FDA History 10
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HISTORY OF A CRIME AGAINST
THE FOOD LAW
CHAPTER X: THE PASSING OF THE BUREAU
OF CHEMISTRY
by Harvey W. Wiley, M.D., the very
first commissioner of the Food and Drug Administration (FDA), then known
as the “US Bureau of Chemistry.”
CHEMISTRY FIRST RECOGNIZED
In the organic act establishing
the Department of Agriculture in 1862, no
scientific department was mentioned. The
Commissioner evidently regarded
chemistry as the dominant science in the
promotion of agriculture. The first
scientist appointed in the Department
of Agriculture was the chemist, Prof.
Charles Wetherell, of Philadelphia. The
activities of the chemist were first
designated as the Division of Chemistry.
At a latter date a more resounding
title was adopted, namely, "Bureau." The
term "Bureau" has since then been
extended as a name to many activities,
not only in the Department of Agriculture
but in all the other departments and subdivisions
of scientific research. The
whole activities of the Government from
the organizing point of view are now
designated as "Bureaucracy." In the present
agricultural appropriation bill, as
passed by both houses of Congress and
signed by the President, this original
activity of the Department, viz., the
Bureau of Chemistry, has been eliminated.
This was done without any action of Congress,
except as found in the
appropriation bill. The rule of procedure
forbids the inauguration of new
legislation in an appropriation bill.
Unfortunately, when the bill was before
the House of Representatives no one interposed
a point of order on the abolition
of the Bureau of Chemistry. The Food and
Drugs Act specifically charges the
Bureau of Chemistry with its enforcement.
The present appropriation bill,
1927-28, not only destroys the Bureau
of Chemistry, but violates the law in
transferring the activities of food administration
to a new unit under the
immediate supervision of the Secretary
of Agriculture.
Naturally one of the great
problems of chemistry in its application to
agriculture is the study of the soil.
The Bureau of Chemistry did not neglect
this primary activity. There was established
in the Bureau the most extensive
soil investigation that had ever been
attempted. The purpose of this
investigation was to determine the natural
productivity of soils, gathered from
all quarters, and kept under standard
environment of light, moisture and
temperature. Typical soils were secured
from the various states of the Union.
There was added to this collection samples
of the. celebrated field at
Rothamsted, England, which had been cultivated
in wheat for nearly one hundred
years without receiving any artifical
fertilizer whatever. In the midst of these
investigations a new Bureau of Soils was
created in the Department of
Agriculture, entirely distinct from the
Bureau of Chemistry. At the demand of
this new Bureau of Soils all activities
of the Bureau of Chemistry in the
progress of its investigations were ordered
discontinued and the expensive
equipmeni was abandoned and destroyed.
At the instigation of this new Bureau of
Soils, publication of the data already
obtained was denied.
The small remnant of the
Bureau of Chemistry after its separation from the
enforcement of the Food and Drugs Act,
under this illegal action, has been
combined with the Bureau of Soils and
has practically lost its identity.
Chemists in particular in
this country should be inquisitive in regard to the
enactment of such illegal provisions,
demolishing a great Bureau fundamentally
related to the greatest problems in Agricultural
research and public welfare.
The handicap which the small remnant of
the old Bureau will encounter when it is
combined with the dominant Bureau of Soils,
creates a doubt of the most serious
character as to its future prosperity.
The theories on which the Bureau of Soils
has heretofore been conducted have never
received the approbation of competent
soil chemists in this or in any other
country. Among those may be mentioned
three of great renown, namely Professor
Hilgard, of the University of
California, Professor Hopkins of the University
of Illinois, both now passed to
their reward, and Sir Daniel Hall of England,
former 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.
HOW IT WAS DONE
There are many mysteries
which, though seemingly unsolvable, still occupy the
mind of man. Perhaps Conan Doyle in the
person of Sherlock Holmes might have
turned the light on these dark places.
Alas! he didn't. Now he is old and shaky;
his hand trembles and his words stick
in his throat, or, as the Latin poet has
said it, "Vox in faucibus haesit." We
shall never learn from him who killed Cock
Robin, who struck Billy Patterson, nor
what became of Charlie Ross.
While the death of the Bureau
of Chemistry did not take place until midnight
of June 30, 1927, it had already been
irrevocably decreed. The criminals are
still at large. It is wise to try to unravel
this mystery while we may. Was it
manslaughter or murder in the first degree?
Was it assassination or suicide? Was
it done legally, or was it a clear case
of lynching?
THE CORPUS DELECTI
First let us produce the
corpus delicti. The old friends of the Bureau of
twenty-five years ago, who know of its
struggles and passion under the assaults
of the successive favorites of the Secretary
of Agriculturel if still living on
that most unhappy day, should come to
take a long and lingering look at the form
of the crucified Bureau, which they will
see no more forever. And those true and
tried friends of the Bureau in its twenty-five
years of endeavor to secure a
national food and drugs act, which it
finally did on June 30th, 1906, come also,
and while remembering the great victory
with joy, shed a tear for the old Bureau
that died on the 21st anniversary of the
birth of that law. Yes, there is a
corpus delicti with no shadow of doubt.
Orphaned and homeless that poor law will
be. No one yet knows what sort of step-father
it will have. Let us hope he will
be kind to the poor waif.
CAVEAT
In the following statements
relating to the activities of the officials of
the Department of Agriculture in securing
these fundamental changes in the
functions of administering the food law,
there is a desire to emphasize the
point that they are not of a personal
character. The highest regard is felt for
all these officials. Some of them are
personal friends. This makes their
mistakes more regretful.
The same remark applies to
the Bureau of Soils. On the other hand, the Bureau
of Soils, in respect to academic freedom
in research and publication, and in its
bizarre and thoroughly unscientific theories
and its principal activities, has
been from the start of a nature which
has failed to commend it, both as to
quality and character, to the great majority
of scientific investigators. This
disparagement does not affect the personnel
of the Bureau, nor the late problems
submitted to it.
PROVING DEATH
In life insurance adjudication
you have to prove the death of the insured.
Can the death of the Bureau of Chemistry
be established? The following
quotations from the hearings before the
appropriation committee consfdering the
agricultural bill for the fiscal year,
1928, are illuminating, and leave little
doubt of death.
The Chairman of the committee,
in speaking of the Enabling Act, said:
Q. " I wish to take up now
this new language, the 'enabling' paragraph. This
is new language, is it not?"
A. " Yes, sir.
The food and drugs act provides that examination of products
subject to its jurisdiction shall
be in the Bureau of Chemistry. Under the new
arrangement the Bureau of Chemistry
goes out of existence and is supplanted by
this new organization, the food,
drug, and insecticide administration."
The chairman also calls attention
to the demise of the Bureau of Chemistry in
other parts of the report. He speaks of
the "new Bureau of Chemistry and Soils."
In another place he mentions the appropriations
for the proposed Bureau of
Chemistry and Soils. In the next paragraph
is found the following statement:
" Under this
appropriation we enforce the so-called pure food law which
controls purity and freedom from
misbranding of foods and medicines."
This is a,most appropriate
designation. Under the administration of the law
as now conducted it is only a "so-called"
pure food law. Its activities are
confined chiefly to misbranding of foods
and medicines. The real pure food law
was designed principally to protect our
foods from additions of poisonous and
deleterious substances, a feature which
has been almost entirely obliterated by
the present administration of the law.
No one could have found a more
appropriate qualifying phrase than that
which is used above.
In another part of the hearings
the Chairman of the subcommittee asks:
"In other words,
this is an appropriation for the enforcement of what is
known as the pure food law?"
to which this reply was made:
"To insure freedom
from misbranding of foods and drugs."
This answer confirms the
present attitude of the food administration.
WHY WAS IT DONE?
It seems rather strange that
after attention has been called to the fact that
the law confides the examination of samples
of foods and drugs to the Bureau of
Chemistry, the Congress of the United
States should immediately proceed to
destroy that organization. This accentuates
the discussion of how the Bureau of
Chemistry was destroyed. Even granting
that the Bureau wanted to be hanged does
not legalize the crime. That may be an
extenuating fact when the criminals are
sentenced.
If it was a desirable thing
to change so radically the instrumentalities of
enforcing a law, it should have been brought
before the Congress in a legitimate
way. There was no reason why a bill should
not have been drawn making these
changes and repealing the existing law.
I am far from saying that there might
not be a better method of enforcing the
law than the present one. In fact, I do
not think there could be a worse.
The promoters of the destruction
of the Bureau of Chemistry took a desperate
chance in their illegal attempt. They
hoped that no one in the House of
Representatives would kill their efforts
by making a point of order on this
legislation on an appropriation bill.
The bluff was not called. Not a member of
the House objected. That the legislation
could have been prevented by one member
is shown by the following statement of
Mr. Lehr Fess, the House Parliamentarian:
"In reply to
your letter of January 10th (1928) 1 am writing to advise you
that the item referred to was subject
to a point of order at the time it was
under consideration in the House.
However, no question of order was raised.
The question of order not having
been raised at the time the matter was under
consideration it can not be subsequently
presented."
The Secretary of Agriculture
in his report for 1927 states on page 61 that:
"The Federal
food and drugs act, designed to prevent the sale of
adulterated or falsely labeled
foods, drags, and feeding stuffs, is a benefit
to consumers and producers alike.
Through its enforcement the consumer may
feel confident that the products
he buys are what they are represented to be
on the labels and the producer
need fear no competition with low-grade goods
masquerading as high-quality goods.
Cooperation with the various industries in
an effort to keep their products
in conformity with the law and action against
producers found guilty of deliberately
adulterating or misbranding their goods
were continued during the fiscal
year just ended."
The Secretary seems to forget
that strenuous efforts were made pending the
time the bills were before Congress to
insert the word "knowingly" into the
Act. All of these efforts were defeated.
