FDA History 06

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Corrupt Government Officials Undermine Federal Courts

in Order to Protect Food Processors

FDA History 06

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HISTORY OF A CRIME AGAINST THE FOOD LAW

CHAPTER VI: POLITICS AND PERSECUTION OF A STATE

by Harvey W. Wiley, M.D., the very first commissioner

of the Food and Drug Administration (FDA), then known

as the “US Bureau of Chemistry.”

 

FURTHER ACTIVITIES OF THE REMSEN BOARD

The Attorney-General of the State of Indiana, Mr.

James Bingham, desired to

have testimony in favor of the State Board of Health

from.the Chief of the

Bureau of Chemistry and from other employees of the

Bureau who had taken an

active part in the investigations of benzoic acid and

benzoate of soda (sodium benzoate). A suit

had been filed against the State of Indiana in the

Federal Court before Judge

Anderson on the ground that the ban placed on

benzoated foods by the State Board

of Health was unconstitutional. Mr. Bingham came to

Washington for the purpose

of securing permission from the Secretary of

Agriculture for these officials to

appear before the Federal Court in Indianapolis. The

Secretary refused to grant

the request of Mr. Bingham on the ground that the

Department of Agriculture was

on the other side of the question and that it would

not be in harmony with

official etiquette for the employees of the Bureau of

Chemistry to appear

against the Remsen Board and their assistants and

experts who were attending the

trial in the interest of the complainant by the

executive order and request of

the Secretary of Agriculture. In order to secure this

testimony Mr. Bingham

found it necessary to remove the Federal Court from

Indianapolis to Washington.

When this was done the Solicitor of the Department of

Agriculture on the request

of the Chief of the Bureau made a ruling that the

Federal Court had no right to

issue a subpoena for attendance of the employees of

the Bureau of Chemistry in

the sense that they were compelled to attend and give

testimony. He informed the

members of the Bureau of Chemistry that it would not

be a contempt of court if

they should refuse to appear and give testimony on the

summons unless they

wanted to. I volunteered to give my testimony before

the Federal Court. It

begins on page 3,212 of the printed record and

continues to page 3,548,

inclusive, 336 pages. When Dr. W. D. Bigelow was

called to the stand, after

qualifying, in response to the first question asked

him, he declined to answer

on the ground that his testimony would be of a

character not approved by the

Department and he availed himself of the privilege

given by the Solicitor of

refusing to answer (Page 3,693 of the Record of the

Indiana Case). Mr. Bingham

immediately carried the case to Justice Barnard of the

District Supreme Court.

Justice Barnard promptly ruled that the employees of

the Department of

Agriculture were compelled to give their testimony if

subpoenaed by the Federal

Court and that the statement made by the Solicitor

that they were not thus

compelled to testify was an error. Under this ruling

Dr. Bigelow and other

employees of the Bureau gave their testimony. It would

not be proper to go into

any extended explanations of the nature of this

testimony given contrary to the

opinion of the Solicitor. A sufficient explanation of

it is found in the fact

that Judge Anderson of the Federal District Court of

Indiana, to whom all the

testimony in the case of over 5,000 pages was placed,

with the summary by the

master, promptly decided the case in favor of the

State of Indiana. He said, in

point of fact, that the State's rights in regard to

the regulation of the sale

of foods inside the State could not be questioned

before the Federal Courts by

citizens of other states.

 

 

MR JAMES BINGHAM

Attorney-General of Indiana

 

This recital shows plainly that although the

privilege was denied the Bureau

of Chemistry of bringing suit against anyone using

benzoic acid, the employees

were compelled to testify before the Federal Court.

The users of these

preservatives lost their case due largely to the

testimony of the experts of the

Bureau of Chemistry. Thus it appears as if the " big

chemists " --as the Secretary

of Agriculture called them--of the Remsen Board, when

opposed by the " little

chemists " of the Bureau of Chemistry, were defeated.

This incident shows the

danger of unwise greed. The right to use these

preservatives was guaranteed to

those manufacturers who felt like doing so by all the

power and authority of the

United States Department of Agriculture. They should

have been satisfied with

that perversion of the law, but they were not. They

determined to force

benzoated goods upon the citizens of the State of

Indiana. Fortunately they did

not succeed. More fortunate still is the fact that one

of the complainants

against the State of Indiana was converted by the

evidence adduced at the trial

and abandoned the use of these preservatives. Still

more fortunate is the fact

that manufacturers in general, although this

dispensation has now been in full

force and authority for twenty-two years, have rarely

indulged in the use of

these preservatives. The goods manufactured under the

aegis of the Department of

Agriculture with these preservatives are distinctly

inferior in quality and

strength.

The activities of the Remsen Board were not devoid

of doubts as to their

wisdom. In a letter dated September 9, 1909, Dr.

Remsen called attention to what

might happen (Page 879, Moss Committee):

My Dear Mr. Secretary: The Referee Board is going

to be subjected to very

severe criticism for testifying in the Indiana suit,

and in order to protect

ourselves it is our desire that we should have from

you a written request that

we should give this testimony. I hope you will have

no objection to sending

this request to me. We are to testify at Seal

Harbor, Me., on the 17th. We are

all glad to have been at Denver, and we all

recognize the soundness of your

judgment in asking us to go.

Mr. Moss asked the Secretary to explain why the

Remsen Board whose usefulness

in so large a measure must depend on the respect and

confidence which the public

have for the high character of its membership should

be subjected to severe

criticism in order to assist in an effort by private

corporations to overthrow

the pure food laws of a sovereign state. To which

Secretary Wilson replied that

it was never in his mind to help overthrow the

pure-food laws of a sovereign

state, and that he would have been perfectly willing

to have the Referee Board

go where the people seemed to need information; but as

to an attack upon the

State of Indiana, that was not to be thought of. The

Chairman continued by

asking him if he did not know that the suit filed by

Curtice Brothers and

Williams Brothers was inaugurated before the Referee

Board had made its report

on benzoate of soda; to which he replied that he did

not know anything about the

nature of these proceedings. The Chairman of the

committee continued by asking

him if he had been requested by Attorney-General

Bingham to permit Dr. Wiley to

go to Indianapolis and testify in person in the

Indiana case on behalf of the

State of Indiana; to which the Secretary responded

that he did not think Dr.

Wiley had ever asked him whether he could go to

Indianapolis or not. Whereupon

the chairman submitted a letter dated May 31, 1910,

which the Hon. James Bingham

had written the Secretary in regard to this matter.

This letter is so pertinent

that it is given in full:

Hon. James Wilson,

Secretary of Agriculture,

Washington, D. C.

Dear Mr. Secretary: I am in receipt of a letter

from President Taft with

copy of your letter attached in re testimony of Dr.

Wiley in the so-called

benzoate case. I am taking the liberty of writing

you personally for the

reason that I feel quite sure that you misapprehend

the position of the State

in this matter. You understand that Dr. Long, of

Chicago, and Dr. Taylor, of

California, both members of the Referee Board,

attended in person here at

Indianapolis and testified in this case.

The master, who is hearing the evidence, is

manifesting considerable

interest in the testimony of the different witnesses

and personally

interrogates them, and it is my desire to give him

this opportunity in the

case of Dr. Wiley if possible.

There is no attempt on my part to make it appear

that the Government is not

supporting the work of the Referee Board. On the

other hand, whatever appears

in the record to indicate that the Government has

taken sufficient interest to

sustain the decision of the board is there at my

instance, since I personally

asked the witnesses who have testifled that they

were testifying at your

request, at whose request they were testifying in

the case, and I did this

after a personal interview with them, and learning

the facts with reference

thereto before asking the questions.

My position is that this question is one not

capable of scientific

demonstration, and this fact, I think, I have pretty

thoroughly established by

the testimony of the members of the Referee Board

themselves. I think,

however, that such a test was perfectly proper for

whatever value it might

have in the investigation of the injurious effects

of sodium benzoate, but I

feel very certain that the results of such an

investigation are not

conclusive. Indeed, I would not hesitate to try this

question before you or

any other fair man regardless of any conclusion you

may have reached based

upon the results of the work of the Referee Board.

1 attach more importance to an investigation made

by Dr. Wiley than I do to

that of the Referee Board, in view of his practical

experience in such matters

and especially in view of the experience of the

corps of workers he must have

had to assist him. In the case of the Referee Board

work was carried on by

students in many instances, and in the investigation

I have made I am

satisfied that many of the results obtained, upon

which the Referee Board

bases its opinion, are unreliable. That the members

of the Referee Board were

conscientious and thoroughly capable scientists

there can be no doubt, but

their conclusion, vased upon a false premise due to

inaccuracy in analytical

work and want of regularity in habits of living by

subjects, would, in my

opinion, destroy the value of any such conclusion.

