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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

By

HARVEY W. WILEY, M.D.

 

DR. HARVEY W. WILEY, 1911

 

 

Reproduced by Photo-lithography
1955

by

LEE FOUNDATION FOR NUTRITIONAL RESEARCH
MILWAUKEE 3, WISCONSIN

 

HARVEY W. WILEY, M.D.
Publisher
506 Mills Building, Washington, D. C.

Copyright, 1929, by
HARVEY W. WILEY, M.D.
Washington, D. C.

 

 

CONTENTS

PROLOGUE

INTRODUCTION

CHAPTER:

  1. THE FIGHT FOR THE FOOD AND DRUGS LAW
  2. THE POISON SQUAD
  3. RULES AND REGULATIONS
  4. WHAT IS WHISKY?
  5. BOARD OF FOOD AND DRUG INSPECTION AND REFEREE BOARD OF CONSULTING SCIENTIFIC EXPERTS
  6. POLITICS AND PERSECUTION OF A STATE
  7. ATTITUDE OF ROOSEVELT
  8. THE UNITED STATES PHARMACOPOEIA
  9. THE BUREAU OF STANDARDS
  10. THE PASSING OF THE BUREAU OF CHEMISTRY

WYLIE: PROLOGUE

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PROLOGUE

   "Remember how long thou hast already putoff these things, and how often a certaine day and houre as it were, having beenset unto thee by the gods, thou hast neglected it. It is high time for thee to understandthe true nature both of the world, whereof thou art a part; and of that Lord andGovernour of the World, from whom, as a channell from the spring, thou thy selfedidst 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 thysoule, it will passe away and thou with it, and never after returne."

   "Bare tabulation will not do; simple enumerationis plainly insufficient. There must be a hint of perspective. The historian mustselect, and in the awkward process of selection he becomes an artist. One seems tosee the historian at this uncomfortable stage desert the laboratory and furtivelyapproach the studio. And why not? There is no need for him to blush when we detecthim in the questionable company of artists. For history is an art as well,--the artof representing past events through facts of scientific accuracy. If the facts areinaccurate, it is not history. But if they are not embodied in a picture of a livingpast, 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, abandoninghis overalls for the velvet jacket. If he can not, so much the less historian he.

   "It is so easy for the historian to forgethis duty in the multiplicity of his business. To put it crudely, he is asked to raisethe dead, to bring the past to life, to give a continuous performance of the miracleof Endor. He must achieve this feat with a restricted armory. For he is not allowedthe novelist's liberty of invention. His incantations are strictly limited to theascertained facts, and with their aid alone he is expected to evoke the past. Weask of the historian a great tapestry, crowded with figures, filled with shiftinglights 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 asto its color, length, and weight by reference to his unvarying authorities, the scientificfacts. "


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INTRODUCTION

 

   I suppose after the manner of those who stealthe titles of other authors an apology should be made to Victor Hugo. The crime thathe 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 modelof his illustrious uncle, became Emperor of the French nation in 1852. Victor Hugowas one of the leaders against this movement and naturally became a persona nongrata at Paris. With hundreds of others who had opposed this coup d'étathe 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 byMay 5, 1853. He did not publish it for twenty-five years afterward.

   It has been only twenty-one years since the crimeabout to be described was committed. Perhaps it would be the part of wisdom if itshistory, still unpublished, be withheld for another six years. The everthreateningthought of Anno Domini warns that it is not likely that I may still be on this planetafter the lapse of six years. This fact should absolve me from any blame for a somewhatpremature publication. The theft of his title is not likely to disturb the ashesof Victor Hugo in the Pantheon, to which they were committed by five hundred thousandof his fellow citizens in the summer of 1885, three months after his eighty-thirdbirthday.

   Presumably a similar lese majestémight be charged against the author of this story. Probably the truths which aretold in the following pages, and a Government less violently set up than that ofNapoleon III, will be a safeguard against expatriation. It is advisable and evendesirable, while the memories of this crime are still fresh, to set down in simplelanguage a recital thereof. There are many embarrassments in connection with writinga 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 greatmajority and entered upon the Great Adventure. I am not unmindful of the excellentadage, nil de mortuis nisi bonum. I will not impute any base motives to thosewho 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 dueto errors of judgment and not to any set purpose to destroy the salutary provisionsof 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 notsimply ignorant, it must be attributed to. the zeal for proper enforcement of thefood law which leads to a recital of these facts, rather than to a purpose of. misjudgingthe motives of the actors themselves.

   Twenty years have passed since these offensesagainst the law began. There are two reasons why I have waited so long before settingdown in order this history. The principal one is that my time was all consumed withmy 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 mixedflour law quoted further on. This was an indictment of the severest kind of the methodsof up-bringing our youth. The deplorable condition of our young men was vividly shownin the Great War. Fully one-third of those called to the colors were found to bephysically and mentally unfit to serve their country in its hour of need. Anotherthird 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 endeavorin all honorable ways to remove the possibility of a similar stigma which might arisefrom 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 eliminatesuch a percentage of unfit are problems which require careful study. Having now reachedthe age of eighty-four, I am forcibly reminded that if this history of a crime isever to be written it must be done now, without undue delay.

   The second reason which has made, me hesitateis because of my high personal regard for those who are not shown as wholly devotedto the public service in the lapses of their conduct respecting the food and drugslegislation. It is always painful to say anything which could even be construed asderogatory to those who have been one's friends.

STATEMENT OF THE CASE

   It is the practice in criminal proceedings beforethe courts for the opposing counsel to lay before the court and the jury an outlineof the points he expects to prove and the nature of the evidence which it is proposedto 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 yearsto secure a national food. and drugs act. Attention is called to the indifferenceof the people at large in regard to the character of the foods and drugs which theyused, and the efforts that were made to overcome this attitude. It was soon foundthat individual activities were practically useless in securing national legislation.Only mass action could produce any progressive results. The organized bodies of menand 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 nationallegislation will be described. Particular attention will be called to the dominantfeatures which always characterized this proposed legislation. There was very littlediscussion of the question of misbranding. The chief points discussed were the resultsof adding to our food products preservative substances to keep them from decay, andcoloring matters which made them look more attractive and fresh. Brief citationsfrom the evidence before the various committees in the House and the Senate willillustrate the magnitude of the struggle which finally resulted in the approval ofthe Food and Drugs Act on June 30, 1906.



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HISTORY OF A CRIME

CHAPTER I

THE FIGHT FOR THE FOOD AND
DRUGS LAW


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

   The final hearings were before the committeeon Interstate and Foreign Commerce, beginning on Tuesday, Feb. 13, 1906. This wasjust before the time the bill was completed in the Senate and after an agreementhad been made to vote on it the 21st of February. These hearings are printed in avolume containing 408 pages. Pages 1 to 40 are taken up with testimony that benzoateof soda is a perfectly harmless substance. These witnesses were made up of both manufacturersand experts. The experts were Dr. Edward Kremers, of the University of Wisconsin,Professor Frank S. Kedzie of the Agricultural College of Michigan, and Dr. VictorC. Vaughan, Dean of the College of Medicine of the University of Michigan. The manufacturerswho testified in this case unanimously said that the business of keeping food couldnot be carried on without the use of some preservative and that eminent scientificmen had declared that benzoate of soda, borax, etc., in the proportions used wereentirely harmless. Ex-Senator William S. Mason was also before the committee in theinterest 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 propagandaof rectified whisky.

EXCERPTS FROM FINAL HEARINGS

   Although food bills of various kinds had beencontinually before Congress for a quarter of a century, the character of the oppositionthereto had not changed. The excerpts here given are typical of the whole struggle.

   Inasmuch as this closing testimony was the finaleffort to block the passage of the food law, it is summarized at some length. Testimonyof 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 tracesof benzoic acid, and it seems to me if the Almighty put it there, the manufacturerought to be allowed to use it, if he don't use it in the same quantities as put inthe fruit by nature. * * *

   We went to three men, each of them connected with one of thelargest universities in the United States, men who stand at the very top of theirclass in the chemical and physiological world.

   MR. TOWNSEND: Who were they?

   MR. WILLIAMS: Dr. Victor Vaughan, who is dean of medicine andphysiology at the University of Michigan, a man whom I do not believe any one canspeak 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 hasgiven the subject the very closest attention is Dr. Frank Kedzie of the MichiganAgricultural College. * * *

   MR. TOWNSEND: Do you know of any manufacturer of these goodswho does not use some form of preservative?

   MR. WILLIAMS: I do not.

   MR. TOWNSEND: As a manufacturer, do you know of any way to manufacturethese 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 byreason of the state laws interfering with your using this preservative?

   MR. WILLIAMS: Our firm has not. We have been told that as soonas this committee gets through with the hearings on this subject there is going tobe 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 willbe condemned, and we also know that as soon as this bill becomes a law, if it everbecomes a law, it will be condemned by the Bureau of Chemistry. * * * Now, the onlypoint is--and all I wish to bring out now--that I don't think this committee oughtto recommend any legislation that will give one man the absolute power to say whatthe manufacturers of this country shall do and what they shall not do. There is adifference of opinion as to what is injurious and what is not injurious. We can showthat the best scientific thought in this country will differ with the present Bureauof Chemistry. Now, gentlemen, do not understand for a moment that I am attackingDr. Wiley or the Bureau of Chemistry or the Department of Agriculture. I am simplypointing out, or trying to point out, the principle of this bill. The principle iswrong. It is not fair; and I think before you allow anyone to condemn any preservativeabout which there is a question that you ought to investigate the subject fully bya committee of scientists--the best that we can find-appointed by the President orby Congress.

   In this connection it is interesting to knowthat 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 attitudewhich the Secretary of Agriculture held toward me at that time I was very certainthat he would consult me in regard to the personnel of this committee which was tobe appointed by him, and that not only eminent, but fair-minded members would beappointed on this committee. When the bill went to conference with the Senate billthe conferees on the part of the Senate would not consent to encumbering the billwith an additional authority paramount to that of the Bureau of Chemistry. The Senateconferees contended that the whole matter of wholesomeness and unwholesomeness ofingredients 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 thenucleus of the Remsen Board. This view of Mr. Williams was shared by practicallyall the objecting witnesses, both scientific and legal, as well as all of those interestedin commercial matters throughout the whole course of the discussion of the variousfood bills before the committees of Congress. It was also voiced on the floors ofboth the Senate and the House. In spite of all this publicity and opposition theCongress. of the United States conferred upon the Bureau of Chemistry the sole functionof acting as a grand jury in bringing indictments against offenders or supposed offendersof the law. The Congress specifically provided that all these indictments shouldhave a fair, free and open trial before the Federal Courts for the purpose of confirmingor denying the acts of, the Bureau of Chemistry.

TESTIMONY OF PROFESSOR KREMERS

   Professor Kremers at the close of his testimonybefore the Interstate and Foreign Commerce Committee disclosed the fact that Mr.Williams was the party who secured the participation of Professors Kremers, Kedzieand Vaughan in this hearing. I quote from page 39:

   MR. KREMERS: I would like to state just what I have been invitedto 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 vegetablekingdom, and also to find out what the best literature, the physiological and therapeutic WYLIE: CHAPTER 2

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CHAPTER II

THE POISON SQUAD
Vulnuratus, non victus.--Proverb

 

PROLOGUE

   Confucius says:

   "The commander of the forces of a large state may be carried off, but the will of even a common man can not be taken from him."

   In the foregoing pages attention was called tothe experiments making on healthy young men to determine the influence of preservativesand coloring matters on health and digestion. The general method of conducting theseinvestigations was discussed. Altogether nearly five years were devoted to theseexperimental 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 whoseactivities will be described in the following pages. The Bureau of Chemistry was"grievously wounded but not conquerered" by this transfer of its activities.

ANOTHER THREATENING STORM

   Anyone who has observed the occurrence of tornados,cyclones, and thunder storms, especially in the spring, has noticed their tendencyto occur in groups. This is especially true of any particular locality and generallyof those parts of our country in which these visitations, often destructive to lifeand property, are common. The storms which threatened the integrity of the food lawwere of this kind. They were different, however, from the caprices of the weatherin the time of the year they occurred. The most threatening of them arose, not inthe spring, but in the winter of 1907. The transfer of authority to execute the lawfrom the Bureau of Chemistry to the Board of Food and Drug Inspection, and from thatBoard to the Solicitor, was a very good introduction to what occurred soon afterJanuary 1st, 1907. Even after the Bureau of Chemistry was deprived of its power ofautonomy, it still retained intact its function of judging what was a threat to health.

WISE FORESIGHT

   Prior to the enactment of the food and drugslaw it was evident from the increase in popular interest in this matter that theenlistment of organized bodies of men and women interested in securing this legislationwould sooner or later become effective. It was considered the part of wisdom to preparefor this much wished-for consummation. Numerous attempts had been made before theCongress of the United States to change the wording of the proposed bill in sucha way as to eliminate the Bureau of Chemistry as the active executive organizationof the law when passed. All of these attempts had been almost unanimously negativedby the Congress as often as they were offered. It seemed, therefore, quite certainthat when the law finally was secured the Bureau of Chemistry would be retained asits executive agent. As early as 1902 authority was obtained from Congress to carryon 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 andcoloring matters added to foods would have any effect upon the digestion and healthof these young men. Young men as a rule are more resistant to effects of this kindthan children or older persons. They represent the maximum of resistance to deleteriousfoods. The deduction from this theory is that if the young men thus selected showedsigns of injury other citizens of the country less resistant would be more seriouslyinjured. Having received authority from Congress to proceed in this matter, a smallkitchen and dining room were provided in the basement of the Bureau and a call issuedfor volunteers to join this experimental class. We asked chiefly employees of theBureau. We had no difficulty in securing twelve healthy young men who volunteeredtheir services and took an oath to obey all rules and regulations which should beprescribed for the experimental dining table. Their term of enlistment was made forone year. Up to this time no such extensive experiment on human beings had been plannedanywhere 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 thepublic at large. One reporter who was most constant in his attendance, and this wasthe beginning of his reportorial work, had the happy faculty of presenting the progressof the experiment in terms which appealed to the public imagination. He early designatedthis band of devoted young men as "The Poison Squad." There was rarelya day in which he did not visit the experimental table and write some interestingitem in regard thereto. This cub reporter is now the celebrated author of the "Post-Scripts"in the Washington Post, George Rothwell Brown.

 

The Dining Room of "The Poison Squad"

 

LENGTH AND PURPOSE OF THE EXPERIMENT

   For five years these experiments continued andinvestigations of an extensive character were carried on with the preservatives whichwere in most common use. The chemical and physiological data accumulated were vastin extent and presented great difficulties in interpretation. Following the ruleadopted by the Bureau, every doubtful problem was resolved in favor of the Americanconsumer. This appeared the only safe ethical ground to occupy. Decisions againstthe manufacturers who used these bodies could be reviewed in the courts when thefood law became established, whereas if these doubtful problems had been resolvedin favor of the manufacturers the consumer would have had no redress. Without goinginto further detail in regard to these experiments it may be said that one of thecommon colors and all the common preservatives used in foods were banned from useby a unanimous verdict against them.

 

DATA PUBLISHED

   The greater part of these data was publishedas parts of Bulletin 84, Bureau of Chemistry. They comprise: Part I--Boric Acid andBorax; 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 sentthe 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 promptlydenied. The total number of pages in the parts of Bulletin 84 which have been publishedis 1500.

DATA REFUSED PUBLICATION

   Vigorous protests from those engaged in adulteratingand misbranding foods were made to the Secretary of Agriculture against any furtherpublicity in this direction. As a result of these protests he refused publicationof Parts VI and VII of Bulletin 84. Part VI contained a study of the effects on healthand digestion of sulphate of copper added to our foods. The conclusions drawn bythe Bureau were adverse to its use. The Remsen Board subsequently made a study ofsulphate of copper and reached a like decision. The ban on copper was based on thework of the Remson Board and not on that of the Bureau, which preceded it by threeyears. 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 effectsof saltpeter on the gonads, and for other reasons, the Bureau refused to approvethe use of this coloring agent in cured meats. These two bulletins still repose inthe 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 expendituresin the Department of Agriculture (the Moss Committee), it is found that the followingadditional 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 in1907; 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 andBenzoates, asked for in 1909; Medicated Soft Drinks, by L. F. Kebler, offered in1909; 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 inMeat 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 Contentof Cantaloupes, by M. N. Straugh and C. G. Church, offered in May, 1911; A BacteriologicalStudy 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 articlesadulterated with arsenic, and these protests against publication were approved andput in force by the Secretary of Agriculture. In other words, all the principleswhich animated the Inquisition were used by the Department of Agriculture to preventany further dissemination of the studies and conclusions of the Bureau in regardto the wholesomeness of our foods. The whole power of the Department of Agriculturewas enlisted in the service of adulteration which tended to destroy the health ofthe American consumer. On the appointment of the Remsen Board further investigationsby the Bureau were ordered to be suspended.

   Further information regarding the activitiesof the Poison Squad were presented to the Committee of Interstate and Foreign Commerceduring the final hearings on the Food and Drug Legislation. This information hasthe distinguishing tone of question and answer which adds much to its interest andvalue. Quotations from those hearings follow:

THE BORAX INVESTIGATION

HEARINGS BEFORE THE COMMITTEE ON INTERSTATE
AND FOREIGN COMMERCE

   DR. WILEY: Now, I want to introduce the borax bulletin in evidence;not to have it copied, but simply to have it as an exhibit, because all of you havecopies in your desks. That will answer the question which was asked me yesterdayabout the kind of work done by these young men. You gentlemen need only to glancethrough this book of 477 pages to see the amount of labor that has been put uponthis investigation.

   MR. TOWNSEND: When did you begin your investigation of boricacid?

   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 thefollowing 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 afterthe close of the investigation.

   MR. TOWNSEND: You did not publish it in 1903?

   DR. WILEY: We published a synopsis--a preliminary report--in1903.

   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 answeredit--to report your investigation of benzoic acid, which had only occupied three monthsand 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 untilthe spring of 1904, and was completed before November, 1904.

   MR. TOWNSEND: Are you sure about that? As I took it down yesterdayin a note, it was begun in the fall of 1902.

   DR. WILEY: Then you misunderstood me; it was not. I was referringto the time I commenced the first investigation.

   MR. TOWNSEND: Then I misunderstood you. Who assisted you inmaking 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 infair 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 yougentlemen do not care to read this voluminous document.

   The young men were selected mostly from the Department of Agriculture--Ibelieve the first were all from the Department of Agriculture. They were young menwho had passed the civil-service examinations, and therefore came to us with a goodcharacter, as is usual in such cases. These young men were volunteers. We explainedto them fully the character of the work that we proposed to do, not particularlystating 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 toselect 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 howwe did it. These men signed a pledge in which they agreed on their honor to carryout all the necessary regulations. They signed a pledge to eat nothing or drink nothingexcepting what we gave them at the table. They signed a pledge to pursue their ordinaryvocations without any excesses and to take their ordinary hours of sleep. They agreedthat they would collect and present to us every particle of their secreta, so thatnone of it should be lost, and to follow out the rules and regulations necessaryto 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 PublicHealth Service, who examined all of these men physically and saw that they had nodisease, 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 throughthe 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 didwas to ascertain, by their own choice largely, the character of good wholesome foodsto be used, absolutely free of adulterants, a natural diet which would keep theirbodies in a state of equilibrium so that, neither the question of added weight orof losing weight--that is to say, in a fore period, which was a period of about tendays, 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 littleto it--so that by the end of ten days we could get their normal ration. Meanwhiletheir excreta were collected and analyzed, so that we had a complete check on thenormal metabolic process by which the food was utilized in the body and the refusematter excreted. You will understand that the only excretions that we got were theurine and the feces. All of the others were so small in proportion to the whole massthat they were neglected; in fact, it is impossible to get them; no one has everattempted it. Then we began by adding to the food one of the common preservatives--boraxwas first. We had twelve young men, and to six of them we gave borax in the formof boracic acid, and to the other six borate of soda, to see if there was any differencein 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 injuryfrom it.

   MR. TOWNSEND: That is the reason you took a release?

   DR. WILEY: We certainly would not ask the young men to submitto it without an explanation. We told them, of course, that there was no danger bypoisons, but that there might be some disturbance to their systems.

   MR. TOWNSEND: You thought that there was nothing; but you tooka 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 ofthe objections urged against this work, and it would be urged against any work ofthe same kind.

   MR. CUSHMAN: Is that the bunch known to the public as the "poisonsquad"?

   DR. WILEY: That is the one. I suppose it was the most widelyadvertised boarding house in the world.

   Now, when we had established their normal diet, then they agreedto eat it every day whether they wanted it or not, because that was the importantpart of the experiment, that the food ingestion must be constant, otherwise you couldnot 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 wasnot impaired. When it did become impaired they were released at once from any furtheradministration 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 affectedhe was released. You may ask how we knew how any disturbance produced was due toborax, and I answer because we eliminated all the variables but that one. in thecase of the man who had led the same life, pursued the same vocation, eaten the samefood, and who did the same things, the only variable was the preservative; so thatif 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 especiallyso if when we withdrew it the disturbance was removed. Then the symptoms which hadensued would be removed, and that was additional proof. Therefore as far as possiblewe ruled out every influence excepting the one which we were controlling. Then wehad what we called "periods" of five days, so that we studied them in periodsof five days. We called it the first preservative period, the second preservativeperiod, and so on, until we had usually the preservative periods lasting for abouttwenty days. That was the usual rule. That was followed by a period in which nothingbut pure food was given for ten days, the object being if possible to restore theman to the normal state. I will say very frankly that ten days as a rule was notlong 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 aman 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 nothave to measure his food or collect his excreta; and he simply rested and got readyfor 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--butin subsequent investigations we found it much more convenient to feed all of themen at the same time and give them the holiday at the same time. That appears fromthe fact that the chemical work, so far as analysis of foods is concerned, is justas great for six men as it is for twelve, because we did not analyze each person'sfood, but the food which we gave all, so that we knew the composition of it. Thereforeone analysis would do for a hundred men just as well as six. But the excreta thatwere turned in had to be analyzed separately--that is, every day, or the compositefor a number of days, whichever seemed desirable.

   MR. TOWNSEND: When you examined that excreta: did you examinefor 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 largelyin the feces. Parts of the feces never enter the system at all; they are the refusematter, and therefore we say that they are.nonmetabolized. We simply wanted to determinehow much protein, how much fat, how much sugar, etc., had come out in the feces andhad escaped digestion. Then we examined the urine, which contains the principal partof 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 waterand carbon dioxide, just the same as you burn a piece of coal in the fire and convertit into carbon dioxide and into water. And the great mass of food which we eat isburned in the body and produces heat and energy. Of course the water and the carbondioxide that come from the lungs and the skin we did not collect.

   Then the food which goes to build the tissues, or enters intothe tissue, pushes out the degradation products in the same quantity when the bodyis in equilibrium, just as you fill a tube full of marbles, and when you put onemarble in it you will push out another at the other end. Now, if I feed you on nitrogento-day or to-morrow, when I go to determine the nitrogen in your urine I do not determinethe nitrogen that you have eaten to-day or yesterday, but if your body is in equilibriumthe amount of nitrogen pushed out is exactly what you push in. That is what we callthe balance, and in that way we can determine whether any substance added to thefood disturbs the metabolic process and interferes with digestion. And you can onlydetermine it in that way. The amount of disturbance is so slight that you will nevernotice it and yet so pronounced that our chemical balance will reveal it.

   MR. BARTLETT: Doctor, I see in the bill of fare that you givehere that some of the gentlemen took cranberries. What did you add to the cranberries,anything?

   DR. WILEY: No, sir; we took cranberries without anything. Wedid not add any benzoic acid to those. I say that we used the ordinary foods, a plainration, so that each man would eat on the same day the same number of calories, thesame 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 saythat nearly all of our vegetables are canned vegetables. That shows our attitudetoward canned foods, which has been said to be very hostile. We used them becausethey are more uniform in character, and when put up by reputable firms are apt tobe better than the vegetables that you can buy in the open market. Our canned foodswere 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 hewent to one of the firms that sold us these goods--we didn't buy all from one firm--andwanted them to pay him hundreds of dollars to write articles saying that we wereusing 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 eatingpure food or not, and in what proportion?

   DR. WILEY: They did not know what it was, necessarily, or howmuch. 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 theywere being fed upon.

   DR. WILEY: You can not always rely upon newspaper accounts ofscientific investigations.

   MR. MANN: I suppose the young men read the accounts, and ifyou did not tell them exactly what they were being fed they might have thought theywere being fed on something else.

   MR. RYAN: This so-called "poison squad" was selectedfrom 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 enteringinto this?

   DR. WILEY: Not those that were in our Department. Those thatcame from the outside were paid $5 a month in addition to the other. We had to givethem 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 employmentlegal. 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 neithersalt nor coloring matter--pure butter.

   MR. ESCH: How about milk?

   DR. WILDY: The milk came from dairies inspected by the Districtauthorities and by myself.

   MR. ESCH: Did you at any time adulterate the milk?

   Dim. WILEY: We sometimes put the preservative we used in themilk.

   MR. BARTLETT: Formaldehyde?

   DR. WILEY: Formaldehyde we did constantly, and borax part ofthe time.

   MR. ESCH: How did the health of these men continue; have youany 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 boraxmatter, I will give that in a few words. I will take the experiment where we gavea minimum quantity, such as you would ordinarily get if you ate meat and butter containingone-half of 1 per cent of borax, in the ordinary quantities of meat and butter andother preserved foods which a healthy man would eat. With the ordinary quantitiesof butter and meat preserved with borax there would be consumed about 7-1/2 grainsof 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 whichwe gave the borax.

   MR. MANN: How much borax?

   DR. WILEY: Seven and one-half grains a day. That was given intwo doses. Part of the time in one dose, and part of the time we divided it and gave3-3/4 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 allmethods.

   MR. BARTLETT: Did you give any tomato catsup with any of thesemeats?

   DR. WILEY: I don't think we did.

   Now, I want to say this, because I regard it as important. Forfifteen or twenty days, or even longer in some cases, no visible effects were producedin what you would call "symptoms. " The young men had normal appetitesand performed their work without any discomfort, and had no complaints. After thattime they began to eat their ration with some little discomfort. They were underobligation to do it, but they often said: "I wish you could let this go; I don'twant it." Their appetites began to fail. At the end every one of their appetiteswas very badly affected, and some of them were unable any longer to eat the fullamount. Of course we never required anything that was impossible. They developedpersistent 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 foodwith the preservative in?

   DR. WILEY: They were occasionally nauseated. We had every varietyof food that anybody commonly eats. We varied their menu every day.

   MR. KENNEDY: Did the boys seem to get tired of it; did theywant 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 touse the butter. I would say that this is all set out in here. We were led to theuse 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 effecton the appetite?

   DR. WILEY: It had a worse effect in the food when they knewit was in the food, because it became repugnant to them.

   MR. KENNEDY: Don't you think this repugnance is nature's ownmethod of correcting these things I I remember that out in our town two fellows madea wager with another fellow that he could not eat a quail a day for thirty days insuccession. He did it, but it made him sick. That was because there was nothing wrongwith 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 winthat bet; he became very sick.

   DR. WILEY: I will answer that by saying that it is the universalexperience of physicians that the drug habit grows; the more drug you take the moreyou need to produce the effect, and the less its effect; so that it is just the oppositeto 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 inthe publication.

   MR. WANGER: Was there, at the end of the period of the administrationof these preservatives, an immediate relief and restoration of the appetite, or wasthat a slow process?

   DR. WILEY: Unfortunately the effects in some cases were verymuch 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 itwas not the mental idea connected with the daily use of the preservatives that causedthe loss of appetite.

   DR. WILEY: It might be that the mental attitude was a strongfactor, but when you get used to a thing after three or four days the mental attitudebecomes 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 ofthis kind, against all pharmacological experiments, by reason of the mental attitudeof the patient, and I give full credit to the objection in the book, which you willsee. 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 boraxperiod, but one year of this kind of life is as much as a young man wants. They enlistedfor a year. So we had a new list. They must have had the same attitude toward salicylicacid that the first set had toward borax, and yet when we began to feed them salicylicacid there was an immediate improvement in the appetite; most of the young men seemedbetter, 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 wouldhave been the same. But we had the opposite effect. So I think that is the most happyproof. It came instantly, unexpectedly; we were not looking for it. The effect ofthe mental attitude, which must be considered, does not have the great importancethat 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 factthat the constant use of it inures a person to it?

   DR. WILEY: I think that is easily explained. As you get usedto the effect of a drug you never improve in health. The man who forms the opiumhabit takes more and more of the drug, but his health goes down all the time. Youcan tolerate more of the drug, but your health is going all the time, and it takesmore of the drug to produce a given effect.

   MR. MANN: You say that in the experiments with borax the effectscontinued some time after the feeding of the borax to the young men, so that thereis a cumulative effect of borax upon the system?

   DR. WILEY: I referred to that yesterday, and I will restateit. Professor Rost, of the imperial board of health of Berlin, whose work I havehere, criticized our work because we said that practically all of the borax was eradicatedfrom the body after ten days. He contends that a lot of it remains in there for alonger time and comes out in the waste material a little at a time for weeks andmonths, so that his testimony is very much more in favor of the cumulative effectsof those substances than our own.

   MR. TOWNSEND: Have you tested for that?

   DR. WILEY: We have made some tests on that during this lastwinter, but I have not as yet collated and studied the data.

   MR. MANN: Does your report show that in your opinion the useof borax has a deleterious effect upon the organs of the body?

   DR. WILEY: Of course you understand, Mr. Mann, the tests thatwe have made are not the same as those made upon animals fed for pharmacologicalexperiments, because after a given time the animals are killed and their organs areexamined, and the changes in the cells are studied by the microscope. We were precludedfrom 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 examinethe kidneys.

   MR. MANN: Your judgment was that the borax was excreted fromthe body; it did not remain, but that the effects did remain? How else could theeffect 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 theiroriginal elements so difficult that scientists cannot furnish the people any practicalmethod of safely separating preservatives from food when they get ready to use them?

   DR. WILEY: It is quite impractical to separate the whole ofany 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 therea difference in the effect between the administration of a preservative in milk orin some kind of solid food, for instance?

   DR. WILEY: The ideal way to administer substances of this kindwould be in solution in the food. But that has such practical difficulties that inalmost all pharmacological experiments like these which have been performed by thethousand in the world, the method which we finally adopted as the best has been adopted--thatis, the introduction of the substance into the stomach in the form of capsules, wherenature quickly mixes it entirely up with the contents of the stomach.

   MR. MANN: Do not some scientists think that there is a differencein effect whether it is administered in one food or another?

   DR. WILEY: That is the objection I have seen in scientific publicationsand in the public press urged against our work by Mr. H. H. Langdon, who has writtena great many letters condemnatory of the work. Mr. Langdon, as I have learned, isemployed by the borax company to do this work. He has called attention to that pointin the public press.

   Many poetic descriptions of the poison squad were published,among the best of which are the following by S. W. Gillilan and Lew Dockstader:

 

THE SONG OF THE POISON SQUAD
(Respectfully Dedicated to the Department of Agriculture)
By S. W. GILLILAN

0 we're the merriest herd of hulks
   that ever the world has seen;

We don't shy off from your rough
   on rats or even from Paris green:

We're on the hunt for a toxic dope
   That's certain to kill, sans fail.

But 'tis a tricky, elusive thing and
   knows we are on its trail;

For all the things that could kill
   we've downed in many a gruesome wad,

And still we're gaining a pound a day,
   for we are the Pizen Squad.

On Prussic acid we break our fast;
   we lunch on a morphine stew;

We dine with a matchhead consomme,
   drink carbolic acid brew;

Corrosive sublimate tones us up
   like laudanum. ketchup rare,

While tyro-toxicon condiments
   are wholesome as mountain air.

Thus all the "deadlies" we double-dare
   to put us beneath the sod;

We're death-immunes and we're proud as proud--
   Hooray for the Pizen Squad!

 

As Sung by Lew Dockstader--
in His Minstrel Company
Washington, D. C., week of October 4, 1903

If ever you should visit the Smithsonian Institute,
Look out that Professor Wiley doesn't make you a recruit.
He's got a lot of fellows there that tell him how they feel,
They take a batch of poison every time they eat a meal.
For breakfast they get cyanide of liver, coffin shaped,
For dinner, undertaker's pie, all trimmed with crepe;
For supper, arsenic fritters, fried in appetizing shade,
And late at night they get a prussic acid lemonade.

(Chorus)

They may get over it, but they'll never look the same.
That kind of a bill of fare would drive most men insane.
Next week he'll give them moth balls,
   a LA Newburgh, or else plain.
They may get over it, but they'll never look the same.


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CHAPTER III

RULES AND REGULATIONS

 

   After the enactment of the food and drugs lawthe necessary rules and regulations for carrying it into effect were prepared. Thelaw provided that a period of six months should elapse and that the enforcement ofthe law should begin on the first day of January, 1907. In the preparation of theserules 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 andall interests involved were invited to appear and give their views.

   Secretary Wilson named the Chief of the Bureauof Chemistry as his representative on the committee authorized by the law to draftthe rules and regulations for the enforcement of the new act. The representativeof the Treasury Department was Mr. James L. Gary; the representative of the Departmentof Commerce and Labor was Mr. S. N. D. North. The Chief of the Bureau of Chemistrywas named chairman. My colleagues entered most enthusiastically into the dischargeof 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 mutualsympathy in the difficult task set before us.

 

COMMITTEE TO FORMULATE RULES AND REGULATIONS FOR ENFORCEMENT OF PURE FOOD LAW

From left to right: Dr. S.N.D. North, Dept. of Commerce; Dr. H.W. Wiley,Dept. of Agriculture; and Mr. James L. Gary, Treasury Dept.

   On the completion of our labors we each undertookto secure the signature of our respective secretary. The Secretary of Agriculturepromptly signed our report; likewise the Secretary of Commerce and Labor. Mr. Garyhad 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 foodindustries. Finally, however, he affixed his signature without any amendment whateverto the rules and regulations as presented.

   During the hearings accorded interested partiesthere appeared before the committee practically the same interests that had beenactive in opposing the enactment of the law. The same arguments with which the chairmanof the board had been so long familiar were repeated. Pleas for recognition of theuse 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 benzoicacid. The manufacturers of syrups pleaded for permission to use sulphur dioxide andwere 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 recognitionof sulphurous acid and sulphites were heard. A particularly earnest plea was madeby the representative of the California interests, in which we were told that failureto use sulphur dioxide would ruin the dried fruit industry of that state. Reporterswere constantly present at these hearings and this story of the California interestsgot into the afternoon papers of this city. About seven o'clock that evening thecard of the California advocate was brought up to my room. When he himself appearedhe 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 representativeof the California interests I imparted to my colleagues the next morning before thehearings began.

   It is hardly necessary to say that any regulationfor 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 judgeof what was an adulteration and misbranding any decision of that kind under the rulesand regulations would be illegal.

   The report of the committee after receiving thesignature of the three cabinet officers authorized to make the rules and regulationswas finally published on Oct. 17,1906.

FOOD STANDARDS COMMITTEE

   Quite as important as the rules and regulationsfor carrying out the provisions of the law was dependable information respectingthe methods of judging the quality of foods and drugs by standards which were legaland conclusive in their character. About the time of the beginning of the experimentalwork for determining the effect of preservatives and coloring matters upon digestionwas originated the idea of establishing under proper authority standards of foods.Accordingly about 1902 a section was added to the appropriation bill of the Departmentof Agriculture, authorizing the Secretary of Agriculture to appoint a committee ofthis kind. Similar action was taken by the Association of Official Agricultural Chemists.When this authority was secured the following named representatives of AgriculturalColleges and Experiment Stations were selected for this very difficult and importantwork: 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 theState University of Ohio, Mr. William Frear, Assistant Director of the AgriculturalExperiment Station of Pennsylvania, Mr. E. H. Jenkins, Director of the AgriculturalExperiment Station of Connecticut, at New Haven, and Mr. H. W. Wiley, Chief of theBureau of Chemistry of the Department of Agriculture, at Washington, D. C.

 

FOOD STANDARDS COMMITTEE

Left to Right: Prof. M. A. Scovell, Director, AgriculturalStation 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 additionalmembers, but the five original members remained as its nucleus and principal actorsuntil the Secretary of Agriculture at the instigation of the Solicitor of that Departmentabolished the committee by having the authority for its continuance withdrawn fromthe appropriation bill. This, however, only temporarily prevented its activities.Subsequently, after the Chief of the Bureau resigned, it was reorganized and is stillat work. The value of the contribution made by these five original members is almostincalculable. We had frequent meetings lasting for days at a time, usually held atthe Department of Agriculture, but in many cases we met in other cities where itwas more convenient for interested parties to attend. You may have some idea of theextent of our investigations by seeing the official papers piled up on the tablebefore us, as shown in the illustration. The results of the deliberations of thiscommittee were published from time to time by the Department of Agriculture as officialdocuments. They have become the guide and director, not only of the national foodlaw, but also they have been approved and adopted by the various states.

   Before this committee also appeared practicallythe same interests which on the enactment of the food law appeared before the committeeto establish rules and regulations to carry the law into effect. They continuallypresented their claims for indulgences before the Food Standards Committee. The characterof this opposition has already been definitely illustrated. It was not based on ethicalgrounds but on individual and industrial interests without relation to the welfareof the consuming public.

   The result of all these preliminary investigationsshows the wisdom and timeliness of their inauguration. Had it not been for thesefundamental investigations the Bureau of Chemistry would have been totally unpreparedto 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 resortedto as a means of defeating the purpose of the law have effectively nullified theefficiency of the standards originally established.

   The Secretaries of the Treasury and Commercecannot be blamed for affixing their signatures to these documents. They assumed thatthese decisions were intended to carry the provisions of the law into effect. TheSecretary of Agriculture stood in a different position. He knew the exact purposeof putting the decisions of the Remsen Board into effect. He boldly proclaimed thatthe Board was created to protect the manufacturers. Leaving his Solicitor to interpretthe law, he was firmly convinced that these restrictions were legal and binding.He gave himself wholeheartedly to the effective plan of prohibiting the Bureau ofChemistry from exercising its duty to enforce the law according to its letter andspirit. The food and drugs law became a hopeless paralytic. It still breathed butits 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 restoreit to health.

FOOD INSPECTION DECISIONS

   From June 30, 1906, the date the Food and DrugsAct became a law, until January 1, 1907, when it went into effect, numerous questionswere propounded to the Bureau of Chemistry by interested parties respecting the scopeand meaning of many of its requirements. The Bureau of Chemistry to the best of itsability interpreted, as the prospective enforcing unit, the intent of the law. Followingthe usual customs in such cases these opinions were taken to the Secretary of Agriculturefor signature. The last Food Inspection Decision prior to 1907 was No. 48, issuedDec. 13, 1906.

   For a few days after January 1, 1907, the Bureauof Chemistry was unrestricted in its first steps to carry the law into effect. Althoughall matters relating to adulteration or misbranding were now solely to be adjudicatedby 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 theSecretary Jan. 8, 1907. It discussed the time required to render decisions. It wasprepared because many persons presenting problems were complaining of delay.

   An open break in the plan of preparing decisionsby 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 coastsof 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 Commissionof the Department of Commerce. The Fish Commission, which had no function whateverin describing what was a misbranding, made a decision diametrically opposed to thatreached 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 Departmentof Commerce, would consider any commercial process or practice as of more importancethan the plain provisions of the food law looking to the protection of the publicagainst misbranding. The Secretary of Agriculture ignored the protest of the Bureauof Chemistry to this decision, placing a trade practice above the plain preceptsof the law. The Secretary of Agriculture said:

   In harmony with the opinion of the experts of the Bureau ofFisheries, 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 aretaken and prepared and with a statement of the nature of the ingredients used inpreserving or flavoring the fish.

   The Ambassador of France earnestly indicatedto me in a personal interview his feeling that the sardine packers in France wouldbe subjected to a ruinous competition by permitting young sprats and young herringsto be prepared according to the manner of the French sardine and thus enter intodirect competition therewith. I believe also the French Ambassador voiced his objectionto 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 Chemistryshould decide all cases as to whether or not the articles were adulterated and misbranded failed to have any effect whatever on the Secretary of Agriculture. Thiswas the second official departure of the Secretary of Agriculture from the plainprovisions of the law. His whisky decision, which Secretary Bonaparte turned down,was the first.

THE BOARD OF FOOD AND DRUG INSPECTION

   Soon after this incident the Board of Food andDrug Inspection was formed in the Secretary's office. Theretofore the Chief of theBureau of Chemistry had not affixed his official signature to the Food InspectionDecisions which he had prepared and the only signature these decisions carried wasthat of the Secretary of Agriculture. After the organization of the Board of Foodand Drug Inspection the Secretary required that all the decisions of that Board submittedto him for approval should be signed by at least two members of the Board. The firstdecision thus signed was Food Inspection Decision No. 69. The three members of theBoard affixed their signatures to this and the Secretary of Agriculture approvedit on May 14, 1907.

FOOD AND DRUG DECISIONS SIGNED BY THE SECRETARIES
AUTHORIZED BY LAW TO MAKE RULES AND REGULATIONS

   It so happened that when the decisions of thisboard were deemed of extraordinary importance the practice arose of having them approved,not by the Secretary of Agriculture alone, but by the three Secretaries authorizedby law to make rules and regulations for the enforcement of the act. When these Secretariestherefore signed a Food Inspection Decision it became a rule and regulation. Thefirst decision of this kind thus signed was Food Inspection Decision No. 76, concerningdyes, chemicals and preservatives in foods.

OPINIONS OF EXPERTS

   Some time prior to the issuance of this decision,and in fact long before there was any hint that the functions of the Bureau of Chemistrywould be usurped illegally, questionnaires had been sent to three or four hundredprominent physiologists and dietitians in the United States as to their attitudein regard to the use of preservatives and coloring matters in foods. The questionspropounded and the number of answers received, both negative and affirmative, areas 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 thatthe opinion of physiologists, hygienists, health officers and physicians in the UnitedStates to whom these questionnaires were sent is overwhemingly against their use.These opinions of distinguished experts were obtained before the Remsen Board wasever thought of. (Food Inspection Decision No. 76, Pages 5 and 6.)

   Food Inspection Decision No. 87 is signed bythe three Secretaries as a rule and regulation. It is neither. It was an opinionthat the term "corn sirup" is a proper label for the substance commonlyknown 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 ofFood and Drug Inspection. Thus the three Secretaries authorized by law to make rulesand. regulations usurped the function of the Bureau of Chemistry in regard to whatwas a proper label under the law.

   Food Inspection Decision No. 102 was signed bythe three Secretaries, legalizing the introduction into the United States of vegetablesgreened with copper. This was clearly another usurpation of the functions of theBureau of Chemistry.

   Food Inspection Decision No. 104 legalized theuse of benzoate of soda and benzoic acid and was signed by the three Secretariesauthorized by law to make rules and regulations for carrying out its purposes. Itwas directly contrary to the decision of the Bureau of Chemistry that these preservativeswere illegal under the Act.

   Food Inspection Decision No. 107 is the opinionof the Attorney-General that the Referee Board was appointed in a perfectly legalway. In making this decision Mr. Wickersham vetoed the decision of Assistant Attorney-GeneralFowler, holding that the Referee Board was illegally appointed. He adopted in themain the decision of Solicitor George P. McCabe that it was legally appointed. TheReferee 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 properlabeling of whisky and its mixtures, a function specifically confided to the Bureauof Chemistry by law, was signed by the three Secretaries, authorized to make rulesand regulations for carrying the law into effect. It repealed the decision of theformer Attorney-General, Mr. Charles J. Bonaparte, and all previous Food InspectionDecisions relating thereto.

   Food Inspection Decision No, 118 is an extensionof No. 113, just described, and of the same character.

   Food Inspection Decision No. 127 is a decisionof Attorney-General Wickersham in regard to the proper labeling of whiskies soldunder distinctive names. It is also a complete reversal of the decisions in regardto proper labeling reached by the Bureau of Chemistry, and confirmed by many decisionsof federal courts.

   Food Inspection Decision No. 135, in regard tosaccharin, is a direct assumption of authority granted specifically by law to theBureau of Chemistry. It was signed by the three Secretaries authorized to make therules and regulations for carrying the law into effect.

   Food Inspection Decision No. 138 refers to thesame subject and is signed by the three Secretaries.

FAREWELL TO McCABE AND DUNLAP

   On the publication of the report of the findingsof the Moss Committee Mr. George P. McCabe retired from the Board of Food and DrugInspection, 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 returnedfrom his vacation, signed together with H. W. Wiley and R. E. Doolittle Food InspectionDecision 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 signedwas No. 141 as to the proper labeling of maraschino cherries. Mr. R. E. Doolittlewas appointed as acting chief and took my place as Chairman of the Board of Foodand Drug Inspection for the remainder of its hectic career.

   Mr. F. L. Dunlap resigned from his position asAssociate-Chemist at the time of the inauguration of President Wilson in his firstterm as President. Dr. Carl L. Alsberg, who had been appointed Chief of the Bureauof Chemistry in the place of R. E. Doolittle, became by that office the Chairmanof 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 ofwhich was approved by James Wilson, Secretary of Agriculture, Jan. 24, 1913.

RESIGNATION

   On March 15, 1912, having been convinced thatit was useless for me to remain any longer as a Chief of the Bureau which had beendeprived of practically all its authority under the law, I resigned.

   Letter of Resignation of Dr. H. W. Wiley March15, 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 WilsonDr. 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 as1912 will recall that the resignation of the Chief of the Bureau of Chemistry createdquite a commotion. Not only were the newspapers and magazines full of referencesthereto, but the caricaturists took up the fight. One of these cartoons in the RockyMountain 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 madealso 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.

 

Cartoon by Berryman, from the Washington Star


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CHAPTER IV

WHAT IS WHISKY?

 

RECTIFIED WHISKY THE FIRST CAUSE OF
PARALYZING THE FOOD LAW

   Whisky is a distillate, in a pot still, of the fermented mash of a cereal or mixtures of cereals, containing all the natural elements of the grain and the ethyl alcohol and its congeners, volatile at the temperatures of distillation. It contains also the coloring matters and other soluble products extracted from the wood (oak), in which it is stored and any new compounds arising during storage. Potable whisky is kept in storage for four years.
   --Definition by Bureau of Chemistry.

   Whisky is used extensively as a medicine. Physiciansdiffer widely in regard to its medicinal value. The greater number of physiciansthink it has medicinal value. A very respectable number look upon whisky as unsuitablefor 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 effectsof whisky, however, are so great as to render it impractical for food purposes. Asa beverage whisky was used extensively in this country before it was prohibited byConstitutional amendment and the Volstead Act was passed regulating the enforcementof the Constitutional provision. At the present time whisky for beverage purposescan only be obtained illegally. The sources of all illegal alcoholic beverages areshrouded 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 medicinalpurposes.

UNE CAUSE CELEBRE

   In the fight for the food law the question "Whatis Whisky?" cut quite a figure. As early as 1898 the question of the characterof distilled alcoholic beverages became quite acute. A heavy tax was laid on manufacturedalcohol, both for beverage and industrial use. A great change had been made in themethod of making pure alcohol. The continuous still, an implement which was continuouslycharged with a fermented mash and which continuously produced a very pure spiritrevolutionized the process of distillation and made pure untaxed alcohol remarkablycheap. This method of making neutral spirit was entirely different from the manufactureof beverage whisky. The Congress of the United States had legalized the mixing ofgenuine whisky with this neutral spirit, and coloring and flavoring the mixture,by an Act defining rectifying. The so-called rectified product was placed on themarket under the name and appearance of the genuine article. Existing law providedno penalties for this fraud.