For this reason the dealer who
unwittingly violates the law is just as
guilty under the law as the one who
knowingly and deliberately violates the
law. The most destructive vice that has
for many years been gnawing at the vitals
of proper enforcement of the food law
is the effort now making to protect the
producer. There is no warrant for this
erroneous conception anywhere in the law.
Every reference to the producer in the
law is punitive.
Thus it is clearly seen that
the chief activities of the present
administration are proper branding. The
purpose of the law as a health protector
is of no importance whatever.
Mr. W. G. Campbell, Director
of the Regulatory Service, justifies the
abolition of the Bureau of Chemistry and
the transfer of the Regulatory Service
therefrom, in an article published in
the American Food Journal, January, 1928,
page 24:
"But no effective
concerted action against adulterated and misbranded food
was possible in the United States
until the Federal Food and Drugs Act became
a law in 1907, after some forty
years of investigation and twenty years of
agitation. The Bureau of Chemistry
had framed it and actively endorsed. its
passage for many years. Naturally
enough, then, Congress entrusted its
enforcement to this unit. * * *
"Whenever it
became apparent that for lack of funds or shortage in
personnel one of the two must be
temporarily neglected it was usually the
research work that gave way."
It was the regulatory work
that was provided for instead of. research. It was
this condition of affairs which resulted
in the destruction of the Bureau of
Chemistry and the creation of a new enforcement
unit. This was exceedingly
drastic action to change what Congress
had established after twenty years of
discussion in the open forum of the Senate
and the House of Representatives. The
cruelty of this punishment and its wickedness
is indicated by the fact that it
was legislation grafted on an appropriation
bill, the consideration of which was
limited to a few hours debate, with no
hearings having been called on the
proposed measure, and no opportunity given
to any one opposing it to be heard.
To continue from Mr. Campbell's
article:
"The work of
administering the Food and Drugs Act has in no way been upset
by the recent change in machinery."
If the work has not been
upset nor changed in any way, why was it necessary
to destroy a great bureau and transfer
the enforcement of the act to an entirely
new unit?
This is a sad story which
will be discussed in another place. In point of
fact, at the very beginning successive
attempts were made to nullify this
provision of the law, placing its enforcement
in the Bureau of Chemistry. During
the debates in Congress on food legislation,
on numerous occasions attempts were
made to divorce the Bureau of Chemistry
entirely from any part in the
enforcement of the law. In every case
the proposals made for this purpose were
overwhelmingly defeated in both Houses
of Congress. It was the plain intent of
the law-makers, after full and free discussion,
that its enforcement should be
in the Bureau of Chemistry. The purpose
now is to show that the present
administration of the Food Law is entirely
different from that intended by
Congress. The death of the Bureau of Chemistry
is a clear case of mob violence.
It was lynched.
The Secretary also refers
to the fact that this is the proper time to lynch
the Bureau of Chemistry in the following
statement:
"This is the
logical time to make some changes which could not have been
made before without hurting somebody
or doing an injustice to somebody, which
we did not want to do. But now
we must get some new heads and if we effect
this reorganization before these
changes are made, they will work in with the
new changes and we shall not have
to work an injustice on anybody."
This means, of course, bringing
in more heads of bureaus. There will have to
be a head and subheads for the new Bureau
of Chemistry and Soils, and there will
have to be a new head for the Food and
Drugs Administration.
INCORPORATION OF THE BUREAU OF SOILS
Secretary Jardine gave as
an excuse for putting a small fragment of the
Bureau of Chemistry with the whole Bureau
of Soils the following pertinent
reason:
"The Bureau of
Soils itself needs to be revitalized. Everybody in this
country that is working with soils
realizes that."
Most truly said. But why
does he want to put the Bureau of Soils into the
Bureau of Chemistry to be revitalized,
while he takes out of the Bureau of
Chemistry a food administration which
is needing revitalizing more than the
Burean of Soils ever did?
The Secretary also has made
another discovery which is most interesting. He
states:
"Then in the
Bureau of Chemistry we also have questions that are closely
related to soils. Thirty years
ago it was not so."
This statement would be interesting
to Liebig and the founders of the
Rothamsted Station in England, Lawes and
Gilbert, a hundred years ago; to the
late Professor Hilgard, who made soils
his specialty during his whole lifetime,
and to Johnson, Hopkins, Snyder, and Goessmann
in this country, Hall in England,
Boussingault in France, and to those other
chemists, too numerous to mention,
who have for one hundred and fifty years
regarded soils a peculiarly appropriate
subject for chemical investigation. One
of the great faults of bureaucracy is
to, claim long-known truths as its own
discoveries. Before the Bureau of Soils
was ever thought of, the Bureau of Chemistry
had developed a scientific
investigation of soils on a strictly practical
plan. It had brought samples of
soils from all the different states and
from the Rothamsted Station in England.
These soils had been carefully analyzed
by the most approved methods, had been
placed in pots carried on railways. It
had built a house to put them under cover
when it rained or when it froze. It had
carried on elaborate cultivations of the
kinds of crops these soils produced under
a standard environment of moisture,
temperature and sunlight. When the Bureau
of Soils was organized the first thing
it did was to demand the entire cessation
of scientific soil investigation by
the Bureau of Chemistry. The Secretary,
at the instigation of the Bureau of
Soils, ordered the soils thus accumulated
to be thrown out, the railway
demolished and the building in which the
soils were kept, razed. Data
accumulated under several years of investigations
were denied publication by the
Bureau of Soils. They still lie in the
celebrated morgue of the Department of
Agriculture, mute witnesses of violence,
with many others of their like, waiting
for Gabriel's trump. Surely the Bureau
of Soils needs a "revitalization." It
needs more a second birth!
PATERNALISM ON THE RAMPAGE
When the Appropriation Bill
for 1928 reached the Senate, a luminous statement
was made by Senator King of Utah in regard
to it. Speaking of the bill he says
(Congressional Record of January 4, 1927,
Vol. 68, No. 17, Page 1051):
"The pending
bill reveals a parental care that will put to shame the
Bolshevik or Soviet parentalism.
of Russia. We are soon to have a Federal
official in a Bureau or agency
now created--and if not we will create one--for
every activity of every individual.
He will tell us when to wash our faces,
how to clean our teeth, how to
comb our hair, what kind of clothes we should
wear, and how we shall determine
the temperature. For every conceivable and
inconceivable mutation of life
we shall have the beneficial and blessed care
of some functionary of the government.
But let the merry dance go on! We are
on the highway to Bureaucracy.
Let Bureaucracy be crowned King and make the
appropriations as much as may be
desired, and they regret that they have not
demanded more. So some of these
little appropriations, for instance, like the
Bureau of Mines, or the Biological
Bureau, or the Bureau of Soils, soon become
so powerful that they will want
millions of dollars annually.
CRITIQUE OF THE BUREAU OF SOILS
Now let us see what happened
in the committee hearings to the Bureau of
Soils. The following question was asked:
"I want to know
wherein the practical benefit is received by the ordinary
farmer or by the agricultural interests
of the nation from the chemical and
physical investigations of this
Bureau we are now discussing."
The business
of the soil survey is to decide what is a soil. Nobody ever
did that before. Unfortunately
it seems even God Almighty did not do it."
The modesty of this answer
is something overwhelming. It seems that the young
man making the survey, who probably was
not even brought up on the farm, ~cam
ride out in a Ford car and look over the
fence at a field and tell more about it
than God Almighty, who. created it, knows.
This faculty of original discovery of
facts long known is not confined to the
Bureau of Soils. It is also
characteristic of other Bureaus in other
Departments.
Here is what the man in the
Ford car finds out:
"We determine
the nature of a soil. We determine the distribution of that
soil wherever that soil is found.
We determine the characteristics of that
soil. We know then when the soil
survey is carried out that here in a given
place is a certain kind of soil
and there is so much of it. We know the soil
in terms of its characteristics,
of its texture, for example, of its chemical
composition. To be sure when I
talk about chemical composition I cannot say
that it has 2.39 per cent. of potash
in it, rather than 2.37 per cent. of
potash. It would take thousands
of years to determine that; but I can say
whether it has 2.39 per cent. of
potash, or 1.5 per cent. of potash, or .65
per cent. of potash.
For example:
"Let us take
Genesee County, New York. We send out two men into that area,
usually with a Ford car, and they
locate themselves in some spot in the center
of the area to be surveyed. They
go over every road in that county and examine
the soil all along the road. I
do not know that I could say accurately that
they examine every foot of the
soil in the county; but they go along the roads
and also between the roads, so
they can undertake to see all the land in the
county and determine its characteristics.
Two men will survey an average
county containing 600 square miles
in about six months."
It is thus seen that these
two surveyors by driving along the roads in a Ford
car (I suppose any other make of car would
do just as well) determine all the
characteristics of the soil down to the
depth of ten feet, give it a name, which
is usually the local name of the vicinity,
and furnish all the data to make a
map of that county with apparently never
having the benefit of a single chemical
or physical analysis of the soil. As in
a field of fifty acres, outside of the
glacial region, there may be a dozen different
types of soil, this is some feat.
Of course all these men must be trained
agriculturists or else they could not
tell the character of the subsoil to a
depth of ten feet without having a sample
of it. If they had a sample they couldn't
tell anything about its nature until
they had a chemical and physical analysis
thereof. They must have intellects of
most unusual character and training that
few, even practical farmers, have had,
to make these nice distinctions. Their
eyes, too, must have amazing powers of
telopsis to see ten feet below the surface.
The striking thing about this is the
vast amount of information the man in
the Ford car gathers in about an hour and
a half. So much more information than
the Almighty possesses! If it would take
thousands of years to tell whether a soil
has 2.39 per cent of potash, rather
than 2.37 per cent, the question arises,
how many thousands of years would it
take to get these other data?
Let me quote from another
author about this omniscient scientist in the Ford
car; (of course Goldsmith didn't know
anything about soil-mapping):
"And still they
gaz'd, and still the wonder grew
That one small
head could carry all he knew."