In justice to you I can not go into detail, but

the evidence in this case

shows in some instances variations in duplicate

analyses where the same

articles were being analyzed under the same

conditions, running from 15 per

cent. to 1,800 per cent., when every member of the

Board testifies that there

should not be a variation to exceed 2 per cent.

I am very desirous of having Dr. Wiley appear in

person in order that the

master may personally interrogate him as to his

premises most thoroughly, and

I think you will readily appreciate the merit of my

position. I assume that

you have no interest in this question except to have

it decided right, and in

this case we are not only availing ourselves of the

results obtained by the

Referee Board and Dr. Wiley, but of a vast number of

other experiments, and

especially of-the results of practical

demonstrations, and it occurs to me

that when the evidence is concluded in this case the

court will be in a better

position to reach an intelligent conclusion as to

what the real effect of

benzoate of soda is upon the human system when

administered in food than the

department was with nothing to depend upon but the

result of a scientific

investigation standing alone.

Thanking you for your courtesy in offering to

permit the deposition of Dr.

Wiley to be taken, but hoping that you will see your

way clear to permit him

to attend in person, I remain,

Very truly yours,

(Signed) JAMES BINGHAM,

Attorney-General

This letter of Mr. Bingham evidently removed every

reason to justify, even in

the smallest degree, the determined purpose of the

Secretary of Agriculture,

with the collaboration of the Remson Board, to break

down the Board of Health of

Indiana which had placed its ban on food products

containing benzoate of soda.

Driven to the last extreme the Secretary sought to

justify his action against

the State of Indiana because the law of Indiana

forbade the manufacture of beet

sugar within the State! In answer to the question of

the chairman of the

committee he said it was his purpose to help every

state to the limit of his

efforts, but when a state came out and said one could

not use beet sugar it gave

him pause. He continued as follows:

We are making 500,000 tons of beet sugar every

year in the United States.

Indiana, can make all the sugar she needs and supply

half a dozen other

states. But I have come up square against this law,

and I do not want to break

the laws of Indiana; I would not for the world do

that.

It appears that William Brothers and Curtice

Brothers alleged, in their suit

to abolish the ruling of the State Board of Health as

being unconstitutional,

that there were other points in the Indiana law which

were likewise

unconstitutional, and among these was an expression in

the law delining sugar as

" cane suagar. " Of course every one knows that cane

sugar is frequently used to

designate sucrose. Indiana in her statement for

defense against the suit of

Curtice Brothers used the following statement:

These defendants, farther answering, say that

they deny that the use of

beet sugar is prohibited by law in food products in

the State of Indiana, or

by any rule adopted by these answering defendants,

as such State Board of

Health of the State of Indiana.

Dr. Alonzo E. Taylor, whose absence in Europe had

prevented him from taking

any active part in the investigations of benzoate of

soda, was nevertheless very

eager to appear against the State of Indiana in the

benzoate trial. Under date

of March 1, 1910, he made the following report to the

Secretary of Agriculture:

" I have just been giving testimony in the Indiana

sodium benzoate case. I

understand it was inferred that because I did not

sign the report of the

Referee Board that I was not in agreement. I

therefore testified, not as a

member of the Board, but as an expert, pure and

simple. Since last summer,

being engaged on the sulphite question, I have been

making a lot of control

observations with the purpose of determining the

normal variations in the

metabolism of nitrogen, sulphur and phosphorus.

These data, I believe the best

in literature, I wish to use in my evidence, as they

support strongly the

position of our Board and are in contradiction with

the work of Dr. Wiley on

the action of benzoate. In a word, these

investigations indicate that many of

the reported deviations of Dr. Wiley are entirely

within the range of those to

be seen in normal persons on a normal diet, and show

that the figures obtained

by my colleagues are normal figures for normal men.

Have I your permission to

offer these normal charts of normal metabolism to

the United States Circuit

Court in the Indiana Case? " .

To which the Secretary replied under date of March

12, 1910, in a letter to

Dr. Remsen in the following words:

" I enclose a very interesting letter from Prof.

A. E. Taylor which please

return to me. I shall leave this matter entirely

with you. "

Dr. Remsen in his reply to the secretary

recommended that he be given

permission to use the data in the manner suggested.

The Secretary left no stone

unturned in his determined effort by all means, fair

and foul, to secure a

declaration from the Federal Court that the Indiana

law was unconstitutional.

(Pages 367, 368, Moss Report.)

The testimony of Dr. A. E. Taylor in the Indiana

case is found on pages 2137,

to 2207 of the printed testimony. He repeated in his

testimony that he thought

the data he had obtained were the best in literature.

Dr. Taylor in his

experiments, which were not made, by the way, on the

subject of benzoic acid,

employed a plan greatly superior to that followed by

the other members of the

Referee Board. He employed as his subjects trained

scientific men. He took over

bodily the whole force of the California State Board

of Health. He employed

state chemists who made all the examinations for

fertilizers in the state. When

asked on cross-examination in regard to control of the

diet of these trained men

he stated that their diet was rigidly weighed and

apportioned to them. When

attention was called to the fact that the other

members of the Referee Board did

not control either the quantity or the kind of diet,

therefore the results which

they obtained could not be comparable to his own, he

replied that he thought his

own plan was better but that the uncontrolled diet

might lead to similar

results. He was particularly opposed to the use of

benzoate of soda in milk. On

direct examination he was asked this question:

Q. What are the reasons for not using it in milk?

A. For the simple reason that a large amount of

experience has taught us that

the bad milk ought to be allowed to spoil and that an

absolutely harmless

preservative, or even refrigeration, or pasteurization

ought to be equally

prohibited. (Page 2162).

Speaking further (page 2163) in regard to milk, he

says:

A very minute trace of formaldehyde will keep

milk for 48 hours but the

tubercular and typhoidal bacilli will not be killed,

and it is objectionable

on that account. We object to anything that keeps

milk without killing those

germs, not being of a type to affect the common

defects of sourness or

souring. That is the reason I guarded myself

absolutely in the use of this

other substance. I would object to the use of

benzoate of soda, of hydrogen

peroxide, of the pasteurization of milk, this being

the result.

Evidently Dr. Taylor was not aware of the fact that

pasteurization of milk at

145° for thirty minutes would destroy both typhoid and

tubercular germs. The

spores of germs require a much higher temperature for

their destruction. By

reading his testimony, the historian of the future

will gather valuable

information respecting the attitude of Dr. Taylor in

general toward

preservatives in foods and pasteurization.

Dr. Taylor also was particularly opposed to the use

of benzoate of soda in

meat as well as in milk. He cites the attitude of

Hammerstein, the Scandinavian

chemist and physiologist. He asked him:

Q. Do you use benzoate of soda?

A. No, sir.

Q. Is there any law against it?

A. No.

Q. Do you use salicylic acid?

A. Yes.

Q. why?

A. It is cheaper.

Q. Is it injurious?

A. Possibly it is, but it is so easy we take the

chance.

FURTHER EXCERPTS FROM THE REPORT OF THE MOSS

COMMITTEE AND THE RECORD OF THE

INDIANA CASE

Page 878.

THE CHAIRMAN, MR. MOSS, of Indiana: Please tell me

in what sense you regarded

the Indiana case as an important one?

SECRETARY WILSON: Simply because it was in the.

Federal court, and it was

taking up the question of whether the decision of the

Referee Board was to be

sustained.

THE CHAIRMAN: That brings me to a question I want

to ask you. At that time,

what did you understand the issues of this suit at

Indianapolis to be?

SECRETARY WILSON: I understood it was a question of

whether--I do not know

that I am entirely clear. I think it was an injunction

asked by somebody.

THE CHAIRMAN: It was by Curtice Bros. and Williams

Bros.?

SECRETARY WILSON: Yes; to require the board that

you have there in Indiana to

do something they wanted done.

THE CHAIRMAN: We have a board of health; yes, sir.

SECRETARY WILSON: That is my recollection. It was

something of that kind. But

there was benzoate of soda on one side and opposition

to it on the other.

THE CHAIRMAN: Would you mind telling us where you

obtained that information?

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

remember.

