THE HISTORY OF A CRIME AGAINST THE FOOD LAW
THE AMAZING STORY OF THE NATIONAL
FOOD AND DRUGS LAW INTENDED TO
PROTECT THE HEALTH OF THE PEOPLE
PERVERTED TO PROTECT ADULTERATION
OF FOODS AND DRUGS
(This book first appeared at the Soil and Health Library, an
important source of books
on holistic agriculture, holistic health, self-sufficient living, and personal
development)
PROLOGUE
INTRODUCTION
STATEMENT OF THE CASE
1. THE FIGHT FOR THE FOOD AND
DRUGS LAW
EXCERPTS FROM FINAL HEARINGS
TESTIMONY OF PROFESSOR KREMERS
PROFESSOR
KEDZIE'S TESTIMONY
SUMMARY OF THE
TESTIMONY OF VICTOR C. VAUGHAN
TESTIMONY OF DR. ECCLES
OTHER
WITNESSES
FAVORING WITNESSES
STATEMENT OF ROBERT
M. ALLEN, OF LEXINGTON, KY.
CLOSING ADDRESS OF DR. WILEY
SOURCES OF INFORMATION
FURTHER EXCERPTS FROM THE
CLOSING SUMMARY
DR. VAUGHN'S TESTIMONY
LIEBREICH JOINS VAUGHAN
PREVIOUS LEGISLATION
FINAL
ACTIVITIES
2. THE POISON SQUAD
ANOTHER THREATENING STORM
WISE
FORESIGHT
LENGTH AND PURPOSE OF THE
EXPERIMENT
DATA
PUBLISHED
DATA REFUSED PUBLICATION
THE BORAX INVESTIGATION
THE SONG OF THE POISON SQUAD
3. RULES AND REGULATIONS
FOOD STANDARDS COMMITTEE
FOOD INSPECTION DECISIONS
THE BOARD OF FOOD AND DRUG
INSPECTION
FOOD AND DRUG DECISIONS SIGNED BY THE SECRETARIES
OPINIONS OF EXPERTS
FAREWELL TO McCABE AND DUNLAP
RESIGNATION
4. WHAT IS WHISKY?
RECTIFIED WHISKY THE FIRST CAUSE OF PARALYZING THE
FOOD LAW
UNE
CAUSE CELEBRE
A
STRANGE OBSESSION
TROUBLE
BEGINS
(FOOD
INSPECTION DECISION 45.) BLENDED WHISKIES
A
DAY OF JUBILATION
BONAPARTE'S DECISION
THE RECTIFIERS REFUSED
APPOINTMENT OF THE 'WHISKY
COMMISSION'
ASK
FOR A REHEARING
BONAPARTE'S STATE PAPERS
ADDITIONAL COMMENTS
MR.
BONAPARTE REFUSES TO ACCEPT THE "WHISKY COMMISSION'S"
DECISION
ADVENT OF PRESIDENT TAFT
PRESIDENT TAFT
DRAWN INTO THE WHISKY CONTROVERSY
UNIVERSAL CRITICISM OF BOWERS'
REPORT
RECTIFIERS GAINED EVERY POINT
BECOMING A PROHIBITIONIST
THE LAST WORDS OF LLOYD BOWERS
JUSTICE HARLAN SPEAKS
DISASTERS PREVENTED
5. BOARD OF FOOD AND DRUG
INSPECTION AND REFEREE BOARD OF CONSULTING SCIENTIFIC EXPERTS
PROLOGUE
PURPOSE OF CREATING BOARDS
SPECIFIC DUTIES
ORIGIN OF THE REMSEN BOARD
UNIFICATION OF ADULTERATORS
SENSITIVE TO NEWSPAPERS AND
MAGAZINES
THE REFEREE BOARD ALREADY
DECLARED ILLEGAL
PROFESSOR CARLSON ON THE
REMSEN BOARD
POLITICS AND PURE FOOD
EXCERPTS FROM
TESTIMONY BEFORE MOSS COMMITTEE
Dr. Remsen's Testimony
DR. REMSEN'S AVERSION TO NEWSPAPERS
INVESTIGATIONS OF THE BUREAU OF CHEMISTRY REFUSED
PUBLICATION BY SECRETARY WILSON
EXTRACTS FROM THE
DENVER PRESS, AUGUST 25-28, 1909
WILSON'S HOT REPLY
6. POLITICS AND PERSECUTION OF A
STATE
FURTHER ACTIVITIES OF THE
REMSEN BOARD
FURTHER EXCERPTS FROM THE REPORT OF THE MOSS COMMITTEE AND THE RECORD OF THE
INDIANA CASE
TESTIMONY OF DR. IRA REMSEN
CROSS EXAMINATION OF DR. REMSEN
DR. HERTER'S TESTIMONY
A
CHANGE OF MIND
END OF THE INDIANA CASE
CONTEMPT OF COURT
7. ATTITUDE OF ROOSEVELT
IN EARLY
DAYS
ROOSEVELT FAVORED LEGISLATION
ORIGIN OF THE WHITE HOUSE
PREJUDICE
RECIPROCITY WITH
CUBA THE COLLOQUY WHICH UNDID ME
8. THE UNITED STATES
PHARMACOPOEIA
(MOSS
COMMITTEE)
DR.
