Chemistry in the
progress of its investigations were ordered discontinued and the expensive
equipmeni was abandoned and destroyed. At the instigation of this new Bureau of
Soils, publication of the data already obtained was denied.
The small remnant of the Bureau of Chemistry after its separation from the
enforcement of the Food and Drugs Act, under this illegal action, has been
combined with the Bureau of Soils and has practically lost its identity.
Chemists in particular in this country should be inquisitive in regard to the
enactment of such illegal provisions, demolishing a great Bureau fundamentally
related to the greatest problems in Agricultural research and public welfare.
The handicap which the small remnant of the old Bureau will encounter when it is
combined with the dominant Bureau of Soils, creates a doubt of the most serious
character as to its future prosperity. The theories on which the Bureau of Soils
has heretofore been conducted have never received the approbation of competent
soil chemists in this or in any other country. Among those may be mentioned
three of great renown, namely Professor Hilgard, of the University of
California, Professor Hopkins of the University of Illinois, both now passed to
their reward, and Sir Daniel Hall of England, former Director of the famous
Agricultural Experiment Station at Rothamsted, and now attached to the. ministry
of health. When changes of this stupendous character can be made in a way which
is thoroughly illegal and undesirable, it is a threat to the progress and
welfare of chemistry in the whole country. In former days the Bureau of
Chemistry was a power in the land. Beginning its activities in 1863, in 1883 it
led the long fight for the enactment of the Food and Drugs Bill, which was
finally accomplished on the 30th of June, 1906. When this law went into effect
on the first of January, 1907, the Bureau of Chemistry had already made ample
preparations for its enforcement. It had conducted a long series of experiments
upon healthy young men for the purpose of determining the effects of
preservatives and coloring matters in foods on health and digestion. It had
secured from the Congress authority to formulate food standards which came into
play on the day the Act was to be enforced.
The Bureau of Chemistry started to enforce this Act in the light of this
preparation. Under the law the Bureau was the sole judge, in its capacity as
grand juror, as to whether any sample of food or drugs was adulterated or
misbranded. Its decision was not final, except as to the bringing of an
indictment. The final decision of all these points was placed by Congress, very
properly in the Federal Courts, where it naturally belonged. Those who
adulterated our foods and drugs foresaw that if they could cripple the
activities of the Bureau of Chemistry, they could save themselves from
indictments. They proceeded along successful lines to effect this paralysis. The
decisions of the Bureau in regard to adulterants and coloring matters and in
regard to proper names and labels were speedily overturned contrary to the
provisions of the law. The Solicitor of the Department and the Secretary thereof
joined in this destruction of the functions of the Bureau. These restrictions
and illegal limitations on the Bureau have never been removed and finally the
Bureau itself was sacrificed, crucified and abolished.

HOW IT WAS DONE
There are many mysteries which, though seemingly unsolvable, still occupy the
mind of man. Perhaps Conan Doyle in the person of Sherlock Holmes might have
turned the light on these dark places. Alas! he didn't. Now he is old and shaky;
his hand trembles and his words stick in his throat, or, as the Latin poet has
said it, "Vox in faucibus haesit." We shall never learn from him who killed Cock
Robin, who struck Billy Patterson, nor what became of Charlie Ross.
While the death of the Bureau of Chemistry did not take place until midnight
of June 30, 1927, it had already been irrevocably decreed. The criminals are
still at large. It is wise to try to unravel this mystery while we may. Was it
manslaughter or murder in the first degree? Was it assassination or suicide? Was
it done legally, or was it a clear case of lynching?

THE CORPUS DELECTI
First let us produce the corpus delicti. The old friends of the Bureau of
twenty-five years ago, who know of its struggles and passion under the assaults
of the successive favorites of the Secretary of Agriculturel if still living on
that most unhappy day, should come to take a long and lingering look at the form
of the crucified Bureau, which they will see no more forever. And those true and
tried friends of the Bureau in its twenty-five years of endeavor to secure a
national food and drugs act, which it finally did on June 30th, 1906, come also,
and while remembering the great victory with joy, shed a tear for the old Bureau
that died on the 21st anniversary of the birth of that law. Yes, there is a
corpus delicti with no shadow of doubt. Orphaned and homeless that poor law will
be. No one yet knows what sort of step-father it will have. Let us hope he will
be kind to the poor waif.

CAVEAT
In the following statements relating to the activities of the officials of
the Department of Agriculture in securing these fundamental changes in the
functions of administering the food law, there is a desire to emphasize the
point that they are not of a personal character. The highest regard is felt for
all these officials. Some of them are personal friends. This makes their
mistakes more regretful.
The same remark applies to the Bureau of Soils. On the other hand, the Bureau
of Soils, in respect to academic freedom in research and publication, and in its
bizarre and thoroughly unscientific theories and its principal activities, has
been from the start of a nature which has failed to commend it, both as to
quality and character, to the great majority of scientific investigators. This
disparagement does not affect the personnel of the Bureau, nor the late problems
submitted to it.

PROVING DEATH
In life insurance adjudication you have to prove the death of the insured.
Can the death of the Bureau of Chemistry be established? The following
quotations from the hearings before the appropriation committee consfdering the
agricultural bill for the fiscal year, 1928, are illuminating, and leave little
doubt of death.
The Chairman of the committee, in speaking of the Enabling Act, said:
Q. " I wish to take up now this new language, the 'enabling' paragraph. This
is new language, is it not?"
A. " Yes, sir. The food and drugs act provides that examination of products
subject to its jurisdiction shall be in the Bureau of Chemistry. Under the new
arrangement the Bureau of Chemistry goes out of existence and is supplanted by
this new organization, the food, drug, and insecticide administration."
The chairman also calls attention to the demise of the Bureau of Chemistry in
other parts of the report. He speaks of the "new Bureau of Chemistry and Soils."
In another place he mentions the appropriations for the proposed Bureau of
Chemistry and Soils. In the next paragraph is found the following statement:
" Under this appropriation we enforce the so-called pure food law which
controls purity and freedom from misbranding of foods and medicines."
This is a,most appropriate designation. Under the administration of the law
as now conducted it is only a "so-called" pure food law. Its activities are
confined chiefly to misbranding of foods and medicines. The real pure food law
was designed principally to protect our foods from additions of poisonous and
deleterious substances, a feature which has been almost entirely obliterated by
the present administration of the law. No one could have found a more
appropriate qualifying phrase than that which is used above.
In another part of the hearings the Chairman of the subcommittee asks:
"In other words, this is an appropriation for the enforcement of what is
known as the pure food law?"
to which this reply was made:
"To insure freedom from misbranding of foods and drugs."
This answer confirms the present attitude of the food administration.