But the wonder is not to
be restricted. The witness goes on further:
"Now here we
have that soil distributed so far. The same results can be
effected on that soil wherever
that soil is found."
This is most interesting
information. Suppose we take any one of about a
thousand varieties of soil that have been
mapped. We find one particular soil in
the northern part of Minnesota. The same
soil is found in Missouri. That same
soil is found in Florida. You can grow
oranges and sugar cane on that soil found
in Florida. According to the Bureau of
Soils you can grow oranges and sugar cane
on that soil in Missouri and in Northern
Minnesota. Knowledge of soil is rapidly
growing! This is emphasized by the rhyme:
"When the Sea rolled its fathomless
billows
Across the broad plains of Nebraska,
When around the North Pole grew
bananas and willows,
And mastadons fought with the fierce
armadillos
For the pineapples grown in Alaska."
Speaking of the soil survey
man it is stated:
"When his experiments
have been carried out, when he obtains his result in
the end--it may be a good long
while, experiments are necessarily slow always,
it takes a good long while to find
them out,-but when he has found out that on
a given soil certain results are
obtained, then if the soil survey has done
what it ought to do those same
resulta can be effected on that same soil
wherever that soil is found."
To this I may say that if
the soil survey has done what it ought to do it
would take several thousand years of experiment
before there would be
justification for publishing a single
soil map.
The questioner did not seem
to be quite convinced. He asked some other
troublesome questions in regard to how
all these data were obtained, and
especially what the chemists were doing.
He was informed:
"Well he (the
chemist) assists. I am talking now of what he does in
relation to the soil survey. He
helps us to determine what the characteristics
of soils are. You see in the soil
survey we do not maintain laboratories
because there are other laboratories
and there is no use in duplicating.
Considering the intimate
knowledge which is obtained by the soil survey in a
Ford, it is interesting to know how much
ground is gone over. In answer to the
question, How is your work progressing?
thefollowing information was elicited:
"Very well; we
are covering now, I cannot give you the exact figures in
square miles, something like 25,000
to 30,000 square miles per year; possibly
a little more than that. Two men
will survey an average county containing 600
square miles in about six months.
Another embarrassing question
was asked:
"I am talking
about the maps. I want to know what practical use the people
who get these soil surveys put
them to."
He was told:
"Sometime ago
I picked up a copy of Hoard's Dairyman, and in that Journal
there were two photographs; one.,
a photograph of the roots of alfalfa grown
on one soil type, and the other
was a photograph of the roots of alfalfa grown
on another soil type. I believe
one lot was grown on bottom land and the other
was grown on upland soil. Now let
me stick a pin in it for a moment and go to
another thing.
(The questioner.)
"We will put a twenty-penny nail through it."
To this came the response,
going one better:
"Or a railroad
spike. The soil survey map shows the characteristics of the
soil, not only on the surface,
but down to a depth of, say, from six to ten
feet. In other words, it shows
the soil all the way down."
All this intimate information
from 30,000 square miles a year! C'est
magnifique!
Many questions were asked
as to what benefit to the farmer came from the soil
survey. It was the opinion of the Committee
that the chief benefits that the
farmer got from the soil maps was in the
fact that they gave all the roads. The
particular thing it wanted to know was
what practical use ihe people who get
these soil maps put them to. The answer
was that the county agent is really the
man to interpret the maps. That may be
true now, but when the maps were first
printed there were no county agents.
~ It finally developed that
about 35 per cent of the agricultural portion of
the United States has been mapped. At
this rate the soil survey will last until
about 1980. The number of different kinds
of soils will be nearly 3,000 and
oranges will be growing in Alaska. The
different types of soils which have
already been given distinctive names are
well up toward athousand.
A REAL SURVEY
While this so-called soil
survey has been going on now for nearly thirty
years, costing, exclusive of the printing,
approximately five million dollars,
another real survey and mapping has been
made by the geological survey.
Numerous contour maps, showing
the altitude and physical characteristics of
the soil, have been published. Now the
geological survey has introduced aerial
photography as a salient feature of the
work. They do not simply look at the
fields from a Ford car. They show them
as they are.
"The War Department
cooperates with the geological survey in this useful
work. Each photographic unit has
an enlisted pilot and photographer and
airplane. As to the area covered,
the phenomenal extent of the Soil Bureau
sinks into insignificance. One
detachment in 1926 photographed 9,000 square
miles. Another this year has assigned
to it 8,000 square miles. Another unit
has been assigned 4,000 square
miles in Illinois and will then begin
photographic work in Michigan and
Wisconsin." (Science, August 19, 1927, page
165.)
There is a growing feeling
that the whole system of soil survey is a gigantic
caricature of applied science; .in other
words, it is simply "bunk." This
feeling was a general one at the very
beginning of the activities of the Bureau
of Soils. It was not confined solely to
the Soil Survey, but to the theories put
out by the Bureau of Soils. Their famous
Bulletin No. 22 was vigorously assailed
by the leading agricultural chemists of
this country. Among these there was none
of greater eminence than Professor Hilgard
of the University of California. Dr.
Hilgard says (Science, New Series, Vol.
18, No. 467, Dec. 11th, 1903, page 755):
"Now the criterion
usually applied to the relevancy of soil analyses is
whether they will stand the test
of agricultural practice. Judged by this
test, both the ultimate analysis
and that by distilled water are, equally,
failures, according to Whitney's
own testimony. But his conclusion is that
since his method fails as a criterion
of rich and poor soils, therefore the
chemical composition of soils has
no bearing upon the crop production; and
that, therefore, the chief factor
determining the yield is 'the physical
condition of the soil under suitable
conditions.'
" To this assertion
'non sequitur!' is the obvious flrst answer. * * *
"The recent enunciation
of the Chief of the Bureau of Soils, while still
maintaining the preferential claim
for the physical properties of the soil, at
least admits the importance of
the functions of plant food; but claims that
fertilization is unnecessary because
the supply would be 'indefinitely
maintained.' He in fact takes us
back to the times of Jethro Tull and the
Louis Weedon system of culture,
which also presupposed the indefinite duration
of productiveness; but signally
failed to realize it when the test of even as
much as twelve years came to be
applied.
"In the foregoing
discussion, only the salient points of the bulletin in
question have been taken up, and
their most obvious weaknesses briefly
considered. To do more would involve
the writing of a paper as long as the
bulletin itself; and it is to be
hoped that the matter will be taken up by
others, also. Thus, for instance,
Rothamsted Station might have something to
say regarding the singular interpretation
here put upon the splendid work of
Lawes and Gilbert.
"In conclusion,
it seems to the writer that the verdict upon the main
theses put forward so confidently
in this paper must be an emphatic 'Not
proven!'"
Dr. A. D. Hall published
in Nature, November 9 1903, an article entitled "A
New Theory of the Soil. I quote the following:
"Though Dr. Whitney's
main argument is thus hardly tenable on his own
showing, certain side issues are
worth a little notice. Dealing with the
action of fertilizers, he notices
that, while the wheat crop on the best
fertilized plot at Rothamsted averages
about 33 bushels, on the plot which has
been unmanured for sixty years
it has fallen to 12 or 13 bushels. Yet on the
similarly unmanured plot in the
Agdell field, where the wheat is grown once
every four years in rotation with
roots, barley and clover or fallow, but
little falling off is apparent.
Hence he concludes that, in virtue of the
rotation, the fertility of the
Agdell field is unimpaired, whereas in the
continuous wheat field 'the decrease
can be ascribed only to some physical
change in the soil, to some chemical
change other than the actual loss of
plant food taken up by the crops.'
But when any other crop on the unmanured
plots in Agdell field is considered,
the decline in fertility is enormous;
roots and clover only yield minimum
crops; so far as they are concerned the
cultivation of the soil involved
in the rotation has been quite unable to
maintain the fertility. The wheat,
with its powerful root system, holds up
better, but its production is falling
steadily; it Is important to see how
long it will be maintained, though
it need never be expected to fall to the
level of the continuous wheat,
because the land is practically only cropped
every other year.
"Suggestive as
Dr. Whitney's memoir must be to all agricultural chemists,
we thus do not consider that the
main theory it propounds possesses any
permanent value. We should be sorry
if we have failed to appreciate the
argument properly, but it, is not
always easy to follow, the text being
somewhat deficient in sequence
and orderly arrangement; indeed, we are
disposed to think that had the
question been set out a little more nakedly at
the outset, and the demonstration
marshalled with more precision, a somewhat
different conclusion would have
been reached by the authors."
This array of soil chemical
talent was joined by Professor Hopkins of the
University of Illinois, who published
a serious attack upon the theories and
practices of the Bureau of Soils. Professor
Snyder of the Experiment Station of
Minnesota joined in this assault. The
chemists of Cornell University also lent
their aid to combating these theories.
No one of the unscientific theories of
the Bureau of Soils was ever approved
by the Association of Official
Agricultural Chemists of the United States.
These theories of soil fertility
were all built upon the sand and have
long since passed away. Our young
chemists, who are not acquainted with
all these facts, would find it interesting
to review the literature to which I have
just alluded. Professor Hilgard was
constrained to ask the following questions:
"Is freedom of
research restricted in the Department as respects soils, and
is everybody in the Department
required to believe in the theory of the Bureau
of Soils or to express no opinion
whatever in any official capacity? Is the
right to use the soil for research
purposes abridged in the Ddpartment of
Agriculture, and if so, to what
extent? Are the theories of the Bureau of
Soils accepted by reputable authorities
in this and other countries?"
The first and second questions
he answered in the affirmative. The third
question he answers strongly in the negative.
A LONG WAIT FOR THE RECOVERY
More than thirty years have
passed since the Bureau of Soils was established,
and since the Bureau of Chemistry was
denied the privilege of any further
research in soils. Now the Bureau of Soils
with all of its unfortunate and
unsavory history is combined with what
little is left of the Bureau of
Chemistry, both to be under a common head.