THE CHAIRMAN: I have the original complaint here,

and your information was so

badly apart from what the real issues were that I

wanted to find out your source

of information.

Page 882.

THE CHAIRMAN: You did request, both orally and in

writing, the members of the

Referee Board to attend the Indianapolis hearing?

SECRETARY WILSON: They are on a little different

basis.

THE CHAIRMAN: As the Indiana law expressly permits

the sale of food products

which are guaranteed under the provisions of the pure

food law, how can the

defense of this suit by the State or any of its agents

be considered as an

attack on the decision of the Referee Board?

SECRETARY WILSON: That is an academic question, I

think, Mr. Chairman.

THE CHAIRMAN: You have stated that Dr. Robison in

appearing to testify there

was opposing your policy?

SECRETARY WILSON: He was a subordinate of the

department.

THE CHAIRMAN: The question is that inasmuch as the

Indiana law expressly

permits the sale in Indiana of any food product

guaranteed under the pure food

law of your department, when you guarantee it, how can

a defense against a suit

to strike down that law be considered an attack upon

the Referee Board?

(There is no apparent answer to this question, save

the following.)

Page 883.

SECRETARY WILSON: I would not be known to do a

discourtesy to the State of

Indiana for the world, and besides, Mr. Chairman, I

find in looking over my

behavior toward Indiana that I have a great lot of

scientists there, and it

might be wise for me to get them back out of there. I

have men from nearly all

our scientific bureaus there, helping the State of

Indiana along these

scientific lines, and cooperating with them.

TESTIMONY OF DR. IRA REMSEN

Pages 31-33-Indiana Record.

Q. Well, there was a meeting, wasn't there, of

chemists, Doctor, recently,

out at Denver, Colo., where a great number of

scientific men congregated, wasn't

there?

A. There was no doubt about it.

Q. And you had an election out there at which

benzoate of soda was the

candidate, didn't you?

A. I don't know. I had nothing to do with the

election. I wasn't a member of

the association. I was present as an interested

spectator, but not a member of

the association, had no vote.

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

great interest manifested on

both sides of this question by scientific men

throughout the country, hasn't

there, Doctor?

A. Apparently. I am out of that. I am not at all a

part of the excitement.

Q. And were you present when the vote was finally

taken at Denver on the

question?

A. Which vote do you mean?

Q. On the harmfulness of benzoate of soda, the

adoption of the

resolution--not vote, but resolution.

A. I was present, yes, sir, the resolution

approving the action of the board,

the report of the board. They approved.

Q. By what vote?

A. That is too much for me--57 to 42, maybe, I

don't remember exactly what it

was; in the fifties for one and forties for the other;

fifty-odd in favor and

forty-odd against; I couldn't remember that, I am

sure; I am near the truth.

Q. Now in the talks that you had with the Secretary

of Agriculture, did you

learn that the plaintiffs, Curtice and Williams, here,

were interested in this

question?

A. I do not remember that I ever heard them

mentioned by the Secretary of

Agriculture.

Q. When did you first learn that the plaintiffs

were interested in this

question, Doctor?

A. In this--you mean in this particular suit?

Q. No, in this question as to whether benzoate of

soda was harmful.

A. Oh, I remember. I remember it was at a meeting,

a hearing we gave, our

Referee Board gave in New York before we began our

investigation. We sent word

to those who were interested in the general problem,

not only those who use

benzoate but those who do not use benzoate, informing

them that we would like to

get such information as possible to aid us in our

work. And they were

represented by a number of large manufacturing

interests who appeared before us

to state their problems; mind you, they were not those

who use benzoate alone

but those who do not use it. We felt that it was only

fair to hear what they had

to say, representatives of both sides--I regret that

there are sides--there are

sides, unquestionably, I recognize it. And my

recollection is that this is the

first that I ever heard of these firms, except so far

as I had become familiar

with them through labels that everybody has seen.

Q. Well, now, have you met them since that time?

A. Only as--except at Denver I saw these gentlemen,

at Denver; saw them in

passing. I had very little to say to them--I think

they almost accused me of

discourtesy.

Q. Did the manufacturers appear out at the Denver

convention?

A. These gentlemen were there--I do not remember, I

do not know them

sufficiently well to say.

Q. Well, when you had this hearing of the Referee

Board at which you heard

both sides, did Dr. Wiley appear at the hearing?

A. No.

Q. Was he invited?

A. No. It was restricted to those who used benzoate

of soda.

Q. I understood you to say that you did not, it was

not only--

A. I don't say use--but who either use or do not

use it, but who are

interested in it from the manufacturing point of view,

that is what I meant.

Q. You mean as confined to manufacturers?

A. Oh, yes, wholly.

Q. Now, you also stated that there had been a world

of work on the

physiological effect of benzoate of soda on the human

system.

A. That is a question which has perhaps not been

very fully investigated, and

yet I recall in this connection an investigation which

came to my notice when I

was a very young man. I went to Gdttingen in 1868. I

carried a letter to a

distinguished physiologist who was there, Professor

Meissner. He had just

completed an elaborate series of experiments of the

ffect of benzoic acid on the

human organism. Mr. Charles U. Shepard, an American

student, took large doses of

benzoic acid, much larger than the quantities that

have been used in our

experiments. Those large quantities left no permanent

effects.

Q. Now, so far as you know all these works of the

original research upon the

effect of benzoic acid or benzoate of soda upon the

human system are referred to

in that report, in the bibliography.

A. All the important ones.

CROSS EXAMINATION OF DR. REMSEN

Q. This experiment of Dr. Meissner, about which you

have testified is that

experiment which is reviewed in the bibliography?

A. It is.

Q. I read from exhibit 1, in which this experiment

is referred to as follows:

There is no hippuric acid or benzoic acid in the

blood of animals which

excrete hippurie acid abundantly in the urine.

According to the authors'

experimenis on man, ingestion of 7.6 grams of

benzoic acid as sodium salt in

solution after breakfast was followed suddenly, 30

minutes later, by nausea

and vomiting. When 5.7 grams were taken after

breakfast there was vehement

vomiting after about 35 minutes. When vigorous

exercise was taken after the

same dose (5.7 grams) there was some nausea, but no

vomiting. The nausea can

be made to disappear by violent exercise, with deep

inspirations, etc. After

taking 5.8 grams, when the subject was kept quiet in

a warm room there was no

nausea or vomiting. A stronger and heavier person

repeatedly took 7.6 grams

without these symptoms.

The authors conclude from their experiments on

animals that the kidney is

the only organ where benzoic acid is normally

transformed into hippuric acid.

When 2 grams of benzoic acid per day were fed to a

rabbit during 3 days there

was no decrease in urea output. In a dog of 12 to 13

kilograms, 8 grams of

benzoic acid given in solution per os caused

vomiting. Later 8 grams were

given twice a day as dry powder packed in meat.

There was apparently no

decrease in urea. After several days a toxic effect

was noted--difficulty in

urinating, spasm, attack of rage, attempts to bite,

foam at mouth. Benzoic

acid was continued 2 days more and the attacks

recurred. Appetite remained

good. Convulsions occurred the day after the benzoic

was stopped, and then

they ceased. Similar attacks were observed in a

small dog which received 10

grams benzoic acid for 3 days. The authors conclude

that the continued

administration of large amounts of benzoic acid is

not without danger,

although Keller took 2 grams per day for some time

without feeling any ill

effects. Hippuric acid is formed from benzoic acid

in all animals. Authors

conclude that in herbiverous animals the excretion

of hippuric acid is

dependent on the cuticular substance of plants

ingested. The small amount in

normal human urine probably derives its origin from

metabolism products.

Q. Is that a correct review of that experiment as

you understood it, Doctor?

A. Of course I cannot positively say that these

details are correct, but

I.believe them to be correct.

(Page 45 and page 46.)

In the cross examination of Dr. Remsen it was

brought out that the reason

young men were selected was because they would show

the greatest resistance to

any pathological effects that were probably produced.

Dr. Remsen stated that he

did not think the age of the subject would have much

to do with the case and to

the question that in selecting young men he would have

all the power of

resistance that could be found in the human system he

said yes. Nevertheless he

made an answer to the following question:

" And if there was a tendency of benzoate of soda or

sodium benzoate in small

quantities to affect the system, it would appear less

in a test of young men

than it would upon any other character of subjects

that you could select,

wouldn't it? "

A. " I am not sure of that. " (Page 26.)

On Page 27 Dr. Remsen was asked what are the

variations in temperature, what

variations in pulse, what variations in the specific

gravity of urine, what

variations are there in the volume of urine in normal

health. Dr. Remsen

answered:

Those matters are not at all within my ken. I am

not an expert in those

lines, I have never claimed to be. My medical training

is so far remote that I

confess that that kind of information is not at my

fingers' ends.