WHY WAS IT DONE?
It seems rather strange that after attention has been called to the fact that
the law confides the examination of samples of foods and drugs to the Bureau of
Chemistry, the Congress of the United States should immediately proceed to
destroy that organization. This accentuates the discussion of how the Bureau of
Chemistry was destroyed. Even granting that the Bureau wanted to be hanged does
not legalize the crime. That may be an extenuating fact when the criminals are
sentenced.
If it was a desirable thing to change so radically the instrumentalities of
enforcing a law, it should have been brought before the Congress in a legitimate
way. There was no reason why a bill should not have been drawn making these
changes and repealing the existing law. I am far from saying that there might
not be a better method of enforcing the law than the present one. In fact, I do
not think there could be a worse.
The promoters of the destruction of the Bureau of Chemistry took a desperate
chance in their illegal attempt. They hoped that no one in the House of
Representatives would kill their efforts by making a point of order on this
legislation on an appropriation bill. The bluff was not called. Not a member of
the House objected. That the legislation could have been prevented by one member
is shown by the following statement of Mr. Lehr Fess, the House Parliamentarian:
"In reply to your letter of January 10th (1928) 1 am writing to advise you
that the item referred to was subject to a point of order at the time it was
under consideration in the House. However, no question of order was raised.
The question of order not having been raised at the time the matter was under
consideration it can not be subsequently presented."
The Secretary of Agriculture in his report for 1927 states on page 61 that:
"The Federal food and drugs act, designed to prevent the sale of
adulterated or falsely labeled foods, drags, and feeding stuffs, is a benefit
to consumers and producers alike. Through its enforcement the consumer may
feel confident that the products he buys are what they are represented to be
on the labels and the producer need fear no competition with low-grade goods
masquerading as high-quality goods. Cooperation with the various industries in
an effort to keep their products in conformity with the law and action against
producers found guilty of deliberately adulterating or misbranding their goods
were continued during the fiscal year just ended."
The Secretary seems to forget that strenuous efforts were made pending the
time the bills were before Congress to insert the word "knowingly" into the
Act. All of these efforts were defeated. For this reason the dealer who
unwittingly violates the law is just as guilty under the law as the one who
knowingly and deliberately violates the law. The most destructive vice that has
for many years been gnawing at the vitals of proper enforcement of the food law
is the effort now making to protect the producer. There is no warrant for this
erroneous conception anywhere in the law. Every reference to the producer in the
law is punitive.
Thus it is clearly seen that the chief activities of the present
administration are proper branding. The purpose of the law as a health protector
is of no importance whatever.
Mr. W. G. Campbell, Director of the Regulatory Service, justifies the
abolition of the Bureau of Chemistry and the transfer of the Regulatory Service
therefrom, in an article published in the American Food Journal, January, 1928,
page 24:
"But no effective concerted action against adulterated and misbranded food
was possible in the United States until the Federal Food and Drugs Act became
a law in 1907, after some forty years of investigation and twenty years of
agitation. The Bureau of Chemistry had framed it and actively endorsed. its
passage for many years. Naturally enough, then, Congress entrusted its
enforcement to this unit. * * *
"Whenever it became apparent that for lack of funds or shortage in
personnel one of the two must be temporarily neglected it was usually the
research work that gave way."
It was the regulatory work that was provided for instead of. research. It was
this condition of affairs which resulted in the destruction of the Bureau of
Chemistry and the creation of a new enforcement unit. This was exceedingly
drastic action to change what Congress had established after twenty years of
discussion in the open forum of the Senate and the House of Representatives. The
cruelty of this punishment and its wickedness is indicated by the fact that it
was legislation grafted on an appropriation bill, the consideration of which was
limited to a few hours debate, with no hearings having been called on the
proposed measure, and no opportunity given to any one opposing it to be heard.
To continue from Mr. Campbell's article:
"The work of administering the Food and Drugs Act has in no way been upset
by the recent change in machinery."
If the work has not been upset nor changed in any way, why was it necessary
to destroy a great bureau and transfer the enforcement of the act to an entirely
new unit?
This is a sad story which will be discussed in another place. In point of
fact, at the very beginning successive attempts were made to nullify this
provision of the law, placing its enforcement in the Bureau of Chemistry. During
the debates in Congress on food legislation, on numerous occasions attempts were
made to divorce the Bureau of Chemistry entirely from any part in the
enforcement of the law. In every case the proposals made for this purpose were
overwhelmingly defeated in both Houses of Congress. It was the plain intent of
the law-makers, after full and free discussion, that its enforcement should be
in the Bureau of Chemistry. The purpose now is to show that the present
administration of the Food Law is entirely different from that intended by
Congress. The death of the Bureau of Chemistry is a clear case of mob violence.
It was lynched.
The Secretary also refers to the fact that this is the proper time to lynch
the Bureau of Chemistry in the following statement:
"This is the logical time to make some changes which could not have been
made before without hurting somebody or doing an injustice to somebody, which
we did not want to do. But now we must get some new heads and if we effect
this reorganization before these changes are made, they will work in with the
new changes and we shall not have to work an injustice on anybody."
This means, of course, bringing in more heads of bureaus. There will have to
be a head and subheads for the new Bureau of Chemistry and Soils, and there will
have to be a new head for the Food and Drugs Administration.
INCORPORATION OF THE BUREAU OF SOILS
Secretary Jardine gave as an excuse for putting a small fragment of the
Bureau of Chemistry with the whole Bureau of Soils the following pertinent
reason:
"The Bureau of Soils itself needs to be revitalized. Everybody in this
country that is working with soils realizes that."
Most truly said. But why does he want to put the Bureau of Soils into the
Bureau of Chemistry to be revitalized, while he takes out of the Bureau of
Chemistry a food administration which is needing revitalizing more than the
Burean of Soils ever did?
The Secretary also has made another discovery which is most interesting. He
states:
"Then in the Bureau of Chemistry we also have questions that are closely
related to soils. Thirty years ago it was not so."
This statement would be interesting to Liebig and the founders of the
Rothamsted Station in England, Lawes and Gilbert, a hundred years ago; to the
late Professor Hilgard, who made soils his specialty during his whole lifetime,
and to Johnson, Hopkins, Snyder, and Goessmann in this country, Hall in England,
Boussingault in France, and to those other chemists, too numerous to mention,
who have for one hundred and fifty years regarded soils a peculiarly appropriate
subject for chemical investigation. One of the great faults of bureaucracy is
to, claim long-known truths as its own discoveries. Before the Bureau of Soils
was ever thought of, the Bureau of Chemistry had developed a scientific
investigation of soils on a strictly practical plan. It had brought samples of
soils from all the different states and from the Rothamsted Station in England.
These soils had been carefully analyzed by the most approved methods, had been
placed in pots carried on railways. It had built a house to put them under cover
when it rained or when it froze. It had carried on elaborate cultivations of the
kinds of crops these soils produced under a standard environment of moisture,
temperature and sunlight. When the Bureau of Soils was organized the first thing
it did was to demand the entire cessation of scientific soil investigation by
the Bureau of Chemistry. The Secretary, at the instigation of the Bureau of
Soils, ordered the soils thus accumulated to be thrown out, the railway
demolished and the building in which the soils were kept, razed. Data
accumulated under several years of investigations were denied publication by the
Bureau of Soils. They still lie in the celebrated morgue of the Department of
Agriculture, mute witnesses of violence, with many others of their like, waiting
for Gabriel's trump. Surely the Bureau of Soils needs a "revitalization." It
needs more a second birth!

PATERNALISM ON THE RAMPAGE
When the Appropriation Bill for 1928 reached the Senate, a luminous statement
was made by Senator King of Utah in regard to it. Speaking of the bill he says
(Congressional Record of January 4, 1927, Vol. 68, No. 17, Page 1051):
"The pending bill reveals a parental care that will put to shame the
Bolshevik or Soviet parentalism. of Russia. We are soon to have a Federal
official in a Bureau or agency now created--and if not we will create one--for
every activity of every individual. He will tell us when to wash our faces,
how to clean our teeth, how to comb our hair, what kind of clothes we should
wear, and how we shall determine the temperature. For every conceivable and
inconceivable mutation of life we shall have the beneficial and blessed care
of some functionary of the government. But let the merry dance go on! We are
on the highway to Bureaucracy. Let Bureaucracy be crowned King and make the
appropriations as much as may be desired, and they regret that they have not
demanded more. So some of these little appropriations, for instance, like the
Bureau of Mines, or the Biological Bureau, or the Bureau of Soils, soon become
so powerful that they will want millions of dollars annually.

CRITIQUE OF THE BUREAU OF SOILS
Now let us see what happened in the committee hearings to the Bureau of
Soils. The following question was asked:
"I want to know wherein the practical benefit is received by the ordinary
farmer or by the agricultural interests of the nation from the chemical and
physical investigations of this Bureau we are now discussing."
The business of the soil survey is to decide what is a soil. Nobody ever
did that before. Unfortunately it seems even God Almighty did not do it."
The modesty of this answer is something overwhelming. It seems that the young
man making the survey, who probably was not even brought up on the farm, ~cam
ride out in a Ford car and look over the fence at a field and tell more about it
than God Almighty, who. created it, knows. This faculty of original discovery of
facts long known is not confined to the Bureau of Soils. It is also
characteristic of other Bureaus in other Departments.
Here is what the man in the Ford car finds out:
"We determine the nature of a soil. We determine the distribution of that
soil wherever that soil is found. We determine the characteristics of that
soil. We know then when the soil survey is carried out that here in a given
place is a certain kind of soil and there is so much of it. We know the soil
in terms of its characteristics, of its texture, for example, of its chemical
composition. To be sure when I talk about chemical composition I cannot say
that it has 2.39 per cent. of potash in it, rather than 2.37 per cent. of
potash. It would take thousands of years to determine that; but I can say
whether it has 2.39 per cent. of potash, or 1.5 per cent. of potash, or .65
per cent. of potash.
For example:
"Let us take Genesee County, New York. We send out two men into that area,
usually with a Ford car, and they locate themselves in some spot in the center
of the area to be surveyed. They go over every road in that county and examine
the soil all along the road. I do not know that I could say accurately that
they examine every foot of the soil in the county; but they go along the roads
and also between the roads, so they can undertake to see all the land in the
county and determine its characteristics. Two men will survey an average
county containing 600 square miles in about six months."
It is thus seen that these two surveyors by driving along the roads in a Ford
car (I suppose any other make of car would do just as well) determine all the
characteristics of the soil down to the depth of ten feet, give it a name, which
is usually the local name of the vicinity, and furnish all the data to make a
map of that county with apparently never having the benefit of a single chemical
or physical analysis of the soil. As in a field of fifty acres, outside of the
glacial region, there may be a dozen different types of soil, this is some feat.
Of course all these men must be trained agriculturists or else they could not
tell the character of the subsoil to a depth of ten feet without having a sample
of it. If they had a sample they couldn't tell anything about its nature until
they had a chemical and physical analysis thereof. They must have intellects of
most unusual character and training that few, even practical farmers, have had,
to make these nice distinctions. Their eyes, too, must have amazing powers of
telopsis to see ten feet below the surface. The striking thing about this is the
vast amount of information the man in the Ford car gathers in about an hour and
a half. So much more information than the Almighty possesses! If it would take
thousands of years to tell whether a soil has 2.39 per cent of potash, rather
than 2.37 per cent, the question arises, how many thousands of years would it
take to get these other data?
Let me quote from another author about this omniscient scientist in the Ford
car; (of course Goldsmith didn't know anything about soil-mapping):
"And still they gaz'd, and still the wonder grew
That one small head could carry all he knew."
But the wonder is not to be restricted. The witness goes on further:
"Now here we have that soil distributed so far. The same results can be
effected on that soil wherever that soil is found."
This is most interesting information. Suppose we take any one of about a
thousand varieties of soil that have been mapped. We find one particular soil in
the northern part of Minnesota. The same soil is found in Missouri. That same
soil is found in Florida. You can grow oranges and sugar cane on that soil found
in Florida. According to the Bureau of Soils you can grow oranges and sugar cane
on that soil in Missouri and in Northern Minnesota. Knowledge of soil is rapidly
growing! This is emphasized by the rhyme:
"When the Sea rolled its fathomless billows
Across the broad plains of Nebraska,
When around the North Pole grew bananas and willows,
And mastadons fought with the fierce armadillos
For the pineapples grown in Alaska."
Speaking of the soil survey man it is stated:
"When his experiments have been carried out, when he obtains his result in
the end--it may be a good long while, experiments are necessarily slow always,
it takes a good long while to find them out,-but when he has found out that on
a given soil certain results are obtained, then if the soil survey has done
what it ought to do those same resulta can be effected on that same soil
wherever that soil is found."
To this I may say that if the soil survey has done what it ought to do it
would take several thousand years of experiment before there would be
justification for publishing a single soil map.
The questioner did not seem to be quite convinced. He asked some other
troublesome questions in regard to how all these data were obtained, and
especially what the chemists were doing. He was informed:
"Well he (the chemist) assists. I am talking now of what he does in
relation to the soil survey. He helps us to determine what the characteristics
of soils are. You see in the soil survey we do not maintain laboratories
because there are other laboratories and there is no use in duplicating.
Considering the intimate knowledge which is obtained by the soil survey in a
Ford, it is interesting to know how much ground is gone over. In answer to the
question, How is your work progressing? thefollowing information was elicited:
"Very well; we are covering now, I cannot give you the exact figures in
square miles, something like 25,000 to 30,000 square miles per year; possibly
a little more than that. Two men will survey an average county containing 600
square miles in about six months.
Another embarrassing question was asked:
"I am talking about the maps. I want to know what practical use the people
who get these soil surveys put them to."
He was told:
"Sometime ago I picked up a copy of Hoard's Dairyman, and in that Journal
there were two photographs; one., a photograph of the roots of alfalfa grown
on one soil type, and the other was a photograph of the roots of alfalfa grown
on another soil type. I believe one lot was grown on bottom land and the other
was grown on upland soil. Now let me stick a pin in it for a moment and go to
another thing.
(The questioner.) "We will put a twenty-penny nail through it."
To this came the response, going one better:
"Or a railroad spike. The soil survey map shows the characteristics of the
soil, not only on the surface, but down to a depth of, say, from six to ten
feet. In other words, it shows the soil all the way down."
All this intimate information from 30,000 square miles a year! C'est
magnifique!
Many questions were asked as to what benefit to the farmer came from the soil
survey. It was the opinion of the Committee that the chief benefits that the
farmer got from the soil maps was in the fact that they gave all the roads. The
particular thing it wanted to know was what practical use ihe people who get
these soil maps put them to. The answer was that the county agent is really the
man to interpret the maps. That may be true now, but when the maps were first
printed there were no county agents.
~ It finally developed that about 35 per cent of the agricultural portion of
the United States has been mapped. At this rate the soil survey will last until
about 1980. The number of different kinds of soils will be nearly 3,000 and
oranges will be growing in Alaska. The different types of soils which have
already been given distinctive names are well up toward athousand.

