|FDA History 06
||HISTORY OF A CRIME AGAINST
THE FOOD LAW
CHAPTER VI: POLITICS AND PERSECUTION
OF A STATE
by Harvey W. Wiley, M.D., the very
first commissioner of the Food and Drug Administration (FDA), then known
as the “US Bureau of Chemistry.”
FURTHER ACTIVITIES OF THE REMSEN BOARD
The Attorney-General of the
State of Indiana, Mr. James Bingham, desired to
have testimony in favor of the State Board
of Health from.the Chief of the
Bureau of Chemistry and from other employees
of the Bureau who had taken an
active part in the investigations of benzoic
acid and benzoate of soda (sodium benzoate). A suit
had been filed against the State of Indiana
in the Federal Court before Judge
Anderson on the ground that the ban placed
on benzoated foods by the State Board
of Health was unconstitutional. Mr. Bingham
came to Washington for the purpose
of securing permission from the Secretary
of Agriculture for these officials to
appear before the Federal Court in Indianapolis.
The Secretary refused to grant
the request of Mr. Bingham on the ground
that the Department of Agriculture was
on the other side of the question and
that it would not be in harmony with
official etiquette for the employees of
the Bureau of Chemistry to appear
against the Remsen Board and their assistants
and experts who were attending the
trial in the interest of the complainant
by the executive order and request of
the Secretary of Agriculture. In order
to secure this testimony Mr. Bingham
found it necessary to remove the Federal
Court from Indianapolis to Washington.
When this was done the Solicitor of the
Department of Agriculture on the request
of the Chief of the Bureau made a ruling
that the Federal Court had no right to
issue a subpoena for attendance of the
employees of the Bureau of Chemistry in
the sense that they were compelled to
attend and give testimony. He informed the
members of the Bureau of Chemistry that
it would not be a contempt of court if
they should refuse to appear and give
testimony on the summons unless they
wanted to. I volunteered to give my testimony
before the Federal Court. It
begins on page 3,212 of the printed record
and continues to page 3,548,
inclusive, 336 pages. When Dr. W. D. Bigelow
was called to the stand, after
qualifying, in response to the first question
asked him, he declined to answer
on the ground that his testimony would
be of a character not approved by the
Department and he availed himself of the
privilege given by the Solicitor of
refusing to answer (Page 3,693 of the
Record of the Indiana Case). Mr. Bingham
immediately carried the case to Justice
Barnard of the District Supreme Court.
Justice Barnard promptly ruled that the
employees of the Department of
Agriculture were compelled to give their
testimony if subpoenaed by the Federal
Court and that the statement made by the
Solicitor that they were not thus
compelled to testify was an error. Under
this ruling Dr. Bigelow and other
employees of the Bureau gave their testimony.
It would not be proper to go into
any extended explanations of the nature
of this testimony given contrary to the
opinion of the Solicitor. A sufficient
explanation of it is found in the fact
that Judge Anderson of the Federal District
Court of Indiana, to whom all the
testimony in the case of over 5,000 pages
was placed, with the summary by the
master, promptly decided the case in favor
of the State of Indiana. He said, in
point of fact, that the State's rights
in regard to the regulation of the sale
of foods inside the State could not be
questioned before the Federal Courts by
citizens of other states.
MR JAMES BINGHAM
Attorney-General of Indiana
This recital shows plainly
that although the privilege was denied the Bureau
of Chemistry of bringing suit against
anyone using benzoic acid, the employees
were compelled to testify before the Federal
Court. The users of these
preservatives lost their case due largely
to the testimony of the experts of the
Bureau of Chemistry. Thus it appears
as if the "big chemists"--as the Secretary
of Agriculture called them--of the Remsen
Board, when opposed by the "little
chemists" of the Bureau of Chemistry,
were defeated. This incident shows the
danger of unwise greed. The right to use
these preservatives was guaranteed to
those manufacturers who felt like doing
so by all the power and authority of the
United States Department of Agriculture.
They should have been satisfied with
that perversion of the law, but they were
not. They determined to force
benzoated goods upon the citizens of the
State of Indiana. Fortunately they did
not succeed. More fortunate still is the
fact that one of the complainants
against the State of Indiana was converted
by the evidence adduced at the trial
and abandoned the use of these preservatives.
Still more fortunate is the fact
that manufacturers in general, although
this dispensation has now been in full
force and authority for twenty-two years,
have rarely indulged in the use of
these preservatives. The goods manufactured
under the aegis of the Department of
Agriculture with these preservatives are
distinctly inferior in quality and
The activities of the Remsen
Board were not devoid of doubts as to their
wisdom. In a letter dated September 9,
1909, Dr. Remsen called attention to what
might happen (Page 879, Moss Committee):
My Dear Mr. Secretary:
The Referee Board is going to be subjected to very
severe criticism for testifying
in the Indiana suit, and in order to protect
ourselves it is our desire that
we should have from you a written request that
we should give this testimony.
I hope you will have no objection to sending
this request to me. We are to testify
at Seal Harbor, Me., on the 17th. We are
all glad to have been at Denver,
and we all recognize the soundness of your
judgment in asking us to go.
Mr. Moss asked the Secretary
to explain why the Remsen Board whose usefulness
in so large a measure must depend on the
respect and confidence which the public
have for the high character of its membership
should be subjected to severe
criticism in order to assist in an effort
by private corporations to overthrow
the pure food laws of a sovereign state.
To which Secretary Wilson replied that
it was never in his mind to help overthrow
the pure-food laws of a sovereign
state, and that he would have been perfectly
willing to have the Referee Board
go where the people seemed to need information;
but as to an attack upon the
State of Indiana, that was not to be thought
of. The Chairman continued by
asking him if he did not know that the
suit filed by Curtice Brothers and
Williams Brothers was inaugurated before
the Referee Board had made its report
on benzoate of soda; to which he replied
that he did not know anything about the
nature of these proceedings. The Chairman
of the committee continued by asking
him if he had been requested by Attorney-General
Bingham to permit Dr. Wiley to
go to Indianapolis and testify in person
in the Indiana case on behalf of the
State of Indiana; to which the Secretary
responded that he did not think Dr.
Wiley had ever asked him whether he could
go to Indianapolis or not. Whereupon
the chairman submitted a letter dated
May 31, 1910, which the Hon. James Bingham
had written the Secretary in regard to
this matter. This letter is so pertinent
that it is given in full:
Hon. James Wilson,
Secretary of Agriculture,
Washington, D. C.
Dear Mr. Secretary:
I am in receipt of a letter from President Taft with
copy of your letter attached in
re testimony of Dr. Wiley in the so-called
benzoate case. I am taking the
liberty of writing you personally for the
reason that I feel quite sure that
you misapprehend the position of the State
in this matter. You understand
that Dr. Long, of Chicago, and Dr. Taylor, of
California, both members of the
Referee Board, attended in person here at
Indianapolis and testified in this
The master, who
is hearing the evidence, is manifesting considerable
interest in the testimony of the
different witnesses and personally
interrogates them, and it is my
desire to give him this opportunity in the
case of Dr. Wiley if possible.
