FDA History 10

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HISTORY OF A CRIME AGAINST THE FOOD LAW

CHAPTER X: THE PASSING OF THE BUREAU OF CHEMISTRY

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

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

as the “US Bureau of Chemistry.”

 

CHEMISTRY FIRST RECOGNIZED

In the organic act establishing the Department of

Agriculture in 1862, no

scientific department was mentioned. The Commissioner

evidently regarded

chemistry as the dominant science in the promotion of

agriculture. The first

scientist appointed in the Department of Agriculture

was the chemist, Prof.

Charles Wetherell, of Philadelphia. The activities of

the chemist were first

designated as the Division of Chemistry. At a latter

date a more resounding

title was adopted, namely, " Bureau. " The term " Bureau "

has since then been

extended as a name to many activities, not only in the

Department of Agriculture

but in all the other departments and subdivisions of

scientific research. The

whole activities of the Government from the organizing

point of view are now

designated as " Bureaucracy. " In the present

agricultural appropriation bill, as

passed by both houses of Congress and signed by the

President, this original

activity of the Department, viz., the Bureau of

Chemistry, has been eliminated.

This was done without any action of Congress, except

as found in the

appropriation bill. The rule of procedure forbids the

inauguration of new

legislation in an appropriation bill. Unfortunately,

when the bill was before

the House of Representatives no one interposed a point

of order on the abolition

of the Bureau of Chemistry. The Food and Drugs Act

specifically charges the

Bureau of Chemistry with its enforcement. The present

appropriation bill,

1927-28, not only destroys the Bureau of Chemistry,

but violates the law in

transferring the activities of food administration to

a new unit under the

immediate supervision of the Secretary of Agriculture.

Naturally one of the great problems of chemistry in

its application to

agriculture is the study of the soil. The Bureau of

Chemistry did not neglect

this primary activity. There was established in the

Bureau the most extensive

soil investigation that had ever been attempted. The

purpose of this

investigation was to determine the natural

productivity of soils, gathered from

all quarters, and kept under standard environment of

light, moisture and

temperature. Typical soils were secured from the

various states of the Union.

There was added to this collection samples of the.

celebrated field at

Rothamsted, England, which had been cultivated in

wheat for nearly one hundred

years without receiving any artifical fertilizer

whatever. In the midst of these

investigations a new Bureau of Soils was created in

the Department of

Agriculture, entirely distinct from the Bureau of

Chemistry. At the demand of

this new Bureau of Soils all activities of the Bureau

of Chemistry in the

progress of its investigations were ordered

discontinued and the expensive

equipmeni was abandoned and destroyed. At the

instigation of this new Bureau of

Soils, publication of the data already obtained was

denied.

The small remnant of the Bureau of Chemistry after

its separation from the

enforcement of the Food and Drugs Act, under this

illegal action, has been

combined with the Bureau of Soils and has practically

lost its identity.

Chemists in particular in this country should be

inquisitive in regard to the

enactment of such illegal provisions, demolishing a

great Bureau fundamentally

related to the greatest problems in Agricultural

research and public welfare.

The handicap which the small remnant of the old Bureau

will encounter when it is

combined with the dominant Bureau of Soils, creates a

doubt of the most serious

character as to its future prosperity. The theories on

which the Bureau of Soils

has heretofore been conducted have never received the

approbation of competent

soil chemists in this or in any other country. Among

those may be mentioned

three of great renown, namely Professor Hilgard, of

the University of

California, Professor Hopkins of the University of

Illinois, both now passed to

their reward, and Sir Daniel Hall of England, former of the famous

Agricultural Experiment Station at Rothamsted, and now

attached to the. ministry

of health. When changes of this stupendous character

can be made in a way which

is thoroughly illegal and undesirable, it is a threat

to the progress and

welfare of chemistry in the whole country. In former

days the Bureau of

Chemistry was a power in the land. Beginning its

activities in 1863, in 1883 it

led the long fight for the enactment of the Food and

Drugs Bill, which was

finally accomplished on the 30th of June, 1906. When

this law went into effect

on the first of January, 1907, the Bureau of Chemistry

had already made ample

preparations for its enforcement. It had conducted a

long series of experiments

upon healthy young men for the purpose of determining

the effects of

preservatives and coloring matters in foods on health

and digestion. It had

secured from the Congress authority to formulate food

standards which came into

play on the day the Act was to be enforced.

The Bureau of Chemistry started to enforce this Act

in the light of this

preparation. Under the law the Bureau was the sole

judge, in its capacity as

grand juror, as to whether any sample of food or drugs

was adulterated or

misbranded. Its decision was not final, except as to

the bringing of an

indictment. The final decision of all these points was

placed by Congress, very

properly in the Federal Courts, where it naturally

belonged. Those who

adulterated our foods and drugs foresaw that if they

could cripple the

activities of the Bureau of Chemistry, they could save

themselves from

indictments. They proceeded along successful lines to

effect this paralysis. The

decisions of the Bureau in regard to adulterants and

coloring matters and in

regard to proper names and labels were speedily

overturned contrary to the

provisions of the law. The Solicitor of the Department

and the Secretary thereof

joined in this destruction of the functions of the

Bureau. These restrictions

and illegal limitations on the Bureau have never been

removed and finally the

Bureau itself was sacrificed, crucified and abolished.

 

HOW IT WAS DONE

There are many mysteries which, though seemingly

unsolvable, still occupy the

mind of man. Perhaps Conan Doyle in the person of

Sherlock Holmes might have

turned the light on these dark places. Alas! he

didn't. Now he is old and shaky;

his hand trembles and his words stick in his throat,

or, as the Latin poet has

said it, " Vox in faucibus haesit. " We shall never

learn from him who killed Cock

Robin, who struck Billy Patterson, nor what became of

Charlie Ross.

While the death of the Bureau of Chemistry did not

take place until midnight

of June 30, 1927, it had already been irrevocably

decreed. The criminals are

still at large. It is wise to try to unravel this

mystery while we may. Was it

manslaughter or murder in the first degree? Was it

assassination or suicide? Was

it done legally, or was it a clear case of lynching?

 

THE CORPUS DELECTI

First let us produce the corpus delicti. The old

friends of the Bureau of

twenty-five years ago, who know of its struggles and

passion under the assaults

of the successive favorites of the Secretary of

Agriculturel if still living on

that most unhappy day, should come to take a long and

lingering look at the form

of the crucified Bureau, which they will see no more

forever. And those true and

tried friends of the Bureau in its twenty-five years

of endeavor to secure a

national food and drugs act, which it finally did on

June 30th, 1906, come also,

and while remembering the great victory with joy, shed

a tear for the old Bureau

that died on the 21st anniversary of the birth of that

law. Yes, there is a

corpus delicti with no shadow of doubt. Orphaned and

homeless that poor law will

be. No one yet knows what sort of step-father it will

have. Let us hope he will

be kind to the poor waif.

 

CAVEAT

In the following statements relating to the

activities of the officials of

the Department of Agriculture in securing these

fundamental changes in the

functions of administering the food law, there is a

desire to emphasize the

point that they are not of a personal character. The

highest regard is felt for

all these officials. Some of them are personal

friends. This makes their

mistakes more regretful.

The same remark applies to the Bureau of Soils. On

the other hand, the Bureau

of Soils, in respect to academic freedom in research

and publication, and in its

bizarre and thoroughly unscientific theories and its

principal activities, has

been from the start of a nature which has failed to

commend it, both as to

quality and character, to the great majority of

scientific investigators. This

disparagement does not affect the personnel of the

Bureau, nor the late problems

submitted to it.

 

PROVING DEATH

In life insurance adjudication you have to prove

the death of the insured.

Can the death of the Bureau of Chemistry be

established? The following

quotations from the hearings before the appropriation

committee consfdering the

agricultural bill for the fiscal year, 1928, are

illuminating, and leave little

doubt of death.

The Chairman of the committee, in speaking of the

Enabling Act, said:

Q. " I wish to take up now this new language, the

'enabling' paragraph. This

is new language, is it not? "

A. " Yes, sir. The food and drugs act provides

that examination of products

subject to its jurisdiction shall be in the Bureau

of Chemistry. Under the new

arrangement the Bureau of Chemistry goes out of

existence and is supplanted by

this new organization, the food, drug, and

insecticide administration. "

The chairman also calls attention to the demise of

the Bureau of Chemistry in

other parts of the report. He speaks of the " new

Bureau of Chemistry and Soils. "

In another place he mentions the appropriations for

the proposed Bureau of

Chemistry and Soils. In the next paragraph is found

the following statement:

" Under this appropriation we enforce the

so-called pure food law which

controls purity and freedom from misbranding of

foods and medicines. "

This is a,most appropriate designation. Under the

administration of the law

as now conducted it is only a " so-called " pure food

law. Its activities are

confined chiefly to misbranding of foods and

medicines. The real pure food law

was designed principally to protect our foods from

additions of poisonous and

deleterious substances, a feature which has been

almost entirely obliterated by

the present administration of the law. No one could

have found a more

appropriate qualifying phrase than that which is used

above.

In another part of the hearings the Chairman of the

subcommittee asks:

" In other words, this is an appropriation for the

enforcement of what is

known as the pure food law? "

to which this reply was made:

" To insure freedom from misbranding of foods and

drugs. "

This answer confirms the present attitude of the

food administration.

 

WHY WAS IT DONE?

It seems rather strange that after attention has

been called to the fact that

the law confides the examination of samples of foods

and drugs to the Bureau of

Chemistry, the Congress of the United States should

immediately proceed to

destroy that organization. This accentuates the

discussion of how the Bureau of

Chemistry was destroyed. Even granting that the Bureau

wanted to be hanged does

not legalize the crime. That may be an extenuating

fact when the criminals are

sentenced.

If it was a desirable thing to change so radically

the instrumentalities of

enforcing a law, it should have been brought before

the Congress in a legitimate

way. There was no reason why a bill should not have

been drawn making these

changes and repealing the existing law. I am far from

saying that there might

not be a better method of enforcing the law than the

present one. In fact, I do

not think there could be a worse.

The promoters of the destruction of the Bureau of

Chemistry took a desperate

chance in their illegal attempt. They hoped that no

one in the House of

Representatives would kill their efforts by making a

point of order on this

legislation on an appropriation bill. The bluff was

not called. Not a member of

the House objected. That the legislation could have

been prevented by one member

is shown by the following statement of Mr. Lehr Fess,

the House Parliamentarian:

" In reply to your letter of January 10th (1928) 1

am writing to advise you

that the item referred to was subject to a point of

order at the time it was

under consideration in the House. However, no

question of order was raised.