May we hope that this head will not
believe in any of the vagaries which have
characterized the Bureau of Soils
during its long history, and may he be
a man who will never raise his finger or
his voice to prevent ethical research
in any branch of science pertaining to
chemistry in all its ramifications, or
to soils in all the innumerable varieties
into which they have now been divided.
AN UNFORTUNATE EXCHANGE
What has the Bureau of Chemistry
given up? It has given up all it has
acquired in its long and useful career.
It has been denied a service to humanity
which, if it had been rendered in the
spirit of the law which it represented,
would have proved the greatest blessing
to the health and welfare of a nation. A
service of this kind is one in which no
person informed in regard to the matters
could have raised the question of cui
bono so vigorously advanced in the
hearings before the appropriation committee
on the present Agricultural bill.
Finally it has given its life. , We may
ask: What would have happened in that
Congress of 1906 if some one interested
in adulterating foods had moved to
abolish the Bureau of Chemistry? Outside
of sympathizers with adulterators, it
would not have received a single vote
in either House or Senate. Those who
engineered this legislation through Congress
have thus accomplished the crime in
which their predecessors of twenty-one
years ago so signally failed. Tempora
mutantur et nos cum illis mutamus. It
was a poor trade. It will take the new
organization many years to live down the
bad reputation of one of its
components. Let us hope that the influence
of the new Bureau of Chemistry will
cause a radical reform in its new spouse,
which will make her unrecognizable in
the near future. What kind of wife has
it divorced in order to consummate this
companionate marriage?
Let the old Persian poet
and philosopher, Omar, speak:
"You know, my friends, with what.a
brave Carouse
I made a Second Marriage in my
house;
Divorced old barren Reason from
my Bed,
And took the Daughter of the Vine
to Spouse."
On the other hand, the new
Bureau of Chemistry has lost the opportunity of
ever returning to the fundamental principles
of the food law which have been so
thoroughly turned aside. Thus it can never
regain the public confidence and
enthusiastic support which the late Bureau
merited by its leading influence in
securing the enactment of the Food and
Drugs Law. The Bureau of Chemistry is
dead. Those who lynched it should shudder
when the people know all the facts of
the murder. The plea of insanity will
not avail.
ANTAGONISM BETWEEN RESEARCH AND PRACTICAL
CHEMISTRY
The new Bureau is to conduct
certain fundamental researches on the chemical
composition of foods, and on the changes
that take place in foods as the result
of the action of micro-organisms. In regard
to this transfer the following
statement was made:
"That it is work
that has heretofore been done under the food and drugs act
appropriation. It is research of
a rather fundamental type; although necessary
for food and drugs act enforcement,
it seems more logical to place that work
in the Bureau of Chemistry and
Soils."
This is rather an effort
to suppress investigations among that class of
chemists who are best suited to carry
them on in so far as food administration
is concerned. In many other places in
the hearings and in the original statement
of the Secretary of Agriculture this restriction
of research is stressed.
Not only was the demise of
the Bureau of Chemistry thus caused, but the
chemical work is now transferred to another
unit under the regulatory system
where denial of research is plainly indicated.
The Secretary of Agriculture
himself has just discovered the antagonism
between research and practical chemistry.
In the hearings he made the following
statement, after acknowledging that research
and practical chemistry had gone
hand in hand up to the present time, and
especially in the institution with
which he was connected:
"Research work
and regulatory work do not mix any more than water and oil.
We just grew up that way and we
have developed to a point now where we think
the regulatory work ought to be
in another department by itself, rather than
being in with research. At the
present time we have an opportunity to work out
this consolidation.
RESEARCH
It is evident that the
legislation abolishing the Bureau of Chemistry and
establishing a new Bureau of Chemistry
and Soils and transferring the food
activities to a new department in direct
violation of existing law was a
regrettable mistake. One of its
purposes was the discouragement of research by
the chemists employed in the regulatory
unit. This was a feature of great
importance to the force of the old Bureau
of Chemistry. In all matters of
research those who are studying these
problems must be in direct contact with
the problems themselves. This is particularly
true of research in the problems
relating to foods and drugs. If the problem
is not before the research worker he
would be up in the air all the time as
to what to do. The problem must be before
the research chemist. He must have an
opportunity to study all the relations of
these problems to the industry itself;
otherwise he would be groping blindly in
his attempts to find out any new principles
which are basic in the particular
industry which he is examining. There
is no branch of investigation that needs
more research than is found in the problems
which arise in the very numerous
conditions springing from the new foods
and drugs administration.
In Science of April 1, 1927,
page 307, Professor Metcalf makes the following
statement:
"We believe that
every normal individual is born with some endowment of the
research spirit--the inquiring
mind given to trying to find out by exercise of
its own powers. Normal children
are full of natural curiosity and they have to
a fair degree the habit of experimenting;
that is, they are endowed with
something of the research spirit.
"We believe that
this mental habit of learning by self-reliant experiment
should be conserved and strengthened
from the beginning throughout life. We
believe that all education, from
pre-kindergarten age on through the
university, should have this encouragement
of the spirit and habit of research
as a main object. We believe that
no worth-while job in life can be done with
proper effectiveness in any other
spirit. We believe that, in all education,
learning through self-reliant experiment
and exercise of individual judgment
should dominate and that the habit
of stopping with faith in the printed
statement in the textbook should
be avoided as leading to fatty degeneration
of the mind and soul. We believe
that teaching should be conducted only by
those who have the research attitude
themselves and have ability to cultivate
it in their pupils."
NO NEED FOR THIS RADICAL LEGISLATION
Dr. Browne, before accepting
the position as Chief of the Bureau, made it
clearly known to the Secretary that he
was not disposed to take any active part
in the execution of the Food and Drugs
Act. As Chief of the Bureau he, of
course, would sign all Bureau orders.
He was promised that his wishes in this
matter would be respected. In the report
of the Chief of the Bureau of
Chemistry, published September 1, 1926,
for the fiscal year ended June 30, 1926,
Dr. Browne was able to record the fact
that his wish had finally been entirely
realized. He says on page 21:
"A reorganization
of the regulatory work involved in the enforcement of the
Food and Drugs Act, the Tea Inspection
Act, and the Naval Stores Act was
effected during the year; all such
work being placed under the immediate
supervision of an assistant chief
appointed for the purpose.
Dr. Browne had thus succeeded
in securing his freedom from personal attention
to the execution of the Food and Drugs
Act which had long been his ambition and
which had long been promised to him. The
Bureau was then in the position he
thought it ought to occupy and his duties
were left untrammeled by any personal
supervision of the enforcement activities.
In the very next year after this very
desirable condition of affairs was established,
the amazing effort was made--and
a successful one--to separate entirely
the regulatory work of the Food and Drugs
enforcement from the Bureau of Chemistry.
RADICAL CHANGE OF ATTITUDE
The present attitude of the
Food and Drugs enforcement is well expressed by
the Secretary of Agriculture in his report
for 1926, page 91. In speaking of the
Federal Food and Drugs Act, he says:
Progress was
made in promoting the purity and truthful labeling of food and
drugs through the enforcement of
the Federal food and drugs act. This year is
the twentieth anniversary of the
enactment of the law. The department looks
upon this act as a corrective measure
rather than a punitive one and, in
enforcing it, endeavors to render
assistance to the industries in improving
their products. * * * The educational
methods followed by the Federal and
State food officials have been
effective both in.saving an industry from great
losses and in enabling consumers
to obtain an unobjectionable product. * * *
It was found that the educational
and regulatory campaigns had accomplished
commendable results. Notwithstanding
rather comprehensive sampling, no goods
of last season's pack were found
of a character warranting action under the
Federal food and drugs act.
When individual
concerns persist in violating the law, or when violations
involve deliberate fraud either
through adulteration or misbranding, the full
penalties of the law are invoked
to correct the trouble.
A careful study of the
Food and Drugs Act shows that there is no warrant in
any one of its provisions for these
dilatory tactics. Congress provided a period
of six months in which manufacturers could
study the meaning of the law. Now
after twenty years the big business of
flouting the law is still encouraged.
There are no corrective features in the
law. Every section of this law is
directly or indirectly punitive. There
is no clemency for ignorance or accident.
There is no requirement that the offender
has knowingly or willfully offended
the law. An amendment to that effect was
rejected when the bill was before
Congress. There is no provision for inviting
manufacturers to a conference
except when the Bureau of Chemistry has
found that their products are either
misbranded or adulterated. Then a hearing
is accorded under the law on questions
of fact.
The whole attitude of
the enforcing officers is to postpone all punitive
measures just as long as possible.
They beg offenders to cease offending instead of bringing them before the
Court and executing the law as provided by the law itself. It was intended
by Congress that these punitive features should be
enforced. The Secretary of Agriculture
is directed by the law to transmit
without delay the findings of the Bureau
sent him to the Department of Justice,
which is directed to bring action immediately.
Where can the enforcing officer
find his authority for endless delay?
It is not at all strange
that when the head of.a department, as has just been
shown, chooses to depart from the methods
of enforcement laid down by the law to
those which he claims through experience
to have found to be more effective,
that his subalterns fall into the same
state of mind. This was shown
particularly in the address of the Assistant
Secretary of Agriculture, Hon. R.