   In order that consumers might be able to protectthemselves, certain precautions were provided in the law. When a genuine whisky wasfirst made it was always placed in oak barrels for aging purposes. A stamp was placedon the package, giving date produced, distillery making it, and other data requiredfor revenue purposes. When the package was tax paid and ready for consumption, anadditional stamp was affixed. The double stamp was the consumer's evidence that norectifier had handled that package. This assurance however, affected only the firstowner. When he decided to put the contents on the retail market he was under no furtherobligation. 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 theproduct in fractions of a gallon, each package having a United States little greenstamp 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 investigationof the wiles of the rectifier, carried on in 1898, in which the Bureau of Chemistrytook an active part. It was then learned that there was a radical difference betweena genuine whisky at least four years old and the rectified product bearing the samename. Under the pending food bill the rectifiers clearly saw that the products theywere making would have to bear labels showing just what they were. Their whole businesswas 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 nullifyits provisions. In the following pages will be found the high lights of these efforts.

   In the final hearings the rectifiers made everypossible endeavor to kill the bill. Anticipating the probability of the passage ofthe bill, it was deemed advisable to study ab initio the whole question, historicaland technical, of the manufacture of whisky in this and other countries. The investigationsmade 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 testimonybefore the courts in the cases subsequent to the passage of the law. A witness tothe sound conclusions drawn therefrom is the universal approval given by every Federalcourt before which the problem has been presented. No further publication of thisbrief 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 effortof the rectifiers to have Food Inspection No. 65 declared illegal.

   In closing the discussion of the pending foodbill before the Interstate and Foreign Commerce Committee in 1906, the followingreference 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, becausehe was not under oath; it is not expert testimony, but I want to say just this inregard to his contention: As you know, I was instructed last year, with a view ofexecuting our food law respecting imported food products, to visit the manufacturersin Europe, as far as I could in the time I had at my disposal; and, especially, Iwas 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 taskto which I was assigned. [Laughter.] I was also instructed to visit the Charenteto see how the real French brandy is made, and the Gironde to see how the real Frenchwines 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 countryand in Europe. I stated that I had found that in Scotland whisky was made solelyfrom 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 exceptthat product.

   I stated also that in Glasgow and Edinburgh I found distilleriesimporting American maize, Indian corn--I was glad they were doing it; it is a goodmarket for us--and making a spirit out of it, and that this spirit was mixed withthe real Scotch whisky and sent to this country; and I doubted if there was a barrel--andthat 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 exactlyas it is in this country in Kentucky, just as Mr. Taylor (who is the only expertcalled on the question) has testified it was made. It is made there of barley maltand unmalted grain, just as in this country, the malt being used to convert the restof the starch, and then it is fermented and distilled in a pot still and placed inthe warehouse, just as it is in England and in Scotland.

   In this country, too, we have great distilleries of spiritswhich make immense quantities of alcohol, and our law permits the mixing of differentspirits, under what is known as the rectifiers' clause of the internal-revenue law,which says that anyone who "mixes without rectifying" these spirits andmakes a spurious whisky or gin or brandy shall be deemed to be a rectifier and musttake out a rectifier's license. So that the law specifically says in this countrythat every mixed whisky is a spurious imitation of whisky. That is the act of Congressof the United States, a pretty good authority when it comes to definitions of thatkind.

   I said to the Secretary that in my opinion, if I were enforcingthe law about whiskies coming to this country--I am not; I have simply tried to getall the information I could, and I did not want to begin to enforce a law withoutknowing what I was doing--I believed I could exclude from this country, under ourlaw, any of these rectified whiskies which were offered.

   At that time, while I was in London, they were about to begina great trial, which it was said would be the greatest trial that ever took placein that city in regard to a manufactured product, in which a publican had been citedunder 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 verygood one it is. That one sentence is the whole essence of the act.

   This publican was cited to appear. He was defended by the greatestlawyer in England, Mr. Frederick Moulton, the leader of the English bar; and I wastold that $50,000 (£10,000) had been raised simply to pay the legal expensesof the defense. This poor publican was worth nothing, but he was the man who wascharged with this offense, and this great rectifying industry was behind him. Theywanted to establish the fact that a rectified whisky was a Scotch whisky; and thatwas what this suit was brought for, to show that it was not. I was asked to go overthere as a witness, and of course I could not go; but they introduced my report tothe Court, which the judge promptly ruled out unless they produced me.

   Yesterday, after I left the committee, I got this cablegramfrom London: "Wiley, Agricultural Department, Washington. Whisky defendantsconvicted." 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 leastopposition to rectified whisky. I will admit, for the sake of argument, that it isbetter than the straight whisky. I. will admit it for the sake of the argument; Ido not really think so, but I will say that it is better. That is what the magistratesaid. I got the printed proceedings of the trial as they came off every week; theysent out a. bulletin, and they had expert witnesses to testify that the rectifiedwhisky 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 'Thisis 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 questionwas whether a spirit that had any Indian corn spirit in it was a Scotch whisky oran 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 thiswhole contention.

A STRANGE OBSESSION

   When Lloyd Bowers reached the opinion that aneutral spirit, even one made from grain, was not entitled to the designation ofwhisky, even if it should be colored and flavored, it is difficult to understandwhy 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 thereal whisky would not be too greatly diluted. Especially is this true when he hadbefore him, not only the decisions of the Federal Courts, but also the opinion ofthe father of President Taft to the effect that neutral spirit was an entirely differentarticle from whisky. He also had before him the opinion of the English Courts containedin Bureau of Chemistry Bulletin No. 102, issued Dec. 20, 1906. 1 give here a synopsisof the decision of the English case:

   A whisky claimed to be Irish on the one hand and a second samplewhich claimed to be Scotch on the other, was sold to a customer as the best Irishand the best Scotch whisky. On analysis it was determined that it contained not lessthan 90% of silent or neutral spirit made of maize. In passing sentence the magistratesaid:

   "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 evidenceof purity or quality?

   DR. WILEY: It is evidence of quality; it shows that nothinghas been added to it except what nature put in the distillate.

   MR. RYAN: Do you believe that when a blender or a rectifieradds 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 andrectifiers in New York, for instance, are very much disturbed about this. I willstate that I have received some seventy or eighty telegrams since last evening inconnection with this matter. They fear that this law will show to the public, orattempt to show to the public, or the public will assume, that whisky bottled inbond is the proper thing and will injuriously affect their business, when, as a matterof fact, it is no evidence of quality or purity that it is bottled in bond, as youstate 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 nothingto do with its wholesomeness at all. A pure food may be unwholesome, as has beentestified here. You will see in my manuscript there that in showing what things occurin nature in foods I show that hydrocyanic acid, the most violent poison, occursin a great many food products. They are pure foods, but they contain poisonous matter."

TROUBLE BEGINS

   The food bill became a law June 30, 1906. Immediatelyactivities were began by the fake whisky interests to nullify its requirements. Rectifiersappeared by counsel or in person before the committee forming rules and regulationsto carry the law into effect. They made no impression on that body. They then beganto get in touch with the Secretary of Agriculture. These rectifiers were deeply inearnest. They wanted to know "just where they were at." They feared mostof all the decisions of the Bureau of Chemistry. Here is one of the problems propounded:

(FOOD INSPECTION DECISION 45.)
BLENDED WHISKIES

   Many letters are received by the Department makinginquiries concerning the proper method of labeling blended whisky. Manufacturersare anxious to know the construction placed by the Department upon this particularpart of the food and drugs act of June 30, 1906 and to ascertain under what conditionsthe words, "blended whisky" or "whiskies" may be used. The followingquotation 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 thefollowing 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 Bureauof 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 daysof the enforcement of the law it was discovered that the Secretary of Agriculturewas very much perturbed in regard to F. I. D. 45. At that time the star of the Solicitorof the Department was rapidly increasing in brilliancy. The time was speedily approachingwhen the head of the Department became only the vehicle to carry the will of theSolicitor into action. I was cited to appear in the Secretary's office on the 22ndof February, 1907, for a conference on the whisky question. The birthday of Washingtonwas used to perpetrate the first overt act against the food law. There were presentat this conference the Secretary, and the Assistant Secretary of Agriculture, theSolicitor, Mr. George P. McCabe, and the Chief of the Bureau of Chemistry. The conferencebegan by a statement by the Secretary that this conference should be behind closeddoors and no report of it should be made in any way to the press.

   I was first asked by the Secretary if the Bureauof Chemistry still held to the principles contained in F. I. D. 45. I replied inthe affirmative. He asked the Assistant Secretary, Mr. Hayes, his opinion in thematter. Mr. Hayes promptly voted in favor of the Bureau's definition of whisky. Hethen asked the Solicitor his opinion. He replied, "Dr. Wiley's definition ofwhisky is absurd. Whisky is any alcoholic beverage made from grain, properly coloredand flavored, according to the prevailing custom of the trade." The Secretarysaid, "I agree with my Solicitor." I immediately called his attention tothe fact that there was only one body appointed by the Act to make an initial decisionas to what constituted misbranding or adulteration of foods and drugs, namely, theBureau of Chemistry. The only authority recognized by the Act to review this decisionwas a United States judge. I said, "The Bureau of Chemistry decision will thereforestand until over-ruled by a court of the United States." He replied, "Iwill not take your construction of the law, but that of my Solicitor; that is whathe is here for, to interpret the law to me." This act of the Secretary and Solicitorconstituted the first abrogation of the Food Law by executive authority and laidthe foundation for a succession of similar violations.

   As a matter of history I may say that I obeyedthe Secretary's injunction to make no report of this matter to the press. Immediatelyon leaving his office I went to the Cosmos Club and called up Mr. Loeb, secretaryto President Roosevelt. I related to him what had happened in the Secretary's officeand asked him if he could come over to the Club and take luncheon with me. Loeb wasimmediately and greatly interested in this decision. I pointed out in detail allthe circumstances which led to it. I felt certain that Secretary Wilson would goto President Roosevelt with this illegal decision.

   I asked Mr. Loeb to acquaint the President ofwhat had happened and to get a promise from him, if possible, that he would not givehis approval to Secretary Wilson's decision until I had an opportunity to lay thewhole matter before him. Later in the day Mr. Loeb called me over the telephone andsaid the President had agreed to this delay. Meanwhile the papers were full of thisdecision. It had been given to the press by some one of the four people who werepresent at the conference. I was not the one who gave it to the press.

A DAY OF JUBILATION

   The following day was one of rejoicing by therectifiers all over the country. They felt assured that F. I. D. 45 would be repealedwithout 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 ofpilgrimages, under the leadership mostly of United States Senators, of bodies ofrectifiers to the White House. Senator Foraker conveyed the rectifiers from Cincinnati.Senator Lodge accompanied those from Boston. Senator Penrose led the Philadelphiadelegation. Meanwhile I was patiently waiting word from President Roosevelt. Oneday while I was taking lunch at Harvey's a telephone message from my office saidthe President would see me at two o'clock. I had prepared a movable laboratory withall 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 ofequal degree of purity. I carried an assortment of colors and flavors used by therectifiers. 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 youwill find that the President will do the lecturing." I carried my laboratoryinto the President's office where I was politely received by the attendant and toldthat the President would soon be in. In five minutes my audience appeared, the Presidentof the United States, and Mr. William Loeb, his secretary. For two hours I performedexperiments showing the President how all kinds of rectified whisky, brandy and rumcould be made in a minute. I received his undivided attention. If he interruptedme at all it was only to ask for more definite information on some points. At theclose of this two hour lecture he came around to my side of the table and graspedmy hand, saying to me, "Dr. Wiley, I have heard nothing but whisky for the lastthree weeks, and you are the first person who has ever given me a single idea thatI can comprehend. Then turning to Mr. Loeb he said, "Send all these documentsand samples, together with Dr. Wiley's brief to Mr. Bonaparte, and ask Mr. Bonaparteto advise me on this question." Mr Bonaparte did advise him. He sustained everysingle point that had been presented by the Bureau as to what is really whisky. PresidentRoosevelt ordered the Commissioner of Internal Revenue and the Secretary of Agriculture,both of whom were friends of the rectifiers, to publish jointly a decision definingwhisky in the light of evidence which had been presented. Thus ended the first attemptto violate the Food Law by a complete triumph of the law itself. The Secretary wasconvicted but not convinced. The breach thus made was never closed. The Secretarywas irrevocably allied with the foes of the food law.

BONAPARTE'S DECISION

   The decision of the Attorney-General was sentto the White House on April 10, 1907. President Roosevelt wrote a letter to SecretaryWilson 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 Bonaparteis 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 opinionin full.

   As an illustration of the keen satire used byAttorney-General Bonaparte I quote the following closing paragraphs of his decision:

   " The following seem to me appropriate specimen brands or labels for (1) "straight" whisky, (2) a mixture of two or more "straight" whiskies, (3) a mixture of "straight" whisky and ethyl alcohol, and (4) ethyl alcohol flavored and colored so as to taste, smell, and look like whisky:

   (1) Semper Idem Whisky: A pure, straight whisky mellowed by age.

   (2) E Pluribus Unum Whisky: A blend of pure, straight whiskies with all the merits of each.

   (3) Modern Improved Whisky: A compound of pure grain distillates, mellow and free from harmful impurities.

   (4) Something Better than Whisky: An imitation under the pure food law, free from fusel oil and other impurities.

   In the third definition it is assumed that both the whisky and the alcohol are distilled from grain."

THE RECTIFIERS REFUSED

   It is hardly necessary to add that the rectifierswho had been engaged for many years under Government license in the manufacture ofcompounded and imitation whiskeys failed to avail themselves of the method of labelingsuggested by the Attorney-General. After having secured the support of SecretaryWilson for continuing their frauds upon the consumers of whisky, they were dumbfoundedby their failure to have F. I. D. 45 repealed. They were still more greatly disturbedby having F. I. D. 65 substituted in its place. They were defeated and discouraged,but not eliminated.

   They immediately took steps to secure Court decisionsfor the purpose of declaring both F. I. D. 45 and F. I. D. 65 illegal and void. Tothis end they were wise in selecting the courts before which they proposed to bringtheir petition.

   They filed their first petition before the FederalDistrict Court, sitting at Cincinnati, Hon. A. C. Thompson being the presiding judge.Cincinnati was the great center of the rectifying industry. For years the rectifiershad been making in that city compounded and imitation whiskies designated by high-soundingnames and sold under claims of great age. This product was derisively known locallyas "Nigger whisky." The income from these spurious whiskies was too largeto be given up without a struggle. Some of the most influential citizens of Cincinnatiwere engaged in the rectifying industry. They were also supporters of the dominantpolitical party. For this reason the court of Cincinnati was considered the mostfavorable 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 thehearing of the case on the following Monday. I received an S. 0. S. telegram fromthe 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 Sundayafternoon. The train was late and I did not reach the District Attorney's officeuntil 15 minutes before ten o'clock on Monday morning. The District Attorney wasutterly helpless in this matter. He knew nothing of the case and it was impossibleto instruct him in fifteen minutes. I told him the only hope was to obtain from thejudge a postponement of the trial, in order that we might secure proper witnessesand that he should have opportunity to understand the case properly. When Court openedthe District Attorney promptly moved for a postponement of two weeks. The attorneyfor the rectifiers, Mr. Warwick M. Hough, vigorously opposed any postponement. TheJudge 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 Attorneywas fully acquainted with the nature of the proceeding and a number of competentwitnesses were on hand to defend the Government's position. Judge Thompson was acknowledgedto 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 rightand proper in regard to civic duty. At the beginning of the trial he announced thatit must be completed on that day, including an hour granted to each side to makearguments before the court. He also declared that each side should have an equaltime for presenting the views of witnesses. The matter for the state was forciblypresented, particularly by Dr. Joseph P. Remington of Philadelphia, and Dr. JohnUri Lloyd of Cincinnati. Competent chemical testimony was also presented by the Bureauof Chemistry before the Court.

   After the arguments were made and the trial wasover, all the witnesses for the Government congregated in the office of the DistrictUnited States Attorney. We were speculating as to what the verdict would be. TheJudge had taken the matter under consideration and we knew there would not be a decisionon that day. The District Attorney was very hopeful of securing a favorable verdictand based that hope largely on the testimony of Dr. John Uri Lloyd, who was not onlya 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 influencedby personal friendship, and this was particularly the case because some of the mostprominent rectifiers of Cincinnati were also intimate friends of the Judge.. Whilewe were discussing these probabilities a messenger came from the Judge's chamberswith a note to the District Attorney asking that he be furnished with a copy of thebrief of Dr. Wiley which had been offered in evidence in the court. We all felt thatthis was an important request, believing that if the Judge would read this reportin full he would not be inclined to support the contention of the rectifiers. Ourfondest hopes in this matter were justified. When Judge Thompson issued his reportin about three weeks subsequent to the trial, it was found to be a complete vindicationof F. I. D. 45 and F. I. D. 65.

   Not at all discouraged by their failure, therectifiers appealed to other Federal Courts in other localities. Among these localitieswere Springfield, Illinois; Covington, Kentucky; Indianapolis, Indiana; Buffalo,New York; Baltimore, Maryland; and San Francisco, California. In each case the opinionsof 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 aswhisky as long as the matter was still before the courts. It was known that finallythe decision would have to be made by the courts anyway and any punitory steps mightprove to be entirely futile.

   Mr. H. Parker Willis in an article publishedat this time made the following comment on this procedure under the heading, "ThePublic Will Not Buy Whisky Labeled 'Imitation.'"

   "The new regulations, and the cases brought under them, developed one particularly interesting fact in the situation: the distillers and rectifiers could not dispose of their goods for drinking, either as alcohol or as 'imitation whisky.' The actual name 'whisky,' without modification, was necessary to disposal of their product, notwithstanding that it was precisely the same article under another name. This was clearly brought out when the Western distilleries applied to Judge Van Fleet of the Northern District of California for an injunction restraining the marking of alcohol as ordered by the Bureau of Chemistry, alleging that they had been obliged to shut down their plant through inability to dispose of their product when marked 'alcohol.'

   "Because of the hostile attitude of the courts, whisky manufacturers resolved to turn their attention in other directions. They had hoped to secure an easy victory through the judicial machinery of the Government; but having been defeated there, and knowing that there was nothing to expect from Congress, they now turned again to the Executive. The new rules, with the requirement that whisky be branded as 'imitation' when it consisted of neutral spirits primarily, had gone into effect July 1, 1908, although prior to that date the distilling interests had accumulated as large stocks as possible under the old regulations for marking in order that they might continue to send out their goods as 'rye,' 'Bourbon,' or 'copper distilled' whisky, instead of being compelled to use the term 'imitation.'

   "Pressure upon the Roosevelt administration for action designed to 'relieve' the rectifiers now became acute. Congressman Longworth, son-in-law of President Roosevelt, and friend of representatives of the Cincinnati distilling district, exerted himself in behalf of the rectifiers, and a simlar position was taken by numerous other members of Congress. Representative Perkins of New York, now chairman of the Foreign Relations Committee of the House and a historian of some reputation, had already devoted himself to securing a favorable ruling in the interest of Duffy's Pure Malt Whisky. An interesting correspondence passed between Mr. Perkins and the Department of Agriculture, in the course of which Mr. Perkins noted for the benefit of Secretary Wilson that 'the Duffy Malt Whisky Company * * * is controlled by our most prominent and leading citizens, and I trust matters can be adjusted in such a way as not to injure a long-established industry.' Other statesmen wrote that the Duffy Company 'controlled considerable political influence.' Not to be outdistanced in his efforts for the rectifying interests was Representative Sherman, now Vice-President.

APPOINTMENT OF THE 'WHISKY COMMISSION'

   "During the winter a committee of rectifiers and spirit distillers, represented by A. J. Sunstein and others, visited Washington, and sought to persuade the administration of the great harm that was being done to the rectifying interests. The President finally harkened to the representations of the rectifiers, and appointed a 'Whisky Commission,' consisting of Secretary of Agriculture James Wilson, Dr. F. L. Dunlap, Associate Chief of the Bureau of Chemistry, and John G. Capers, head of the Bureau of Internal Revenue of the Treasury Department. Secretary Wilson and Commissioner Capers were already known as advocates of the views of the rectified whisky interests, while Dr. Dunlap had shown a strong disposition to dissent from the existing rulings of the Government. There was a good deal of mystery about this Commission. Although the Associated Press sent out a frank statement by President Roosevelt to the effect that such a Commission had been appointed, Secretary Wilson took occasion to assure newspaper men that the Commission did not exist as such, and that the President had merely asked for a little advice. Commissioner Capers admitted the existence of the Commission, but Dr. Dunlap said nothing.

   "After several weeks of discussion and inquiry, the three advisers reported to the President in favor of allowing liquor made from neutral spirits to be designated as whisky. Mr. Sunstein and his committee had said that they would be satisfied if they could, be allowed to brand their liquor as 'redistilled whisky,' 'rectified whisky,' or 'neutral whisky.' The three commissioners, or conferees, now advised that some such plan be followed, telling the President that this was substantially the verdict that had been arrived at by the Royal Commission. on Whisky, which had been sitting in England, and which, they stated, had decided that any spirits made from grain was whisky. In a letter written on behalf of the Commission, Dr. Dunlap said, 'It is my opinion that the term 'whisky' should not be denied to neutral spirits diluted with water to a proper strength and colored with caramel,' though he recommended the use of some qualifying name, such as 'rectified whisky.'

   The approval of President Roosevelt of Attorney-GeneralBonaparte's definitions of whisky created a curious environment in the Bureau ofChemistry. 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-GeneralBonaparte, and the Chief of the Bureau of Chemistry were all agreed on the definitions.

   It was hard, however, to get Court action. Attorney-GeneralBonaparte was very insistent that cases be brought in order to test the accuracyof his definitions. Cases could only be brought, under the existing conditions, whena majority of the Board of Food and Drug Inspection would initial requests eitherfor criminal action or seizure of goods. There was much hesitation on the part oftwo members of the Board of Food and Drug Inspection in regard to this matter. Itwas not until the Secretary of Agriculture ordered them to proceed that they joinedme 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, actionin rem. In every ease of this kind which reached the courts, unanimous approvalof the Attorney-General's opinion on whisky was obtained. In all seven cases werefinally brought to the bar of justice out of hundreds recommended by: the Bureau.

   CASE 1. Notice of Judgment 15. The UnitedStates of America, Libelant, vs. 93 Cases, containing 12 bottles each, of allegedWhisky, 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 misbrandedand, under the law, the seized liquor was ordered to be destroyed or, after properbranding, delivered to the claimants under a bond of $2,000 that it would not besold in contravention of the existing law. Date of judgment, August 27, 1908.

   CASE 2. Notice of Judgment 45. UnitedStates vs. 4 Barrels of Liquid Purporting to be Whisky. This case was brought inthe 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 inferiorityis concealed and in order to imitate old mature whisky and whereby the said productdoes imitate and appear to be old mature whisky."

   The Judge who issued the decree of condemnationwas the Hon. Thomas H. Anderson. Date of the Judgment, March 13, 1909.

   CASE 3. Notice of Judgment 68. UnitedStates of America vs. Fifty Barrels of Whisky, Labeled "Bourbon Whisky,"Manufactured in New Orleans from fermented molasses. The presiding Judge was theHon. Thomas J. Morris of Baltimore. The decree of condemnation was in the same termsas 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 thedefense had addressed the jury, Judge Morris said: "I will not call upon thecounsel for the United States to reply. The case as it is presented to the jury isa very clear one. I reject the only prayer offered by the defense. Really, that prayerconcedes the misbranding of the liquor, and asks me to say to the jury that if theyshall find that this was done under the control- and by the agents of the UnitedStates, the United States is estopped from proceeding to condemn these goods andforfeit the goods from misbranding." The examination of this whisky by the Bureauof Chemistry disclosed that it was distilled from fermented molasses, and was calledBourbon Whisky. Date of Judgment, May 14, 1909.

   CASE 4. Notice of Judgment 112. UnitedStates 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 releasedon a bond of $1,000. Not to be sold contrary. to the Food and Drugs Act as is usualin such cases. Date of Judgment, November 20, 1909.

   CASE 5. Notice of Judgment 349. UnitedStates vs. H. A. Thierman & Co. of Louisville, Ky. Seizure of five barrels ofwhisky transported from Kentucky to Indiana. The name of the Judge in this case isnot disclosed. The decision was not rendered until after the advent of the administrationof President Taft, and the notice of judgment carried this statement: "Thisdecree was rendered prior to the issuing of Food Inspection Decision 113, which revokedFood 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-determinedthat the Bonaparte decision, which was the one which had been supported by all ofthese 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 waswholly legal. Date of Judgment, May 17, 1910.

   CASE 6. Notice of Judgment 353. UnitedStates vs. the Hannis Distilling Co. of Philadelphia, Pa. The usual course was followedand the decision rendered, but the name of the Judge is not given. The date of thedecision is May 17, 1910. It has the same notice in regard to decision 113 as carriedby the former case.

   CASE 7. The final case is Notice of Judgment361. United States vs, Davis & Atkins of Richmond, Va. The name of the Judgeis 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 precedingcases.

   This makes seven cases in the Federal Courtssupporting the validity of the opinion of Attorney-General Bonaparte, and in nota 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 opinionof the Attorney-General Bonaparte was revoked by executive authority and a diametricallydifferent opinion supporting all the contentions of the rectifiers substituted inits place. Thereafter, no mention of any case against whisky is found in the Noticesof Judgment. It was not necessary because the United States authorities, in plainviolation of Court decisions, had decided that the Bonaparte opinion was all wrong.

   I never was able, even in the two years thatintervened from the time of the decision of Attorney-General Bonaparte to the closeof the Roosevelt administration, to get the Board of Food and Drug Inspection toapprove of any criminal case against any dealer who was an offender of the law. Ihave all the correspondence in which Attorney-General Bonaparte urged that his decisionbe taken before the Courts, and in every instance when it did reach the Court hewas sustained. In all the attempts of rectifiers to nullify his decision by bringingCourt cases themselves, and this they did in eight separate cases, the rulings ofthe Court were always against them.

   To show the attitude of the Board of Food andDrug Inspection in this matter, I made determined efforts to bring a case againstDuffy's Pure Malt Whisky, either to seize the whisky or to bring a criminal actionagainst the manufacturers. Every move in this direction was blocked by my collegueson the board. Under date of October 3rd, 1908, the following note in regard to thismatter 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 determinedefforts of my colleagues to protect Duffy's Pure Malt Whisky from being molestedeither by seizure or bringing any criminal case against the maker. The few casesthat 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 theSolicitor 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 fifteenlocalities in the City of Washington where illegal whisky was on sale, describingeach one minutely.

   On November 6, 1907, the Attorney-General addresseda letter to the Secretary of Agriculture, in which he informed him that he bad beenunable to come to any agreement on a statement of facts, and, therefore--"itwill be appropriate for you to proceed with the enforcement of the law relating tothe subject of labeling whisky in accordance with the procedure prescribed by law."

   In the midst of these discussions the Secretaryof Agriculture received a letter from John G. Capers, Commissioner of Internal Revenue,looking to a reopening of the questions decided by Attorney-General Bonaparte whichit appears was due to the express desire of President Roosevelt. The letter datedDec. 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 thePresident in a letter which I wrote to Dr. James H. Shepard of Brookings, S. D.,Jan. 4, 1908, which I quote:

   "I cannot tell you much about the present status of the whisky case except this: The rectifiers, through Senator Hopkins and other influential senators, made a proposal to the President that they would withdraw all suits to set aside the present regulations if the present regulations could be modified so as to suit their views, or in so far as this could be. I understand the President appointed a commission consisting of Commissioner Capers, the Secretary of Agriculture, and Dr. Dunlap, to make the necessary revision of the regulations. In so far as I know the revision is to be made on a brief submitted by the rectifiers. I do not think that anyone who is in favor of maintaining the present regulations requiring imitation and compound whiskies to be so marked has been invited to appear before the Commission. Commissioner Capers has said in at least two printed interviews that he was going as far as he could to meet the requests of the rectifiers, even if possible to open up the question of like substances. I don't know what attitude either the Secretary or Dr. Dunlap will take in this matter but I would like to wager you a peanut that I could guess.

ASK FOR A REHEARING

   President Roosevelt communicated to Attorney-GeneralBonaparte the protests that had been made against his decision, and their plea fora rehearing. On May 29, 1907, Attorney-General Bonaparte filed with the Presidenthis reasons for not re-opening the case in which he made the following statements:

"The President,
  The White House.

SIR: In accordance with your instructions, I gave a hearing on Wednesday, May 15, to persons desiring to submit to the Department criticism or other comment on my opinion of April 10 last past, as to the construction of section 8 of the act approved June 30, 1906, and generally known as the Pure-Food Law. About thirty persons appeared on this occasion and a number of oral arguments were presented; some critical and some approbatory of the opinion in question. At the conclusion of this argument I announced my willingness to receive and consider any matters in writing which might be submitted to me touching its subject-matter, and, in response to several requests for a further hearing, stated that I would give these requests due consideration and announce later whether I saw any sufficient reason to comply with them. As heretofore stated to you verbally, I do not think any useful purpose would be served by another oral argument, and, with your approval, I have, therefore, announced that, in this respect, the matter must be considered closed. I received a large number of written communications from various persons commenting on the opinion in question, and I have carefully considered all of them. I find no reason to withdraw the said opinion, or to modify it in any respect, and I respectfully report that, in my judgment, this opinion correctly states the law on the subject to which it relates."

   (Signed) Charles J. Bonaparte.

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

 

BONAPARTE'S STATE PAPERS

   Attorney-General Bonaparte issued three shortstate papers on the subject "What is Whisky?" The first of these papersbears the date April 10, 1907. In this paper the question of what is whisky was answeredin harmony with the provisions of the food and drugs act. The points covered in thispaper were so distasteful to the rectifying interests as to call for numerous requestsfor 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 anyrespect 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 opinionchanged. 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 oftenreferred to Dr. Dunlap, Associate Chemist of the Bureau of Chemistry, as "mychemist." In the light of Dr. Dunlap's career in the Bureau no one will likelydispute Roosevelt's often repeated claim to proprietorship. The Committee havingin charge this matter was thoroughly devoted to the rectifying interests. It is onlynatural 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 suggestionof 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 decisionof Judge Thompson of the Southern District of Ohio and also the opinion of the DistrictCourt of the Southern District of Illinois, and refers to other Court decisions inwhich 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 sustainingthe Attorney-General received universal press support. Mr. Louis Ludlow, then Presidentof the National Press Club and now member of Congress elect described the event inthe Indianapolis Star under date of February 23rd, 1909. He says:

   " The President indorses and makes public an order of Attorney-General Bonaparte, which declares the position of the rectifiers and the conclusions of the commission to be in error. Dr. Wiley's views on whisky are thus upheld."

   In the same publication under date of Feb. 24,1909, is an editorial, "A Victory for Wiley," from which I quote the following:

   "For the third time Attorney-General Bonaparte has decided that neutral spirits diluted with water to a proper strength and colored with caramel is not whisky, but 'imitation whisky' and must be labeled as such. This was the ruling of Dr. Wiley. * * * It is evident that the authorities have no intention of weakening the Pure Food Law any further at the present time. The benzoate of soda ruling is enough for the present time. It is realized, of course, that there will always be pressure to have the law construed favorably to those who want to evade it. Probably it will gradually be much weakened. One concession will be made, and then another. The people will be less watchful, and at last we may find that we have virtually no law at all."

   This prophetic disaster has long since been realized.

ADDITIONAL COMMENTS

   In view of the positive character of Mr. Rooseveltto stand by his own decisions, at first it was thought that this investigation wasnot at his suggestion. A letter written by H. Parker Willis, published in Collier'sWeekly of April 6, 1912, throws additional light upon this matter. Mr. Willis saysin 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 committeeto inquire into the accuracy of the opinions of Attorney-General Bonaparte was appointedby the President. Dr. Dunlap, in submitting the report of this committee under dateof 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 theHon. W. W. Armstrong, member of the State Senate of New York, under date of December17, 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 writingof this letter by the Secretary of Agriculture, the Washington Post carriedthis 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 carriedthe story of the appointment of the above commission. It printed another news storyas follows:

   "The uncertainty caused some of the large distilleriesof the country to present the matter to the President to-day. They were introducedto him by Senator Hopkins and Representative Graff, of Illinois. Secretary Wilsonand Mr. Capers were present."

   Although the President repudiated the reportof 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 interestsof Duffy's Malt Whisky and Canadian Club Whisky were continued right along just asif nothing had happened.

   On June 12, 1908, after a large number of shipmentsof Canadian Club whisky had been seized by the officials of the pure-food law, thefollowing 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 probablythe following incident which occured at the hearing accorded Duffy's Malt Whiskyrepresentative. 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 suspensionof further seizures.

   These official data show that the President appointedthis commission, that the commission considered the subjects referred to it, thatit made its report through Dr. Dunlap on the 19th of February, 1909, and that theAttorney-General most decidedly and emphatically repudiated the findings of thiscommission and the President thereupon approved the Attorney-General's report.

   An unconfirmed rumor current at the time wasthe effect that Bonaparte told the President that would immediately resign if hisreport did not again receive approval.

MR. BONAPARTE REFUSES TO ACCEPT THE
"WHISKY COMMISSION'S" DECISION

   Mr. H. Parker Willis says:

   "Attorney-General Bonaparte was now in an embarrassing position. He had already rendered his opinion with reference to the nature of whisky, and the proper methods of branding it under the existing law of the United States. President Roosevelt had sent Mr. Bonaparte the report of the Whisky Commission, which had just been transmitted to the White House, with a request for the Attorney-General's opinion.

   " Two questions presented themselves to Mr. Bonaparte--whether he should reverse himself and accept the findings of Messrs. Wilson, Capers, and Dunlap, or whether he should stand neutral and idle, in case President Roosevelt should see fit to put into effect his Commission's recommendations. Mr. Bonaparte decided both of these points negatively. In a rather scathing letter to President Roosevelt, he pointed out that the Whisky Commission had based its suggestions almost entirely upon work that had been done in England by a body not known to American law,--the British Royal Commission,--while he had found it his duty to guide himself by the laws of the United States. He could not, therefore, as a matter of law, consent to the proposal now made. Noting that 'the assistant chemist of the Department of Agriculture suggests that on the question of the construction of a statute (the Pure Food Law) a very carefully considered and reconsidered opinion of the Attorney-General should be disregarded,' he went on to say that he could not 'fail to recognize in Dr. Dunlap's recommendation a challenge of the correctness of' his conclusions. He therefore called attention to the interpretations of the Food Law, in line with the views of the Department of Justice that had lately been handed down by the courts. It was stated by officers of the Government that he had privately conveyed to the President the intimation that although only about a week remained before his termination of office as Attorney-General, he should feel compelled to resign, in the event that the President saw fit to overrule his decision in the whisky matter. The President had been largely animated by his own sense of fair play in giving the rectifiers every opportunity to set forth their ideas; and he now made his own stand evident by approving Mr. Bonaparte's views, and continuing the existing methods of marking and branding liquors."

   In the Washington Herald of Feb. 27, 1909,is an editorial from which I quote:

"VICTORIOUS MR. BONAPARTE

   Our good right hand, palm up, to Mr. Charles Joseph Bonaparte in warm congratulation extended! 'Whisky is whisky, and nothing else is whisky,' says the Attorney-General; and so sayeth his Chief, the President of the United States! * * *

   "We regard this as -a great victory for the common people, and we trust they appreciate fully its momentous significance. Heretofore every old thing that could assume the most remote whisky-like disguise has labeled itself whisky, and posed in the open market as the real, genuine, simon-pure article. * * *

   "Mr. Bonaparte need not fear that it is not the people's tremendous applause he hears ringing in his ears! It is just that very thing. Pat with him they stand. 'Whisky is whisky, and nothing else is whisky.'"

   If the rectifiers had only been endowed withprophetic vision, they would not have made a continuous fight for two long yearsagainst the Attorney-General and the President and the Food Law. They would not havecommenced numerous actions in Federal Courts, all of which they lost with monotonousregularity. They would not have spent hundreds of thousands of dollars in retaininggreat advocates like Mr. Choate, and others of the same character as mentioned inthe article by H. Parker Willis. They would simply have waited. This final rebuffby President Roosevelt occurred on the 19th of February, 1909, thirteen days. beforethe advent of the new administration. On the morning of the 5th of March the stormclouds which had darkened the sky of the rectifiers for two long weary years brokeasunder. The rays of victory shot through the rift, and the full sunlight of triumphshone forth. The principles which had guided the Roosevelt administration were eternaland just. The law was not altered, but its interpretation was radically changed inthe interest of the rectifiers of whisky and other alcoholic distilled beverages.

ADVENT OF PRESIDENT TAFT

   When the last of these cases was finally decidedin the District Courts, President Taft came into the White House. A very remarkableevent is now to be recorded. He ordered a rehearing of the whisky problem. A classmateof President Taft, Mr. Lloyd Bowers, had been made Solicitor of the Department ofJustice. President Taft first requested Mr. Capers to conduct the new hearings onwhisky. This was equivalent to instructing the jury to bring in a verdict. Owingto the protests of the straight whisky interests President Taft finally appointedhis Solicitor-General, Lloyd Bowers, to hold these hearings. They have been printedunder the title "Proceedings Before and By Direction of the President Concerningthe Meaning of Whisky." They cover 1328 printed pages. Following is the orderof the President constituting this tribunal:

In the Office of the Solicitor-General,
Thursday, April 8, 1909.

   These proceeding are had pursuant to an order of the President of the United States, reading as follows:

EXECUTIVE ORDER

   A number of distillers and importers of spirits and whisky, represented by Lawrence Maxwell, Esq., Hon. Joseph H. Choate, Alfred Lucking, Warwick M. Hough, and Hon. W. W. Armstrong, having appealed to the President for a hearing with respect to the order issued by the Commissioner of Internal Revenue, known as Order No. 723, pursuant to the rules and regulations for the enforcement of the food and drugs act and food and inspection decision No. 65, promulgated and made by the Secretary of Agriculture under date of May 14, 1908, claiming that the provisions of said order are in violation of the terms of the said act in that they require to be branded as imitations or compounds, or otherwise, whiskies which have well-settled names in the trade, and which it was not the intention of Congress by the said food and drugs act to require to be described by any other designation; and certain distillers of whisky having appeared by Edmund W. Taylor and the Hon. John G. Carlisle, after consideration the matter is hereby referred to Hon. Lloyd W. Bowers, Solicitor-General of the United States, to take testimony and report to the President his opinion upon the following points, namely:

I.

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

II.

   What did the term whisky include?

III.

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

IV.

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

V.

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

   The Solicitor-General will from time to time determine the extent and character of the hearing and will report with his opinion the evidence taken by him pursuant hereto.

(No. 1061, Apr. 8, 1909.)
   (Signed) WM. H. TAFT.

 

PRESIDENT TAFT DRAWN INTO THE WHISKY CONTROVERSY

Quoting further from the article by H. Parker Willis:   

   "When President Taft entered the White House, on the 4th of March, 1909, the rectifying interests were by no means inclined to let the whisky question rest. They knew that, while Secretary of War, he had been decidedly friendly to their views at the time when the subject had originally come up before the Cabinet for settlement. It was determined to make a fresh and vigorous effort to secure a reversal of the Roosevelt rulings that would permit the rectifiers to continue placing their neutral spirits on the market under the name of whisky. Consequently, shortly after the President took office, he was approached by all the original interests that had urged a change in the methods of marking whisky and, yielding to their pressure, he consented to reopen the question and to hear argument in person.
   "Early in April a distinguished array of counsel appeared at the White House. Straight whisky interests had employed ex-Secretary John G. Carlisle to coöperate with Edmund W. Taylor, the original representative of the straight whisky distilleries, while for the rectifying interests appeared Joseph H. Choate, former ambassador to England, Senator Armstrong of New York, Lawrence Maxwell, Esq., and Warwick M. Hough, the high-priced lawyer who had been sent to Washington as a representative of rectified interests and of the wholesale liquor trade. Mr. Alfred Lucking also appeared in behalf of the Canadian Club whisky interests, which had found themselves hampered by the rulings of the Government, and in whose interest the powerful offices of Ambassador James Bryce had been enlisted with President Roosevelt to secure the admission of the Canadian product without the imitation label.

   "President Taft listened to the arguments on both sides, and showed a strong disposition to refer the matter directly to Commissioner Capers, the head of the Bureau of Internal Revenue. Mr. Capers, however, had long been associated with the work of the Bureau of Internal Revenue, under the old regulations which permitted the marking of rectified spirits as whisky; and he was known to be favorable to the retention of the old system of markings, having shown this feeling when, in conjunction with Secretary Wilson and Dr. Dunlap, he had recommended the changes demanded by the rectifying and blending interests. The President's disposition to throw the question back into adverse hands at once called forth a protest from the straight whisky men, based upon the ground that Mr. Capers was somewhat prejudiced, and President Taft. necessarily recognizing the justice of this claim, directed Solicitor-General Bowers to serve in place of Mr. Capers.

   "The points that Mr. Bowers was to take up included an inquiry as to the true definition of the term 'whisky' at the time of the passage of the Pure Food Law, and an inquiry into the chemical constituents whose presence necessarily designated a liquor as being unmistakably whisky. He was further called upon to determine whether, as urged by the 'Duffy's Pure Malt Whisky' interests, whisky as a drug was a different product from whisky as a beverage. The old controversy burst forth afresh, and, beginning April 8, (1909), Mr. Bowers conducted almost continuous hearings, lasting nearly a month. More than twelve hundred pages of printed testimony were taken. At times the room in which the meetings were held resembled a chemical laboratory more than it did a courtroom, while at others, as the witnesses sat about a table, freely tasting the various samples that had been submitted for examination, it was strongly reminiscent of a German drinking club.

   At the completion of the testimony and the argumentsof 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 page1243. Mr., Bowers' opinion, summarized is as follows:

   "1. A neutral spirit derived by distillation from any thing else than grain has not been known to the consumer as whisky, whether or not it was colored or flavored or both colored and flavored; and a neutral spirit derived by distillation from grain, but lacking a substantial amount of by-products (other than alcohol) which are derived by distillation from grain and give distinctive flavor and properties, has not been known to the consumer as whisky, whether or not it was colored or flavored or both colored and flavored.

   2. A neutral spirit derived by distillation from grain, but lacking a substantial amount of by-products derived by distillation from grain and giving distinctive flavor and properties, was not at or prior to the passage of the Pure Food law, and has not since been, whisky.

   3. There was included in the term whisky a minimum of congeneric substances as necessary in order that the distilled spirit should be properly designated as whisky, viz., such substantial amount of those congeneric substances as is requisite to give to whisky distinctive flavor and properties, differing from the flavor and properties of alcohol and of other distilled spirits. There was no maximum of such congeneric substances, however, except as potability might demand.

   4. There were many abuses in the trade. The evidence, however, has not been such as to make possible, or to justify an attempt at, enumeration of the particular abuses, beyond saying that they included the application of the term 'whisky' to spirits distilled from other substances than grain, or to mixtures of such spirits with whisky, or to neutral spirits derived from grain but not whisky within the description of it given in answer to question II, or to such mixtures of neutral spirits and whisky as do not fall within the description of whisky given in answer to question II.

   5. The term whisky as a drug is not applicable to a different product than whisky as a beverage."

 

:

LLOYD BOWERS
Solicitor-General, who conducted the re-hearing of "What Is Whisky?"

   On page 404 of my brief on whisky (unprinted)I draw the following conclusions:

   "FIRST: The principle enunciated in Food Inspection Decision No. 45 is correct, and no modification of this decision should be made.

   "SECOND: When Neutral spirits are diluted with water and artificially colored and flavored, the resulting product should not be called whisky. Under the ruling of the Internal Revenue such a product may be called imitation whisky if not sold as a genuine whisky, or spurious if it be sold as a genuine whisky.

   "THIRD: If whisky be mixed with neutral spirits and colored and flavored, it forms that well-known class of bodies called compounds, and should be marked 'Compound of whisky and neutral spirits' or some similar appellation.

   "FOURTH: If two or more whiskies be mixed together, the resulting mixture should be marked 'blend,' 'A mixture of two or more whiskies' or some similar appellation.

UNIVERSAL CRITICISM OF BOWERS' REPORT

   Perhaps no public decision ever issued receivedsuch unanimous condemnation as Bowers' report. Everybody was dissatisfied. WarwickM. Hough and Lawrence Maxwell objected to it because it denied to neutral spiritthe name of whisky. Joseph H. Choate and Alfred Lueking objected on behalf of CanadianClub whiskies for the same reasons. John G. Carlisle and Edmund W. Taylor objectedon behalf of the straight whisky producers because it permitted the addition of alcoholto whisky provided the congeners which gave the whisky its character were not toogreatly 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 calledwhisky. The Columbus Distilling Company objected to it for the same reason. The MichiganChemical Company objected to it because alcohol to be mixed with other whisky mustbe 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 June28, 1909. There were present the President of the United States, presiding; Hon.George W. Wickersham, Attorney-General of the United States; Hon. James Wilson, Secretaryof 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 exceptionsto a report, and I believe that the report has the first indication of correctnessin that there are exceptions from every side.

   MR. CARLISLE: Nobody satisfied.

   THE PRESIDENT: Nobody satisfied.

   President Taft, after considering the protestsmade 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 andadopted in toto many of the principles presented to him by the rectifiers.However, he suggested a method of labelling which was in some respects distastefulto 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 hisSolicitor-General that neutral spirits or alcohol, even when carrying flavor, werenot entitled to be defined as whisky, also revised the opinion of his distinguishedfather, Alphonso Taft, who rendered an opinion, as Attorney-General, on the 21stof 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 underthe authority of the law were empowered to make rules and regulations for carryingthe law into effect, prepared the definitions which did not, however, follow PresidentTaft'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 findingsof many Federal Courts, promulgated by the three Secretaries charged with the dutyof making rules and regulations for carrying the law into effect, is the most astonishingexhibition of illegality ever perpetrated. No higher flight of open contempt of judicialfindings 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 priorto judicial opinions. In the face of the facts it is a flagrant contempt of Court.

   The regulations made by the three Secretariesare most remarkable. In the first place they attempt to decide what is an adulterationor misbranding, a function which was never committed to them but was specificallygiven to the Bureau of Chemistry.

   In the second place, they utterly failed to includethe fundamental principles of branding laid down by President Taft in the above extractfrom his letter. There is absolutely no trace in this decision of requiring whiskyto be labeled neutral spirit whisky, or a blend of that whisky and a whisky madefrom neutral spirits. Those were the fundamental principles which President Taftlaid down for correct labeling. These two phrases were highly objectionable to therectifiers. Under the very nose of the President the rectifiers so controlled theaction of the three Secretaries that neither one of these phrases was incorporatedinto the necessary labeling of whiskies made from neutral spirits. Not only was everydecision of the courts violated by this order, but President Taft's specific directionsfor labeling were also disregarded. It is very strange that the President himselfdid not make a protest against the utter disregard of the fundamental principlesupon which his labeling order was based.

RECTIFIERS GAINED EVERY POINT

   On publication of this food inspection decisionin which the rectifiers gained everything they had lost in the decisions of the FederalCourts, 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. Allthe interests which were engaged in adulterating and misbranding foods were greatlyheartened by this victory of the rectifiers. If one class of misbranders and adulteratorscould receive immunity by executive order, why not apply the same principle to allforms of adulteration and misbranding?