The question of order not having been raised at the

time the matter was under

consideration it can not be subsequently presented. "

 

The Secretary of Agriculture in his report for 1927

states on page 61 that:

" The Federal food and drugs act, designed to

prevent the sale of

adulterated or falsely labeled foods, drags, and

feeding stuffs, is a benefit

to consumers and producers alike. Through its

enforcement the consumer may

feel confident that the products he buys are what

they are represented to be

on the labels and the producer need fear no

competition with low-grade goods

masquerading as high-quality goods. Cooperation with

the various industries in

an effort to keep their products in conformity with

the law and action against

producers found guilty of deliberately adulterating

or misbranding their goods

were continued during the fiscal year just ended. "

The Secretary seems to forget that strenuous

efforts were made pending the

time the bills were before Congress to insert the word

" knowingly " into the

Act. All of these efforts were defeated. For this

reason the dealer who

unwittingly violates the law is just as guilty under

the law as the one who

knowingly and deliberately violates the law. The most

destructive vice that has

for many years been gnawing at the vitals of proper

enforcement of the food law

is the effort now making to protect the producer.

There is no warrant for this

erroneous conception anywhere in the law. Every

reference to the producer in the

law is punitive.

Thus it is clearly seen that the chief activities

of the present

administration are proper branding. The purpose of the

law as a health protector

is of no importance whatever.

Mr. W. G. Campbell, Director of the Regulatory

Service, justifies the

abolition of the Bureau of Chemistry and the transfer

of the Regulatory Service

therefrom, in an article published in the American

Food Journal, January, 1928,

page 24:

" But no effective concerted action against

adulterated and misbranded food

was possible in the United States until the Federal

Food and Drugs Act became

a law in 1907, after some forty years of

investigation and twenty years of

agitation. The Bureau of Chemistry had framed it and

actively endorsed. its

passage for many years. Naturally enough, then,

Congress entrusted its

enforcement to this unit. * * *

" Whenever it became apparent that for lack of

funds or shortage in

personnel one of the two must be temporarily

neglected it was usually the

research work that gave way. "

It was the regulatory work that was provided for

instead of. research. It was

this condition of affairs which resulted in the

destruction of the Bureau of

Chemistry and the creation of a new enforcement unit.

This was exceedingly

drastic action to change what Congress had established

after twenty years of

discussion in the open forum of the Senate and the

House of Representatives. The

cruelty of this punishment and its wickedness is

indicated by the fact that it

was legislation grafted on an appropriation bill, the

consideration of which was

limited to a few hours debate, with no hearings having

been called on the

proposed measure, and no opportunity given to any one

opposing it to be heard.

To continue from Mr. Campbell's article:

" The work of administering the Food and Drugs Act

has in no way been upset

by the recent change in machinery. "

If the work has not been upset nor changed in any

way, why was it necessary

to destroy a great bureau and transfer the enforcement

of the act to an entirely

new unit?

This is a sad story which will be discussed in

another place. In point of

fact, at the very beginning successive attempts were

made to nullify this

provision of the law, placing its enforcement in the

Bureau of Chemistry. During

the debates in Congress on food legislation, on

numerous occasions attempts were

made to divorce the Bureau of Chemistry entirely from

any part in the

enforcement of the law. In every case the proposals

made for this purpose were

overwhelmingly defeated in both Houses of Congress. It

was the plain intent of

the law-makers, after full and free discussion, that

its enforcement should be

in the Bureau of Chemistry. The purpose now is to show

that the present

administration of the Food Law is entirely different

from that intended by

Congress. The death of the Bureau of Chemistry is a

clear case of mob violence.

It was lynched.

The Secretary also refers to the fact that this is

the proper time to lynch

the Bureau of Chemistry in the following statement:

" This is the logical time to make some changes

which could not have been

made before without hurting somebody or doing an

injustice to somebody, which

we did not want to do. But now we must get some new

heads and if we effect

this reorganization before these changes are made,

they will work in with the

new changes and we shall not have to work an

injustice on anybody. "

This means, of course, bringing in more heads of

bureaus. There will have to

be a head and subheads for the new Bureau of Chemistry

and Soils, and there will

have to be a new head for the Food and Drugs

Administration.

INCORPORATION OF THE BUREAU OF SOILS

Secretary Jardine gave as an excuse for putting a

small fragment of the

Bureau of Chemistry with the whole Bureau of Soils the

following pertinent

reason:

" The Bureau of Soils itself needs to be

revitalized. Everybody in this

country that is working with soils realizes that. "

Most truly said. But why does he want to put the

Bureau of Soils into the

Bureau of Chemistry to be revitalized, while he takes

out of the Bureau of

Chemistry a food administration which is needing

revitalizing more than the

Burean of Soils ever did?

The Secretary also has made another discovery which

is most interesting. He

states:

" Then in the Bureau of Chemistry we also have

questions that are closely

related to soils. Thirty years ago it was not so. "

This statement would be interesting to Liebig and

the founders of the

Rothamsted Station in England, Lawes and Gilbert, a

hundred years ago; to the

late Professor Hilgard, who made soils his specialty

during his whole lifetime,

and to Johnson, Hopkins, Snyder, and Goessmann in this

country, Hall in England,

Boussingault in France, and to those other chemists,

too numerous to mention,

who have for one hundred and fifty years regarded

soils a peculiarly appropriate

subject for chemical investigation. One of the great

faults of bureaucracy is

to, claim long-known truths as its own discoveries.

Before the Bureau of Soils

was ever thought of, the Bureau of Chemistry had

developed a scientific

investigation of soils on a strictly practical plan.

It had brought samples of

soils from all the different states and from the

Rothamsted Station in England.

These soils had been carefully analyzed by the most

approved methods, had been

placed in pots carried on railways. It had built a

house to put them under cover

when it rained or when it froze. It had carried on

elaborate cultivations of the

kinds of crops these soils produced under a standard

environment of moisture,

temperature and sunlight. When the Bureau of Soils was

organized the first thing

it did was to demand the entire cessation of

scientific soil investigation by

the Bureau of Chemistry. The Secretary, at the

instigation of the Bureau of

Soils, ordered the soils thus accumulated to be thrown

out, the railway

demolished and the building in which the soils were

kept, razed. Data

accumulated under several years of investigations were

denied publication by the

Bureau of Soils. They still lie in the celebrated

morgue of the Department of

Agriculture, mute witnesses of violence, with many

others of their like, waiting

for Gabriel's trump. Surely the Bureau of Soils needs

a " revitalization. " It

needs more a second birth!

 

PATERNALISM ON THE RAMPAGE

When the Appropriation Bill for 1928 reached the

Senate, a luminous statement

was made by Senator King of Utah in regard to it.

Speaking of the bill he says

(Congressional Record of January 4, 1927, Vol. 68, No.

17, Page 1051):

" The pending bill reveals a parental care that

will put to shame the

Bolshevik or Soviet parentalism. of Russia. We are

soon to have a Federal

official in a Bureau or agency now created--and if

not we will create one--for

every activity of every individual. He will tell us

when to wash our faces,

how to clean our teeth, how to comb our hair, what

kind of clothes we should

wear, and how we shall determine the temperature.

For every conceivable and

inconceivable mutation of life we shall have the

beneficial and blessed care

of some functionary of the government. But let the

merry dance go on! We are

on the highway to Bureaucracy. Let Bureaucracy be

crowned King and make the

appropriations as much as may be desired, and they

regret that they have not

demanded more. So some of these little

appropriations, for instance, like the

Bureau of Mines, or the Biological Bureau, or the

Bureau of Soils, soon become

so powerful that they will want millions of dollars

annually.

 

CRITIQUE OF THE BUREAU OF SOILS

Now let us see what happened in the committee

hearings to the Bureau of

Soils. The following question was asked:

" I want to know wherein the practical benefit is

received by the ordinary

farmer or by the agricultural interests of the

nation from the chemical and

physical investigations of this Bureau we are now

discussing. "

The business of the soil survey is to decide what

is a soil. Nobody ever

did that before. Unfortunately it seems even God

Almighty did not do it. "

The modesty of this answer is something

overwhelming. It seems that the young

man making the survey, who probably was not even

brought up on the farm, ~cam

ride out in a Ford car and look over the fence at a

field and tell more about it

than God Almighty, who. created it, knows. This

faculty of original discovery of

facts long known is not confined to the Bureau of

Soils. It is also

characteristic of other Bureaus in other Departments.

Here is what the man in the Ford car finds out:

" We determine the nature of a soil. We determine

the distribution of that

soil wherever that soil is found. We determine the

characteristics of that

soil. We know then when the soil survey is carried

out that here in a given

place is a certain kind of soil and there is so much

of it. We know the soil

in terms of its characteristics, of its texture, for

example, of its chemical

composition. To be sure when I talk about chemical

composition I cannot say

that it has 2.39 per cent. of potash in it, rather

than 2.37 per cent. of

potash. It would take thousands of years to

determine that; but I can say

whether it has 2.39 per cent. of potash, or 1.5 per

cent. of potash, or .65

per cent. of potash.

For example:

" Let us take Genesee County, New York. We send

out two men into that area,

usually with a Ford car, and they locate themselves

in some spot in the center

of the area to be surveyed. They go over every road

in that county and examine

the soil all along the road. I do not know that I

could say accurately that

they examine every foot of the soil in the county;

but they go along the roads

and also between the roads, so they can undertake to

see all the land in the

county and determine its characteristics. Two men

will survey an average

county containing 600 square miles in about six

months. "

It is thus seen that these two surveyors by driving

along the roads in a Ford

car (I suppose any other make of car would do just as

well) determine all the

characteristics of the soil down to the depth of ten

feet, give it a name, which

is usually the local name of the vicinity, and furnish

all the data to make a

map of that county with apparently never having the

benefit of a single chemical

or physical analysis of the soil. As in a field of

fifty acres, outside of the

glacial region, there may be a dozen different types

of soil, this is some feat.

Of course all these men must be trained agriculturists

or else they could not

tell the character of the subsoil to a depth of ten

feet without having a sample

of it. If they had a sample they couldn't tell

anything about its nature until

they had a chemical and physical analysis thereof.

They must have intellects of

most unusual character and training that few, even

practical farmers, have had,

to make these nice distinctions. Their eyes, too, must

have amazing powers of

telopsis to see ten feet below the surface. The

striking thing about this is the

vast amount of information the man in the Ford car

gathers in about an hour and

a half. So much more information than the Almighty

possesses! If it would take

thousands of years to tell whether a soil has 2.39 per

cent of potash, rather

than 2.37 per cent, the question arises, how many

thousands of years would it

take to get these other data?