A REAL SURVEY
While this so-called soil survey has been going on now for nearly thirty
years, costing, exclusive of the printing, approximately five million dollars,
another real survey and mapping has been made by the geological survey.
Numerous contour maps, showing the altitude and physical characteristics of
the soil, have been published. Now the geological survey has introduced aerial
photography as a salient feature of the work. They do not simply look at the
fields from a Ford car. They show them as they are.
"The War Department cooperates with the geological survey in this useful
work. Each photographic unit has an enlisted pilot and photographer and
airplane. As to the area covered, the phenomenal extent of the Soil Bureau
sinks into insignificance. One detachment in 1926 photographed 9,000 square
miles. Another this year has assigned to it 8,000 square miles. Another unit
has been assigned 4,000 square miles in Illinois and will then begin
photographic work in Michigan and Wisconsin." (Science, August 19, 1927, page
165.)
There is a growing feeling that the whole system of soil survey is a gigantic
caricature of applied science; .in other words, it is simply "bunk." This
feeling was a general one at the very beginning of the activities of the Bureau
of Soils. It was not confined solely to the Soil Survey, but to the theories put
out by the Bureau of Soils. Their famous Bulletin No. 22 was vigorously assailed
by the leading agricultural chemists of this country. Among these there was none
of greater eminence than Professor Hilgard of the University of California. Dr.
Hilgard says (Science, New Series, Vol. 18, No. 467, Dec. 11th, 1903, page 755):
"Now the criterion usually applied to the relevancy of soil analyses is
whether they will stand the test of agricultural practice. Judged by this
test, both the ultimate analysis and that by distilled water are, equally,
failures, according to Whitney's own testimony. But his conclusion is that
since his method fails as a criterion of rich and poor soils, therefore the
chemical composition of soils has no bearing upon the crop production; and
that, therefore, the chief factor determining the yield is 'the physical
condition of the soil under suitable conditions.'
" To this assertion 'non sequitur!' is the obvious flrst answer. * * *
"The recent enunciation of the Chief of the Bureau of Soils, while still
maintaining the preferential claim for the physical properties of the soil, at
least admits the importance of the functions of plant food; but claims that
fertilization is unnecessary because the supply would be 'indefinitely
maintained.' He in fact takes us back to the times of Jethro Tull and the
Louis Weedon system of culture, which also presupposed the indefinite duration
of productiveness; but signally failed to realize it when the test of even as
much as twelve years came to be applied.
"In the foregoing discussion, only the salient points of the bulletin in
question have been taken up, and their most obvious weaknesses briefly
considered. To do more would involve the writing of a paper as long as the
bulletin itself; and it is to be hoped that the matter will be taken up by
others, also. Thus, for instance, Rothamsted Station might have something to
say regarding the singular interpretation here put upon the splendid work of
Lawes and Gilbert.
"In conclusion, it seems to the writer that the verdict upon the main
theses put forward so confidently in this paper must be an emphatic 'Not
proven!'"
Dr. A. D. Hall published in Nature, November 9 1903, an article entitled "A
New Theory of the Soil. I quote the following:
"Though Dr. Whitney's main argument is thus hardly tenable on his own
showing, certain side issues are worth a little notice. Dealing with the
action of fertilizers, he notices that, while the wheat crop on the best
fertilized plot at Rothamsted averages about 33 bushels, on the plot which has
been unmanured for sixty years it has fallen to 12 or 13 bushels. Yet on the
similarly unmanured plot in the Agdell field, where the wheat is grown once
every four years in rotation with roots, barley and clover or fallow, but
little falling off is apparent. Hence he concludes that, in virtue of the
rotation, the fertility of the Agdell field is unimpaired, whereas in the
continuous wheat field 'the decrease can be ascribed only to some physical
change in the soil, to some chemical change other than the actual loss of
plant food taken up by the crops.' But when any other crop on the unmanured
plots in Agdell field is considered, the decline in fertility is enormous;
roots and clover only yield minimum crops; so far as they are concerned the
cultivation of the soil involved in the rotation has been quite unable to
maintain the fertility. The wheat, with its powerful root system, holds up
better, but its production is falling steadily; it Is important to see how
long it will be maintained, though it need never be expected to fall to the
level of the continuous wheat, because the land is practically only cropped
every other year.
"Suggestive as Dr. Whitney's memoir must be to all agricultural chemists,
we thus do not consider that the main theory it propounds possesses any
permanent value. We should be sorry if we have failed to appreciate the
argument properly, but it, is not always easy to follow, the text being
somewhat deficient in sequence and orderly arrangement; indeed, we are
disposed to think that had the question been set out a little more nakedly at
the outset, and the demonstration marshalled with more precision, a somewhat
different conclusion would have been reached by the authors."
This array of soil chemical talent was joined by Professor Hopkins of the
University of Illinois, who published a serious attack upon the theories and
practices of the Bureau of Soils. Professor Snyder of the Experiment Station of
Minnesota joined in this assault. The chemists of Cornell University also lent
their aid to combating these theories. No one of the unscientific theories of
the Bureau of Soils was ever approved by the Association of Official
Agricultural Chemists of the United States. These theories of soil fertility
were all built upon the sand and have long since passed away. Our young
chemists, who are not acquainted with all these facts, would find it interesting
to review the literature to which I have just alluded. Professor Hilgard was
constrained to ask the following questions:
"Is freedom of research restricted in the Department as respects soils, and
is everybody in the Department required to believe in the theory of the Bureau
of Soils or to express no opinion whatever in any official capacity? Is the
right to use the soil for research purposes abridged in the Ddpartment of
Agriculture, and if so, to what extent? Are the theories of the Bureau of
Soils accepted by reputable authorities in this and other countries?"
The first and second questions he answered in the affirmative. The third
question he answers strongly in the negative.

A LONG WAIT FOR THE RECOVERY
More than thirty years have passed since the Bureau of Soils was established,
and since the Bureau of Chemistry was denied the privilege of any further
research in soils. Now the Bureau of Soils with all of its unfortunate and
unsavory history is combined with what little is left of the Bureau of
Chemistry, both to be under a common head. May we hope that this head will not
believe in any of the vagaries which have characterized the Bureau of Soils
during its long history, and may he be a man who will never raise his finger or
his voice to prevent ethical research in any branch of science pertaining to
chemistry in all its ramifications, or to soils in all the innumerable varieties
into which they have now been divided.

AN UNFORTUNATE EXCHANGE
What has the Bureau of Chemistry given up? It has given up all it has
acquired in its long and useful career. It has been denied a service to humanity
which, if it had been rendered in the spirit of the law which it represented,
would have proved the greatest blessing to the health and welfare of a nation. A
service of this kind is one in which no person informed in regard to the matters
could have raised the question of cui bono so vigorously advanced in the
hearings before the appropriation committee on the present Agricultural bill.
Finally it has given its life. , We may ask: What would have happened in that
Congress of 1906 if some one interested in adulterating foods had moved to
abolish the Bureau of Chemistry? Outside of sympathizers with adulterators, it
would not have received a single vote in either House or Senate. Those who
engineered this legislation through Congress have thus accomplished the crime in
which their predecessors of twenty-one years ago so signally failed. Tempora
mutantur et nos cum illis mutamus. It was a poor trade. It will take the new
organization many years to live down the bad reputation of one of its
components. Let us hope that the influence of the new Bureau of Chemistry will
cause a radical reform in its new spouse, which will make her unrecognizable in
the near future. What kind of wife has it divorced in order to consummate this
companionate marriage?
Let the old Persian poet and philosopher, Omar, speak:
"You know, my friends, with what.a brave Carouse
I made a Second Marriage in my house;
Divorced old barren Reason from my Bed,
And took the Daughter of the Vine to Spouse."
On the other hand, the new Bureau of Chemistry has lost the opportunity of
ever returning to the fundamental principles of the food law which have been so
thoroughly turned aside. Thus it can never regain the public confidence and
enthusiastic support which the late Bureau merited by its leading influence in
securing the enactment of the Food and Drugs Law. The Bureau of Chemistry is
dead. Those who lynched it should shudder when the people know all the facts of
the murder. The plea of insanity will not avail.