Page 30. Q. Well, who is at the head of the

Chemical Department of the

Government?

A. Dr. Wiley, I suppose.

Q. Were you in touch with him?

A. I had nothing to do with him, sir; I didn't see

him about it at all.

Q. Well, he is quite an eminent chemist, is he not?

A. He is very well-known. I may say that he is an

eminent chemist. Yes.

Q. Now he has been devoting a great deal of time to

study of this question,

the effect of benzoate of soda upon food products, has

he not?

A. Some time, I don't know about a great deal.

Q. Don't you know that he made an investigation on

this subject and got out a

report on it?

A. He had the investigation made by others. He

didn't do it himself.

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

you was in yours?

A. I don't know the facts, but I know the work was

carried out by his

assistants in the laboratory of the United States

Department of Agriculture.

Q. Well, now, Dr. Wiley reached the conclusion as a

result of his

investigation to which I have referred that benzoate

of soda was harmful when

used in foods in what you denominate " small

quantities " didn't he?

A. Yes, sir.

Q. And all over the country there are scientific

men who have been studying

this question who agree with Dr. Wiley upon that

question, do they not?

A. I don't know that scientific men all over the

country have been studying

that question in any scientific way. We have no

records of experiments. I won't

say there are none, but there are very few, if any,

and so far as I understand

the situation these gentlemen who agree with Dr. Wiley

simply agree with him,

accept his opinion.

Page 32.

Q. Well, when you had this hearing of the Referee

Board at which you heard

both sides, did Dr. Wiley appear at that hearing?

A. No.

Q. Was he invited?

A. No. It was restricted to those who used benzoate

of soda or those who do

not use it but who are interested in it from the

manufacturing point of view;

that is what I meant.

Page 35.

Q. Well, do you approve of the result that Dr.

Wiley got in investigating

this question?

A. I can't answer that question. I don't like to.

Q. Well, I would like to have you do it.

A. I do not. Or I should rather put it in this way,

that our Board does not.

Q. That is to say you reached a different

conclusion from Dr. Wiley? That is

what you mean to say?

A. Yes, sir.

Q. You are not criticizing his work.

A. Not at all.

Q. But you say you approve the work of an expert

because it is done by an

expert?

A. Yes.

Q. Dr. Wiley is an expert, isn't he?

A. Not in physiological work.

Q. You think he has had no experience in

physiological work?

A. I am unable to say, but my impression is that it

has been very little. I

am very sorry to testify in this way but you have

pushed me to it.

Q. I understand that you yourself are not a

physiologic chemist?

A. No, I am not.

Q. So that is the opinion of one non-physiological

chemist upon another?

A. Hardly. My opinion is based upon my experience

with a board of men who are

thoroughly familiar with that kind of work.

Q. What peculiar knowledge now would a chemist have

to have in order to

conduct an investigation of this kind?

A. He would have to be an expert in physiological

work, physiological chemist

is really what you would want, a pharmacologist is a

form of physiological

chemist, a man who studies the effects of substances

upon the system, but in

order to judge the effects he must have physiological

knowledge and must bring

that into play at every step.

Q. Now you are not a pharmacologist, I believe you

call it, is that correct?

A. That is the name; I am not a pharmacologist.

Q. And you are not a physiological chemist?

A. No.

Q. And it is necessary to have both these elements

of education in order to

be able to conduct properly this sort of

investigation.

A. Undoubtedly.

Q. Well, if it is necessary that we shall have a

pharmacologist and a

physiological chemist and you are neither, isn't it a

fact that your opinion is

influenced by the conclusions reached by those who are

pharmacologists and

physiological chemists who are on the Board?

I desire at this point to introduce a statement in

regard to my personal

attention to the work carried on in the Bureau of

Chemistry in studying the

effect of small quantities of benzoic acid and

benzoate of soda on the health of

the young men who were undergoing these experiments. I

may say that the Referee

Board were not the authors of the plan of experiment

which they followed. It was

copied directly from the plan adopted by the Bureau of

Chemistry in all of these

investigations, with this exception. All foods used

were carefully analyzed by

the Bureau of Chemistry, very few foods were analyzed

by the Referee Board. I

gave my personal attention for five years to all the

details of this work.

During the winters I rose long before daylight, even

before the street cars were

running and walked two miles to my laboratory, which I

reached by seven o'clock.

I supervised the preparation of the breakfast, I

weighed, with assistance of

others, every article of food which was administered,

I supervised the actual

analyses of these foods in the laboratory, I studied

the condition of the young

men every day as a medical man. I saw that their

excreta, solid and liquid, were

collected and delivered to the laboratory. I dined

with the young men except

that I did not take the foods to which the

preservatives were added. I felt that

my continued good health would be at stake if I did,

but I ate the same kinds of

foods that they ate otherwise. When nine o'clock came

I went to my office and

performed the ordinary duties connected therewith

until luncheon time. I then

went into the kitchen and supervised the preparation

of their lunch under the

same conditions. After luncheon was over I again went

to my duties as Chief of

the Bureau of Chemistry. At five o'clock I again went

back into the kitchen and

supervised the preparation of dinner. I remained in

the kitchen and dining room

and dined with the young men at dinner. By seven

o'clock the dinner was over.

This was the routine which I followed for five years

winter and summer except at

such times as I was called away from Washington. When

I was called out of town,

Dr. W. D. Bigelow, my first assistant, took my place

as supervisor of the

experimental work; yet Dr. Remsen without making any

effort to learn the truth

about the matter said I took no part in this work,

that I was not a

physiological chemist.

In 1910 I was awarded the Elliot Cresson medal of

the Franklin Institute for

leading work in physiological and agricultural

chemistry. This medal was given

me for inaugurating the most extensive investigations

ever undertaken in this

country in improving the valuable properties of

plants. I inaugurated and

carried into effect, in connection with A. A. Denton

of Kansas, experiments in

improving the quantity and quality of sorghum for

sugar-making purposes carried,

over a period of many years in which the percentage of

sucrose in sorghum was

raised from nine to fourteen per cent. These

experiments were published in

numerous bulletins of the Department of Agriculture

extending over a period of

many years. In like manner I inaugurated and carried

into effect a work

extending over several years of ascertaining the

factors which would produce the

best quality of sugar beet in the United States. The

results were published in

the bulletins of the Bureau of Chemistry and enabled

the manufacturers who were

intending to go into the sugar-beet industry to locate

their plants in those

areas in which the best sugar beets were grown. In all

some five hundred

thousand analyses of sugar beets grown under similar

conditions with the same

seeds were made. Following this physiological chemical

work I originated and

carried into effect a series of experiments extending

from Maine to Florida of

the factors which produce the largest amount of sugar

in sweet corn. These

results were also published as bulletins of the bureau

of Chemistry of the

Department of Agriculture. It was for these

far-reaching investigations of

physiological chemical problems, and for similar work

in studying the effects of

preservatives and coloring matters on health, that the

directors of the Franklin

Institute awarded me the Elliot Cresson medal. The

gold medal bears this

inscription:

To HARVEY W. WILEY

For Distinguished Leading and Directive Work

in Agricultural and Physiological Chemistry, 1910

Yet Dr. Remsen under oath said I was not a

physiological chemist.

Pages 112 to 116-Indiana Record.

DR. HERTER'S TESTIMONY

Q. As a matter of fact, you know, don't you,

Doctor, that the very opposite

effect to which you testified has been found by other

eminent scientists with

reference to some of these subjects that you have

testified about even in the

administration of small doses of benzoate?

A. Well, I don't believe that I can agree to that.

Q. Have you not examined Dr. Wiley's report of his

investigation?

A. I have.

Q. Well, do you not know that he so found?

A. I do.

Q. And what position does he hold, Doctor?

A. He holds that sodium benzoate--

Q. Well, I know--what official position does he

hold?

A. He is chief of the bureau of chemistry of the

Department of Agriculture.

Q. What Government?

A. The United States Government.

Q. That is rather a responsible position?

A. Very.

Q. And Doctor Wiley has occupied that position for

many years, has he not?

A. I believe he has.

Q. And he conducted quite an extensive

investigation on this subject, did he

not?