Let me quote from another author about this

omniscient scientist in the Ford

car; (of course Goldsmith didn't know anything about

soil-mapping):

" And still they gaz'd, and still the wonder grew

That one small head could carry all he knew. "

But the wonder is not to be restricted. The witness

goes on further:

" Now here we have that soil distributed so far.

The same results can be

effected on that soil wherever that soil is found. "

This is most interesting information. Suppose we

take any one of about a

thousand varieties of soil that have been mapped. We

find one particular soil in

the northern part of Minnesota. The same soil is found

in Missouri. That same

soil is found in Florida. You can grow oranges and

sugar cane on that soil found

in Florida. According to the Bureau of Soils you can

grow oranges and sugar cane

on that soil in Missouri and in Northern Minnesota.

Knowledge of soil is rapidly

growing! This is emphasized by the rhyme:

" When the Sea rolled its fathomless billows

Across the broad plains of Nebraska,

When around the North Pole grew bananas and willows,

And mastadons fought with the fierce armadillos

For the pineapples grown in Alaska. "

Speaking of the soil survey man it is stated:

" When his experiments have been carried out, when

he obtains his result in

the end--it may be a good long while, experiments

are necessarily slow always,

it takes a good long while to find them out,-but

when he has found out that on

a given soil certain results are obtained, then if

the soil survey has done

what it ought to do those same resulta can be

effected on that same soil

wherever that soil is found. "

To this I may say that if the soil survey has done

what it ought to do it

would take several thousand years of experiment before

there would be

justification for publishing a single soil map.

The questioner did not seem to be quite convinced.

He asked some other

troublesome questions in regard to how all these data

were obtained, and

especially what the chemists were doing. He was

informed:

" Well he (the chemist) assists. I am talking now

of what he does in

relation to the soil survey. He helps us to

determine what the characteristics

of soils are. You see in the soil survey we do not

maintain laboratories

because there are other laboratories and there is no

use in duplicating.

Considering the intimate knowledge which is

obtained by the soil survey in a

Ford, it is interesting to know how much ground is

gone over. In answer to the

question, How is your work progressing? thefollowing

information was elicited:

" Very well; we are covering now, I cannot give

you the exact figures in

square miles, something like 25,000 to 30,000 square

miles per year; possibly

a little more than that. Two men will survey an

average county containing 600

square miles in about six months.

Another embarrassing question was asked:

" I am talking about the maps. I want to know what

practical use the people

who get these soil surveys put them to. "

He was told:

" Sometime ago I picked up a copy of Hoard's

Dairyman, and in that Journal

there were two photographs; one., a photograph of

the roots of alfalfa grown

on one soil type, and the other was a photograph of

the roots of alfalfa grown

on another soil type. I believe one lot was grown on

bottom land and the other

was grown on upland soil. Now let me stick a pin in

it for a moment and go to

another thing.

(The questioner.) " We will put a twenty-penny

nail through it. "

To this came the response, going one better:

" Or a railroad spike. The soil survey map shows

the characteristics of the

soil, not only on the surface, but down to a depth

of, say, from six to ten

feet. In other words, it shows the soil all the way

down. "

All this intimate information from 30,000 square

miles a year! C'est

magnifique!

Many questions were asked as to what benefit to the

farmer came from the soil

survey. It was the opinion of the Committee that the

chief benefits that the

farmer got from the soil maps was in the fact that

they gave all the roads. The

particular thing it wanted to know was what practical

use ihe people who get

these soil maps put them to. The answer was that the

county agent is really the

man to interpret the maps. That may be true now, but

when the maps were first

printed there were no county agents.

~ It finally developed that about 35 per cent of

the agricultural portion of

the United States has been mapped. At this rate the

soil survey will last until

about 1980. The number of different kinds of soils

will be nearly 3,000 and

oranges will be growing in Alaska. The different types

of soils which have

already been given distinctive names are well up

toward athousand.

 

A REAL SURVEY

While this so-called soil survey has been going on

now for nearly thirty

years, costing, exclusive of the printing,

approximately five million dollars,

another real survey and mapping has been made by the

geological survey.

Numerous contour maps, showing the altitude and

physical characteristics of

the soil, have been published. Now the geological

survey has introduced aerial

photography as a salient feature of the work. They do

not simply look at the

fields from a Ford car. They show them as they are.

" The War Department cooperates with the

geological survey in this useful

work. Each photographic unit has an enlisted pilot

and photographer and

airplane. As to the area covered, the phenomenal

extent of the Soil Bureau

sinks into insignificance. One detachment in 1926

photographed 9,000 square

miles. Another this year has assigned to it 8,000

square miles. Another unit

has been assigned 4,000 square miles in Illinois and

will then begin

photographic work in Michigan and Wisconsin. "

(Science, August 19, 1927, page

165.)

There is a growing feeling that the whole system of

soil survey is a gigantic

caricature of applied science; .in other words, it is

simply " bunk. " This

feeling was a general one at the very beginning of the

activities of the Bureau

of Soils. It was not confined solely to the Soil

Survey, but to the theories put

out by the Bureau of Soils. Their famous Bulletin No.

22 was vigorously assailed

by the leading agricultural chemists of this country.

Among these there was none

of greater eminence than Professor Hilgard of the

University of California. Dr.

Hilgard says (Science, New Series, Vol. 18, No. 467,

Dec. 11th, 1903, page 755):

" Now the criterion usually applied to the

relevancy of soil analyses is

whether they will stand the test of agricultural

practice. Judged by this

test, both the ultimate analysis and that by

distilled water are, equally,

failures, according to Whitney's own testimony. But

his conclusion is that

since his method fails as a criterion of rich and

poor soils, therefore the

chemical composition of soils has no bearing upon

the crop production; and

that, therefore, the chief factor determining the

yield is 'the physical

condition of the soil under suitable conditions.'

" To this assertion 'non sequitur!' is the

obvious flrst answer. * * *

" The recent enunciation of the Chief of the

Bureau of Soils, while still

maintaining the preferential claim for the physical

properties of the soil, at

least admits the importance of the functions of

plant food; but claims that

fertilization is unnecessary because the supply

would be 'indefinitely

maintained.' He in fact takes us back to the times

of Jethro Tull and the

Louis Weedon system of culture, which also

presupposed the indefinite duration

of productiveness; but signally failed to realize it

when the test of even as

much as twelve years came to be applied.

" In the foregoing discussion, only the salient

points of the bulletin in

question have been taken up, and their most obvious

weaknesses briefly

considered. To do more would involve the writing of

a paper as long as the

bulletin itself; and it is to be hoped that the

matter will be taken up by

others, also. Thus, for instance, Rothamsted Station

might have something to

say regarding the singular interpretation here put

upon the splendid work of

Lawes and Gilbert.

" In conclusion, it seems to the writer that the

verdict upon the main

theses put forward so confidently in this paper must

be an emphatic 'Not

proven!' "

Dr. A. D. Hall published in Nature, November 9

1903, an article entitled " A

New Theory of the Soil. I quote the following:

" Though Dr. Whitney's main argument is thus

hardly tenable on his own

showing, certain side issues are worth a little

notice. Dealing with the

action of fertilizers, he notices that, while the

wheat crop on the best

fertilized plot at Rothamsted averages about 33

bushels, on the plot which has

been unmanured for sixty years it has fallen to 12

or 13 bushels. Yet on the

similarly unmanured plot in the Agdell field, where

the wheat is grown once

every four years in rotation with roots, barley and

clover or fallow, but

little falling off is apparent. Hence he concludes

that, in virtue of the

rotation, the fertility of the Agdell field is

unimpaired, whereas in the

continuous wheat field 'the decrease can be ascribed

only to some physical

change in the soil, to some chemical change other

than the actual loss of

plant food taken up by the crops.' But when any

other crop on the unmanured

plots in Agdell field is considered, the decline in

fertility is enormous;

roots and clover only yield minimum crops; so far as

they are concerned the

cultivation of the soil involved in the rotation has

been quite unable to

maintain the fertility. The wheat, with its powerful

root system, holds up

better, but its production is falling steadily; it

Is important to see how

long it will be maintained, though it need never be

expected to fall to the

level of the continuous wheat, because the land is

practically only cropped

every other year.

" Suggestive as Dr. Whitney's memoir must be to

all agricultural chemists,

we thus do not consider that the main theory it

propounds possesses any

permanent value. We should be sorry if we have

failed to appreciate the

argument properly, but it, is not always easy to

follow, the text being

somewhat deficient in sequence and orderly

arrangement; indeed, we are

disposed to think that had the question been set out

a little more nakedly at

the outset, and the demonstration marshalled with

more precision, a somewhat

different conclusion would have been reached by the

authors. "

This array of soil chemical talent was joined by

Professor Hopkins of the

University of Illinois, who published a serious attack

upon the theories and

practices of the Bureau of Soils. Professor Snyder of

the Experiment Station of

Minnesota joined in this assault. The chemists of

Cornell University also lent

their aid to combating these theories. No one of the

unscientific theories of

the Bureau of Soils was ever approved by the

Association of Official

Agricultural Chemists of the United States. These

theories of soil fertility

were all built upon the sand and have long since

passed away. Our young

chemists, who are not acquainted with all these facts,

would find it interesting

to review the literature to which I have just alluded.

Professor Hilgard was

constrained to ask the following questions:

" Is freedom of research restricted in the

Department as respects soils, and

is everybody in the Department required to believe

in the theory of the Bureau

of Soils or to express no opinion whatever in any

official capacity? Is the

right to use the soil for research purposes abridged

in the Ddpartment of

Agriculture, and if so, to what extent? Are the

theories of the Bureau of

Soils accepted by reputable authorities in this and

other countries? "

The first and second questions he answered in the

affirmative. The third

question he answers strongly in the negative.

 

A LONG WAIT FOR THE RECOVERY

More than thirty years have passed since the Bureau

of Soils was established,

and since the Bureau of Chemistry was denied the

privilege of any further

research in soils. Now the Bureau of Soils with all of

its unfortunate and

unsavory history is combined with what little is left

of the Bureau of

Chemistry, both to be under a common head. May we hope

that this head will not

believe in any of the vagaries which have

characterized the Bureau of Soils

during its long history, and may he be a man who will

never raise his finger or

his voice to prevent ethical research in any branch of

science pertaining to

chemistry in all its ramifications, or to soils in all

the innumerable varieties

into which they have now been divided.

 

AN UNFORTUNATE EXCHANGE

What has the Bureau of Chemistry given up? It has

given up all it has

acquired in its long and useful career. It has been

denied a service to humanity

which, if it had been rendered in the spirit of the

law which it represented,

would have proved the greatest blessing to the health

and welfare of a nation. A

service of this kind is one in which no person

informed in regard to the matters

could have raised the question of cui bono so

vigorously advanced in the

hearings before the appropriation committee on the

present Agricultural bill.