There is no attempt
on my part to make it appear that the Government is not
supporting the work of the Referee
Board. On the other hand, whatever appears
in the record to indicate that
the Government has taken sufficient interest to
sustain the decision of the board
is there at my instance, since I personally
asked the witnesses who have testifled
that they were testifying at your
request, at whose request they
were testifying in the case, and I did this
after a personal interview with
them, and learning the facts with reference
thereto before asking the questions.
My position is
that this question is one not capable of scientific
demonstration, and this fact, I
think, I have pretty thoroughly established by
the testimony of the members of
the Referee Board themselves. I think,
however, that such a test was perfectly
proper for whatever value it might
have in the investigation of the
injurious effects of sodium benzoate, but I
feel very certain that the results
of such an investigation are not
conclusive. Indeed, I would not
hesitate to try this question before you or
any other fair man regardless of
any conclusion you may have reached based
upon the results of the work of
the Referee Board.
1 attach more
importance to an investigation made by Dr. Wiley than I do to
that of the Referee Board, in view
of his practical experience in such matters
and especially in view of the experience
of the corps of workers he must have
had to assist him. In the case
of the Referee Board work was carried on by
students in many instances, and
in the investigation I have made I am
satisfied that many of the results
obtained, upon which the Referee Board
bases its opinion, are unreliable.
That the members of the Referee Board were
conscientious and thoroughly capable
scientists there can be no doubt, but
their conclusion, vased upon a
false premise due to inaccuracy in analytical
work and want of regularity in
habits of living by subjects, would, in my
opinion, destroy the value of any
In justice to
you I can not go into detail, but the evidence in this case
shows in some instances variations
in duplicate analyses where the same
articles were being analyzed under
the same conditions, running from 15 per
cent. to 1,800 per cent., when
every member of the Board testifies that there
should not be a variation to exceed
2 per cent.
I am very desirous
of having Dr. Wiley appear in person in order that the
master may personally interrogate
him as to his premises most thoroughly, and
I think you will readily appreciate
the merit of my position. I assume that
you have no interest in this question
except to have it decided right, and in
this case we are not only availing
ourselves of the results obtained by the
Referee Board and Dr. Wiley, but
of a vast number of other experiments, and
especially of-the results of practical
demonstrations, and it occurs to me
that when the evidence is concluded
in this case the court will be in a better
position to reach an intelligent
conclusion as to what the real effect of
benzoate of soda is upon the human
system when administered in food than the
department was with nothing to
depend upon but the result of a scientific
investigation standing alone.
for your courtesy in offering to permit the deposition of Dr.
Wiley to be taken, but hoping that
you will see your way clear to permit him
to attend in person, I remain,
Very truly yours,
(Signed) JAMES BINGHAM,
This letter of Mr. Bingham
evidently removed every reason to justify, even in
the smallest degree, the determined
purpose of the Secretary of Agriculture,
with the collaboration of the Remson
Board, to break down the Board of Health of
Indiana which had placed its ban on
food products containing benzoate of soda.
Driven to the last extreme the Secretary
sought to justify his action against
the State of Indiana because the law of
Indiana forbade the manufacture of beet
sugar within the State! In answer to the
question of the chairman of the
committee he said it was his purpose to
help every state to the limit of his
efforts, but when a state came out and
said one could not use beet sugar it gave
him pause. He continued as follows:
We are making
500,000 tons of beet sugar every year in the United States.
Indiana, can make all the sugar
she needs and supply half a dozen other
states. But I have come up square
against this law, and I do not want to break
the laws of Indiana; I would not
for the world do that.
It appears that William Brothers
and Curtice Brothers alleged, in their suit
to abolish the ruling of the State Board
of Health as being unconstitutional,
that there were other points in the Indiana
law which were likewise
unconstitutional, and among these was
an expression in the law delining sugar as
"cane suagar." Of course every one knows
that cane sugar is frequently used to
designate sucrose. Indiana in her statement
for defense against the suit of
Curtice Brothers used the following statement:
farther answering, say that they deny that the use of
beet sugar is prohibited by law
in food products in the State of Indiana, or
by any rule adopted by these answering
defendants, as such State Board of
Health of the State of Indiana.
Dr. Alonzo E. Taylor, whose
absence in Europe had prevented him from taking
any active part in the investigations
of benzoate of soda, was nevertheless very
eager to appear against the State of Indiana
in the benzoate trial. Under date
of March 1, 1910, he made the following
report to the Secretary of Agriculture:
"I have just
been giving testimony in the Indiana sodium benzoate case. I
understand it was inferred that
because I did not sign the report of the
Referee Board that I was not in
agreement. I therefore testified, not as a
member of the Board, but as an
expert, pure and simple. Since last summer,
being engaged on the sulphite question,
I have been making a lot of control
observations with the purpose of
determining the normal variations in the
metabolism of nitrogen, sulphur
and phosphorus. These data, I believe the best
in literature, I wish to use in
my evidence, as they support strongly the
position of our Board and are in
contradiction with the work of Dr. Wiley on
the action of benzoate. In a word,
these investigations indicate that many of
the reported deviations of Dr.
Wiley are entirely within the range of those to
be seen in normal persons on a
normal diet, and show that the figures obtained
by my colleagues are normal figures
for normal men. Have I your permission to
offer these normal charts of normal
metabolism to the United States Circuit
Court in the Indiana Case?".
To which the Secretary replied
under date of March 12, 1910, in a letter to
Dr. Remsen in the following words:
"I enclose a
very interesting letter from Prof. A. E. Taylor which please
return to me. I shall leave this
matter entirely with you."
Dr. Remsen in his reply to
the secretary recommended that he be given
permission to use the data in the manner
suggested. The Secretary left no stone
unturned in his determined effort by all
means, fair and foul, to secure a
declaration from the Federal Court that
the Indiana law was unconstitutional.
(Pages 367, 368, Moss Report.)
The testimony of Dr. A. E.
Taylor in the Indiana case is found on pages 2137,
to 2207 of the printed testimony. He repeated
in his testimony that he thought
the data he had obtained were the best
in literature. Dr. Taylor in his
experiments, which were not made, by the
way, on the subject of benzoic acid,
employed a plan greatly superior to that
followed by the other members of the
Referee Board. He employed as his subjects
trained scientific men. He took over
bodily the whole force of the California
State Board of Health. He employed
state chemists who made all the examinations
for fertilizers in the state. When
asked on cross-examination in regard to
control of the diet of these trained men
he stated that their diet was rigidly
weighed and apportioned to them. When
attention was called to the fact that
the other members of the Referee Board did
not control either the quantity or the
kind of diet, therefore the results which
they obtained could not be comparable
to his own, he replied that he thought his
own plan was better but that the uncontrolled
diet might lead to similar
results. He was particularly opposed to
the use of benzoate of soda in milk. On
direct examination he was asked this question:
Q. What are the reasons for
not using it in milk?