W. Dunlap, of Ohio, before the Convention
of the State Food and Drug officials
at Denver, in 1925. Mr. Dunlap as Food
and Drug Commissioner of Ohio was a
militant enforcer of law. It was hoped
that one with his record would bring the
spirit of rigid enforcement into the Food
Administration at Washington. This
would replace the theory which had grown
up under the impression that the law
was not made to be enforced but only to
be used as an educational agent in
bringing infractors to a sense of their
crimes. There was hope that at last we
had come to the turning point of the whole
matter and that the Assistant
Secretary would throw the whole weight
of his experience and training on the
side of strict law enforcement. Alas!
it was first at Denver, in 1925, that it
was found that he had been infected by
the sleeping sickness of educational
procrastination as a dominant principle
in law enforcement. The following
quotation is from his address at Denver
in 1925 (page 76, Official Proceedings
of the Twenty-ninth Annual Conference
of the Association of Dairy, Food and Drug
Officials of the United States):
"No longer do
you gefitlemen regard the total number of seizures
accomplished or of criminal prosecutions
instituted or the aggregate of fines
collected as a measure of efficiency
in enforcing the laws entrusted to your
care. The broader view, I think,
universally prevails that an enforcing
official who as a result of his
efforts can point to a trade within his
jurisdiction intelligently and
wholeheartedly complying with the law, thus
insuring full protection to the
purchasing public as well as fair and
equitable competitive practices
has done more to merit the confidence not only
of the public which he protects
but of the industry which he regulates than
one who by virtue of threats of
penalties and confiscation procures an
unwilling compliance rather than
the support of the law he is administering. *
* * Through the adoption of this
theory of control, costs of litigation have
been eliminated and a constructive
leadership maintained to the benefit of all
concerned. * * * The Department,
as many of you know, now carries on its food
and drug law enforcement through
the Bureau of Chemistry under an organized
plan of procedure along very well
defined lines, known as the project plan of
work. Certain industries are investigated
throughout the entire country for
the purpose of determining what
violations if any exist and then of taking
appropriate steps toward their
correction. By this means a uniformity of
action against every member of
an industry is insured and the maximum
corrective effect is obtained through
educational means, to be followed by
punitive action in those cases
where educational measures are ineffective."
Thus we find this militant
state official who fought the whole array of
adulterators and misbranders at the Denver
Convention in 1909 praising a method
of enforcement of the Act which is not
found anywhere in the Act nor by any
possible construction of any of its features.
It may well be asked why
after twenty years of experience manufacturers have
still to be cited to kindergarten instruction
as to the meaning and purport of
the Food Law? As a rule, manufacturers
of foods are fully informed as to the
requirements of the Food Law, both of
the nation and of the state. If they are
not so informed it is their own fault.
There is no requirement that these
schools of instruction should be established
and the money appropriated by
Congress for the enforcement of an Act
be used for the purpose of instructing
manufacturers as to their duties under
the Act.
Mr. Paul Dunbar, head of
the regulatory division in the Bureau of Chemistry,
in a recent article in the Oil, Paint
and Drug Reporter under the head "Trade
Warnings Issued," says:
"If, on the other
hand, the infraction is one which appears to be the
result of a misunderstanding and
the ensuing damage to the public is not of
such a character as to require
immediate removal of the goods from the market,
it is the practice of the bureau
before initiating regulatory action to give
notice to the trade, advising that
on or after a certain date legal action
under the food and drug act will
be instituted if continued violations are
encountered. Where the facts seem
to warrant it such notice may be preceded by
a public hearing at which interested
parties
are accorded opportunity for free
discussion.
"Opinions may
differ as to what types of violation are of such character as
to require drastic action, and
what may be tolerated for a time sufficient to
give warning to the responsible
manufacturer. * * *
"The decision
as to what course shall be taken in any particular instance
rests with the administrative officials
of the Bureau of Chemistry in
Washington or the Director of Regulatory
Work. * * *
"Substantially
the only thing the food and drugs act requires of a
manufacturer is that his products
be fit for use and that they be not labeled
so as to deceive, mislead or defraud
the purchaser. * * *
"It is the bureau's
theory that more is to be accomplished by acting in an
advisory capacity under such conditions
as will insure legal products than by
accumulating a record of successful
prosecutions with attending flues turned
into the Treasury of the United
States."
Thus we see, through all
the branches of food enforcement activities, this
laissez faire principle. There is no longer
any virtue in applying the penalties
prescribed by law. There is no longer
any adulteration that threatens health.
Business must be preserved. Penalties
were intended as aids to reformation. They
are not now to be inflicted except as
a last resort. Such is the regrettable
condition into which law enforcement has
fallen.
AN INTERESTING STORY OF COCA-COLA
Many other instances of softness
in food-law enforcement may be cited. Early
in the history of the activities of the
Bureau of Chemistry in its efforts to
carry out the provisions of the food law
evidence in relation to the Coca-Cola
habit, especially in the South, was procured.
The character of this evidence was
sufficient to induce the enforcing
officers to bring charges against Coca-Cola
under the Food and Drugs Act. A number
of seizures of the goods in transit was
recommended and criminal charges against
the manufacturers and dealers were
formulated. It was impossible to get
any of these accusations endorsed by the
Board of Food and Drug Inspection.
Finally the Bureau of Chemistry was ordered in writing, over the signature
of the Secretary, to cease its activities in
trying to bring Coca-Cola to the bar
of justice. A short time after this order
was received Mr. Seely, proprietor of
an influential newspaper in Atlanta, paid
the Bureau a visit. In the course of his
conversation he asked why no case had
ever been brought against the Coca-Cola
corporation. In answer to this question
he was shown the order of the Secretary
of Agriculture, forbidding the Bureau of
Chemistry from making further efforts
in this line. He was greatly astonished
that the Secretary of Agriculture had
thus interfered with the administration of
justice. He immediately called on the
Secretary of Agriculture, and he entered a
vigorous protest against the policy of
the Department in protecting adulterators
and misbranders of foods. He stated to
the Secretary that unless this order was
recalled he would publish all the details
in the matter in his newspaper. The
Secretary promptly recalled the order
and directed the Bureau to proceed with
its activities. The officials of the Bureau
desired to bring the case in the
District of Columbia, as more convenient
for the Government in assembling its
evidence and experts. Two members of the
Board of Food and Drug Inspection were
determined that the case should be brought
in Chattanooga. In the latter city
the Coca-Cola Corporation had its chief
bottling works. They also owned large
bodies of real estate, including the principal
hotel. The whole environment at
Chattanooga was favorable to the Coca-Cola
industry. The Department was put to a
large expense to send its scientific officers
so far away from the base. It was
equivalent even to trying the case in
Atlanta, if that had been possible under
the law.
The result of this trial,
which was a long drawn out one, lasting over three
weeks, is found in Notice of Judgment
No. 1455. The case was warmly contested.
Experts testified on both sides and with
the usual contradictory testimony,
which it is not advisable even to summarize
here. When the evidence was
completed, the attorneys of the defendant
moved to dismiss the libel on the
ground that caffein (caffeine), which
was the chief injurious substance in Coca-Cola, was
not an added substance because it was
mentioned in the original formula. The
presiding judge, the Hon. E. T. Sanford,
granted this motion, and the case was
therefore dismissed.
The Department of Justice
appealed the case to the United States Circuit
Court of Appeals of the sixth district.
This court sustained the action of the
court below. (Notice of Judgment No. 4032.)
The Department of Justice then
appealed the case to the Supreme Court
of the United States. The unanimous
opinion of the Supreme Court held that
the courts below erred in their decision,
and the case was remanded for a new
trial. This action of the Supreme Court is
detailed in Notice of Judgment No.
4801 issued Septembher 18, 1917. The opinion of the Supreme Court was written
by Justice Charles E. Hughes. Justice Hughes' decision contained the
following principal points:
"The questions
with respect to the charge of 'adulteration' are (1) whether
the caffein in the article was
an added ingredient within the meaning of the
Act (section 7, subdivision 5)
; and if so (2) whether it was a poisonous or
deleterious ingredient which might
render the article injurious to health. The
decisive ruling in the courts below
resulted from a negative answer to the
first question, * * * but it was
concluded, as the claimant contended, that
the caffein--even if it could be
found by the jury to have the alleged
effect--could not be deemed to
be an 'added ingredient' for the reason that
the article was a compound known
and sold under its own distinctive name, of
which caffein was a usual and normal
constituent."
Justice Hughes discusses
in considerable detail the claims of the defendant
and then continues as follows:
"Having these
considerations in mind, we deem it to be clear that whatever
difficulties there may be in construing
the provision, the claimants' argument
proves far too much. We are not
now dealing with the question whether the
caffein did, or might, render the
article in question injurious; that is a
separate inquiry. * * * We think
an analysis of the statute shows such a
construction of the provision to
be inadmissible, * * * nor can we accept the
view that the word 'added' should
be taken as referring to the quantity of the
ingredients used. It is added ingredient
which the statute describes, not
added quantity of the ingredient,
although, of course, quantity may be highly
important in determining whether
the ingredient may render the article
harmful, and experience in the
use of ordinary articles of food may be of the
greatest value in dealing with
such questions of fact. * * * We can see no
escape from the conclusion that
it is an added ingredient within the meaning
of the statute."
Justice Hughes also comments
on the claim made by the defendant that
Coca-Cola was not a misbranding, but that
it was a distinctive name, and he
continues as follows:
"We are thus
brought to the question whether if the names 'Coca' and 'Cola'
were respectively descriptive,
as the Government contends, a combination of
the two names constituted a distinctive
name within the protection of the
proviso in case either of the described
ingredients was absent. * * * In the
present case we are of the opinion
that it should not be said as a matter of
law that the name was not primarily
descriptive of a compound with coca and
cola ingredients as charged. Nor
is there basis for the conclusion that the
designation had attained a secondary
meaning as the name of a compound from
which either cocoa or cola ingredients
were known to be absent; the claimant
has always insisted and now insists
that its product contains both. But if the
name was found to be descriptive,
as charged, there was clearly a conflict of
evidence with respect to the presence
of any coca ingredient. We conclude that
the court erred in directing a
verdict on the second count.
"The judgment is reversed
and the cause is remanded for further proceedings
in conformity with this opinion."
The above decision of the
Supreme Court, discussing as it did all the angles
of a legal character, completely demolished
the lines of defense established
during the trial, having decided on both
counts, first that caffein was an added
substance, and second that Coca-Cola was
a descriptive and not a distinctive
name. The subsequent proceeding before
the court must of necessity result in
victory on the part of the Government.