Finally it has given its life. , We may ask: What

would have happened in that

Congress of 1906 if some one interested in

adulterating foods had moved to

abolish the Bureau of Chemistry? Outside of

sympathizers with adulterators, it

would not have received a single vote in either House

or Senate. Those who

engineered this legislation through Congress have thus

accomplished the crime in

which their predecessors of twenty-one years ago so

signally failed. Tempora

mutantur et nos cum illis mutamus. It was a poor

trade. It will take the new

organization many years to live down the bad

reputation of one of its

components. Let us hope that the influence of the new

Bureau of Chemistry will

cause a radical reform in its new spouse, which will

make her unrecognizable in

the near future. What kind of wife has it divorced in

order to consummate this

companionate marriage?

Let the old Persian poet and philosopher, Omar,

speak:

" You know, my friends, with what.a brave Carouse

I made a Second Marriage in my house;

Divorced old barren Reason from my Bed,

And took the Daughter of the Vine to Spouse. "

On the other hand, the new Bureau of Chemistry has

lost the opportunity of

ever returning to the fundamental principles of the

food law which have been so

thoroughly turned aside. Thus it can never regain the

public confidence and

enthusiastic support which the late Bureau merited by

its leading influence in

securing the enactment of the Food and Drugs Law. The

Bureau of Chemistry is

dead. Those who lynched it should shudder when the

people know all the facts of

the murder. The plea of insanity will not avail.

 

ANTAGONISM BETWEEN RESEARCH AND PRACTICAL CHEMISTRY

The new Bureau is to conduct certain fundamental

researches on the chemical

composition of foods, and on the changes that take

place in foods as the result

of the action of micro-organisms. In regard to this

transfer the following

statement was made:

" That it is work that has heretofore been done

under the food and drugs act

appropriation. It is research of a rather

fundamental type; although necessary

for food and drugs act enforcement, it seems more

logical to place that work

in the Bureau of Chemistry and Soils. "

This is rather an effort to suppress investigations

among that class of

chemists who are best suited to carry them on in so

far as food administration

is concerned. In many other places in the hearings and

in the original statement

of the Secretary of Agriculture this restriction of

research is stressed.

Not only was the demise of the Bureau of Chemistry

thus caused, but the

chemical work is now transferred to another unit under

the regulatory system

where denial of research is plainly indicated.

The Secretary of Agriculture himself has just

discovered the antagonism

between research and practical chemistry. In the

hearings he made the following

statement, after acknowledging that research and

practical chemistry had gone

hand in hand up to the present time, and especially in

the institution with

which he was connected:

" Research work and regulatory work do not mix any

more than water and oil.

We just grew up that way and we have developed to a

point now where we think

the regulatory work ought to be in another

department by itself, rather than

being in with research. At the present time we have

an opportunity to work out

this consolidation.

 

RESEARCH

It is evident that the legislation abolishing the

Bureau of Chemistry and

establishing a new Bureau of Chemistry and Soils and

transferring the food

activities to a new department in direct violation of

existing law was a

regrettable mistake. One of its purposes was the

discouragement of research by

the chemists employed in the regulatory unit. This was

a feature of great

importance to the force of the old Bureau of

Chemistry. In all matters of

research those who are studying these problems must be

in direct contact with

the problems themselves. This is particularly true of

research in the problems

relating to foods and drugs. If the problem is not

before the research worker he

would be up in the air all the time as to what to do.

The problem must be before

the research chemist. He must have an opportunity to

study all the relations of

these problems to the industry itself; otherwise he

would be groping blindly in

his attempts to find out any new principles which are

basic in the particular

industry which he is examining. There is no branch of

investigation that needs

more research than is found in the problems which

arise in the very numerous

conditions springing from the new foods and drugs

administration.

In Science of April 1, 1927, page 307, Professor

Metcalf makes the following

statement:

" We believe that every normal individual is born

with some endowment of the

research spirit--the inquiring mind given to trying

to find out by exercise of

its own powers. Normal children are full of natural

curiosity and they have to

a fair degree the habit of experimenting; that is,

they are endowed with

something of the research spirit.

" We believe that this mental habit of learning by

self-reliant experiment

should be conserved and strengthened from the

beginning throughout life. We

believe that all education, from pre-kindergarten

age on through the

university, should have this encouragement of the

spirit and habit of research

as a main object. We believe that no worth-while job

in life can be done with

proper effectiveness in any other spirit. We believe

that, in all education,

learning through self-reliant experiment and

exercise of individual judgment

should dominate and that the habit of stopping with

faith in the printed

statement in the textbook should be avoided as

leading to fatty degeneration

of the mind and soul. We believe that teaching

should be conducted only by

those who have the research attitude themselves and

have ability to cultivate

it in their pupils. "

 

NO NEED FOR THIS RADICAL LEGISLATION

Dr. Browne, before accepting the position as Chief

of the Bureau, made it

clearly known to the Secretary that he was not

disposed to take any active part

in the execution of the Food and Drugs Act. As Chief

of the Bureau he, of

course, would sign all Bureau orders. He was promised

that his wishes in this

matter would be respected. In the report of the Chief

of the Bureau of

Chemistry, published September 1, 1926, for the fiscal

year ended June 30, 1926,

Dr. Browne was able to record the fact that his wish

had finally been entirely

realized. He says on page 21:

" A reorganization of the regulatory work involved

in the enforcement of the

Food and Drugs Act, the Tea Inspection Act, and the

Naval Stores Act was

effected during the year; all such work being placed

under the immediate

supervision of an assistant chief appointed for the

purpose.

Dr. Browne had thus succeeded in securing his

freedom from personal attention

to the execution of the Food and Drugs Act which had

long been his ambition and

which had long been promised to him. The Bureau was

then in the position he

thought it ought to occupy and his duties were left

untrammeled by any personal

supervision of the enforcement activities. In the very

next year after this very

desirable condition of affairs was established, the

amazing effort was made--and

a successful one--to separate entirely the regulatory

work of the Food and Drugs

enforcement from the Bureau of Chemistry.

 

RADICAL CHANGE OF ATTITUDE

The present attitude of the Food and Drugs

enforcement is well expressed by

the Secretary of Agriculture in his report for 1926,

page 91. In speaking of the

Federal Food and Drugs Act, he says:

Progress was made in promoting the purity and

truthful labeling of food and

drugs through the enforcement of the Federal food

and drugs act. This year is

the twentieth anniversary of the enactment of the

law. The department looks

upon this act as a corrective measure rather than a

punitive one and, in

enforcing it, endeavors to render assistance to the

industries in improving

their products. * * * The educational methods

followed by the Federal and

State food officials have been effective both

in.saving an industry from great

losses and in enabling consumers to obtain an

unobjectionable product. * * *

It was found that the educational and regulatory

campaigns had accomplished

commendable results. Notwithstanding rather

comprehensive sampling, no goods

of last season's pack were found of a character

warranting action under the

Federal food and drugs act.

When individual concerns persist in violating the

law, or when violations

involve deliberate fraud either through adulteration

or misbranding, the full

penalties of the law are invoked to correct the

trouble.

A careful study of the Food and Drugs Act shows

that there is no warrant in

any one of its provisions for these dilatory tactics.

Congress provided a period

of six months in which manufacturers could study the

meaning of the law. Now

after twenty years the big business of flouting the

law is still encouraged.

There are no corrective features in the law. Every

section of this law is

directly or indirectly punitive. There is no clemency

for ignorance or accident.

There is no requirement that the offender has

knowingly or willfully offended

the law. An amendment to that effect was rejected when

the bill was before

Congress. There is no provision for inviting

manufacturers to a conference

except when the Bureau of Chemistry has found that

their products are either

misbranded or adulterated. Then a hearing is accorded

under the law on questions

of fact.

The whole attitude of the enforcing officers is to

postpone all punitive

measures just as long as possible. They beg offenders

to cease offending instead of bringing them before the

Court and executing the law as provided by the law

itself. It was intended by Congress that these

punitive features should be

enforced. The Secretary of Agriculture is directed by

the law to transmit

without delay the findings of the Bureau sent him to

the Department of Justice,

which is directed to bring action immediately. Where

can the enforcing officer

find his authority for endless delay?

It is not at all strange that when the head of.a

department, as has just been

shown, chooses to depart from the methods of

enforcement laid down by the law to

those which he claims through experience to have found

to be more effective,

that his subalterns fall into the same state of mind.

This was shown

particularly in the address of the Assistant Secretary

of Agriculture, Hon. R.

W. Dunlap, of Ohio, before the Convention of the State

Food and Drug officials

at Denver, in 1925. Mr. Dunlap as Food and Drug

Commissioner of Ohio was a

militant enforcer of law. It was hoped that one with

his record would bring the

spirit of rigid enforcement into the Food

Administration at Washington. This

would replace the theory which had grown up under the

impression that the law

was not made to be enforced but only to be used as an

educational agent in

bringing infractors to a sense of their crimes. There

was hope that at last we

had come to the turning point of the whole matter and

that the Assistant

Secretary would throw the whole weight of his

experience and training on the

side of strict law enforcement. Alas! it was first at

Denver, in 1925, that it

was found that he had been infected by the sleeping

sickness of educational

procrastination as a dominant principle in law

enforcement. The following

quotation is from his address at Denver in 1925 (page

76, Official Proceedings

of the Twenty-ninth Annual Conference of the

Association of Dairy, Food and Drug

Officials of the United States):

" No longer do you gefitlemen regard the total

number of seizures

accomplished or of criminal prosecutions instituted

or the aggregate of fines

collected as a measure of efficiency in enforcing

the laws entrusted to your

care. The broader view, I think, universally

prevails that an enforcing

official who as a result of his efforts can point to

a trade within his

jurisdiction intelligently and wholeheartedly

complying with the law, thus

insuring full protection to the purchasing public as

well as fair and

equitable competitive practices has done more to

merit the confidence not only

of the public which he protects but of the industry

which he regulates than

one who by virtue of threats of penalties and

confiscation procures an

unwilling compliance rather than the support of the

law he is administering. *

* * Through the adoption of this theory of control,

costs of litigation have

been eliminated and a constructive leadership

maintained to the benefit of all

concerned. * * * The Department, as many of you

know, now carries on its food

and drug law enforcement through the Bureau of

Chemistry under an organized

plan of procedure along very well defined lines,

known as the project plan of

work. Certain industries are investigated throughout

the entire country for

the purpose of determining what violations if any

exist and then of taking

appropriate steps toward their correction. By this

means a uniformity of

action against every member of an industry is

insured and the maximum

corrective effect is obtained through educational

means, to be followed by

punitive action in those cases where educational

measures are ineffective. "

Thus we find this militant state official who

fought the whole array of

adulterators and misbranders at the Denver Convention

in 1909 praising a method

of enforcement of the Act which is not found anywhere

in the Act nor by any

possible construction of any of its features.