BECOMING A PROHIBITIONIST

   I am very strongly of the opinion that this approvalof neutral spirits colored and flavored as whisky and this, of course, would applyto gin and rum, and all other distilled spirits, including brandy, and by implicationalso, to adulterated and misbranded beer and wine, was one of the principal causeswhich enabled the doctrine of prohibition to achieve such a sweeping victory a fewyears afterward under the stress of promoting the public welfare during the periodof the world war. At least in so far as I was concerned I had spent many years ofhard labor in trying to have all kinds of distilled spirits as well as fermentedbeverages comply with ethical requirements and pure food laws. The dikes that heldthe swelling floods of adulterations and misbranding of our beverages were brokendown and waves of food adulterations swept over and devastated the country.

THE LAST WORDS OF LLOYD BOWERS

   On the morning after the President issued his proclamation Mr. Lloyd Bowers called me over the telephone. He said: "Have you read the President's decision?" I said, "I have, with great astonishment."He asked, "What do you think about it?" I replied, "I feel as if I had been spanked," to which he replied, "So do I." This was the last time I heard Lloyd Bowers' voice. The next morning the newspapers carried the notice that the Solicitor-General had left Washington for a few weeks' rest. About three weeks after that I saw, with great regret, a notice of his death. Thus passed a great lawyer and a great jurist. I think I was right in thinking that probably his premature death was due to a broken heart. Nobody was satisfied with the laborious effort which he had made. Upon the whole my deep sympathy was with Lloyd Bowers. I was impressed with the conviction that he was earnestly seeking the truth. Three-fourths of his,decision was in harmony with my own views, so that I believe that he was at least three-fourths right.

JUSTICE HARLAN SPEAKS

   On the evening after the President's 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 guestsat 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 inthis country. The question of 'What is whisky?' was on its way to my Court and now it will never reach there."

   What a pathetic void in classic Supreme Court decisions was caused when Justice Harlan was denied this opportunity of writing the opinion of the Supreme Court on this case!

   Fortunately the rectifiers did not have many years to enjoy the fruits of their great victory. The enactment of the Prohibition Amendment and the Volstead Act placed all dealings in beverage alcoholic drinks outside of the law. The question now is not "What is whisky?" but "Where is whisky?" The adulterations of the bootleg brand are now more deadly than were the combinations of the rectifiers in the old days. These illegal decisions that permit alcohol to masquerade as whisky have never been repealed. They remain sonorous witnesses of the triumph of the unholy.

DISASTERS PREVENTED

   All of these disasters would have been prevented if the food law had been administered as Congress enacted it. One of the most amazing events in the recital I have just made is to see the three Secretaries who were authorized to make rules and regulations for carrying out the food law attaching their signatures to a decision which clearly prevented the law from being enforced. This misconception of the law has continued until the present day and has been the cause of all the crimes committed against it.



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CHAPTER V

BOARD OF FOOD AND DRUG INSPECTION AND
REFEREE BOARD OF CONSULTING SCIENTIFIC EXPERTS

 

PROLOGUE

   It has often been said that, to make discoveries, one must be ignorant. This opinion, mistaken in itself, nevertheless conceals a truth. It means that it is better to know nothing than to keep in mind fixed ideas based on theories whose confirmation we constantly seek, neglecting meanwhile everything that fails to agree with them. * * *

   "Men who have excessive faith in their theories or ideas are not only ill prepared for making discoveries; they also make very poor observations. Of necessity they observe with a preconceived idea, and when they devise an experiment, they can see, in its results, only a confirmation of their theory. In this way they distort observation and often neglect very important facts because they do not further their aim. This is what made us say elsewhere that we must never make experiments to confirm our ideas, but simply to control them; which means, in other terms, that one must accept the results of experiments as they come, with all their unexpectedness and irregularity.

   "But it happens further quite naturally that men who believe too firmly in their theories, do not believe enough in the theories of others. So the dominant idea of these despisers of their fellows is to find others' theories faulty and to try to contradict them. The difficulty, for science, is still the same. They make experiments only to destroy a theory, instead of to seek the truth. At the same time, they make poor observations, because they choose among the results of their experiments only what suits their object, neglecting whatever is unrelated to it, and carefully setting aside everything which might tend toward the idea they wish to combat. By these two opposite roads, men are thus led to the same result, that is, to falsify science and the facts."

   From Experimental Medicine, by ClaudeBernard, pages 37 and 38.

 

PURPOSE OF CREATING BOARDS

   In the enactment of the Food Law the Congressplainly provided the mechanism of its enforcement. There was no provision in thelaw for any additional machinery. It was evident that the Bureau of Chemistry wasthe 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 thepoet has pertinently and wittily said. The elimination of the Bureau was thereforethe thing of prime importance. The President of the United States seems to have takenthe initiative in this matter.

   President Roosevelt wrote to the various universitiesto secure a chemist, not to replace me, but to be placed in such a position as tocounteract all my activities. Accordingly on the recommendation of President Angellof Ann Arbor the President issued an order permitting Dr. Frederick L. Dunlap tobe appointed, without Civil Service examination, as associate chemist in the Bureauof Chemistry without being subject to the orders of the Chief of that Bureau, butreporting directly to the Secretary. (Moss Committee, page 921.)

   In order to make this point perfectly clear Iquote the following from page 849, Moss Committee:

   MR. MOSS: " It is also stated in the record that a boardof food and drug inspection was organized to advise the Secretary of Agricultureon 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 executiveorder?"

   SECRETARY WILSON: "Yes."

   MR. MOSS: "Then the powers and the duties of either oneof the boards were fixed by executive order and not by statute?"

   SECRETARY WILSON: "That is right. I do not think therewas any special order sent to me to do that, but President Roosevelt appealed tothe presidents of the big universities to get an additional chemist put on thereand 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 Boardof Food and Drug Inspection was not created by statute but was created by executiveorder."

   SECRETARY WILSON: "That is what I was doubting. It wasnot created by statute. I created it for the purpose of getting information and allthat, but of the three gentlemen on the board, two were in the Department, and inbringing in Dr. Dunlap, an additional chemist, made the third one, so technicallythere was no general order of the President to do that, but there was a clear understandingthat it would be done. "

SPECIFIC DUTIES

   We should not forget that in the legislationof Congress specific duties are often assigned to particular units of administrationof a character which does not permit of executive interference. I may cite in thisconnection the activities of the Comptroller of the Treasury. To the Comptrollerof the Treasury is assigned by Congress certain specific duties. Even the Presidentof 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 theComptroller was particularly objectionable to certain citizens. They went to thePresident and asked him to rescind the comptroller's opinion. President Grant, whobelieved in obeying the law, replied that he could not legally alter a comptroller'sdecision. 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 assignedto it. Theoretically these duties could not be repealed by executive order. Practicallyin this case they were, but, of course, illegally. The proper way was to follow thesuggestion 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 officeone morning in company with a young man whom I had never before seen, and introducedhim 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 officeand described the duties of the officer. Whatever qualification Dr. Dunlap had forthe office to which he was appointed does not appear. In the first place he was totake the office of Acting Chief in my absence, a position which was filled most ablyby Dr. W. A Bigelow, my principal assistant in the Bureau. Dr. Bigelow had rare judgmentand discrimination. I depended upon him largely for the control of the personnelof the Bureau. He was efficient, firm, just and capable. He had grown up in the Bureaufrom a humble position to be, for several years, my first assistant.

   There was no one else so capable as he to dischargethe duties of Chief in my absence. This action of the Secretary was a direct insultto one of the most able men with whom I have ever worked. At the same time he putin charge of the Bureau during the absence of the Chief a person who knew nothingof its personnel, nothing of its activities, nothing of its duties either under thefood law or otherwise, and wholly unskilled and untrained in the control of a largeBureau of several hundred members, as was the Bureau of Chemistry at that time. Thiswas an astounding action. At the same time I was informed that the Secretary hadorganized a Board of Food and Drug Inspection. Such a board was not authorized bylaw nor by any action of Congress, nor by any appropriation made by Congress. Itspurpose was to take away from the Bureau all its power and activities under the FoodLaw. 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 actedwith 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 disapprovedby 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 elapsedfrom 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 beforethe 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 createdin the Department of Agriculture and not in the Bureau of Chemistry.

   The result of the appointment of a board of Foodand Drug Inspection was that the functions of the Bureau as defined by the law wereentirely paralyzed. The Solicitor of the Department was made, by General Order No.140, the supreme arbiter in all cases. In all of the decisions which he rendered,without exception, the Secretary of Agriculture supported him.

ORIGIN OF THE REMSEN BOARD

   Encouraged by the success of the first effortto evade the provisions of the law through the appointment of the Board of Food andDrug Inspection, the time was propitious to push the matter further. The servicesof President Roosevelt in securing the appointment of a chemist who would sympathizewith 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 theBureau in the matter of what was injurious to health. Up to this time the decisionsof 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 incidentmade it possible to use the President of the United States in the accomplishmentof this purpose. As an eye and ear witness of the event about to be described I amable now to set down exactly what occurred.

   Adulterators of our foods who were using benzoateof soda particularly in ketchup, and saccharin particularly in canned corn, had visitedPresident Roosevelt and urged him to curb the activities of the Bureau of Chemistryin its opposition to these practices. They had spent the greater part of the dayin the President's office. He promised to take these matters into consideration thevery next day and asked these protestants to stay over. He invited the Secretaryof Agriculture and the Chief of the Bureau of Chemistry to come to his office atten o'clock on the day following and listen to the protests of the gentlemen mentionedabove.

   At the appointed hour we all met in the President'soffice, or as I recall, in that part of his office where Cabinet meetings were usuallyheld. When all were assembled he asked the protestants to repeat in the presenceof the Secretary of Agriculture and the Chief of the Bureau of Chemistry the demandswhich they had made upon him the day before. The three chief protestants were CurticeBrothers of Rochester, N. Y., Williams Brothers of Detroit, Michigan, and ShermanBrothers of New York, represented by James S. Sherman, M.C., who was near his electionas Vice-President of the United States in 1908. There were a number of lawyers andothers closely related to the protestants, making a very goodly number in all. Theywere 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 utterlydestroyed 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 ofthousands of invested capital. There was no way in which this disaster could be divertedexcept to overrule the conclusions of the Bureau. The Chief of the Bureau was dramaticallyset forth as a radical, impervious to reason and determined to destroy legitimatebusiness. After this recital was completed, Mr. Roosevelt turned to Mr. Wilson andsaid: "What is your opinion about the propriety and desirability of enforcingthe 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 ofthis 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 turnedto 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 blowto the food law would have been prevented. Mr. Sherman, however, took the floor andsaid:

   "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 Presidentto ask the customary questions. I was entirely too precipitate in the matter. I addressedthe President without his asking me, which is considered an offense to royalty orto a President. In the presence of rulers, we should always wait until we are spokento before joining in the conversation. Had I followed this precept of respect thecatastrophe 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 paralysisof the Food Law. Turning to me in sudden anger the President changed from Dr. Jekyllto 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. Thatdistinction has not departed from me to this day. The thing which hurts most is thatin the light of my long career I fear I deserved it. The next day the President issuedan order establishing the Referee Board of Consulting Scientific Experts. In orderthat his favorite sweetener might have fair hearing he asked Dr. Ira Remsen, whoheld 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 conceptionof 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 ofthe 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 Expertswas 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 littleleft of the method prescribed by Congress for its enforcement.

UNIFICATION OF ADULTERATORS

   From this time on all the interests seeking toparalyze the enforcement of the food and drugs act acted as one body under the leadershipof the Department of Agriculture. The rectifiers were perhaps the best organizedof the enemies of the pure food and drugs legislation. The interests that supportedand demanded the use of benzoate of soda represented only a minority of the manufacturersof ketchup. Those who demanded the free use of sulphurous acid and sulphites wereconfined to the manufacturers of cane molasses and of dried fruits. Those who demandedthe use of saccharin were only a very small part of the interests engaged in thecanning 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 bakingpowder out of phosphates and tartrates were not so numerous and did not do so biga business as the makers of alum powders. The whole body of adulterators and misbrandersof our foods who were depressed by the results of the decision of the question ofwhat is whisky were restored to optimism and tremendous activity by the appointmentboth 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 druglegislation was awakened to the danger which came from the betrayal of the causeof pure foods by these executive proclamations. The daily, weekly, and monthly pressof the United States were almost solidly opposed to these illegal activities of theexecutive officers in charge of the pure food and drugs legislation. Not a day passedwithout numerous attacks upon this laxity of administration appearing in all partsof the country.

   I will return to this condition of affairs lateron. The Secretary of Agriculture was perfectly acquainted with the incident justdescribed in regard to the origin of the Remsen Board. Nevertheless, in the followingstatements to the fruit growers of California he ascribed the origin of the RemsenBoard to a totally different cause. I quote from page 847 of the Moss Committee onExpenditures 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, SecretaryWilson promptly refused to have it printed because they had found a harmless substitutefor sulphur fumes.

   The hearings accorded the users of saccharin,after the report on saccharin by the Referee Board had been published, developedthe following curious incident.

   The President selected the alleged discovererof saccharin as Chairman of the new committee to revise the findings of the Bureauof Chemistry. This committee entirely reversed President Roosevelt's decision thatbenzoate of soda was a harmful substance. They did not, however, agree with him entirelyin regard to the harmlessness of saccharin. In their report they permitted the useof a sufficient amount of saccharin to sweeten foods, but they were of the opinionthat if one consumed over 3/10th of a gram of saccharin at any one time it mightprove injurious and that also as a sweetener it was a fraud. The manufacturers ofsaccharin asked for and secured a hearing on this point. The hearing was held beforeSecretary Wilson and Secretary Nagel. Addressing the saccharin manufacturers, SecretaryWilson (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 completeimmunity until the Remsen Board made its decision. In point of fact, that came onlyafter many years. It was never published by the Department of Agriculture. The indulgencehas continued for twenty-two years and bids fair to go on forever. Now to the makersof 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 theAct is not "sane."

   Of course Secretary Wilson was right in so franklystating the purpose for which the Referee Board was created. Manufacturers of adulteratedgoods were never shut out from a full and fair hearing. That was always availablebefore the Courts when they were cited to appear as violators of the law. The RefereeBoard was an effective buffer for all this class of manufacturers. It prevented afull and fair hearing of the case before a jury and a United States Court. It wasthe most baleful influence toward the degradation of the food supply of our countrythat ever existed. The Referee Board has passed away, but the evil effects of itsactivities will be felt for all time to come. Its decisions and its activities arestill regnant in the mal-administration of the pure-food law. The only hope of thefuture lies in the possibility of some day getting a Secretary of Agriculture whowith one stroke of his pen will erase forever from the records of the Departmentevery decision of the Referee Board and every regulation made in conformity therewith,and remove every administrative officer who willingly carries these decisions andregulations into effect.

SENSITIVE TO NEWSPAPERS AND MAGAZINES

   The officials, paid experts and aides of thelow-grade manufacturers realized very keenly their unpopularity as reflected in thenotices of their activities which appeared in the newspapers and magazines. Thissensibility caused Dr. Remsen at the end of his testimony before the Moss Committeeto express his feelings which have been recorded in another place. Prior to thishe 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. Diedin 1928.

   The curious thing about all this is that theSecretary of Agriculture and his aides, the Remsen Board and their followers werecontinually insinuating that there was some one in Washington who inspired all thesecriticisms of the Remsen Board. They were never bold enough to come out openly andsay who this person was. It is perfectly plain who was in their minds. The reportof 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 seenthe light of day. Dr. Bigelow in this report showed how by dipping the freshly cutfruits in a weak solution of common salt and then drying them a product was producedequal in color to the sulphured article and far more palatable, wholesome, and desirablein every way.

   Large quantities of dried fruits made by thisprocess were shipped to Washington, submitted to dealers and pronounced a far superiorproduct in every way to the ordinary sulphured article. Also attention should herebe called to the fact that the meat inspection law specifically denies the use ofsulphur dioxide and sulphites in the preparation of meats on the ground that a preservativeof this kind is injurious to health. Its use had been discarded practically beforethe regulation forbidding it was made by reason of the scandal of embalmed beef whichstirred this country deeply during the Spanish War. In other words the use of anysulphur dioxide or sulphites in meat was an adulteration, but in dried fruits itwas necessary to prevent the destruction of the dried fruit business, in the eyesof the Secretary of Agriculture.

   Further questioning of the Secretary threw additionallight 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 UnitedStates 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 thegreat universities and got them to recommend men, and when the men came that he wantedhe ordered me to appoint them, and I appointed them.

   MR. HIGGINS: Mr. Secretary, in your observation of the enforcementof this law, is it your opinion, based upon that observation, that it was a wisething to have a referee board?

   SECRETARY WILSON: It certainly was my judgment that we shouldhave a referee board.

   MR. HIGGINS: Is that confirmed by your experience with it?

   SECRETARY WILSON: I have no reason to conclude that it was notwise.

   MR. HIGGINS: Are you familiar with the character of the gentlemenwho 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 themas to the methods of investigation?

   SECRETARY WILSON: No. I told them frankly when they began thatnobody had any business to interfere with them anywhere; that they were to find usthe facts with regard to what we submitted to them; and I did not impose any restrictionsand nobody else had any right to, unless it was the President, and I did not thinkhe would.

   MR. MAYS: Did you have any doubt in your mind as to the legalityof their appointment at the time?

   SECRETARY WILSON: Never.

   MR. FLOYD: Now, Mr. Secretary, how many of these great questionshave 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 anyonein a criminal procedure until the Bureau of Chemistry has made an adverse findingand 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 wouldask other witnesses as to the effect of the decision of the referee board. In casethe Bureau of Chemistry should make a finding adverse to the use of a certain commodityon the ground that it was deleterious to health and that should be referred to thereferee board and the referee board should make a contrary decision, is there anyway, under the regulations, to your knowledge, that the question at issue betweenthe Bureau of Chemistry and the referee board could be taken into the courts andbe settled by the courts?

   SECRETARY WILSON: Of course, I can not state intelligently withregard to how a thing might get into the courts, but the department would enforcethe decision of the referee board. They would do that, I suppose

   MR. FLOYD (interposing) : If the decision of the referee boardwas adverse to that of the Bureau of Chemistry the effect of enforcing the decisionof the referee board would be to prevent the prosecution of anyone using that commodity?

   SECRETARY WILSON: Well, it would depend on--yes, I see yourpoint; yes, it would.

   The unanimous decision of the committee investigatingthe expenditures of the Department of Agriculture completely exonerated the accusedofficials 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 cabinetofficers, and one Attorney-General in promoting the efforts to exclude the Bureauof Chemistry from any efficient steps looking to the enforcement of the Food andDrugs Act created a veritable storm of protest, as has already been indicated, inthe press of the country. This protest was voiced most effectively by the attitudeof The World's Work under the able editorship of Walter H. Page. In the issueof that magazine for September, 1911, the following editorial comment is found, underthe 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, investigatingcharges 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. EdwinW. Higgins, Hon. Burton L. French, and the Hon. Charles H. Sloan, the stenographerand H.W. Wiley.

 

   The editor of The World's Work did nothave to wait long to know the conclusions reached by the committee investigatingthe 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 reversalof the penalties which the personnel board had inflicted, or tried to inflict onthe 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 dismissalof 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 committeeare 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 investigatingthe expenditures of the Department of Agriculture show that not a dollar of the moneyexpended by the Referee Board was legally expended. At the time this investigationtook place the total expenditures made by the Referee Board of the money appropriatedby Congress to enforce the Food and Drugs Act amounted to over $175,000. Every dollarof this money was expended in protecting and promoting violations of the law. Itseems strange in view of these findings which were approved by the House of Representativesthat no effort was made to impeach the Secretary of Agriculture and the Presidentof the United States who had thus perverted money appropriated for a particular useto activities totally repugnant to the purpose of the appropriation. The followingviolations of law were permitted and protected by this crime, namely, the use ofbenzoate of soda as a preservative of foods, the use of sulphur dioxide and sulphitesas bleaching agents and food preservatives, the use of saccharin as a sweetener infoods up to an amount not exceeding three-tenths of a gram, and the free and unrestricteduse of alum in food products. It is a striking comment also on the attitude of Congressand the people at large that no steps have ever been taken from 1911 to 1928 to correctthese outrages on the Americaia people and to attempt to restore the law to its powerand purpose as enacted. Administration after administration has come and gone andthese abuses still persist.

THE REFEREE BOARD ALREADY DECLARED ILLEGAL

   After considering all the evidence adduced overa period of six weeks the House committee on expenditures unanimously declared theReferee Board to be an illegal organization. It had a very good reason for doingso even before the evidence was considered. The matter had been decided by an assistantto Attorney-General Wickersham in a report from the Department of Justice dated March31, 1909. This was fully two years and more before the decision of the investigatingcommittee 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 proceedingsof the committee, pages 205 and following. Attorney-General Fowler called attentionto the fact that at the time the committees of the House and the Senate met for finalconference on the food and drugs bill, the House bill contained a provision authorizingthe appointment of a committee of five experts to consider questions of deleteriousor injurious substances in foods, and to establish food standards. The Senate billdid not contain a provision of this kind but did contain a statement of the dutiesof the Bureau of Chemistry to perform these functions. The Senate conferees insistedon the elimination of the House provision for a special board and this was accededto by the conferees from the House. When the conference report was presented to thetwo houses Mr. Mann, manager for the House made the following statement in answerto a question by Mr. Pollard:

   MR. POLLARD: Was there any change made in the provision of theHouse bill wherein we provided that a board, of five inspectors should be selectedto pass upon the wholesomeness or deleteriousness of the foods?

   MR. MANN: That provision was in Section 9, directing the Secretaryof Agriculture to determine standards and the entire section goes out. As I statedin the House when the bill was before the House, it is the courts which must determinein the end as to the question of the wholesomeness or the deleteriousness of preservativesor of any article of food. * * * The Senate conferees were unalterably opposed tothat provision and as it was not an essential provision of the law we gave way onthat provision in order to save the rest of the bill practically intact as the Househad enacted it. (Record 59th Congress, First Session, Page 9738, Expenditures inthe Department of Agriculture, page 269.)

   MR. FOWLER: "This statute authorizes the prescribing ofsuch regulations as are consistent with law, and for the reason above stated I regardthe appointment of this Board of Referees as inconsistent with law.

   Senator McCumber also commented in the Senateon 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 Congressthe Solicitor of the Department of Agriculture wrote an opinion to the effect thatthe appointment of the Referee Board was legal and this opinion was adopted by Attorney-GeneralWickersham as a choice between the opinion of the Solicitor of the Department ofAgriculture 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 enforcementof the food and drugs act was completed. Even the Board of Food and Drug Inspectionwas deprived of its office of confirming or overturning the decisions of the Bureauof Chemistry. Under General Order No. 140 the Solicitor of the Department was madethe sole arbiter of the recommendations which should go to the Secretary in regardto whether or not an article was misbranded or adulterated. General Order No. 140is found on page 10 of the report of the committee. The committee expressed the followingopinion 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 consummationof the plan of the solicitor. It totally disregarded the provisions of the food lawas to the methods of its execution. It placed the solicitor, not mentioned nor recognizedin the law, in the place of the Bureau of Chemistry as the sole arbiter of all processeslooking to the enforcement of the act. With this final blow at the vitality of thelaw its enforcement passed entirely into the hands of the enemies of the law. Thepublic which it was intended to protect was left without any redress. The resultwas a wild orgy of adulteration and misbranding, paid for by the money of tax-payersappropriated for the enforcement of the law. The members of the Referee Board becameexperts 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 thussacrificed by the direct negation of the law's demands. The fai-reaching effectsof this crime against law I have tried to set down in as small a space as possibleto do justice to the story.

UNCONTROLLED FOOD SUPPLY

   If an expert dietitian and physiologist shouldtake up for study a report on metabolism made by a scientific authority, he wouldexpect first of all that the composition and weight of food ingested should be accuratelystated. 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 theBureau of Chemistry, it will be noticed that careful analytical examinations weremade of all the foods ingested and the quantities of each kind of food for each subjectis accurately stated. The data in this investigation therefore obtained by the examinationand analyses of the feces and urine have a direct significance. In the experimentson the same subject conducted by the Referee Board no attempt was made to have completeanalyseg of the foods administered nor the quantities thereof eaten. It was all leftto the experimentees themselves. This is forcibly brought out by the statement ofDr. 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 Chemistryno such latitude was permitted. In the fore period in each case sufficient quantitiesof the diet prescribed, which was a thoroughly wholesome and well-balanced one, wereused to establish an even daily weight of each one. This quantity was given to thesubject each day, during the experimental administration of the drug. If during theadministration of the benzoic acid the subject would not feel like eating his wholemeal, 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 producedby the administered preservative. I suppose this method of procedure would be designatedby members of the Referee Board as "physiological" nonsense.

   The records printed in Report No. 88 indicatethe wildest riot in diet ever recorded in a physiological investigation. Enormousdifferences in the amount of food consumed are recorded in that report. In the evidencebefore the court in the Indiana case, page 33, this matter was brought to the attentionof 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 personalmatters have passed away and an expert chemist and physiologist calmly reviews thedata obtained by the Bureau of Chemistry and the data obtained by the Referee Boardon the same subject, they will show a comparison of values of the two investigationswhich I am quite content to leave to the judgment of the unbiased future.

   As has been clearly illustrated, the Remsen Boardwas appointed to protect manufacturing interests. The Chief of the Bureau of Chemistryunder his oath was trying to protect the neglected American consumer. One would havethought that in selecting five eminent scientific men that at least some one of themmight have revolted from the purpose to which he was assigned. The quotation fromClaude Bernard discloses most emphatically the proper psychological attitude of thetrue investigator when he undertakes his task.

PROFESSOR CARLSON ON THE REMSEN BOARD

   The Supreme Court has ruled that the user ofa deleterious product in foods must justify that use. Prof. A. J. Carlson* sees ascientific reason therefor:--

   Modern chemistry has opened up another avenue of poisoning the human system through the field of food preservatives and food substitutes. We have the problem of the harmfulness or the harmlessness of the various baking powders, of benzoic acid as a permissible food preservative, of saccharin as a substitute for sugar, etc. Many of the experiments purporting to prove the permissibility or harmlessness of the substance or preservative, even those carried out by competent scientists, seem to me wholly inadequate. I have in mind, as an example, the experiments and finding of the Remsen Consulting Board, on the question of saccharin in foods. Under the direction of this board, composed of leading biochemists and chemists, varying quantities of saccharin were fed to a small number of healthy young men, daily, for periods up to nine months. The board concluded that the daily ingestion of this food substitute below a certain quantity (0.3 gram per day) is without injurious effects; above this saccharin produces injury. This conclusion became guide to federal legislation and regulation. Was the above conclusion warranted by the experiments performed? We think not. All the experiments proved was that the substance (saccharin) when taken by healthy young men over this period did not produce any injury that the commission could detect by the tests used. Society is composed of individuals other than healthy young men, and nine months is a short period in the span of human life. There are many deviations of physiological processes that can not be detected by body weight, food intake, or the chemical examination of the urine. Most of the organs in the body can be injured a great deal before we become actually sick. It would seem a safer principle for governments and society to insist that the burden of proof of harmlessness falls on the manufacturer or the introducer of the new food substitutes rather than on society, and the test of the harmfulness or harmlessness should involve all phyidological processes of man.

*Prof. A. J. Carlson, Science, April 6, 1928, page 358.

POLITICS AND PURE FOOD

   One of the most remarkable episodes in the activitiesof the Remsen Board was in connection with the Convention of State, Dairy and FoodOfficials in their annual meeting in Denver, in 1909. The previous meeting of thisofficial body was held at Mackinac Island in 1908. At this meeting vigorous protestsagainst the mutilation of the food law by the creation of the Remsen Board were voicedin the resolutions adopted by the convention. These resolutions reflected severelyupon the attitude of the Secretary of Agriculture and other officials of the Departmentin accepting the decisions of this Board which were held to be contrary to law. TheSecretary of Agriculture was indignant at this feature of the meeting in 1908. Itis evident that he did not want a repetition of it to occur in 1909. Previous tothe date of the meeting George P. MeCabe, Solicitor, made an official trip to theCentral West, which, according to the testimony given, was for the purpose of interviewingprospective delegates to Denver and urging them to vote to support the policies ofthe Department of Agriculture. As related in the testimony in the Moss Committeeon the expenditures of the Department of Agriculture, Mr. McCabe was somewhat hazyas to the purposes of this trip and as to exactly when it was made. Only two yearshad passed, but they seemed to have had a remarkable effect upon his memory. Underthe urgent questioning of members of the Committee and in a burst of loyalty to hischief he finally told the whole story.

   To strengthen still further the administrationlines in the forthcoming convention, the Secretary of Agriculture requested the membersof the Referee Board also to attend this convention. In addition to this urgent requestof 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 Boardto attend the convention and justify, if they could, the conclusions already reachedin the benzoate of soda question. It was particularly desirable, also, to hear theiropinions on the saccharin question, inasmuch as that was the chief motive of theappointment of the Remsen Board. The attitude of Dr. Remsen, the Chairman of thatBoard, and the part played by it in the Denver convention are luminously set forthin the testimony of the Moss committee which follows. The memory of Mr. McCabe, asI have said, was somewhat short, andthis seemed to be the case with the memory ofDr. 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 memoryin regard to the plan which he discussed with Dr. Remsen was quite as hazy as wasMr. McCabe's memory in regard to his trip to interview the delegates to the Denverconvention. One of the most striking features in connection with this event was thefact that special commissions were issued to the members of the Remsen Board to covertheir expenses in connection with this trip. It was shown by the questioning of thecommittee that there was cloubt as to the legality of these expenses under the generalproclamation establishing the Remsen Board. That no question might arise with thedisbursing officers, this special dispensation was given. The reading of the testimonywill be sufficient to illustrate the other points in regard to the appearance ofthe Remsen Board at Denver. Following this are quotations from the Denver press atthe time the meeting was in session. The pages of the testimony are given in eachselection.

 

HON. J. Q. EMERY

 

EXCERPTS FROM TESTIMONY BEFORE MOSS COMMITTEE

Dr. Remsen's Testimony

   Page 257.

   MR. FLOYD: What is saccharin, Doctor?

   DR. REMSEN: I can explain that if you want a scientific lecture.I happen to be the discoverer of that substance. I could not explain it in a fewwords 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 substancewas discovered in the laboratory under my direction in an investigation carried outway back, over 30 years ago. A young man was associated with me in the work, andhis 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 madea good deal of money out of it. I did not.

   MR. FLOYD: For what reason, if to your knowledge, was saccharinreferred to your board for investigation?

   DR. REMSEN: I have no idea why it was referred except the generalidea that in every case it was desired to know whether the substance mentioned inthe 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 preservativeused 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 timessweeter than ordinary sugar and can be made at a rate which renders sweetness perunit 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 indiabetes. I believe it is very useful in that disease, as diabetic patients cannottake sugar, but can take saccharin and thrive under it.

   MR. FLOYD: Do you know whether any members of the board selectedby you previous to their appointment had taken any special interest in or expressedany opinion of chemical preservatives of food?

   DR. REMSEN: I can not answer that question fully, but I cangive an answer to the best of my knowledge. They had all been interested in the generalproblem of the use of preservatives. Two of them--possibly only one; I know Dr. Chittendenwas interested in the effect of saltpeter on meat and was engaged in an investigationon that subject until quite recently. He also, I believe, although I am not sureabout that--I have seen this in the newspapers and have not followed it in detailotherwise--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 thatinvestigated saltpeter. I am not sure.

*Dr. Chittenden appeared before a legislative committee and declared borax a harmlesspreservative.

   MR. FLOYD: Did you attend the convention of State and Nationaldairy and food departments at Denver, in 1909?

   DR. REMSEN: Yes, sir; on the way back from California I stoppedthere.

   Page 262-263.

   MR. FLOYD: Did you attend on your own volition, or were youdirected 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 howlong.

   MR. FLOYD: What was the purpose of that convention, and whatwere 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 addresson the subject of the work of the referee board, I think, or, at least it had referenceto the benzoate question, and after finding I could stop there conveniently on theway from California and that the other members of the board could do the same, Iaccepted the invitation. The association discussed all sorts of questions pertainingto things of which I have no knowledge, but I do know that they took up this benzoatequestion in rather an active way, and I suppose it was felt by the Secretary thatit was desirable to have some one there to explain what it all meant. They seemedto be going on the wrong track, so far as we could gather. They got some wrong impressionsof the thing and the nature of the work, or what we were appointed for, or what wewere doing, and it did seem wise not to let them go too far that way without someexplanation 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 membersof the board for this trip to California and this trip to the convention in Denverwere paid by the department?

   DR. REMSEN: Yes. Of course, the trip to the convention amountedto 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 addressedthe 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 madebefore the convention on the question of benzoate of soda you made a defense of theuse of benzoate of soda?

   DR. REMSEN: No, sir.

   MR. FLOYD: You just discussed the findings?

   DR.. REMSEN: I discussed the general method of procedure whichwe had followed. I have nothing to do with the use of benzoate of soda. We were notasked to decide whether it was,a good thing to use or not, and we have never expressedourselves upon that point.

   THE CHAIRMAN: Your expenses at Denver were also paid by theDepartment of Agriculture?

   DR. REMSEN: We went, as I said yesterday, to California foran important purpose, looking into the sulphuring process, and on our way back westopped there. We did make a little effort to time our trip back so that we couldattend the meeting, because we had been asked to give addresses. We were asked bythe president of the association. We stayed there possibly three days. I am not surewhether it was two or three, but not more than three. The slight expense of the boardduring 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 explainand defend the report you had made to the Secretary of Agriculture?

   DR. REMSEN: I did not defend the work. I didn't think that wasmy business. The report had been made. But I did do this: I explained, somewhat asI have explained to this committee, how the board came into existence, and very littleelse. I don't think that the address was ever published. Then, I may say, that afterthat 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 willadd that to what I said yesterday, because I made really two addresses there. Theother members of the board I think did not answer the attack. I think they were satisfiedwith my answer.

   THE CHAIRMAN: In making either one of those addresses did yougo beyond the official work of your board and defend the use of benzoate of sodaas a preservative of food?

   DR. REMSEN: No, Sir.

   Dr. Reed's address was solely in the interestof public health. The criticism he made of the Remsen Board was for its open supportof 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 Courthas said, for the protection of public health, was so flagrantly flouted by the RemsenBoard in the two cases then decided, namely, benzoate of soda and saccharin.

 

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

 

DR. REMSEN'S AVERSION TO NEWSPAPERS

   Page 292-293.

   MR. HIGGINS: Did you desire to make any other statement thathas not been covered by the questions that have been asked?

   DR. REMSEN: There is just one point that I should like to referto, that has not been brought out in the examination. This board has been aware forsome 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 influenceis; 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 newspapersalmost without exception are opposed to the Remsen Board. Why, I am sure I don'tknow. The Remsen Board is an innocent board and does not quite like to be consideredguilty before it has been tried, at all events. I have noticed that within the lastmonth nearly every reference to the Remsen Board that has appeared in the papershas put the board in a bad light, and anybody reading those articles day after daywould get the impression that Remsen and his whole tribe ought to disappear fromthe face of the earth. Sometimes friends of mine come up to me with long faces andsay, "Remsen, it is too bad about this matter." I say, "What's thematter?" 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, thosearticles 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 statementto 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 onthe whole a thick skin is worth something.

   The attack upon the Remsen Board by the publicpress was nation-wide. The only people who were pleased with it, aside from the highofficials 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 atDanver a strong lobby of the supporters of the Remsen Board. At the head of thislobby, which apparently numbered 100 at least, was Warwick M. Hough, chief attorneyfor the rectifiers. There seemed to be little enthusiasm among the people of Denverfor 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 allof these individuals. After adjournment of the afternoon session I saw this lobbygathered around the members. of the Remsen Board and Warwick M. Hough's arm was lovinglyencircling the shoulders of Dr. Ira M. Remsen, eminent chemist and president of JohnsHopkins University, and according to his own statement, discoverer of saccharin.Although each member of the Remsen Board was personally known to me except Dr. AlonzoTaylor and Dr. C. A. Herter, not one of them spoke to me during the three or fourdays they were in Denver except Dr. Herter. He came up and introduced himself tome and attempted to make some apology for his part in the activities of the RemsenBoard. He realized very keenly the condition they were in, in espousing the causeof adulteration, becoming the paid agents of the adulterators, and incurring theuniversal condemnation of the press and the people of the country. Dr. Herter wasthen a very sick man. In a few months from that date he died. I have often wonderedwith what misgivings he approached his end and what feelings the other members ofthe Board must have had when they realized the universal condemnation which was heapedupon 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 servicethey rendered their country as members of this Board.

   Page 293-294.

   THE CHAIRMAN: Might not the fact that you gave certain testimonyand the fact that you appeared at the Denver convention making speeches there beat the bottom of some of this influence that you are speaking about as being inimicalto the Remsen Board?

   DR. REMSEN: I am sure I don't know, but I can say that it wasfound that the influence, whatever it was, was at work long before the Denver meeting.

   THE CHAIRMAN: When the Remsen Board was appointed of courseno one expected that it was going to do anything more than give advice to the Secretaryof Agriculture in his official duties, and yet, according to your testimony, theDepartment of Agriculture has suggested to different members to appear in court andgive testimony, has paid their expenses at that trial, when the effect would be toaffect the decision of the courts in the State of Indiana.

   DR. REMSEN: Well, it might affect the decision of the courtin so far as it would enable them better to get at the truth, which I suppose wasthe object of the court.

   THE CHAIRMAN: That may be the object of the court, but it surelywas not the object of the creation of this referee board, was it?

   DR. REMSEN: Of course the referee board was never defined exactly--exactlywhat it should do.

   THE CHAIRMAN: Well, let us define it. Do you understand it nowto be part of the purpose of the referee board to in fluence the decisions of thecourts 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 tellingthe facts, and if I am asked to do so I should do so, so far as it would influencethe 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 officialreport is not evidence?

   DR. REMSEN: Yes, sir.

   THE CHAIRMAN: And it is voluntary with you whether you shouldappear 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 andit was upon his advice that you gave this testimony?

   DR. REMSEN: Yes.

   THE CHAIRMAN: That is the point I wanted to get at, and thatyou 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 paidby 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 decisionwhich your board had reached as the result of its scientific investigations as tothe 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 Foodand Drug Inspection; you are referring to some advice to be given to Dr. Taylor aboutsome testimony to be given at Indianapolis, Ind., and you state there: "I shallconsult with our people on the Board of Food and Drug Inspection (that is, Dunlapand McCabe)." What meaning do you attach to that language--if you dare to attachany?

   SECRETARY WILSON: There is no hesitation in my mind in tellingyou all that was in my mind there.

   THE CHARMAN: I recognize the fact that you need not answer unlessyou wish.

   SECRETARY WILSON: Oh, I am going to answer it, My answer isthis: 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 aninsult to Dr. Wiley to have consulted him in regard to anything concerning benzoateof soda.

   THE CHAIRMAN: Why?

   SECRETARY WILSON: Because he despised it, and everything connectedwith it, and believed that a big mistake had been made, and a big mistake had beenmade by ever getting the Referee Board; that is why. I do not gratuitously offerinsults 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 havereferred the report of the Bureau of Chemistry on the copper question to the RefereeBoard without publication?

   SECRETARY WILSON: Oh, yes; I remember now. I had two bureausconsidering the sulphate of copper, and there was a man in the Plant Industry namedWoods who had done a most remarkable lot of work with sulphate of copper. He foundby taking a little bag of sulphate of copper and going into a large reservoir thathad green scum over it, if he would sail around for an hour and drag that bag afterhim he would kill every single particle of that green scum there; and he went toa number of States in the country, and he went to Panama and cleaned up every oneof the reservoirs they had. He and the doctor did not come within gunshot of agreeingon sulphate of copper. In a case of that kind, Mr. Chairman, one must go slow whenthey have two scientists in two different lines and they do not quite agree. It isnot best to bring any arbitrary rulings in there, but wait and see if we can notget more light.

   THE CHAIRMAN: It is a matter of fact, however, the Bureau ofChemistry 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 preparedand inserted in the record at this point a complete list of the investigations ofthe Bureau of Chemistry which you have refused or have failed for any reason to havepublished?

   SECRETARY WILSON: I could do that; yes; I could do that.

   (Manuscripts relating to subjects involved in the enforcementof the food and drugs act, approved June 30, 1906, submitted for publication by theBureau of Chemistry, but not published:)

   Corn Sirup as a Synonym for Glucose. Submitted as Food InspectionDecision 83, November, 1907.

   Investigations of a Substitute (weak brine) for Sulphur Dioxidein 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 Digestionand 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 Digestionand 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 andDesiccated 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 Bureauof 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 thereis justification for having anything which treats with benzoate of soda handled inthat way. I believe that is the question, is it? Benzoate of soda is a question thatwas referred to the Referee Board. I think I would not favor printing anything inthe department until we heard from them.

   THE CHAIRMAN: As a matter of fact, whether the findings of theReferee Board govern your action, or whether the findings of the Bureau of Chemistrygovern 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 therewho must decide.

   THE CHAIRMAN: In other words, the decisions of the Referee Boardhave no value whatever until approved by you? I am speaking now legally, and as toits influence upon the administration of the pure food law.

   Page 865-866.

   THE CHAIRMAN: It is true, is it not, Mr. Secretary, that moneywhich you allot to the Referee Board is drawn from money appropriated for the Bureauof Chemistry, and that this allotment is anticipated in the estimates which you make?

   SECRETARY WILSON: Yes; anticipated and understood by the Committeeon Agriculture when they appropriate the money.

   THE CHAIRMAN: And for that reason you do not consult with thechief 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 moneybe allotted to the Referee Board from the appropriation under his department?

   SECRETARY WILSON: I think I would not want to hurt his feelingsby ever mentioning it at all.

   We had a referee board, and I think a pretty expensive refereeboard, you will confess. We had gone after big men, and it was costing a good dealof money, and those people met there at Mackinac Island and got themselves outsideof sympathy with the department along those lines, attacked me personally, misrepresentedthings, and I thought the amount of effort the United States was making and the amountof money it was expending to get facts from the greatest chemists in the land madeit worthwhile for us to get those big men there before that class of men and letthem see them and let them hear them. I did not think they comprehended the differencethere 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 arrangementwas 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 wentinto the forests from Denver and stayed a month. Those were the plans. There is nothingI 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 thosepeople got new light from those men.

   THE CHAIRMAN: I wish to refer to you page 338 of the hearingsof 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 'perniciousactivity' somewhere." In your reply you say: "The pernicious activity youspeak of is quite evident." Will you kindly tell the committee what you referredto as "pernicious activity"?

   SECRETARY WILSON: Yes. The activity of people attacking thatRemsen Board. That is just what it was.

   THE CHAIRMAN: It was correspondence between you and the chairmanof the board. Of course, if this "pernicious activity" is without the Departmentof Agriculture it would not be proper for us to go into it. But if it is within theDepartment of Agriculture, it would seem to me proper for us to know what you referredto as "pernicious activity."

   SECRETARY WILSON: If you have been watching the public pressyou have discovered that there has been a good deal of criticism. If you have beenwatching the proceedings of Congress you will no doubt have seen there has been adesperate effort made there for the purpose of destroying the Remsen Board, and thingsof 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 wasbeing 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 Denverconvention, which we were speaking about heretofore, was in line with their officialduties?

   SECRETARY WILSON: Yes; it was a kind of public trial we werehaving, really, of the Remsen Board.

   THE CHAIRMAN: Their attendance being in the line of their officialduty, will you explain why you issued to each one of them a special authorizationfor traveling expenses to attend this particular convention, when each one of themhad an annual authorization for travel anywhere in the United States upon officialbusiness?

   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 August6, 1909, wherein it is stated that authorization No. 1163 is amended so as to permitDr. Remsen and his assistants to attend the Denver convention.)

   SECRETARY WILSON: I guess that is correct. What do you wantto know about it?

   THE CHAIRMAN: I want to know, if this attendance was in linewith their official duties, as stated here, why it was necessary they should havespecial authorization when they had a regular authorization?

   SECRETARY WILSON: I 'Presume they had some doubts about stoppingoff at Denver being in their original authorization. If they had, then I gave themall the authorization they would need.

   THE CHAIRMAN: If there were any doubt it would be doubt as towhether or not that came within their official duties?

   SECRETARY WILSON: Precisely.

   THE CHAIRMAN: Do you hold that you have executive authorityto add to the official duties of the Remsen Board other than that prescribed in theorder 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 persecutionof those delegates to the Denver Convention of 1909 who opposed the decision of theRemsen Board was the dismissal of Floyd Robison. This action was investigated bythe Moss Committee. Mr. Robison was one of a group of state chemists who were occasionallyrequested to cooperate with the officials of the Bureau of Chemistry in enforcingthe 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 departmentfor the good of the service. James Wilson, Secretary of Agriculture."

   Dr. Robison appealed to the Secretary of Agriculturefor reasons which led to such drastic action. The Secretary, in his reply, underdate 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 atthat 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 committeeof eleven State food chemists appointed by the president of the Association of Stateand 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 conventionin 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 Wilsonor 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 advocatingor opposing the use of benzoate of soda?

   DR. ROBISON: I did not.

   MR. MOSS: In your capacity as delegate did you cast a vote forpresident of that association?

   DR. ROBISON: I did. I voted for Mr. Bird, the commissioner ofthe State of Michigan.

   MR. MOSS: Did Mr. Bird receive the support of the Departmentof Agriculture?

   DR. ROBISON: He did not.

   MR. MOSS: So far as you know, then, did you appear in oppositionto the Department of Agriculture in any other manner except casting your personalvote for the president of the association?

   DR. ROBISON: I did not.

   MR. MOSS: At whose request did you appear at Indianapolis togive testimony at that trial?

   DR. ROBISON: At the request of the Board of Health of the Stateof Indiana.

   MR. MOSS: Were you paid any fee?

   DR. ROBISON: I received no fee.

   MR. MOSS: In your testimony, did you give your original workas a chemist?

   DR. ROBISON: I testified according to the truth as, I understoodit to be and had found it from my own investigations, and according to my oath, andwithout any regard in any capacity to any other policy.

   MR. MOSS: Were you warned in any way by the Department of Agriculturenot 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 Commissionerof 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 UnitedStates

 

   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 ofdisreputable politics ever witnessed in a so-called scientific convention in anycountry. 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 Officeof the District of Columbia through Dr. Woodward cast its three votes in favor ofthe candidate of the food adulterators. The eminent members of the Referee Boardmust have been amazed at the character of their enthusiastic admirers. It was anastounding apotheosis of the Unholy.