ANTAGONISM BETWEEN RESEARCH AND PRACTICAL CHEMISTRY
The new Bureau is to conduct certain fundamental researches on the chemical
composition of foods, and on the changes that take place in foods as the result
of the action of micro-organisms. In regard to this transfer the following
statement was made:
"That it is work that has heretofore been done under the food and drugs act
appropriation. It is research of a rather fundamental type; although necessary
for food and drugs act enforcement, it seems more logical to place that work
in the Bureau of Chemistry and Soils."
This is rather an effort to suppress investigations among that class of
chemists who are best suited to carry them on in so far as food administration
is concerned. In many other places in the hearings and in the original statement
of the Secretary of Agriculture this restriction of research is stressed.
Not only was the demise of the Bureau of Chemistry thus caused, but the
chemical work is now transferred to another unit under the regulatory system
where denial of research is plainly indicated.
The Secretary of Agriculture himself has just discovered the antagonism
between research and practical chemistry. In the hearings he made the following
statement, after acknowledging that research and practical chemistry had gone
hand in hand up to the present time, and especially in the institution with
which he was connected:
"Research work and regulatory work do not mix any more than water and oil.
We just grew up that way and we have developed to a point now where we think
the regulatory work ought to be in another department by itself, rather than
being in with research. At the present time we have an opportunity to work out
this consolidation.

RESEARCH
It is evident that the legislation abolishing the Bureau of Chemistry and
establishing a new Bureau of Chemistry and Soils and transferring the food
activities to a new department in direct violation of existing law was a
regrettable mistake. One of its purposes was the discouragement of research by
the chemists employed in the regulatory unit. This was a feature of great
importance to the force of the old Bureau of Chemistry. In all matters of
research those who are studying these problems must be in direct contact with
the problems themselves. This is particularly true of research in the problems
relating to foods and drugs. If the problem is not before the research worker he
would be up in the air all the time as to what to do. The problem must be before
the research chemist. He must have an opportunity to study all the relations of
these problems to the industry itself; otherwise he would be groping blindly in
his attempts to find out any new principles which are basic in the particular
industry which he is examining. There is no branch of investigation that needs
more research than is found in the problems which arise in the very numerous
conditions springing from the new foods and drugs administration.
In Science of April 1, 1927, page 307, Professor Metcalf makes the following
statement:
"We believe that every normal individual is born with some endowment of the
research spirit--the inquiring mind given to trying to find out by exercise of
its own powers. Normal children are full of natural curiosity and they have to
a fair degree the habit of experimenting; that is, they are endowed with
something of the research spirit.
"We believe that this mental habit of learning by self-reliant experiment
should be conserved and strengthened from the beginning throughout life. We
believe that all education, from pre-kindergarten age on through the
university, should have this encouragement of the spirit and habit of research
as a main object. We believe that no worth-while job in life can be done with
proper effectiveness in any other spirit. We believe that, in all education,
learning through self-reliant experiment and exercise of individual judgment
should dominate and that the habit of stopping with faith in the printed
statement in the textbook should be avoided as leading to fatty degeneration
of the mind and soul. We believe that teaching should be conducted only by
those who have the research attitude themselves and have ability to cultivate
it in their pupils."

NO NEED FOR THIS RADICAL LEGISLATION
Dr. Browne, before accepting the position as Chief of the Bureau, made it
clearly known to the Secretary that he was not disposed to take any active part
in the execution of the Food and Drugs Act. As Chief of the Bureau he, of
course, would sign all Bureau orders. He was promised that his wishes in this
matter would be respected. In the report of the Chief of the Bureau of
Chemistry, published September 1, 1926, for the fiscal year ended June 30, 1926,
Dr. Browne was able to record the fact that his wish had finally been entirely
realized. He says on page 21:
"A reorganization of the regulatory work involved in the enforcement of the
Food and Drugs Act, the Tea Inspection Act, and the Naval Stores Act was
effected during the year; all such work being placed under the immediate
supervision of an assistant chief appointed for the purpose.
Dr. Browne had thus succeeded in securing his freedom from personal attention
to the execution of the Food and Drugs Act which had long been his ambition and
which had long been promised to him. The Bureau was then in the position he
thought it ought to occupy and his duties were left untrammeled by any personal
supervision of the enforcement activities. In the very next year after this very
desirable condition of affairs was established, the amazing effort was made--and
a successful one--to separate entirely the regulatory work of the Food and Drugs
enforcement from the Bureau of Chemistry.

RADICAL CHANGE OF ATTITUDE
The present attitude of the Food and Drugs enforcement is well expressed by
the Secretary of Agriculture in his report for 1926, page 91. In speaking of the
Federal Food and Drugs Act, he says:
Progress was made in promoting the purity and truthful labeling of food and
drugs through the enforcement of the Federal food and drugs act. This year is
the twentieth anniversary of the enactment of the law. The department looks
upon this act as a corrective measure rather than a punitive one and, in
enforcing it, endeavors to render assistance to the industries in improving
their products. * * * The educational methods followed by the Federal and
State food officials have been effective both in.saving an industry from great
losses and in enabling consumers to obtain an unobjectionable product. * * *
It was found that the educational and regulatory campaigns had accomplished
commendable results. Notwithstanding rather comprehensive sampling, no goods
of last season's pack were found of a character warranting action under the
Federal food and drugs act.
When individual concerns persist in violating the law, or when violations
involve deliberate fraud either through adulteration or misbranding, the full
penalties of the law are invoked to correct the trouble.
A careful study of the Food and Drugs Act shows that there is no warrant in
any one of its provisions for these dilatory tactics. Congress provided a period
of six months in which manufacturers could study the meaning of the law. Now
after twenty years the big business of flouting the law is still encouraged.
There are no corrective features in the law. Every section of this law is
directly or indirectly punitive. There is no clemency for ignorance or accident.
There is no requirement that the offender has knowingly or willfully offended
the law. An amendment to that effect was rejected when the bill was before
Congress. There is no provision for inviting manufacturers to a conference
except when the Bureau of Chemistry has found that their products are either
misbranded or adulterated. Then a hearing is accorded under the law on questions
of fact.
The whole attitude of the enforcing officers is to postpone all punitive
measures just as long as possible. They beg offenders to cease offending instead of bringing them before the Court and executing the law as provided by the law itself. It was intended by Congress that these punitive features should be
enforced. The Secretary of Agriculture is directed by the law to transmit
without delay the findings of the Bureau sent him to the Department of Justice,
which is directed to bring action immediately. Where can the enforcing officer
find his authority for endless delay?
It is not at all strange that when the head of.a department, as has just been
shown, chooses to depart from the methods of enforcement laid down by the law to
those which he claims through experience to have found to be more effective,
that his subalterns fall into the same state of mind. This was shown
particularly in the address of the Assistant Secretary of Agriculture, Hon. R.
W. Dunlap, of Ohio, before the Convention of the State Food and Drug officials
at Denver, in 1925. Mr. Dunlap as Food and Drug Commissioner of Ohio was a
militant enforcer of law. It was hoped that one with his record would bring the
spirit of rigid enforcement into the Food Administration at Washington. This
would replace the theory which had grown up under the impression that the law
was not made to be enforced but only to be used as an educational agent in
bringing infractors to a sense of their crimes. There was hope that at last we
had come to the turning point of the whole matter and that the Assistant
Secretary would throw the whole weight of his experience and training on the
side of strict law enforcement. Alas! it was first at Denver, in 1925, that it
was found that he had been infected by the sleeping sickness of educational
procrastination as a dominant principle in law enforcement. The following
quotation is from his address at Denver in 1925 (page 76, Official Proceedings
of the Twenty-ninth Annual Conference of the Association of Dairy, Food and Drug
Officials of the United States):
"No longer do you gefitlemen regard the total number of seizures
accomplished or of criminal prosecutions instituted or the aggregate of fines
collected as a measure of efficiency in enforcing the laws entrusted to your
care. The broader view, I think, universally prevails that an enforcing
official who as a result of his efforts can point to a trade within his
jurisdiction intelligently and wholeheartedly complying with the law, thus
insuring full protection to the purchasing public as well as fair and
equitable competitive practices has done more to merit the confidence not only
of the public which he protects but of the industry which he regulates than
one who by virtue of threats of penalties and confiscation procures an
unwilling compliance rather than the support of the law he is administering. *
* * Through the adoption of this theory of control, costs of litigation have
been eliminated and a constructive leadership maintained to the benefit of all
concerned. * * * The Department, as many of you know, now carries on its food
and drug law enforcement through the Bureau of Chemistry under an organized
plan of procedure along very well defined lines, known as the project plan of
work. Certain industries are investigated throughout the entire country for
the purpose of determining what violations if any exist and then of taking
appropriate steps toward their correction. By this means a uniformity of
action against every member of an industry is insured and the maximum
corrective effect is obtained through educational means, to be followed by
punitive action in those cases where educational measures are ineffective."
Thus we find this militant state official who fought the whole array of
adulterators and misbranders at the Denver Convention in 1909 praising a method
of enforcement of the Act which is not found anywhere in the Act nor by any
possible construction of any of its features.
It may well be asked why after twenty years of experience manufacturers have
still to be cited to kindergarten instruction as to the meaning and purport of
the Food Law? As a rule, manufacturers of foods are fully informed as to the
requirements of the Food Law, both of the nation and of the state. If they are
not so informed it is their own fault. There is no requirement that these
schools of instruction should be established and the money appropriated by
Congress for the enforcement of an Act be used for the purpose of instructing
manufacturers as to their duties under the Act.
Mr. Paul Dunbar, head of the regulatory division in the Bureau of Chemistry,
in a recent article in the Oil, Paint and Drug Reporter under the head "Trade
Warnings Issued," says:
"If, on the other hand, the infraction is one which appears to be the
result of a misunderstanding and the ensuing damage to the public is not of
such a character as to require immediate removal of the goods from the market,
it is the practice of the bureau before initiating regulatory action to give
notice to the trade, advising that on or after a certain date legal action
under the food and drug act will be instituted if continued violations are
encountered. Where the facts seem to warrant it such notice may be preceded by
a public hearing at which interested parties are accorded opportunity for free
discussion.
"Opinions may differ as to what types of violation are of such character as
to require drastic action, and what may be tolerated for a time sufficient to
give warning to the responsible manufacturer. * * *
"The decision as to what course shall be taken in any particular instance
rests with the administrative officials of the Bureau of Chemistry in
Washington or the Director of Regulatory Work. * * *
"Substantially the only thing the food and drugs act requires of a
manufacturer is that his products be fit for use and that they be not labeled
so as to deceive, mislead or defraud the purchaser. * * *
"It is the bureau's theory that more is to be accomplished by acting in an
advisory capacity under such conditions as will insure legal products than by
accumulating a record of successful prosecutions with attending flues turned
into the Treasury of the United States."
Thus we see, through all the branches of food enforcement activities, this
laissez faire principle. There is no longer any virtue in applying the penalties
prescribed by law. There is no longer any adulteration that threatens health.
Business must be preserved. Penalties were intended as aids to reformation. They
are not now to be inflicted except as a last resort. Such is the regrettable
condition into which law enforcement has fallen.