It may well be asked why after twenty years of

experience manufacturers have

still to be cited to kindergarten instruction as to

the meaning and purport of

the Food Law? As a rule, manufacturers of foods are

fully informed as to the

requirements of the Food Law, both of the nation and

of the state. If they are

not so informed it is their own fault. There is no

requirement that these

schools of instruction should be established and the

money appropriated by

Congress for the enforcement of an Act be used for the

purpose of instructing

manufacturers as to their duties under the Act.

Mr. Paul Dunbar, head of the regulatory division in

the Bureau of Chemistry,

in a recent article in the Oil, Paint and Drug

Reporter under the head " Trade

Warnings Issued, " says:

" If, on the other hand, the infraction is one

which appears to be the

result of a misunderstanding and the ensuing damage

to the public is not of

such a character as to require immediate removal of

the goods from the market,

it is the practice of the bureau before initiating

regulatory action to give

notice to the trade, advising that on or after a

certain date legal action

under the food and drug act will be instituted if

continued violations are

encountered. Where the facts seem to warrant it such

notice may be preceded by

a public hearing at which interested parties are

accorded opportunity for free

discussion.

" Opinions may differ as to what types of

violation are of such character as

to require drastic action, and what may be tolerated

for a time sufficient to

give warning to the responsible manufacturer. * * *

" The decision as to what course shall be taken in

any particular instance

rests with the administrative officials of the

Bureau of Chemistry in

Washington or the Director of Regulatory Work. * * *

 

" Substantially the only thing the food and drugs

act requires of a

manufacturer is that his products be fit for use and

that they be not labeled

so as to deceive, mislead or defraud the purchaser.

* * *

" It is the bureau's theory that more is to be

accomplished by acting in an

advisory capacity under such conditions as will

insure legal products than by

accumulating a record of successful prosecutions

with attending flues turned

into the Treasury of the United States. "

Thus we see, through all the branches of food

enforcement activities, this

laissez faire principle. There is no longer any virtue

in applying the penalties

prescribed by law. There is no longer any adulteration

that threatens health.

Business must be preserved. Penalties were intended as

aids to reformation. They

are not now to be inflicted except as a last resort.

Such is the regrettable

condition into which law enforcement has fallen.

 

AN INTERESTING STORY OF COCA-COLA

Many other instances of softness in food-law

enforcement may be cited. Early

in the history of the activities of the Bureau of

Chemistry in its efforts to

carry out the provisions of the food law evidence in

relation to the Coca-Cola

habit, especially in the South, was procured. The

character of this evidence was

sufficient to induce the enforcing officers to bring

charges against Coca-Cola

under the Food and Drugs Act. A number of seizures of

the goods in transit was

recommended and criminal charges against the

manufacturers and dealers were

formulated. It was impossible to get any of these

accusations endorsed by the

Board of Food and Drug Inspection. Finally the Bureau

of Chemistry was ordered in writing, over the

signature of the Secretary, to cease its activities in

 

trying to bring Coca-Cola to the bar of justice. A

short time after this order

was received Mr. Seely, proprietor of an influential

newspaper in Atlanta, paid

the Bureau a visit. In the course of his conversation

he asked why no case had

ever been brought against the Coca-Cola corporation.

In answer to this question

he was shown the order of the Secretary of

Agriculture, forbidding the Bureau of

Chemistry from making further efforts in this line. He

was greatly astonished

that the Secretary of Agriculture had thus interfered

with the administration of

justice. He immediately called on the Secretary of

Agriculture, and he entered a

vigorous protest against the policy of the Department

in protecting adulterators

and misbranders of foods. He stated to the Secretary

that unless this order was

recalled he would publish all the details in the

matter in his newspaper. The

Secretary promptly recalled the order and directed the

Bureau to proceed with

its activities. The officials of the Bureau desired to

bring the case in the

District of Columbia, as more convenient for the

Government in assembling its

evidence and experts. Two members of the Board of Food

and Drug Inspection were

determined that the case should be brought in

Chattanooga. In the latter city

the Coca-Cola Corporation had its chief bottling

works. They also owned large

bodies of real estate, including the principal hotel.

The whole environment at

Chattanooga was favorable to the Coca-Cola industry.

The Department was put to a

large expense to send its scientific officers so far

away from the base. It was

equivalent even to trying the case in Atlanta, if that

had been possible under

the law.

The result of this trial, which was a long drawn

out one, lasting over three

weeks, is found in Notice of Judgment No. 1455. The

case was warmly contested.

Experts testified on both sides and with the usual

contradictory testimony,

which it is not advisable even to summarize here. When

the evidence was

completed, the attorneys of the defendant moved to

dismiss the libel on the

ground that caffein (caffeine), which was the chief

injurious substance in Coca-Cola, was

not an added substance because it was mentioned in the

original formula. The

presiding judge, the Hon. E. T. Sanford, granted this

motion, and the case was

therefore dismissed.

The Department of Justice appealed the case to the

United States Circuit

Court of Appeals of the sixth district. This court

sustained the action of the

court below. (Notice of Judgment No. 4032.) The

Department of Justice then

appealed the case to the Supreme Court of the United

States. The unanimous

opinion of the Supreme Court held that the courts

below erred in their decision,

and the case was remanded for a new trial. This action

of the Supreme Court is

detailed in Notice of Judgment No. 4801 issued

Septembher 18, 1917. The opinion of the Supreme Court

was written by Justice Charles E. Hughes. Justice

Hughes' decision contained the following principal

points:

" The questions with respect to the charge of

'adulteration' are (1) whether

the caffein in the article was an added ingredient

within the meaning of the

Act (section 7, subdivision 5) ; and if so (2)

whether it was a poisonous or

deleterious ingredient which might render the

article injurious to health. The

decisive ruling in the courts below resulted from a

negative answer to the

first question, * * * but it was concluded, as the

claimant contended, that

the caffein--even if it could be found by the jury

to have the alleged

effect--could not be deemed to be an 'added

ingredient' for the reason that

the article was a compound known and sold under its

own distinctive name, of

which caffein was a usual and normal constituent. "

Justice Hughes discusses in considerable detail the

claims of the defendant

and then continues as follows:

" Having these considerations in mind, we deem it

to be clear that whatever

difficulties there may be in construing the

provision, the claimants' argument

proves far too much. We are not now dealing with the

question whether the

caffein did, or might, render the article in

question injurious; that is a

separate inquiry. * * * We think an analysis of the

statute shows such a

construction of the provision to be inadmissible, *

* * nor can we accept the

view that the word 'added' should be taken as

referring to the quantity of the

ingredients used. It is added ingredient which the

statute describes, not

added quantity of the ingredient, although, of

course, quantity may be highly

important in determining whether the ingredient may

render the article

harmful, and experience in the use of ordinary

articles of food may be of the

greatest value in dealing with such questions of

fact. * * * We can see no

escape from the conclusion that it is an added

ingredient within the meaning

of the statute. "

Justice Hughes also comments on the claim made by

the defendant that

Coca-Cola was not a misbranding, but that it was a

distinctive name, and he

continues as follows:

" We are thus brought to the question whether if

the names 'Coca' and 'Cola'

were respectively descriptive, as the Government

contends, a combination of

the two names constituted a distinctive name within

the protection of the

proviso in case either of the described ingredients

was absent. * * * In the

present case we are of the opinion that it should

not be said as a matter of

law that the name was not primarily descriptive of a

compound with coca and

cola ingredients as charged. Nor is there basis for

the conclusion that the

designation had attained a secondary meaning as the

name of a compound from

which either cocoa or cola ingredients were known to

be absent; the claimant

has always insisted and now insists that its product

contains both. But if the

name was found to be descriptive, as charged, there

was clearly a conflict of

evidence with respect to the presence of any coca

ingredient. We conclude that

the court erred in directing a verdict on the second

count.

" The judgment is reversed and the cause is

remanded for further proceedings

in conformity with this opinion. "

The above decision of the Supreme Court, discussing

as it did all the angles

of a legal character, completely demolished the lines

of defense established

during the trial, having decided on both counts, first

that caffein was an added

substance, and second that Coca-Cola was a descriptive

and not a distinctive

name. The subsequent proceeding before the court must

of necessity result in

victory on the part of the Government. It was a long

while, however, before the

case was called for retrial in harmony with the

injunction of the Supreme Court.

The case was called in the District Court of

Tennessee at Chattanooga on

November 12, 1917. The defendants, otherwise known as

the claimants in the case,

entered a plea of nolo contendere. On motion of the

district attorney the court

passed the following sentence:

" ' Now, therefore, the premises considered, it is

ordered, sentenced and

adjudged by the court, now here, and His Honor, the

district judge, by virtue

of the power and authority in him vested, does

hereby order, sentence and

adjudge that the goods, wares and merchandise seized

in this proceeding be,

and the same are hereby forfeited to the United

States, and that the said

Coca-Cola Company pay all costs of this proceeding.

And it is further ordered

that the said goods, wares, or merchandise, seized

herein, to wit, the forty

barrels and twenty kegs of Coca-Cola, shall be

released to the claimant upon

said claimant paying the cost above adjudged and

giving sufficient bond,

conditioned that the product shall not be sold or

otherwise disposed of

contrary to the provisions of the Federal Food and

Drugs Act, or the laws of

any state, territory, district, or insular

possessions of the United States. "

Added to this decision is the following paragraph:

" It is further ordered, adjudged and decreed

that the judgment of

forfeiture shall not be binding upon the said

Coca-Cola Company or its

product, except as to this cause, and the particular

goods seized herein, nor

binding upon the claimant and its product as it

shall relate to any other

cause or proceeding of any kind or character. "

This paragraph was evidently interpreted by the

food enforcement officials to

forbid any further proceedings against the Coca-Cola

Company or its product on

the part of the administrative authorities executing

the food law. In any case

the answer is that it is not binding on anybody except

the Coca-Cola Company and

further that it did not stop the executive authorities

enforcing the food law

from further proceedings against the Coca-Cola Company

or any of its products.

No attempt was made by the executors of the food law

to enforce the decree of

the courts by beginning action against Coca-Cola

products every time they

crossed a state line. Under the opinions of the

Supreme Court such proceedings

would have been uniformly successful. Owing to a lack

of these proceedings the

Coca-Cola Company has its stock now listed on the New

York Stock Exchange. Its sales have been enormously

increased, invading the North, as they previously

invaded the South. The effects of drinking caffein on

an empty stomach and in a

free state are far more dangerous than drinking an

equal quantity of caffein

wrapped up with tannic acid in tea and coffee.