A. For the simple reason
that a large amount of experience has taught us that
the bad milk ought to be allowed to spoil
and that an absolutely harmless
preservative, or even refrigeration, or
pasteurization ought to be equally
prohibited. (Page 2162).
Speaking further (page 2163)
in regard to milk, he says:
A very minute
trace of formaldehyde will keep milk for 48 hours but the
tubercular and typhoidal bacilli
will not be killed, and it is objectionable
on that account. We object to anything
that keeps milk without killing those
germs, not being of a type to affect
the common defects of sourness or
souring. That is the reason I guarded
myself absolutely in the use of this
other substance. I would object
to the use of benzoate of soda, of hydrogen
peroxide, of the pasteurization
of milk, this being the result.
Evidently Dr. Taylor was
not aware of the fact that pasteurization of milk at
145° for thirty minutes would destroy
both typhoid and tubercular germs. The
spores of germs require a much higher
temperature for their destruction. By
reading his testimony, the historian of
the future will gather valuable
information respecting the attitude of
Dr. Taylor in general toward
preservatives in foods and pasteurization.
Dr. Taylor also was particularly
opposed to the use of benzoate of soda in
meat as well as in milk. He cites the
attitude of Hammerstein, the Scandinavian
chemist and physiologist. He asked him:
Q. Do you use benzoate of
A. No, sir.
Q. Is there any law against
Q. Do you use salicylic
A. It is cheaper.
Q. Is it injurious?
A. Possibly it is, but
it is so easy we take the chance.
FURTHER EXCERPTS FROM THE
REPORT OF THE MOSS COMMITTEE AND THE RECORD OF THE
THE CHAIRMAN, MR. MOSS, of
Indiana: Please tell me in what sense you regarded
the Indiana case as an important one?
SECRETARY WILSON: Simply
because it was in the. Federal court, and it was
taking up the question of whether the
decision of the Referee Board was to be
THE CHAIRMAN: That brings
me to a question I want to ask you. At that time,
what did you understand the issues of
this suit at Indianapolis to be?
SECRETARY WILSON: I understood
it was a question of whether--I do not know
that I am entirely clear. I think it was
an injunction asked by somebody.
THE CHAIRMAN: It was by Curtice
Bros. and Williams Bros.?
SECRETARY WILSON: Yes; to
require the board that you have there in Indiana to
do something they wanted done.
THE CHAIRMAN: We have a board
of health; yes, sir.
SECRETARY WILSON: That is
my recollection. It was something of that kind. But
there was benzoate of soda on one side
and opposition to it on the other.
THE CHAIRMAN: Would you mind
telling us where you obtained that information?
SECRETARY WILSON: Oh, I could
not do that; I do not remember.
THE CHAIRMAN: I have the
original complaint here, and your information was so
badly apart from what the real issues
were that I wanted to find out your source
THE CHAIRMAN: You did request,
both orally and in writing, the members of the
Referee Board to attend the Indianapolis
SECRETARY WILSON: They are
on a little different basis.
THE CHAIRMAN: As the Indiana
law expressly permits the sale of food products
which are guaranteed under the provisions
of the pure food law, how can the
defense of this suit by the State or any
of its agents be considered as an
attack on the decision of the Referee
SECRETARY WILSON: That is
an academic question, I think, Mr. Chairman.
THE CHAIRMAN: You have stated
that Dr. Robison in appearing to testify there
was opposing your policy?
SECRETARY WILSON: He was
a subordinate of the department.
THE CHAIRMAN: The question
is that inasmuch as the Indiana law expressly
permits the sale in Indiana of any food
product guaranteed under the pure food
law of your department, when you guarantee
it, how can a defense against a suit
to strike down that law be considered
an attack upon the Referee Board?
(There is no apparent answer
to this question, save the following.)
SECRETARY WILSON: I would
not be known to do a discourtesy to the State of
Indiana for the world, and besides, Mr.
Chairman, I find in looking over my
behavior toward Indiana that I have a
great lot of scientists there, and it
might be wise for me to get them back
out of there. I have men from nearly all
our scientific bureaus there, helping
the State of Indiana along these
scientific lines, and cooperating with
TESTIMONY OF DR. IRA REMSEN
Pages 31-33-Indiana Record.
Q. Well, there was a meeting,
wasn't there, of chemists, Doctor, recently,
out at Denver, Colo., where a great number
of scientific men congregated, wasn't
A. There was no doubt about
Q. And you had an election
out there at which benzoate of soda was the
candidate, didn't you?
A. I don't know. I had nothing
to do with the election. I wasn't a member of
the association. I was present as an interested
spectator, but not a member of
the association, had no vote.
Q. Now the fact is that of
late there has been great interest manifested on
both sides of this question by scientific
men throughout the country, hasn't
A. Apparently. I am out of
that. I am not at all a part of the excitement.
Q. And were you present when
the vote was finally taken at Denver on the
A. Which vote do you mean?
Q. On the harmfulness of
benzoate of soda, the adoption of the
resolution--not vote, but resolution.
A. I was present, yes, sir,
the resolution approving the action of the board,
the report of the board. They approved.
Q. By what vote?
A. That is too much for me--57
to 42, maybe, I don't remember exactly what it
was; in the fifties for one and forties
for the other; fifty-odd in favor and
forty-odd against; I couldn't remember
that, I am sure; I am near the truth.
Q. Now in the talks that
you had with the Secretary of Agriculture, did you
learn that the plaintiffs, Curtice and
Williams, here, were interested in this
A. I do not remember that
I ever heard them mentioned by the Secretary of
Q. When did you first learn
that the plaintiffs were interested in this
A. In this--you mean in this
Q. No, in this question as
to whether benzoate of soda was harmful.
A. Oh, I remember. I remember
it was at a meeting, a hearing we gave, our
Referee Board gave in New York before
we began our investigation. We sent word
to those who were interested in the general
problem, not only those who use
benzoate but those who do not use benzoate,
informing them that we would like to
get such information as possible to aid
us in our work. And they were
represented by a number of large manufacturing
interests who appeared before us
to state their problems; mind you, they
were not those who use benzoate alone
but those who do not use it. We felt that
it was only fair to hear what they had
to say, representatives of both sides--I
regret that there are sides--there are
sides, unquestionably, I recognize it.
And my recollection is that this is the
first that I ever heard of these firms,
except so far as I had become familiar
with them through labels that everybody
Q. Well, now, have you met
them since that time?