AN INTERESTING STORY OF COCA-COLA
Many other instances of softness in food-law enforcement may be cited. Early
in the history of the activities of the Bureau of Chemistry in its efforts to
carry out the provisions of the food law evidence in relation to the Coca-Cola
habit, especially in the South, was procured. The character of this evidence was
sufficient to induce the enforcing officers to bring charges against Coca-Cola
under the Food and Drugs Act. A number of seizures of the goods in transit was
recommended and criminal charges against the manufacturers and dealers were
formulated. It was impossible to get any of these accusations endorsed by the
Board of Food and Drug Inspection. Finally the Bureau of Chemistry was ordered in writing, over the signature of the Secretary, to cease its activities in
trying to bring Coca-Cola to the bar of justice. A short time after this order
was received Mr. Seely, proprietor of an influential newspaper in Atlanta, paid
the Bureau a visit. In the course of his conversation he asked why no case had
ever been brought against the Coca-Cola corporation. In answer to this question
he was shown the order of the Secretary of Agriculture, forbidding the Bureau of
Chemistry from making further efforts in this line. He was greatly astonished
that the Secretary of Agriculture had thus interfered with the administration of
justice. He immediately called on the Secretary of Agriculture, and he entered a
vigorous protest against the policy of the Department in protecting adulterators
and misbranders of foods. He stated to the Secretary that unless this order was
recalled he would publish all the details in the matter in his newspaper. The
Secretary promptly recalled the order and directed the Bureau to proceed with
its activities. The officials of the Bureau desired to bring the case in the
District of Columbia, as more convenient for the Government in assembling its
evidence and experts. Two members of the Board of Food and Drug Inspection were
determined that the case should be brought in Chattanooga. In the latter city
the Coca-Cola Corporation had its chief bottling works. They also owned large
bodies of real estate, including the principal hotel. The whole environment at
Chattanooga was favorable to the Coca-Cola industry. The Department was put to a
large expense to send its scientific officers so far away from the base. It was
equivalent even to trying the case in Atlanta, if that had been possible under
the law.
The result of this trial, which was a long drawn out one, lasting over three
weeks, is found in Notice of Judgment No. 1455. The case was warmly contested.
Experts testified on both sides and with the usual contradictory testimony,
which it is not advisable even to summarize here. When the evidence was
completed, the attorneys of the defendant moved to dismiss the libel on the
ground that caffein (caffeine), which was the chief injurious substance in Coca-Cola, was
not an added substance because it was mentioned in the original formula. The
presiding judge, the Hon. E. T. Sanford, granted this motion, and the case was
therefore dismissed.
The Department of Justice appealed the case to the United States Circuit
Court of Appeals of the sixth district. This court sustained the action of the
court below. (Notice of Judgment No. 4032.) The Department of Justice then
appealed the case to the Supreme Court of the United States. The unanimous
opinion of the Supreme Court held that the courts below erred in their decision,
and the case was remanded for a new trial. This action of the Supreme Court is
detailed in Notice of Judgment No. 4801 issued Septembher 18, 1917. The opinion of the Supreme Court was written by Justice Charles E. Hughes. Justice Hughes' decision contained the following principal points:
"The questions with respect to the charge of 'adulteration' are (1) whether
the caffein in the article was an added ingredient within the meaning of the
Act (section 7, subdivision 5) ; and if so (2) whether it was a poisonous or
deleterious ingredient which might render the article injurious to health. The
decisive ruling in the courts below resulted from a negative answer to the
first question, * * * but it was concluded, as the claimant contended, that
the caffein--even if it could be found by the jury to have the alleged
effect--could not be deemed to be an 'added ingredient' for the reason that
the article was a compound known and sold under its own distinctive name, of
which caffein was a usual and normal constituent."
Justice Hughes discusses in considerable detail the claims of the defendant
and then continues as follows:
"Having these considerations in mind, we deem it to be clear that whatever
difficulties there may be in construing the provision, the claimants' argument
proves far too much. We are not now dealing with the question whether the
caffein did, or might, render the article in question injurious; that is a
separate inquiry. * * * We think an analysis of the statute shows such a
construction of the provision to be inadmissible, * * * nor can we accept the
view that the word 'added' should be taken as referring to the quantity of the
ingredients used. It is added ingredient which the statute describes, not
added quantity of the ingredient, although, of course, quantity may be highly
important in determining whether the ingredient may render the article
harmful, and experience in the use of ordinary articles of food may be of the
greatest value in dealing with such questions of fact. * * * We can see no
escape from the conclusion that it is an added ingredient within the meaning
of the statute."
Justice Hughes also comments on the claim made by the defendant that
Coca-Cola was not a misbranding, but that it was a distinctive name, and he
continues as follows:
"We are thus brought to the question whether if the names 'Coca' and 'Cola'
were respectively descriptive, as the Government contends, a combination of
the two names constituted a distinctive name within the protection of the
proviso in case either of the described ingredients was absent. * * * In the
present case we are of the opinion that it should not be said as a matter of
law that the name was not primarily descriptive of a compound with coca and
cola ingredients as charged. Nor is there basis for the conclusion that the
designation had attained a secondary meaning as the name of a compound from
which either cocoa or cola ingredients were known to be absent; the claimant
has always insisted and now insists that its product contains both. But if the
name was found to be descriptive, as charged, there was clearly a conflict of
evidence with respect to the presence of any coca ingredient. We conclude that
the court erred in directing a verdict on the second count.
"The judgment is reversed and the cause is remanded for further proceedings
in conformity with this opinion."
The above decision of the Supreme Court, discussing as it did all the angles
of a legal character, completely demolished the lines of defense established
during the trial, having decided on both counts, first that caffein was an added
substance, and second that Coca-Cola was a descriptive and not a distinctive
name. The subsequent proceeding before the court must of necessity result in
victory on the part of the Government. It was a long while, however, before the
case was called for retrial in harmony with the injunction of the Supreme Court.
The case was called in the District Court of Tennessee at Chattanooga on
November 12, 1917. The defendants, otherwise known as the claimants in the case,
entered a plea of nolo contendere. On motion of the district attorney the court
passed the following sentence:
"' Now, therefore, the premises considered, it is ordered, sentenced and
adjudged by the court, now here, and His Honor, the district judge, by virtue
of the power and authority in him vested, does hereby order, sentence and
adjudge that the goods, wares and merchandise seized in this proceeding be,
and the same are hereby forfeited to the United States, and that the said
Coca-Cola Company pay all costs of this proceeding. And it is further ordered
that the said goods, wares, or merchandise, seized herein, to wit, the forty
barrels and twenty kegs of Coca-Cola, shall be released to the claimant upon
said claimant paying the cost above adjudged and giving sufficient bond,
conditioned that the product shall not be sold or otherwise disposed of
contrary to the provisions of the Federal Food and Drugs Act, or the laws of
any state, territory, district, or insular possessions of the United States."
Added to this decision is the following paragraph:
" It is further ordered, adjudged and decreed that the judgment of
forfeiture shall not be binding upon the said Coca-Cola Company or its
product, except as to this cause, and the particular goods seized herein, nor
binding upon the claimant and its product as it shall relate to any other
cause or proceeding of any kind or character."
This paragraph was evidently interpreted by the food enforcement officials to
forbid any further proceedings against the Coca-Cola Company or its product on
the part of the administrative authorities executing the food law. In any case
the answer is that it is not binding on anybody except the Coca-Cola Company and
further that it did not stop the executive authorities enforcing the food law
from further proceedings against the Coca-Cola Company or any of its products.
No attempt was made by the executors of the food law to enforce the decree of
the courts by beginning action against Coca-Cola products every time they
crossed a state line. Under the opinions of the Supreme Court such proceedings
would have been uniformly successful. Owing to a lack of these proceedings the
Coca-Cola Company has its stock now listed on the New York Stock Exchange. Its sales have been enormously increased, invading the North, as they previously
invaded the South. The effects of drinking caffein on an empty stomach and in a
free state are far more dangerous than drinking an equal quantity of caffein
wrapped up with tannic acid in tea and coffee. (emphasis added) The threat to health and happiness of our people is reaching far greater proportions due to this
expansion of trade. The governors of the New York Exchange have admitted the
stock of the Coca-Cola Company, the products of which have been condemned by a United States Court as both adulterated and misbranded. This baleful condition
could have been easily avoided if the enforcing officers had raised their hands
in protest against the further development of this business by seizing its
products and bringing criminal action against its manufacturers.
Another interesting story would have been clarified if the Supreme Court
could have passed an opinion on the immunity granted the Coca-Cola Company by
the court.