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CHAPTER VI

POLITICS AND PERSECUTION OF A STATE

 

FURTHER ACTIVITIES OF THE REMSEN BOARD

   The Attorney-General of the State of Indiana,Mr. James Bingham, desired to have testimony in favor of the State Board of Healthfrom.the Chief of the Bureau of Chemistry and from other employees of the Bureauwho had taken an active part in the investigations of benzoic acid and benzoate ofsoda. A suit had been filed against the State of Indiana in the Federal Court beforeJudge Anderson on the ground that the ban placed on benzoated foods by the StateBoard of Health was unconstitutional. Mr. Bingham came to Washington for the purposeof securing permission from the Secretary of Agriculture for these officials to appearbefore the Federal Court in Indianapolis. The Secretary refused to grant the requestof Mr. Bingham on the ground that the Department of Agriculture was on the otherside of the question and that it would not be in harmony with official etiquettefor the employees of the Bureau of Chemistry to appear against the Remsen Board andtheir assistants and experts who were attending the trial in the interest of thecomplainant by the executive order and request of the Secretary of Agriculture. Inorder to secure this testimony Mr. Bingham found it necessary to remove the FederalCourt from Indianapolis to Washington. When this was done the Solicitor of the Departmentof Agriculture on the request of the Chief of the Bureau made a ruling that the FederalCourt had no right to issue a subpoena for attendance of the employees of the Bureauof 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 contemptof court if they should refuse to appear and give testimony on the summons unlessthey wanted to. I volunteered to give my testimony before the Federal Court. It beginson 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 tothe first question asked him, he declined to answer on the ground that his testimonywould be of a character not approved by the Department and he availed himself ofthe privilege given by the Solicitor of refusing to answer (Page 3,693 of the Recordof the Indiana Case). Mr. Bingham immediately carried the case to Justice Barnardof the District Supreme Court. Justice Barnard promptly ruled that the employeesof the Department of Agriculture were compelled to give their testimony if subpoenaedby the Federal Court and that the statement made by the Solicitor that they werenot thus compelled to testify was an error. Under this ruling Dr. Bigelow and otheremployees of the Bureau gave their testimony. It would not be proper to go into anyextended explanations of the nature of this testimony given contrary to the opinionof the Solicitor. A sufficient explanation of it is found in the fact that JudgeAnderson of the Federal District Court of Indiana, to whom all the testimony in thecase of over 5,000 pages was placed, with the summary by the master, promptly decidedthe case in favor of the State of Indiana. He said, in point of fact, that the State'srights in regard to the regulation of the sale of foods inside the State could notbe questioned before the Federal Courts by citizens of other states.

 

MR JAMES BINGHAM
Attorney-General of Indiana

 

   This recital shows plainly that although theprivilege was denied the Bureau of Chemistry of bringing suit against anyone usingbenzoic acid, the employees were compelled to testify before the Federal Court. Theusers of these preservatives lost their ease due largely to the testimony of theexperts of the Bureau of Chemistry. Thus it appears as if the "big chemists"--asthe Secretary of Agriculture called them--of the Remsen Board, when opposed by the"little chemists" of the Bureau of Chemistry, were defeated. This incidentshows the danger of unwise greed. The right to use these preservatives was guaranteedto those manufacturers who felt like doing so by all the power and authority of theUnited States Department of Agriculture. They should have been satisfied with thatperversion of the law, but they were not. They determined to force benzoated goodsupon the citizens of the State of Indiana. Fortunately they did not succeed. Morefortunate still is the fact that one of the complainants against the State of Indianawas converted by the evidence adduced at the trial and abandoned the use of thesepreservatives. Still more fortunate is the fact that manufacturers in general, althoughthis 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 underthe aegis of the Department of Agriculture with these preservatives are distinctlyinferior in quality and strength.

   The activities of the Remsen Board were not devoidof doubts as to their wisdom. In a letter dated September 9, 1909, Dr. Remsen calledattention 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 theRemsen Board whose usefulness in so large a measure must depend on the respect andconfidence which the public have for the high character of its membership shouldbe subjected to severe criticism in order to assist in an effort by private corporationsto overthrow the pure food laws of a sovereign state. To which Secretary Wilson repliedthat it was never in his mind to help overthrow the pure-food laws of a sovereignstate, and that he would have been perfectly willing to have the Referee Board gowhere the people seemed to need information; but as to an attack upon the State ofIndiana, that was not to be thought of. The Chairman continued by asking him if hedid not know that the suit filed by Curtice Brothers and Williams Brothers was inauguratedbefore the Referee Board had made its report on benzoate of soda; to which he repliedthat he did not know anything about the nature of these proceedings. The Chairmanof the committee continued by asking him if he had been requested by Attorney-GeneralBingham to permit Dr. Wiley to go to Indianapolis and testify in person in the Indianacase on behalf of the State of Indiana; to which the Secretary responded that hedid not think Dr. Wiley had ever asked him whether he could go to Indianapolis ornot. 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 isso 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 removedevery reason to justify, even in the smallest degree, the determined purpose of theSecretary of Agriculture, with the collaboration of the Remson Board, to break downthe Board of Health of Indiana which had placed its ban on food products containingbenzoate of soda. Driven to the last extreme the Secretary sought to justify hisaction against the State of Indiana because the law of Indiana forbade the manufactureof beet sugar within the State! In answer to the question of the chairman of thecommittee 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 CurticeBrothers alleged, in their suit to abolish the ruling of the State Board of Healthas being unconstitutional, that there were other points in the Indiana law whichwere likewise unconstitutional, and among these was an expression in the law deliningsugar as "cane suagar." Of course every one knows that cane sugar is frequentlyused to designate sucrose. Indiana in her statement for defense against the suitof 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 Europehad prevented him from taking any active part in the investigations of benzoate ofsoda, was nevertheless very eager to appear against the State of Indiana in the benzoatetrial. Under date of March 1, 1910, he made the following report to the Secretaryof 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 ofMarch 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 recommendedthat he be given permission to use the data in the manner suggested. The Secretaryleft no stone unturned in his determined effort by all means, fair and foul, to securea declaration from the Federal Court that the Indiana law was unconstitutional. (Pages367, 368, Moss Report.)

   The testimony of Dr. A. E. Taylor in the Indianacase is found on pages 2137, to 2207 of the printed testimony. He repeated in histestimony 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 benzoicacid, employed a plan greatly superior to that followed by the other members of theReferee Board. He employed as his subjects trained scientific men. He took over bodilythe whole force of the California State Board of Health. He employed state chemistswho made all the examinations for fertilizers in the state. When asked on cross-examinationin regard to control of the diet of these trained men he stated that their diet wasrigidly weighed and apportioned to them. When attention was called to the fact thatthe other members of the Referee Board did not control either the quantity or thekind of diet, therefore the results which they obtained could not be comparable tohis own, he replied that he thought his own plan was better but that the uncontrolleddiet might lead to similar results. He was particularly opposed to the use of benzoateof 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 hastaught us that the bad milk ought to be allowed to spoil and that an absolutely harmlesspreservative, 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 factthat pasteurization of milk at 145° for thirty minutes would destroy both typhoidand tubercular germs. The spores of germs require a much higher temperature for theirdestruction. By reading his testimony, the historian of the future will gather valuableinformation respecting the attitude of Dr. Taylor in general toward preservativesin foods and pasteurization.

   Dr. Taylor also was particularly opposed to theuse 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 MOSSCOMMITTEE AND THE RECORD OF THE INDIANA CASE

   Page 878.

   THE CHAIRMAN, MR. MOSS, of Indiana: Please tell me in what senseyou 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 wasto 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 tobe?

   SECRETARY WILSON: I understood it was a question of whether--Ido 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 therein 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 somethingof that kind. But there was benzoate of soda on one side and opposition to it onthe other.

   THE CHAIRMAN: Would you mind telling us where you obtained thatinformation?

   SECRETARY WILSON: Oh, I could not do that; I do not remember.

   THE CHAIRMAN: I have the original complaint here, and your informationwas so badly apart from what the real issues were that I wanted to find out yoursource of information.

   Page 882.

   THE CHAIRMAN: You did request, both orally and in writing, themembers 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 saleof 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 consideredas 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 appearingto 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 lawexpressly permits the sale in Indiana of any food product guaranteed under the purefood law of your department, when you guarantee it, how can a defense against a suitto 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 tothe State of Indiana for the world, and besides, Mr. Chairman, I find in lookingover my behavior toward Indiana that I have a great lot of scientists there, andit might be wise for me to get them back out of there. I have men from nearly allour scientific bureaus there, helping the State of Indiana along these scientificlines, and cooperating with them.

TESTIMONY OF DR. IRA REMSEN

   Pages 31-33-Indiana Record.

   Q. Well, there was a meeting, wasn't there, of chemists, Doctor,recently, out at Denver, Colo., where a great number of scientific men congregated,wasn't there?

   A. There was no doubt about it.

   Q. And you had an election out there at which benzoate of sodawas the candidate, didn't you?

   A. I don't know. I had nothing to do with the election. I wasn'ta member of the association. I was present as an interested spectator, but not amember of the association, had no vote.

   Q. Now the fact is that of late there has been great interestmanifested 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 theexcitement.

   Q. And were you present when the vote was finally taken at Denveron the question?

   A. Which vote do you mean?

   Q. On the harmfulness of benzoate of soda, the adoption of theresolution--not vote, but resolution.

   A. I was present, yes, sir, the resolution approving the actionof 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 rememberexactly what it was; in the fifties for one and forties for the other; fifty-oddin favor and forty-odd against; I couldn't remember that, I am sure; I am near thetruth.

   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 inthis question?

   A. I do not remember that I ever heard them mentioned by theSecretary of Agriculture.

   Q. When did you first learn that the plaintiffs were interestedin 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 hearingwe gave, our Referee Board gave in New York before we began our investigation. Wesent word to those who were interested in the general problem, not only those whouse benzoate but those who do not use benzoate, informing them that we would liketo get such information as possible to aid us in our work. And they were representedby a number of large manufacturing interests who appeared before us to state theirproblems; mind you, they were not those who use benzoate alone but those who do notuse it. We felt that it was only fair to hear what they had to say, representativesof both sides--I regret that there are sides--there are sides, unquestionably, Irecognize it. And my recollection is that this is the first that I ever heard ofthese firms, except so far as I had become familiar with them through labels thateverybody 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 accusedme of discourtesy.

   Q. Did the manufacturers appear out at the Denver convention?

   A. These gentlemen were there--I do not remember, I do not knowthem sufficiently well to say.

   Q. Well, when you had this hearing of the Referee Board at whichyou 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, butwho 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 workon the physiological effect of benzoate of soda on the human system.

   A. That is a question which has perhaps not been very fullyinvestigated, and yet I recall in this connection an investigation which came tomy notice when I was a very young man. I went to Gdttingen in 1868. I carried a letterto a distinguished physiologist who was there, Professor Meissner. He had just completedan 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, muchlarger than the quantities that have been used in our experiments. Those large quantitiesleft no permanent effects.

   Q. Now, so far as you know all these works of the original researchupon the effect of benzoic acid or benzoate of soda upon the human system are referredto in that report, in the bibliography.

   A. All the important ones.

CROSS EXAMINATION OF DR. REMSEN

   Q. This experiment of Dr. Meissner, about which you have testifiedis that experiment which is reviewed in the bibliography?

   A. It is.

   Q. I read from exhibit 1, in which this experiment is referredto 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 understoodit, Doctor?

   A. Of course I cannot positively say that these details arecorrect, but I.believe them to be correct.

   (Page 45 and page 46.)

   In the cross examination of Dr. Remsen it wasbrought out that the reason young men were selected was because they would show thegreatest 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 dowith the case and to the question that in selecting young men he would have all thepower of resistance that could be found in the human system he said yes. Neverthelesshe made an answer to the following question:

   "And if there was a tendency of benzoate of soda or sodiumbenzoate in small quantities to affect the system, it would appear less in a testof 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 thevariations in temperature, what variations in pulse, what variations in the specificgravity 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 expertin those lines, I have never claimed to be. My medical training is so far remotethat 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 Departmentof 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 aboutit 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 ofthis 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 subjectand got out a report on it?

   A. He had the investigation made by others. He didn't do ithimself.

   Q. Well, was he as close in touch with his job as you was inyours?

   A. I don't know the facts, but I know the work was carried outby his assistants in the laboratory of the United States Department of Agriculture.

   Q. Well, now, Dr. Wiley reached the conclusion as a result ofhis investigation to which I have referred that benzoate of soda was harmful whenused 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 havebeen studying this question who agree with Dr. Wiley upon that question, do theynot?

   A. I don't know that scientific men all over the country havebeen 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 understandthe situation these gentlemen who agree with Dr. Wiley simply agree with him, accepthis opinion.

   Page 32.

   Q. Well, when you had this hearing of the Referee Board at whichyou 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 sodaor those who do not use it but who are interested in it from the manufacturing pointof view; that is what I meant.

   Page 35.

   Q. Well, do you approve of the result that Dr. Wiley got ininvestigating 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 ourBoard 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 itis 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 beenvery 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 uponanother?

   A. Hardly. My opinion is based upon my experience with a boardof men who are thoroughly familiar with that kind of work.

   Q. What peculiar knowledge now would a chemist have to havein order to conduct an investigation of this kind?

   A. He would have to be an expert in physiological work, physiologicalchemist is really what you would want, a pharmacologist is a form of physiologicalchemist, a man who studies the effects of substances upon the system, but in orderto judge the effects he must have physiological knowledge and must bring that intoplay 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 educationin order to be able to conduct properly this sort of investigation.

   A. Undoubtedly.

   Q. Well, if it is necessary that we shall have a pharmacologistand a physiological chemist and you are neither, isn't it a fact that your opinionis influenced by the conclusions reached by those who are pharmacologists and physiologicalchemists who are on the Board?

   I desire at this point to introduce a statementin regard to my personal attention to the work carried on in the Bureau of Chemistryin studying the effect of small quantities of benzoic acid and benzoate of soda onthe health of the young men who were undergoing these experiments. I may say thatthe 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 ofthese investigations, with this exception. All foods used were carefully analyzedby the Bureau of Chemistry, very few foods were analyzed by the Referee Board. Igave my personal attention for five years to all the details of this work. Duringthe winters I rose long before daylight, even before the street cars were runningand walked two miles to my laboratory, which I reached by seven o'clock. I supervisedthe preparation of the breakfast, I weighed, with assistance of others, every articleof food which was administered, I supervised the actual analyses of these foods inthe 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 preservativeswere added. I felt that my continued good health would be at stake if I did, butI ate the same kinds of foods that they ate otherwise. When nine o'clock came I wentto my office and performed the ordinary duties connected therewith until luncheontime. I then went into the kitchen and supervised the preparation of their lunchunder the same conditions. After luncheon was over I again went to my duties as Chiefof the Bureau of Chemistry. At five o'clock I again went back into the kitchen andsupervised the preparation of dinner. I remained in the kitchen and dining room anddined with the young men at dinner. By seven o'clock the dinner was over. This wasthe routine which I followed for five years winter and summer except at such timesas 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 tookno part in this work, that I was not a physiological chemist.

   In 1910 I was awarded the Elliot Cresson medalof the Franklin Institute for leading work in physiological and agricultural chemistry.This medal was given me for inaugurating the most extensive investigations ever undertakenin this country in improving the valuable properties of plants. I inaugurated andcarried into effect, in connection with A. A. Denton of Kansas, experiments in improvingthe quantity and quality of sorghum for sugar-making purposes carried, over a periodof many years in which the percentage of sucrose in sorghum was raised from nineto fourteen per cent. These experiments were published in numerous bulletins of theDepartment of Agriculture extending over a period of many years. In like manner Iinaugurated and carried into effect a work extending over several years of ascertainingthe 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 enabledthe manufacturers who were intending to go into the sugar-beet industry to locatetheir plants in those areas in which the best sugar beets were grown. In all somefive hundred thousand analyses of sugar beets grown under similar conditions withthe same seeds were made. Following this physiological chemical work I originatedand carried into effect a series of experiments extending from Maine to Florida ofthe factors which produce the largest amount of sugar in sweet corn. These resultswere also published as bulletins of the bureau of Chemistry of the Department ofAgriculture. It was for these far-reaching investigations of physiological chemicalproblems, and for similar work in studying the effects of preservatives and coloringmatters on health, that the directors of the Franklin Institute awarded me the ElliotCresson 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 physiologicalchemist.

   Pages 112 to 116-Indiana Record.

DR. HERTER'S TESTIMONY

   Q. As a matter of fact, you know, don't you, Doctor, that thevery opposite effect to which you testified has been found by other eminent scientistswith reference to some of these subjects that you have testified about even in theadministration 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 Departmentof 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 thissubject, did he not?

   A. I believe that he did.

   Q. You know, too, don't you, Doctor, that a number of eminentscientists who have read and studied the report that was published of the work ofthe so-called Referee Board have reached different conclusions from the board asto the effect of benzoateof soda in foods, even based on the facts included in thosepublished reports, don't you?

   A. I have been told that there has been criticism of the reportof the Referee Board, but I have felt that the criticism that has come to my noticehas been for the most part, or wholly, from such sources as lead me not to give greatconfidence, to place great confidence in those results or in those opinions I shouldsay--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 reportand draws a different conclusion from what the Board did from the facts that arepublished in the report, do you not?

   A. I think so. Dr. Wiley told me so himself the other day whenhe 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 answerthat 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 whatthe board did?

   A. I do.

   Q. I didn't get my question in--you know he reaches a differentconclusion from what the board did as to the effect of administering benzoate ofsoda in the foods, based on the facts published in the report of the board, do younot?

   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 theboard, do you not?

   A. I infer that.

   Q. Now there was some sort of an association of chemists heldat Denver recently, wasn't there, Doctor?

   A. I think that the association contained some chemists. Whetherthey 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 squabbleover the Mississippi, but I have forgotten--that is the National Pure Food and DairyAssociation--no, that isn't right--The Association of State and National Food andDairy Departments--I think that is what it is.

   Q. Now that is made up of people who are connected with thestudy 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 humanorganism.

   Q. Did you discuss the work of the Referee Board in that connectionany?

   A. I referred to it, but I particularly referred to the workdone 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 whatI did for mine.

   Q. And were there any other addresses delivered there on thissubject of the use of benzoate of soda in foods?

   A. Well, I suppose that the chairman's address might be so regardedand 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 bythat association with reference to this effect of benzoate of soda upon the humansystem as administered in the food, and also as to the result of all investigationsmade 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 thesame report that you have in mind, but I am not sure.

   Q. And that report that was made to the association was a reportmade 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 ofchemists entirely?

   A. I don't know, sir; I don't think that I had heard the nameof any one of the number.

   Q. And you know that it was reported there by that committeethat the investigation of that subject had not been carried to an extent sufficientto determine the question as to whether the use of benzoate of soda in food was orwas not injurious to the human system--do you not?

   A. I have only a very vague recollection of what was said inthe report.

   Q. You heard the report discussed, did you?

   A. I think that I did. My impression is that a recommendationwas made by that committee asking for further investigations. That is my recollectionof it.

   Q. You do know, don't you, Doctor, that there is now, and hasbeen, 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 benzoateof 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 existedsince 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 willexplain itself.

   A. Well, I wouldn't say since; it existed before.

   Q. Well, you know that scientists have criticised it since itwas published, do you not, and that they have even told you that they did not agreewith you on the question?

   A. I have never heard any adverse opinion of the report of theReferee 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 isa 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 ofHerter's squad.) It is a fact, is it not, Doctor, that Dr. Lucas disagreed with youas to the result of the injurious effect of the use of benzoate of soda in food insmall 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 Ijudge from the paper that I heard read at Denver that his views are in some respectsat least different from mine. I do, not know to what extent.

   Page 165.

   Q. Did you know that the Department of Agriculture of the UnitedStates Government stood ready to furnish this Referee Board with everything at itscommand that was necessary for making this experiment that is under consideration?

   A. I heard that stated by the President of the United Statesand by the Secretary of Agriculture more than once.

   Q. Did you know that the United States Government had a chemicallaboratory in the City of New York?

   A. I did not.

   Q. Did you not learn from the Department that it had numerousanalytical chemists in its employ at the time and before this experiment was begun,in the City of New York?

   A. I was not aware of that fact.

   Q. Well, you did know that it had a Department of Chemistry?

   A. I did.

   Q. And-you knew, too, that that department was engaged in theadministration of pure food laws of the United States, didn't you?

   A. So I had heard.

   Q. And you knew that it had a corps of workers, of chemists,analytical and otherwise, constantly engaged in the work of analyzing foods and theiranalytical testing, did you not?

   A. I assumed that to be the case.

   Q. How did it come that you did not secure your analytical chemistsand men for doing the routine work from the force of the Department of Agriculture?

   A. Because it was intimated to me that it was the desire ofthe Department of Agriculture and by the President of the United States that in theinvestigation carried on by me I should be free to use my judgment as to all pointsconnected with the matter of personnel in my laboratory.

   Q. Why was it that you preferred to select such men as Dr. Lucasand Dr. Ringer and Mr. O'Brien and Dr. Harvey, some of whom at least are neithergraduates or chemists and who, according to your own statement, would need instruction,rather than those experienced men in the Department of Agriculture who are regularlyengaged in that class of work?

   A. It never occurred to me that they would be available, partlybecause they had their own occupations for the entire year and partly for the reasonthat it nevef occurred to me that men such as I wanted would be willing to come fromthe Department of Agriculture. We canvassed the situation with regard to the universitiesparticularly and if I had known there was a branch department of the Department ofAgriculture in New York I certainly should have applied to them.

   Pages 176-177.

   Q. Well, you were impressed at that time, were you not, withthe fact that this expenditure of time and money was not being made as a matter ofidle curiosity, but for the purpose of opening the door, if possible, to the useof benzoate of soda for such purpose?

   A. I did not hear the case stated so fully nor so eloquentlyas that, but I got the impression that the manufacturers felt that if they had togive up benzoate of soda--or at least that some of them felt that if they had togive up benzoate of soda--they would either have to be shown some other way of carryingon their preservation of food or they would be put to financial loss.

   Page 178.

   Q. Who was it that said that this benzoate of soda questionwas a pressing question?

   A. I do not know that anybody said that it was a pressing question;I may have said it myself.

   Q. How did you get the impression that that was a pressing question?

   A. Well, I said that there were two or three questions, thesulphite question, the benzoate question, the saccharine question, that it was importantto act on. The President wanted the saccharine question investigated.

   Q. Who was it that gave you to understand that these two subjectswere the most important?

   A. I am unable to answer that question.

   Q. Did you not get the idea that these questions were pressingbecause they involved large interests?

   A. Yes, I did.

   Q. Yes, I know; but getting this settled was desired owing tothe fact that large interests were involved?

   A. That was the general impression of the board.

   Q. You knew that the interests involved were the ones that wereclamoring for some sort of a chemical preservative, did you not?

   A. I knew from the meeting of the manufacturers to which I havereferred that many of them desired either to be permitted to continue to use benzoateof soda or requested a substitute for it, and I understood, principally from Dr.Taylor, that the question was a very live one in the west.

A CHANGE OF MIND

   While writing these memoirs I was told that oneof the principals in the Indiana case, namely Walter H. Williams of Detroit, wasconvinced by the evidence brought before the Federal Court that he was wrong in believingthat benzoate of soda sliould be used in food products. Probably the adverse decisionsof Judge Anderson and the Circuit Court of Appeals in confirming it strengthenedMr. Williams' opinion in regard to the matter. In order to be certain about thismatter I addressed a letter to Walter H. Williams on May 7, 1927, from which I quote:

   In some way I have received the impression that the Williams Brothers withdrew from further activity in the case when it was carried to the Supreme Court. They had become convinced that the use of benzoate of soda was either unnecessary or injurious and had taken the position that they could put up their catsup just as well or better without it than they could with it. Before I submit this statement in my autobiography to the printer I should be glad to hear from you in regard to this matter.

   To this I received a reply under date of May 31, 1927. I quotethe following, with Mr. Williams' permission:

   Your remembrance of the Indiana benzoate case is substantially correct. The Williams Brothers of Detroit did join with Curtice Brothers of Rochester, New York, in seeking a Federal Court order in an endeavor to restrain the Health Department of Indiana from enforcing its ruling in regard to the use of benzoate of. soda as a preservative in food products.

   The Williams Brothers Company later came to believe that benzoate, or any other preservative was entirely unnecessary in such food products as ketchup, sweet pickles, preserves, etc., and then withdrew as a party to the suit.

   Not only did Williams Brothers find that a preservative such as benzoate was unnecessary, but were convinced that permission to use it allowed food manufacturers to be very careless in their methods of manufacture.

   The writer well remembers the hearing before committees of both houses of Congress and the strong opposition food manufacturers presented against the passage of the national food and drugs act. At that time we all believed we were absolutely and honestly right in our contention, but most of us have since found that we were wrong, and that working under proper factory methods and conditions we can comply with all regulations called for by the national food and drugs act and turn out much better products than under the slip-shod methods generally used before the passage of the act.

   In the early days of enforcement many of us thought, Dr. Wiley, that you were too radical in your ideas of pure food and felt that you were doing harm to our industry. When I look back over the changes that have come to the food industry during the past twenty-five years and see the great changes for the better that have come to our methods and our products, I wonder why we were all so blindly asleep as we were and why, much sooner than we did, we did not welcome and follow your teaching.

   I am glad, indeed, Dr. Wiley, that this correspondence between us has started so that I am able to tell you what I have many times said to my friends and competitors in the industry, that Dr. Wiley was many years ahead of us in his thoughts and we had been terribly slow in awakening to the possibilities of pure food manufacture.

   We should bear in mind that through the illegalcreation of the Board of Food and Drug Inspection and of the Remsen Board of ConsultingScientific Experts, and by illegally transferring to the Solicitor the duties ofthe Bureau of Chemistry in enforcing the law, probably as much as $500,000 of publicmoney appropriated for enforcing the food law was spent in protecting the businessof adulterators and misbranders and in trying to force upon the people of Indianathese adulterated and misbranded products. The conversion of a man like Mr. Williamsis a most pertinent fact. It is an additional evidence of the enormity of the crimecommited. against the Food and Drugs Act.

   This statement of Mr. Williams illustrates thewisdom of carrying into effect the food law in the way the food law itself provides.It is a much more excellent way of showing adulterators and misbranders the desirabilityof changing their ways than any amount of coaxing, persuading and other methods ofprocedure intended to wean the offenders of the law from their habits of infractingit. Moreover, it is the method of procedure which the law itself has laid down, andwhich the Supreme Court has affirmed with the added injunction that all unnecessarydelay should be swept aside.

   It is interesting to see that in the correspondenceI lately had with Mr. Walter Williams he informed me that Mr. Grosvenor, who washis attorney, was also converted during the Indiana trial and subsequently movedto Indiana to establish a very extensive business in the production of non-benzoatedcatsup and other food products.

   The record of the Indiana benzoate case willprove a mine of information to the subsequent historian who has opportunity and desireto review the whole case. Its 5,000 pages of printed matter disclose the magnitudeof the conspiracy formed in the Department of Agriculture to destroy the provisionsof the pure-food law and to seek to declare unconstitutional the Indiana pure-foodlaw. This record will be found, I feel certain, in the State library of Indiana,in the Library of the Federal Court of Indiana, and in the Library of the SupremeCourt of the United States. The copy which I have belongs to a private law firm inthe city of Indianapolis. Owing to the courtesy of this firm I have been able tokeep this copy of the record many years, and during that time as leisure was affordedme, I have studied its pages and prepared from time to time the abstracts thereofwhich are here presented. I wish I could give more space to this remarkable document.

   I cannot leave these topics without summarizingbriefly the testimony which the State of Indiana, defendant in this case, offeredbefore the Moss Committee (pages 531 to 549, inclusive). The first witness calledwas Dr. Harry E. Barnard, Food and Drugs Commissioner of the State of Indiana, namedas one of the defendants in this case. Dr. Barnard testified to the fact that Indianahad a pure-food law and he was the commissioner thereof. The particular section ofthe law which was under fire was Section 2 of Division 7, which reads as follows:

   If it (a food) contains any added antiseptic or preservative substance except common table salt, saltpeter, cane sugar, vinegar, spices, or, in smoked food, the natural products of the smoking process, or other harmless preservatives whose use is authorized by the State Board of Health, it shall be deemed adulterated.

   Dr. Barnard testified further that the complainantsin filing their suit asked of Judge Anderson a restraining order preventing the StateBoard of Health from enforcing this law until the hearing for an injunction was completed.He explained why the suit was brought in the Federal Court, that there was no sentimentin the State favoring the repeal of the law, that it was supported enthusiasticallyby both political parties and that the press of the state was unanimously in favorof the enforcement of the law according to the interpretation put upon it by theState Board of Health. He showed that if the injunction were made permanent it wouldresult in the repeal of the entire law and not simply one section of it.

   He also testified that all the canners of theState putting up ketchup and other products were heartily in sympathy with the lawas interpreted by the State Board of Health.


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

 

   Mr. Barnard also explained that he was presentat practically all the proceedings before the Federal Court and generally attendedthe Attorney-General. of the State, Mr. Bingham, in the taking of depositions withoutthe state. He also testified that in taking these depositions they frequently weregiven by employees of the Department of Agriculture in areas extending from Maineto California. This part of the testimony of Dr. Barnard is quoted verbatim:

   Mr. Moss: In the taking of these depositions, did Curtice Brothersand Williams Brothers take any testimony from any employees in the national Departmentof Agriculture?

   A. They did.

   Q. State to the best of your recollection how many employeesof the Department of Agriculture gave testimony in this case for the firms of CurticeBrothers and Williams Brothers.

   A. With the exception of two or three young men, subjects andclerks, any person who did any work in connection with the benzoate of soda investigation,employed by the Department of Agriculture, was examined. This included all membersof the Referee Board, chemists, physicians, medical experts, clerks, stenographers,janitors--everyone who had any thing to do with the case.

   Q. About how many in total.

   A. I cannot say exactly, but more than 75.

   Q. Did the State of Indiana secure testimony from any employeesof the national Department of Agriculture?

   A. We wished to secure the testimony of Dr. Wiley, Chief ofthe Bureau of. Chemistry, and those of his assistants who helped him in his benzoateof soda investigation.

   Q. Did any of the employees appear voluntarily to give theirtestimony on the request of the State of Indiana?

   A, No, we found it impossible to get their testimony.

   Q. Have you any reason to believe that these employees werepersonally averse to giving such testimony.

   A. No.

   Q. Did any of these employees appear finally and testify, orgive their depositions.

   A. Yes; after we went to the Supreme Court of the District ofColumbia to compel them to testify.

   Q. In actual tests, then, did you find the Department of Agriculturecooperating with the State of Indiana in the enforcement of the pure-food law oroperating in opposition to the enforcement of the pure-food law?

   A. We found the Department of Agriculture opposing the Stateof Indiana in every move which we made to defend the pure-food law of our State.

   This astounding attitude of the Department ofAgriculture, with the exception of the Bureau of Chemistry of that Department, isthe most remarkable illustration of how funds appropriated for the enforcement ofthe Federal pure-food law were squandered in helping adulterators of foods in theirattempt to break down a popular state law with all the eagerness and enthusiasm,and moral and material support which a great department of the Government could command.Evidence has already been given that the members of the Referee Board, during theirefforts to break down the Indiana law, were paid their salaries and expenses outof the money appropriated by Congress to carry out the provisions of the nationalpure-food law. While no evidence was asked for in regard to the persons employedby the Referee Board in their investigation, and who appeared as witnesses againstthe State 6f Indiana, as to the payment of their salaries and expenses while engagedin this activity, it is reasonable to suppose that they were treated in exactly thesame manner as their principals. This was a great boon to the complainants as itsaved them perhaps many thousand dollars which they would have had to pay for thetestimony of over 75 witnesses whom they called for the support of their complaint.

   Attorney-General Bingham was also a witness beforethe Moss Committee (pages 537 to 549, inclusive).

   Mr. Bingham was asked by Mr. Moss to state conciselyto the Committee just what was involved from a legal standpoint in the Indiana Case.Mr. Bingham replied that the constitutionality of the pure-food law of Indiana wasin question. No federal law was involved. That if Judge Anderson sustained the prayerof the complainants the Indiana pure-food law would be practically destroyed. Thatin so far as he was acquainted with the public sentiment of the State it was entirelyfavorable to the proper enforcement of the law. Mr. Bingham reported also that inthe case of the Referee Board he began taking depositions at Seal Harbor, Maine,and wound up in San Francisco, California. He testified that as representative ofthe State of Indiana he wished to take the testimony of employees of the Bureau ofChemistry, and he first applied to the Department of Agriculture. Mr. Bingham saidhe first approached Dr. Wiley who informed him that he would prefer that he firstapproach Secretary Wilson. He testified that his request that Dr. Wiley should appearin Indianapolis was not granted.

   He testified that he next appealed to the Presidentof the United States. As a result of this attempt of Mr. Bingham he felt certainthat he could not get any of the employees of the Bureau of Chemistry to go to Indianapolis.He was compelled, therefore, to remove the court to Washington.

   He tells how he first put Dr. W. D. Bigelow onthe stand, who after giving his name and his profession declined to answer a questionin regard to the benzoate matter unless he had permission to do so from the Secretaryof Agriculture. He carried the request to compel the testimony of members of theBureau of Chemistry to the Supreme Court of the District of Columbia before JusticeBarnard. A lawyer from the Solicitor's office of the Bureau of Chemistry appearedbefore the Judge to argue against the order requiring the evidence to be given. Thelawyer from the Department of Agriculture urged that as this was expert evidenceit could not be given without the consent of the expert. To which Judge Barnard replied:

   "It was about as much expert evidence as if they had seen a dog fight on the street and had been asked to testify about it."

   He entered an order that the witnesses shouldgo before the master and testify.

   I am quoting just now verbatim from page 545:

   MR. Moss: I will ask you if at any time during the taking ofthese depositions you received on behalf of the State of Indiana any encouragementor cooperation on the part of any official of the Department of Agriculture.

   MR. BINGHAM: Voluntarily, no. But I may say this for Dr. Wiley.When I said to him that I wanted to take his deposition and question him about whetherhe would testify as an expert or not-I wanted his opinion of the results--he saidthat he would testify and that he would answer any questions that were put to him;that he would not hesitate to testify to anything that he was able to testify about.

   Q. He explained to you that he was not in a position to actvoluntarily, did he not?

   A. He explained to me with reference to that particular thingthat he did not propose to have any padlock put on his mouth.

   I have given these copious extracts from theIndiana case because I consider it to be a most amazing attempt to pervert the nationalpure-food law and the purposes for which it was enacted to protect the interestsof food adulterators and misbranders.

END OF THE INDIANA CASE

   Judge Anderson of the Federal Court of Indianadecided this celebrated case in favor of Indiana. It was appealed to the FederalCircuit Court. The decision of the lower court was approved.

   Appeal to the Seventh Circuit of United States Court of Appeals in the Case of Curtice Brothers, vs. Harry E Barnard, et al, Willis Baldwin, E. 0. Grosvenor, and John Barton Payne, attorneys for Curtice Brothers, Thomas M. Honan, Attorney-General of Indiana, attorney for Harry E. Barnard. Judge Kohlsatt delivered the opinion of the Court.

   From the evidence and the master's report thereon,it is evident that the question of the harmfulness and harmlessness of benzoate ofsoda is as yet an open one in the scientific world. While the voluminous record ofthis case deals largely with that question, it is a question of fact. The findingof fact of the master may not in the absence of convincing evidence to the contrarybe set aside. To show that the report is erroneous and not justified by the evidencethe burden rests upon the appellant. That burden is not convincingly sustained bythe record. We, therefore, start with the proposition that the question is yet anopen one in the scientific world and, therefore, an open one for the purpose of thishearing. This being so, it was within the power of the Indiana Legislature to prohibitthe use of benzoate of soda in the preparation of foods.

   Manifestly, if the Legislature of Indiana inthe reasonable exercise of its police power and for the welfare of its citizens condemnsas an adulteration the use of benzoate of soda in the preparation of articles offood, then in the absence of a general acceptance of the proposition by the scientificworld that such is not the case there can as to that matter arise no question ofthe violation of the Constitution of the United States, or, as here charged, of theState of Indiana. When deemed necessary by the Legislature for the public healthproperty rights such as here involved must give way. It is therefore apparent thatthe position taken by the appellant with reference to the constitutionality of theact in question is without merit, as are also the other matters covered by the assignmentof errors. The decree of the District Court is affirmed.

   At the time of the decision of the Seventh CircuitCourt of Appeals Williams Brothers of Detroit became convinced that benzoate of sodawas an injurious substance and withdrew from the further prosecution of the case.It was carried by Curtice Brothers to the Supreme Court of the United States. In1915 negotiations were begun between the State of Indiana and the Curtice Brotherslooking to abrogation of hostilities. A stipulation was agreed upon in which CurticeBrothers obtained all.they had fought for in the district and circuit courts of theUnited States as follows:

 

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM--1915

The Curtice Brothers Co.)              Appellant,)      No. 243Harry E. Barnard, et al.)

STIPULATION TO DISMISS

   Whereas, the statute of the State of Indianaknown as Chapter 104 of the Acts of 1907 forbids the sale of adulterated or misbrandeddrugs and foods within the meaning of the act;

   And whereas, subsequent to the passage of saidact, and under date of November 10, 1908, the appellees herein notified the appellants,and the purchasers of their said products in the State of Indiana, that the use ofbenzoate of soda was illegal in said State, and that if they wished to find a marketin said State they must not use the same;

   And whereas, on the 22nd day of December, 1908,a bill in equity, being the bill in equity involved in this case, was filed in theDistrict Court of the United States for the District of Indiana, in which an injunctionwas prayed to restrain the defendants, their successors in office, their agents andservants, from enforcing their determination to prosecute these selling appellant'sgoods as aforesaid;

   And whereas, sundry proceedings were had resultingin the entry of a decree in the said District Court of the United States for theDistrict of Indiana on June 21, 1912, dismissing said bill in equity;

   And whereas from said decree an appeal was takento the circuit Court of Appeals for the Seventh Circuit, which Court, on October7, 1913, affirmed the decree of the said District Court of the United States forthe District of Indiana;

   And whereas, an appeal was taken on August 10,1914, to the Supreme Court of the United States from said decree of the Circuit Courtof Appeals for the Seventh Circuit, which appeal is now pending in said Supreme Court,entitled, "Curtice Brothers Co., Appellant, v. Harry E. Barnard, et al.,"and numbered 243 on the docket thereof for the October Term, 1915;

   And whereas, since the institution of said proceedingsin the District Court of the United States for the District of Indiana, the governmentof the United States, acting by its proper officers, hereinafter named, and underauthority of the Act of Congress, approved June 30, 1906, known as the "Foodand Drug Act" promulgated a rule authorizing food products containing benzoateof soda to pass into commerce between the States, which rule is in the followinglanguage:

   " It having been determined that Benzoate of Soda mixed with food is not deleterious or poisonous and is not injurious to health, no objection will be raised under the Food and Drugs Act to the use in food of benzoate of soda, provided that each container or package of such food is plainly labeled to show the presence and amount of benzoate of soda.

   (Signed) George B. Cortelyou,
          Secretary of the Treasury

          James Wilson,
          Secretary of Agriculture

          Oscar S. Straus,
          Secretary of Commerce& Labor

          (F.I.D. 104, issuedMarch 3, 1909.)

   And whereas, the paramount and controlling authorityof the Federal government over foods in original unbroken packages entering intointerstate commerce is now recognized and admitted, in accordance with which recognitionand admission the Board of Health of the State of Indiana, successors in office tothe said appellees, under date of April 9, 1915, did promulgate the following regulations:

   "Whereas, the decisions of the Supreme Courtof the United States in cases concerning the sale of food transported in interstatecommerce, and sold in original packages, reserve to officials charged with the enforcementof the Federal Food and Drug Act the authority to regulate the labelling and characterof such food, the chemist to the State Board of Health, who is the state food anddrug commissioner, is hereby instructed to follow, without exception, the regulationsfor the enforcement of the Food and Drug Act, promulgated by the Secretary of Agriculture,the Treasury, and Commerce and Labor, in the enforcement of the pure food and druglaw, Chapter 104, 1907, in the cases of food sold in interstate commerce in the originalunbroken packages;"

   "And whereas, there now, therefore remainsno question at issue before the Supreme Court of the United States for adjudicationbetween the parties to said proceedings, entitled "The Curtiee Brothers Co.,Appellant, v. Harry E. Barnard, et al;"

   NOW THEREFORE, in consideration of the foregoing,IT IS HEREBY STIPULATED by counsel for the parties thereto, that the appeal hereinshall be dismissed without prejudice, and without costs to either party as againstthe other.

             (Signed)Lawrence Maxwell,
                      Counselfor Appellants.

Evan B. Stotsenburg,
Attorney General of the
State of Indiana.

   This stipulation gave as a free gift to CurticeBrothers everything that they were asking for through both the District and FederalCircuit Court of Appeals which it had been denied by both Justice Anderson and JusticeKohlsatt. The whole stipulation appears to have been composed by Lawrence Maxwell,attorney for Curtice Brothers. It assumes that the contention of the Curtice Brothersthat benzoate of soda is a perfectly harmless substance is true. It has never beenpronounced so by a Federal Court. In so far as experts are concerned, there is alwaysa difference of opinion, but the far greater number of experts have held that benzoateof soda is harmful. Those who used it have been led by one cause and another to entirelyabandon its use. Even the persons who sought to restrict the Indiana State Boardof Health from obeying the rules and regulations under the State law finally cameto see the error of their ways and joined the ranks of the non-users of benzoate.The three Secretaries who signed Food Inspection Decision 104 had no warrant by lawto make such a ruling. There was only one authority named by the law to bring anindictment under the law. This indictment was not valid unless it was sustained bythe Federal court. The publication of this order on March 3, 1909 was a plain violationof law. The Indiana Board of Health on the 9th of April, 1915, issued an order forbiddinginterference with the sale of benzoated goods as long as they were in the originalpackages. The Attorney-General of the State of Indiana advised the commissioner offoods that there were certain conditions in which imported packages never ceasedto be in the original containers. This of course is a reductio ad absurdum.The very moment an Indiana dealer sells goods it is an act of intrastate commerceand brings that article directly under the control of the Indiana law.

CONTEMPT OF COURT

   In my testimony in the Indiana case, Mr. Baldwin,the attorney for the complainants in cross-examination endeavored to fix the responsibilityof the almost unanimous sentiment expressed in the newspapers and magazines on me.He asked me if I kept in touch with the progress of the case. I told him I did asI was greatly interested in it, that I knew it was under way and had been pendingfor a long while. He asked me this question:

   Q. Now then, you have stated your opinion here to the reportersof the different papers as to the outcome of that case?

   A. I think I have said that I hoped it would be decided in favorof the State of Indiana.

   Q. You said that to the reporters of the papers.

   A. I think so. I do not see any reason why I should not sayso.

   Q. You said that to them with the expectation that they woulduse those statements in the press.

   A. I think reporters usually do.

   Q. It is your experience that they do use those things.

   A. I have no objection to my opinion being expressed in thepublic press on a question of that kind; none whatever;

   I have a right to my opinion in this country and will exerciseit.

   Q. Didn't you know that it is improper for any person to expressan opinion as to what the Court was going to do in a pending case.

   A. In what sense? In what way?

   Q. I say in a way so that that opinion would get in the newspapers.

   A. As to the outcome of the case?

   Q. Yes.

   A. I did not know that it was improper to express the hope ina civil suit without a jury that the decision would be this way or that. If it werean illegal or an improper thing I am sorry I said it. I have done it dozens of timesas to cases I have seen on trial.

   Q. You made it in such shape that that opinion got.into thenewspapers?

   A. I suppose it did get into the newspapers. I had no objectionto its getting in.

   Q. In fact you wished it to get in?

   A. I did not think of that.

   Q. You must have volunteered it, because it was not forced fromyou.

   A. I did not run around and hunt them up. They came to me.

   Q. You voluntarily made those statements?

   A. Oh, yes. Nobody tried to force me to make any.

   Q. Do you keep a set of clippings from different papers at all?

   A. I am not a subscriber to any agency. I usually cut out articlesin which I am interested that come to my notice.

   Q. And don't you know that those statements of your opinionwere published generally throughout the country?

   A. I don't know if they were or not.

   Q. Don't you know they were published in other papers than thosein Washington?

   A. Oh, I suppose so; I don't know.

   Q. Do you know whether they were published in any Indianapolispapers or not?

   A. I do not.

   Q. Don't you know they were published in the Detroit Free Press?

   A. I do not.

   At this point Mr. Baldwin offered an articlepublished in the Washington Post, July 13, 1910. This article related thefacts that at the 66th Convention of the American Institute of Homeopathy, held atPasadena, California, a resolution was adopted denouncing food-laws that prohibitthe use of preservatives in food and the use of sulphur in curing fruit. He statedthat 12,000 homeopathic physicians had sent telegrams to President Taft and SecretaryWilson in favor of the farmer, the fruit-grower and the preserving factories andagainst the pernicious rulings of Dr. H. W. Wiley, Chief of the United States Bureauof Chemistry. The latter part of this clipping reads as follows:

   "Although the American Institute of Homeopathy at its convention at Pasadena, Cal., Monday, adopted a resolution rescinding its action taken last year condemning the use of benzoate of soda as a food preservative, Dr. Wiley, chief chemist of the Department of Agriculture, has stronger opinions than ever on that subject. Dr. Wiley's views did not prevail in the department, as the board appointed by Secretary Wilson under the pure food law disagreed with the chief chemist and sanctioned the use of benzoate of soda as a food preservative.

   " 'The developments during the last year,' said Dr. Wiley, 'have accentuated my opinion as to the harmful character of benzoate of soda as a food preservative. I expect to see that view sustained by the Federal courts, as the evidence that has been submitted recently in Indiana cases points that way.' "

   (Page 3460, Indiana Case.)

   I never lost faith, in the whole two or threeyears during which the Indiana case was considered, in the character of the outcome.I think Mr. Baldwin, the attorney for the complainants, was justified also in hisoptimism that the Referee Board would win. He realized that all the heavy artilleryof the most powerful government in the world had been brought into play and directedagainst the crackling reports of the short shot-guns fired by the Bureau of Chemistry.Later he must have realized the truth of the poem;

   Truth crushed to earth will rise again;
   The eternal years of God are hers;
   While error languishes in pain
   And dies amid his worshippers.


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CHAPTER VII

ATTITUDE OF ROOSEVELT

Absurdum est ut alios regat, qui seipsum regire nescit.

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

            Emerson,Essay on Swedenborg.

 

IN EARLY DAYS

   In the early days of the enforcement of the foodand drugs act great encouragement was given, due to the soundness of President Roosevelt'sviews as to what is whisky. On the other hand the temporary support of the harmfulnessof benzoate of soda, which lasted for only a few minutes, was then entirely abandoned.There was another incident which led me to believe that the President thought theBureau of Chemistry was entirely too radical in its efforts to carry out the provisionsof the law under the mandates which the law gave it. Of course the Bureau simplytried to do, to the best of its ability, the duties imposed upon it by the law. Allthe Bureau of Chemistry could do was to serve as a grand jury. Any indictments itmight bring could only be reported to the Department of Justice and could only beratified by the decision of the Court. Soon after the law went into effect I wascalled to the White House by the President and directed to bring with me Mr. Harrison,the chemist in charge of the New Orleans laboratory. At the appointed time Mr Harrisonhad not arrived, due to a failure of the Southern Railway to reach Washington ontime. I therefore went to the President's office alone. On my arrival I found thePresident in rather an ugly mood. The French Ambassador had complained to him thata shipment of vinegar from France to New Orleans had been refused admission becauseof a cluster of grape vines hanging full of grapes portrayed upon the label. Theanalysis had disclosed that the vinegar in question was not sour wine, as both nameand label indicated, but was an artificial vinegar made by passing dilute alcohol,presumably distilled from beet sugar molasses, over beech shavings. The shipmentwas ordered returned to France, with the instructions that the grapes should be removedfrom the label. This was done but the grapevine was left. The shipment a second timereached New Orleans, whereupon I instructed Mr. Harrison to send it back as the grapevinewas just as indicative that the vinegar was made of sour wine as were the grapesthemselves. On reaching the President's office and explaining why young Harrisonhad not accompanied me, he said very sternly:

   "The Food Law is an excellent measure, but it should be administered with some discretion. Full particulars in regard to the proper branding should have been furnished at once."

