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US Supreme Court Decision: Coca-Cola is an Adulterated, Misbranded Food

FDA History 10
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.”

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

   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?

   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.

   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.

   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.

   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 
   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.
   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 
     "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 
     "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!

   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. 

   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 
   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.

   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 
   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 
   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.

   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.

   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.

   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. 

   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 
     "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." 

   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.

   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 
     "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.

   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.

   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 
     "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, 
     "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 
   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 
     " (c) In that, by the treatment as aforesaid, the said flour has been 
  caused to contain added poisonous, or other added deleterious ingredients, to 
  wit: nitrites or nitric reacting material, nitrogen peroxide, nitrous acid, 
  nitric acid, and other poisonous and deleterious substances, which may render 
  said flour injurious to health."
   Accordingly, the Court entered the following verdict on the 9th day of, 
April, 1919:
     "Now, therefore, it is ordered that the said amended libel be taken pro 
  confesso; and the said cause coming on to be heard ex parte, and the court 
  being fully advised, doth find all of the allegations of said amended libel 
  herein are true.
    "It is, therefore, ordered adjudged and decreed that the six hundred and 
  twenty-five (625) sacks of flour, more or less, as aforesaid, be and the same 
  are hereby condemned and forfeited to the United States, and the marshal of 
  this court is hereby ordered and directed to proceed to confiscate a,nd 
  utterly destroy all of said property, and to report to this court how he 
  executed this order and decree.
     "It is further ordered adjudged and decreed that the taxed costs of the 
  libelant herein, and the taxed costs of the claimant, be paid by the claimant, 
  Lexingtqn Mill and Elevator Company, said claimant in open court consenting 
  thereto." (Notice of Judgment No. 6380.)
   This famous case was ended April 9, 1919. No notice, however, was taken of 
this event by the executive officials of the Department of Agriculture, until 
July 31, 1920. On this date the following remarkable document was issued:
  "Labeling Bleached Flour.
  Department of Agriculture Announces Ruling on Bleached
  Flour Under the Food and Drugs Act.
     Washington, D. C., July 30, 1920 - Bleached Flour coming within the 
  jurisdiction of the Federal Food and Drugs Act is adulterated if the bleaching 
  has reduced the quality and strength of the flour or concealed damage or 
  inferiority, according to a statement issued to-day by the Bureau of 
  Chemistry, United States Department of Agriculture, in answer to a number of 
  inquiries regarding the attitude of the department on the bleaching of flour. 
  Bleached flour may be shipped within the jurisdiction of the law only under 
  the condition that the bleaching has not concealed inferiority or impaired the 
  quality or strength of the article, and then only on condition that it is 
  branded plainly to indicate that it has undergone a process of bleaching. 
  Failure to label the containers to show that such -flour has been bleached 
  will subject it to a charge of misbranding.
     "The United States Supreme Court has ruled with reference to the section of 
  the law relating to the addition of a poisonous or deleterious ingredient that 
  to constitute an offense an article of food sold must, by the addition of an 
  ingredient, be rendered injurious to health, and, furthermore, that all the 
  circumstances must be examined to determine whether the article of food has 
  been rendered injurious. No action will be taken at the present time on the 
  ground that bleaching introduces into the flour a substance which may be 
  injurious to health, say the officials, provided as a result of bleaching 
  there is not introduced into the flour such a quantity of the bleaching agent 
  as may render it injurious as indicated in the decision of the Supreme Court. 
  Should evidence later become available that the bleaching of flour introduces 
  an ingredient in minute quantities which has the effect of rendering the 
  article injurious to health, announcement of the fact will be made and 
  appropriate action taken to prevent thereafter the shipment of bleached flour 
  within the jurisdiction of the food and drugs act.
     "Whether bleaching in any given shipment reduces the quality and strength 
  of the flour or conceals damage or inferiority must be decided on the basis of 
  the facts in each particular ease. "
   In regard to this document I may say that its purpose evidently was to open 
wide the opportunities for bleaching flour and the promise that no action would 
be taken looking to a restriction of this process. In point of fact no effort 
has ever been made directly or indirectly to take advantage of this victory 
before the court in considering bleached flour as both an adulterated and 
misbranded article. The result is that the millers who at first were unwilling 
to indulge in bleaching have been forced to bleach in order to maintain their 
trade. This proclamation was properly interpreted by the bleachers. They knew 
its exact intent, that it was an open statement to the millers and the public 
that no further steps toward the control of this injurious and highly 
undesirable practice would be taken in any way to restrict or hinder this 
practice. Nearly ten years have now elapsed since this proclamation was made, 
and so far as bleaching flour is concerned by any process whatever the Food and 
Drugs Act does not exist. It seems indeed incredible that a food enforcement 
bureau of any kind, would read into the opinion of the Supreme Court an entirely 
antagonistic statement respecting injury to health. The food enforcement 
officers said you must convict the adulterator of injur~ng health. The Supreme 
Court said it is not necessary on the part of the Government to bring any 
evidence looking to the actual establishment of injury and it is not incumbent 
upon the Government to do this. All the Government has to do is to show the 
possibility in the most extreme case of doubt that such injury may take place. 
Thus the very law which the Supreme Court has said was enacted chiefly to 
protect the public health has been turned into a measure to threaten public 
health and to defraud the purchasers of flour.
   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.
   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 
   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 
   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 
   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.
   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 
   No. 76. Pertaining to dyes, chemicals and preservatives in foods.
   No. 77 ;Certificate and control of dyes permissible for coloring foods and 
   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.
   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 
   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.


Dr. Andrew Saul

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