THE PATHETIC STORY OF BLEACHED FLOUR
A further illustration of law enforcement negligence is found in the bleached
flour case. On or about April 11, 1910, the Lexington Mill and Elevator Company
shipped from Lexington, Nebraska to Castle, Missouri, a consignment of six
hundred twenty-five sacks of flour, labeled "L 48-1 pounds Lexington Cream XXXXX
Fancy Patent. This flour is made of the finest quality hard wheat. Lexington
Cream--Lexington, Neb.--Lexington Mill & Elevator Co."
In due course libel was filed against the said 625 sacks of flour, charging
that the product was adulterated and misbranded, and praying seizure and
condemnation of said flour. In due course the case was called in the District
Court of the United States in the Western Division of Missouri, by Arba S. Van
Valkenburgh, District Attorney. Fortunately, the United States was able to
secure as associate counsel for the prosecution of this case Mr. Pierce Butler,
who assumed the principal rôle of the prosecuting officer, and is now an honored
Associate Justice of the Supreme Court. Extensive testimony was given by
experts, millers, wheat-growers, wheat-buyers, and other competent parties, both
for and against the process of bleaching. The Honorable Smith McPherson acted as
judge in the case. Judge McPherson in instructing the jury, used in part the
following language (Notice of Judgment No. 722, November 4, 1911):
"The flour seized in this case is an article of food within the meaning of
the act of Congress. And if the treatment of the same by the Alsop process
caused it to contain any added poisonous or other added deleterious ingredient
of a kind or character which may render the same injurious to health, then it
is adulterated and must be condemned.

"It is admitted that this flour was treated by the Alsop process for the
purpose of bleaching or whitening, and the evidence establishes that
nitrogen-peroxide gas was employed for that purpose and further establishes
that that gas, nitrous acid, nitric acid, and nitrites of the kind which may
be produced by such treatment are poisonous and deleterious substances, and
that these substances when taken in sufficient quantities will produce
poisonous action or death.

"It appears from the evidence in this case that the bleaching process
imparts and adds to flour substances referred to in the testimony as nitrites
or nitrite-reacting material, and such substances were imparted to the flour
seized in this case by the bleaching process. It further appears from the
evidence that such substances so imparted or added to this flour are
qualitatively both poisonous and deleterious, that is to say, that these
substances are of a poisonous and deleterious character.