   Explaining as best I could to the President Iquoted the very words of the law itself, namely that an article was misbranded ifthe label bore any design or device or statement which was false or misleading inany particular, that as the executive officer I had no choice in the matter, butmy only purpose was to execute the law as it was written. The scowl on the President'sdied away and a rather benignant smile took its place. He grasped my hand cordiallyand said:

   " If the French Ambassador bothers you again in matters of this kind tell him to go to Hades."

   Inasmuch as I valued my friendship for the FrenchAmbassador and his for me very highly, I am certain that no one would have expectedme to use any such language in any subsequent protest made from the French embassyin regard to the exclusion of French products from this country under the law. Nevertheless,this incident increased the feeling in my own mind that the President was not entirelyin sympathy with a rigid enforcement of the food and drugs act.

   He evidently felt that the Congress had madea great mistake in placing the execution of the law in the Bureau of Chemistry. Mr.Loeb, private secretary to President Roosevelt, was strongly impressed that the Presidentconsidered the Chief of the Bureau entirely too radical in his views concerning theharmfulness of preservatives. He thought the Chief of the Bureau was lacking in diplomaticdiscretion. The President was undoubtedly still of the opinion that an underlingwho had the temerity to appear before a Congressional committee and denounce a presidentialpolicy on reciprocity had few, if any, redeeming traits.

ROOSEVELT FAVORED LEGISLATION

   During the progress of the campaign for purefood legislation, and especially during the last one or two years when apparentlypublic sentiment was sufficiently aroused and unanimous to warrant the expectationof a speedy successful issue, I felt that President Roosevelt was heartily in favorof this legislation. The appearance in 1906 of Upton Sinclair Is novel entitled "TheJungle," brought public opinion to the pitch of indignant excitement. PresidentRoosevelt was eagerly in quest of a law supervising the packing of our animal foodproducts. The time of the session was so nearly at an end, that it seemed hopelessto bring in a meat inspection bill as an expansion of the food and drugs bill. Itwas deemed best, therefore, to try to engraft the meat inspection bill as a rideron the agricultural appropriation measure. I am not aware whether at that periodit was a violation of the rules to introduce legislation on an appropriation bill;at the present time it is. At any rate, a rider satisfactory to the President wasoffered to the appropriation bill in the House of Representatives. It was not adopted,however, except after serious mutilation of the measure. The chairman of the HouseCommittee on Agriculture, Mr. Wadsworth, thought the offered measure was too drasticand uncalled for by those engaged in our meat industry. President Roosevelt was greatlydisturbed at the changes made in the measure, but was powerless to prevent such modificationas the House Committee on Agriculture thought desirable. It is not quite certainwhether the Agricultural Appropriation Bill carrying these meat inspection provisionsbecame a law prior to, or subsequent to the food and drugs act. Only a search ofofficial documents could determine this fact. Nevertheless, it is a matter of someimportance, for if the appropriation of the Department of Agriculture was approvedsubsequent to the approval of the food and drugs act, any disagreements between thetwo acts would be construed by the courts in favor of the later bill. In point offact, no effort whatever was made by the Bureau of Chemistry to enforce any provisionsof the meat inspection law. The reason for mentioning these matters here is becausePresident Roosevelt's intense interest in the meat inspection bill seemed to obscure,at least for the time being, any interest he had in the food and drugs act.

   I had the good fortune to know somewhat intimatelytwo or three of the newspaper men who had the ear of the President and I learnedfrom them that the President's interest in the food and drugs act was genuine andunreserved. Particularly I knew well Harry Needham, intimate associate of the President.Mr. Needham subsequently met an untimely death in an accident in an aeroplane inParis. As was recited in the chapter on "What is Whisky," I learned fromMr. William Loeb, the President's private secretary, his great interest in that matter.This was subsequent to the passage of the food and drugs act.

   I had close relations also to two other men whohad more or less free access to President Roosevelt. These were Mr. Mark Sullivanand Mr. Robert M. Allen. I have secured interesting data from each of these gentlemenin regard to President Roosevelt's interest in the passage of the pure food bill.Mr. Allen has furnished me with the following data, which I have permission to quote.he says:

   "I do not believe that President Roosevelt had shown any interest in the pure food law prior to 1905. 1 feel without any doubt that Roosevelt sincerely and earnestly supported the passage of the act after his message to Congress in December, 1905. When he took this stand it was characteristic of him to back it. Hapgood, Sullivan, Needham, and Gilson Gardner were close to the President, as was also Dr. Abbott, editor of The Outlook.

   "The White House had a strong influence on their activities for the bill. Needham told the Dalzell story at the time it happened. If it is true, and I believe it was true, Roosevelt's statement to Cannon that he would call Congress into extra session if they did not pass the food bill, was one of the decisive factors in bringing the bill to a vote in the House. There are so many people, like the writers that I have mentioned, so earnest in their feeling that Roosevelt strongly supported the passage of the Act from the fall of 1905, that I do not want you to make any mistake in this matter in your memoirs. You have a big and important message to get over. The country needs it."

   I have the following statement from Mr. MarkSullivan, also :

   "I cannot say that I have any positive recollection of ever having discussed the pure food bill specifically with President Roosevelt. I did discuss it very often with Harry Needham and with R. M. Allen. I also did discuss it occasionally with yourself, as you will remember. Based on my recollections of conversations I had with Needham and Allen, my strong belief is that Roosevelt not only believed in the Pure Food Bill but was energetic in getting it passed. It is true that the pure food bill.and the railroad rate bill were before Congress during the same session. I think it possible, or even likely, that Roosevelt's major interest was in the railroad rate bill, because at the time that was the great controversy; but I have recently been over the records sufficiently to show that Roosevelt gave powerful aid to the pure food bill."

   Mr, Sullivan then discusses another overlappingand supplemental measure, the meat inspection bill.

   To continue the quotation:

   "That Roosevelt threw immense energy into the meat inspection rider there can be no doubt whatever. In effect the one went with the other. Roosevelt's pressure for the meat inspection bill is proved by scores of documents and publications in old newspaper files. The two bills, the pure food bill and the meat inspection rider, went through the lower house substantially on identical dates. Everybody thought of the two as one."

   To this I wish to add my own recollection andimpression at the time. I was fully convinced that although Mr. Roosevelt came intoaction late in the fray he was enthusiastic and earnest in his support of the purefood and drugs act. It was not until nearly five years later that I had any intimationwhatever that I was wrong in this opinion. I did feel that I was under a serioushandicap at the White House by reason of my opposition to Cuban reciprocity.

 

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

 

   Two important statements were made to me in 1912,after my resignation from the Bureau of Chemistry. Mr. James R. Mann, leader of thefinal fight in the House for the food bill, thought the President not only was indifferentabout the matter, but considered the measure the work of impractical cranks. Mr.Roosevelt made a similar statement in a letter published in a Kansas paper at thattime. Senator Heyburn, who led the final fight in the Senat% showed me a letter writtento him by Mr. Roosevelt while the bill was under discussion, begging him to ceasehis efforts for such an impractical measure, and aid him in passing a bill to restoreto the Naval Academy three students who had been dismissed for drunkenness. Evenif it be granted that the President favored the food bill, it is perfectly clearthat he took the most active part in pre venting the Bureau of Chemistry from enforcingit.

ORIGIN OF THE WHITE HOUSE PREJUDICE

   The prejudice which the President had againstthe Chief of the Bureau of Chemistry was most pronounced. It arose early in his administrationwhen he was urging Congress to pass the law remitting part of the duties on importedsugar coming into this country from Cuba. I have no desire to criticize the Presidentfor his attitude in this matter. At that time the planter and manufacturer of sugarin Cuba scarcely got a cent a pound on his product. All the nations of Europe producingbeet sugar were paying large bounties on beet sugar when it was exported. The resultwas that practically all the sugar consumed by Great Britain, which was one of thegreat sugar consuming countries of the world was cheapened by bounties paid by France,Germany, Belgium, Russia and Austria on exported beet sugar. Sugar was so cheap inLondon that the makers of cane sugar in the West Indies had lost the greater partof their trade. At the time (1902) the United States was considering the subjectof a rebate of import duties on sugar to Cuban planters a congress called by beet-sugarproducing countries in Europe was sitting in Brussels considering the question ofabolishing export duties on beet sugar. Sereno E. Payne of New York was chairmanof the House Committee on Ways and Means before which the question of rebate on Cubansugar was under consideration. I was very much embarrassed on receiving a summonsto appear before that committee. I had no sympathy with the proposed legislation.I had devoted many years of study to the domestic sugar problem, in investigatingthe possibilities of extending our domestic production from sorghum, sugar beetsand sugar cane. I was naturally a high protectionist on sugars imported from abroad.I went to the Secretary of Agriculture and explained to him that I was opposed tothis legislation but that I did not want to appear in opposition to the President'splan. I asked him to communicate with Chairman Payne and have him withdraw the summons.The Secretary said:

   I am just as much opposed to this legislation as you are but being a member of the President's cabinet I can not say anything; I think the committee ought to know the truth about this matter. (Quoted from memory.)

   I replied that I also thought they ought to knowthe truth, but that I didn't see any difference between his telling them the truthand 1, who was only one of his assistants. The result was, however, that I had toappear before the committee. I was two days in giving them the data which to my mindclearly disclosed that the trouble in Cuba was not due to our import tax, but tothe giving of bounties in Europe on exported beet sugar. I quote from the hearingsof the Ways and Means Committee.

   "It follows as a logical conclusion, therefore, that the people who come to this committee for relief from the low price of sugar should strike at the true cause, not the false one, of the evil of which they complain. * * * Their cause should be pleaded in the Parliaments of Europe, not in that of America; their plaints should go before the Reichstadt, Bundesrath, and the Corps Legslatif, and not before the American Congress. The place to plead their cause is before the Congress of Brussels, not before the Ways and Means Committee of the Congress of the United States. "

RECIPROCITY WITH CUBA
THE COLLOQUY WHICH UNDID ME

   (Hearings Before Committee on Ways and Means, Fifty-SeventhCongress, First Session, Wed., January 29, 1902, Page 572)

   MR. RICHARDSON: You have read the report of the Secretary ofWar?

   DR. WILEY: Yes, Sir.

   MR. RICHARDSON: And the recommendation of the President?

   DR. WILEY: Yes, Sir.

   MR. RICHARDSON: And General Wood?

   DR. WILEY: I have not read that, but I have heard of it. I haveread the other two, however.

   MR. RICHARDSON: You do not agree with them in the recommendationsin respect to the treatment of Cuba on this question?

   DR. WILEY: I do not.

   MR. RICHARDSON: I ask you this, doctor, for this reason: Doyou contemplate remaining in the Agricultural Department? Is that your ideal (Laughter.)

   You need not answer if you do not wish. I ask simply becauseI have heard that you did not.

   THE CHAIRMAN: You need not answer that question, doctor.

   MR. RICHARDSON: Not unless he wishes to.

   MR. HOPKINS: I do not think that is proper.

   MR. RICHARDSON: I do not want him to answer it unless he iswilling to do so.

   MR. ROBERTSON: That has not anything to do with the case.

   MR. RICHARDSON: The object of my question is just this, Mr.Chairman, as I am frank to state, and he need not answer it if he does not wish todo so: I have understood that the doctor contemplated leaving the Agricultural Departmentand going into the sugar-beet industry. Whether that is true or not I do not know.

   DR. WILEY: It is the very first I have heard of it. (Laughter.)Mr. Chairman, it is the first intimation of the kind I have ever had. I thought thegentleman implied that I would be removed because I did not agree with the Secretaryor the President. (Laughter.)

   As I left the committee room, a famous artist,Mr, Augustus C. Heaton, who had been in attendance, handed me the following rhyme:

"A chemist both learned and witty
Came before a sugar committee,
And O such statistics and learned linguistics
He poured upon Recipro-city."

   As it turned out it was no laughing matter.

   The result of my testimony was what I had anticipated.President Roosevelt was furiously angry. He sent at once for Secretary Wilson andordered him to dismiss immediately that man Wiley. The Secretary pleaded for my life,explaining that I did not go up there willingly, but had earnestly tried to havemy subpoena recalled. The President relented and said to let it go this time, butto tell Wiley never to do Such a thing again. The result was that I never was a favoriteat the White House as long as Roosevelt was president. I was not surprised, therefore,to find that he took the lead in so limiting the activities of the Bureau of Chemistryas to deprive the Chief of that Bureau from performing the functions placed uponhim under the law.



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CHAPTER VIII

THE UNITED STATES PHARMACOPOEIA

 

   The United States Pharmacopoeia is a book preparedby a national organization chosen by the medical and pharmaceutical colleges andsocieties of the country. This organization meets once in each ten years. The principalobject of these decennial conventions is to appoint a committee for revising theUnited States Pharmacopoeia. At the Convention which assembled in Washington in 1910,much to my surprise, I was elected president of the Convention for the decennialperiod ending in 1920. Ex officio I became a member of the committee on revision.The food-law specifically recognizes the United States Pharmacopoeia, both as tothe standard of quality of the remedies described therein and the methods of analysisby which the purity of remedies is established. Its activities, therefore, are specificallyprescribed by the Congress of the United States as one of the methods of administeringthe Food and Drugs Act. Essential oils are frequently standardized and prescribedin the Pharmacopoeia. I was allowed to select the particular part of the revisionwork over which I was chosen to preside. I had for several years, on account of essentialoils being agricultural products, collected and studied large numbers of these bodies.This work was assigned to the committee studying essential oils. I was very muchsurprised, therefore, to receive from the Secretary of Agriculture a written statementfor the amount of time consumed in these investigations and the probable expenseto date of the work done. Any one who is interested in the further details of thisremarkable request will find them recorded on page 808 and following of the proceedingsof the Moss Committee.

   The methods of analysis and the standards ofpurity of drugs prescribed by the Pharmacopoeia are specifieally adopted by the Foodand Drugs Act. The regulations enacted for the enforcement of the Food and DrugsAct are as follows:

   Unless otherwise directed by the Secretary of Agrieulture, the methods of analysis employed shall be those employed by the Amociation of Official Agricultural Chemists and the United States Pharmacopoeia.

   I made the following statement to the committee:

   I may say, Mr. Chairman, that never in the history of the Pharmacopoeia has such pains been taken to make it as perfect as possible. In view of the fact that Congress has made it the official standard of drugs and medicines, the present committee is taking special pains to get all the information possible to make the new edition as useful as possible, for the purpose of securing purity of drugs in this country.

   During my absence from the city I was informedby the Secretary of Agriculture on June 15 that Dr. Dunlap had told him he had informationthat work was going on in the Bureau of Chemistry in the revision of the Pharmacopoeia.

   When Dr. Dunlap appeared as a witness beforethe committee he was asked: "What are your duties as associate chemist?"

   He replied: "I have none."

   Evidently he was mistaken. It was he who by hisdetective abilities discovered that the Chief of the Bureau of Chemistry had deceivedthe Secretary of Agriculture and induced him to appoint Dr. Rusby illegally. Continuingthe exercise of these Sherlock Holmes activities he discovered the Bureau of Chemistrywas doing illegal work in examining the agricultural products known as essentialoils. These were noble and important functions that somebody had to perform. It wasa great stroke of good luck that put Dr. Dunlap into the Department for this worthypurpose. President Roosevelt deserves the gratitude of the future for discoveringand having appointed a scientist of such ethical activities and achievements. Asa result of Dr. Dunlap's activities the Solicitor had told the Secretary that theseactivities of the Chief of the Bureau were clear violations of law and the Secretaryinstructed me to do no more work of any kind in connection with revision of the Pharmacopoeia.At this same time the members of the Referee Board were paid salaries exactly asDr. Rusby was and had spent already several hundred thousand dollars in their attemptsto prevent the food law from being enforced. I found that the total expense whichhad been incurred by the Bureau of Chemistry up to the time the order was issuedto "cease and desist" from these activities as violations of law was exactly$55. Of all the tremendous inconsistencies in regard to illegal expenditures in theBureau of Chemistry in connection with the Remsen Board, there was nothing so clearlyand distinctly disclosed as the complete propriety of the activities of the Bureauof Chemistry in securing a proper revision of the Pharmacopoeia. This order forbiddingwork in the Bureau of Chemistry along that line was still in force in 1912 when Iretired from the Bureau. I do not think it was removed during the remainder of mydecennial term.

   This pusillanimous persecution of itself amountsto nothing. It illustrates the petty meanness of the environment which the Chiefof the Bureau was forced to endure for so many years. The report of the Moss Committeedisclosed the whole fabric of the net in which the enemies of the food law had plannedto enmesh those charged by law to enforce it. In regard to this matter the followingquotation from the Moss Committee's record' is illuminating:

 

(MOSS COMMITTEE)

   Page 887-888.

   THE CHAIRMAN: Did I understand you correctly in your testimony,when I was asking questions, to say you can extend the functions of the Bureau ofChemistry, provided it is not prohibited by law?

   SECRETARY WILSON: I can use administrative discretion that isnot prohibited by law. * * * I can illustrate that by what happened at Denver. Dr.Long is a member of the Referee Board from Chicago. There had been going throughthe papers and being stated by the chemists, and so forth, that the best use to whichwe could put benzoate of soda, and the use to which it generally was put, was topreserve decaying vegetables and fruits. Dr. Long had made some extensive investigationsand reported there that benzoate of soda would not preserve either vegetables orfruits.

   THE CHAIRMAN: Did I understand you to say, in answer to Mr.Sloan, that there was no authority in law for this pharmacopoeia work--that it wasabsolutely forbidden by law to do this work?

   SECRETARY WILSON: No authority.

   THE CHAIRMAN: Coming back to your idea that you can extend thefunctions of the Bureau of Chemistry, providing it is not forbidden by law, wouldyou not have authority, under your construction, to permit Dr. Wiley to do this workif you had cared to do so?

   SECRETARY WILSON: No; administrative discretion can only beused in furtherance of the object of the law.

   Page 894-895.

   MR. HIGGINS: Have you pursued, Mr. Secretary, any differentpolicy toward the Chief of the Bureau of Chemistry than with reference to any otherchief in your department?

   SECRETARY WILSON: Not a particle. You could not understand,if you happened to look over the transom of the door and see Dr. Wiley and me discussingone of his new farms

   MR. HIGGINS (interposing): He is also an agriculturist?

   SECRETARY WILSON: He has farms, but he and I discuss them. Igive him advice. I am no chemist; but, then, he is no farmer (laughter), and so weswap information, you know. There is one delightful thing about the Doctor: he hashumor, and unless I once in awhile get a laugh I would run back to Iowa and staythere. The Doctor has pleasant humor, and he is a pleasant companion. If you sawus in one of these interviews you would not believe there ever was any trouble aboutbenzoate of soda.

   MR. HIGGINS: You discuss pleasant subjects at those interviews?

   SECRETARY WILSON: Always.

   MR. SLOAN: You are both bonnie Scots, are you not?

   SECRETARY WILSON: I am direct, but I imagine he is tainted withthe blood.

   The Bureau of Chemistry was not treated likeother Bureaus. Secretary Wilson was well aware of that fact. In no other Bureau didhe appoint an Associate Chief, as he did in the Bureau of Chemistry, without everconsulting the Chief of that Bureau. In no other bureau were funds specifically appropriatedfor definite purposes used without the consent of the chief for diametrically oppositepurposes. In no other Bureau were changes made in administration without consultingthe Chief of the Bureaus involved. No other Chief of Bureau was ever secretly triedbefore the personnel board, found guilty, and sentenced to be dismissed from theservice, as was the Chief of the Bureau of Chemistry. In no other Bureau were importantcomponent parts thereof separated and put into an independent bureau as was the casein the Bureau of Chemistry with Soils and Investigations of Road Building Materials.While it is true that the Secretary and the Chief of the Bureau were on friendlyterms personally, the Secretary never took the advice of the Chief of the Bureauof Chemistry on the important matters above mentioned. In no other bureau were fundsappropriated for a specific purpose used for paying employees who were ordered toreport to the Solicitor of the Department. These are only a few of the illustrationsof the different treatment accorded to the Bureau of Chemistry.

 

DR. F. L. DUNLAP'S DUTIES

   Page 644.

   THE CHAIRMAN: Will you please state your precise duties as existingin the department when you are not acting as chief chemist; what are your preciseduties today in the Bureau of Chemistry?

   DR. DUNLAP: I am associate chemist of the Bureau of Chemistryand member of the Board of Food and Drug Inspection.

   THE CHAIRMAN: As associate chemist, what are your duties?

   DR. DUNLAP: I have no duties.

   THE CHAIRMAN: Then, having no duties as associate chemist, yoursole duty is as a member of the Board of Food and Drug Inspection?

   DR. DUNLAP: Exactly.

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



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CHAPTER IX

THE BUREAU OF STANDARDS

 

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

 

STICKING TO THE BASE

   In the great national game, theft is an importantelement of success. The man who reaches first must stick to his base as long as thefirst baseman is at the sack. When the first baseman goes off to quite a distance,the runner leaves his place of safety and goes as far as he dare toward second. Hemust keep a keen eye, however, as either the catcher or the pitcher may return theball to the first baseman, who has crept up unawares, and the runner is "out."If the basestealer is put out he is booed; if he succeeds he is wildly cheered.

   In general it is the first principle of safetyto stick close to your base. An army that leaves its base too far may run into danger.Its supply of provisions and munitions may be cut off. The enemy may send an armedforce to cut off retreat.in case of defeat. Upon the whole, sticking to one's baseis not only considered a mark of good judgment, but often of honesty of purpose infulfilling the duties imposed upon a player. Stealing bases in scientific mattersis quite another story.

 

RISE OF BUREAUCRACY

   While the bureau is an important element in Governmentactivities, it also affords an opportunity for ambitious directors (and all directorsshould be ambitious) to leave the base on which they are supposed to stay. I do notexcept even the bureau over which I presided for nearly thirty years from havingat various times had attacks of this grasping disposition. The Honorable Frank A.Lowden says, in World's Work, December, 1926:

   "The Government official is inclined to exaggerate the importance of his office. He is constantly endeavoring to expand its scope. He is properly jealous of his authority. * * * I think that this tendency is inevitable. * * * Where, however, the enterprise is a vast one, as in Government, or as in a great business organization, these tendencies, if left uncontrolled, are likely to inflict serious injury upon the service. * * * The original purpose of the creation of the Bureau is finally lost sight of and it is likely to seem to those who direct it an end and not a means."

   It would be well to add to the warnings of PresidentCoolidge and Governor Lowden in regard to mixing up business with Government, theopinion also of another expert along the same line. Mr. Merle Thorpe, editor of Nation'sBusiness, published under the auspices of the National Chamber of Commerce, madethis interesting statement before the National Association of Real Estate Boardsheld (Sept. 18, 1927) in Seattle, Washington. The title of his address was "FromBottom Up or Top Down."

   "Because of our failure to do things for ourselves, we are calling upon the government to do everything under the sun. Statute books are groaning. Regulations are myriad. Bureaus and commissions spring up overnight. Taxes are mounting, and naturally, because every one of the laws we put upon the statute books requires administration and more people on the tax payroll. To-day it is estimated that each ten families in the United States feed and keep another family on the tax payroll. Two months' production of each man, woman, and child, out of the twelve, now go to keep up the tax payroll.

   "'Let the Government do it!' is our favorite panacea. Of course, the politicians do not object. In fact, there have been occasions where they have been known to encourage legislation and join in the national anthem, 'There ought to be a law--'

   "The waste and inefficiency and mounting costs, however, are not the greatest penalties we pay for doing the nation's work from the top down. Most of the legislation is directed at business and business is no longer the simple act of trade and barter it once was. It has become most complex. Business is so interrelated, so interdependent, that a law regulating this industry reaches out and out and affects scores of us thousands of miles away.

   "It is a wise man indeed, who can see through and through to its conclusion a simple piece of economic legislation. We shall never know how much the orgy of lawmaking has slowed down the legitimate task of furnishing food and shelter and clothing, to say nothing of the luxuries of life, to those who need and want them, but it is safe to say it has done a great deal.

   "The breaking point will come. Already there have been four parliamentary governments overthrown and dictators rule to-day. As Mussolini says, 'Democracy, with its endless talk and politics, has miserably failed.' We may never come to that situation of dictatorship in the United States, but we may reach a stage where democracy and its accredited representatives are discredited. That would be disastrous, for democracy is based upon confidence.

   "Disastrous, too, for it would destroy the one thing which has made this country great, 'individual reward for individual initiative.' Every time we ask government to do something which we as individuals, or groups, or communities, can do better for ourselves, we are striking at that individualism which has given us our strength."

   Bureaus are either created by Act of Congressor by executive order. In the latter case Congress must approve the executive actby appropriations for specific purpose. By specific legislations Congress also assignsto certain bureaus special duties which presumably can not be abrogated by executiveorders. It follows that all expansive work must lie in the scope of the bureau andin harmony with problems already allocated.

 

SCIENTIFIC ETHICS

   In Science, July 19, 1927, page 103, isfound a proposed code of ethics for scientific men. No. 2 of this code reads as follows:

   "Exemplify in your conduct and work a courageous regard for the whole people, and not alone some powerful and influential faction thereof with which you come in close personal contact."

   This is most excellent advice in connection withthe above observations.

 

CHEMICAL ETHICS

   The American Chemical Society has no printedcode of ethics. There is, however, an unwritten code which every member of the societyis under obligation to respect.

   There are two cardinal principles involved inthe unwritten code of ethics of the American Chemical Society. The first is thatno member of the society shall seek by improper means to deprive any other chemistof his employment. The second is that a field of investigation which is already occupiedshall not be entered by an outsider without full cooperation and agreement with theparty already occupying the field of investigation. These two fundamental principlesguide and control the relations of the members of the Society toward each other.

   A much younger association of chemists, namely,the American Institute of Chemical Engineers, has already adopted a code of ethics.Inasmuch as some of the activities of the Bureau of Standards are essentially thoseof chemical engineers, it is probable that most of the chemists in the Bureau ofStandards are members of the American Institute of Chemical Engineers. This codeof ethics is not very long but it is very pertinent. The principal elements of thiscode are the following:

   1st. That in all their relations, they shall be guided by the highest principles of honor.

   2nd. The upholding before the public at all times of the dignity of the chemical profession generally and the reputation of the Institute, protecting its members from misrepresentation.

   3d. Personal helpfulness and fraternity between its members and toward the profession generally.

   4th. The avoidance and discouragement of sensationalism, exaggeration and unwarranted statements. In making the first publication concerning inventions or other chemical advances, they should be made ithrough chemical societies and technical publications.

   5th. The refusal to undertake for compensation work which they believe will be unprofitable to clients without first advising said clients as to the improbability of successful results.

   6th. The upholding of the principle that unreasonably low charges for professional work tend toward inferior and unreliable work, especially if such charges are set at a low figure for advertising purposes.

   7th. The refusal to lend their names to any questionable enterprise.

   8th. Conservatism in all estimates, reports, testimony, etc., especially in connection with the promotion of business enterprises.

   9th. That they shallnot engage in any occupation which is obviously contrary to law or public welfare.

   10th. When a chemical engineer undertakes for others work in connection with which he may make improvements, inventions, plans, designs, or other records, he shall preferably enter into a written agreement regarding their ownership.

   The 4th, 7th, 8th and 9th sections of the abovecode of ethics are not italicized in the original.

 

PURPOSE OF ESTABLISHING THE BUREAU OF STANDARDS

   The object of establishing the Bureau of Standardsis luminously set forth in the hearings before the comittee on weights and measuresand in the debates in Congress on this measure.

   I desire to call attention to a bureau in whichit appears that the desire to get control of all forms of activities has developedinto a megalomania, and to point out some of the crimes it has committed or attemptedto commit against the battered and bleeding food law.

   Professor Edward Murray East, eminent biologistof Harvard University, says:

   In our most cherished beliefs, from the earliest ages to the present, there is a great deal to justify the opinion of the cynic that man is to be distinguished from the apes not by his lack of a tail, but by his megalomania. Since becoming the dominant animal on the surface of this cosmic atom, he has never, until recently, had the slightest doubt concerning his supreme importance in the general scheme of things.

   I am not looking into the activities of the Bureauof Standards in any way which would reflect upon any member of the Bureau, eitheras to his capacity and ability, or as to his honesty. I assume, and I believe thedisease of megalomania is to some extent epidemic; it attacks people against theirdesire and will. We do not lose our esteem for those who are ill of influenza orhigh blood pressure. We might attach some personal blame to those who suffer fromtyphoid fever. We should regard megalomania as a sad misfortune.

   It is not in any way my purpose to review allthe expansive activities of the Bureau of Standards. I will confine my remarks tothose activities which affect scientific ethics, public health, and adulterationof foods.

   The Bureau of Standards was intended to be anatural enlargement of the old office of Weights and Measures. This office for somemysterious reason was connected with the Department of the Treasury. The enlargementof the office and its change of name to the Bureau of Standards was first publiclysuggested by the Secretary of the Treasury, the Hon. Lyman J. Gage (50th Congress,first Session, House of Representatives, Document No. 625.) The general purpose ofthe new Bureau is outlined by the Secretary of the Treasury in the following language:

   The functions of the bureau shall consist in the custody of the standards; the comparison of the standards used in scientific investigations, engineering, manufacturing commerce, and educational institutions with the standards adopted or recognized by subdivisions; the testing and calibration of standard measuring apparatus; the solution of problems which arise in connection with standards; the determination of physical constants, and the properties of materials when such data are of great importance to scientific or manufacturing interests and are not to be obtained of sufficient accuracy elsewhere.

   Under the head of conditions which necessitatedthe establishment of a National Standards Bureau the Secretary makes, among others,the following remarks:

   Throughout our country institutions of learning, laboratories, observatories, and scientific societies are being established and are growing at a rate never equaled in the history of any nation. The work of original investigation and instruction done by these institutions requires accurate reliable standards, which in nearly every case must be procured from abroad, or can not be procured at all. * * *

   The recent acquisition of territory by the United States more than proportionately increases the scope and importance of the proposed institution, since the establishment of a government in these possessions involves the system of weights and measures to be employed. During the near future large public improvements will be undertaken in these countries; schools, factories, and other institutions will be established, all of which require the use of standards and standard measuring apparatus.

   The National Academy of Sciences endorsed themovement in the following resolution:

   Whereas the facilities at the disposal of the Government and of the scientific men of the country for the standardization of apparatus used in scientific research and in the arts are now either absent or entirely inadequate, so that it becomes necessary in most instances to send such apparatus abroad for comparison: Therefore, be it

   Resolved, That the National Academy of Sciences approves the movement now on foot for the establishment of a national bureau for the standardization of scientific apparatus.

   The American Chemical Society approved the measure:

   Resolved, That the Congress of the United States be urged to establish a national standard bureau in connection with the United States Office of Standard Weights and Measures, which shall provide adequate facilities for making such verification of chemical measuring apparatus and for stamping the same as are provided by foreign governments for similar work."

   Prof. Simon Newcomb, U. S. N., said:

   I do not think that anything I could do or say is necessary to emphasize the practical and scientific importance of introducing the highest standard of efficiency and precision in the work of such a bureau.

   Prof. Albert A. Michelson (head of departmentof physics, University of Chicago) made the following statements:

   It gives me great pleasure to indorse the measures proposed regarding the importance of the establishment of a central bureau of weights and measures, the functions of which shall be:

   (1) The calibration of all standards and measuring instruments used in scientific or commercial work.

   (2) The investigation of problems which arise in connection with standards or standard measuring apparatus.

   (3) The determination of physical constants and the properties of materials.

   A large number of eminent scientists joined inthe same general way in urging the enactment of the measure. Wherever reference wasmade to foreign institutions they were institutions for standardizing weights andmeasures of various kinds in all the different countries.

   When the measure went before the Senate (50thCongress, Second Session, Document No. 70), the Secretary of the Treasury appearedalso before the Senate Committee. Among other reasons which he advanced are the following:

   In this particular of standardizing weights and measures and testing apparatus of every kind the older countries are far ahead of us; in fact, it may be said that there is no comparison between us. We are dependent utterly upon Germany, perhaps France to some extent, and England for our measurements and those standards which we are obliged to resort to in testing and comparing when we enter into competitive work against them. * * *

   Now the establishment of a bureau like this, where the Government is the custodian and the originator of these standards of weights and measures as applied to all the higher scientific aspects of life which we are so rapidly developing in, has, to my mind, a value far and above the mere physical considerations which affect it, although those physical considerations are fundamental and most important. Nothing can dignify this Government more than to be the patron of and the establisher of absolutely correct scientific standards and such legislation as will hold our people to faithfully regard and absolutely obey the requirements of law in adhesion to those true and correct standards.

   Before the Senate, as was recorded in the documentabove mentioned, many scientific men appeared and all in the same strain stressingthe importance of standards of accuracy for all kinds of weights, measures and instrumentsof precision. Among those was Mr. 0. H. Tittmann, Superintendent of the United StatesCoast and Geodetic Survey, and Professor H. A. Rowland of Johns Hopkins University.

   The Association of Official Agricultural Chemistsadopted the following resolution:

   Resolved, That the Association of Official Agricultural Chemists most heartily indorses the movement in progress for the establishment in this country of a national standardizing bureau, and hereby declares that the absence of facilities such as would be provided by the proposed bureau has seriously hampered the work of this Association, owing to the difficulty of obtaining in this country, with official certificates of accuracy, the flasks, burettes, pipettes, weights, thermometers, polariscopes, and other apparatus needed in the work of official chemists. The use of apparatus which bears the official stamp of the Government would eliminate one element of dispute in commercial analyses, thus preventing the expense of litigation, and would, in general, increase the value of the work of this Association by facilitating the attainment of uniform results.

   Not only were scientific men all over the countryinterested in the establishment of standards invited to give testimony, but the headsof departments in which scientific work was carried on were also asked their opinionsrespecting the proposed legislation. The Secretary of Agriculture asked the headof the bureau most interested to prepare his paper. Mr. Southard, in introducingthe discussion in the House said:

   Mr. Speaker, the functions of the present office of weights and measures are confined to the ordinary measurements of mass, length, and capacity. That was sufficient, perhaps, when that office was established. In the early days the standards in question were the pound, the yard, the bushel, and the gallon. Now, however, the progress of science and the complexity of industrial processes resulting from it require derived standards of a thousand and one kinds--all kinds of measuring apparatus--volumetric apparatus used in the chemical laboratories of the Government and similar laboratories all over the country--standards of measurement for high and low degree of temperature, etc.

   I must stop here to indicate some of the different kinds of measuring apparatus. They are barometers, thermometers, pressure gauges, polariscopes, instruments of navigation, steam-engine indicators, and instruments of a thousand different varieties. That the graduations and indications of these instruments should agree with the fundamental standards is a question of most vital importance, and without the facilities for such tests and comparisons the public is deprived of the greatest benefits to be derived from the standards recognized by the Government. We have in this country to-day no means of testing these different instruments of precision. The result is, we have to send them to Germany or France or England or somewhere else to have them tested and calibrated.

   The bill has been enthusiastically indorsed byall the heads of Department of the General Government having scientific bureaus,as well as by all the chiefs of such bureaus. As furnishing an illustration of thenecessity and value of this proposed bureau to the General Government, I will quotefrom the statement of the Secretary of Agriculture:

   "I have the honor to acknowledge the receipt of your letter of April 24, and beg to assure you that the establishment of a national standardizing bureau, having the function outlined by you, will be of the highest value and importance, not only to the scientific bureaus, offices, and divisions of this Department, but to the country at large. Its influence will be felt wherever the quality and value of substances are fixed by chemical and physical tests, whether this be in connection with scientific investigations, in connection with manufacturing and other industrial processes, or in connection with commercial transactions.

   "Speaking for this Department alone, I wish to say that it has been our policy to patronize the American manufacturers of scientific apparatus whenever practicable without hampering our investigators by compelling them to use apparatus of an inferior grade. The art of the construction of scientific apparatus has been brought to such a high degree of perfection under the fostering care of European govemments--notably Germany--that we have been compelled to send abroad a large proportion of our orders, either directly or indirectly, through importers. The greatest disadvantage resulting from this state of affairs is not the delay, inconvenience, and expense connected with making purchases abroad; nor is it to be found in the danger of injury to delicate and expensive apparxtus during transportation across the sea.

   "It is the necessity of importing the certificate of a foreign government whenever an official certiflcate of accuracy is desired with apparatus. In Germany an order can be issued for apparatus with the specification that the goods delivered must be of the quality and accuracy recognized by the regulations established by the standardizing bureaus of the Imperial Government. Apparatus made in accordance with these regulations are regular commodities, and are described in the catalogues of all the apparatus makers and dealers. When the goods are received the purchaser is able to send a proper proportion of the shipment to the government standardizing bureaus and base his acceptance or refusal of the goods upon the results of the official tests. For the accommodation of customers who need certified apparatus for immediate use most of the dealers keep in stock apparatus bearing the official stamp.

   "The disadvantage under which American scientific workers--notably chemists--labor is evidenced by a recent experience of the Division of Chemistry of this Department. The confusion of standards and carelessness which has characterized the manufacture of graduated chemical glassware in the past is notorious. Some months ago the Division of Chemistry issued to an American dealer and importer an order for graduated glassware, to be made in accordance with the regulations of the German Imperial Testing Commission.

   "While all this apparatus was to fulfill the requirements in point of construction and limits of error in graduation of the regulations named, certain pieces were to bear the official stamp of the Imperial commission. At the special request of the American dealer to whom the order was sent permission was granted to import only the pieces of apparatus requiring the official stamp and to supply for the remainder of the order apparatus of American manufacture, but made in accordance with the regulations named. After considerable delay the goods were delivered. The certified pieces were eminently satisfactory; the uncertified ones were quite the opposite. They were unsatisfactory both in the form of construction and in regard to accuracy.

   "As an example of the degree of inaccuracy, it may be stated that a flask marked to contain 100 cubic centimeters was found to contain 100.3 cubic centimeters. I do not believe that this experience was due to unworthy motives on the part of either the manufacturer or dealer. This experience is simply the result of the absence in this country of any well-established and authoritative standards governing the forms of construction, the system of graduation, and the allowable limits of error for apparatus of this kind. The mere adoption of regulations relative to the character of apparatus admissible for stamping by a national standardizing bureau will cause a revolution in the apparatus manufactured and give to it that highly important quality, uniformity.

   "As a further illustration of the great desirability of such an establishment, I may call your attention to the contention which has arisen in the courts in the United States in the last few years concerning the regulations prescribed by the Treasury Department governing the polarization of imported sugars. These regulations were prepared by a joint commission consisting of the Chemist of the Department of Agriculture as chairman, a representative of the Coast and Geodetic Survey, Office of Weights and Measures, and the Chemist of the Bureau of Internal Revenue.

   "The regulations were based upon the most careful scientific determinations and the apparatus and utensils employed by the customs-house officers standardized by the Office of Weights and Measures of the Coast and Geodetic Survey. Nevertheless, the accuracy of these officials has been called into question by the importers, and the question is now the subject of expensive and tedious litigation. The existence of such an office of your Department as you propose to establish would have avoided all sueh trouble by the weight of its authority. This is only one of the many instances where the utility of such a bureau would prove of practical advantage to official operations."

   It is not because of any desire to claim creditfor supporting the campaign to establish the Bureau of Standards, but for other reasonswhich are important that the Chief of the Bureau of Chemistry at the time mentioneddesires to state that he was the author of the letter signed by the Secretary ofAgriculture.

   It is a matter of some interest to know thatthe importers of sugar paid import duties under protest according to the regulationsabove cited. The case finally reached the Supreme Court. The Chief of the Bureauwas asked by the Solicitor of the Treasury to write the scientific part of the briefbefore the Court. It was unanimously decided in favor of the Government. Nearly amillion dollars were saved by this decision. It would be illuminating to cite manyother cases but the records of the discussion of this bill are all on file and thosewho are interested in the matter can find them in the references given. The CongressionalRecord of Feb. 1, 1901, pages 1793 to 1795, and March 2, pages 3473 to 3478 in theHouse; and 3487 and 3515 in the Senate may be consulted.

   The wonderful unanimity of scientific men insupport of this measure is best illustrated by the words of Mr. Southard's addresson page 1794 of the Record above referred to:

   Shortly after the reference of the measure to the Committee on Coinage, Weights and Measures that committee received a deluge of indorsements, most commendatory in character. They came from almost every Department of the Government and from the different bureaus in the various Departments. They came from the governors of States and from the departmental officers in the States. They came from scientific bodies, from scientific men, and from associations of scientific men. They came from men engaged in educational pursuits everywhere. They came in the form of resolutions adopted by the faculties of universities and colleges throughout the country. They came from the great railroad corporations, many of which maintain, as gentlemen know, chemical laboratories in connection with the operation of their roads. They came from the great iron and steel industries of the country and from the manufacturers of electrical machinery and appliances, and they came from agricultural associations and from other sources. In other words, they came from almost everywhere. and I may say that these were no mere perfunctory indorsements, but were characterized by a remarkable zeal and earnestness, indicating clearly and strongly the desire, in this connection, of the people making them.

   The attitude of all these supporters of thismeasure, who practically represent all the scientific men of this country interestedin physics and chemistry, shows that they all understood the bill exactly the sameway; it was to be a real bureau of standards, of all weights and measures. Therewas no hint of extending the functions of this bureau to standards of purity of foods,drugs, soaps, or anything else; nor was there the least hint of the Bureau of Standardsengaging in manufacturing, or promoting manufacturing in any way except by furnishingaccurate standards of measurements for all the processes that go on under the guidanceof accurate measurements in official industrial and commercial activities. To invadethe domain of agriculture and to furnish plans for building dextrose manufactorieswere never even suggested.

   Rarely has any topic been presented to Congressin which members of the committees considering the measures, and witnesses broughtbefore them, and speakers on the floor of each house, have shown greater unanimitythan was exhibited in connection with the establishment of the Bureau of Standards.The character of the work was fully understood by all participants in these discussions.The standards which were to be established were those in every case of precisionand accuracy for the use and enlightenment of all parties needing standards of measurementof all kinds. Only one witness, Professor Rowland, saw in the wording of the proposedact any possibility of departing in the activities of the bureau from the basic purposefor which it was organized. Professor Rowland, with that keen sense of accuracy anddefiniteness for which he was so renowned, pictured some future Director, who, bymisinterpreting the spirit, and also the words of the act, might proceed to explorefields of investigation entirely foreign to its purpose. In his testimony beforethe Committee of Coinage, Weights and Measures, Professor Rowland made the followingsuggestion:

   There is one point that is left out in this bill, and I do not see how it can be covered, and that is with regard to the kind of standards that are to be adopted. Shall the director of this standardizing bureau have the right to introduce any standards he pleases, or shall they be more carefully defined?

   Many of the activities of the Bureau of Standardsillustrate the prophetic wisdom of Professor Rowland's foresight. As an illustrationof how far the Bureau of Standards has departed from its base, a few quotations fromthe budget submitted for the fiscal year 1928 will show.

THE BUDGET FOR 1928

   (Page 369) For structural materials, such as stone, clays, cement, etc., and for collecting and disseminating approved methods in building, planning and construction, economy in the manufacture and utilization of building materials and supplies, and such other matters as may tend to encourage, improve and cheapen construction and housing.

   For the authority to do this the original Actof March 3, 1901, is quoted.

   (Page 371) For investigation of fire-resisting properties of building materials and conditions under which they may be most efficiently used, and for the standardization of types of appliances for fire prevention.

   The original act is also quoted as authorityfor this investigation:

   (Page 375) "To study the methods of measurement and technical processes used in the manufacture of pottery, brick, tile, terra cotta, and other clay products, and the study of the properties of the materials used in that industry." The original Act is again cited.

   (Page 376) "To develop methods of testing and standardizing machines, motors, tools, measuring instruments,. and other apparatus and devices used in mechanical, hydraulic, and aeronautic engineering. " The original Act is cited.

   (Page 377) "To investigate textiles, paper, leather and rubber, in order to develop standards of quality and methods of measurement." Original Act cited.

   (Page 380) "For investigating the conditions and methods of use of scales and mine cars used for weighing and measuring coal dug by miners for the purpose of determining wages due and of conditions affecting the accuracy of the weighing or measuring coal at the mines." Original Act quoted.

   Again on the same page: "For metallurgical research, including alloy steels, foundry practice and standards for metals and sand; casting, rolling, forging, and the properties of aluminum alloys; prevention of erosion of metals and alloys; development of metal substitutes; as for platinum; behaviour of bearing metals; preparation of metal specifications; investigation of new metallurgical processes and studies of methods of conservation in metallurgical manufacture and products; investigation of materials used in the construction of rails; wheels, axles, and other railway equipment; and the cause of their failure." Again the original Act is cited.

   (Page 381) "For laboratory and field investigations of suitable methods of high temperature measurements and control in various industrial processes, and to assist in making available directly to the industries the results of the Bureau's investigations in this field." Same Act is cited.

   (Page 382) "For the investigations of the principles of sound and their application to military and industrial purposes." Same Act cited.

   (Again on the same page) "For technical investigations in cooperation with the industries upon fundamental problems involved in industrial development following the war with a view to assisting in the permanent establishment of the new American industries." Same Act cited.

   (Page 384) "To enable the Bureau of Standards to cooperate with Government departments, engineers and manufacturers in the establishment of standards, methods of testing and inspection of instruments, equipment, tools, and electrical and mechanical devices used by the industries and by the Government, including the practical specifications of quality and performance of such devices and the formulation of methods of inspection, laboratory and service tests." Same Act cited.

   (Page 388) " During the fiscal year, 1928, the head of any Departmed or independent establishment of the Government having funds available for scientific investigation and requiring cooperative work by the Bureau of Standards on scientific investigations within the scope of the functions of that Bureau, and which the Bureau of Standards is unable to perform within the limits of its appropriations, may, with the approval of the Secretary of Commerce, transfer to the Bureau of Standards such sums as may be necessary to carry on such investigations."

   These transferred funds in 1926 amounted to $173,250.They were used to investigate oil pollution, radio direction for the coast guard,helium recorders, chromium plating, corrosion, fatigue and embrittlement of duralumin,electrically charged dust, optical glass, substitutes for parachute silk, goldbeatersskin, storage batteries, internal combustion engines, fuels, lubricants, photographicemulsions, stresses in riveted joints, machine guns, bomb ballistics, rope and cordage,chemical and metallurgical tests, wind tunnel tests of models, aircraft engines,velocity of flame in explosives, etc.

   According to Industrial and Engineering Chemistry,one of the largest publications of the American Chemical Society, the Bureau of Standardshas just completed an investigation of the suitability of caroa fiber for paper making,also the development of suitable lubricants for glass stopcocks.

   Since the publication of budget estimates, asupplemental grant of funds to the Bureau of Standards has been submitted by thebudget authorities, to the amount of $50,000, to enable the Bureau of Standards toinvestigate farm wastes. These illustrations show how in nearly all cases the Bureauhas introduced the word "standardization" or "measurement" insome way to connect these miscellaneous investigations into everything under theskies with the original Act. This Act is cited as authority for these universal studieswhich can in no way be connected with the basic idea of the standards implied inthe hearings.