A. Only as--except at Denver
I saw these gentlemen, at Denver; saw them in
passing. I had very little to say to them--I
think they almost accused me of
Q. Did the manufacturers
appear out at the Denver convention?
A. These gentlemen were there--I
do not remember, I do not know them
sufficiently well to say.
Q. Well, when you had this
hearing of the Referee Board at which you heard
both sides, did Dr. Wiley appear at the
Q. Was he invited?
A. No. It was restricted
to those who used benzoate of soda.
Q. I understood you to say
that you did not, it was not only--
A. I don't say use--but who
either use or do not use it, but who are
interested in it from the manufacturing
point of view, that is what I meant.
Q. You mean as confined to
A. Oh, yes, wholly.
Q. Now, you also stated that
there had been a world of work on the
physiological effect of benzoate of soda
on the human system.
A. That is a question which
has perhaps not been very fully investigated, and
yet I recall in this connection an investigation
which came to my notice when I
was a very young man. I went to Gdttingen
in 1868. I carried a letter to a
distinguished physiologist who was there,
Professor Meissner. He had just
completed an elaborate series of experiments
of the ffect of benzoic acid on the
human organism. Mr. Charles U. Shepard,
an American student, took large doses of
benzoic acid, much larger than the quantities
that have been used in our
experiments. Those large quantities left
no permanent effects.
Q. Now, so far as you know
all these works of the original research upon the
effect of benzoic acid or benzoate of
soda upon the human system are referred to
in that report, in the bibliography.
A. All the important ones.
CROSS EXAMINATION OF DR. REMSEN
Q. This experiment of Dr.
Meissner, about which you have testified is that
experiment which is reviewed in the bibliography?
A. It is.
Q. I read from exhibit 1,
in which this experiment is referred to as follows:
There is no hippuric
acid or benzoic acid in the blood of animals which
excrete hippurie acid abundantly
in the urine. According to the authors'
experimenis on man, ingestion of
7.6 grams of benzoic acid as sodium salt in
solution after breakfast was followed
suddenly, 30 minutes later, by nausea
and vomiting. When 5.7 grams were
taken after breakfast there was vehement
vomiting after about 35 minutes.
When vigorous exercise was taken after the
same dose (5.7 grams) there was
some nausea, but no vomiting. The nausea can
be made to disappear by violent
exercise, with deep inspirations, etc. After
taking 5.8 grams, when the subject
was kept quiet in a warm room there was no
nausea or vomiting. A stronger
and heavier person repeatedly took 7.6 grams
without these symptoms.
The authors conclude
from their experiments on animals that the kidney is
the only organ where benzoic acid
is normally transformed into hippuric acid.
When 2 grams of benzoic acid per
day were fed to a rabbit during 3 days there
was no decrease in urea output.
In a dog of 12 to 13 kilograms, 8 grams of
benzoic acid given in solution
per os caused vomiting. Later 8 grams were
given twice a day as dry powder
packed in meat. There was apparently no
decrease in urea. After several
days a toxic effect was noted--difficulty in
urinating, spasm, attack of rage,
attempts to bite, foam at mouth. Benzoic
acid was continued 2 days more
and the attacks recurred. Appetite remained
good. Convulsions occurred the
day after the benzoic was stopped, and then
they ceased. Similar attacks were
observed in a small dog which received 10
grams benzoic acid for 3 days.
The authors conclude that the continued
administration of large amounts
of benzoic acid is not without danger,
although Keller took 2 grams per
day for some time without feeling any ill
effects. Hippuric acid is formed
from benzoic acid in all animals. Authors
conclude that in herbiverous animals
the excretion of hippuric acid is
dependent on the cuticular substance
of plants ingested. The small amount in
normal human urine probably derives
its origin from metabolism products.
Q. Is that a correct review
of that experiment as you understood it, Doctor?
A. Of course I cannot positively
say that these details are correct, but
I.believe them to be correct.
(Page 45 and page 46.)
In the cross examination
of Dr. Remsen it was brought out that the reason
young men were selected was because they
would show the greatest resistance to
any pathological effects that were probably
produced. Dr. Remsen stated that he
did not think the age of the subject would
have much to do with the case and to
the question that in selecting young men
he would have all the power of
resistance that could be found in the
human system he said yes. Nevertheless he
made an answer to the following question:
"And if there was a tendency
of benzoate of soda or sodium benzoate in small
quantities to affect the system, it would
appear less in a test of young men
than it would upon any other character
of subjects that you could select,
A. "I am not sure of that."
On Page 27 Dr. Remsen was
asked what are the variations in temperature, what
variations in pulse, what variations in
the specific gravity of urine, what
variations are there in the volume of
urine in normal health. Dr. Remsen
Those matters are not at
all within my ken. I am not an expert in those
lines, I have never claimed to be. My
medical training is so far remote that I
confess that that kind of information
is not at my fingers' ends.
Page 30. Q. Well, who is
at the head of the Chemical Department of the
A. Dr. Wiley, I suppose.
Q. Were you in touch with
A. I had nothing to do with
him, sir; I didn't see him about it at all.
Q. Well, he is quite an eminent
chemist, is he not?
A. He is very well-known.
I may say that he is an eminent chemist. Yes.
Q. Now he has been devoting
a great deal of time to study of this question,
the effect of benzoate of soda upon food
products, has he not?
A. Some time, I don't know
about a great deal.
Q. Don't you know that he
made an investigation on this subject and got out a
report on it?
A. He had the investigation
made by others. He didn't do it himself.
Q. Well, was he as close
in touch with his job as you was in yours?
A. I don't know the facts,
but I know the work was carried out by his
assistants in the laboratory of the United
States Department of Agriculture.
Q. Well, now, Dr. Wiley reached
the conclusion as a result of his
investigation to which I have referred
that benzoate of soda was harmful when
used in foods in what you denominate "small
quantities" didn't he?
A. Yes, sir.
Q. And all over the country
there are scientific men who have been studying
this question who agree with Dr. Wiley
upon that question, do they not?
A. I don't know that scientific
men all over the country have been studying
that question in any scientific way. We
have no records of experiments. I won't
say there are none, but there are very
few, if any, and so far as I understand
the situation these gentlemen who agree
with Dr. Wiley simply agree with him,
accept his opinion.
Q. Well, when you had this
hearing of the Referee Board at which you heard
both sides, did Dr. Wiley appear at that
Q. Was he invited?
A. No. It was restricted
to those who used benzoate of soda or those who do
not use it but who are interested in it
from the manufacturing point of view;
that is what I meant.
Q. Well, do you approve of
the result that Dr. Wiley got in investigating
A. I can't answer that question.
I don't like to.
Q. Well, I would like to
have you do it.
A. I do not. Or I should
rather put it in this way, that our Board does not.