"It is well known that wheat flour is not eaten raw. There is evidence in
this case that tends to show that during the process of making bread nitrites
or nitrite-reacting material contained in the flour is lessened and may be
eliminated under some circumstances, but it is also well known that wheat
flour is used for the making of other articles of food--biscuits, dumplings,
pastry, cake, crackers, gravy, and perhaps other articles of food--which may
be consumed by all classes of persons--the young, the old, the sick, the well,
the weak, the strong; and I charge you that it is right for you in reaching
your verdict to take these facts into consideration together with all the
other proven facts and circunistances in the case.
"The fact that the Patent Office at Washington issued a patent for the
Alsop process has nothing to do with the question of branding correctly, or
misbranding of flour. The fact that the Patent Office issued a patent for the
Alsop process does not warrant nor authorize the adulteration of flour as made
by the Alsop process if it is adulterated. All these things must be put to one
side, and your verdict must be determined in accordance with the law and facts
in the case. It is of no importance to, you, nor is it of importance to me,
who will be pleased or displeased in this case, whether of counsel or of the
parties, or of any other person. The only question is, "What is the right, and
what is the wrong of this case?"
Thereafter the jury returned verdicts as follows:
"We, the jury, find that the flour seized in this case is adulterated.
(Signed, John W. Thomason, Foreman.) "
"We, the jury, find that the flour seized in this case is misbranded.
(Signed, John W. Thomason, Foreman.)"
An appeal was taken from the decision of the Court and the jury to the United
States Circuit Court of Appeals of the Eighth District. On January 23, 1913, the
case having come on for hearing before the Circuit Court of Appeals, the
judgment of the Court below was reversed, and the case remanded for a new trial.
In reversing this verdict the Circuit Court said:
"The Court charged the jury: 'It is clear that it was intended by Congress
to prohibit the adding to the food of any quantity of the prohibited
substance. The fact that poisonous substances are to be found in the bodies of
human beings, in.the air, in potable water, and in articles of food such as
ham, bacon, fruits, certain vegetables and other articles does not justify the
adding of the same or other poisonous substances to articles of food, such as
flour, because the statute condemns the adding of poisonous substances.
Therefore, the court chargeth you that the Government need not prove that this
flour, or food stuffs made by the use of it, would injure the health of any
consumer. It is the character, not the quantity of the added substance, if
any, which is to determine this case.'
"The trial judge decided that if the added substance was qualitatively
poisonous, although in fact added in such minute quantity as to be
non-injurious to health, that it still fell under the ban of the statute; and
the distinction is sought to be drawn between substances admittedly poisonous
when administered in considerable quantities but which serve some beneficial
purpose when administered in small amounts, and those substances which it is
claimed never can benefit and which in large doses must injure. The
distinction is refined. To apply it must presuppose that science has exhausted
the entire field of investigation as to the effect upon the human body of
these various substances . . . that nothing remains to be learned. Otherwise
the court would be required to solemnly adjudge today that a certain substance
is qualitatively poisonous because it can never serve a useful purpose in the
human system only to have this conclusion made absurd by some new discovery.
There is no warrant in the statute for such a strained construction. The
object of the law was evidently (1) to insure to the purchaser that the
article purchased was what it purported to be, and (2) to safeguard the public
health by prohibiting the inclusion of any foreign ingredient deleterious to
health. Hall-Baker Grain Co. v. United States (198 Fed. 614). The statute is
to be read in the light of these objects, and the words 'injurious to health'
must be given their natural meaning. It will be observed that this paragraph
of the statute does not end with the words 'added deleterious ingredient,' but
as a precaution against the idea embodied in the instruction complained of, it
says 'which may render such article injurious to health.' Without these latter
words, it might, with more force, be argued that deleterious and beneficent
ingredients are to be divided into two general classes independent of that
particular effect in the actual quantities administered, but the possibility
of injury to health due to the added ingredient and in the quantity in which
it is added is plainly made an essential element of the prohibition. The
investigation does not stop with the consideration of the poisonous nature of
the added substance. It is added to the article of food and the statute only
prohibits it if it may render such article--the article of food--injurious to
health.
"The judgment below must be reversed and the case remanded for a new trial,
and it is so ordered."
(Notice of Judgment 2549, issued October 18, 1913.)
The Department of Justice immediately appealed from the decision of the
Circuit Court to the Supreme Court of the United States. The case was called by
the Supreme Court on February 24, 1914. The Supreme Court confirmed the decision
of the Circuit Court below and remanded the case to the original court for
retrial. The decision of the Supreme Court was written by Mr. Justice Day, and
was a unanimous decision. The Supreme Court made many luminous explanations in
regard to the matter under consideration. The decision, among other things,
states:
"The statute upon its face shows that the primary purpose of Congress was
to prevent injury to the public health by 'the sale and transportation in
interstate commerce of misbranded and adulterated foods. The legislation, as
against misbranding, intended to make it possible that the consumer should
know that an article purchased was what it purported to be; that it might be
bought for what it really was and not upon misrepresentations as to character
and quality. As against adulteration, the statute was intended to protect
public health from possible injury by adding to articles of food consumption
poisonous and deleterious substances which might render such article injurious
to the health of consumers. If this purpose has been affected by claims and
unambiguous language,, and the act is within the power of Congress, the only
duty of the courts is to give it effect according to its terms. * * * Congress
has here in this statute, with its penalties and forfeitures, definitely
outlined its inhibition against a particular class of adulteration. * * *
"It is not required that the article of food containing added poisonous or
other added deleterious ingredients must affect the public health, and it is
not incumbent upon the Government, in order to make out a case, to establish
that fact. The act has placed upon the Government the burden of establishing,
in order to secure a verdict of condemnation under this statute, that the
added poisonous or deleterious substances must be such as may render such
article injurious to health. The word 'may' is here used in its ordinary and
usual signification, there being nothing to show the intention of Congress to
affix to it any other meaning. It is, says Webster, 'an auxiliary verb,
qualifying the meaning of another verb by expressing ability, * * *
contixgency or liability, or possibility or probability.' In thus describing
the offense Congress doubtless took into consideration that flour may be used
in many ways-in bread, cake, gravy, broth, etc. It may be consumed, when
prepared as a food, by the strong and the weak, the old and the young, the
well and the sick; and it is intended that if any flour, because of any added
poisonous or other deleterious ingredient, may possibly injure the health of
any of these, it shall come within the ban of the statute. (Notice of Judgment
3398.)
The above quotation, it will be observed, is largely based on the
instructions given by the trial judge, the Honorable Smith McPherson, to a trial
jury. The information, however, which it gives those who undertake to prove
injury to health is of the highest significance. The Supreme Court of the United
States says to those who enforce the law that it is not required "that the
article of food containing added poisonous or other added deleterious
ingredients must affect the public health, and it is not incumbent upon the
Government, in order to make out a case, to establish that fact." This
iialicizing of this statement was not done by the Supreme Court, but by myself.
I believe it is a very important statement made by the Supreme Court in regard
to the enforcement of the Food and Drugs Act. It was worth all the trouble and
disappointment of having the decision of the bleached flour case reversed in
order to secure such a luminous explanation as the result thereof.
When this case was decided the World War had already broken into flames over
the whole continent of Europe. It was soon evident that the United States of
America would eventually be drawn into this whirlpool of destruction. There is
no wonder that all thought of bleached flour was forgotten in the excitement and
activities which preceded our entrance into this great conflict. It was not
until the contest was over and the victory had been won that any further
procedure was taken. It was not until April 1, 1919, that counsel for the
government of the United States called the attention of the District Court of
the Western District of Missouri to the fact that the mandate of the Supreme
Court had never been put into effect. Under the ruling of the Supreme Court the
claimants for the 625 sacks of flour had had practically the whole foundation of
their defense swept away. They were very glad, therefore, to make some
arrangement with the District Attorney whereby they could retire, not without
laurels, from any further contest of this case. To this end they proposed that
if one section of the libel would be dropped they would enter a plea of nolle
contendere to the other parts of the libel. Accordingly, Francis M. Wilson,
United States District Attorney, withdrew section e of the libel which reads as
follows:
" (c) In that, by the treatment as aforesaid, the said flour has been
caused to contain added poisonous, or other added deleterious ingredients, to
wit: nitrites or nitric reacting material, nitrogen peroxide, nitrous acid,
nitric acid, and other poisonous and deleterious substances, which may render
said flour injurious to health."
Accordingly, the Court entered the following verdict on the 9th day of,
April, 1919:
"Now, therefore, it is ordered that the said amended libel be taken pro
confesso; and the said cause coming on to be heard ex parte, and the court
being fully advised, doth find all of the allegations of said amended libel
herein are true.
"It is, therefore, ordered adjudged and decreed that the six hundred and
twenty-five (625) sacks of flour, more or less, as aforesaid, be and the same
are hereby condemned and forfeited to the United States, and the marshal of
this court is hereby ordered and directed to proceed to confiscate a,nd
utterly destroy all of said property, and to report to this court how he
executed this order and decree.
"It is further ordered adjudged and decreed that the taxed costs of the
libelant herein, and the taxed costs of the claimant, be paid by the claimant,
Lexingtqn Mill and Elevator Company, said claimant in open court consenting
thereto." (Notice of Judgment No. 6380.)
This famous case was ended April 9, 1919. No notice, however, was taken of
this event by the executive officials of the Department of Agriculture, until
July 31, 1920. On this date the following remarkable document was issued:
"Labeling Bleached Flour.
Department of Agriculture Announces Ruling on Bleached
Flour Under the Food and Drugs Act.
Washington, D. C., July 30, 1920 - Bleached Flour coming within the
jurisdiction of the Federal Food and Drugs Act is adulterated if the bleaching
has reduced the quality and strength of the flour or concealed damage or
inferiority, according to a statement issued to-day by the Bureau of
Chemistry, United States Department of Agriculture, in answer to a number of
inquiries regarding the attitude of the department on the bleaching of flour.
Bleached flour may be shipped within the jurisdiction of the law only under
the condition that the bleaching has not concealed inferiority or impaired the
quality or strength of the article, and then only on condition that it is
branded plainly to indicate that it has undergone a process of bleaching.
Failure to label the containers to show that such -flour has been bleached
will subject it to a charge of misbranding.
"The United States Supreme Court has ruled with reference to the section of
the law relating to the addition of a poisonous or deleterious ingredient that
to constitute an offense an article of food sold must, by the addition of an
ingredient, be rendered injurious to health, and, furthermore, that all the
circumstances must be examined to determine whether the article of food has
been rendered injurious. No action will be taken at the present time on the
ground that bleaching introduces into the flour a substance which may be
injurious to health, say the officials, provided as a result of bleaching
there is not introduced into the flour such a quantity of the bleaching agent
as may render it injurious as indicated in the decision of the Supreme Court.
Should evidence later become available that the bleaching of flour introduces
an ingredient in minute quantities which has the effect of rendering the
article injurious to health, announcement of the fact will be made and
appropriate action taken to prevent thereafter the shipment of bleached flour
within the jurisdiction of the food and drugs act.
"Whether bleaching in any given shipment reduces the quality and strength
of the flour or conceals damage or inferiority must be decided on the basis of
the facts in each particular ease. "
In regard to this document I may say that its purpose evidently was to open
wide the opportunities for bleaching flour and the promise that no action would
be taken looking to a restriction of this process. In point of fact no effort
has ever been made directly or indirectly to take advantage of this victory
before the court in considering bleached flour as both an adulterated and
misbranded article. The result is that the millers who at first were unwilling
to indulge in bleaching have been forced to bleach in order to maintain their
trade. This proclamation was properly interpreted by the bleachers. They knew
its exact intent, that it was an open statement to the millers and the public
that no further steps toward the control of this injurious and highly
undesirable practice would be taken in any way to restrict or hinder this
practice. Nearly ten years have now elapsed since this proclamation was made,
and so far as bleaching flour is concerned by any process whatever the Food and
Drugs Act does not exist. It seems indeed incredible that a food enforcement
bureau of any kind, would read into the opinion of the Supreme Court an entirely
antagonistic statement respecting injury to health. The food enforcement
officers said you must convict the adulterator of injur~ng health. The Supreme
Court said it is not necessary on the part of the Government to bring any
evidence looking to the actual establishment of injury and it is not incumbent
upon the Government to do this. All the Government has to do is to show the
possibility in the most extreme case of doubt that such injury may take place.
Thus the very law which the Supreme Court has said was enacted chiefly to
protect the public health has been turned into a measure to threaten public
health and to defraud the purchasers of flour.
GOING BACK TO BUSINESS PRACTICES
A more pointed illustration of how the administration of the food law is
gradually being transferred to manufacturers of food products is found in a
circular issued by the Department of Agriculture of September 302 1927, in
regard to the floating of oysters. The title of this remarkable contribution is
"New Jersey Oyster Industry Adopts Plan to Improve Oysters."
The "improvement" in oysters is to introduce into them certain quantities of
water which the old regulations in regard to oysters forbade. It calls attention
to the fact that the New Jersey shippers of oysters are dissatisfied with
governmental rulings respecting excessive quantities of added water. Different
regulations permitting the addition of water have been unanimously adopted by
the New Jersq dealers. This action on the part of the New Jersey dealers was
taken as a result of an old ruling of the Department of Agriculture for
preventing shipment into interstate commerce of oysters floated in water less
salty than that in which they were grown. The circular says:
"It developed that the aims of the oystermen and of the department were in
harmony, namely, the production of the best oysters possible for the market in
accordance with good commercial practices, and in which are incorporated no