A. I believe that he did.

Q. You know, too, don't you, Doctor, that a number

of eminent scientists who

have read and studied the report that was published of

the work of the so-called

Referee Board have reached different conclusions from

the board as to the effect

of benzoateof soda in foods, even based on the facts

included in those published

reports, don't you?

A. I have been told that there has been criticism

of the report of the

Referee Board, but I have felt that the criticism that

has come to my notice has

been for the most part, or wholly, from such sources

as lead me not to give

great confidence, to place great confidence in those

results or in those

opinions I should say--they are not results--opinions.

In general I would say

that that is my attitude.

Q. Well, you know that Dr. Wiley has criticized

this report and draws a

different conclusion from what the Board did from the

facts that are published

in the report, do you not?

A. I think so. Dr. Wiley told me so himself the

other day when he talked with

me.

Q. Now, you know Dr. Reed of Cincinnati, do you?

A. I had that pleasure at Denver.

Q. He is an ex-president of the American Medical

Association, is he not?

A. I don't know that of my own knowledge. I will

have to answer that on sQme

kind of hearsay.

Q. Well, he is an eminent physician, is he not, and

a scientist?

A. I don't think there is any reason to regard him

as a scientist. I have

been told that he was a good gynecologist.

Q. Well, do you know what his training is, Doctor?

A. No, I can't say that I do. That is a matter of

hearsay.

Q. You know that he reaches a different conclusion

from what the board did?

A. I do.

Q. I didn't get my question in--you know he reaches

a different conclusion

from what the board did as to the effect of

administering benzoate of soda in

the foods, based on the facts published in the report

of the board, do you not?

A. I had a different idea of what he bases his

views on.

Q. You know that he does not agree with the

conclusions of the board, do you

not?

A. I infer that.

Q. Now there was some sort of an association of

chemists held at Denver

recently, wasn't there, Doctor?

A. I think that the association contained some

chemists. Whether they are all

chemists or.not, I don't know.

Q. What is the name of that association?

A. That is the--I ought to remember on account of

the squabble over the

Mississippi, but I have forgotten--that is the

National Pure Food and Dairy

Association--no, that isn't right--The Association of

State and National Food

and Dairy Departments--I think that is what it is.

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

with the study of foods,

is it not?

A. Certain aspects.

Q. Study and manufacture of foods?

A. Certain aspects of the study of foods.

Q. You were present at that association?

A. I was present.

Q. Did you address the association?

A. Well, I spoke to the association.

Q. What was the subject of your address?

A. It had to do with the action of sodium benzoate

on the human organism.

Q. Did you discuss the work of the Referee Board in

that connection any?

A. I referred to it, but I particularly referred to

the work done in my

laboratory.

Q. Was there any of the other members of the

Referee Board there?

A. They were all there.

Q. Did any of the other members address that

meeting?

A. They all spoke except Dr. Taylor.

Q. What were the subjects of their addresses?

A. The same general topic, I should say.

Q. That you discussed?

A. Well, for their own reports--they did for their

reports what I did for

mine.

Q. And were there any other addresses delivered

there on this subject of the

use of benzoate of soda in foods?

A. Well, I suppose that the chairman's address

might be so regarded and Dr.

Reed's address; they contained reference to it.

Q. Who was the chairman?

A. Mr. or Dr. Emery--Mr. Emery.

Q. Now there was some sort of a report passed upon

there by that association

with reference to this effect of benzoate of soda upon

the human system as

administered in the food, and also as to the result of

all investigations made

on that subject up to the date of that association,

was there not?

A. I think there was. I think that I have in mind

probably the same report

that you have in mind, but I am not sure.

Q. And that report that was made to the association

was a report made by a

committee of eleven men, was it not?

A. I believe that there was a committee which

reported.

Q. I will ask you now if that committee was not

composed of chemists

entirely?

A. I don't know, sir; I don't think that I had

heard the name of any one of

the number.

Q. And you know that it was reported there by that

committee that the

investigation of that subject had not been carried to

an extent sufficient to

determine the question as to whether the use of

benzoate of soda in food was or

was not injurious to the human system--do you not?

A. I have only a very vague recollection of what

was said in the report.

Q. You heard the report discussed, did you?

A. I think that I did. My impression is that a

recommendation was made by

that committee asking for further investigations. That

is my recollection of it.

Q. You do know, don't you, Doctor, that there is

now, and has been, a

diversity of opinion among scientists upon this very

question?

A. Which question, may I ask?

Q. The question as to whether or not the

administration of benzoate of soda

in foods to the human being is injurious to the human

system.

A. I know that there has been a diversity of

opinion about that.

Q. And you know, too, that this diversity of

opinion has existed since the

Referee Board report was published, do you not?

A. Well, you mean it has existed in spite of the

publication, or do you mean

that it was initiated then?

MR BINGHAM: Listen to the question, Doctor; I think

it will explain itself.

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

Q. Well, you know that scientists have criticised

it since it was published,

do you not, and that they have even told you that they

did not agree with you on

the question?

A. I have never heard any adverse opinion of the

report of the Referee Board

from any person that I would class as a scientist.

Q. How do you class Dr. Wiley?

A. Well, I don't know Dr. Wiley very well, and I

find it is a rather

difficult task to class him. I don't know what you

expect of me.

Pages 160-161.

Q. One more question as to Dr. Lucas. (Dr. Lucas

was one of Herter's squad.)

It is a fact, is it not, Doctor, that Dr. Lucas

disagreed with you as to the

result of the injurious effect of the use of benzoate

of soda in food in small

quantities?

A. I do not know very accurately what Dr. Lucas'

views are, but I know he has

done some work particularly on the action of benzoic

acid and I judge from the

paper that I heard read at Denver that his views are

in some respects at least

different from mine. I do, not know to what extent.

Page 165.

Q. Did you know that the Department of Agriculture

of the United States

Government stood ready to furnish this Referee Board

with everything at its

command that was necessary for making this experiment

that is under

consideration?

A. I heard that stated by the President of the

United States and by the

Secretary of Agriculture more than once.

Q. Did you know that the United States Government

had a chemical laboratory

in the City of New York?

A. I did not.

Q. Did you not learn from the Department that it

had numerous analytical

chemists in its employ at the time and before this

experiment was begun, in the

City of New York?

A. I was not aware of that fact.

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

Chemistry?

A. I did.

Q. And-you knew, too, that that department was

engaged in the administration

of pure food laws of the United States, didn't you?

A. So I had heard.

Q. And you knew that it had a corps of workers, of

chemists, analytical and

otherwise, constantly engaged in the work of analyzing

foods and their

analytical testing, did you not?

A. I assumed that to be the case.

Q. How did it come that you did not secure your

analytical chemists and men

for doing the routine work from the force of the

Department of Agriculture?

A. Because it was intimated to me that it was the

desire of the Department of

Agriculture and by the President of the United States

that in the investigation

carried on by me I should be free to use my judgment

as to all points connected

with the matter of personnel in my laboratory.

Q. Why was it that you preferred to select such men

as Dr. Lucas and Dr.

Ringer and Mr. O'Brien and Dr. Harvey, some of whom at

least are neither

graduates or chemists and who, according to your own

statement, would need

instruction, rather than those experienced men in the

Department of Agriculture

who are regularly engaged in that class of work?

A. It never occurred to me that they would be

available, partly because they

had their own occupations for the entire year and

partly for the reason that it

nevef occurred to me that men such as I wanted would

be willing to come from the

Department of Agriculture. We canvassed the situation

with regard to the

universities particularly and if I had known there was

a branch department of

the Department of Agriculture in New York I certainly

should have applied to

them.

Pages 176-177.

Q. Well, you were impressed at that time, were you

not, with the fact that

this expenditure of time and money was not being made

as a matter of idle

curiosity, but for the purpose of opening the door, if

possible, to the use of

benzoate of soda for such purpose?

A. I did not hear the case stated so fully nor so

eloquently as that, but I

got the impression that the manufacturers felt that if

they had to give up

benzoate of soda--or at least that some of them felt

that if they had to give up

benzoate of soda--they would either have to be shown

some other way of carrying

on their preservation of food or they would be put to

financial loss.

Page 178.

Q. Who was it that said that this benzoate of soda

question was a pressing

question?

A. I do not know that anybody said that it was a

pressing question; I may

have said it myself.

Q. How did you get the impression that that was a

pressing question?

A. Well, I said that there were two or three

questions, the sulphite

question, the benzoate question, the saccharine

question, that it was important

to act on. The President wanted the saccharine

question investigated.