Q. That is to say you reached
a different conclusion from Dr. Wiley? That is
what you mean to say?
A. Yes, sir.
Q. You are not criticizing
A. Not at all.
Q. But you say you approve
the work of an expert because it is done by an
Q. Dr. Wiley is an expert,
A. Not in physiological work.
Q. You think he has had no
experience in physiological work?
A. I am unable to say, but
my impression is that it has been very little. I
am very sorry to testify in this way but
you have pushed me to it.
Q. I understand that you
yourself are not a physiologic chemist?
A. No, I am not.
Q. So that is the opinion
of one non-physiological chemist upon another?
A. Hardly. My opinion is
based upon my experience with a board of men who are
thoroughly familiar with that kind of
Q. What peculiar knowledge
now would a chemist have to have in order to
conduct an investigation of this kind?
A. He would have to be an
expert in physiological work, physiological chemist
is really what you would want, a pharmacologist
is a form of physiological
chemist, a man who studies the effects
of substances upon the system, but in
order to judge the effects he must have
physiological knowledge and must bring
that into play at every step.
Q. Now you are not a pharmacologist,
I believe you call it, is that correct?
A. That is the name; I am
not a pharmacologist.
Q. And you are not a physiological
Q. And it is necessary to
have both these elements of education in order to
be able to conduct properly this sort
Q. Well, if it is necessary
that we shall have a pharmacologist and a
physiological chemist and you are neither,
isn't it a fact that your opinion is
influenced by the conclusions reached
by those who are pharmacologists and
physiological chemists who are on the
I desire at this point to
introduce a statement in regard to my personal
attention to the work carried on in the
Bureau of Chemistry in studying the
effect of small quantities of benzoic
acid and benzoate of soda on the health of
the young men who were undergoing these
experiments. I may say that the Referee
Board were not the authors of the plan
of experiment which they followed. It was
copied directly from the plan adopted
by the Bureau of Chemistry in all of these
investigations, with this exception. All
foods used were carefully analyzed by
the Bureau of Chemistry, very few foods
were analyzed by the Referee Board. I
gave my personal attention for five years
to all the details of this work.
During the winters I rose long before
daylight, even before the street cars were
running and walked two miles to my laboratory,
which I reached by seven o'clock.
I supervised the preparation of the breakfast,
I weighed, with assistance of
others, every article of food which was
administered, I supervised the actual
analyses of these foods in the laboratory,
I studied the condition of the young
men every day as a medical man. I saw
that their excreta, solid and liquid, were
collected and delivered to the laboratory.
I dined with the young men except
that I did not take the foods to which
the preservatives were added. I felt that
my continued good health would be at stake
if I did, but I ate the same kinds of
foods that they ate otherwise. When nine
o'clock came I went to my office and
performed the ordinary duties connected
therewith until luncheon time. I then
went into the kitchen and supervised the
preparation of their lunch under the
same conditions. After luncheon was over
I again went to my duties as Chief of
the Bureau of Chemistry. At five o'clock
I again went back into the kitchen and
supervised the preparation of dinner.
I remained in the kitchen and dining room
and dined with the young men at dinner.
By seven o'clock the dinner was over.
This was the routine which I followed
for five years winter and summer except at
such times as I was called away from Washington.
When I was called out of town,
Dr. W. D. Bigelow, my first assistant,
took my place as supervisor of the
experimental work; yet Dr. Remsen without
making any effort to learn the truth
about the matter said I took no part in
this work, that I was not a
In 1910 I was awarded the
Elliot Cresson medal of the Franklin Institute for
leading work in physiological and agricultural
chemistry. This medal was given
me for inaugurating the most extensive
investigations ever undertaken in this
country in improving the valuable properties
of plants. I inaugurated and
carried into effect, in connection with
A. A. Denton of Kansas, experiments in
improving the quantity and quality of
sorghum for sugar-making purposes carried,
over a period of many years in which the
percentage of sucrose in sorghum was
raised from nine to fourteen per cent.
These experiments were published in
numerous bulletins of the Department of
Agriculture extending over a period of
many years. In like manner I inaugurated
and carried into effect a work
extending over several years of ascertaining
the factors which would produce the
best quality of sugar beet in the United
States. The results were published in
the bulletins of the Bureau of Chemistry
and enabled the manufacturers who were
intending to go into the sugar-beet industry
to locate their plants in those
areas in which the best sugar beets were
grown. In all some five hundred
thousand analyses of sugar beets grown
under similar conditions with the same
seeds were made. Following this physiological
chemical work I originated and
carried into effect a series of experiments
extending from Maine to Florida of
the factors which produce the largest
amount of sugar in sweet corn. These
results were also published as bulletins
of the bureau of Chemistry of the
Department of Agriculture. It was for
these far-reaching investigations of
physiological chemical problems, and for
similar work in studying the effects of
preservatives and coloring matters on
health, that the directors of the Franklin
Institute awarded me the Elliot Cresson
medal. The gold medal bears this
To HARVEY W. WILEY
For Distinguished Leading and Directive
in Agricultural and Physiological Chemistry,
Yet Dr. Remsen under oath
said I was not a physiological chemist.
Pages 112 to 116-Indiana
DR. HERTER'S TESTIMONY
Q. As a matter of fact, you
know, don't you, Doctor, that the very opposite
effect to which you testified has been
found by other eminent scientists with
reference to some of these subjects that
you have testified about even in the
administration of small doses of benzoate?
A. Well, I don't believe
that I can agree to that.
Q. Have you not examined
Dr. Wiley's report of his investigation?
A. I have.
Q. Well, do you not know
that he so found?
A. I do.
Q. And what position does
he hold, Doctor?
A. He holds that sodium benzoate--
Q. Well, I know--what official
position does he hold?
A. He is chief of the bureau
of chemistry of the Department of Agriculture.
Q. What Government?
A. The United States Government.
Q. That is rather a responsible
Q. And Doctor Wiley has occupied
that position for many years, has he not?
A. I believe he has.
Q. And he conducted quite
an extensive investigation on this subject, did he
A. I believe that he did.
Q. You know, too, don't you,
Doctor, that a number of eminent scientists who
have read and studied the report that
was published of the work of the so-called
Referee Board have reached different conclusions
from the board as to the effect
of benzoateof soda in foods, even based
on the facts included in those published
reports, don't you?
A. I have been told that
there has been criticism of the report of the
Referee Board, but I have felt that the
criticism that has come to my notice has
been for the most part, or wholly, from
such sources as lead me not to give
great confidence, to place great confidence
in those results or in those
opinions I should say--they are not results--opinions.
In general I would say
that that is my attitude.
Q. Well, you know that Dr.
Wiley has criticized this report and draws a
different conclusion from what the Board
did from the facts that are published
in the report, do you not?
A. I think so. Dr. Wiley
told me so himself the other day when he talked with
Q. Now, you know Dr. Reed
of Cincinnati, do you?