(emphasis added) The threat to health and happiness of

our people is reaching far greater proportions due to

this

expansion of trade. The governors of the New York

Exchange have admitted the

stock of the Coca-Cola Company, the products of which

have been condemned by a United States Court as both

adulterated and misbranded. This baleful condition

could have been easily avoided if the enforcing

officers had raised their hands

in protest against the further development of this

business by seizing its

products and bringing criminal action against its

manufacturers.

Another interesting story would have been clarified

if the Supreme Court

could have passed an opinion on the immunity granted

the Coca-Cola Company by

the court.

 

THE PATHETIC STORY OF BLEACHED FLOUR

A further illustration of law enforcement

negligence is found in the bleached

flour case. On or about April 11, 1910, the Lexington

Mill and Elevator Company

shipped from Lexington, Nebraska to Castle, Missouri,

a consignment of six

hundred twenty-five sacks of flour, labeled " L 48-1

pounds Lexington Cream XXXXX

Fancy Patent. This flour is made of the finest quality

hard wheat. Lexington

Cream--Lexington, Neb.--Lexington Mill & Elevator Co. "

In due course libel was filed against the said 625

sacks of flour, charging

that the product was adulterated and misbranded, and

praying seizure and

condemnation of said flour. In due course the case was

called in the District

Court of the United States in the Western Division of

Missouri, by Arba S. Van

Valkenburgh, District Attorney. Fortunately, the

United States was able to

secure as associate counsel for the prosecution of

this case Mr. Pierce Butler,

who assumed the principal rôle of the prosecuting

officer, and is now an honored

Associate Justice of the Supreme Court. Extensive

testimony was given by

experts, millers, wheat-growers, wheat-buyers, and

other competent parties, both

for and against the process of bleaching. The

Honorable Smith McPherson acted as

judge in the case. Judge McPherson in instructing the

jury, used in part the

following language (Notice of Judgment No. 722,

November 4, 1911):

" The flour seized in this case is an article of

food within the meaning of

the act of Congress. And if the treatment of the

same by the Alsop process

caused it to contain any added poisonous or other

added deleterious ingredient

of a kind or character which may render the same

injurious to health, then it

is adulterated and must be condemned.

 

" It is admitted that this flour was treated by the

Alsop process for the

purpose of bleaching or whitening, and the evidence

establishes that

nitrogen-peroxide gas was employed for that purpose

and further establishes

that that gas, nitrous acid, nitric acid, and

nitrites of the kind which may

be produced by such treatment are poisonous and

deleterious substances, and

that these substances when taken in sufficient

quantities will produce

poisonous action or death.

 

" It appears from the evidence in this case that

the bleaching process

imparts and adds to flour substances referred to in

the testimony as nitrites

or nitrite-reacting material, and such substances

were imparted to the flour

seized in this case by the bleaching process. It

further appears from the

evidence that such substances so imparted or added

to this flour are

qualitatively both poisonous and deleterious, that

is to say, that these

substances are of a poisonous and deleterious

character.

 

" It is well known that wheat flour is not eaten

raw. There is evidence in

this case that tends to show that during the process

of making bread nitrites

or nitrite-reacting material contained in the flour

is lessened and may be

eliminated under some circumstances, but it is also

well known that wheat

flour is used for the making of other articles of

food--biscuits, dumplings,

pastry, cake, crackers, gravy, and perhaps other

articles of food--which may

be consumed by all classes of persons--the young,

the old, the sick, the well,

the weak, the strong; and I charge you that it is

right for you in reaching

your verdict to take these facts into consideration

together with all the

other proven facts and circunistances in the case.

" The fact that the Patent Office at Washington

issued a patent for the

Alsop process has nothing to do with the question of

branding correctly, or

misbranding of flour. The fact that the Patent

Office issued a patent for the

Alsop process does not warrant nor authorize the

adulteration of flour as made

by the Alsop process if it is adulterated. All these

things must be put to one

side, and your verdict must be determined in

accordance with the law and facts

in the case. It is of no importance to, you, nor is

it of importance to me,

who will be pleased or displeased in this case,

whether of counsel or of the

parties, or of any other person. The only question

is, " What is the right, and

what is the wrong of this case? "

Thereafter the jury returned verdicts as follows:

" We, the jury, find that the flour seized in this

case is adulterated.

(Signed, John W. Thomason, Foreman.) "

" We, the jury, find that the flour seized in this

case is misbranded.

(Signed, John W. Thomason, Foreman.) "

An appeal was taken from the decision of the Court

and the jury to the United

States Circuit Court of Appeals of the Eighth

District. On January 23, 1913, the

case having come on for hearing before the Circuit

Court of Appeals, the

judgment of the Court below was reversed, and the case

remanded for a new trial.

In reversing this verdict the Circuit Court said:

" The Court charged the jury: 'It is clear that it

was intended by Congress

to prohibit the adding to the food of any quantity

of the prohibited

substance. The fact that poisonous substances are to

be found in the bodies of

human beings, in.the air, in potable water, and in

articles of food such as

ham, bacon, fruits, certain vegetables and other

articles does not justify the

adding of the same or other poisonous substances to

articles of food, such as

flour, because the statute condemns the adding of

poisonous substances.

Therefore, the court chargeth you that the

Government need not prove that this

flour, or food stuffs made by the use of it, would

injure the health of any

consumer. It is the character, not the quantity of

the added substance, if

any, which is to determine this case.'

" The trial judge decided that if the added

substance was qualitatively

poisonous, although in fact added in such minute

quantity as to be

non-injurious to health, that it still fell under

the ban of the statute; and

the distinction is sought to be drawn between

substances admittedly poisonous

when administered in considerable quantities but

which serve some beneficial

purpose when administered in small amounts, and

those substances which it is

claimed never can benefit and which in large doses

must injure. The

distinction is refined. To apply it must presuppose

that science has exhausted

the entire field of investigation as to the effect

upon the human body of

these various substances . . . that nothing remains

to be learned. Otherwise

the court would be required to solemnly adjudge

today that a certain substance

is qualitatively poisonous because it can never

serve a useful purpose in the

human system only to have this conclusion made

absurd by some new discovery.

There is no warrant in the statute for such a

strained construction. The

object of the law was evidently (1) to insure to the

purchaser that the

article purchased was what it purported to be, and

(2) to safeguard the public

health by prohibiting the inclusion of any foreign

ingredient deleterious to

health. Hall-Baker Grain Co. v. United States (198

Fed. 614). The statute is

to be read in the light of these objects, and the

words 'injurious to health'

must be given their natural meaning. It will be

observed that this paragraph

of the statute does not end with the words 'added

deleterious ingredient,' but

as a precaution against the idea embodied in the

instruction complained of, it

says 'which may render such article injurious to

health.' Without these latter

words, it might, with more force, be argued that

deleterious and beneficent

ingredients are to be divided into two general

classes independent of that

particular effect in the actual quantities

administered, but the possibility

of injury to health due to the added ingredient and

in the quantity in which

it is added is plainly made an essential element of

the prohibition. The

investigation does not stop with the consideration

of the poisonous nature of

the added substance. It is added to the article of

food and the statute only

prohibits it if it may render such article--the

article of food--injurious to

health.

" The judgment below must be reversed and the case

remanded for a new trial,

and it is so ordered. "

(Notice of Judgment 2549, issued October 18,

1913.)

The Department of Justice immediately appealed from

the decision of the

Circuit Court to the Supreme Court of the United

States. The case was called by

the Supreme Court on February 24, 1914. The Supreme

Court confirmed the decision

of the Circuit Court below and remanded the case to

the original court for

retrial. The decision of the Supreme Court was written

by Mr. Justice Day, and

was a unanimous decision. The Supreme Court made many

luminous explanations in

regard to the matter under consideration. The

decision, among other things,

states:

" The statute upon its face shows that the primary

purpose of Congress was

to prevent injury to the public health by 'the sale

and transportation in

interstate commerce of misbranded and adulterated

foods. The legislation, as

against misbranding, intended to make it possible

that the consumer should

know that an article purchased was what it purported

to be; that it might be

bought for what it really was and not upon

misrepresentations as to character

and quality. As against adulteration, the statute

was intended to protect

public health from possible injury by adding to

articles of food consumption

poisonous and deleterious substances which might

render such article injurious

to the health of consumers. If this purpose has been

affected by claims and

unambiguous language,, and the act is within the

power of Congress, the only

duty of the courts is to give it effect according to

its terms. * * * Congress

has here in this statute, with its penalties and

forfeitures, definitely

outlined its inhibition against a particular class

of adulteration. * * *

" It is not required that the article of food

containing added poisonous or

other added deleterious ingredients must affect the

public health, and it is

not incumbent upon the Government, in order to make

out a case, to establish

that fact. The act has placed upon the Government

the burden of establishing,

in order to secure a verdict of condemnation under

this statute, that the

added poisonous or deleterious substances must be

such as may render such

article injurious to health. The word 'may' is here

used in its ordinary and

usual signification, there being nothing to show the

intention of Congress to

affix to it any other meaning. It is, says Webster,

'an auxiliary verb,

qualifying the meaning of another verb by expressing

ability, * * *

contixgency or liability, or possibility or

probability.' In thus describing

the offense Congress doubtless took into

consideration that flour may be used

in many ways-in bread, cake, gravy, broth, etc. It

may be consumed, when

prepared as a food, by the strong and the weak, the

old and the young, the

well and the sick; and it is intended that if any

flour, because of any added

poisonous or other deleterious ingredient, may

possibly injure the health of

any of these, it shall come within the ban of the

statute. (Notice of Judgment

3398.)

The above quotation, it will be observed, is

largely based on the

instructions given by the trial judge, the Honorable

Smith McPherson, to a trial

jury. The information, however, which it gives those

who undertake to prove

injury to health is of the highest significance. The

Supreme Court of the United

States says to those who enforce the law that it is

not required " that the

article of food containing added poisonous or other

added deleterious

ingredients must affect the public health, and it is

not incumbent upon the

Government, in order to make out a case, to establish

that fact. " This

iialicizing of this statement was not done by the

Supreme Court, but by myself.

I believe it is a very important statement made by the

Supreme Court in regard

to the enforcement of the Food and Drugs Act. It was

worth all the trouble and

disappointment of having the decision of the bleached

flour case reversed in

order to secure such a luminous explanation as the

result thereof.