Q. Who was it that gave you to understand that

these two subjects were the

most important?

A. I am unable to answer that question.

Q. Did you not get the idea that these questions

were pressing because they

involved large interests?

A. Yes, I did.

Q. Yes, I know; but getting this settled was

desired owing to the fact that

large interests were involved?

A. That was the general impression of the board.

Q. You knew that the interests involved were the

ones that were clamoring for

some sort of a chemical preservative, did you not?

A. I knew from the meeting of the manufacturers to

which I have referred that

many of them desired either to be permitted to

continue to use benzoate of soda

or requested a substitute for it, and I understood,

principally from Dr. Taylor,

that the question was a very live one in the west.

A CHANGE OF MIND

While writing these memoirs I was told that one of

the principals in the

Indiana case, namely Walter H. Williams of Detroit,

was convinced by the

evidence brought before the Federal Court that he was

wrong in believing that

benzoate of soda sliould be used in food products.

Probably the adverse

decisions of Judge Anderson and the Circuit Court of

Appeals in confirming it

strengthened Mr. Williams' opinion in regard to the

matter. In order to be

certain about this matter I addressed a letter to

Walter H. Williams on May 7,

1927, from which I quote:

In some way I have received the impression that

the Williams Brothers

withdrew from further activity in the case when it

was carried to the Supreme

Court. They had become convinced that the use of

benzoate of soda was either

unnecessary or injurious and had taken the position

that they could put up

their catsup just as well or better without it than

they could with it. Before

I submit this statement in my autobiography to the

printer I should be glad to

hear from you in regard to this matter.

To this I received a reply under date of May 31,

1927. I quote the following,

with Mr. Williams' permission:

Your remembrance of the Indiana benzoate case is

substantially correct. The

Williams Brothers of Detroit did join with Curtice

Brothers of Rochester, New

York, in seeking a Federal Court order in an

endeavor to restrain the Health

Department of Indiana from enforcing its ruling in

regard to the use of

benzoate of. soda as a preservative in food

products.

The Williams Brothers Company later came to

believe that benzoate, or any

other preservative was entirely unnecessary in such

food products as ketchup,

sweet pickles, preserves, etc., and then withdrew as

a party to the suit.

Not only did Williams Brothers find that a

preservative such as benzoate

was unnecessary, but were convinced that permission

to use it allowed food

manufacturers to be very careless in their methods

of manufacture.

The writer well remembers the hearing before

committees of both houses of

Congress and the strong opposition food

manufacturers presented against the

passage of the national food and drugs act. At that

time we all believed we

were absolutely and honestly right in our

contention, but most of us have

since found that we were wrong, and that working

under proper factory methods

and conditions we can comply with all regulations

called for by the national

food and drugs act and turn out much better products

than under the slip-shod

methods generally used before the passage of the

act.

In the early days of enforcement many of us

thought, Dr. Wiley, that you

were too radical in your ideas of pure food and felt

that you were doing harm

to our industry. When I look back over the changes

that have come to the food

industry during the past twenty-five years and see

the great changes for the

better that have come to our methods and our

products, I wonder why we were

all so blindly asleep as we were and why, much

sooner than we did, we did not

welcome and follow your teaching.

I am glad, indeed, Dr. Wiley, that this

correspondence between us has

started so that I am able to tell you what I have

many times said to my

friends and competitors in the industry, that Dr.

Wiley was many years ahead

of us in his thoughts and we had been terribly slow

in awakening to the

possibilities of pure food manufacture.

We should bear in mind that through the illegal

creation of the Board of Food

and Drug Inspection and of the Remsen Board of

Consulting Scientific Experts,

and by illegally transferring to the Solicitor the

duties of the Bureau of

Chemistry in enforcing the law, probably as much as

$500,000 of public money

appropriated for enforcing the food law was spent in

protecting the business of

adulterators and misbranders and in trying to force

upon the people of Indiana

these adulterated and misbranded products. The

conversion of a man like Mr.

Williams is a most pertinent fact. It is an additional

evidence of the enormity

of the crime commited. against the Food and Drugs Act.

This statement of Mr. Williams illustrates the

wisdom of carrying into effect

the food law in the way the food law itself provides.

It is a much more

excellent way of showing adulterators and misbranders

the desirability of

changing their ways than any amount of coaxing,

persuading and other methods of

procedure intended to wean the offenders of the law

from their habits of

infracting it. Moreover, it is the method of procedure

which the law itself has

laid down, and which the Supreme Court has affirmed

with the added injunction

that all unnecessary delay should be swept aside.

It is interesting to see that in the correspondence

I lately had with Mr.

Walter Williams he informed me that Mr. Grosvenor, who

was his attorney, was

also converted during the Indiana trial and

subsequently moved to Indiana to

establish a very extensive business in the production

of non-benzoated catsup

and other food products.

The record of the Indiana benzoate case will prove

a mine of information to

the subsequent historian who has opportunity and

desire to review the whole

case. Its 5,000 pages of printed matter disclose the

magnitude of the conspiracy

formed in the Department of Agriculture to destroy the

provisions of the

pure-food law and to seek to declare unconstitutional

the Indiana pure-food law.

This record will be found, I feel certain, in the

State library of Indiana, in

the Library of the Federal Court of Indiana, and in

the Library of the Supreme

Court of the United States. The copy which I have

belongs to a private law firm

in the city of Indianapolis. Owing to the courtesy of

this firm I have been able

to keep this copy of the record many years, and during

that time as leisure was

afforded me, I have studied its pages and prepared

from time to time the

abstracts thereof which are here presented. I wish I

could give more space to

this remarkable document.

I cannot leave these topics without summarizing

briefly the testimony which

the State of Indiana, defendant in this case, offered

before the Moss Committee

(pages 531 to 549, inclusive). The first witness

called was Dr. Harry E.

Barnard, Food and Drugs Commissioner of the State of

Indiana, named as one of

the defendants in this case. Dr. Barnard testified to

the fact that Indiana had

a pure-food law and he was the commissioner thereof.

The particular section of

the law which was under fire was Section 2 of Division

7, which reads as

follows:

If it (a food) contains any added antiseptic or

preservative substance

except common table salt, saltpeter, cane sugar,

vinegar, spices, or, in

smoked food, the natural products of the smoking

process, or other harmless

preservatives whose use is authorized by the State

Board of Health, it shall

be deemed adulterated.

Dr. Barnard testified further that the complainants

in filing their suit

asked of Judge Anderson a restraining order preventing

the State Board of Health

from enforcing this law until the hearing for an

injunction was completed. He

explained why the suit was brought in the Federal

Court, that there was no

sentiment in the State favoring the repeal of the law,

that it was supported

enthusiastically by both political parties and that

the press of the state was

unanimously in favor of the enforcement of the law

according to the

interpretation put upon it by the State Board of

Health. He showed that if the

injunction were made permanent it would result in the

repeal of the entire law

and not simply one section of it.

He also testified that all the canners of the State

putting up ketchup and

other products were heartily in sympathy with the law

as interpreted by the

State Board of Health.

 

 

DR. HARRY E. BARNARD,

Former Food and Drugs Commissioner of Indiana

 

Mr. Barnard also explained that he was present at

practically all the

proceedings before the Federal Court and generally

attended the

Attorney-General. of the State, Mr. Bingham, in the

taking of depositions

without the state. He also testified that in taking

these depositions they

frequently were given by employees of the Department

of Agriculture in areas

extending from Maine to California. This part of the

testimony of Dr. Barnard is

quoted verbatim:

Mr. Moss: In the taking of these depositions, did

Curtice Brothers and

Williams Brothers take any testimony from any

employees in the national

Department of Agriculture?

A. They did.

Q. State to the best of your recollection how many

employees of the

Department of Agriculture gave testimony in this case

for the firms of Curtice

Brothers and Williams Brothers.

A. With the exception of two or three young men,

subjects and clerks, any

person who did any work in connection with the

benzoate of soda investigation,

employed by the Department of Agriculture, was

examined. This included all

members of the Referee Board, chemists, physicians,

medical experts, clerks,

stenographers, janitors--everyone who had any thing to

do with the case.

Q. About how many in total.

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

Q. Did the State of Indiana secure testimony from

any employees of the

national Department of Agriculture?

A. We wished to secure the testimony of Dr. Wiley,

Chief of the Bureau of.

Chemistry, and those of his assistants who helped him

in his benzoate of soda

investigation.