 

DISCOVERY OF A NEW PRODUCT

   In the annual report of the Bureau of Standardsfor the fiscal year ended June 30, 1920, page 129, is found the first report on acommercial process for manufacturing pure dextrose. In this report it was announcedthat for the first time dextrose had been separated from a water solution. It isstated:

   "Previous methods for the preparation of the pure substance have demanded the use of alcoholic solvents."

   It is stated further down on the same page:

   "In carrying this investigation to a successful conclusion the Bureau has -virtually created a new industry of great magnitude. * * * The magnitude of the commercial possibilities of the new sugar is shown by the fact that one of the largest corporations in the country requested the Bureau to design a large scale experimental plant costing approximately one-half million dollars. This has been done and the plant is now practically completed."

   A careful re-reading of the original bill whichwas enacted into a law, fails to find any warrant for, the architectural excursionswhich the Bureau of Standards confesses to have made. Let us examine for a momentsome authorities relating to this discovery. In Industrial and Engineering Chemistry,issue of July 10, 1924, News Edition, on page 2, Ifind the following copied froman address made by T. B. Wagner, for many years chief chemist for the Corn ProductsCompany, the corporation for which the Bureau of Standards designed a half-milliondollar factory. It was on the occasion of the presentation to the Chemists Club ofNew York City of a portrait of Dr. Arno Behr, for many years chief chemist of theCorn Products Company, and one of the most eminent carbohydrate chemists this countryhas produced. Dr. Wagner said, in speaking of the earlier investigations of Dr. Behr,some Menty or twenty-five years prior to the new discovery of the Bureau of Standards:

   "It was while engaged in the refining of cane sugar that Dr. Behr turned to a study of the chemistry of corn and while following these pursuits he discovered a simple method of producing without the aid of alcohol, crystallized, anhydrous dextrose of great purity and beauty. * * * That was over forty years ago, and it is curious therefore to note the Director of one of,the important Government Bureaus in Washington coming forth at so recent a date as July 1, 1920 with the announcement * * * that * * * the Bureau has shown that a pure, white dextrose may be obtained by crystallization from a water solution and may be easily separated from the mother liquor by using a centrifugal machine. Previous methods for the preparation of the pure substance have demanded the use of alcoholic solvents.

   Dr. Wagner adds:

   "These are almost exactly the words employed by Dr. Behr in his patent specifications of 1883. Being on the subject I will be pardoned, perhaps, for commenting upon another discovery pertaining to the discovery of pure dextrose and described in the same report in the following language:

   'Two processes were investigated. In the one which met with almost immediate success the converted starch liquor was boiled in a vacuum until concentrated to 42° Baumé, and was then dropped into a crystallizer. It was then inoculated with pure crystals of dextrose and agitated until the crystallization was complete.'"

   Dr. Wagner then continues as follows:

   "That is the substance of U. S. Patent 835, 145, issued on Nov. 6, 1906, of which I happen to be the author. "

   The Bureau of Standards sent a representativeto a large glucose manufacturing company to apply the process on a large commercialscale of operation. It is interesting to inquire whether the Bureau's process, whichwas discovered about one hundred and thirteen years before the Bureau discoveredit and had been practiced in commercial production frequently, succeeded in makingthe new discovery practical in the special factory costing a half million dollars,which was built upon architectural plans supplied by the Bureau of Standards. Aswe are dealing here with United States patents there is no harm in calling names.Mr. Newkirk, who was the man sent to introduce this new process, which was to establisha new industry on a magnificent scale, succeeded in doing so with the knowledge heobtained in working out these plans in the Bureau of Standards. It was not long beforehe resigned from the Bureau of Standards to accept the position of chief dextrose-makerfor the Corn Products Company. After he left the Bureau of Standards Mr. Newkirkbegan to take out patents on the new process of manufacture. He filed an applicationfor a patent on Nov. 16, 1922, and the patent was issued to him, No. 1,471,347, onOctober 23, 1923, and assigned by him to the Corn Products Refining Company, a corporationof New York. The title of the patent is "Method of Making Grape Sugar."He says in this application:

   "I have found that by making a radical departure from the methods usually employed in the manufacture of grape sugar, a sugar of very close to absolute purity can be produced by a process which is relatively simple and is economically practical."

   This shows, if it shows anything, that the methoddevised by the Bureau of Standards wouldn't work economically. He clinched this conclusionby continuing:

   " Dextrose or grape sugar of high purity has been made heretofore, but never, so far as I am aware, on a commercial scale by methods which can be regarded as feasible from its economic point of view."

   The Bureau of Standards' own expert in this languagedenies that the great discovery which founded a new industry was economically workable.

   Mr. Newkirk continues his assertions of the failureof all previous processes, as follows:

   "Failure of previous experimentors to realize the importance of these considerations accounts for the practical unworkability of many of the processes described in the literature for manufacturing high purity grape sugar. By accident when conditions were just right a satisfactory product might be produced. But there was no certainty that another batch, treated in apparently the same way, would not prove a failure. Obviously manufacture on a commercial scale under these conditions was impossible. Other processes, theoretically possible, have proved too expensive for commercial utility. Hence a literature disclosing apparently repeated successful solution of a problem, which as a matter of fact, has not prior to the present invention received any satisfactory solution."

   It seems, therefore, that the Bureau of Standardswas somewhat mistaken in having claimed to make the only discovery which put thisgreat industry on its feet. Either a mistake was made by the Bureau, or Mr. Newkirkhas done the Bureau of Standards a grievous wrong.

   The Bureau of Standards not only claims the discoveryof a process which has created, or will create a new industry, but it specifies particularlythe things which it has discovered. Before their experiments, which evidently werecarried on immediately prior to 1920, they stated that all previous preparationsof dextrose were from alcoholic solutions. In a patent, No. 256,623, dated April18, 1882, issued to Arno Behr, he makes the following statement:

   In carrying out my process I form a watery solution of grape-sugar containing, say, thirteen per cent. of water and deposit the same in a suitable tank or vessel, and maintain it at a temperature of about 90° Fahrenheit for a period of one to two weeks, or until thorough crystallization has taken place. * * * In order to somewhat hasten crystallization, I introduce into the concentrated solution a minute quantity of finely-divided crystallized anhydrous grape-sugar previously prepared."

   Thus it is seen that two of the discoveries ofthe Bureau of Standards, one, that dextrose could be crystallized from an aqueoussolution, and the other that it could be hastened by the addition of previously crystallizeddextrose, were known and patented forty years prior to this great discovery. Thefact that the temperature should be kept up to or, above blood heat for the purpose,of making anhydrous dextrose is clearly pointed out in the patent issued to T. B.Wagner (No. 259,794, dated June 20, 1882). He says:

   "Prior to my invention it was known that crystallized anhydride of grape-sugar could be produced by dissolving grape sugar in strong alcohol and crystallizing it from the alcoholic solution; but in this process it is difficult to entirely free the resulting product from all traces of alcohol and from an unpleasant flavor resulting from impurities contained in commercial alcohol. My improved product,, which consists of pure crystallized anhydrous grape-sugar, entirely free from all traces of alcohol, may be made in various ways from water solutions of grape sugar."

   The claim he makes is as follows:

   "I claim as my invention a new article of manufacture, crystallized anhydrous grape-sugar, free from any trace or flavor of alcohol or its impurities, produced from a watery solution of grape-sugar.

   In a patent issued to T. B. Wagner, No. 835,145,dated Nov. 6, 1906, the following purpose of the invention is described:

   "The object of my invention is to produce anhydrous grape-sugar from corn or other analogous farinaceous material by a method in which the yield of sugar is larger, its quality is purer, the time required for its production is shortened, and the amount of labor required is materially lessened. I have found that all of these results may be obtained by abandoning that part of the present process which has heretofore been considered neeessary--that is keeping the crystals during the process of generation in as quiet and still a condition as possible, and on the contrary employing the principle of crystallization in motion."

   From the above citations it seems plain thatthe claims made by the Bureau of Standards as the original discoverers of this greatindustry are, to say the least, contrary to historical evidence.

 

ATTEMPT TO MODIFY THE FOOD LAW

   While the foregoing is interesting as a sampleof bureaucratic ethics it serves solely as a background to an assault on the foodlaw.

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

   A bill was introduced into the House of Representativesby Mr. Cole, on December 7, 1925 (H. R. No. 39), providing that the Food and DrugsAct be amended so that the presence of dextrose in food products would not be regardedas a misbranding and would not require any notification of its presence. The samebill (S. 481), was introduced into the Senate of the United States by Mr. Cumminson Dec. 8, 1925.

   The Senate bill was considered by the Committeeon Manufactures, beginning Thursday, January 7, 1926. There was no very great publicitygiven to this hearing and the only persons who appeared, besides the members of theCommittee, were Senator Cummins, Representative Holaday, and Representative Cole.Senator Cummins said to the Committee:

   "Introduction of that paragraph into the law would avoid the charge that any article of food in which corn sugar is used is either misbranded or adulterated."

   Mr. Holaday said:

   "Mr. Chairman, I should like to voice my approval of the measure before you, and the feeling is somewhat general throughout the agricultural regions of the country that this bill may be of benefit to corn producers. The fact that the producer of goods sweetened with cane sugar is not compelled to place anything to that effect on his label, while the manufacturer who sweetens with corn sugar is required to mention that fact on his label, creates an unjust impression in the minds of the people."

   Representative Cole stated:

   " The difference between dextrose and sucrose, a chemist has told me, is as small as a molecule of water.

   "Now what does that mean? It means that it will be used very largely, especially in the case of sweetened fruits. You buy canned peaches, sweetened apples, in many cases too sweet, in fact they have to put in so much cane sugar in preserving these fruits that they become almost like a sirup. In using corn sugar that degree of sweetness would not be obtained, but still the preserving power would be there.

   The Committee, after hearing these witnessesand no one appearing in opposition, made a favorable report and as a result of thisreport the Senate unammously passed the bill.

 

LEGALIZING ADULTERATION OF FOODS

   When these bills came before the House, the Bureauof Standards appeared as the chief protagonist of this effort to mutilate the FoodLaw. At the time the hearings were begun on March 2, 1926, a formidable array ofopponents to the measure was on hand. Among these were Mr. George S. DeMuth, representingthe bee-keepers, the Hon. Franklin Menges, representative in Congress from Pennsylvania,Mr. W. G. Campbell, chief of the Regulatory Service of the Department of Agriculture,Dr. George M. Kober, .eminent physician and Dean of the Georgetown University MedicalSchool, and Mr. Harvey W. Wiley, farmer. Among the protagonists of this measure wasMr. Frederick Bates of the Bureau of Standards. Following is a brief outline of histestimony.

   He said he did not feel it would ever be necessaryto defend the creation of industries of such momentousi importance, and when theBureau of Standards created crystallized dextrose, a carbohydrate of great food value,great stability, great purity, and great cheapness, it was deemed a waste of timeto attempt to take out a basic patent on a subject in which the process of manufacturerequires so many individual steps. .He called attention to the fact that the Bureauof Standards for the first time in one hundred years had successfully crystallizedmanite and dextrose from.a water solution, and that is the crux of the whole matter.

   He referred to the fact that there had been,he presumed, several hundred patents on the subject of dextrose. As an example hecited Mr. W. B. Newkirk, a practical sugar-maker.

   "He was the man I sent to the Corn Products Refining Company to perform the first experiment, and he threw down four thousand pounds of chemically pure crystallized dextrose after forty years of failure."

   Mr. Bates grew more enthusiastic as he was questionedin regard to whether Mr. Newkirk in his patents had mentioned any of the things discoveredby the Bureau of Standards. Like the men in Buckram, these patents "grew apace."Finally (page 122) Mr. Bates said:

   " I suppose 500 would be a conservative estimate of the number of patents on dextrose processes now in existence. Possibly there are 1000."

   These patents must have been granted in foreigncountries. Very few are found in our patent office, even including the six takenout by Mr. Newkirk after he left the Bureau of Standards.

 

NUMBER OF PATENTS

   A careful search was made in the archives ofthe patent office, aided by the experts employed therein, to determine the numberof patents issued in the conversion of starch into other products, and particularlyto dextrine, gums, glucose and grape-sugar or dextrose. Possibly a few patents mayhave been overlooked, and perhaps two or three may have been included which do notbelong to this category. A total of 64 patents treat of making dextrose or grape-sugarfrom starch. It is curious to note that the greatest activity in taking out patentswas in the years 1880 to 1886 inclusive, during which time 27 patents were issuedfor this purpose. This was at the time the glucose industry was attracting publicand financial attention, and naturaJly marked the era of greatest activities andinventions.

   As has already been shown, all the principalmethods used, with the exception of those covered by the patents of Mr. Newkirk,included substantially the processes employed in all dextrose factories at that timeand subsequently. There seems to be nothing fundamentally new in any of the patentstaken out by Mr. Newkirk since his resignation from the Bureau of Standards and hisemployment by the Corn Products Company. The patents taken out by Mr. Newkirk wereat first assigned to the Corn Products Company, but later ones were assigned to theInternational Patents Developing Corporation, of Wilmington, Delaware.

 

RELATIVE SWEETNESS OF SUCROSE AND DEXTROSE

   The Bureau of Standards claims a relative sweetnessfor dextrose of about 75 per cent. of the sweetening power of sucrose.

   Dr. C. A. Browne presented a paper to the ThirtiethAnnual Conference of the Association of Dairy, Food and Drug Officials of the UnitedStates in Washington, October, 1926. On Page 6 of the printed proceedings I findthe following:

   "Gottloeb Kirchof about the year 1806 discovered that the starch of cereal grains from heating with acid could be converted into a crystallizable sugar. * * * The process as originally described by Kirchof consisted in beating 100 pounds of starch with 400 pounds of water and 1-1/2 pounds of strong sulphuric acid, boiling for a period of 25 hours with constant renewal of the evaporated water. After clarification the neutralized mass was evaporated to a thick syrup, set aside for several days until crystallization was complete. The inventor, Kirchof, made the following observation :

   'Although starch sugar does not have the sweetness of ordinary sugar, the ratio of its sweetness to that of the latter being only 1 to 2-1/4, it can nevertheless replace cane sugar for many purposes.'

   Dr. Browne continues (page 11)

   "Certain advocates of 'corn sugar' have employed, as their measurement of its sweetness, the recently determined value of Biester, Wood and Wahlin for pure anhydrous dextrose which is 74.3 per cent of the sweetening power of sucrose. . This value is much higher than any reported by previous investigators. The values in the literature for the sweetness of anhydrous dextrose range from 40 to 74.3 per cent, the variations being due to the differences in the methods of determination and to differenes in individual taste perception. In such cases the only legitimate procedure is to take the average of the results of all observers and this average, including the very high figure of Biestor, Wood and Wahlin, for the nine determinations which I have found in the literature is 54.4 per cent. This value when corrected for the 8.43 per cent of water in 'corn sugar' gives a true value of 49.81 per cent for the sweetness of the product as compared with sucrose. In other words 'corn sugar' is only about one-half as sweet as cane and. beet sugar and twice as much of it must be used in food products as of cane or beet sugar, if the same degree of sweetness is to be obtained.

   This discussion of the subject by Dr. Browneis in strict conformity with scientific ethics and leads to a conclusion entirelydifferent from that assumed by the Bureau of Standards. If dextrose is used for sweeteningpurposes, twice as much of it is required as.for ordinary sugar. If it is used asa, filler, that is an adulterant, the more you put in the better the purpose of itsuse is secured. This is the kind of sugar which the committee decided, chiefly underthe influence of the Bureau of Standards, was the proper thing to offer the Americanconsumer without notice of its presence. What a remarkable change from the attitudeof the members of the Interstate and Foreign Commerce Committee at the present timeto that which characterized their deliberations in 1906!

 

CAN OTHERS DO IT?

   The following question was propounded to Mr.Bates, Page 127. Hearing, before the Interstate Commerce Committee:

   Is it possible for any one else to produce corn sugar that you know of now, profitably, that is this crystallized dextrose sugar without using the process that was perfected .in your laboratory and subsequently patented by the men that represent you?" To which Mr. Bates answered, "Yes."

   Another embarrassing question is found on page130;

   "Right here let me ask, was your study of dextrose instigated by the Corn Products Refining Company?" to which Mr. Bates replied, "Oh, no, they had nothing whatever to do with it."

   Evidently, however, the first mass experimentmade by the Bureau of Standards' process was not made in the Bureau at all. On thesame page Mr. Bates said:

   "Our contribution was to demonstrate to the world that a man could take ordinary sugar-making machinery and throw down pure crystallized dextrose on a factory scale. We made 4000 pounds on the first experiment."

   On the same page the question was asked:

   "The Corn Products Refining Company had been unable to do that?"

   To which Mr. Bates replied:

   "They.had spent about $6,000,000 in effort to make dextrose. They had built one factory in Chicago costing $1,500,000 and had abandoned it many years before, after attempting to operate it. for a year or two."

   Mr. Bates finally acknowledged that dextroseis not a new sugar, and in answer to a question he said:

   "There is nothing new in the product. It is a new sugarin the sense that after forty years of failure by the anufacturers who are interestedin utilizing corn we have sueceeded in throwing down the material from water solutions."

   The fact is that Kirchof in 1806 described theprocess and Dr. Arno Behr, in 1882, took out a patent for producing dextrose fromwater solution, and Dr; Wagner in 1906 described in detail the technique of crystallizingand how to secure anhydrous crystals.

   According to the records of the Bureau of Standards,their experiment in creating this new industry was made in 1919. In 1923 Mr. Newkirkhad already been in the service of the Corn Products Company for about two yeaxs.In. 1922 he filed his first application for patents which were assigned to the CornProducts Company. Mr. Bates informed the Committee that according to the best figureshe had available, so-called corn sugar, that is dextrose, can be produced under presentmethods at about 2 cents per pound, when corn is a dollar a bushel. He told the Committteethat there is no pure corn sugar produced in the world today on a commercial scaleexcept that produced by Americans, and that this fact is entirely due to the initiativeof the Congress of the United States, which provided the funds to make this workpossible. When asked to give some idea of the future of the industry, Mr. Bates replied:

   "Experience has taught me that it is better to remami silent. But I leave it to your experience and knowledge as to what happens when any basic material of great stability, purity and cheapness can be produced."

 

OPPONENTS IGNORED

   In point of fact, the members of the Committeeon Interstate and Foreign Commerce had very little confidence in those who appearedin opposition to the pending bill. In the report of the sub-committee, which wasadopted by the whole committee, it is stated on the first page:

   "In arriving at this conclusion we have had the benefit of conferences and frequent consultations and advice with the Bureau of Standards, the Department of Agriculture, and with the legislative Counsel, to all of whom we acknowledge our obligation. We are, however, under special obligation to Dr. George K. Burgess, Director, and to Dr. Frederick Bates, of the Bureau of Standards, and attach hereto as a part of our report their concise and clear statement regarding these new sugars which were first developed by their department, and call your especial attention to a definite statement made therein by eight of the leading medical authorities of the United States as to the complete wholesomeness of these sugars, which opinion is supplemented by a letter dated March 18, 1926, from Dr. H. S. Cumming, Surgeon General of the United States Public Health Service, which we also attach with this report. We call attention also to the numerous citations of authorities furnished us by the Bureau of Standards in support of their position."

   Not a syllable is said concerning the luminousopposing data presented by the Honorable Franklin Menges, Member of the House, Mr.George DeMuth, representing the bee-keepers, Mr. W. G. Campbell of the RegulatoryService of the Department of Agriculture, and H. W. Wiley, in defense of the FoodLaw. The only quotation from the Department of Agriculture is the Secretary's approvalof the amended bill.

 

REQUEST BUREAU OF STANDARDS FOR HEALTH DATA

   In securing this information the Bureau of Standardsentered on a new activity, namely as promoters of the public health. Director Burgessin his letter of March 28, 1926, said:

   "In addition we would state for your information that the Bureau of Standards does not deal with the subject of foods in relation either to health or to physiologic action in their primary aspect. Investigations of the character involved in these subjects belong to the realm of medical science."

   The above is a most important statement. Thereis one field of activity in which the Bureau of Standards has not yet entered. Neverthelessthey have made a fine beginning and the nose of the camel is now under the edge ofthe, tent. It is to be expected that within a short time the Bureau of Standardswill assume all of these medical investigations in which they have made already avery considerable start.

   When the Bureau of Standards was asked to dothis public health work by the committtee, it looked around to see where it couldbest direct its efforts. Dr. Burgess says:

   "In deciding upon the sources from which to obtain the information you requested, the staffs of various Government institutions, such as the United States Public Health Service, the Hygienic Laboratory, the Army Medical School, and the Bureau of Home Economics have been consulted, and their able suggestions followed. And it may pertinently be noted at this point that in our search we have failed to find a statement by a single authority that is detrimental to the use of dextrose and levulose as human foods, or that their use as foods would cause diabetes mellitus. On the contrary we have found that all authorities are positive as to the desirability of these sugars as human foods. Their commendation of the Bureau's work on the sugars, whenever they have. had occasion to comment, has been unstinted.

   This investigation into the realms of publichealth made by the Bureau of Standards, at the request of the Committee on Interstateand Foreign Commerce was due to a statement I made before the Committee in regardto the undesirability of increasing the amount of prechewed and predigested foodsin the American dietary.

   On page 113 of the hearings I said:

   Now let me give you just a few more words about another feature of injury. You understand that we eat starch and fruit sugars. We digest those. If the sucrose has not been digested we digest it. If the starch has not been digested we digest it, with the functions which we have achieved in this life, and then the sugar enters the blood stream. Now what becomes of the levulose? We never find levulose in the blood stream. We find only dextrose. The sugar that is in the blood and goes to the tissnes and there is burned is always dextrose, it is never levulose. I wish I knew what became of levulose. I do not; but it is possible that there may be an enzyme, a digestive enzyme, that converts levulose into dextrose. Suppose you have too much starch and too much sugar. You cannot burn it all at once. It is converted into an inert substance called glycogen and is stored up in this condition in the liver and in the tissues. The burning of the sugar in the blood is activated by the pancreas. Now if we flood our stomachs with dextrose, then we will need half a dozen artificial pancreases to take care of it, and there is the real danger, the threatening danger, as every wise physiologist will tell you, from that source. So that both by reason of paralysis of our digestive apparatus through lack of functioning that is a threat in itself, and by reason of the increase of the amount of dextrose which we ingest far above what we need we endanger our health in the most serious way. So that I voice now, and with all the emphasis I can put on it, my disagreement with every other person, except Dr. Menges, who has testified here, and it has been unanimous almost, who has said that this predigested and prechewed dextrose is harmless. I deny it and I think I have most scientific grounds to convince you, gentlemen, that it is not a harmless substance. In closing, Mr. Chairman, I want to say that I labored for 22 years before I saw the fruits of my labors in the Food and Drugs Act. I did not give myself the name ' but I am universally acclaimed as the father of the Food and Drugs Act, as I am universally acclaimed as the father of the Beet Sugar Industry. I see both of my children threatened, and I have a parental love. Now I have lived long enough to see my two alleged children grow up almost to their majority. Twenty years old they are. I do not want to live long enough to see them crucified."

 

INJURY TO HEALTH

   The activities of the Bureau of Standards insecuring expressions from various eminent medical authorities to the effect thatlevulose and dextrose as found in honey and in invert sugar are not prejudicial tohealth was a work of supererogation. I can not find in any of the hearings beforethe committee, or otherwise, that any such question was under consideration. Evidentlythe purpose of this investigation by the Bureau of Standards into the region of healthwas to counteract the statements I made before the committee that predigested starch(glucose), in such quantities as was suggested by the Bureau of Standards, was areal threat to health.

   I desire to refer to page 135 of the hearingson Interstate and Foreign Commerce on H. R. No. 39.

   MR. HOCH: "Are you familiar with the quotations that Mr.Cole makes from medical authorities?"

   DR. WILEY: "Certainly, I am. I do not deny the virtue ofdextrose as a medicine for any man who cannot digest his own food. It is a valuableremedy; for use in a hospital. I should hate to see dextrose moved out of the hospital,because people in the hospital usually have poor digestive faculties and need bloodsugar."

   MR. HOCH: "If corn sugar should be used generally throughoutthe country instead of cane sugar or beet sugar what would be the effect upon thehealth of the country?."

   DR. WILEY: "I have no quarrel for use of dextrose in hospitals,and if you should use dextrose in place of sugar that would be all right as to foodbut all wrong as to conservation of natural digestion."

   I quote here two statements, one from a physiologicchemist and one from a celebrated physician. Dr. Albert P. Mathews, Professor ofPhysiological Chemistry, University of Cincinnati, under date of Jan. 11, 1927 says:

   "As regards the effect of lack of use of our digestive apparatus by eating predigested food, I dare say the point you make is correct. It seems to be the general experience throughout the animal kingdom that the use of an organ increases its efficiency and keeps its health. What you say as to the quantity of this new sugar which would probably be consumed staggers me, but it is true that it can't be told by its appearance from a good grade of granulated sugar, and if it is cheaper I have no doubt it would drive the other out of the market, which would be a great calamity."

   The other authority, the eminent physician, isDr. E. L. Fiske, Director of the Life Extension Institute of New York. Writing underdate of Jan. 21, 1927, he says:

   "I concur in your views that it is unwise to make any change in the present law requiring that dextrose should be so labeled. While it is quite true that dextrose is just as available a fuel as sucrose, indeed more available because of the fact that the action of digestive enzymes is not required, I feel that the present consumption of sugar is far beyond the physiological needs of the population and tends to narrow the diet. I believe that food sugars should be drawn from natural sugars, such as fruit sugars and sucrose. Statistics would indicate that diabetes is increasing in this country and I can see some point in your caution that the use of a predigested sugar may in itself not be in the interest of public health. In regard to no other food is predigestion looked upon as a physiological advantage, but rather the contrary, except in the emergencies of illness."

   These opinions of these two eminent experts wouldbe supported by every competent physiologist and dietitian in the country not underthe influence of the Bureau of Standards and the Corn Products, Company. Predigestionof our foods to the extent indicated would tend to undermine and destroy public health.

   In regard to the quantity of sugar I quoted toDr. Mathews the statements before the committee that if this bill (39 H. R.) shouldpass, permitting dextrose to be used in food. products without notice, as much astwo billion pounds would enter into the stomachs of the American public annually.In a book entitled "What Price Progress?" by Hugh Farrel, page 183, referenceis made to the work of the Bureau of Standards and of the Corn Products RefiningCompany, stressing somewhat gingerly the importance of "If."

   "Did you ever think about the word "if" as a shock absorber? Probably not. "If" is usually used as a license for loose talk. If I couldn't use "if" in telling you about the probable effects of recent scientific research on the sugar industry, I would keep quiet, I wouldn't say anything. I'm not timid, not to speak of, but I wouldn't like to. assume the responsibility for a bald statement that researches of chemists in the employ of the Bureau of Standards and of the Corn Products Refining Company meant the beginning of the end of the cane and beet sugar industries, I wouldn't like to make that a flat-footed statement even though it might be and probably would be true."

   This enthusiastic follower of the Bureau of Standardsmakes the Bureau's modest estimate of 2,000,000,000 pounds look like the prognosisof a piker, by predicting a possible 40,000,000,000 crop.

   It is of interest to know that while the CornProducts Company was perfectly satisfied to leave its case with the Bureau of Standards,it was in deep sympathy with this measure. In the American Food Journal ofJanuary 1927, Page 24, is an article entitled "Some Facts About Corn Sugar,"by W. R. Cathcart of the Corn Products Refining Company, New York City. In this articleMr. Cathcart says:

   Of course the production of dextrose in commercial quantities did not remain hidden under the bushel. Corn sugar soon figured conspicuously in the public press, particularly in papers circulating in the corn growing, states, and dextrose entered the political arena. It was clear that an increased market for corn sugar meant an increased market for corn. The movement for the relief of the corn grower was strong in the corn growing states and several measures were introduced into Congress to meet the situation. Identical bills were introduced by Senator Cummins and Congressman Cole to amend the Pure Food Act so that a product could not be deemed misbranded or adulterated if it contained corn sugar. Hearings before the House Committee developed opposition on the part of the Department of Agriculture and Dr. Harvey W. Wiley, former Chief of the Bureau of Chemistry. It was denied by Dr. Wiley that dextrose is a wholesome product. * * * The Corn Products Company is a strong supporter of the Pure Food Law and has no desire to change from this position. Speaking as the representative of that industry, we intend to work in harmony with the constituted authorities and obey the prescribed regulations. We believe in hard common sense. We will continue to present arguments which we know to be economically and scientifically sound. We are confident that eventually reason and well established facts will overcome fanaticism and misstatement."

   The persons who manufacture commercial glucoseand commercial dextrose may not engage in adulterating foods therewith, but theydo furnish the raw materials which adulterators use. The predecessor of the CornProducts Company manufactured "Flourine" which was used to adulterate wheatflour. To correct this abuse it was necessary for Congress to pass the mixed flouract. This effectually stopped the use of "flourine" in wheat flour. Itwas the Corn Products Company that secured the change of label for one of its products,namely glucose, to "corn sugar," a clear violation of the food law. Thenatural sugar of corn, both in the stalk and in the ear, is sucrose and the law forbidscalling any other object or product by the same name as one already established.The Bureau of Standards also referred to dextrose as the ideal filler. To a foodadulterator the ideal filler is a cheaper substance which he can substitute for adearer substance. Mr. Cathcart's statement that the Corn Products Company does notdesire to misbrand or adulterate any product is hardly borne out by well known facts.Glucose and its near relations have been, are and will continue to be the championadulterants.

 

FINAL DISPOSITION OF THE SO-CALLED CORN SUGAR BILL

   The committee on Interstate and Foreign Commercerejected the Senate bill which would open all foods indiscriminately for the useof dextrose without limit and without notice to the purchaser. The committee reportedthe bill in which the permission to use dextrose in this way was limited to frozenproducts, such as ice cream, and to bakers' products and meat products. This billwas approved by the House of Representatives but only with a very small majority.The opposition to it had grown to enormous proportions.

   . The bill, as it passed the House, was enteredon the Senate calendar and it was understood that when it was called up the Senatewould not insist upon its own measure, but would be content to adopt the measureas it passed the House. It was called up on the 2nd of July, 1926, just two or threedays before both houses of Congress had voted to adjourn. Unless it could be actedupon on this occasion there would be no additional time in which it could be consideredby the Senate.

   Senator Neely of West Virginia had become convincedthat this was a vicious measure. He felt also that if it came to a vote the Senate,having already passed a more drastic bill, would probably concur in the bill as modifiedby the House. He therefore determined to defeat the measure by a lone filibuster.He secured the floor of the Senate and openly announced his determination to holdit until the hour at which the bill could be considered had passed. He held in hishand A copy of Good Housekeeping, and read from time to time paragraphs therefrom,showing the enormity of the crime intended. By that time, however, a large numberof Senators had seen the error of their way and expressed their sympathy with SenatorNeely who was trying to prevent a national crime.

   I addressed to Senator Neely after his successfulfilibuster the following letter:

   "The country owes you a vote of thanks for your heroic and successful endeavor yesterday to block the approval of the so-called 'Corn-Sugar' Bill. * * *

   "As determined by Dr. C. A. Browne, the sweetening power of corn sugar is only 50% of that of sucrose. It is much more insoluble. It leaves a very disagreeable, bitter after-taste. To foist this sugar upon the American public without knowledge is a crime of the deepest dye. I sincerely hope you will be on your guard if any subsequent attempt is made to rush this legislation through the Senate.

   To this letter Senator Neely, on the 3rd of July,replied as follows:

   "I regret to confess there are no words in my vocabulary sufficiently vigoious to convey to your mind my sincere appreciation of your more than gracious letter of the second day of July. Frankly, whatever service I have rendered the country's consumers of sweetened food products, I have been able to perform solely by virtue of the information contained in your illuminating article which recently appeared in Good Housekeeping.

   "Sincerely hoping that the public may be thoroughly informed as to the menace of the pending legislation on the subject of corn sugar before Congress reconvenes in December, I am, with the best of wishes and the kindest of regards, always,

   Faithfully yours,
      (Signed) M. M. Neely."

   On December 16th, 1926, I wrote Senator Neelyas follows:

   "I am writing to ask if there is any immediate prospect of the so-called Corn Sugar Bill being taken from the calendar and considered by the Senate? I am preparing a document which I wish to submit to each member of the Senate when it is likely that such consideration will take place. Your work last summer in blocking this legislation was most notable and successful. I hope you have not lost any of your enthusiasm in this case and will be on guard, with the other Senators who stood by you on that occasion, to prevent any mutilation of our food law."

   To this letter Senator Neely on the same dayreplied as follows:

   'Replying to your very acceptable letter of the sixteenth day of December, I regret to inform you that it is quite probable that the so-called 'Corn-Sugar Bill' will-be 'called up' at almost any hour of any day.

   "Yesterday, a Senator from a western state inquired of me particularly as to the possibility of my discontinuing my opposition to this measure. I told him, and I now assure you, that I purpose to oppose the passage of the Corn Sugar Bill to the limit of my capacity as long as I continue a member of the Senate.

   "In view of the article on the subject which appeared in the last number of 'Good Housekeeping,' I feel impelled to tell you that I have absolutely no selfish interest of any kind or character in seeking to defeat this legislation. I am prompted to the course I have adopted by a single motive, and that motive is to preserve, protect, and defend the Pure Food Law and thereby protect the health of the people of the country."

   On December 17th, 1926, 1 wrote Senator Neelyas follows:

   "I hope, even if Congress should pass this measure, that the President will refuse to sign it. I feel certain President Coolidge could not complacently approve of the perpetration of such a huge.fraud upon the American public. It means fraud in every household in this broad land. I sincerely hope you may be able again to block this vicious legislation, either by force of reason, or, if necessary, by filibuster.

   Under date of December 18, 1926, Senator Neelywrote me as follows:

   "Yesterday Senator Ashurst and I conferred at considerable length about the subject matter of your communication, and rededicated ourselves to the task of preventing the enactment of a measure (despite the good faith of its proponents) which he and I believe thoroughly vicious."

   There was organized, therefore, a number of Senatorsinto a committee who promised to guard carefully the rights of the people by objectingto any unanimous consideration of taking the bill from its regular place on the Calendar.This was particularly true in the last days of, the session when night sessions werecalled to consider bills to which no objection was made. I wrote Senator Neely andasked him to organize a watch-meeting to see that at least one Senator was alwayspresent who would object to taking the so-called. Corn Sugar Bill from its placeon the. calendar, by unanimous consent. In this way all legislation of this kindwas blocked until the 69th Congress expired at noon on the 4th day of March,1927.

   All pending bills are now dead. If the 70th Congressundertakes to enact a measure of this kind, a powerfully organized minority at least,will be ready to interpose all required parliamentary obstacles to such legislation.It is quite certain, therefore, that any other bill of a similar character wouldhave a very rugged future before it, and it is almost morally certain that no suchlegislation can now be enacted.

ALWAYS THE PROBLEM OF AGRICULTURE

ESTABLISHMENT OF THE DEPARTMENT OF AGRICULTURE

   "There shall be at the seat of Government a Department of Agriculture, the general design and duties of which shall be to acquire and to diffuse among the people of the United States useful information on subjects connected with agriculture, in the most general and comprehensive sense of that word, and to procure, propagate, and distribute among the people new and valuable seeds and plants"--Act May 15,1862.

   From the very beginning of the investigationsof sugar they were given by Congress to the Bureau of Chemistry, Department of Agriculture.Dr. MacMurtrie in the early 70's, first as an assistant and then as Chief of theBureau, worked upon these problems and particularly carried on investigations lookingto the establishment of the beet sugar industry. His successor, Dr. Collier, my immediatepredecessor, made extensive investigations as to the possibility of using sorghumas the principal source of sugar.

   When I was put in charge of the chemical workin 1883 it was with the distinct understanding that the sorghum investigations wouldbe completed. To that end, in collaboration with A. A. Denton, the first study ofthe possibility of increasing the content of sugar and the percentage of purity inthe sorghum plant was undertaken and continued for eight years. Varieties of sorghumwere developed showing an average content of 4% increase in sugar. All of these investigationshave been published in numerous bulletins of the Bureau of Chemistry. My successor,Dr. Alsberg, continued these investigations. His successor, Dr. C. A. Browne, haskept the work up. Thus from 1870 to 1927, a period of 57 years, Congress has continuouslyprovided the funds for carrying on these investigations in the Bureau of Chemistry.

   The appropriation for the fiscal year ended June30, 1926, provided funds:

   "To investigate the chemical composition of sugar and starch-producing plants in the United States and their possessions.

   For the fiscal year ended June 30, 1928, theappropriation bill for the Department of Agriculture contains the following authorization:

   "For the investigation and development of methods for the manufacture of table syrup and sugar by utilization of new agricultural sources."

   If this means anything, it means that levuloseis one of the new sources of sugar production, which Congress in its regular sessioncommitted to the new Bureau of Chemistry and Soils. Does not then this problem byright of possession and by a continued recognition by Congress for 57 years entitlethe Bureau of Chemistry to carry on all investigations of this kind? By right ofpossession, as well as by ethical considerations. that rule ought not to be transgressed.

   A careful survey of the original act establishingthe Bureau of Standards fails even to give a hint that any investigations of thiskind should be assigned to any other department than that of agriculture. The investigationswhich led to the establishment of the beet sugar industry were given exclusivelyto the Department of Agriculture, as the original act provided. There is one point,however, in which perhaps it is wise to permit the investigations of levulose throughanother department. The Bureau of Standards has proclaimed that when levulose underits initiative is made as cheaply, as dextrose, then there is no longer any reasonfor the existence of either the beet sugar or the cane sugar industries. Of courseCongress never intended that the Department of Agriculture should be used for thedestruction of established agricultural industries. So, naturally, investigationswhich would destroy these industries would not be germane to the fundamental ideaaround which the Department of Agriculture has been built. It does seem a littlebit strange that Congress which is now bending all its energies to do something forthe relief of the farmer should give to the Bureau of Standards a large sum of moneyfor the purpose of endeavoring to destroy some of our most profitable agriculturalindustries.

 

DEVELOPMENT OF DEXTROSE AND LEVULOSE INDUSTRIES

   Speaking before the committee in favor of a defieiencyappropriation for the development of the levulose industries, the Director of theBureau of Standards gave glowing accounts of what could be done with the Jerusalemartichoke. In answer to a question of the chairman as to the difficulty of gatheringthe wild artichoke economically, it was stated that it would be cultivated, and heillustrated the improvement in the content of sugar, that is levulose, in the artichokefrom what had been done in breeding beets. He called attention to the fact that thepercentage of sugar in the wild beet had been, by careful breeding, more than doubled.

   The chairman asked Dr. Burgess (page 279 of thehearings),

   "Is any of this sugar which you have shown it is possible to produce used anywhere?"

   DR. BURGESS: "Not yet. It has only been actually produced in sugar form in our laboratory. The trick was to get it out of water solution."

   The director enlarged on the problems they wereabout to undertake (page 288 of the hearings.)

   "The production of sugar is one of the world's largest industries. A new industry which threatens to modify this production is a thing of first importance to mankind. The Bureau of Standards is considering not merely the question of modification, but the possibility to a great extent of replacement of ordinary sugar (sucrose) by levalose.

   It is no wonder, therefore, that the $50,000asked for were given to the Bureau of Standards, which is a branch of the Departmentof Commerce, and not to the Department of Agriculture, which is immensely interestedin the maintenance of both the cane and the sugar beet industries. The purpose ofthe Bureau of Standards is to abolish both of these industries.

   There are many serious difficulties in the wayof developing an economical levulose industry. It is stated by the Bureau of Standardsthat the present price of levulose is approximately $100 a pound. They proposed tomake it as cheaply as they have been able to manufacture dextrose. The director promisedthe committee that the experimental work would be finished in.1927. This time hascome and gone but no publication of levulose at 5 or 2 cents. a pound has yet beenissued. The wisdom of the proverb, as it is read in Boston to the effect that itis undesirable to enumerate the number of progeny arising from the incubation ofthe ova of gallinaceous birds until the process is entirely completed, is a matterwhich the Bureau of Standards should take under careful consideration. It is quiteevident that if this policy of the Standards Bureau be carried out any further theoriginal intent of Congress will be entirely lost, sight of. Evidently there is nothinggoing on in this world which, following out the plan already adopted, may not comewithin the limits of investigation of this all embracing Bureau. Meanwhile, the workwhich it was intended to do must of necessity be neglected in order to gather inall these miscellaneous activities which plainly are foreign to the purpose of theoriginal act. An unbiased study of these activities magnifies to colossal proportionsthe dangers which Professor Rowland pointed out.

 

NO DELAY IN STARTING WHAT ROWLAND FEARED

   From the first the Bureau of Standards immediatelybegan a system of accretion from all sources, which it has practiced ever since.The following year, 1903, it was transferred to the Depaxtment of Commerce. It tookover at once the supervision of polarizing imported sugars, which for many yearshad been a function of the Bureau of Chemistry. This was its first offense of scientificethics, the cardinal canon of which is, "Don't butt into any problem alreadyin charge of some one else. This was followed by the invasion of fields fully occupiedby the Bureau of Chemistry in studies of leather, paper, farm. wastes, and otherstrictly agricultural problems. This was followed by occupying the field of specificationsfor civil and military supplies, establishing new definitions for Castile soaps,and finally an assault on the Food and Drugs Act.

 

TRADE PRACTICES

   The encroachments of trade practices on the enforcementof the Food Law will be shown in the last chapter.

   I refer solely to the illegal and unethical practices.They are also likely to be dominant in the activities of the Bureau of Standardsin the case of scientific associates. It is even possible that activities of theFood and Drugs Act, or the investigations of the Federal Trade Commission may beinvoked to restrict the scientific investigations of the Bureau of Standards. Oneof the dangers which attend the exploitation of trade practices is illustrated bythe attitude of the Bureau of Standards in regard to Castile soap. The methods employedby the manufacturers of so-called Castile soaps are thoroughly outlined in CircularNo. 62 of the Bureau of Standards devoted to this subject. The trade practices areset out in detail. Brands of Castile soap are made which are entirely foreign tothe original idea universally accepted of this article. In the data below it willbe noticed that the principal chemist who has been consulted in this matter, andwhose suggestions have appaxently been adopted, is the chemist of a firm making so-calledCastile soaps of different kinds without any olive oil whatever entering into theircomposition.

   The Food and Drugs Act was passed for the purposeof correcting trade practices. Now the efforts of the Bureau of Standards seem tobe directed toward establishing them as ethical processes. This, of course, meansgreat danger to the consuming public. A great government organization ought not toaid fraudulent trade practices and try to foist them upon the public, even by mentioningthem approvingly.

   " Castile Soap was originally made from low-grade olive oils. The name now represents a type of soap, the term 'castile' being applied to a soap intended for toilet or household use, sold usually in large, unwrapped, unperfumed bars, which are cut up when sold or when used. It is often drawn directly from the kettle without 'crutching,' but is sometimes crutched a little or even enough to make it float and is sometimes milled. It is also sold. in small bars both wrapped and unwrapped. The type is not one easily defined, so now when made from olive oil it is invariably sold as olive-oil castile. There are soaps made entirely from cocoanut, oil which are sold as cocoanut castiles or hardwater castiles. Many other castiles are made from a mixture of cocoanut oil and tallow." (Dept. of Commerce--Circular of the Bureau of Standards, No. 62--SOAP--p. 9, Jan. 24, 1923.

   NOTE: Previous Edition of Standard Circular No.62 (Second Edition June 17, 1919, p. 7) reads as follows:

   'Castile soap, otherwise known as Marseilles or Venetian soap, is prepared from low-grade olive oil.

   A letter from Director of the Bureau of Standards,dated September 22, 1924, explains the change in language note above:

   "As stated in our letter of Sept ember 9, the statements made in paragraph (c) page 9, of the third edition of our circular No. 62 were intended to give information as to conditions as they are at the present time rather than as to what they should be.

   "The Bureau has not issued a specification or set up a standard for Castile Soap, nor has the bureau intentionally, in a passive way or otherwise, injured any existing standard or trade practice regarding this commodity. Our sole aim in circular 62 was to state the facts as we found them." * * * (Signed F. C. Brown, Acting Director; George K. Burgess, Director.)

   A further explanation by Dr. Burgess, Director,in letter to T. R. Lockwood, March 27, 1926, is as follows:

   " The statements were approved by the Soap Committee of the Soap Section of the American Specialty Manufacturers Association, as indicated by the following quotation from Circular No. 62 (page 4):

   'The Bureau has received much valuable assistance in the preparation of this circular from the Soap Committee .of the Soap Section of the American Specialty Manufacturers Association, and especially Messrs. A. Campbell and C. P. Long, chairman and secretary of the soap and soap products committee of the American Chemical Society, for which it wishes to express its grateful appreciation.

   Further explained by Dr. Percy H. Walker, U.S. !Bureau of Standards, in his testimony at Trade Practice Submittal at the officeof Federal Trade Commission, March 30, 1926 (Transcript, Page 31).

   "The gentleman sitting near me has asked me to read from a circular of the Bureau of Standards. I may preface this by saying that THIS IS A PIECE OF INFORMATION FOR WHICH WE ARE INDEBTED TO THE SOAP TRADE. I SUBMIT IT AS A PIECE OF INFORMATION. IT IS AS FOLLOWS:" (Then follows the quotation from Circular No. 62, 1923, Ed. p. 9, quoted above.)

   C. P. Long, referred to as a source of informationfor Bureau of Standards Circular No. 62, is, or was, Chemical director of the GlobeSoap Company, Cincinnati, which manufactured or manufactures four brands of "Castile"referred to as "Castile in combination," namely, GLOBE CASTILE, GLOBE LIONCASTILE, GLOBE WHITE CASTILE, and LION CASTILE.

   The statement above that true Castile is "invariablysold as olive-oil Castile" is a gross error. This statement is undoubtedly dueto the regrettable mistake of the revisers of the tenth decennial pharmacopoeia,for the first time in its history of defining Castile soap as olive oil Castile.This gives no warrant for calling other soaps, not made wholly from olive oil, Castile.

 

DUPLICATION OF WORK OF BUREAU OF CHEMISTRY
BY THE BUREAU OF STANDARDS

   The work of the Bureau of Chemistry on tanningmaterials, hides, tanning, and leather which is conducted under the appropriationsfor agricultural investigations, has been and is being duplicated in part by theBureau of Standards of the Department of Commerce. Work along those lines has beendone in the Department of Agriculture almost since its organization in 1862, andwas specifically provided for in 1904, 23 years ago. Investigations on leather, accordingto the annual reports of the Bureau of Standards, were inaugurated as a new lineof work in that Bureau in 1917, but 12 years ago. The attention of the Bureau ofStandards has been called to this duplication which several times has been the subjectof conference between the two Bureaus. Nevertheless the more recent annual reportsof the Bureau of Standards continue to outline a program on leather which involvesa striking and extensive duplication of lines of work plainly within the scope ofthe following long established and published projects of the Bureau of Chemistry:

   Investigation of the Wearing Quality of Sole leather.

   Investigation of the Composition of Leather and Tanning and Finishing Materials.

   Deterioration of Upper, Bookbinding and Other Light Leathers.

   Tanning Sole and Harness Leather on a Small Scale.