When this case was decided the World War had

already broken into flames over

the whole continent of Europe. It was soon evident

that the United States of

America would eventually be drawn into this whirlpool

of destruction. There is

no wonder that all thought of bleached flour was

forgotten in the excitement and

activities which preceded our entrance into this great

conflict. It was not

until the contest was over and the victory had been

won that any further

procedure was taken. It was not until April 1, 1919,

that counsel for the

government of the United States called the attention

of the District Court of

the Western District of Missouri to the fact that the

mandate of the Supreme

Court had never been put into effect. Under the ruling

of the Supreme Court the

claimants for the 625 sacks of flour had had

practically the whole foundation of

their defense swept away. They were very glad,

therefore, to make some

arrangement with the District Attorney whereby they

could retire, not without

laurels, from any further contest of this case. To

this end they proposed that

if one section of the libel would be dropped they

would enter a plea of nolle

contendere to the other parts of the libel.

Accordingly, Francis M. Wilson,

United States District Attorney, withdrew section e of

the libel which reads as

follows:

" © In that, by the treatment as aforesaid, the

said flour has been

caused to contain added poisonous, or other added

deleterious ingredients, to

wit: nitrites or nitric reacting material, nitrogen

peroxide, nitrous acid,

nitric acid, and other poisonous and deleterious

substances, which may render

said flour injurious to health. "

Accordingly, the Court entered the following

verdict on the 9th day of,

April, 1919:

" Now, therefore, it is ordered that the said

amended libel be taken pro

confesso; and the said cause coming on to be heard

ex parte, and the court

being fully advised, doth find all of the

allegations of said amended libel

herein are true.

" It is, therefore, ordered adjudged and decreed

that the six hundred and

twenty-five (625) sacks of flour, more or less, as

aforesaid, be and the same

are hereby condemned and forfeited to the United

States, and the marshal of

this court is hereby ordered and directed to proceed

to confiscate a,nd

utterly destroy all of said property, and to report

to this court how he

executed this order and decree.

" It is further ordered adjudged and decreed that

the taxed costs of the

libelant herein, and the taxed costs of the

claimant, be paid by the claimant,

Lexingtqn Mill and Elevator Company, said claimant

in open court consenting

thereto. " (Notice of Judgment No. 6380.)

This famous case was ended April 9, 1919. No

notice, however, was taken of

this event by the executive officials of the

Department of Agriculture, until

July 31, 1920. On this date the following remarkable

document was issued:

" Labeling Bleached Flour.

Department of Agriculture Announces Ruling on

Bleached

Flour Under the Food and Drugs Act.

Washington, D. C., July 30, 1920 - Bleached Flour

coming within the

jurisdiction of the Federal Food and Drugs Act is

adulterated if the bleaching

has reduced the quality and strength of the flour or

concealed damage or

inferiority, according to a statement issued to-day

by the Bureau of

Chemistry, United States Department of Agriculture,

in answer to a number of

inquiries regarding the attitude of the department

on the bleaching of flour.

Bleached flour may be shipped within the

jurisdiction of the law only under

the condition that the bleaching has not concealed

inferiority or impaired the

quality or strength of the article, and then only on

condition that it is

branded plainly to indicate that it has undergone a

process of bleaching.

Failure to label the containers to show that such

-flour has been bleached

will subject it to a charge of misbranding.

" The United States Supreme Court has ruled with

reference to the section of

the law relating to the addition of a poisonous or

deleterious ingredient that

to constitute an offense an article of food sold

must, by the addition of an

ingredient, be rendered injurious to health, and,

furthermore, that all the

circumstances must be examined to determine whether

the article of food has

been rendered injurious. No action will be taken at

the present time on the

ground that bleaching introduces into the flour a

substance which may be

injurious to health, say the officials, provided as

a result of bleaching

there is not introduced into the flour such a

quantity of the bleaching agent

as may render it injurious as indicated in the

decision of the Supreme Court.

Should evidence later become available that the

bleaching of flour introduces

an ingredient in minute quantities which has the

effect of rendering the

article injurious to health, announcement of the

fact will be made and

appropriate action taken to prevent thereafter the

shipment of bleached flour

within the jurisdiction of the food and drugs act.

" Whether bleaching in any given shipment reduces

the quality and strength

of the flour or conceals damage or inferiority must

be decided on the basis of

the facts in each particular ease. "

In regard to this document I may say that its

purpose evidently was to open

wide the opportunities for bleaching flour and the

promise that no action would

be taken looking to a restriction of this process. In

point of fact no effort

has ever been made directly or indirectly to take

advantage of this victory

before the court in considering bleached flour as both

an adulterated and

misbranded article. The result is that the millers who

at first were unwilling

to indulge in bleaching have been forced to bleach in

order to maintain their

trade. This proclamation was properly interpreted by

the bleachers. They knew

its exact intent, that it was an open statement to the

millers and the public

that no further steps toward the control of this

injurious and highly

undesirable practice would be taken in any way to

restrict or hinder this

practice. Nearly ten years have now elapsed since this

proclamation was made,

and so far as bleaching flour is concerned by any

process whatever the Food and

Drugs Act does not exist. It seems indeed incredible

that a food enforcement

bureau of any kind, would read into the opinion of the

Supreme Court an entirely

antagonistic statement respecting injury to health.

The food enforcement

officers said you must convict the adulterator of

injur~ng health. The Supreme

Court said it is not necessary on the part of the

Government to bring any

evidence looking to the actual establishment of injury

and it is not incumbent

upon the Government to do this. All the Government has

to do is to show the

possibility in the most extreme case of doubt that

such injury may take place.

Thus the very law which the Supreme Court has said was

enacted chiefly to

protect the public health has been turned into a

measure to threaten public

health and to defraud the purchasers of flour.

GOING BACK TO BUSINESS PRACTICES

A more pointed illustration of how the

administration of the food law is

gradually being transferred to manufacturers of food

products is found in a

circular issued by the Department of Agriculture of

September 302 1927, in

regard to the floating of oysters. The title of this

remarkable contribution is

" New Jersey Oyster Industry Adopts Plan to Improve

Oysters. "

The " improvement " in oysters is to introduce into

them certain quantities of

water which the old regulations in regard to oysters

forbade. It calls attention

to the fact that the New Jersey shippers of oysters

are dissatisfied with

governmental rulings respecting excessive quantities

of added water. Different

regulations permitting the addition of water have been

unanimously adopted by

the New Jersq dealers. This action on the part of the

New Jersey dealers was

taken as a result of an old ruling of the Department

of Agriculture for

preventing shipment into interstate commerce of

oysters floated in water less

salty than that in which they were grown. The circular

says:

" It developed that the aims of the oystermen and

of the department were in

harmony, namely, the production of the best oysters

possible for the market in

accordance with good commercial practices, and in

which are incorporated no

greater quantities of added water than are

necessary, it being recognized that

in the commercial cleansing of oysters for the

market a small amount of water

is necessarily incorporated. * * *

" The desire of the oystermen to place on the

market only oysters of the

highest grade is shown by their proposal to arrange

for scientific

investigations of the habits and characteristics of

the oyster, with a view to

obtaining the knowledge necessary to a final

determination of the best

procedure to insure the best oysters for the market,

and desirable methods for

obtaining the cleanest oysters with a minimum amount

of added water. "

Here is a great industry which had been saved from

practical destruction by

the original ruling of the Department that no water of

any kind should be added

to oysters in shipment or otherwise, and that the ice

which kept them cold in

shipment should be placed on the outside of

water-tight tin boxes in which the

oysters were carried. It is not true that any washing

of oysters is necessary in

preparing them for market. The only purpose of the

washing is to introduce

additional quantities of water which will make the

oysters swell and look bigger

and fatter than they are.

This is a complete surrendering to the industry of

the task of making rules

and regulations for conducting this industry, not in

the interest of the

consumer but in the interest of the producer. It marks

an entire reversa in ese

matters. The Food and Drugs Act was based on

commercial practices which were

detrimental and injurious to the consuming public. If

the oyster industry is

permitted to make its own regulations and its own

scientific investigations

there is no reason to doubt that all other industries

will in the near future be

accorded the same privilege.

A few years ago I was waiting to buy a ticket from

New York to Boston. When

the man in front of me bought his ticket and turned

around, he recognized me and

asked: " Are you Dr. Wiley? " I said I was. He said: " A

few years ago I was the

president of the Long Island Oyster Association. We

regarded you as the

arch-enemy of our industry when under your direction

the ruling was issued that

we should not add water to oysters that we shipped,

nor place ice in contact

with the oysters that we shipped. We considered you a

devil incarnate. Now we

know that decision was the salvation of our industry

and I want to take your

hand and congratulate you on doing the greatest

service to the oyster industry

that could possibly have been done. We are selling a

dozen times as many oysters

now in a perfect condition as they come from the water

as we did at the time of

your ruling.

ATTITUDE OF THE CHIEF OF THE FOOD, DRUGS

AND INSECTICIDE, ADMINISTRATION

Mr. W. G. Campbell, the new chief of the food

enforcement unit, having

succeeded the former Bureau of Chemistry, recently

said:

" Respect for the law can be maintained only when

there is a full

realization on the part of those who are regulated

that disregard of its

provisions will be promptly followed by legal

action. "

This is a concise and perfect statement of the

purpose of the Food Law. Not

only is it the duty of the officials to enforce these

provisions, but the law

itself states there shall be no delay.

It seems quite impossible to reconcile this

statement of the Director of the

Regulatory Service with the following one:

" While the food and drugs act remains what it has

always been, a statute of

protection primarily in character, but corrective

rather than punitive, a

course established to meet the conditions of two

decades ago will be

inadequate as a present day plan. "

Here it is stated that a new " course " has been

established, yet no change has

been made in the punitive provisions of the old law.

Only the enforcing bureau

has been changed and a new bureau put in its place by

legislation illegally

engrafted on an appropriation bill. The only

conclusion to be drawn from this

statement is that a new law has been established by

the enforcing officers

without the aid of Congress and without any

opportunity of discussing its

principles.

In further justification of this new law Mr.

Campbell says:

" With the change in the attitude of the industry,

the Bureau of Chemistry

had more and more as years passed by adopted 'an

advisory before the act'

attitude in dealing with individuals shipping

commodities subject to the law,

and that attitude will unquestionably continue to be

the keynote of the Food,

Drug and Insecticide Administration. "

This remarkable statement, coming from the chief of

the new Regulatory Unit,

proclaims to the world that the chief function

hereafter will be the education

of those who disobey the act in an effort voluntarily

to get them to desist. In

other words, the punitive features of the law, which

are the only ones in the

law, are to be neglected for the sake of the

corrective activities established

by the enforcing officers.