F. L. DUNLAP'S DUTIES
9. THE BUREAU OF STANDARDS
STICKING TO THE BASE
RISE OF BUREAUCRACY
SCIENTIFIC ETHICS
CHEMICAL ETHICS
PURPOSE OF
ESTABLISHING THE BUREAU OF STANDARDS
THE
BUDGET FOR 1928
DISCOVERY
OF A NEW PRODUCT
ATTEMPT TO MODIFY THE FOOD LAW
LEGALIZING ADULTERATION OF FOODS
NUMBER OF PATENTS
RELATIVE
SWEETNESS OF SUCROSE AND DEXTROSE
CAN
OTHERS DO IT?
OPPONENTS IGNORED
REQUEST BUREAU OF
STANDARDS FOR HEALTH DATA
INJURY
TO HEALTH
FINAL DISPOSITION
OF THE SO-CALLED CORN SUGAR BILL
ALWAYS THE PROBLEM OF AGRICULTURE
DEVELOPMENT OF
DEXTROSE AND LEVULOSE INDUSTRIES
NO DELAY IN STARTING WHAT
ROWLAND FEARED
TRADE
PRACTICES
DUPLICATION OF WORK OF
BUREAU OF CHEMISTRY BY THE BUREAU OF STANDARDS
RESEARCH ASSOCIATES
AUTHORITY FOR THE COLLABORATION OF REPRESENTATIVES OF
BIG BUSINESS WITH THE BUREAU OF STANDARDS
GOVERNMENT TO
PROMOTE RESEARCH AND ENCOURAGE STUDENTS
SUMMARY
10. THE PASSING OF THE
BUREAU OF CHEMISTRY
CHEMISTRY FIRST RECOGNIZED
HOW IT
WAS DONE
THE
CORPUS DELECTI
CAVEAT
PROVING
DEATH
WHY WAS
IT DONE?
INCORPORATION OF THE BUREAU OF
SOILS
PATERNALISM ON THE RAMPAGE
CRITIQUE OF THE BUREAU OF SOILS
A REAL
SURVEY
A LONG WAIT FOR THE RECOVERY
AN UNFORTUNATE EXCHANGE
ANTAGONISM
BETWEEN RESEARCH AND PRACTICAL CHEMISTRY
RESEARCH
NO NEED FOR THIS RADICAL
LEGISLATION
RADICAL CHANGE OF ATTITUDE
AN INTERESTING STORY OF COCA-COLA
THE PATHETIC STORY OF BLEACHED
FLOUR
GOING BACK TO BUSINESS PRACTICES
ATTITUDE OF THE CHIEF OF THE FOOD, DRUGS AND
INSECTICIDE, ADMINISTRATION
THE CONCLUSION OF THE WHOLE
MATTER
ILLEGAL FOOD AND DRUG DECISIONS
EFFECT OF "THE, JUNGLE"
"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.
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.
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.
HISTORY OF A CRIME
CHAPTER I: THE FIGHT FOR THE FOOD AND DRUGS LAW
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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:
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.
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.
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.
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.
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.]
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.
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.
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.
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.
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.
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.
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.
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.
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, 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:
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:
O 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!
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 (Ł10,000) 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.
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."
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:
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.
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.
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."
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.
"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.
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
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.
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. 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.
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.
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.
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.
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?
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.
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.
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.
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.
BOARD OF FOOD AND DRUG INSPECTION AND
REFEREE BOARD OF CONSULTING SCIENTIFIC EXPERTS
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.
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. "
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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. 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.
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 ease 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.
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.
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.
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 o