Q. Did any of the employees appear voluntarily to

give their testimony on the

request of the State of Indiana?

A, No, we found it impossible to get their

testimony.

Q. Have you any reason to believe that these

employees were personally averse

to giving such testimony.

A. No.

Q. Did any of these employees appear finally and

testify, or give their

depositions.

A. Yes; after we went to the Supreme Court of the

District of Columbia to

compel them to testify.

Q. In actual tests, then, did you find the

Department of Agriculture

cooperating with the State of Indiana in the

enforcement of the pure-food law or

operating in opposition to the enforcement of the

pure-food law?

A. We found the Department of Agriculture opposing

the State of Indiana in

every move which we made to defend the pure-food law

of our State.

This astounding attitude of the Department of

Agriculture, with the exception

of the Bureau of Chemistry of that Department, is the

most remarkable

illustration of how funds appropriated for the

enforcement of the Federal

pure-food law were squandered in helping adulterators

of foods in their attempt

to break down a popular state law with all the

eagerness and enthusiasm, and

moral and material support which a great department of

the Government could

command. Evidence has already been given that the

members of the Referee Board,

during their efforts to break down the Indiana law,

were paid their salaries and

expenses out of the money appropriated by Congress to

carry out the provisions

of the national pure-food law. While no evidence was

asked for in regard to the

persons employed by the Referee Board in their

investigation, and who appeared

as witnesses against the State 6f Indiana, as to the

payment of their salaries

and expenses while engaged in this activity, it is

reasonable to suppose that

they were treated in exactly the same manner as their

principals. This was a

great boon to the complainants as it saved them

perhaps many thousand dollars

which they would have had to pay for the testimony of

over 75 witnesses whom

they called for the support of their complaint.

Attorney-General Bingham was also a witness before

the Moss Committee (pages

537 to 549, inclusive).

Mr. Bingham was asked by Mr. Moss to state

concisely to the Committee just

what was involved from a legal standpoint in the

Indiana Case. Mr. Bingham

replied that the constitutionality of the pure-food

law of Indiana was in

question. No federal law was involved. That if Judge

Anderson sustained the

prayer of the complainants the Indiana pure-food law

would be practically

destroyed. That in so far as he was acquainted with

the public sentiment of the

State it was entirely favorable to the proper

enforcement of the law. Mr.

Bingham reported also that in the case of the Referee

Board he began taking

depositions at Seal Harbor, Maine, and wound up in San

Francisco, California. He

testified that as representative of the State of

Indiana he wished to take the

testimony of employees of the Bureau of Chemistry, and

he first applied to the

Department of Agriculture. Mr. Bingham said he first

approached Dr. Wiley who

informed him that he would prefer that he first

approach Secretary Wilson. He

testified that his request that Dr. Wiley should

appear in Indianapolis was not

granted.

He testified that he next appealed to the President

of the United States. As

a result of this attempt of Mr. Bingham he felt

certain that he could not get

any of the employees of the Bureau of Chemistry to go

to Indianapolis. He was

compelled, therefore, to remove the court to

Washington.

He tells how he first put Dr. W. D. Bigelow on the

stand, who after giving

his name and his profession declined to answer a

question in regard to the

benzoate matter unless he had permission to do so from

the Secretary of

Agriculture. He carried the request to compel the

testimony of members of the

Bureau of Chemistry to the Supreme Court of the

District of Columbia before

Justice Barnard. A lawyer from the Solicitor's office

of the Bureau of Chemistry

appeared before the Judge to argue against the order

requiring the evidence to

be given. The lawyer from the Department of

Agriculture urged that as this was

expert evidence it could not be given without the

consent of the expert. To

which Judge Barnard replied:

" It was about as much expert evidence as if they

had seen a dog fight on

the street and had been asked to testify about it. "

He entered an order that the witnesses should go

before the master and

testify.

I am quoting just now verbatim from page 545:

MR. Moss: I will ask you if at any time during the

taking of these

depositions you received on behalf of the State of

Indiana any encouragement or

cooperation on the part of any official of the

Department of Agriculture.

MR. BINGHAM: Voluntarily, no. But I may say this

for Dr. Wiley. When I said

to him that I wanted to take his deposition and

question him about whether he

would testify as an expert or not-I wanted his opinion

of the results--he said

that he would testify and that he would answer any

questions that were put to

him; that he would not hesitate to testify to anything

that he was able to

testify about.

Q. He explained to you that he was not in a

position to act voluntarily, did

he not?

A. He explained to me with reference to that

particular thing that he did not

propose to have any padlock put on his mouth.

I have given these copious extracts from the

Indiana case because I consider

it to be a most amazing attempt to pervert the

national pure-food law and the

purposes for which it was enacted to protect the

interests of food adulterators

and misbranders.

END OF THE INDIANA CASE

Judge Anderson of the Federal Court of Indiana

decided this celebrated case

in favor of Indiana. It was appealed to the Federal

Circuit Court. The decision

of the lower court was approved.

Appeal to the Seventh Circuit of United States

Court of Appeals in the Case

of Curtice Brothers, vs. Harry E Barnard, et al,

Willis Baldwin, E. 0.

Grosvenor, and John Barton Payne, attorneys for

Curtice Brothers, Thomas M.

Honan, Attorney-General of Indiana, attorney for

Harry E. Barnard. Judge

Kohlsatt delivered the opinion of the Court.

From the evidence and the master's report thereon,

it is evident that the

question of the harmfulness and harmlessness of

benzoate of soda is as yet an

open one in the scientific world. While the voluminous

record of this case deals

largely with that question, it is a question of fact.

The finding of fact of the

master may not in the absence of convincing evidence

to the contrary be set

aside. To show that the report is erroneous and not

justified by the evidence

the burden rests upon the appellant. That burden is

not convincingly sustained

by the record. We, therefore, start with the

proposition that the question is

yet an open one in the scientific world and,

therefore, an open one for the

purpose of this hearing. This being so, it was within

the power of the Indiana

Legislature to prohibit the use of benzoate of soda in

the preparation of foods.

Manifestly, if the Legislature of Indiana in the

reasonable exercise of its

police power and for the welfare of its citizens

condemns as an adulteration the

use of benzoate of soda in the preparation of articles

of food, then in the

absence of a general acceptance of the proposition by

the scientific world that

such is not the case there can as to that matter arise

no question of the

violation of the Constitution of the United States,

or, as here charged, of the

State of Indiana. When deemed necessary by the

Legislature for the public health

property rights such as here involved must give way.

It is therefore apparent

that the position taken by the appellant with

reference to the constitutionality

of the act in question is without merit, as are also

the other matters covered

by the assignment of errors. The decree of the

District Court is affirmed.

At the time of the decision of the Seventh Circuit

Court of Appeals Williams

Brothers of Detroit became convinced that benzoate of

soda was an injurious

substance and withdrew from the further prosecution of

the case. It was carried

by Curtice Brothers to the Supreme Court of the United

States. In 1915

negotiations were begun between the State of Indiana

and the Curtice Brothers

looking to abrogation of hostilities. A stipulation

was agreed upon in which

Curtice Brothers obtained all.they had fought for in

the district and circuit

courts of the United States as follows:

 

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM--1915

The Curtice Brothers Co.)

Appellant,) No. 243

Harry E. Barnard, et al.)

STIPULATION TO DISMISS

Whereas, the statute of the State of Indiana known

as Chapter 104 of the Acts

of 1907 forbids the sale of adulterated or misbranded

drugs and foods within the

meaning of the act;

And whereas, subsequent to the passage of said act,

and under date of

November 10, 1908, the appellees herein notified the

appellants, and the

purchasers of their said products in the State of

Indiana, that the use of

benzoate of soda was illegal in said State, and that

if they wished to find a

market in said State they must not use the same;

And whereas, on the 22nd day of December, 1908, a

bill in equity, being the

bill in equity involved in this case, was filed in the

District Court of the

United States for the District of Indiana, in which an

injunction was prayed to

restrain the defendants, their successors in office,

their agents and servants,

from enforcing their determination to prosecute these

selling appellant's goods

as aforesaid;

And whereas, sundry proceedings were had resulting

in the entry of a decree

in the said District Court of the United States for

the District of Indiana on

June 21, 1912, dismissing said bill in equity;

And whereas from said decree an appeal was taken to

the circuit Court of

Appeals for the Seventh Circuit, which Court, on

October 7, 1913, affirmed the

decree of the said District Court of the United States

for the District of

Indiana;

And whereas, an appeal was taken on August 10,

1914, to the Supreme Court of

the United States from said decree of the Circuit

Court of Appeals for the

Seventh Circuit, which appeal is now pending in said

Supreme Court, entitled,

" Curtice Brothers Co., Appellant, v. Harry E. Barnard,

et al., " and numbered 243

on the docket thereof for the October Term, 1915;

And whereas, since the institution of said

proceedings in the District Court

of the United States for the District of Indiana, the

government of the United

States, acting by its proper officers, hereinafter

named, and under authority of

the Act of Congress, approved June 30, 1906, known as

the " Food and Drug Act "

promulgated a rule authorizing food products

containing benzoate of soda to pass

into commerce between the States, which rule is in the

following language:

" It having been determined that Benzoate of Soda

mixed with food is not

deleterious or poisonous and is not injurious to

health, no objection will be

raised under the Food and Drugs Act to the use in

food of benzoate of soda,

provided that each container or package of such food

is plainly labeled to

show the presence and amount of benzoate of soda.