greater quantities of added water than are necessary, it being recognized that
in the commercial cleansing of oysters for the market a small amount of water
is necessarily incorporated. * * *
"The desire of the oystermen to place on the market only oysters of the
highest grade is shown by their proposal to arrange for scientific
investigations of the habits and characteristics of the oyster, with a view to
obtaining the knowledge necessary to a final determination of the best
procedure to insure the best oysters for the market, and desirable methods for
obtaining the cleanest oysters with a minimum amount of added water."
Here is a great industry which had been saved from practical destruction by
the original ruling of the Department that no water of any kind should be added
to oysters in shipment or otherwise, and that the ice which kept them cold in
shipment should be placed on the outside of water-tight tin boxes in which the
oysters were carried. It is not true that any washing of oysters is necessary in
preparing them for market. The only purpose of the washing is to introduce
additional quantities of water which will make the oysters swell and look bigger
and fatter than they are.
This is a complete surrendering to the industry of the task of making rules
and regulations for conducting this industry, not in the interest of the
consumer but in the interest of the producer. It marks an entire reversa in ese
matters. The Food and Drugs Act was based on commercial practices which were
detrimental and injurious to the consuming public. If the oyster industry is
permitted to make its own regulations and its own scientific investigations
there is no reason to doubt that all other industries will in the near future be
accorded the same privilege.
A few years ago I was waiting to buy a ticket from New York to Boston. When
the man in front of me bought his ticket and turned around, he recognized me and
asked: "Are you Dr. Wiley?" I said I was. He said: "A few years ago I was the
president of the Long Island Oyster Association. We regarded you as the
arch-enemy of our industry when under your direction the ruling was issued that
we should not add water to oysters that we shipped, nor place ice in contact
with the oysters that we shipped. We considered you a devil incarnate. Now we
know that decision was the salvation of our industry and I want to take your
hand and congratulate you on doing the greatest service to the oyster industry
that could possibly have been done. We are selling a dozen times as many oysters
now in a perfect condition as they come from the water as we did at the time of
your ruling.
ATTITUDE OF THE CHIEF OF THE FOOD, DRUGS
AND INSECTICIDE, ADMINISTRATION
Mr. W. G. Campbell, the new chief of the food enforcement unit, having
succeeded the former Bureau of Chemistry, recently said:
"Respect for the law can be maintained only when there is a full
realization on the part of those who are regulated that disregard of its
provisions will be promptly followed by legal action."
This is a concise and perfect statement of the purpose of the Food Law. Not
only is it the duty of the officials to enforce these provisions, but the law
itself states there shall be no delay.
It seems quite impossible to reconcile this statement of the Director of the
Regulatory Service with the following one:
"While the food and drugs act remains what it has always been, a statute of
protection primarily in character, but corrective rather than punitive, a
course established to meet the conditions of two decades ago will be
inadequate as a present day plan."
Here it is stated that a new "course" has been established, yet no change has
been made in the punitive provisions of the old law. Only the enforcing bureau
has been changed and a new bureau put in its place by legislation illegally
engrafted on an appropriation bill. The only conclusion to be drawn from this
statement is that a new law has been established by the enforcing officers
without the aid of Congress and without any opportunity of discussing its
principles.
In further justification of this new law Mr. Campbell says:
"With the change in the attitude of the industry, the Bureau of Chemistry
had more and more as years passed by adopted 'an advisory before the act'
attitude in dealing with individuals shipping commodities subject to the law,
and that attitude will unquestionably continue to be the keynote of the Food,
Drug and Insecticide Administration."
This remarkable statement, coming from the chief of the new Regulatory Unit,
proclaims to the world that the chief function hereafter will be the education
of those who disobey the act in an effort voluntarily to get them to desist. In
other words, the punitive features of the law, which are the only ones in the
law, are to be neglected for the sake of the corrective activities established
by the enforcing officers.
Continuing the quotation, Mr. Campbell says:
"At the time the agitation for the enactment of the Federal measure had its
inception the number of food and drug manufacturers whose conception of
business ethics was tersely. 'let the buyer beware' constituted at least a
very imposing minority. Today enforcing officials will be unanimous in
expressing the conviction that deliberate violations in the distribution of
foods and drugs are extremely rare. This change in attitude of the industry
during the past two decades has made it possible, therefore, in a large
measure to recast the methods of law enforcement so as to emphasize the
corrective features of the food and drugs act rather than the punitive side of
the measure."
This statement concisely expresses the complete paralysis of the food law. It
is to be recast without appeal to Congress. There is nothing in the food law
about corrective measures. These corrective measures have been at the
instigation of the food officials without any warrant whatever from legislation.
The food law is exclusively punitive, and this construction of it has been
approved more than once by the Supreme Court of the United States. Why then
should officials who have taken an oath to support the Constitution and the laws
made thereunder, read into the law as its chief feature a meaning absolutely
foreign to its purpose? The Bureau of Chemistry as constituted at the time of
enforcement of the act was solely concerned in enforcing its punitive
regulations. It did not consider it advisable to waste energy from its sworn
duty in setting up a kindergarten or Sunday School to persuade violators of the
law to desist. The law pointed out exactly what it should do, and for a short
time only was this purpose of the law carried out. There is no wonder that the
administration of the food law has so hopelessly broken down. It would be a
matter of interest if those enforcing the food law would take a little time off
and read the law carefully once more in order that they might see what their
duties really are.
The Moss Committee, on page 5 of their report, after citing all the
difficulties placed in the path of the Bureau of Chemistry in its efforts to
execute the law, says:
"Thus the administration of the law began with a policy of negotiation and
compromise between the Secretary and the purveyers of our national food
supplies. * * *
"It was a matter for profound congratulation that the great body of
American citizenship yielded prompt and willing obedience to the law, and to
such it was only required that the terms of the law be fully explained. The
necessary readjustment of their business required time, and it was good
administration to grant reasonable opportunity for such a purpose."
At the present time there is no manufacturer of foods in this country who
does not understand that he is to tell the truth on his labels and to add no
substances injurious to health to his food products. Although the use of various
injurious agents has been permitted by the perversions of the law, practically
the use of such preservatives as benzoate of soda and borax is today unknown.
There is no need, therefore, of any further education or persuasion of food
manufacturer§ to obey the law. What is needed now is to brush away all the
illegal restrictions which were fastened round the Bureau of Chemistry, and to
execute the law as it was written, and as it has been interpreted by the Supreme
Court.
The Supreme Court in the case of the United States vs. Morgan et al. in a
decision handed down December ill 1911, made this pregnant remark:
"Repeals by implication are not favored, and there is certainly no
presumption that a law passed in the interest of the public health was to
hamper district attorneys, curtail the powers of grand juries or make them,
with evidence in hand, halt in their investigation and await the action of the
department. To graft such an exception upon the criminal law would require a
clear and unambiguous expression of the legislative will."
The above is a hard blow to a repeal by illegally abolishing the Bureau of
Chemistry.
THE CONCLUSION OF THE WHOLE MATTER
An endeavor has been made in the preceding pages to set down the facts
relating to the amazing crime of perverting the Food and Drugs Act of 1906 and
destroying.the Bureau of Chemistry. The leit motif has been only to tell the
truth. Sometimes telling the truth is not wise. If, however, one tells anything
it should be the truth. The common adage says that speech is silver and silence
is gold. These efforts, therefore, may be considered as an essay on free silver.
In these concluding pages the purpose is to summarize the main points, and to
show the way to the new era.
ILLEGAL FOOD AND DRUG DECISIONS
All of the decisions of the "Board of Food and Drug Inspection" were illegal.
It was not provided for in the Act and the plain purpose of its organization was
to prevent the Bureau of Chemistry from carrying out the provisions of the law.
Theoretically all of the decisions should be repealed. Many of them were in
strict accordance with the terms of the law, and therefore are not necessarily
to be deleted. The following numbered decisions are in strict violation of the
law, and the first step toward clearing the atmosphere and restoring the Food
Law to its pristine form is the repeal of the following food inspection
decisions. Some of these decisions were those of the Board of Food and Drug
Inspection; others were signed by the members of the Cabinet directed by law to
make rules and regulations for carrying the law into effect. Whenever the
Secretary of Agriculture, the Secretary of the Treasury, and the Secretary of
Commerce and Labor signed a Food Inspection Decision, it became a rule and
regulation. Rules and regulations not for the purpose of carrying the law into
effect were illegal. The three secretaries had no warrant of law to decide what
was or was not adulterated or misbranded.
The numbers of these decisions which should immediately be repealed are as
follows:
No. 76. Pertaining to dyes, chemicals and preservatives in foods.
No. 77 ;Certificate and control of dyes permissible for coloring foods and
foodstuffs.
No. 86. Original packages: Interpretation of regulation 2 of Rules and
Regulations for. Enforcement of the Food and Drugs Act.
No. 87. Labeling of "Corn Syrup."
No. 89 Amendment to Food Inspection Decision No. 76, relating to use in Foods
of Benzoate of Soda and Sulphur Dioxide.
No. 92. The Use of Copper Salts in the Greening of ;Foods.
No. 102. Entry of Vegetables Greened With Copper Salts.
No. 104. Amendment to Food, Inspection Decision No. 76 and No. 89 Relating to
Use in Foods of Benzoate of Soda.
No. 107. Decision of the Attorney-General in Regard to the Referee Board.
No. 108. Importation of Coffee.
No. 113. Labeling of Whisky Mixtures and Imitations Thereof Under the Foodand Drugs Act of June 30, 1906.
No. 117. The Use of Certified Colors.
No. 118. Labeling of Whisky Compounds under F. I. D No. 113.
No. 120. Labeling of Ohio and Missouri Wines.
No. 121. Floating of Shellflsh. the United States.
No. 125. Labeling of Cordials.
No. 127 Decision of the Attorney-General in Regard to the Labeling of Whisky
sold under Distinctive Names.
No. 130. Amendment to Regulation No. 5.
No. 131. The Composition of Evaporated Milk.
No. 134. The Labeling of New Orleans Molasses.
No. 135. Saccharin in Foods.
No. 138. Saccharin in Foods.
No. 142. Saccharin in Foods.
The abolition of the above Food Inspection Decisions will clear the way for
the remaining steps.
The most important of these remaining steps is to repeal the permission given
by the Remsen Board of Consulting Scientific Experts to add alum, benzoate of
soda, saccharin and sulphur dioxide to our foods.
From the earliest days of food regulation the use of alum in foods has been
condemned. It is universally acknowledged as a poisonous and deleterious
substance in all countries. The United States is the only country which permits,
of course illegally, the addition of alum to our food supply.
The next most important step is to secure from the officials enforcing the
Food and Drugs Act a recognition of the actions of the courts under the
operation of the Food and Drugs Act in convicting the manufacturers of bleached
flour and Coco-Cola. In all these cases judgments of the Court condemning the
use of all these substances were secured, but in no case was any -effort ever
made by the enforcing officers to follow up the, Court decision. By reason of
this fact interstate commerce in foods containing bleached flour, benzoate of
soda, sulphur dioxide and sulphites, together with soft drinks containing
caffein, such as Coca-Cola, go on unimpeded and unrestricted in all parts of the
United States. The health of our people is constantly threatened by the use of
these articles in our food.
The next step in the reform of the execution of the Food and Drugs Act is to
follow out the provisions of the law absolutely. At the present time the
officials in charge of the enforcement of the law boast of the fact that they
are not following out the punitive sections of the law, but its corrective
sections. Unfortunately for those who make this plea, the law contains no
corrective measure except by punishment. It is a new law enacted by the
officials themselves without authority of Congress which they are enforcing.
The final step to complete the restoration of the law is the repeal of the
provision in the appropriation bill abolishing the Bureau of Chemistry and the
restoration of the execution of the law to the revivified Bureau.
This is the only amende honorable that could possibly be made for the
destruction of the Bureau of Chemistry and the transfer of its authority by an
item engrafted, on an appropriation bill. It may be that the present arrangement
is much better than that enacted by Congress. It would be entirely proper,
therefore, after this restoration is made, to introduce a new bill into the
Congress of the United States, providing for the destruction of the Bureau of
Chemistry and the transfer of its authority to the present unit in the
Secretary's office.
No attack has been made upon the provisions of the law. They remain exactly
as Congress enacted them. It is, therefore, the duty of the present
administrative unit to urge the abolition of all these illegal restrictions on
their authority and to proceed with all vigor to the execution of the provisions
of the law as they were enacted on June 30, 1906.
EFFECT OF "THE JUNGLE"
There is every reason to believe that Upton Sinclair's novel entitled "The
Jungle," in which the deplorable conditions in the packing industry were
dramatically portrayed, was one of the chief causes of the enactment of the meat
inspection law which was approved the same day as the Food and Drugs Act. It may possibly happen that this history of a crime more revolting even than the
horrors portrayed by Upton Sinclair may serve the purpose of causing popular
indignation of a character that will secure the salvation of the Food and Drugs
Act.
If the Bureau of Chemistry had been permitted to enforce the law as it was
written and as it tried to do, what would have been the condition, now? No food
product in our country would have any trace of benzoie acid, sulphurous acid or
sulphites, or any alum or saccharin, save for medicinal purposes. No soft drink
would contain any caffein, or theobromine. No bleached flour would enter
interstate commerce. Our foods and drugs would be wholly without any form of
adulteration and misbranding. The health of our people would be vastly improved and their life greatly extended. The manufacturers of our food supply, and
especially the millers, would devote their energies to improving the public
health and promoting happiness in every home by the production of whole ground, unbolted cereal flours and meals.
The resistance of our people to infectious diseases would be greatly
increased by a vastly improved and more wholesome diet. Our example would be
followed by the civilized world and thus bring to the whole universe the
benefits which our own people had received.
We would have been spared the ignominy and disgrace of great scientific men
bending their efforts to defeat the purpose of one of the greatest laws ever
enacted for the protection of the public welfare. Eminent officials of our
Government would have escaped the indignation of outraged public opinion because
they. permitted and encouraged these frauds on the public. The cause of a
wholesome diet would not have been put back for fifty or a hundred years. And
last but least, this History of a Crime would never have been written.

 

 
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