Continuing the quotation, Mr. Campbell says:

" At the time the agitation for the enactment of

the Federal measure had its

inception the number of food and drug manufacturers

whose conception of

business ethics was tersely. 'let the buyer beware'

constituted at least a

very imposing minority. Today enforcing officials

will be unanimous in

expressing the conviction that deliberate violations

in the distribution of

foods and drugs are extremely rare. This change in

attitude of the industry

during the past two decades has made it possible,

therefore, in a large

measure to recast the methods of law enforcement so

as to emphasize the

corrective features of the food and drugs act rather

than the punitive side of

the measure. "

This statement concisely expresses the complete

paralysis of the food law. It

is to be recast without appeal to Congress. There is

nothing in the food law

about corrective measures. These corrective measures

have been at the

instigation of the food officials without any warrant

whatever from legislation.

The food law is exclusively punitive, and this

construction of it has been

approved more than once by the Supreme Court of the

United States. Why then

should officials who have taken an oath to support the

Constitution and the laws

made thereunder, read into the law as its chief

feature a meaning absolutely

foreign to its purpose? The Bureau of Chemistry as

constituted at the time of

enforcement of the act was solely concerned in

enforcing its punitive

regulations. It did not consider it advisable to waste

energy from its sworn

duty in setting up a kindergarten or Sunday School to

persuade violators of the

law to desist. The law pointed out exactly what it

should do, and for a short

time only was this purpose of the law carried out.

There is no wonder that the

administration of the food law has so hopelessly

broken down. It would be a

matter of interest if those enforcing the food law

would take a little time off

and read the law carefully once more in order that

they might see what their

duties really are.

The Moss Committee, on page 5 of their report,

after citing all the

difficulties placed in the path of the Bureau of

Chemistry in its efforts to

execute the law, says:

" Thus the administration of the law began with a

policy of negotiation and

compromise between the Secretary and the purveyers

of our national food

supplies. * * *

" It was a matter for profound congratulation that

the great body of

American citizenship yielded prompt and willing

obedience to the law, and to

such it was only required that the terms of the law

be fully explained. The

necessary readjustment of their business required

time, and it was good

administration to grant reasonable opportunity for

such a purpose. "

At the present time there is no manufacturer of

foods in this country who

does not understand that he is to tell the truth on

his labels and to add no

substances injurious to health to his food products.

Although the use of various

injurious agents has been permitted by the perversions

of the law, practically

the use of such preservatives as benzoate of soda and

borax is today unknown.

There is no need, therefore, of any further education

or persuasion of food

manufacturer§ to obey the law. What is needed now is

to brush away all the

illegal restrictions which were fastened round the

Bureau of Chemistry, and to

execute the law as it was written, and as it has been

interpreted by the Supreme

Court.

The Supreme Court in the case of the United States

vs. Morgan et al. in a

decision handed down December ill 1911, made this

pregnant remark:

" Repeals by implication are not favored, and

there is certainly no

presumption that a law passed in the interest of the

public health was to

hamper district attorneys, curtail the powers of

grand juries or make them,

with evidence in hand, halt in their investigation

and await the action of the

department. To graft such an exception upon the

criminal law would require a

clear and unambiguous expression of the legislative

will. "

The above is a hard blow to a repeal by illegally

abolishing the Bureau of

Chemistry.

THE CONCLUSION OF THE WHOLE MATTER

An endeavor has been made in the preceding pages to

set down the facts

relating to the amazing crime of perverting the Food

and Drugs Act of 1906 and

destroying.the Bureau of Chemistry. The leit motif has

been only to tell the

truth. Sometimes telling the truth is not wise. If,

however, one tells anything

it should be the truth. The common adage says that

speech is silver and silence

is gold. These efforts, therefore, may be considered

as an essay on free silver.

In these concluding pages the purpose is to summarize

the main points, and to

show the way to the new era.

ILLEGAL FOOD AND DRUG DECISIONS

All of the decisions of the " Board of Food and Drug

Inspection " were illegal.

It was not provided for in the Act and the plain

purpose of its organization was

to prevent the Bureau of Chemistry from carrying out

the provisions of the law.

Theoretically all of the decisions should be repealed.

Many of them were in

strict accordance with the terms of the law, and

therefore are not necessarily

to be deleted. The following numbered decisions are in

strict violation of the

law, and the first step toward clearing the atmosphere

and restoring the Food

Law to its pristine form is the repeal of the

following food inspection

decisions. Some of these decisions were those of the

Board of Food and Drug

Inspection; others were signed by the members of the

Cabinet directed by law to

make rules and regulations for carrying the law into

effect. Whenever the

Secretary of Agriculture, the Secretary of the

Treasury, and the Secretary of

Commerce and Labor signed a Food Inspection Decision,

it became a rule and

regulation. Rules and regulations not for the purpose

of carrying the law into

effect were illegal. The three secretaries had no

warrant of law to decide what

was or was not adulterated or misbranded.

The numbers of these decisions which should

immediately be repealed are as

follows:

No. 76. Pertaining to dyes, chemicals and

preservatives in foods.

No. 77 ;Certificate and control of dyes permissible

for coloring foods and

foodstuffs.

No. 86. Original packages: Interpretation of

regulation 2 of Rules and

Regulations for. Enforcement of the Food and Drugs

Act.

No. 87. Labeling of " Corn Syrup. "

No. 89 Amendment to Food Inspection Decision No.

76, relating to use in Foods

of Benzoate of Soda and Sulphur Dioxide.

No. 92. The Use of Copper Salts in the Greening of

;Foods.

No. 102. Entry of Vegetables Greened With Copper

Salts.

No. 104. Amendment to Food, Inspection Decision No.

76 and No. 89 Relating to

Use in Foods of Benzoate of Soda.

No. 107. Decision of the Attorney-General in Regard

to the Referee Board.

No. 108. Importation of Coffee.

No. 113. Labeling of Whisky Mixtures and Imitations

Thereof Under the Foodand Drugs Act of June 30, 1906.

No. 117. The Use of Certified Colors.

No. 118. Labeling of Whisky Compounds under F. I. D

No. 113.

No. 120. Labeling of Ohio and Missouri Wines.

No. 121. Floating of Shellflsh. the United States.

No. 125. Labeling of Cordials.

No. 127 Decision of the Attorney-General in Regard

to the Labeling of Whisky

sold under Distinctive Names.

No. 130. Amendment to Regulation No. 5.

No. 131. The Composition of Evaporated Milk.

No. 134. The Labeling of New Orleans Molasses.

No. 135. Saccharin in Foods.

No. 138. Saccharin in Foods.

No. 142. Saccharin in Foods.

The abolition of the above Food Inspection

Decisions will clear the way for

the remaining steps.

The most important of these remaining steps is to

repeal the permission given

by the Remsen Board of Consulting Scientific Experts

to add alum, benzoate of

soda, saccharin and sulphur dioxide to our foods.

From the earliest days of food regulation the use

of alum in foods has been

condemned. It is universally acknowledged as a

poisonous and deleterious

substance in all countries. The United States is the

only country which permits,

of course illegally, the addition of alum to our food

supply.

The next most important step is to secure from the

officials enforcing the

Food and Drugs Act a recognition of the actions of the

courts under the

operation of the Food and Drugs Act in convicting the

manufacturers of bleached

flour and Coco-Cola. In all these cases judgments of

the Court condemning the

use of all these substances were secured, but in no

case was any -effort ever

made by the enforcing officers to follow up the, Court

decision. By reason of

this fact interstate commerce in foods containing

bleached flour, benzoate of

soda, sulphur dioxide and sulphites, together with

soft drinks containing

caffein, such as Coca-Cola, go on unimpeded and

unrestricted in all parts of the

United States. The health of our people is constantly

threatened by the use of

these articles in our food.

The next step in the reform of the execution of the

Food and Drugs Act is to

follow out the provisions of the law absolutely. At

the present time the

officials in charge of the enforcement of the law

boast of the fact that they

are not following out the punitive sections of the

law, but its corrective

sections. Unfortunately for those who make this plea,

the law contains no

corrective measure except by punishment. It is a new

law enacted by the

officials themselves without authority of Congress

which they are enforcing.

The final step to complete the restoration of the

law is the repeal of the

provision in the appropriation bill abolishing the

Bureau of Chemistry and the

restoration of the execution of the law to the

revivified Bureau.

This is the only amende honorable that could

possibly be made for the

destruction of the Bureau of Chemistry and the

transfer of its authority by an

item engrafted, on an appropriation bill. It may be

that the present arrangement

is much better than that enacted by Congress. It would

be entirely proper,

therefore, after this restoration is made, to

introduce a new bill into the

Congress of the United States, providing for the

destruction of the Bureau of

Chemistry and the transfer of its authority to the

present unit in the

Secretary's office.

No attack has been made upon the provisions of the

law. They remain exactly

as Congress enacted them. It is, therefore, the duty

of the present

administrative unit to urge the abolition of all these

illegal restrictions on

their authority and to proceed with all vigor to the

execution of the provisions

of the law as they were enacted on June 30, 1906.

EFFECT OF " THE JUNGLE "

There is every reason to believe that Upton

Sinclair's novel entitled " The

Jungle, " in which the deplorable conditions in the

packing industry were

dramatically portrayed, was one of the chief causes of

the enactment of the meat

inspection law which was approved the same day as the

Food and Drugs Act. It may possibly happen that this

history of a crime more revolting even than the

horrors portrayed by Upton Sinclair may serve the

purpose of causing popular

indignation of a character that will secure the

salvation of the Food and Drugs

Act.

If the Bureau of Chemistry had been permitted to

enforce the law as it was

written and as it tried to do, what would have been

the condition, now? No food

product in our country would have any trace of benzoie

acid, sulphurous acid or

sulphites, or any alum or saccharin, save for

medicinal purposes. No soft drink

would contain any caffein, or theobromine. No bleached

flour would enter

interstate commerce. Our foods and drugs would be

wholly without any form of

adulteration and misbranding. The health of our people

would be vastly improved and their life greatly

extended. The manufacturers of our food supply, and

especially the millers, would devote their energies to

improving the public

health and promoting happiness in every home by the

production of whole ground, unbolted cereal flours and

meals.

The resistance of our people to infectious diseases

would be greatly

increased by a vastly improved and more wholesome

diet. Our example would be

followed by the civilized world and thus bring to the

whole universe the

benefits which our own people had received.

We would have been spared the ignominy and disgrace

of great scientific men

bending their efforts to defeat the purpose of one of

the greatest laws ever

enacted for the protection of the public welfare.

Eminent officials of our

Government would have escaped the indignation of

outraged public opinion because

they. permitted and encouraged these frauds on the

public. The cause of a

wholesome diet would not have been put back for fifty

or a hundred years. And

last but least, this History of a Crime would never

have been written.