A. I had that pleasure at
Q. He is an ex-president
of the American Medical Association, is he not?
A. I don't know that of my
own knowledge. I will have to answer that on sQme
kind of hearsay.
Q. Well, he is an eminent
physician, is he not, and a scientist?
A. I don't think there is
any reason to regard him as a scientist. I have
been told that he was a good gynecologist.
Q. Well, do you know what
his training is, Doctor?
A. No, I can't say that I
do. That is a matter of hearsay.
Q. You know that he reaches
a different conclusion from what the board did?
A. I do.
Q. I didn't get my question
in--you know he reaches a different conclusion
from what the board did as to the effect
of administering benzoate of soda in
the foods, based on the facts published
in the report of the board, do you not?
A. I had a different idea
of what he bases his views on.
Q. You know that he does
not agree with the conclusions of the board, do you
A. I infer that.
Q. Now there was some sort
of an association of chemists held at Denver
recently, wasn't there, Doctor?
A. I think that the association
contained some chemists. Whether they are all
chemists or.not, I don't know.
Q. What is the name of that
A. That is the--I ought to
remember on account of the squabble over the
Mississippi, but I have forgotten--that
is the National Pure Food and Dairy
Association--no, that isn't right--The
Association of State and National Food
and Dairy Departments--I think that is
what it is.
Q. Now that is made up of
people who are connected with the study of foods,
is it not?
A. Certain aspects.
Q. Study and manufacture
A. Certain aspects of the
study of foods.
Q. You were present at that
A. I was present.
Q. Did you address the association?
A. Well, I spoke to the association.
Q. What was the subject of
A. It had to do with the
action of sodium benzoate on the human organism.
Q. Did you discuss the work
of the Referee Board in that connection any?
A. I referred to it, but
I particularly referred to the work done in my
Q. Was there any of the other
members of the Referee Board there?
A. They were all there.
Q. Did any of the other members
address that meeting?
A. They all spoke except
Q. What were the subjects
of their addresses?
A. The same general topic,
I should say.
Q. That you discussed?
A. Well, for their own reports--they
did for their reports what I did for
Q. And were there any other
addresses delivered there on this subject of the
use of benzoate of soda in foods?
A. Well, I suppose that the
chairman's address might be so regarded and Dr.
Reed's address; they contained reference
Q. Who was the chairman?
A. Mr. or Dr. Emery--Mr.
Q. Now there was some sort
of a report passed upon there by that association
with reference to this effect of benzoate
of soda upon the human system as
administered in the food, and also as
to the result of all investigations made
on that subject up to the date of that
association, was there not?
A. I think there was. I think
that I have in mind probably the same report
that you have in mind, but I am not sure.
Q. And that report that was
made to the association was a report made by a
committee of eleven men, was it not?
A. I believe that there was
a committee which reported.
Q. I will ask you now if
that committee was not composed of chemists
A. I don't know, sir; I don't
think that I had heard the name of any one of
Q. And you know that it was
reported there by that committee that the
investigation of that subject had not
been carried to an extent sufficient to
determine the question as to whether the
use of benzoate of soda in food was or
was not injurious to the human system--do
A. I have only a very vague
recollection of what was said in the report.
Q. You heard the report discussed,
A. I think that I did. My
impression is that a recommendation was made by
that committee asking for further investigations.
That is my recollection of it.
Q. You do know, don't you,
Doctor, that there is now, and has been, a
diversity of opinion among scientists
upon this very question?
A. Which question, may I
Q. The question as to whether
or not the administration of benzoate of soda
in foods to the human being is injurious
to the human system.
A. I know that there has
been a diversity of opinion about that.
Q. And you know, too, that
this diversity of opinion has existed since the
Referee Board report was published, do
A. Well, you mean it has
existed in spite of the publication, or do you mean
that it was initiated then?
MR BINGHAM: Listen to the
question, Doctor; I think it will explain itself.
A. Well, I wouldn't say since;
it existed before.
Q. Well, you know that scientists
have criticised it since it was published,
do you not, and that they have even told
you that they did not agree with you on
A. I have never heard any
adverse opinion of the report of the Referee Board
from any person that I would class as
Q. How do you class Dr. Wiley?
A. Well, I don't know Dr.
Wiley very well, and I find it is a rather
difficult task to class him. I don't know
what you expect of me.
Q. One more question as to
Dr. Lucas. (Dr. Lucas was one of Herter's squad.)
It is a fact, is it not, Doctor, that
Dr. Lucas disagreed with you as to the
result of the injurious effect of the
use of benzoate of soda in food in small
A. I do not know very accurately
what Dr. Lucas' views are, but I know he has
done some work particularly on the action
of benzoic acid and I judge from the
paper that I heard read at Denver that
his views are in some respects at least
different from mine. I do, not know to
Q. Did you know that the
Department of Agriculture of the United States
Government stood ready to furnish this
Referee Board with everything at its
command that was necessary for making
this experiment that is under
A. I heard that stated by
the President of the United States and by the
Secretary of Agriculture more than once.
Q. Did you know that the
United States Government had a chemical laboratory
in the City of New York?
A. I did not.
Q. Did you not learn from
the Department that it had numerous analytical
chemists in its employ at the time and
before this experiment was begun, in the
City of New York?
A. I was not aware of that
Q. Well, you did know that
it had a Department of Chemistry?
A. I did.
Q. And-you knew, too, that
that department was engaged in the administration
of pure food laws of the United States,
A. So I had heard.
Q. And you knew that it had
a corps of workers, of chemists, analytical and
otherwise, constantly engaged in the work
of analyzing foods and their
analytical testing, did you not?
A. I assumed that to be the
Q. How did it come that you
did not secure your analytical chemists and men
for doing the routine work from the force
of the Department of Agriculture?
A. Because it was intimated
to me that it was the desire of the Department of
Agriculture and by the President of the
United States that in the investigation
carried on by me I should be free to use
my judgment as to all points connected
with the matter of personnel in my laboratory.
Q. Why was it that you preferred
to select such men as Dr. Lucas and Dr.
Ringer and Mr. O'Brien and Dr. Harvey,
some of whom at least are neither
graduates or chemists and who, according
to your own statement, would need
instruction, rather than those experienced
men in the Department of Agriculture
who are regularly engaged in that class
A. It never occurred to me
that they would be available, partly because they
had their own occupations for the entire
year and partly for the reason that it
nevef occurred to me that men such as
I wanted would be willing to come from the
Department of Agriculture. We canvassed
the situation with regard to the
universities particularly and if I had
known there was a branch department of
the Department of Agriculture in New York
I certainly should have applied to
Q. Well, you were impressed
at that time, were you not, with the fact that
this expenditure of time and money was
not being made as a matter of idle
curiosity, but for the purpose of opening
the door, if possible, to the use of
benzoate of soda for such purpose?