It was a long while, however, before the
case was called for retrial in harmony
with the injunction of the Supreme Court.
The case was called in the
District Court of Tennessee at Chattanooga on
November 12, 1917. The defendants, otherwise
known as the claimants in the case,
entered a plea of nolo contendere. On
motion of the district attorney the court
passed the following sentence:
"' Now, therefore,
the premises considered, it is ordered, sentenced and
adjudged by the court, now here,
and His Honor, the district judge, by virtue
of the power and authority in
him vested, does hereby order, sentence and
adjudge that the goods, wares
and merchandise seized in this proceeding be,
and the same are hereby forfeited
to the United States, and that the said
Coca-Cola Company pay all costs
of this proceeding. And it is further ordered
that the said goods, wares,
or merchandise, seized herein, to wit, the forty
barrels and twenty kegs of Coca-Cola,
shall be released to the claimant upon
said claimant paying the cost
above adjudged and giving sufficient bond,
conditioned that the product
shall not be sold or otherwise disposed of
contrary to the provisions of
the Federal Food and Drugs Act, or the laws of
any state, territory, district,
or insular possessions of the United States."
Added to this decision is
the following paragraph:
" It is further
ordered, adjudged and decreed that the judgment of
forfeiture shall not be binding
upon the said Coca-Cola Company or its
product, except as to this cause,
and the particular goods seized herein, nor
binding upon the claimant and its
product as it shall relate to any other
cause or proceeding of any kind
or character."
This paragraph was evidently
interpreted by the food enforcement officials to
forbid any further proceedings against
the Coca-Cola Company or its product on
the part of the administrative authorities
executing the food law. In any case
the answer is that it is not binding on
anybody except the Coca-Cola Company and
further that it did not stop the executive
authorities enforcing the food law
from further proceedings against the Coca-Cola
Company or any of its products.
No attempt was made by the executors
of the food law to enforce the decree of
the courts by beginning action against
Coca-Cola products every time they
crossed a state line. Under the opinions
of the Supreme Court such proceedings
would have been uniformly successful.
Owing to a lack of these proceedings the
Coca-Cola Company has its stock now
listed on the New York Stock Exchange. Its sales have been enormously increased,
invading the North, as they previously
invaded the South. The effects of
drinking caffein on an empty stomach and in a
free state are far more dangerous
than drinking an equal quantity of caffein
wrapped up with tannic acid in tea
and coffee. (emphasis added) The threat to health and happiness
of our people is reaching far greater proportions due to this
expansion of trade. The governors of the
New York Exchange have admitted the
stock of the Coca-Cola Company, the
products of which have been condemned by a United States Court as both
adulterated and misbranded. This baleful condition
could have been easily avoided if the
enforcing officers had raised their hands
in protest against the further development
of this business by seizing its
products and bringing criminal action
against its manufacturers.
Another interesting story
would have been clarified if the Supreme Court
could have passed an opinion on the immunity
granted the Coca-Cola Company by
the court.
THE PATHETIC STORY OF BLEACHED FLOUR
A further illustration of
law enforcement negligence is found in the bleached
flour case. On or about April 11, 1910,
the Lexington Mill and Elevator Company
shipped from Lexington, Nebraska to Castle,
Missouri, a consignment of six
hundred twenty-five sacks of flour, labeled
"L 48-1 pounds Lexington Cream XXXXX
Fancy Patent. This flour is made of the
finest quality hard wheat. Lexington
Cream--Lexington, Neb.--Lexington Mill
& Elevator Co."
In due course libel was filed
against the said 625 sacks of flour, charging
that the product was adulterated and misbranded,
and praying seizure and
condemnation of said flour. In due course
the case was called in the District
Court of the United States in the Western
Division of Missouri, by Arba S. Van
Valkenburgh, District Attorney. Fortunately,
the United States was able to
secure as associate counsel for the prosecution
of this case Mr. Pierce Butler,
who assumed the principal rôle of
the prosecuting officer, and is now an honored
Associate Justice of the Supreme Court.
Extensive testimony was given by
experts, millers, wheat-growers, wheat-buyers,
and other competent parties, both
for and against the process of bleaching.
The Honorable Smith McPherson acted as
judge in the case. Judge McPherson in
instructing the jury, used in part the
following language (Notice of Judgment
No. 722, November 4, 1911):
"The flour seized
in this case is an article of food within the meaning of
the act of Congress. And if the
treatment of the same by the Alsop process
caused it to contain any added
poisonous or other added deleterious ingredient
of a kind or character which may
render the same injurious to health, then it
is adulterated and must be condemned.
"It is admitted that this flour was
treated by the Alsop process for the
purpose of bleaching or whitening,
and the evidence establishes that
nitrogen-peroxide gas was employed
for that purpose and further establishes
that that gas, nitrous acid,
nitric acid, and nitrites of the kind which may
be produced by such treatment
are poisonous and deleterious substances, and
that these substances when taken
in sufficient quantities will produce
poisonous action or death.
"It appears
from the evidence in this case that the bleaching process
imparts and adds to flour substances
referred to in the testimony as nitrites
or nitrite-reacting material,
and such substances were imparted to the flour
seized in this case by the bleaching
process. It further appears from the
evidence that such substances
so imparted or added to this flour are
qualitatively both poisonous
and deleterious, that is to say, that these
substances are of a poisonous
and deleterious character.
"It is well known
that wheat flour is not eaten raw. There is evidence in
this case that tends to show that
during the process of making bread nitrites
or nitrite-reacting material contained
in the flour is lessened and may be
eliminated under some circumstances,
but it is also well known that wheat
flour is used for the making of
other articles of food--biscuits, dumplings,
pastry, cake, crackers, gravy,
and perhaps other articles of food--which may
be consumed by all classes of persons--the
young, the old, the sick, the well,
the weak, the strong; and I charge
you that it is right for you in reaching
your verdict to take these facts
into consideration together with all the
other proven facts and circunistances
in the case.
"The fact that
the Patent Office at Washington issued a patent for the
Alsop process has nothing to do
with the question of branding correctly, or
misbranding of flour. The fact
that the Patent Office issued a patent for the
Alsop process does not warrant
nor authorize the adulteration of flour as made
by the Alsop process if it is adulterated.
All these things must be put to one
side, and your verdict must be
determined in accordance with the law and facts
in the case. It is of no importance
to, you, nor is it of importance to me,
who will be pleased or displeased
in this case, whether of counsel or of the
parties, or of any other person.
The only question is, "What is the right, and
what is the wrong of this case?"
Thereafter the jury returned
verdicts as follows:
"We, the jury,
find that the flour seized in this case is adulterated.
(Signed, John W. Thomason, Foreman.)
"
"We, the jury,
find that the flour seized in this case is misbranded.
(Signed, John W. Thomason, Foreman.)"
An appeal was taken from
the decision of the Court and the jury to the United
States Circuit Court of Appeals of the
Eighth District. On January 23, 1913, the
case having come on for hearing before
the Circuit Court of Appeals, the
judgment of the Court below was reversed,
and the case remanded for a new trial.
In reversing this verdict the Circuit
Court said:
"The Court charged
the jury: 'It is clear that it was intended by Congress
to prohibit the adding to the food
of any quantity of the prohibited
substance. The fact that poisonous
substances are to be found in the bodies of
human beings, in.the air, in potable
water, and in articles of food such as
ham, bacon, fruits, certain vegetables
and other articles does not justify the
adding of the same or other poisonous
substances to articles of food, such as
flour, because the statute condemns
the adding of poisonous substances.
Therefore, the court chargeth you
that the Government need not prove that this
flour, or food stuffs made by the
use of it, would injure the health of any
consumer. It is the character,
not the quantity of the added substance, if
any, which is to determine this
case.'
"The trial judge
decided that if the added substance was qualitatively
poisonous, although in fact added
in such minute quantity as to be
non-injurious to health, that it
still fell under the ban of the statute; and
the distinction is sought to be
drawn between substances admittedly poisonous
when administered in considerable
quantities but which serve some beneficial
purpose when administered in small
amounts, and those substances which it is
claimed never can benefit and which
in large doses must injure. The
distinction is refined. To apply
it must presuppose that science has exhausted
the entire field of investigation
as to the effect upon the human body of
these various substances . . .
that nothing remains to be learned. Otherwise
the court would be required to
solemnly adjudge today that a certain substance
is qualitatively poisonous because
it can never serve a useful purpose in the
human system only to have this
conclusion made absurd by some new discovery.
There is no warrant in the statute
for such a strained construction. The
object of the law was evidently
(1) to insure to the purchaser that the
article purchased was what it purported
to be, and (2) to safeguard the public
health by prohibiting the inclusion
of any foreign ingredient deleterious to
health. Hall-Baker Grain Co. v.
United States (198 Fed. 614). The statute is
to be read in the light of these
objects, and the words 'injurious to health'
must be given their natural meaning.
It will be observed that this paragraph
of the statute does not end with
the words 'added deleterious ingredient,' but
as a precaution against the idea
embodied in the instruction complained of, it
says 'which may render such article
injurious to health.' Without these latter
words, it might, with more force,
be argued that deleterious and beneficent
ingredients are to be divided into
two general classes independent of that
particular effect in the actual
quantities administered, but the possibility
of injury to health due to the
added ingredient and in the quantity in which
it is added is plainly made an
essential element of the prohibition. The
investigation does not stop with
the consideration of the poisonous nature of
the added substance. It is added
to the article of food and the statute only
prohibits it if it may render such
article--the article of food--injurious to
health.
"The judgment
below must be reversed and the case remanded for a new trial,
and it is so ordered."
(Notice of Judgment
2549, issued October 18, 1913.)
The Department of Justice
immediately appealed from the decision of the
Circuit Court to the Supreme Court of
the United States. The case was called by
the Supreme Court on February 24, 1914.