   These projects were known to the Bureau of Standardsnot alone through annual reports, program of work, and other publications, but alsothrough the fact that before the Bureau of Standards had organized and equipped itslaboratories the courtesy of the laboratory of the Bureau of Chemistry was extendedto them and its force was temporarily housed in the laboratories devoted to the leather,tanning and related work of the Bureau of Chemistry. Nevertheless, the Bureau ofStandards later entered these fields despite this knowledge and ignored the usualcustoms of scientific bureaus to referring inquiries and work within the provinceof other bureaus to those bureaus. In other words, the Bureau of Standards has, withoutdiscussing the subject with the Bureau of Chemistry, duplicated and started to buildup on this work, knowing that it was already organized and had been in operationfor some time in the Department of Agriculture.

   Moreover, with the view to eliminate the duplicationswhich had become intolerable and indefensible, the Bureau of Chemistry, in July,1914, transferred to the Bureau of Standards and itself discontinued the work ithad been doing for many years, and before the existence of the Bureau of Standards,on paints, varnishes, inks, oil, and miscellaneous supplies for the Government departmentswith the distinct verbal understanding between Dr. Alsberg, then Chief of the Bureauof Chemistry, and Dr. Stratton that work in certain fields, among them leather andtanning, should remain in the Bureau of Chemistry.

   Authority for the Work. Authority for the workon tanning materials, hides, tanning and leather, which the Department of Agriculturehas been doing, is contained:

   (a) In the organic act creating the Department of Agriculture, which act defines its duties as "to acquire and to diffuse among the people of the United States useful information on subjects connected with agriculture in the most general and comprehensive sense of that word,

   (b) In subsequent annual appropriations made for work on these and related subjects after statements by the several bureau chiefs before Congressional committees, describing the work being done;

   (c) In a special order, by the Secretary of Agriculture, on July 1, 1904, as follows:

   "There is hereby established in the Bureau of Chemistry a laboratory to be known as the Leather and Paper Laboratory to which are to be committed the analyses and investigations relating to the following subjects:

   "Investigations of tannins and tanning materials and their effects upon the strength and properties of leather with a view to promoting the agricultural industries relating to the production of tannins and tanning materials and leather of a high quality.

   "All technical problems of a chemical nature relating to the production of tannins and tanning products and of leathers.

   "All technical problems of a chemical nature relating to the production of leather, * * *."

         (Signed) James Wilson, Secretary.

   The substance of this order has been made publicin Bureau of Chemistry Circular No. 14, 1904, on " The Organization of the Bureauof Chemistry."

   History of the Work. Work on tanning materials,hides, tanning and leather, began in the Deparment of Agriculture in the early daysof its existence, and has been described in the various annual reports as far backas 1872. The nature and results of this work were laid before Congress not only inthese annual reports but in the hearings before the appropriation committees. Thiswork had progressed so that by 1900, that is before the establishment of the Bureauof Standards, it was definitely organized and a cooperative basis between the thenDivisions of Forestry and of Chemistry. The work on all these lines has continueduninterruptedly. Since the specific organization of this work the Bureau of Chemistryhas developed an experienced and informed personnel which has done much valuablework in the conservation and development of raw materials; in the development andimprovement of methods of examination to determine quality: on the care and serviceabilityof leather; and in an advisory capacity to the Government, the public and the industry,the results being published from time to time either as Government bulletins or inscientific journals until the publications now number in all more than eighty-five.

   It has been the claim of the Bureau of Standardsthat all standardization work and even all scientific work of the Federal Governmentshould be done there. Obviously this Teutonic, imperialistic viewpoint can not beadmitted by any of the Federal Departments, first because it is not fair, economicalor efficient, and second, because such has never been the intent nor practice ingovernment work. It would seem clear that from any reasonable point of view eachDepartment should, so far as feasible, standardize those materials which fall withinits functions, and this has been the practice until the Bureau of Standards has constantlyencroached upon the fields of other bureaus of the several departments.

   This ruthless and expensive duplication of fieldsof work has actually, as is to be expected, resulted in needless duplication on specificproblems, as strikingly shown by the duplication of the work done by the Bureau ofChemistry on the wearing quality of shoe leather, published as Department Bulletin1168 in 1923, which work was duplicated even to the conclusions and published bythe Bureau of Standards in 1925 as Technological Paper 286, "Comparative Durabilityof Vegetable and Chrome Sole Leathers."

   The last and most astonishing encroachment ofthe Bureau of Standards on the functions of the Department of Agriculture is foundin the appropriation to investigate agricultural wastes. These studies heretoforehave been almost continuously conducted by the Bureau of Chemistry. It will resultin useless repetition of many studies in the past thirty years looking to utilizationof cornstalks, salvaged fruits and watermelons, waste of canning factories, unmerchantablemarketable products, and various other agricultural wastes. These may not rise tothe dignity of crimes but they afford striking instances of bad ethics.

 

RESEARCH ASSOCIATES

   The most objectional feature of the activitiesof the Bureau of Standards, aside from the attempt to mutilate the Food Law, is seenin employment of research assistants. This activity seems to fly directly in theface of the statements of President Coolidge, at the beginning of this chapter.

   In Circular No. 296, Bureau of Standards, Page3, is the following statement:

   "Devices developed during the research are for the free use of the industry, the government, and the public and will not be patented unless the patents are dedicated free to such use."

   Immediately following this statement is anotherto this effect:

   "The work of a research associate is one of peculiar trust, often confidential, on problems of concern to an entire industry."

   It is thus seen that much of the research workdone may be of this confidential character and if so would not be published in anymanner to, prejudice the interest of the industry concerned. While associate scientistsconform to government regulations in regard to conduct, hours of work and leave ofabsence, they are paid by the industries interested in their work. I can find nostatement in Bulletin 296 as to the total amount of compensation of these workers.Correspondence with the industries is sent free of postage, and all facilities ofevery description for the work are provided by government appropriation. No estimatesof the total value of these contributions by the government are given. The totalnumber of research associates in 1926 is given at 62. On page 8 the amounts savedby the researches of the Bureau in many instances are stated. From study of brakeliningmethods fifteen million dollars, from tire studies forty million dollars, and frommotor-fuel investigations one hundred million dollars are saved annually. With suchsavings as these the pitifully meager $2,000,000 appropriation granted to the Bureauof Standards proves Uncle Sam a. piratical piker.

   The limit of activities seems. to have been reachedin the following case copied from the Washington Star, April 4, 1927. It isan illustration of one of the experiments of the Bureau of Standards with a machineintended to measure the shock absorbed by the driver of an automobile. The descriptionis as follows:

   "To find out how much shock the driver of an automobile absorbs through the bumping and rolling of his car on the road is the purpose of this delicate measuring device designed by the Bureau of Standards. The information will be given to manufacturers for its bearing on driving efficiency.

   The following pertinent suggestions find an appropriateplace here:

   From "YOUR MONEY'S WORTH," by StuartChase and F. J. Schlink, published by The Macmillan Company, comments on the Bureauof Standards.

BUREAU OF STANDARDS

   The Bureau of Standards was set up by legislative enactment in 1901. It was placed under the control of the Secretary of Commerce and Labor (now Commerce), but has always functioned with a considerable degree of independence. Its director is appointed by the President, upon nomination by the Secretary of Commerce; its staff is under civil service regulations and protected to an almost unique degree from political pressure.

   Its original duties were simple--the erection of suitable scientific standards for weights and measures. Page 198.

   Gradually the Bureau began to take on other duties. Its scientific staff provided a nucleus for further investigations on the Government's behalf, (and later on behalf of industry at large.) On account of its excellent equipment and expert staff, other departments got into the habit of referring dubious materials and devices to it for analysis and test. Page 198.

   Which brings us to ask a blunt and necessary question. Why does a service run by taxpayers' money refuse information covering competitive products--to that same taxpayer? The answer is obvious but not altogether convincing. It is argued that the general release of test results covering competitive products by the name of maker will promote commercial injustice. Page 203.

   In the long run would not the great savings which the Government achieves through the Bureau's work be multiplied a hundred fold if all could take advantage of its findings-both ultimate consumer, manufacturer and dealer? Page 204.

   Furthermore there is no reason why the citizens who pay for the Bureau and the other Government laboratories should not have the right to initiate a series of tests when the field is important and the known information either inadequate or non-existent. Manufacturers and promoters can now secure all the results of competitive tests (maker's names deleted); and they have initiated thousands of new tests which the Bureau has conducted often without cost to themselves. Has not the ultimate consumer an equal right? Page 204.

   The Bureau of Standards meanwhile has ruled that proper coöperation of the federal authorities with state and other governmental bodies, justifies the release to the latter of technical information. It is willing to approve or condemn commercial products by name in a table giving comparative quality or performance. Local governments can thus secure what the taxpayer can not. If any state or city government wishes to know what is the best typewriter ribbon or lubricating oil to buy, its officers need only write the Bureau to learn the detailed results of tests that have been made upon the product before its acceptance or rejection for Government purchase under specification. If the article has not already been tested by the Bureau, it is likely that the needed analysis can be arranged for without charge. Page 216.

   It is clear from the foregoing that a real start in the testing technique has been made in American Government--federal, state and municipal. There is the beginning of solid ground Under our feet. It is equally clear that an .enormous amount remains to be done, both in the direction of coördinating and making available the results of present activities, and in the development of new activities. Uniform state laws and city ordinances would seem to be essential next steps. Another is the release to taxpayers of the invaluable information of the Bureau of Standards, and of the other federal, state and municipal bureaus. Page 217.

   During 1926 sixty-two associates representingvarious industries were stationed at the Bureau of Standards. The Portland CementAssociation maintains a corps of eight chemists and physicists at the Bureau. TheNatural Terra Cotta Society has two, the National Dyers and Cleaners has three, theSociety of Automotive Engineers four. Circular, No. 296, describes in part the giganticassociation of the Bureau with big business. Such intimate union as this justly meritsthe condemnation which President Coolidge has pronounced against collaboration ofgovernment with business.

 

AUTHORITY FOR THE COLLABORATION OF REPRESENTATIVES
OF BIG BUSINESS WITH THE BUREAU OF STANDARDS

   In a circular of the Bureau of Standards, No.296, which describes the activities of the research associates of that Bureau, onpage 1 is given the authority for such collaboration.

   On April 12, 1892, Congress passed a joint resolutionfor the promotion of learning in the City of Washington, for the express pupose ofopening Government scientific exhibits and collections to students of higher education.The joint resolution provided as follows:

   "Whereas, large collections illustrative of the various arts and sciences and facilitating literary and scientific research have been accumulated by the action of Congress through a series of years at the National Capital; and

   "Whereas it was the original purpose of the Government thereby to promote research and the diffusion of knowledge, and is now the settled policy and present practice of those charged with the care of these collections specially to encourage students who devote their time to the investigation and study of any branch of knowledge by allowing to them all proper use thereof; and

   "Whereas it is represented that the enumeration of these facilities and the formal statement of this policy win encourage the establishment and endowment of institutions of learning at the seat of Government, and promote the work of education by attracting students to avail themselves of the advantages aforesaid under the direction of competent instructors; Therefore,

   "Resolved, That the facilities for research and illustration in the following and any other governmen al collections now existing or hereafter to be established in the city of Washington for the promotion of knowledge shall be accessible, under such rules and restrictions as the officers in charge of each collection may prescribe, subject to such authority as is now or may hereafter be permitted by law, to the scientific investigators and to students of any institation of higher education now incorporated or hereafter to be incorporated under the laws of Congress or of the District of Columbia, to wit: 1. Of the Library of Congress. 2. Of the National Museum. 3. Of the Patent Office. 4. Of the Bureau of Education. 5. Of the Bureau of Ethnology. 6. Of the Army Medical Museum. 7. Of the Department of Agriculture. 8. Of the Fish Commission. 9. Of the Botanic Gardens. 10. Of the Coast and Geodetic Survey. 11. Of the Geological Survey. 12. Of the Naval Observatory. (Approved, April 12, 1892.) "

   It will be observed that this joint resolutionwas passed about ten years before the Bureau of Standards was established. In 1901another authority is quoted. It is entitled:

 

GOVERNMENT TO PROMOTE RESEARCH
AND ENCOURAGE STUDENTS

   This is found in a Deficiency Appropriation Billwhich became a law on March 3, 1901. The provisions of this bill are as follows:

   "That facilities for study and research in the Government departments, the Library of Congress, the National Museum, the Zoological Park, the Bureau of Ethnology, the Fish Commission, the Botanic Gardens, and similar institutions hereafter established shall be afforded to scientific investigators and to duly qualified individuals, students, and graduates of institutions of learning in the several States and Territories, as well as in the District of Columbia, under such rules and restrictions as the heads of the departments and bureaus mentioned may prescribe."

   This legislation also was enacted before theBureau of Standards was established. It provided facilities for study and researchalong the line of the joint resolution above mentioned. There is no indication ofany collaboration with big business of any kind but only with students who were seekingopportunity for education and research.

   On Page, 20 of Circular No. 296 it is stated,under the caption, 'Actions by Congress":

   "The full text of the two actions by which Congress opened the way for the admission of qualified individuals to the use of the research facilities of the National Bureau of Standards is given below."

   It seems rather strange that this statement shouldbe made by reason of the fact that there was no National Bureau of Standards in existenceat the time of either of these Congressional authorizations. It is plain that onlystudents of universities and higher institutions of learning were included in thisauthorization.

   That it should be the basis of linking up Governmentactivities with corporations who desire research for their own individual benefitsor that such activities as scientific associates could by any means be included ineither one of these enactments is not even to be inferred. It is a well known principleof nearly every kind of business that research is absolutely necessary to keep pacewith the progress of science. A business that does not conduct research is likelyto go upon the rocks. Those corporations which have the most extensive research laboratoriesare those that are making the most progress and securing the best results from theiractivities. In most instances these great corporations conduct their own researches.In some instances they appeal to such institutions as the Mellon Institute of theUniversity of Pittsburgh, or to such scientific institutions as the A. D. LittleCorporation of Cambridge, Mass. In all cases where new processes are devised andnew products perfected, the corporations protect themselves by letters patent. Inthe Mellon Institute, according to, the official report (1925) it is stated thatabout 300 patents on industrial procsses have been the result of their investigations.When we turn to the activities in the Bureau of Chemistry in which new discoveriesare patented for common benefit, we find that 81 patents have been taken out.

   The number of investigators and importance ofthe investigations at the Bureau of Standards almost equals those of the Mellon Instituteof the University of Pittsburgh.

   "At the close of the Institute's fiscal year on February 28, 1927, as shown in the accompanying chart, fifty-eight industrial fellowships were operating, employing one hundred and two research chemists and engineers. The sum of $598,493 was paid during the year in support of research in the Institute by the fellowship donors--an increase of $70,942 over the payments of the preceding year. The total amount of money appropriated by companies and associations to the Institute, for the sixteen years ended February 28, 1927, was $4,318,397, all of which was disbursed in sustaining fellowship research.

   "The extent and variety of the Institute's scientific investigations on behalf of industry are shown in the appended list of the industrial fellowships in operation during the entire fiscal year, February 28, 1926, to February 28, 1927. There were sixty-seven fellowships--twenty-two multiple fellowships and forty-five individual fellowships--on which 124. scientists and engineers were occupied in research.

   The Mellon Institute and the A. D. Little Corporationof Cambridge, Mass., are doing the same kind of work. as that conducted by the Bureauof standards and are in direct competition therewith. This is unfair competition.

   Apparently all of the expenses of the ScientificAssociates in the Bureau of Standards and in addition their postage are paid by thetax-payers of the United States.

   No statement is made of the amounts paid by theindustries to the sixty-two associates employed in the Bureau of Standards in 1926,nor of the number of experts belonging to the Bureau or cooperating with them. Ifthe industries paid the representatives $2,500 a year, their contribution amountedto $155,050 per annum.

SUMMARY

   While I have called attention to only a veryfew of the activities of the Bureau of Standards, and chiefly those that belong byall right and custom to the Department of Agriculture, at least I have shown theground work of the indictment against this Bureau. It has attempted to repeal someof the most important features of the Food and Drugs Act. It has claimed as its ownthe inventions of others. It has broken deeply into the activities already startedby the Bureau of Chemistry and some of the other Bureaus of the Department of Agriculture,violating the fundamental principle of ethical standards. The Bureau of Standardsshould violate no standards. It has undertaken collaboration with great industriesin such a way that the extent of its activities have not been disclosed, nor do weknow, from any reports that have come to my notice, just how great a contributionis made by these industries in the way of paying the salaries of the scientific associates.In this respect it is in competition with the Mellon Institute and other organizationsof a similar character specifically intended to conduct this research work in anopen and proper manner. The Mellon Institute has given information of the amountcontributed by those industries. I have not been able to discover any such informationin the reports of the Bureau of Standards.

   No kind of investigation seems to be foreignto the Bureau of Standards. It has departed so widely from its fundamental conceptionas to be no longer recognized chiefly for the purpose for which it was specificallydesigned, namely, the determination and preservation of all standards of measuresof all deseriptions for all legal and technical purposes. Either the original actestablishing the department of Agriculture should be repealed, or any further incursionsof the Bureau of Standards into the domain of Agriculture "in the most generaland comprehensive sense of that word," should cease.



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CHAPTER X

THE PASSING OF THE BUREAU OF CHEMISTRY

 

CHEMISTRY FIRST RECOGNIZED

   In the organic act establishing the Departmentof Agriculture in 1862, no scientific department was mentioned. The Commissionerevidently regarded chemistry as the dominant science in the promotion of agriculture.The first scientist appointed in the Department of Agriculture was the chemist, Prof.Charles Wetherell, of Philadelphia. The activities of the chemist were first designatedas the Division of Chemistry. At a latter date a more resounding title was adopted,namely, "Bureau." The term "Bureau" has since then been extendedas a name to many activities, not only in the Department of Agriculture but in allthe other departments and subdivisions of scientific research. The whole activitiesof the Government from the organizing point of view are now designated as "Bureaucracy."In the present agricultural appropriation bill, as passed by both houses of Congressand signed by the President, this original activity of the Department, viz., theBureau of Chemistry, has been eliminated. This was done without any action of Congress,except as found in the appropriation bill. The rule of. procedure forbids the inaugurationof new legislation in an appropriation bill. Unfortunately, when the bill was beforethe House of Representatives no one interposed a point of order on the abolitionof the Bureau of Chemistry. The Food and Drugs Act specifically charges the Bureauof Chemistry with its enforcement. The present appropriation bill, 1927-28, not onlydestroys the Bureau of Chemistry, but violates the law in transferring the activitiesof food administration to a new unit under the immediate supervision of the Secretaryof Agriculture.

   Naturally one of the great problems of chemistryin its application to agriculture is the study of the soil. The Bureau of Chemistrydid not neglect this primary activity. There was established in the Bureau the mostextensive soil investigation that had ever been attempted. The purpose of this investigationwas to determine the natural productivity of soils, gathered from all quarters, andkept under standard environment of light, moisture and temperature. Typical soilswere secured from the various states of the Union. There was added to this collectionsamples of the. celebrated field at Rothamsted, England, which had been cultivatedin wheat for nearly one hundred years without receiving any artifical fertilizerwhatever. In the midst of these investigations a new Bureau of Soils was createdin the Department of Agriculture, entirely distinct from the Bureau of Chemistry.At the demand of this new Bureau of Soils all activities of the Bureau of Chemistryin the progress of its investigations were ordered discontinued and the expensiveequipmeni was abandoned and destroyed. At the instigation of this new Bureau of Soils,publication of the data already obtained was denied.

   The small remnant of the Bureau of Chemistryafter its separation from the enforcement of the Food and Drugs Act, under this illegalaction, has been combined with the Bureau of Soils and has practically lost its identity.

   Chemists in particular in this country shouldbe inquisitive in regard to the enactment of such illegal provisions, demolishinga great Bureau fundamentally related to the greatest problems in Agricultural researchand public welfare. The handicap which the small remnant of the old Bureau will encounterwhen it is combined with the dominant Bureau of Soils, creates a doubt of the mostserious character as to its future prosperity. The theories on which the Bureau ofSoils has heretofore been conducted have never received the approbation of competentsoil chemists in this or in any other country. Among those may be mentioned threeof great renown, namely Professor Hilgard, of the University of California, ProfessorHopkins of the University of Illinois, both now passed to their reward, and Sir DanielHall of England, former Director of the famous Agricultural Experiment Station atRothamsted, and now attached to the. ministry of health. When changes of this stupendouscharacter can be made in a way which is thoroughly illegal and undesirable, it isa threat to the progress and welfare of chemistry in the whole country. In formerdays the Bureau of Chemistry was a power in the land. Beginning its activities in1863, in 1883 it led the long fight for the enactment of the Food and Drugs Bill,which was finally accomplished on the 30th of June, 1906. When this law went intoeffect on the first of January, 1907, the Bureau of Chemistry had already made amplepreparations for its enforcement. It had conducted a long series of experiments uponhealthy young men for the purpose of determining the effects of preservatives andcoloring matters in foods on health and digestion. It had secured from the Congressauthority to formulate food standards which came into play on the day the Act wasto be enforced.

   The Bureau of Chemistry started to enforce thisAct in the light of this preparation. Under the law the Bureau was the sole judge,in its capacity as grand juror, as to whether any sample of food or drugs was adulteratedor misbranded. Its decision was not final, except as to the bringing of an indictment.The final decision of all these points was placed by Congress, very properly in theFederal Courts, where it naturally belonged. Those who adulterated our foods anddrugs foresaw that if they could cripple the activities of the Bureau of Chemistry,they could save themselves from indictments. They proceeded along successful linesto effect this paralysis. The decisions of the Bureau in regard to adulterants andcoloring matters and in regard to proper names and labels were speedily overturnedcontrary to the provisions of the law. The Solicitor of the Department and the Secretarythereof joined in this destruction of the functions of the Bureau. These restrictionsand illegal limitations on the Bureau have never been removed and finally the Bureauitself was sacrificed, crucified and abolished.

 

HOW IT WAS DONE

   There are many mysteries which, though seeminglyunsolvable, still occupy the mind of man. Perhaps Conan Doyle in the person of SherlockHolmes might have turned the light on these dark places. Alas! he didn't. Now heis old and shaky; his hand trembles and his words stick in his throat, or, as theLatin poet has said it, "Vox in faucibus haesit." We shall neverlearn from him who killed Cock Robin, who struck Billy Patterson, nor what becameof Charlie Ross.

   While the death of the Bureau of Chemistry didnot take place until midnight of June 30, 1927, it had already been irrevocably decreed.The criminals are still at large. It is wise to try to unravel this mystery whilewe may. Was it manslaughter or murder in the first degree? Was it assassination orsuicide? Was it done legally, or was it a clear case of lynching?

 

THE CORPUS DELECTI

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

 

CAVEAT

   In the following statements relating to the activitiesof the officials of the Department of Agriculture in securing these fundamental changesin the functions of administering the food law, there is a desire to emphasize thepoint that they are not of a personal character. The highest regard is felt for allthese officials. Some of them are personal friends. This makes their mistakes moreregretful.

   The same remark applies to the Bureau of Soils.On the other hand, the Bureau of Soils, in respect to academic freedom in researchand publication, and in its bizarre and thoroughly unscientific theories and itsprincipal activities, has been from the start of a nature which has failed to commendit, both as to quality and character, to the great majority of scientific investigators.This disparagement does not affect the personnel of the Bureau, nor the late problemssubmitted to it.

 

PROVING DEATH

   In life insurance adjudication you have to provethe death of the insured. Can the death of the Bureau of Chemistry be established?The following quotations from the hearings before the appropriation committee consfderingthe agricultural bill for the fiscal year, 1928, are illuminating, and leave littledoubt of death.

   The Chairman of the committee, in speaking ofthe Enabling Act, said:

   Q. " I wish to take up now this new language, the 'enabling'paragraph. This is new language, is it not?"

   A. " Yes, sir. The food and drugs act provides that examination of products subject to its jurisdiction shall be in the Bureau of Chemistry. Under the new arrangement the Bureau of Chemistry goes out of existence and is supplanted by this new organization, the food, drug, and insecticide administration."

   The chairman also calls attention to the demiseof the Bureau of Chemistry in other parts of the report. He speaks of the "newBureau of Chemistry and Soils." In another place he mentions the appropriationsfor the proposed Bureau of Chemistry and Soils. In the next paragraph is found thefollowing statement:

   " Under this appropriation we enforce the so-called pure food law which controls purity and freedom from misbranding of foods and medicines."

   This is a,most appropriate designation. Underthe administration of the law as now conducted it is only a "so-called"pure food law. Its activities are confined chiefly to misbranding of foods and medicines.The real pure food law was designed principally to protect our foods from additionsof poisonous and deleterious substances, a feature which has been almost entirelyobliterated by the present administration of the law. No one could have found a moreappropriate qualifying phrase than that which is used above.

   In another part of the hearings the Chairmanof the subcommittee asks:

   "In other words, this is an appropriation for the enforcement of what is known as the pure food law?"

to which this reply was made:

   "To insure freedom from misbranding of foods and drugs."

   This answer confirms the present attitude ofthe food administration.

 

WHY WAS IT DONE?

   It seems rather strange that after attentionhas been called to the fact that the law confides the examination of samples of foodsand drugs to the Bureau of Chemistry, the Congress of the United States should immediatelyproceed to destroy that organization. This accentuates the discussion of how theBureau of Chemistry was destroyed. Even granting that the Bureau wanted to be hangeddoes not legalize the crime. That may be an extenuating fact when the criminals aresentenced.

   If it was a desirable thing to change so radicallythe instrumentalities of enforcing a law, it should have been brought before theCongress in a legitimate way. There was no reason why a bill should not have beendrawn making these changes and repealing the existing law. I am far from saying thatthere might not be a better method of enforcing the law than the present one. Infact, I do not think there could be a worse.

   The promoters of the destruction of the Bureauof Chemistry took a desperate chance in their illegal attempt. They hoped that noone in the House of Representatives would kill their efforts by making a point oforder on this legislation on an appropriation bill. The bluff was not called. Nota member of the House objected. That the legislation could have been prevented byone member is shown by the following statement of Mr. Lehr Fess, the House Parliamentarian:

   "In reply to your letter of January 10th (1928) 1 am writing to advise you that the item referred to was subject to a point of order at the time it was under consideration in the House. However, no question of order was raised. The question of order not having been raised at the time the matter was under consideration it can not be subsequently presented."

   The Secretary of Agriculture in his report for1927 states on page 61 that:

   "The Federal food and drugs act, designed to prevent the sale of adulterated or falsely labeled foods, drags, and feeding stuffs, is a benefit to consumers and producers alike. Through its enforcement the consumer may feel confident that the products he buys are what they are represented to be on the labels and the producer need fear no competition with low-grade goods masquerading as high-quality goods. Cooperation with the various industries in an effort to keep their products in conformity with the law and action against producers found guilty of deliberately adulterating or misbranding their goods were continued during the fiscal year just ended."

   The Secretary seems to forget that strenuousefforts were made pending the time the bills were before Congress to insert the.word "knowingly" into the Act. All of these efforts were defeated. Forthis reason the dealer who unwittingly violates the law is just as guilty under thelaw as the one who knowingly and deliberately violates the law. The most destructivevice that has for many years been gnawing at the vitals of proper enforcement ofthe food law is the effort now making to protect the producer. There is no warrantfor this erroneous conception anywhere in the law. Every reference to the producerin the law is punitive.

   Thus it is clearly seen that the chief activitiesof the present administration are proper branding. The purpose of the law as a healthprotector is of no importance whatever.

   Mr. W. G. Campbell, Director of the RegulatoryService, justifies the abolition of the Bureau of Chemistry and the transfer of theRegulatory Service therefrom, in an article published in the American Food Journal,January, 1928, page 24:

   "But no effective concerted action against adulterated and misbranded food was possible in the United States until the Federal Food and Drugs Act became a law in 1907, after some forty years of investigation and twenty years of agitation. The Bureau of Chemistry had framed it and actively endorsed. its passage for many years. Naturally enough, then, Congress entrusted its enforcement to this unit. * * *

   "Whenever it became apparent that for lack of funds or shortage in personnel one of the two must be temporarily neglected it was usually the research work that gave way."

   It was the regulatory work that was providedfor instead of. research. It was this condition of affairs which resulted in thedestruction of the Bureau of Chemistry and the creation of a new enforcement unit.This was exceedingly drastic action to change what Congress had established aftertwenty years of discussion in the open forum of the Senate and the House of Representatives.The cruelty of this punishment and its wickedness is indicated by the fact that itwas legislation grafted on an appropriation bill, the consideration of which waslimited to a few hours debate, with no hearings having been called on the proposedmeasure, and no opportunity given to any one opposing it to be heard.

   To continue from Mr. Campbell's article:

   "The work of administering the Food and Drugs Act has in no way been upset by the recent change in machinery."

   If the work has not been upset nor changed inany way, why was it necessary to destroy a great bureau and transfer the enforcementof the act to an entirely new unit?

   This is a sad story which will be discussed inanother place. In point of fact, at the very beginning successive attempts were madeto nullify this provision of the law, placing its enforcement in the Bureau of Chemistry.During the debates in Congress on food legislation, on numerous occasions attemptswere made to divorce the Bureau of Chemistry entirely from any part in the enforcementof the law. In every case the proposals made for this purpose were overwhelminglydefeated in both Houses of Congress. It was the plain intent of the law-makers, afterfull and free discussion, that its enforcement should be in the Bureau of Chemistry.The purpose now is to show that the present administration of the Food Law is entirelydifferent from that intended by Congress. The death of the Bureau of Chemistry isa clear case of mob violence. It was lynched.

   The Secretary also refers to the fact that thisis the proper time to lynch the Bureau of Chemistry in the following statement:

   "This is the logical time to make some changes which could not have been made before without hurting somebody or doing an injustice to somebody, which we did not want to do. But now we must get some new heads and if we effect this reorganization before these changes are made, they will work in with the new changes and we shall not have to work an injustice on anybody."

   This means, of course, bringing in more headsof bureaus. There will have to be a head and subheads for the new Bureau of Chemistryand Soils, and there will have to be a new head for the Food and Drugs Administration.

INCORPORATION OF THE BUREAU OF SOILS

   Secretary Jardine gave as an excuse for puttinga small fragment of the Bureau of Chemistry with the whole Bureau of Soils the followingpertinent reason:

   "The Bureau of Soils itself needs to be revitalized. Everybody in this country that is working with soils realizes that."

   Most truly said. But why does he want to putthe Bureau of Soils into the Bureau of Chemistry to be revitalized, while he takesout of the Bureau of Chemistry a food administration which is needing revitalizingmore than the Burean of Soils ever did?

   The Secretary also has made another discoverywhich is most interesting. He states:

   "Then in the Bureau of Chemistry we also have questions that are closely related to soils. Thirty years ago it was not so."

   This statement would be interesting to Liebigand the founders of the Rothamsted Station in England, Lawes and Gilbert, a hundredyears ago; to the late Professor Hilgard, who made soils his specialty during hiswhole lifetime, and to Johnson, Hopkins, Snyder, and Goessmann in this country, Hallin England, Boussingault in France, and to those other chemists, too numerous tomention, who have for one hundred and fifty years regarded soils a peculiarly appropriatesubject for chemical investigation. One of the great faults of bureaucracy is to,claim long-known truths as its own discoveries. Before the Bureau of Soils was everthought of, the Bureau of Chemistry had developed a scientific investigation of soilson a strictly practical plan. It had brought samples of soils from all the differentstates and from the Rothamsted Station in England. These soils had been carefullyanalyzed by the most approved methods, had been placed in pots carried on railways.It had built a house to put them under cover when it rained or when it froze. Ithad carried on elaborate cultivations of the kinds of crops these soils producedunder a standard environment of moisture, temperature and sunlight. When the Bureauof Soils was organized the first thing it did was to demand the entire cessationof scientific soil investigation by the Bureau of Chemistry. The Secretary, at theinstigation of the Bureau of Soils, ordered the soils thus accumulated to be thrownout, the railway demolished and the building in which the soils were kept, razed.Data accumulated under several years of investigations were denied publication bythe Bureau of Soils. They still lie in the celebrated morgue of the Department ofAgriculture, mute witnesses of violence, with many others of their like, waitingfor Gabriel's trump. Surely the Bureau of Soils needs a "revitalization."It needs more a second birth!

 

PATERNALISM ON THE RAMPAGE

   When the Appropriation Bill for 1928 reachedthe Senate, a luminous statement was made by Senator King of Utah in regard to it.Speaking of the bill he says (Congressional Record of January 4, 1927, Vol. 68, No.17, Page 1051):

   "The pending bill reveals a parental care that will put to shame the Bolshevik or Soviet parentalism. of Russia. We are soon to have a Federal official in a Bureau or agency now created--and if not we will create one--for every activity of every individual. He will tell us when to wash our faces, how to clean our teeth, how to comb our hair, what kind of clothes we should wear, and how we shall determine the temperature. For every conceivable and inconceivable mutation of life we shall have the beneficial and blessed care of some functionary of the government. But let the merry dance go on! We are on the highway to Bureaucracy. Let Bureaucracy be crowned King and make the appropriations as much as may be desired, and they regret that they have not demanded more. So some of these little appropriations, for instance, like the Bureau of Mines, or the Biological Bureau, or the Bureau of Soils, soon become so powerful that they will want millions of dollars annually.

 

CRITIQUE OF THE BUREAU OF SOILS

   Now let us see what happened in the committeehearings to the Bureau of Soils. The following question was asked:

   "I want to know wherein the practical benefit is received by the ordinary farmer or by the agricultural interests of the nation from the chemical and physical investigations of this Bureau we are now discussing."

   The business of the soil survey is to decide what is a soil. Nobody ever did that before. Unfortunately it seems even God Almighty did not do it."

   The modesty of this answer is something overwhelming.It seems that the young man making the survey, who probably was not even broughtup on the farm, ~cam ride out in a Ford car and look over the fence at a field andtell more about it than God Almighty, who. created it, knows. This faculty of originaldiscovery of facts long known is not confined to the Bureau of Soils. It is alsocharacteristic of other Bureaus in other Departments.

   Here is what the man in the Ford car finds out:

   "We determine the nature of a soil. We determine the distribution of that soil wherever that soil is found. We determine the characteristics of that soil. We know then when the soil survey is carried out that here in a given place is a certain kind of soil and there is so much of it. We know the soil in terms of its characteristics, of its texture, for example, of its chemical composition. To be sure when I talk about chemical composition I cannot say that it has 2.39 per cent. of potash in it, rather than 2.37 per cent. of potash. It would take thousands of years to determine that; but I can say whether it has 2.39 per cent. of potash, or 1.5 per cent. of potash, or .65 per cent. of potash.

   For example:

   "Let us take Genesee County, New York. We send out two men into that area, usually with a Ford car, and they locate themselves in some spot in the center of the area to be surveyed. They go over every road in that county and examine the soil all along the road. I do not know that I could say accurately that they examine every foot of the soil in the county; but they go along the roads and also between the roads, so they can undertake to see all the land in the county and determine its characteristics. Two men will survey an average county containing 600 square miles in about six months."

   It is thus seen that these two surveyors by drivingalong the roads in a Ford car (I suppose any other make of car would do just as well)determine all the characteristics of the soil down to the depth of ten feet, giveit a name, which is usually the local name of the vicinity, and furnish all the datato make a map of that county with apparently never having the benefit of a singlechemical or physical analysis of the soil. As in a field of fifty acres, outsideof the glacial region, there may be a dozen different types of soil, this is somefeat. Of course all these men must be trained agriculturists or else they could nottell the character of the subsoil to a depth of ten feet without having a sampleof it. If they had a sample they couldn't tell anything about its nature until theyhad a chemical and physical analysis thereof. They must have intellects of most unusualcharacter and training that few, even practical farmers, have had, to make thesenice distinctions. Their eyes, too, must have amazing powers of telopsis to see tenfeet below the surface. The striking thing about this is the vast amount of informationthe man in the Ford car gathers in about an hour and a half. So much more informationthan the Almighty possesses! If it would take thousands of years to tell whethera soil has 2.39 per cent of potash, rather than 2.37 per cent, the question arises,how many thousands of years would it take to get these other data?

   Let me quote from another author about this omniscientscientist in the Ford car; (of course Goldsmith didn't know anything about soil-mapping):

   "And still they gaz'd, and still the wonder grew
   That one small head could carry all he knew."

   But the wonder is not to be restricted. The witnessgoes on further:

   "Now here we have that soil distributed so far. The same results can be effected on that soil wherever that soil is found."

   This is most interesting information. Supposewe take any one of about a thousand varieties of soil that have been mapped. We findone particular soil in the northern part of Minnesota. The same soil is found inMissouri. That same soil is found in Florida. You can grow oranges and sugar caneon that soil found in Florida. According to the Bureau of Soils you can grow orangesand sugar cane on that soil in Missouri and in Northern Minnesota. Knowledge of soilis rapidly growing! This is emphasized by the rhyme:

"When the Sea rolled its fathomless billows
Across the broad plains of Nebraska,
When around the North Pole grew bananas and willows,
And mastadons fought with the fierce armadillos
For the pineapples grown in Alaska."

   Speaking of the soil survey man it is stated:

   "When his experiments have been carried out, when he obtains his result in the end--it may be a good long while, experiments are necessarily slow always, it takes a good long while to find them out,-but when he has found out that on a given soil certain results are obtained, then if the soil survey has done what it ought to do those same resulta can be effected on that same soil wherever that soil is found."

   To this I may say that if the soil survey hasdone what it ought to do it would take several thousand years of experiment beforethere would be justification for publishing a single soil map.

   The questioner did not seem to be quite convinced.He asked some other troublesome questions in regard to how all these data were obtained,and especially what the chemists were doing. He was informed:

   "Well he (the chemist) assists. I am talking now of what he does in relation to the soil survey. He helps us to determine what the characteristics of soils are. You see in the soil survey we do not maintain laboratories because there are other laboratories and there is no use in duplicating.

   Considering the intimate knowledge which is obtainedby the soil survey in a Ford, it is interesting to know how much ground is gone over.In answer to the question, How is your work progressing? thefollowing informationwas elicited:

   "Very well; we are covering now, I cannot give you the exact figures in square miles, something like 25,000 to 30,000 square miles per year; possibly a little more than that. Two men will survey an average county containing 600 square miles in about six months.

   Another embarrassing question was asked:

   "I am talking about the maps. I want to know what practical use the people who get these soil surveys put them to."

   He was told:

   "Sometime ago I picked up a copy of Hoard's Dairyman, and in that Journal there were two photographs; one., a photograph of the roots of alfalfa grown on one soil type, and the other was a photograph of the roots of alfalfa grown on another soil type. I believe one lot was grown on bottom land and the other was grown on upland soil. Now let me stick a pin in it for a moment and go to another thing.

   (The questioner.) "We will put a twenty-penny nail through it."

   To this came the response, going one better:

   "Or a railroad spike. The soil survey map shows the characteristics of the soil, not only on the surface, but down to a depth of, say, from six to ten feet. In other words, it shows the soil all the way down."

   All this intimate information from 30,000 squaremiles a year! C'est magnifique!

   Many questions were asked as to what benefitto the farmer came from the soil survey. It was the opinion of the Committee thatthe chief benefits that the farmer got from the soil maps was in the fact that theygave all the roads. The particular thing it wanted to know was what practical useihe people who get these soil maps put them to. The answer was that the county agentis really the man to interpret the maps. That may be true now, but when the mapswere first printed there were no county agents.

   ~ It finally developed that about 35 per centof the agricultural portion of the United States has been mapped. At this rate thesoil survey will last until about 1980. The number of different kinds of soils willbe nearly 3,000 and oranges will be growing in Alaska. The different types of soilswhich have already been given distinctive names are well up toward athousand.

 

A REAL SURVEY

   While this so-called soil survey has been goingon now for nearly thirty years, costing, exclusive of the printing, approximatelyfive million dollars, another real survey and mapping has been made by the geologicalsurvey.

   Numerous contour maps, showing the altitude andphysical characteristics of the soil, have been published. Now the geological surveyhas introduced aerial photography as a salient feature of the work. They do not simplylook at the fields from a Ford car. They show them as they are.

   "The War Department cooperates with the geological survey in this useful work. Each photographic unit has an enlisted pilot and photographer and airplane. As to the area covered, the phenomenal extent of the Soil Bureau sinks into insignificance. One detachment in 1926 photographed 9,000 square miles. Another this year has assigned to it 8,000 square miles. Another unit has been assigned 4,000 square miles in Illinois and will then begin photographic work in Michigan and Wisconsin." (Science, August 19, 1927, page 165.)

   There is a growing feeling that the whole systemof soil survey is a gigantic caricature of applied science; .in other words, it issimply "bunk." This feeling was a general one at the very beginning ofthe activities of the Bureau of Soils. It was not confined solely to the Soil Survey,but to the theories put out by the Bureau of Soils. Their famous Bulletin No. 22was vigorously assailed by the leading agricultural chemists of this country. Amongthese there was none of greater eminence than Professor Hilgard of the Universityof California. Dr. Hilgard says (Science, New Series, Vol. 18, No. 467, Dec.11th, 1903, page 755):

   "Now the criterion usually applied to the relevancy of soil analyses is whether they will stand the test of agricultural practice. Judged by this test, both the ultimate analysis and that by distilled water are, equally, failures, according to Whitney's own testimony. But his conclusion is that since his method fails as a criterion of rich and poor soils, therefore the chemical composition of soils has no bearing upon the crop production; and that, therefore, the chief factor determining the yield is 'the physical condition of the soil under suitable conditions.'

   " To this assertion 'non sequitur!' is the obvious flrst answer. * * *

   "The recent enunciation of the Chief of the Bureau of Soils, while still maintaining the preferential claim for the physical properties of the soil, at least admits the importance of the functions of plant food; but claims that fertilization is unnecessary because the supply would be 'indefinitely maintained.' He in fact takes us back to the times of Jethro Tull and the Louis Weedon system of culture, which also presupposed the indefinite duration of productiveness; but signally failed to realize it when the test of even as much as twelve years came to be applied.

   "In the foregoing discussion, only the salient points of the bulletin in question have been taken up, and their most obvious weaknesses briefly considered. To do more would involve the writing of a paper as long as the bulletin itself; and it is to be hoped that the matter will be taken up by others, also. Thus, for instance, Rothamsted Station might have something to say regarding the singular interpretation here put upon the splendid work of Lawes and Gilbert.

   "In conclusion, it seems to the writer that the verdict upon the main theses put forward so confidently in this paper must be an emphatic 'Not proven!'"

   Dr. A. D. Hall published in Nature, November9 1903, an article entitled "A New Theory of the Soil. I quote the following:

   "Though Dr. Whitney's main argument is thus hardly tenable on his own showing, certain side issues are worth a little notice. Dealing with the action of fertilizers, he notices that, while the wheat crop on the best fertilized plot at Rothamsted averages about 33 bushels, on the plot which has been unmanured for sixty years it has fallen to 12 or 13 bushels. Yet on the similarly unmanured plot in the Agdell field, where the wheat is grown once every four years in rotation with roots, barley and clover or fallow, but little falling off is apparent. Hence he concludes that, in virtue of the rotation, the fertility of the Agdell field is unimpaired, whereas in the continuous wheat field 'the decrease can be ascribed only to some physical change in the soil, to some chemical change other than the actual loss of plant food taken up by the crops.' But when any other crop on the unmanured plots in Agdell field is considered, the decline in fertility is enormous; roots and clover only yield minimum crops; so far as they are concerned the cultivation of the soil involved in the rotation has been quite unable to maintain the fertility. The wheat, with its powerful root system, holds up better, but its production is falling steadily; it Is important to see how long it will be maintained, though it need never be expected to fall to the level of the continuous wheat, because the land is practically only cropped every other year.

   "Suggestive as Dr. Whitney's memoir must be to all agricultural chemists, we thus do not consider that the main theory it propounds possesses any permanent value. We should be sorry if we have failed to appreciate the argument properly, but it, is not always easy to follow, the text being somewhat deficient in sequence and orderly arrangement; indeed, we are disposed to think that had the question been set out a little more nakedly at the outset, and the demonstration marshalled with more precision, a somewhat different conclusion would have been reached by the authors."

   This array of soil chemical talent was joinedby Professor Hopkins of the University of Illinois, who published a serious attackupon the theories and practices of the Bureau of Soils. Professor Snyder of the ExperimentStation of Minnesota joined in this assault. The chemists of Cornell University alsolent their aid to combating these theories. No one of the unscientific theories ofthe Bureau of Soils was ever approved by the Association of Official AgriculturalChemists of the United States. These theories of soil fertility were all built uponthe sand and have long since passed away. Our young chemists, who are not acquaintedwith all these facts, would find it interesting to review the literature to whichI have just alluded. Professor Hilgard was constrained to ask the following questions:

   "Is freedom of research restricted in the Department as respects soils, and is everybody in the Department required to believe in the theory of the Bureau of Soils or to express no opinion whatever in any official capacity? Is the right to use the soil for research purposes abridged in the Ddpartment of Agriculture, and if so, to what extent? Are the theories of the Bureau of Soils accepted by reputable authorities in this and other countries?"

   The first and second questions he answered inthe affirmative. The third question he answers strongly in the negative.

 

A LONG WAIT FOR THE RECOVERY

   More than thirty years have passed since theBureau of Soils was established, and since the Bureau of Chemistry was denied theprivilege of any further research in soils. Now the Bureau of Soils with all of itsunfortunate and unsavory history is combined with what little is left of the Bureauof Chemistry, both to be under a common head. May we hope that this head will notbelieve in any of the vagaries which have characterized the Bureau of Soils duringits long history, and may he be a man who will never raise his finger or his voiceto prevent ethical research in any branch of science pertaining to chemistry in allits ramifications, or to soils in all the innumerable varieties into which they havenow been divided.

 

AN UNFORTUNATE EXCHANGE

   What has the Bureau of Chemistry given up? Ithas given up all it has acquired in its long and useful career. It has been denieda service to humanity which, if it had been rendered in the spirit of the law whichit represented, would have proved the greatest blessing to the health and welfareof a nation. A service of this kind is one in which no person informed in regardto the matters could have raised the question of cui bono so vigorously advancedin the hearings before the appropriation committee on the present Agricultural bill.Finally it has given its life. , We may ask: What would have happened in that Congressof 1906 if some one interested in adulterating foods had moved to abolish the Bureauof Chemistry? Outside of sympathizers with adulterators, it would not have receiveda single vote in either House or Senate. Those who engineered this legislation throughCongress have thus accomplished the crime in which their predecessors of twenty-oneyears ago so signally failed. Tempora mutantur et nos cum illis mutamus. Itwas a poor trade. It will take the new organization many years to live down the badreputation of one of its components. Let us hope that the influence of the new Bureauof Chemistry will cause a radical reform in its new spouse, which will make her unrecognizablein the near future. What kind of wife has it divorced in order to consummate thiscompanionate marriage?

   Let the old Persian poet and philosopher, Omar,speak:

"You know, my friends, with what.a brave Carouse
I made a Second Marriage in my house;
Divorced old barren Reason from my Bed,
And took the Daughter of the Vine to Spouse."

   On the other hand, the new Bureau of Chemistryhas lost the opportunity of ever returning to the fundamental principles of the foodlaw which have been so thoroughly turned aside. Thus it can never regain the publicconfidence and enthusiastic support which the late Bureau merited by its leadinginfluence in securing the enactment of the Food and Drugs Law. The Bureau of Chemistryis dead. Those who lynched it should shudder when the people know all the facts ofthe murder. The plea of insanity will not avail.