(Signed) George B. Cortelyou,

Secretary of the Treasury

James Wilson,

Secretary of Agriculture

Oscar S. Straus,

Secretary of Commerce & Labor

(F.I.D. 104, issued March 3, 1909.)

And whereas, the paramount and controlling

authority of the Federal

government over foods in original unbroken packages

entering into interstate

commerce is now recognized and admitted, in accordance

with which recognition

and admission the Board of Health of the State of

Indiana, successors in office

to the said appellees, under date of April 9, 1915,

did promulgate the following

regulations:

" Whereas, the decisions of the Supreme Court of the

United States in cases

concerning the sale of food transported in interstate

commerce, and sold in

original packages, reserve to officials charged with

the enforcement of the

Federal Food and Drug Act the authority to regulate

the labelling and character

of such food, the chemist to the State Board of

Health, who is the state food

and drug commissioner, is hereby instructed to follow,

without exception, the

regulations for the enforcement of the Food and Drug

Act, promulgated by the

Secretary of Agriculture, the Treasury, and Commerce

and Labor, in the

enforcement of the pure food and drug law, Chapter

104, 1907, in the cases of

food sold in interstate commerce in the original

unbroken packages; "

" And whereas, there now, therefore remains no

question at issue before the

Supreme Court of the United States for adjudication

between the parties to said

proceedings, entitled " The Curtiee Brothers Co.,

Appellant, v. Harry E. Barnard,

et al; "

NOW THEREFORE, in consideration of the foregoing,

IT IS HEREBY STIPULATED by

counsel for the parties thereto, that the appeal

herein shall be dismissed

without prejudice, and without costs to either party

as against the other.

(Signed) Lawrence Maxwell,

Counsel for Appellants.

Evan B. Stotsenburg,

Attorney General of the

State of Indiana.

This stipulation gave as a free gift to Curtice

Brothers everything that they

were asking for through both the District and Federal

Circuit Court of Appeals

which it had been denied by both Justice Anderson and

Justice Kohlsatt. The

whole stipulation appears to have been composed by

Lawrence Maxwell, attorney

for Curtice Brothers. It assumes that the contention

of the Curtice Brothers

that benzoate of soda is a perfectly harmless

substance is true. It has never

been pronounced so by a Federal Court. In so far as

experts are concerned, there

is always a difference of opinion, but the far greater

number of experts have

held that benzoate of soda is harmful. Those who used

it have been led by one

cause and another to entirely abandon its use. Even

the persons who sought to

restrict the Indiana State Board of Health from

obeying the rules and

regulations under the State law finally came to see

the error of their ways and

joined the ranks of the non-users of benzoate. The

three Secretaries who signed

Food Inspection Decision 104 had no warrant by law to

make such a ruling. There

was only one authority named by the law to bring an

indictment under the law.

This indictment was not valid unless it was sustained

by the Federal court. The

publication of this order on March 3, 1909 was a plain

violation of law. The

Indiana Board of Health on the 9th of April, 1915,

issued an order forbidding

interference with the sale of benzoated goods as long

as they were in the

original packages. The Attorney-General of the State

of Indiana advised the

commissioner of foods that there were certain

conditions in which imported

packages never ceased to be in the original

containers. This of course is a

reductio ad absurdum. The very moment an Indiana

dealer sells goods it is an act

of intrastate commerce and brings that article

directly under the control of the

Indiana law.

CONTEMPT OF COURT

In my testimony in the Indiana case, Mr. Baldwin,

the attorney for the

complainants in cross-examination endeavored to fix

the responsibility of the

almost unanimous sentiment expressed in the newspapers

and magazines on me. He

asked me if I kept in touch with the progress of the

case. I told him I did as I

was greatly interested in it, that I knew it was under

way and had been pending

for a long while. He asked me this question:

Q. Now then, you have stated your opinion here to

the reporters of the

different papers as to the outcome of that case?

A. I think I have said that I hoped it would be

decided in favor of the State

of Indiana.

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

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

not say so.

Q. You said that to them with the expectation that

they would use those

statements in the press.

A. I think reporters usually do.

Q. It is your experience that they do use those

things.

A. I have no objection to my opinion being

expressed in the public press on a

question of that kind; none whatever;

I have a right to my opinion in this country and

will exercise it.

Q. Didn't you know that it is improper for any

person to express an opinion

as to what the Court was going to do in a pending

case.

A. In what sense? In what way?

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

the newspapers.

A. As to the outcome of the case?

Q. Yes.

A. I did not know that it was improper to express

the hope in a civil suit

without a jury that the decision would be this way or

that. If it were an

illegal or an improper thing I am sorry I said it. I

have done it dozens of

times as to cases I have seen on trial.

Q. You made it in such shape that that opinion

got.into the newspapers?

A. I suppose it did get into the newspapers. I had

no objection to its

getting in.

Q. In fact you wished it to get in?

A. I did not think of that.

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

forced from you.

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

to me.

Q. You voluntarily made those statements?

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

Q. Do you keep a set of clippings from different

papers at all?

A. I am not a r to any agency. I usually

cut out articles in which I

am interested that come to my notice.

Q. And don't you know that those statements of your

opinion were published

generally throughout the country?

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

Q. Don't you know they were published in other

papers than those in

Washington?

A. Oh, I suppose so; I don't know.

Q. Do you know whether they were published in any

Indianapolis papers or not?

A. I do not.

Q. Don't you know they were published in the

Detroit Free Press?

A. I do not.

At this point Mr. Baldwin offered an article

published in the Washington

Post, July 13, 1910. This article related the facts

that at the 66th Convention

of the American Institute of Homeopathy, held at

Pasadena, California, a

resolution was adopted denouncing food-laws that

prohibit the use of

preservatives in food and the use of sulphur in curing

fruit. He stated that

12,000 homeopathic physicians had sent telegrams to

President Taft and Secretary

Wilson in favor of the farmer, the fruit-grower and

the preserving factories and

against the pernicious rulings of Dr. H. W. Wiley,

Chief of the United States

Bureau of Chemistry. The latter part of this clipping

reads as follows:

" Although the American Institute of Homeopathy at

its convention at

Pasadena, Cal., Monday, adopted a resolution

rescinding its action taken last

year condemning the use of benzoate of soda as a

food preservative, Dr. Wiley,

chief chemist of the Department of Agriculture, has

stronger opinions than

ever on that subject. Dr. Wiley's views did not

prevail in the department, as

the board appointed by Secretary Wilson under the

pure food law disagreed with

the chief chemist and sanctioned the use of benzoate

of soda as a food

preservative.

" 'The developments during the last year,' said

Dr. Wiley, 'have

accentuated my opinion as to the harmful character

of benzoate of soda as a

food preservative. I expect to see that view

sustained by the Federal courts,

as the evidence that has been submitted recently in

Indiana cases points that

way.' "

(Page 3460, Indiana Case.)

I never lost faith, in the whole two or three years

during which the Indiana

case was considered, in the character of the outcome.

I think Mr. Baldwin, the

attorney for the complainants, was justified also in

his optimism that the

Referee Board would win. He realized that all the

heavy artillery of the most

powerful government in the world had been brought into

play and directed against

the crackling reports of the short shot-guns fired by

the Bureau of Chemistry.

Later he must have realized the truth of the poem;

Truth crushed to earth will rise again;

The eternal years of God are hers;

While error languishes in pain

And dies amid his worshippers.