The Supreme Court confirmed the decision
of the Circuit Court below and remanded
the case to the original court for
retrial. The decision of the Supreme Court
was written by Mr. Justice Day, and
was a unanimous decision. The Supreme
Court made many luminous explanations in
regard to the matter under consideration.
The decision, among other things,
states:
"The statute
upon its face shows that the primary purpose of Congress was
to prevent injury to the public
health by 'the sale and transportation in
interstate commerce of misbranded
and adulterated foods. The legislation, as
against misbranding, intended to
make it possible that the consumer should
know that an article purchased
was what it purported to be; that it might be
bought for what it really was and
not upon misrepresentations as to character
and quality. As against adulteration,
the statute was intended to protect
public health from possible injury
by adding to articles of food consumption
poisonous and deleterious substances
which might render such article injurious
to the health of consumers. If
this purpose has been affected by claims and
unambiguous language,, and the
act is within the power of Congress, the only
duty of the courts is to give it
effect according to its terms. * * * Congress
has here in this statute, with
its penalties and forfeitures, definitely
outlined its inhibition against
a particular class of adulteration. * * *
"It is not required
that the article of food containing added poisonous or
other added deleterious ingredients
must affect the public health, and it is
not incumbent upon the Government,
in order to make out a case, to establish
that fact. The act has placed upon
the Government the burden of establishing,
in order to secure a verdict of
condemnation under this statute, that the
added poisonous or deleterious
substances must be such as may render such
article injurious to health. The
word 'may' is here used in its ordinary and
usual signification, there being
nothing to show the intention of Congress to
affix to it any other meaning.
It is, says Webster, 'an auxiliary verb,
qualifying the meaning of another
verb by expressing ability, * * *
contixgency or liability, or possibility
or probability.' In thus describing
the offense Congress doubtless
took into consideration that flour may be used
in many ways-in bread, cake, gravy,
broth, etc. It may be consumed, when
prepared as a food, by the strong
and the weak, the old and the young, the
well and the sick; and it is intended
that if any flour, because of any added
poisonous or other deleterious
ingredient, may possibly injure the health of
any of these, it shall come within
the ban of the statute. (Notice of Judgment
3398.)
The above quotation, it will
be observed, is largely based on the
instructions given by the trial judge,
the Honorable Smith McPherson, to a trial
jury. The information, however, which
it gives those who undertake to prove
injury to health is of the highest significance.
The
Supreme Court of the United
States says to those who enforce
the law that it is not required "that the
article of food containing added
poisonous or other added deleterious
ingredients must affect the public
health, and it is not incumbent upon the
Government, in order to make out
a case, to establish that fact." This
iialicizing of this statement was not
done by the Supreme Court, but by myself.
I believe it is a very important statement
made by the Supreme Court in regard
to the enforcement of the Food and Drugs
Act. It was worth all the trouble and
disappointment of having the decision
of the bleached flour case reversed in
order to secure such a luminous explanation
as the result thereof.
When this case was decided
the World War had already broken into flames over
the whole continent of Europe. It was
soon evident that the United States of
America would eventually be drawn into
this whirlpool of destruction. There is
no wonder that all thought of bleached
flour was forgotten in the excitement and
activities which preceded our entrance
into this great conflict. It was not
until the contest was over and the victory
had been won that any further
procedure was taken. It was not until
April 1, 1919, that counsel for the
government of the United States called
the attention of the District Court of
the Western District of Missouri to the
fact that the mandate of the Supreme
Court had never been put into effect.
Under the ruling of the Supreme Court the
claimants for the 625 sacks of flour had
had practically the whole foundation of
their defense swept away. They were very
glad, therefore, to make some
arrangement with the District Attorney
whereby they could retire, not without
laurels, from any further contest of this
case. To this end they proposed that
if one section of the libel would be dropped
they would enter a plea of nolle
contendere to the other parts of the libel.
Accordingly, Francis M. Wilson,
United States District Attorney, withdrew
section e of the libel which reads as
follows:
" (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.
GOING BACK TO BUSINESS PRACTICES
A more pointed illustration
of how the administration of the food law is
gradually being transferred to manufacturers
of food products is found in a
circular issued by the Department of Agriculture
of September 302 1927, in
regard to the floating of oysters. The
title of this remarkable contribution is
"New Jersey Oyster Industry Adopts Plan
to Improve Oysters."
The "improvement" in oysters
is to introduce into them certain quantities of
water which the old regulations in regard
to oysters forbade. It calls attention
to the fact that the New Jersey shippers
of oysters are dissatisfied with
governmental rulings respecting excessive
quantities of added water. Different
regulations permitting the addition of
water have been unanimously adopted by
the New Jersq dealers. This action on
the part of the New Jersey dealers was
taken as a result of an old ruling of
the Department of Agriculture for
preventing shipment into interstate commerce
of oysters floated in water less
salty than that in which they were grown.
The circular says:
"It developed
that the aims of the oystermen and of the department were in
harmony, namely, the production
of the best oysters possible for the market in
accordance with good commercial
practices, and in which are incorporated no
greater quantities of added water
than are necessary, it being recognized that
in the commercial cleansing of
oysters for the market a small amount of water
is necessarily incorporated. *
* *
"The desire of
the oystermen to place on the market only oysters of the
highest grade is shown by their
proposal to arrange for scientific
investigations of the habits and
characteristics of the oyster, with a view to
obtaining the knowledge necessary
to a final determination of the best
procedure to insure the best oysters
for the market, and desirable methods for
obtaining the cleanest oysters
with a minimum amount of added water."
Here is a great industry
which had been saved from practical destruction by
the original ruling of the Department
that no water of any kind should be added
to oysters in shipment or otherwise, and
that the ice which kept them cold in
shipment should be placed on the outside
of water-tight tin boxes in which the
oysters were carried. It is not true that
any washing of oysters is necessary in
preparing them for market. The only
purpose of the washing is to introduce
additional quantities of water which
will make the oysters swell and look bigger
and fatter than they are.
This is a complete surrendering
to the industry of the task of making rules
and regulations for conducting this industry,
not in the interest of the
consumer but in the interest of the producer.
It marks an entire reversa in ese
matters. The Food and Drugs Act was based
on commercial practices which were
detrimental and injurious to the consuming
public. If the oyster industry is
permitted to make its own regulations
and its own scientific investigations
there is no reason to doubt that all other
industries will in the near future be
accorded the same privilege.
A few years ago I was waiting
to buy a ticket from New York to Boston. When
the man in front of me bought his ticket
and turned around, he recognized me and
asked: "Are you Dr. Wiley?" I said I was.
He said: "A few years ago I was the
president of the Long Island Oyster Association.
We regarded you as the
arch-enemy of our industry when under
your direction the ruling was issued that
we should not add water to oysters that
we shipped, nor place ice in contact
with the oysters that we shipped. We considered
you a devil incarnate. Now we
know that decision was the salvation of
our industry and I want to take your
hand and congratulate you on doing the
greatest service to the oyster industry
that could possibly have been done. We
are selling a dozen times as many oysters
now in a perfect condition as they come
from the water as we did at the time of
your ruling.
ATTITUDE OF THE CHIEF OF THE FOOD, DRUGS
AND INSECTICIDE, ADMINISTRATION
Mr. W. G. Campbell, the new
chief of the food enforcement unit, having
succeeded the former Bureau of Chemistry,
recently said:
"Respect for
the law can be maintained only when there is a full
realization on the part of those
who are regulated that disregard of its
provisions will be promptly followed
by legal action."
This is a concise and perfect
statement of the purpose of the Food Law. Not
only is it the duty of the officials to
enforce these provisions, but the law
itself states there shall be no delay.
It seems quite impossible
to reconcile this statement of the Director of the
Regulatory Service with the following
one:
"While the food
and drugs act remains what it has always been, a statute of
protection primarily in character,
but corrective rather than punitive, a
course established to meet the
conditions of two decades ago will be
inadequate as a present day plan."
Here it is stated that a
new "course" has been established, yet no change has
been made in the punitive provisions of
the old law. Only the enforcing bureau
has been changed and a new bureau put
in its place by legislation illegally
engrafted on an appropriation bill. The
only conclusion to be drawn from this
statement is that a new law has been established
by the enforcing officers
without the aid of Congress and without
any opportunity of discussing its
principles.
In further justification
of this new law Mr. Campbell says:
"With the change
in the attitude of the industry, the Bureau of Chemistry
had more and more as years passed
by adopted 'an advisory before the act'
attitude in dealing with individuals
shipping commodities subject to the law,
and that attitude will unquestionably
continue to be the keynote of the Food,
Drug and Insecticide Administration."
This remarkable statement,
coming from the chief of the new Regulatory Unit,
proclaims to the world that the chief
function hereafter will be the education
of those who disobey the act in an effort
voluntarily to get them to desist. In
other words, the punitive features of
the law, which are the only ones in the
law, are to be neglected for the sake
of the corrective activities established
by the enforcing officers.
Continuing the quotation,
Mr. Campbell says:
"At the time
the agitation for the enactment of the Federal measure had its
inception the number of food and
drug manufacturers whose conception of
business ethics was tersely. 'let
the buyer beware' constituted at least a
very imposing minority. Today enforcing
officials will be unanimous in
expressing the conviction that
deliberate violations in the distribution of
foods and drugs are extremely rare.
This change in attitude of the industry
during the past two decades has
made it possible, therefore, in a large
measure to recast the methods of
law enforcement so as to emphasize the
corrective features of the food
and drugs act rather than the punitive side of
the measure."
This statement concisely
expresses the complete paralysis of the food law. It
is to be recast without appeal to Congress.
There is nothing in the food law
about corrective measures. These corrective
measures have been at the
instigation of the food officials without
any warrant whatever from legislation.