 

ANTAGONISM BETWEEN RESEARCH AND PRACTICAL CHEMISTRY

   The new Bureau is to conduct certain fundamentalresearches on the chemical composition of foods, and on the changes that take placein foods as the result of the action of micro-organisms. In regard to this transferthe following statement was made:

   "That it is work that has heretofore been done under the food and drugs act appropriation. It is research of a rather fundamental type; although necessary for food and drugs act enforcement, it seems more logical to place that work in the Bureau of Chemistry and Soils."

   This is rather an effort to suppress investigationsamong that class of chemists who are best suited to carry them on in so far as foodadministration is concerned. In many other places in the hearings and in the originalstatement of the Secretary of Agriculture this restriction of research is stressed.

   Not only was the demise of the Bureau of Chemistrythus caused, but the chemical work is now transferred to another unit under the regulatorysystem where denial of research is plainly indicated.

   The Secretary of Agriculture himself has justdiscovered the antagonism between research and practical chemistry. In the hearingshe made the following statement, after acknowledging that research and practicalchemistry had gone hand in hand up to the present time, and especially in the institutionwith which he was connected:

   "Research work and regulatory work do not mix any more than water and oil. We just grew up that way and we have developed to a point now where we think the regulatory work ought to be in another department by itself, rather than being in with research. At the present time we have an opportunity to work out this consolidation.

 

RESEARCH

   It is evident that the legislation abolishingthe Bureau of Chemistry and establishing a new Bureau of Chemistry and Soils andtransferring the food activities to a new department in direct violation of existinglaw was a regrettable mistake. One of its purposes was the discouragement of researchby the chemists employed in the regulatory unit. This was a feature of great importanceto the force of the.old Bureau of Chemistry. In all matters of research those whoare studying these problems must be in direct contact with the problems themselves.This is particularly true of research in the problems relating to foods and drugs.If the problem is not before the research worker he would be up in the air all thetime as to what to do. The problem must be before the research chemist. He must havean opportunity to study all the relations of these problems to the industry itself;otherwise he would be groping blindly in his attempts to find out any new principleswhich are basic in the particular industry which he is examining. There is no branchof investigation that needs more research than is found in the problems which arisein the very numerous conditions springing from the new foods and drugs administration.

   In Science of April 1, 1927, page 307,Professor Metcalf makes the following statement:

   "We believe that every normal individual is born with some endowment of the research spirit--the inquiring mind given to trying to find out by exercise of its own powers. Normal children are full of natural curiosity and they have to a fair degree the habit of experimenting; that is, they are endowed with something of the research spirit.

   "We believe that this mental habit of learning by self-reliant experiment should be conserved and strengthened from the beginning throughout life. We believe that all education, from pre-kindergarten age on through the university, should have this encouragement of the spirit and habit of research as a main object. We believe that no worth-while job in life can be done with proper effectiveness in any other spirit. We believe that, in all education, learning through self-reliant experiment and exercise of individual judgment should dominate and that the habit of stopping with faith in the printed statement in the textbook should be avoided as leading to fatty degeneration of the mind and soul. We believe that teaching should be conducted only by those who have the research attitude themselves and have ability to cultivate it in their pupils."

 

NO NEED FOR THIS RADICAL LEGISLATION

   Dr. Browne, before accepting the position asChief of the Bureau, made it clearly known to the Secretary that he was not disposedto take any active part in the execution of the Food and Drugs Act. As Chief of theBureau he, of course, would sign all Bureau orders. He was promised that his wishesin this matter would be respected. In the report of the Chief of the Bureau of Chemistry,published September 1, 1926, for the fiscal year ended June 30, 1926, Dr. Brownewas able to record the fact that his wish had finally been entirely realized. Hesays on page 21:

   "A reorganization of the regulatory work involved in the enforcement of the Food and Drugs Act, the Tea Inspection Act, and the Naval Stores Act was effected during the year; all such work being placed under the immediate supervision of an assistant chief appointed for the purpose.

   Dr. Browne had thus succeeded in securing hisfreedom from personal attention to the execution of the Food and Drugs Act whichhad long been his ambition and which had long been promised to him. The Bureau wasthen in the position he thought it ought to occupy and his duties were left untrammeledby any personal supervision of the enforcement activities. In the very next yearafter this very desirable condition of affairs was established, the amazing effortwas made--and a successful one--to separate entirely the regulatory work of the Foodand Drugs enforcement from the Bureau of Chemistry.

 

RADICAL CHANGE OF ATTITUDE

   The present attitude of the Food and Drugs enforcementis well expressed by the Secretary of Agriculture in his report for 1926, page 91.In speaking of the Federal Food and Drugs Act, he says:

   Progress was made in promoting the purity and truthful labeling of food and drugs through the enforcement of the Federal food and drugs act. This year is the twentieth anniversary of the enactment of the law. The department looks upon this act as a corrective measure rather than a punitive one and, in enforcing it, endeavors to render assistance to the industries in improving their products. * * * The educational methods followed by the Federal and State food officials have been effective both in.saving an industry from great losses and in enabling consumers to obtain an unobjectionable product. * * * It was found that the educational and regulatory campaigns had accomplished commendable results. Notwithstanding rather comprehensive sampling, no goods of last season's pack were found of a character warranting action under the Federal food and drugs act.

   When individual concerns persist in violating the law, or when violations involve deliberate fraud either through adulteration or misbranding, the full penalties of the law are invoked to correct the trouble.

   A careful study of the Food and Drugs Act showsthat there is no warrant in any one of its provisions for these dilatory tactics.Congress provided a period of six months in which manufacturers could study the meaningof the law. Now after twenty years the big business of flouting the law is stillencouraged. There are no corrective features in the law. Every section of this lawis directly or indirectly punitive. There is no clemency for ignorance or accident.There is no requirement that the offender has knowingly or willfully offended thelaw. An amendment to that effect was rejected when the bill was before Congress.There is no provision for inviting manufacturers to a conference except when theBureau of Chemistry has found that their products are either misbranded or adulterated.Then a hearing is accorded under the law on questions of fact.

   The whole attitude of the enforcing officersis to postpone all punitive measures just as long as possible. They beg offendersto cease offending instead of bringing them before the Court and executing the lawas provided by the law itself. It was intended by Congress that these punitive featuresshould be enforced. The Secretary of Agriculture is directed by the law to transmitwithout delay the findings of the Bureau sent him to the Department of Justice,which is directed to bring action immediately. Where can the enforcing officerfind his authority for endless delay?

   It is not at all strange that when the head of.adepartment, as has just been shown, chooses to depart from the methods of enforcementlaid down by the law to those which he claims through experience to have found tobe more effective, that his subalterns fall into the same state of mind. This wasshown particularly in the address of the Assistant Secretary of Agriculture, Hon.R. W. Dunlap, of Ohio, before the Convention of the State Food and Drug officialsat Denver, in 1925. Mr. Dunlap as Food and Drug Commissioner of Ohio was a militantenforcer of law. It was hoped that one with his record would bring the spirit ofrigid enforcement into the Food Administration at Washington. This would replacethe theory which had grown up under the impression that the law was not made to beenforced but only to be used as an educational agent in bringing infractors to asense of their crimes. There was hope that at last we had come to the turning pointof the whole matter and that the Assistant Secretary would throw the whole weightof his experience and training on the side of strict law enforcement. Alas! it wasfirst at Denver, in 1925, that it was found that he had been infected by the sleepingsickness of educational procrastination as a dominant principle in law enforcement.The following quotation is from his address at Denver in 1925 (page 76, OfficialProceedings of the Twenty-ninth Annual Conference of the Association of Dairy, Foodand Drug Officials of the United States):

   "No longer do you gefitlemen regard the total number of seizures accomplished or of criminal prosecutions instituted or the aggregate of fines collected as a measure of efficiency in enforcing the laws entrusted to your care. The broader view, I think, universally prevails that an enforcing official who as a result of his efforts can point to a trade within his jurisdiction intelligently and wholeheartedly complying with the law, thus insuring full protection to the purchasing public as well as fair and equitable competitive practices has done more to merit the confidence not only of the public which he protects but of the industry which he regulates than one who by virtue of threats of penalties and confiscation procures an unwilling compliance rather than the support of the law he is administering. * * * Through the adoption of this theory of control, costs of litigation have been eliminated and a constructive leadership maintained to the benefit of all concerned. * * * The Department, as many of you know, now carries on its food and drug law enforcement through the Bureau of Chemistry under an organized plan of procedure along very well defined lines, known as the project plan of work. Certain industries are investigated throughout the entire country for the purpose of determining what violations if any exist and then of taking appropriate steps toward their correction. By this means a uniformity of action against every member of an industry is insured and the maximum corrective effect is obtained through educational means, to be followed by punitive action in those cases where educational measures are ineffective."

   Thus we find this militant state official whofought the whole array of adulterators and misbranders at the Denver Convention in1909 praising a method of enforcement of the Act which is not found anywhere in theAct nor by any possible construction of any of its features.

   It may well be asked why after twenty years ofexperience manufacturers have still to be cited to kindergarten instruction as tothe meaning and purport of the Food Law? As a rule, manufacturers of foods are fullyinformed as to the requirements of the Food Law, both of the nation and of the state.If they are not so informed it is their own fault. There is no requirement that theseschools of instruction should be established and the money appropriated by Congressfor the enforcement of an Act be used for the purpose of instructing manufacturersas to their duties under the Act.

   Mr. Paul Dunbar, head of the regulatory divisionin the Bureau of Chemistry, in a recent article in the Oil, Paint and Drug Reporterunder the head "Trade Warnings Issued," says:

   "If, on the other hand, the infraction is one which appears to be the result of a misunderstanding and the ensuing damage to the public is not of such a character as to require immediate removal of the goods from the market, it is the practice of the bureau before initiating regulatory action to give notice to the trade, advising that on or after a certain date legal action under the food and drug act will be instituted if continued violations are encountered. Where the facts seem to warrant it such notice may be preceded by a public hearing at which interested parties are accorded opportunity for free discussion.

   "Opinions may differ as to what types of violation are of such character as to require drastic action, and what may be tolerated for a time sufficient to give warning to the responsible manufacturer. * * *

   "The decision as to what course shall be taken in any particular instance rests with the administrative officials of the Bureau of Chemistry in Washington or the Director of Regulatory Work. * * *

   "Substantially the only thing the food and drugs act requires of a manufacturer is that his products be fit for use and that they be not labeled so as to deceive, mislead or defraud the purchaser. * * *

   "It is the bureau's theory that more is to be accomplished by acting in an advisory capacity under such conditions as will insure legal products than by accumulating a record of successful prosecutions with attending flues turned into the Treasury of the United States."

   Thus we see, through all the branches of foodenforcement activities, this laissez faire principle. There is no longer anyvirtue in applying the penalties prescribed by law. There is no longer any adulterationthat threatens health. Business must be preserved. Penalties were intended as aidsto reformation. They are not now to be inflicted except as a last resort. Such isthe regrettable condition into which law enforcement has fallen.

 

AN INTERESTING STORY OF COCA-COLA

   Many other instances of softness in food-lawenforcement may be cited. Early in the history of the activities of the Bureau ofChemistry in its efforts to carry out the provisions of the food law evidence inrelation to the Coca-Cola habit, especially in the South, was procured. The characterof this evidence was sufficient to induce the enforcing officers to bring chargesagainst Coca-Cola under the Food and Drugs Act. A number of seizures of the goodsin transit was recommended and criminal charges against the manufacturers and dealerswere formulated. It was impossible to get any of these accusations endorsed by theBoard of Food and Drug Inspection. Finally the Bureau of Chemistry was ordered inwriting, over the signature of the Secretary, to cease its activities in trying tobring Coca-Cola to the bar of justice. A short time after this order was receivedMr. Seely, proprietor of an influential newspaper in Atlanta, paid the Bureau a visit.In the course of his conversation he asked why no case had ever been brought againstthe Coca-Cola corporation. In answer to this question he was shown the order of theSecretary of Agriculture, forbidding the Bureau of Chemistry from making furtherefforts in this line. He was greatly astonished that the Secretary of Agriculturehad thus interfered with the administration of justice. He immediately called onthe Secretary of Agriculture, and he entered a vigorous protest against the policyof the Department in protecting adulterators and misbranders of foods. He statedto the Secretary that unless this order was recalled he would publish all the detailsin the matter in his newspaper. The Secretary promptly recalled the order and directedthe Bureau to proceed with its activities. The officials of the Bureau desired tobring the case in the District of Columbia, as more convenient for the Governmentin assembling its evidence and experts. Two members of the Board of Food and DrugInspection were determined that the case should be brought in Chattanooga. In thelatter city the Coca-Cola Corporation had its chief bottling works. They also ownedlarge bodies of real estate, including the principal hotel. The whole environmentat Chattanooga was favorable to the Coca-Cola industry. The Department was put toa large expense to send its scientific officers so far away from the base. It wasequivalent even to trying the case in Atlanta, if that had been possible under thelaw.

   The result of this trial, which was a long drawnout one, lasting over three weeks, is found in Notice of Judgment No. 1455. The casewas warmly contested. Experts testified on both sides and with the usual contradictorytestimony, which it is not advisable even to summarize here. When the evidence wascompleted, the attorneys of the defendant moved to dismiss the libel on the groundthat caffein, which was the chief injurious substance in Coca-Cola, was not an addedsubstance because it was mentioned in the original formula. The presiding judge,the Hon. E. T. Sanford, granted this motion, and the case was therefore dismissed.

   The Department of Justice appealed the case tothe United States Circuit Court of Appeals of the sixth district. This court sustainedthe action of the court below. (Notice of Judgment No. 4032.) The Department of Justicethen appealed the case to the Supreme Court of the United States. The unanimous opinionof the Supreme Court held that the courts below erred in their decision, and thecase was remanded for a new trial. This action of the Supreme Court is detailed inNotice of Judgment No. 4801 issued Septem-her 18, 1917. The opinion of the SupremeCourt was written by Justice Charles E. Hughes. Justice Hughes' decision containedthe following principal points:

   "The questions with respect to the charge of 'adulteration' are (1) whether the caffein in the article was an added ingredient within the meaning of the Act (section 7, subdivision 5) ; and if so (2) whether it was a poisonous or deleterious ingredient which might render the article injurious to health. The decisive ruling in the courts below resulted from a negative answer to the first question, * * * but it was concluded, as the claimant contended, that the caffein--even if it could be found by the jury to have the alleged effect--could not be deemed to be an 'added ingredient' for the reason that the article was a compound known and sold under its own distinctive name, of which caffein was a usual and normal constituent."

   Justice Hughes discusses in considerable detailthe claims of the defendant and then continues as follows:

   "Having these considerations in mind, we deem it to be clear that whatever difficulties there may be in construing the provision, the claimants' argument proves far too much. We are not now dealing with the question whether the caffein did, or might, render the article in question injurious; that is a separate inquiry. * * * We think an analysis of the statute shows such a construction of the provision to be inadmissible, * * * nor can we accept the view that the word 'added' should be taken as referring to the quantity of the ingredients used. It is added ingredient which the statute describes, not added quantity of the ingredient, although, of course, quantity may be highly important in determining whether the ingredient may render the article harmful, and experience in the use of ordinary articles of food may be of the greatest value in dealing with such questions of fact. * * * We can see no escape from the conclusion that it is an added ingredient within the meaning of the statute."

   Justice Hughes also comments on the claim madeby the defendant that Coca-Cola was not a misbranding, but that it was a distinctivename, and he continues as follows:

   "We are thus brought to the question whether if the names 'Coca' and 'Cola' were respectively descriptive, as the Government contends, a combination of the two names constituted a distinctive name within the protection of the proviso in case either of the described ingredients was absent. * * * In the present case we are of the opinion that it should not be said as a matter of law that the name was not primarily descriptive of a compound with coca and cola ingredients as charged. Nor is there basis for the conclusion that the designation had attained a secondary meaning as the name of a compound from which either cocoa or cola ingredients were known to be absent; the claimant has always insisted and now insists that its product contains both. But if the name was found to be descriptive, as charged, there was clearly a conflict of evidence with respect to the presence of any coca ingredient. We conclude that the court erred in directing a verdict on the second count.

  "The judgment is reversed and the cause is remanded for further proceedings in conformity with this opinion."

   The above decision of the Supreme Court, discussingas it did all the angles of a legal character, completely demolished the lines ofdefense established during the trial, having decided on both counts, first that caffeinwas an added substance, and second that Coca-Cola was a descriptive and not a distinctivename. The subsequent proceeding before the court must of necessity result in victoryon the part of the Government. It was a long while, however, before the case wascalled for retrial in harmony with the injunction of the Supreme Court.

   The case was called in the District Court ofTennessee at Chattanooga on November 12, 1917. The defendants, otherwise known asthe claimants in the case, entered a plea of nolo contendere. On motion ofthe district attorney the court passed the following sentence:

   "' Now, therefore, the premises considered, it is ordered, sentenced and adjudged by the court, now here, and His Honor, the district judge, by virtue of the power and authority in him vested, does hereby order, sentence and adjudge that the goods, wares and merchandise seized in this proceeding be, and the same are hereby forfeited to the United States, and that the said Coca-Cola Company pay all costs of this proceeding. And it is further ordered that the said goods, wares, or merchandise, seized herein, to wit, the forty barrels and twenty kegs of Coca-Cola, shall be released to the claimant upon said claimant paying the cost above adjudged and giving sufficient bond, conditioned that the product shall not be sold or otherwise disposed of contrary to the provisions of the Federal Food and Drugs Act, or the laws of any state, territory, district, or insular possessions of the United States."

   Added to this decision is the following paragraph:

   " It is further ordered, adjudged and decreed that the judgment of forfeiture shall not be binding upon the said Coca-Cola Company or its product, except as to this cause, and the particular goods seized herein, nor binding upon the claimant and its product as it shall relate to any other cause or proceeding of any kind or character."

   This paragraph was evidently interpreted by thefood enforcement officials to forbid any further proceedings against the Coca-ColaCompany or its product on the part of the administrative authorities executing thefood law. In any case the answer is that it is not binding on anybody except theCoca-Cola Company and further that it did not estop the executive authorities enforcingthe food law from further proceedings against the Coca-Cola Company or any of itsproducts. No attempt was made by the executors of the food law to enforce the decreeof the courts by beginning action against Coca-Cola products every time they crosseda state line. Under the opinions of the Supreme Court such proceedings would havebeen uniformly successful. Owing to a lack of these proceedings the Coca-Cola Companyhas its stock now listed on the New York Stock Exchange. Its sales have been enormouslyincreased, invading the North, as they previously invaded the South. The effectsof drinking caffein on an empty stomach and in a free state are far more dangerousthan drinking an equal quantity of caffein wrapped up with tannic acid in tea andcoffee. The threat to health and happiness of our people is reaching far greaterproportions due to this expansion of trade. The governors of the New York Exchangehave admitted the stock of the Coca-Cola Company, the products of which have beencondemned by a United States Court as both adulterated and misbranded. This balefulcondition could have been easily avoided if the enforcing officers had raised theirhands in protest against the further development of this business by seizing itsproducts and bringing criminal action against its manufacturers.

   Another interesting story would have been clarifiedif the Supreme Court could have passed an opinion on the immunity granted the Coca-ColaCompany by the court.

 

THE PATHETIC STORY OF BLEACHED FLOUR

   A further illustration of law enforcement negligenceis found in the bleached flour case. On or about April 11, 1910, the Lexington Milland Elevator Company shipped from Lexington, Nebraska to Castle, Missouri, a consignmentof six hundred twenty-five sacks of flour, labeled "L 48-1 pounds LexingtonCream XXXXX Fancy Patent. This flour is made of the finest quality hard wheat. LexingtonCream--Lexington, Neb.--Lexington Mill & Elevator Co."

   In due course libel was filed against the said625 sacks of flour, charging that the product was adulterated and misbranded, andpraying seizure and condemnation of said flour. In due course the case was calledin the District Court of the United States in the Western Division of Missouri, byArba S. Van Valkenburgh, District Attorney. Fortunately, the United States was ableto secure as associate counsel for the prosecution of this case Mr. Pierce Butler,who assumed the principal rôle of the prosecuting officer, and is now an honoredAssociate Justice of the Supreme Court. Extensive testimony was given by experts,millers, wheat-growers, wheat-buyers, and other competent parties, both for and againstthe process of bleaching. The Honorable Smith McPherson acted as judge in the case.Judge McPherson in instructing the jury, used in part the following language (Noticeof Judgment No. 722, November 4, 1911):

   "The flour seized in this case is an article of food within the meaning of the act of Congress. And if the treatment of the same by the Alsop process caused it to contain any added poisonous or other added deleterious ingredient of a kind or character which may render the same injurious to health, then it is adulterated and must be condemned.

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

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

   "It is well known that wheat flour is not eaten raw. There is evidence in this case that tends to show that during the process of making bread nitrites or nitrite-reacting material contained in the flour is lessened and may be eliminated under some circumstances, but it is also well known that wheat flour is used for the making of other articles of food--biscuits, dumplings, pastry, cake, crackers, gravy, and perhaps other articles of food--which may be consumed by all classes of persons--the young, the old, the sick, the well, the weak, the strong; and I charge you that it is right for you in reaching your verdict to take these facts into consideration together with all the other proven facts and circunistances in the case.

   "The fact that the Patent Office at Washington issued a patent for the Alsop process has nothing to do with the question of branding correctly, or misbranding of flour. The fact that the Patent Office issued a patent for the Alsop process does not warrant nor authorize the adulteration of flour as made by the Alsop process if it is adulterated. All these things must be put to one side, and your verdict must be determined in accordance with the law and facts in the case. It is of no importance to, you, nor is it of importance to me, who will be pleased or displeased in this case, whether of counsel or of the parties, or of any other person. The only question is, "What is the right, and what is the wrong of this case?"

   Thereafter the jury returned verdicts as follows:

   "We, the jury, find that the flour seized in this case is adulterated. (Signed, John W. Thomason, Foreman.) "

   "We, the jury, find that the flour seized in this case is misbranded. (Signed, John W. Thomason, Foreman.)"

   An appeal was taken from the decision of theCourt and the jury to the United States Circuit Court of Appeals of the Eighth District.On January 23, 1913, the case having come on for hearing before the Circuit Courtof Appeals, the judgment of the Court below was reversed, and the case remanded fora new trial. In reversing this verdict the Circuit Court said:

   "The Court charged the jury: 'It is clear that it was intended by Congress to prohibit the adding to the food of any quantity of the prohibited substance. The fact that poisonous substances are to be found in the bodies of human beings, in.the air, in potable water, and in articles of food such as ham, bacon, fruits, certain vegetables and other articles does not justify the adding of the same or other poisonous substances to articles of food, such as flour, because the statute condemns the adding of poisonous substances. Therefore, the court chargeth you that the Government need not prove that this flour, or food stuffs made by the use of it, would injure the health of any consumer. It is the character, not the quantity of the added substance, if any, which is to determine this case.'

   "The trial judge decided that if the added substance was qualitatively poisonous, although in fact added in such minute quantity as to be non-injurious to health, that it still fell under the ban of the statute; and the distinction is sought to be drawn between substances admittedly poisonous when administered in considerable quantities but which serve some beneficial purpose when administered in small amounts, and those substances which it is claimed never can benefit and which in large doses must injure. The distinction is refined. To apply it must presuppose that science has exhausted the entire field of investigation as to the effect upon the human body of these various substances . . . that nothing remains to be learned. Otherwise the court would be required to solemnly adjudge today that a certain substance is qualitatively poisonous because it can never serve a useful purpose in the human system only to have this conclusion made absurd by some new discovery. There is no warrant in the statute for such a strained construction. The object of the law was evidently (1) to insure to the purchaser that the article purchased was what it purported to be, and (2) to safeguard the public health by prohibiting the inclusion of any foreign ingredient deleterious to health. Hall-Baker Grain Co. v. United States (198 Fed. 614). The statute is to be read in the light of these objects, and the words 'injurious to health' must be given their natural meaning. It will be observed that this paragraph of the statute does not end with the words 'added deleterious ingredient,' but as a precaution against the idea embodied in the instruction complained of, it says 'which may render such article injurious to health.' Without these latter words, it might, with more force, be argued that deleterious and beneficent ingredients are to be divided into two general classes independent of that particular effect in the actual quantities administered, but the possibility of injury to health due to the added ingredient and in the quantity in which it is added is plainly made an essential element of the prohibition. The investigation does not stop with the consideration of the poisonous nature of the added substance. It is added to the article of food and the statute only prohibits it if it may render such article--the article of food--injurious to health.

   "The judgment below must be reversed and the case remanded for a new trial, and it is so ordered."

   (Notice of Judgment 2549, issued October 18, 1913.)

   The Department of Justice immediately appealedfrom the decision of the Circuit Court to the Supreme Court of the United States.The case was called by the Supreme Court on February 24, 1914. The Supreme Courtconfirmed the decision of the Circuit Court below and remanded the case to the originalcourt for retrial. The decision of the Supreme Court was written by Mr. Justice Day,and was a unanimous decision. The Supreme Court made many luminous explanations inregard to the matter under consideration. The decision, among other things, states:

   "The statute upon its face shows that the primary purpose of Congress was to prevent injury to the public health by 'the sale and transportation in interstate commerce of misbranded and adulterated foods. The legislation, as against misbranding, intended to make it possible that the consumer should know that an article purchased was what it purported to be; that it might be bought for what it really was and not upon misrepresentations as to character and quality. As against adulteration, the statute was intended to protect public health from possible injury by adding to articles of food consumption poisonous and deleterious substances which might render such article injurious to the health of consumers. If this purpose has been affected by claims and unambiguous language,, and the act is within the power of Congress, the only duty of the courts is to give it effect according to its terms. * * * Congress has here in this statute, with its penalties and forfeitures, definitely outlined its inhibition against a particular class of adulteration. * * *

   "It is not required that the article of food containing added poisonous or other added deleterious ingredients must affect the public health, and it is not incumbent upon the Government, in order to make out a case, to establish that fact. The act has placed upon the Government the burden of establishing, in order to secure a verdict of condemnation under this statute, that the added poisonous or deleterious substances must be such as may render such article injurious to health. The word 'may' is here used in its ordinary and usual signification, there being nothing to show the intention of Congress to affix to it any other meaning. It is, says Webster, 'an auxiliary verb, qualifying the meaning of another verb by expressing ability, * * * contixgency or liability, or possibility or probability.' In thus describing the offense Congress doubtless took into consideration that flour may be used in many ways-in bread, cake, gravy, broth, etc. It may be consumed, when prepared as a food, by the strong and the weak, the old and the young, the well and the sick; and it is intended that if any flour, because of any added poisonous or other deleterious ingredient, may possibly injure the health of any of these, it shall come within the ban of the statute. (Notice of Judgment 3398.)

   The above quotation, it will be observed, islargely based on the instructions given by the trial judge, the Honorable Smith McPherson,to a trial jury. The information, however, which it gives those who undertake toprove injury to health is of the highest significance. The Supreme Court of the UnitedStates says to those who enforce the law that it is not required "that the articleof food containing added poisonous or other added deleterious ingredients must affectthe public health, and it is not incumbent upon the Government, in order to makeout a case, to establish that fact." This iialicizing of this statement wasnot done by the Supreme Court, but by myself. I believe it is a very important statementmade by the Supreme Court in regard to the enforcement of the Food and Drugs Act.It was worth all the trouble and disappointment of having the decision of the bleachedflour case reversed in order to secure such a luminous explanation as the resultthereof.

   When this case was decided the World War hadalready broken into flames over the whole continent of Europe. It was soon evidentthat the United States of America would eventually be drawn into this whirlpool ofdestruction. There is no wonder that all thought of bleached flour was forgottenin the excitement and activities which preceded our entrance into this great conflict.It was not until the contest was over and the victory had been won that any furtherprocedure was taken. It was not until April 1, 1919, that counsel for the governmentof the United States called the attention of the District Court of the Western Districtof Missouri to the fact that the mandate of the Supreme Court had never been putinto effect. Under the ruling of the Supreme Court the claimants for the 625 sacksof flour had had practically the whole foundation of their defense swept away. Theywere very glad, therefore, to make some arrangement with the District Attorney wherebythey could retire, not without laurels, from any further contest of this case. Tothis end they proposed that if one section of the libel would be dropped they wouldenter a plea of nolle contendere to the other parts of the libel. Accordingly,Francis M. Wilson, United States District Attorney, withdrew section e of the libelwhich reads as follows:

   " (c) In that, by the treatment as aforesaid, the said flour has been caused to contain added poisonous, or other added deleterious ingredients, to wit: nitrites or nitric reacting material, nitrogen peroxide, nitrous acid, nitric acid, and other poisonous and deleterious substances, which may render said flour injurious to health."

   Accordingly, the Court entered the followingverdict on the 9th day of, April, 1919:

   "Now, therefore, it is ordered that the said amended libel be taken pro confesso; and the said cause coming on to be heard ex parte, and the court being fully advised, doth find all of the allegations of said amended libel herein are true.

  "It is, therefore, ordered adjudged and decreed that the six hundred and twenty-five (625) sacks of flour, more or less, as aforesaid, be and the same are hereby condemned and forfeited to the United States, and the marshal of this court is hereby ordered and directed to proceed to confiscate a,nd utterly destroy all of said property, and to report to this court how he executed this order and decree.

   "It is further ordered adjudged and decreed that the taxed costs of the libelant herein, and the taxed costs of the claimant, be paid by the claimant, Lexingtqn Mill and Elevator Company, said claimant in open court consenting thereto." (Notice of Judgment No. 6380.)

   This famous case was ended April 9, 1919. Nonotice, however, was taken of this event by the executive officials of the Departmentof Agriculture, until July 31, 1920. On this date the following remarkable documentwas issued:

"Labeling Bleached Flour.
Department of Agriculture Announces Ruling on Bleached
Flour Under the Food and Drugs Act.

   Washington, D. C., July 30, 1920-Bleached Flour coming within the jurisdiction of the Federal Food and Drugs Act is adulterated if the bleaching has reduced the quality and strength of the flour or concealed damage or inferiority, according to a statement issued to-day by the Bureau of Chemistry, United States Department of Agriculture, in answer to a number of inquiries regarding the attitude of the department on the bleaching of flour. Bleached flour may be shipped within the jurisdiction of the law only under the condition that the bleaching has not concealed inferiority or impaired the quality or strength of the article, and then only on condition that it is branded plainly to indicate that it has undergone a process of bleaching. Failure to label the containers to show that such -flour has been bleached will subject it to a charge of misbranding.

   "The United States Supreme Court has ruled with reference to the section of the law relating to the addition of a poisonous or deleterious ingredient that to constitute an offense an article of food sold must, by the addition of an ingredient, be rendered injurious to health, and, furthermore , that all the circumstances must be examined to de termine whether the article of food has been rendered injurious. No action will be taken at the present time on the ground that bleaching introduces into the flour a substance which may be injurious to health, say the officials, provided as a result of bleaching there is not introduced into the flour such a quantity of the bleaching agent as may render it injurious as indicated in the decision of the Supreme Court. Should evidence later become available that the bleaching of flour introduces an ingredient in minute quantities which has the effect of rendering the article injurious to health, announcement of the fact will be made and appropriate action taken to prevent thereafter the shipment of bleached flour within the jurisdiction of the food and drugs act.

   "Whether bleaching in any given shipment reduces the quality and strength of the flour or conceals damage or inferiority must be decided on the basis of the facts in each particular ease. "

   In regard to this document I may say that itspurpose evidently was to open wide the opportunities for bleaching flour and thepromise that no action would be taken looking to a restriction of this process. Inpoint of fact no effort has ever been made directly or indirectly to take advantageof this victory before the court in considering bleached flour as both an adulteratedand misbranded article. The result is that the millers who at first were unwillingto indulge in bleaching have been forced to bleach in order to maintain their trade.This proclamation was properly interpreted by the bleachers. They knew its exactintent, that it was an open statement to the millers and the public that no furthersteps toward the control of this injurious and highly undesirable practice wouldbe taken in any way to restrict or hinder this practice. Nearly ten years have nowelapsed since this proclamation was made, and so far as bleaching flour is concernedby any process whatever the Food and Drugs Act does not exist. It seems indeed incrediblethat a food enforcement bureau of any kind, would read into the opinion of the SupremeCourt an entirely antagonistic statement respecting injury to health. The food enforcementofficers said you must convict the adulterator of injur~ng health. The Supreme Courtsaid it is not necessary on the part of the Government to bring any evidence lookingto the actual establishment of injury and it is not incumbent upon the Governmentto do this. All the Government has to do is to show the possibility in the most extremecase of doubt that such injury may take place. Thus the very law which the SupremeCourt has said was enacted chiefly to protect the public health has been turned intoa measure to threaten public health and to defraud the purchasers of flour.

   GOING BACK TO BUSINESS PRACTICES

   A more pointed illustration of how the administrationof the food law is gradually being transferred to manufacturers of food productsis found in a circular issued by the Department of Agriculture of September 302 1927,in regard to the floating of oysters. The title of this remarkable contribution is"New Jersey Oyster InduAtry Adopts Plan to Improve Oysters."

   The "improvement" in oysters is tointroduce into them certain quantities of water which the old regulations in regardto oysters forbade. It calls attention to the fact that- the New Jersey shippersof oysters are dissatisfied with governmental rulings respecting excessive quantitiesof added water. Different regulations permitting the addition of water have beenunanimously adopted by the New Jersq dealers. This action on the part of the NewJersey dealers was taken as a result of an old ruling of the Department of Agriculturefor preventing shipment into interstate commerce of oysters floated in water lesssalty than that in which they were grown. The circular says:

   "It developed that the aims of the oystermen and of the department were in harmony, namely, the production of the best oysters possible for the market in accordance with good commercial practices, and in which are incorporated no greater quantities of added water than are necessary, it being recognized that in the commercial cleansing of oysters for the market a small amount of water is necessarily incorporated. * * *

   "The desire of the oystermen to place on the market only oysters of the highest grade is shown by their proposal to arrange for scientific investigations of the habits and characteristics of the oyster, with a view to obtaining the knowledge necessary to a final determination of the best procedure to insure the best oysters for the market, and desirable methods for obtaining the cleanest oysters with a minimum amount of added water."

   Here is a great industry which had been savedfrom practical destruction by the original ruling of the Department that no waterof any kind should be added to oysters in shipment or otherwise, and that the icewhich kept them cold in shipment should be placed on the outside of water-tight tinboxes in which the oysters were carried. It is not true that any washing of oystersis necessary in preparing them for market. The only purpose of the washing is tointroduce additional quantities of water which will make the oysters swell and lookbigger and fatter than they are.

   This is a complete surrendering to the industryof the task of making rules and regulations for conducting this industry, not inthe interest of the consumer but in the interest of the producer. It marks an entirereversa in ese matters. The Food and Drugs Act was based on commercial practiceswhich were detrimental and injurious to the consuming public. If the oyster industryis permitted to make its own regulations and its own scientific investigations thereis no reason to doubt that all other industries will in the near future be accordedthe same privilege.

   A few years ago I was waiting to buy a ticketfrom New York to Boston. When the man in front of me bought his ticket and turnedaround, he recognized me and asked: "Are you Dr. Wiley?" I said I was.He said: "A few years ago I was the president of the Long Island Oyster Association.We regarded you as the arch-enemy of our industry when under your direction the rulingwas issued that we should not add water to oysters that we shipped, nor place icein contact with the oysters that we shipped. We considered you a devil incarnate.Now we know that decision was the salvation of our industry and I want to take yourhand and congratulate you on doing the greatest service to the oyster industry thatcould possibly have been done. We are selling a dozen times as many oysters now ina perfect condition as they come from the water as we did at the time of your ruling.

ATTITUDE OF THE CHIEF OF THE FOOD, DRUGS
AND INSECTICIDE, ADMINISTRATION

   Mr. W. G. Campbell, the new chief of the foodenforcement unit, having succeeded the former Bureau of Chemistry, recently said:

   "Respect for the law can be maintained only when there is a full realization on the part of those who are regulated that disregard of its provisions will be promptly followed by legal action."

   This is a concise and perfect statement of thepurpose of the Food Law. Not only is it the duty of the officials to enforce theseprovisions, but the law itself states there shall be no delay.

   It seems quite impossible to reconcile this statementof the Director of the Regulatory Service with the following one:

   "While the food and drugs act remains what it has always been, a statute of protection primarily in character, but corrective rather than punitive, a course established to meet the conditions of two decades ago will be inadequate as a present day plan."

   Here it is stated that a new "course"has been established, yet no change has been made in the punitive provisions of theold law. Only the enforcing bureau has been changed and a new bureau put in its placeby legislation illegally engrafted on an appropriation bill. The only conclusionto be drawn from this statement is that a new law has been established by the enforcingofficers without the aid of Congress and without any opportunity of discussing itsprinciples.

   In further justification of this new law Mr.Campbell says:

   "With the change in the attitude of the industry, the Bure;u of Chemistry had more and more as years passed by adopted 'an advisory before the act' attitude in dealing with individuals shipping commodities subject to the law, and that attitude will unquestionably continue to be the keynote of the Food, Drug and Insecticide Administration."

   This remarkable statement, coming from the chiefof the new Regulatory Unit, proclaims to the world that the chief function hereafterwill be the education of those who disobey the act in an effort voluntarily to getthem to desist. In other words, the punitive features of the law, which are the onlyones in the law, are to be neglected for the sake of the corrective activities establishedby the enforcing officers.

   Continuing the quotation, Mr. Campbell says:

   "At the time the agitation for the enactment of the Federal measure had its inception the number of food and drug manufacturers whose conception of business ethics was tersely. 'let the buyer beware' constituted at least a very imposing minority. Today enforcing officials will be unanimous in expressing the conviction that deliberate violations in the distribution of foods and drugs are extremely rare. This change in attitude of the industry during the past two decades has made it possible, therefore, in a large measure to recast the methods of law enforcement so as to emphasize the corrective features of the food and drugs act rather than the punitive side of the measure."

   This statement concisely expresses the completeparalysis of the food law. It is to be recast without appeal to Congress. There isnothing in the food law about corrective measures. These corrective measures haVebeen at the instigation of the food officials without any warrant whatever from legislation.The food law is exclusively punitive, and this construction of it has been approvedmore than once by the Supreme Court of the United States. Why then should officialswho have taken an oath to support the Constitution and the laws made thereunder,read into the law as its chief feature a meaning absolutely foreign to its purpose?The Bureau of Chemistry as constituted at the time of enforcement of the act wassolely concerned in enforcing its punitive regulations. It did not conSider it advisableto waste energy from its sworn duty in setting up a kindergarten or Sunday,Schoolto persuade violators of the law to desist. The law pointed out exactly what it shoulddo, and for a short time only was this purpose of the law carried out. There is nowonder that the administration of the food law has so hopelessly broken down. Itwould be a matter of interest if those enforcing the food law would take a littletime off and read the law carefully once more in order that they might see what theirduties really are.

   The Moss Committee, on page 5 of their report,after citing all the difficulties placed in the path of the Bureau of Chemistry inits efforts to execute the law, says:

  "Thus the administration of the law began with a policy of negotiation and compromise between the Secretary and the purveyers of our national food supplies. * * *

   "It was a matter for profound congratulation that the great body of American citizenship yielded prompt and willing obedience to the law, and to such it was only required that the terms of the law be fully explained. The necessary readjustment of their business required time, and it was good administration to grant reasonable opportunity for such a purpose."

   At the present time there is no manufacturerof foods in this country who does not understand that he is to tell the truth onhis labels and to add no substances injurious to health to his food products. Althoughthe use of various injurious agents has been permitted by the perversions of thelaw, practically the use of such preservatives as benzoate of soda and borax is todayunknown. There is no need, therefore, of any further education or persuasion of foodmanufacturer§ to obey the law. What is needed now is to brush away all the illegalrestrictions which were fastened round the Bureau of Chemistry, and to execute thelaw as it was written, and as it has been interpreted by the Supreme Court.

   The Supreme Court in the case of the United Statesvs. Morgan et al. in a decision handed down December ill 1911, made this pregnantremark:

   "Repeals by implication are not favored, and there is certainly no presumption that a law passed in the interest of the public health was to hamper district attorneys, curtail the powers of grand juries or make them, with evidence in hand, halt in their investigation and await the action of the department. To graft such an exception upon the criminal law would require a clear and unambiguous expression of the legislative will."

   The above is a hard blow to a repeal by illegallyabolishing the Bureau of Chemistry.

THE CONCLUSION OF THE WHOLE MATTER

   An endeavor has been made in the preceding pagesto set down the facts relating to the amazing crime of perverting the Food and DrugsAct of 1906 and destroying.the Bureau of Chemistry. The leit motif has been onlyto tell the truth. Sometimes telling the truth is not wise. If, however, one tellsanything it should be the truth. The common adage says that speech is silver andsilence is gold. These efforts, therefore, may be considered as an essay on freesilver. In these concluding pages the purpose is to summarize the main points, andto show the way to the new era.

ILLEGAL FOOD AND DRUG DECISIONS

   All of the decisions of the Board of Food andDrug Inspection were illegal. It was not provided for in the Act and the plain purposeof its organization was to prevent the Bureau of Chemistry from carrying out theprovisions of the law. Theoretically all of the decisions should be repealed. Manyof them were in strict accordance with the terms of the law, and therefore are notnecessarily to be deleted. The following numbered decisions are in strict violationof the law, and the first step toward clearing the atmosphere and restoring the FoodLaw to its pristine form is the repeal of the following food inspection decisions.Some of these decisions were those of the Board of Food and Drug Inspection; otherswere signed by the members of the Cabinet directed by law to make rules and regulationsfor carrying the law into effect. Whenever the Secretary of Agriculture, the Secretaryof the Treasury, and the Secretary of Commerce and Labor signed a Food InspectionDecision, it became a rule and regulation. Rules and regulations not for the purposeof carrying the law into effect were illegal. The three secretaries had no warrantof law to decide what was or was not adulterated or misbranded.

   The numbers of these decisions which should immediatelybe repealed are as follows:

   No. 76. Pertaining to dyes, chemicals and preservatives in foods.

   No. 77 ;Certificate and control of dyes permissible forcoloring foods and foodstuffs.

   No. 86. Original packages: Interpretation of regulation 2 ofRules and Regulations for. Enforcement of the Food and Drugs Act.

   No. 87. Labeling of "Corn Syrup."

   No. 89 Amendment to Food Inspection Decision No. 76, relatingto use in Foods of Benzoate of Soda and Sulphur Dioxide.

   No. 92. The Use of Copper Salts in the Greening of ;Foods.

   No. 102. Entry of Vegetables Greened With Copper Salts.

   No. 104. Amendment to Food, Inspection Decision No. 76 and No.89 Relating to Use in Foods of Benzoate of Soda.

   No. 107. ;Decision of the Attorney-General in Regard to theReferee Board.

   No. 108. Importation of Coffee.

   No. 113. Labeling of Whisky Mixtures and Imitations ThereofUnder the Foodand Drugs Act of June 30, 1906.

   No. 117. The Use of Certified Colors.

   No. 118. Labeling of Whisky Compounds under F. I. D No. 113.

   No. 120. Labeling of Ohio and Missouri Wines.

   No. 121. Floating of Shellflsh. the United States.

   No. 125. Labeling of Cordials.

   No. 127 Decision of the Attorney-General in Regard to the Labelingof Whisky sold under Distinctive Names.

   No. 130. Amendment to Regulation No. 5.

   No. 131. The Composition of Evaporated Milk.

   No. 134. The Labeling of New Orleans Molasses.

   No. 135. Saccharin in Foods.

   No. 138. Saccharin in Foods.

   No. 142. Saccharin in Foods.

   The abolition of the above Food Inspection Decisionswill clear the way for the remaining steps.

   The most important of these remaining steps isto repeal the permission given by the Remsen Board of Consulting Scientific Expertsto add alum, benzoate of soda, saccharin and sulphur dioxide to our foods.

   From the earliest days of food regulation theuse of alum in foods has been condemned. It is universally acknowledged as a poisonousand deleterious substance in all countries. The United States is the only countrywhich permits, of course illegally, the addition of alum to our food supply.

   The next most important step is to secure fromthe officials enforcing the Food and Drugs Act a recognition of the actions of thecourts under the operation of the Food and Drugs Act in convicting the manufacturersof bleached flour and Coco-Cola. In all these cases judgments of the Court condemningthe use of all these substances were secured, but in no case was any -effort evermade by the enforcing officers to follow up the, Court decision. By reason of thisfact interstate commerce in foods containing bleached flour, benzoate of soda, sulphurdioxide and sulphites, together with soft drinks containing caffein, such as Coca-Cola,90 on unimpeded and unrestricted in all parts of the United States. The health ofour people is constantly threatened by the -use of these articles in our food.

   The next step in the reform of the executionof the Food and Drugs Act is to follow out the provisions of the law absolutely.At the present time the officials in charge of the enforcement of the law boast ofthe fact that they are not following out the punitive sections of the law, but itscorrective sections. Unfortunately for those who make this plea, the law containsno corrective measure except by punishment. It is a new law enacted by the officialsthemselves without authority of Congress which they are enforcing.

   The final step to complete the restoration ofthe law is the repeal of the provision in the appropriation bill abolishing the Bureauof Chemistry and the restoration of the execution of the law to the revivified Bureau.

   This is the only amende honorable that couldpossibly be made for the destruction of the Bureau of Chemistry and the transferof its authority by an item engrafted ,on an appropriation bill. It may be that thepresent arrangement is much better than that enacted by Congress. It would be entirelyproper, therefore, after this restoration is made, to introduce a new bill into theCongress of the United States, providing for the destruction of the Bureau of Chemistryand the transfer of its authority to the present unit in the Secretary's office.

   No attack has been made upon the provisions ofthe law. They remain exactly as Congress enacted them. It is, therefore, the dutyof the present administrative unit to urge the abolition of all these illegal restrictionson their authority and to proceed with all vigor to the execution of the provisionsof the law as they were enacted on June 30, 1906.

EFFECT OF "THE, JUNGLE"

   There is every reason to believe that Upton Sinclair's novel entitled "The Jungle,"in which the deplorable conditions in the packing industry were dramatically portrayed,was one of the chief causes of the enactment of the meat inspection law which wasapproved the same day as the Food and Drugs Act. It may possibly happen that thishistory of a crime more revolting even than the horrors portrayed by Upton Sinclairmay serve the purpose of causing popular indignation of a character that will securethe salvation of the Food and Drugs Act.

   If the Bureau of Chemistry had been permittedto enforce the law as it was written'and as it tried to do, what would have beenthe condition, now? No food product in our country would have any trace of benzoieacid, sulphurous acid or sulphites, or any alum or saccharin, save for medicinalpurposes. No soft drink would contain any caffein, or theobromine. No bleached flourwould enter interstate commerce. Our foods and drugs would be wholly without anyform of adulteration and misbranding. The health of our people would be vastly improvedand their life greatly extended. The manufacturers of our food supply, and especiallythe millers, would devote their energies to improving the public health and promotinghappiness in every home by the production of whole ground, unbolted cereal floursand meals.

   The resistance of our people to infectious diseaseswould be greatly increased by a vastly improved and more wholesome diet. Our examplewould be followed by the civilized world and thus bring to the whole universe thebenefits which our own people had received.

   We would have been spared the ignominy and disgraceof great scientific men bending their efforts to defeat the purpose of one of thegreatest laws ever enacted for the protection of the public welfare. Eminent officialsof our Government would have escaped the indignation of outraged public opinion becausethey. permitted and encouraged these frauds on the public. The cause of a wholesomediet would not have been put back for fifty or a hundred years. And last but least,this History of a Crime would never have been written.



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