A. I did not hear the case
stated so fully nor so eloquently as that, but I
got the impression that the manufacturers
felt that if they had to give up
benzoate of soda--or at least that some
of them felt that if they had to give up
benzoate of soda--they would either have
to be shown some other way of carrying
on their preservation of food or they
would be put to financial loss.
Q. Who was it that said that
this benzoate of soda question was a pressing
A. I do not know that anybody
said that it was a pressing question; I may
have said it myself.
Q. How did you get the impression
that that was a pressing question?
A. Well, I said that there
were two or three questions, the sulphite
question, the benzoate question, the saccharine
question, that it was important
to act on. The President wanted the saccharine
Q. Who was it that gave you
to understand that these two subjects were the
A. I am unable to answer
Q. Did you not get the idea
that these questions were pressing because they
involved large interests?
A. Yes, I did.
Q. Yes, I know; but getting
this settled was desired owing to the fact that
large interests were involved?
A. That was the general impression
of the board.
Q. You knew that the interests
involved were the ones that were clamoring for
some sort of a chemical preservative,
did you not?
A. I knew from the meeting
of the manufacturers to which I have referred that
many of them desired either to be permitted
to continue to use benzoate of soda
or requested a substitute for it, and
I understood, principally from Dr. Taylor,
that the question was a very live one
in the west.
A CHANGE OF MIND
While writing these memoirs
I was told that one of the principals in the
Indiana case, namely Walter H. Williams
of Detroit, was convinced by the
evidence brought before the Federal Court
that he was wrong in believing that
benzoate of soda sliould be used in food
products. Probably the adverse
decisions of Judge Anderson and the Circuit
Court of Appeals in confirming it
strengthened Mr. Williams' opinion in
regard to the matter. In order to be
certain about this matter I addressed
a letter to Walter H. Williams on May 7,
1927, from which I quote:
In some way I
have received the impression that the Williams Brothers
withdrew from further activity
in the case when it was carried to the Supreme
Court. They had become convinced
that the use of benzoate of soda was either
unnecessary or injurious and had
taken the position that they could put up
their catsup just as well or better
without it than they could with it. Before
I submit this statement in my autobiography
to the printer I should be glad to
hear from you in regard to this
To this I received a reply
under date of May 31, 1927. I quote the following,
with Mr. Williams' permission:
of the Indiana benzoate case is substantially correct. The
Williams Brothers of Detroit
did join with Curtice Brothers of Rochester, New
York, in seeking a Federal Court
order in an endeavor to restrain the Health
Department of Indiana from enforcing
its ruling in regard to the use of
benzoate of. soda as a preservative
in food products.
Brothers Company later came to believe that benzoate, or any
other preservative was entirely
unnecessary in such food products as ketchup,
sweet pickles, preserves, etc.,
and then withdrew as a party to the suit.
Not only did
Williams Brothers find that a preservative such as benzoate
was unnecessary, but were convinced
that permission to use it allowed food
manufacturers to be very careless
in their methods of manufacture.
The writer well
remembers the hearing before committees of both houses of
Congress and the strong opposition
food manufacturers presented against the
passage of the national food and
drugs act. At that time we all believed we
were absolutely and honestly right
in our contention, but most of us have
since found that we were wrong,
and that working under proper factory methods
and conditions we can comply with
all regulations called for by the national
food and drugs act and turn out
much better products than under the slip-shod
methods generally used before the
passage of the act.
In the early
days of enforcement many of us thought, Dr. Wiley, that you
were too radical in your ideas
of pure food and felt that you were doing harm
to our industry. When I look back
over the changes that have come to the food
industry during the past twenty-five
years and see the great changes for the
better that have come to our methods
and our products, I wonder why we were
all so blindly asleep as we were
and why, much sooner than we did, we did not
welcome and follow your teaching.
I am glad, indeed,
Dr. Wiley, that this correspondence between us has
started so that I am able to tell
you what I have many times said to my
friends and competitors in the
industry, that Dr. Wiley was many years ahead
of us in his thoughts and we had
been terribly slow in awakening to the
possibilities of pure food manufacture.
We should bear in mind that
through the illegal creation of the Board of Food
and Drug Inspection and of the Remsen
Board of Consulting Scientific Experts,
and by illegally transferring to the
Solicitor the duties of the Bureau of
Chemistry in enforcing the law, probably
as much as $500,000 of public money
appropriated for enforcing the food law
was spent in protecting the business of
adulterators and misbranders and in trying
to force upon the people of Indiana
these adulterated and misbranded products.
The conversion of a man like Mr.
Williams is a most pertinent fact. It
is an additional evidence of the enormity
of the crime commited. against the Food
and Drugs Act.
This statement of Mr. Williams
illustrates the wisdom of carrying into effect
the food law in the way the food law itself
provides. It is a much more
excellent way of showing adulterators
and misbranders the desirability of
changing their ways than any amount of
coaxing, persuading and other methods of
procedure intended to wean the offenders
of the law from their habits of
infracting it. Moreover, it is the method
of procedure which the law itself has
laid down, and which the Supreme Court
has affirmed with the added injunction
that all unnecessary delay should be swept
It is interesting to see
that in the correspondence I lately had with Mr.
Walter Williams he informed me that Mr.
Grosvenor, who was his attorney, was
also converted during the Indiana trial
and subsequently moved to Indiana to
establish a very extensive business in
the production of non-benzoated catsup
and other food products.
The record of the Indiana
benzoate case will prove a mine of information to
the subsequent historian who has opportunity
and desire to review the whole
case. Its 5,000 pages of printed matter
disclose the magnitude of the conspiracy
formed in the Department of Agriculture
to destroy the provisions of the
pure-food law and to seek to declare
unconstitutional the Indiana pure-food law.
This record will be found, I feel certain,
in the State library of Indiana, in
the Library of the Federal Court of Indiana,
and in the Library of the Supreme
Court of the United States. The copy which
I have belongs to a private law firm
in the city of Indianapolis. Owing to
the courtesy of this firm I have been able
to keep this copy of the record many years,
and during that time as leisure was
afforded me, I have studied its pages
and prepared from time to time the
abstracts thereof which are here presented.
I wish I could give more space to
this remarkable document.
I cannot leave these topics
without summarizing briefly the testimony which
the State of Indiana, defendant in this
case, offered before the Moss Committee
(pages 531 to 549, inclusive). The first
witness called was Dr. Harry E.
Barnard, Food and Drugs Commissioner of
the State of Indiana, named as one of
the defendants in this case. Dr. Barnard
testified to the fact that Indiana had
a pure-food law and he was the commissioner
thereof. The particular section of
the law which was under fire was Section
2 of Division 7, which reads as
If it (a food)
contains any added antiseptic or preservative substance
except common table salt, saltpeter,
cane sugar, vinegar, spices, or, in
smoked food, the natural products
of the smoking process, or other harmless
preservatives whose use is authorized
by the State Board of Health, it shall
be deemed adulterated.