The food law is exclusively punitive,
and this construction of it has been
approved more than once by the Supreme
Court of the United States. Why then
should officials who have taken an oath
to support the Constitution and the laws
made thereunder, read into the law as
its chief feature a meaning absolutely
foreign to its purpose? The Bureau
of Chemistry as constituted at the time of
enforcement of the act was solely concerned
in enforcing its punitive
regulations. It did not consider it
advisable to waste energy from its sworn
duty in setting up a kindergarten or
Sunday School to persuade violators of the
law to desist. The law pointed out
exactly what it should do, and for a short
time only was this purpose of the law
carried out. There is no wonder that the
administration of the food law has so
hopelessly broken down. It would be a
matter of interest if those enforcing
the food law would take a little time off
and read the law carefully once more in
order that they might see what their
duties really are.
The Moss Committee, on page
5 of their report, after citing all the
difficulties placed in the path of the
Bureau of Chemistry in its efforts to
execute the law, says:
"Thus the administration
of the law began with a policy of negotiation and
compromise between the Secretary
and the purveyers of our national food
supplies. * * *
"It was a matter
for profound congratulation that the great body of
American citizenship yielded prompt
and willing obedience to the law, and to
such it was only required that
the terms of the law be fully explained. The
necessary readjustment of their
business required time, and it was good
administration to grant reasonable
opportunity for such a purpose."
At the present time there
is no manufacturer of foods in this country who
does not understand that he is to tell
the truth on his labels and to add no
substances injurious to health to his
food products. Although the use of various
injurious agents has been permitted by
the perversions of the law, practically
the use of such preservatives as benzoate
of soda and borax is today unknown.
There is no need, therefore, of any further
education or persuasion of food
manufacturer§ to obey the law. What
is needed now is to brush away all the
illegal restrictions which were fastened
round the Bureau of Chemistry, and to
execute the law as it was written, and
as it has been interpreted by the Supreme
Court.
The Supreme Court in the
case of the United States vs. Morgan et al. in a
decision handed down December ill 1911,
made this pregnant remark:
"Repeals by implication
are not favored, and there is certainly no
presumption that a law passed in
the interest of the public health was to
hamper district attorneys, curtail
the powers of grand juries or make them,
with evidence in hand, halt in
their investigation and await the action of the
department. To graft such an exception
upon the criminal law would require a
clear and unambiguous expression
of the legislative will."
The above is a hard blow
to a repeal by illegally abolishing the Bureau of
Chemistry.
THE CONCLUSION OF THE WHOLE MATTER
An endeavor has been made
in the preceding pages to set down the facts
relating to the amazing crime of perverting
the Food and Drugs Act of 1906 and
destroying.the Bureau of Chemistry. The
leit motif has been only to tell the
truth. Sometimes telling the truth is
not wise. If, however, one tells anything
it should be the truth. The common adage
says that speech is silver and silence
is gold. These efforts, therefore, may
be considered as an essay on free silver.
In these concluding pages the purpose
is to summarize the main points, and to
show the way to the new era.
ILLEGAL FOOD AND DRUG DECISIONS
All of the decisions of
the "Board of Food and Drug Inspection" were illegal.
It was not provided for in the Act
and the plain purpose of its organization was
to prevent the Bureau of Chemistry
from carrying out the provisions of the law.
Theoretically all of the decisions should
be repealed. Many of them were in
strict accordance with the terms of the
law, and therefore are not necessarily
to be deleted. The following numbered
decisions are in strict violation of the
law, and the first step toward clearing
the atmosphere and restoring the Food
Law to its pristine form is the repeal
of the following food inspection
decisions. Some of these decisions were
those of the Board of Food and Drug
Inspection; others were signed by the
members of the Cabinet directed by law to
make rules and regulations for carrying
the law into effect. Whenever the
Secretary of Agriculture, the Secretary
of the Treasury, and the Secretary of
Commerce and Labor signed a Food Inspection
Decision, it became a rule and
regulation. Rules and regulations not
for the purpose of carrying the law into
effect were illegal. The three secretaries
had no warrant of law to decide what
was or was not adulterated or misbranded.
The numbers of these
decisions which should immediately be repealed are as
follows:
No. 76. Pertaining
to dyes, chemicals and preservatives in foods.
No. 77 ;Certificate
and control of dyes permissible for coloring foods and
foodstuffs.
No. 86. Original packages:
Interpretation of regulation 2 of Rules and
Regulations for. Enforcement of
the Food and Drugs Act.
No. 87. Labeling of
"Corn Syrup."
No. 89 Amendment to
Food Inspection Decision No. 76, relating to use in Foods
of Benzoate of Soda and Sulphur
Dioxide.
No. 92. The Use of
Copper Salts in the Greening of ;Foods.
No. 102. Entry of Vegetables
Greened With Copper Salts.
No. 104. Amendment
to Food, Inspection Decision No. 76 and No. 89 Relating to
Use in Foods of Benzoate of Soda.
No. 107. Decision of
the Attorney-General in Regard to the Referee Board.
No. 108. Importation
of Coffee.
No. 113. Labeling of
Whisky Mixtures and Imitations Thereof Under the Foodand Drugs Act of June
30, 1906.
No. 117. The Use of
Certified Colors.
No. 118. Labeling of
Whisky Compounds under F. I. D No. 113.
No. 120. Labeling of
Ohio and Missouri Wines.
No. 121. Floating of
Shellflsh. the United States.
No. 125. Labeling of
Cordials.
No. 127 Decision of
the Attorney-General in Regard to the Labeling of Whisky
sold under Distinctive Names.
No. 130. Amendment
to Regulation No. 5.
No. 131. The Composition
of Evaporated Milk.
No. 134. The Labeling
of New Orleans Molasses.
No. 135. Saccharin
in Foods.
No. 138. Saccharin
in Foods.
No. 142. Saccharin
in Foods.
The abolition of the above
Food Inspection Decisions will clear the way for
the remaining steps.
The most important of
these remaining steps is to repeal the permission given
by the Remsen Board of Consulting Scientific
Experts to add alum, benzoate of
soda, saccharin and sulphur dioxide
to our foods.
From the earliest days of
food regulation the use of alum in foods has been
condemned. It is universally acknowledged
as a poisonous and deleterious
substance in all countries. The United
States is the only country which permits,
of course illegally, the addition of alum
to our food supply.
The next most important step
is to secure from the officials enforcing the
Food and Drugs Act a recognition of the
actions of the courts under the
operation of the Food and Drugs Act in
convicting the manufacturers of bleached
flour and Coco-Cola. In all these cases
judgments of the Court condemning the
use of all these substances were secured,
but in no case was any -effort ever
made by the enforcing officers to follow
up the, Court decision. By reason of
this fact interstate commerce in foods
containing bleached flour, benzoate of
soda, sulphur dioxide and sulphites,
together with soft drinks containing
caffein, such as Coca-Cola, go on unimpeded
and unrestricted in all parts of the
United States. The health of our people
is constantly threatened by the use of
these articles in our food.
The next step in the reform
of the execution of the Food and Drugs Act is to
follow out the provisions of the law absolutely.
At the present time the
officials in charge of the enforcement
of the law boast of the fact that they
are not following out the punitive sections
of the law, but its corrective
sections. Unfortunately for those who
make this plea, the law contains no
corrective measure except by punishment.
It is a new law enacted by the
officials themselves without authority
of Congress which they are enforcing.
The final step to complete
the restoration of the law is the repeal of the
provision in the appropriation bill abolishing
the Bureau of Chemistry and the
restoration of the execution of the law
to the revivified Bureau.
This is the only amende honorable
that could possibly be made for the
destruction of the Bureau of Chemistry
and the transfer of its authority by an
item engrafted, on an appropriation bill.
It may be that the present arrangement
is much better than that enacted by Congress.
It would be entirely proper,
therefore, after this restoration is made,
to introduce a new bill into the
Congress of the United States, providing
for the destruction of the Bureau of
Chemistry and the transfer of its authority
to the present unit in the
Secretary's office.
No attack has been made upon
the provisions of the law. They remain exactly
as Congress enacted them. It is, therefore,
the duty of the present
administrative unit to urge the abolition
of all these illegal restrictions on
their authority and to proceed with all
vigor to the execution of the provisions
of the law as they were enacted on June
30, 1906.
EFFECT OF "THE JUNGLE"
There is every reason
to believe that Upton Sinclair's novel entitled "The
Jungle," in which the deplorable conditions
in the packing industry were
dramatically portrayed, was one of
the chief causes of the enactment of the meat
inspection law which was approved the
same day as the Food and Drugs Act. It may possibly happen that this
history of a crime more revolting even than the
horrors portrayed by Upton Sinclair may
serve the purpose of causing popular
indignation of a character that will secure
the salvation of the Food and Drugs
Act.
If the Bureau of Chemistry
had been permitted to enforce the law as it was
written and as it tried to do, what
would have been the condition, now? No food
product in our country would have any
trace of benzoie acid, sulphurous acid or
sulphites, or any alum or saccharin,
save for medicinal purposes. No soft drink
would contain any caffein, or theobromine.
No bleached flour would enter
interstate commerce. Our foods and
drugs would be wholly without any form of
adulteration and misbranding. The health
of our people would be vastly improved and their life greatly extended.
The manufacturers of our food supply, and
especially the millers, would devote
their energies to improving the public
health and promoting happiness in every
home by the production of whole ground, unbolted cereal flours and meals.
The resistance of our people
to infectious diseases would be greatly
increased by a vastly improved and more
wholesome diet. Our example would be
followed by the civilized world and thus
bring to the whole universe the
benefits which our own people had received.
We would have been spared
the ignominy and disgrace of great scientific men
bending their efforts to defeat the purpose
of one of the greatest laws ever
enacted for the protection of the public
welfare. Eminent officials of our
Government would have escaped the indignation
of outraged public opinion because
they. permitted and encouraged these frauds
on the public. The cause of a
wholesome diet would not have been
put back for fifty or a hundred years. And
last but least, this History of a Crime
would never have been written.
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