Dr. Barnard testified further
that the complainants in filing their suit
asked of Judge Anderson a restraining
order preventing the State Board of Health
from enforcing this law until the hearing
for an injunction was completed. He
explained why the suit was brought in
the Federal Court, that there was no
sentiment in the State favoring the repeal
of the law, that it was supported
enthusiastically by both political parties
and that the press of the state was
unanimously in favor of the enforcement
of the law according to the
interpretation put upon it by the State
Board of Health. He showed that if the
injunction were made permanent it would
result in the repeal of the entire law
and not simply one section of it.
He also testified that all
the canners of the State putting up ketchup and
other products were heartily in sympathy
with the law as interpreted by the
State Board of Health.
DR. HARRY E. BARNARD,
Former Food and Drugs Commissioner of
Mr. Barnard also explained
that he was present at practically all the
proceedings before the Federal Court and
generally attended the
Attorney-General. of the State, Mr. Bingham,
in the taking of depositions
without the state. He also testified that
in taking these depositions they
frequently were given by employees of
the Department of Agriculture in areas
extending from Maine to California. This
part of the testimony of Dr. Barnard is
Mr. Moss: In the taking of
these depositions, did Curtice Brothers and
Williams Brothers take any testimony from
any employees in the national
Department of Agriculture?
A. They did.
Q. State to the best of your
recollection how many employees of the
Department of Agriculture gave testimony
in this case for the firms of Curtice
Brothers and Williams Brothers.
A. With the exception of
two or three young men, subjects and clerks, any
person who did any work in connection
with the benzoate of soda investigation,
employed by the Department of Agriculture,
was examined. This included all
members of the Referee Board, chemists,
physicians, medical experts, clerks,
stenographers, janitors--everyone who
had any thing to do with the case.
Q. About how many in total.
A. I cannot say exactly,
but more than 75.
Q. Did the State of Indiana
secure testimony from any employees of the
national Department of Agriculture?
A. We wished to secure the
testimony of Dr. Wiley, Chief of the Bureau of.
Chemistry, and those of his assistants
who helped him in his benzoate of soda
Q. Did any of the employees
appear voluntarily to give their testimony on the
request of the State of Indiana?
A, No, we found it impossible
to get their testimony.
Q. Have you any reason to
believe that these employees were personally averse
to giving such testimony.
Q. Did any of these employees
appear finally and testify, or give their
A. Yes; after we went to
the Supreme Court of the District of Columbia to
compel them to testify.
Q. In actual tests, then,
did you find the Department of Agriculture
cooperating with the State of Indiana
in the enforcement of the pure-food law or
operating in opposition to the enforcement
of the pure-food law?
A. We found the Department
of Agriculture opposing the State of Indiana in
every move which we made to defend the
pure-food law of our State.
This astounding attitude
of the Department of Agriculture, with the exception
of the Bureau of Chemistry of that Department,
is the most remarkable
illustration of how funds appropriated
for the enforcement of the Federal
pure-food law were squandered in helping
adulterators of foods in their attempt
to break down a popular state law with
all the eagerness and enthusiasm, and
moral and material support which a great
department of the Government could
command. Evidence has already been given
that the members of the Referee Board,
during their efforts to break down the
Indiana law, were paid their salaries and
expenses out of the money appropriated
by Congress to carry out the provisions
of the national pure-food law. While no
evidence was asked for in regard to the
persons employed by the Referee Board
in their investigation, and who appeared
as witnesses against the State 6f Indiana,
as to the payment of their salaries
and expenses while engaged in this activity,
it is reasonable to suppose that
they were treated in exactly the same
manner as their principals. This was a
great boon to the complainants as it saved
them perhaps many thousand dollars
which they would have had to pay for the
testimony of over 75 witnesses whom
they called for the support of their complaint.
was also a witness before the Moss Committee (pages
537 to 549, inclusive).
Mr. Bingham was asked by
Mr. Moss to state concisely to the Committee just
what was involved from a legal standpoint
in the Indiana Case. Mr. Bingham
replied that the constitutionality of
the pure-food law of Indiana was in
question. No federal law was involved.
That if Judge Anderson sustained the
prayer of the complainants the Indiana
pure-food law would be practically
destroyed. That in so far as he was acquainted
with the public sentiment of the
State it was entirely favorable to the
proper enforcement of the law. Mr.
Bingham reported also that in the case
of the Referee Board he began taking
depositions at Seal Harbor, Maine, and
wound up in San Francisco, California. He
testified that as representative of the
State of Indiana he wished to take the
testimony of employees of the Bureau of
Chemistry, and he first applied to the
Department of Agriculture. Mr. Bingham
said he first approached Dr. Wiley who
informed him that he would prefer that
he first approach Secretary Wilson. He
testified that his request that Dr. Wiley
should appear in Indianapolis was not
He testified that he next
appealed to the President of the United States. As
a result of this attempt of Mr. Bingham
he felt certain that he could not get
any of the employees of the Bureau of
Chemistry to go to Indianapolis. He was
compelled, therefore, to remove the court
He tells how he first put
Dr. W. D. Bigelow on the stand, who after giving
his name and his profession declined to
answer a question in regard to the
benzoate matter unless he had permission
to do so from the Secretary of
Agriculture. He carried the request to
compel the testimony of members of the
Bureau of Chemistry to the Supreme Court
of the District of Columbia before
Justice Barnard. A lawyer from the Solicitor's
office of the Bureau of Chemistry
appeared before the Judge to argue against
the order requiring the evidence to
be given. The lawyer from the Department
of Agriculture urged that as this was
expert evidence it could not be given
without the consent of the expert. To
which Judge Barnard replied:
"It was about
as much expert evidence as if they had seen a dog fight on
the street and had been asked to
testify about it."
He entered an order that
the witnesses should go before the master and
I am quoting just now verbatim
from page 545:
MR. Moss: I will ask you
if at any time during the taking of these
depositions you received on behalf of
the State of Indiana any encouragement or
cooperation on the part of any official
of the Department of Agriculture.
MR. BINGHAM: Voluntarily,
no. But I may say this for Dr. Wiley. When I said
to him that I wanted to take his deposition
and question him about whether he
would testify as an expert or not-I wanted
his opinion of the results--he said
that he would testify and that he would
answer any questions that were put to
him; that he would not hesitate to testify
to anything that he was able to
Q. He explained to you that
he was not in a position to act voluntarily, did
A. He explained to me with
reference to that particular thing that he did not
propose to have any padlock put on his
I have given these copious
extracts from the Indiana case because I consider
it to be a most amazing attempt to pervert
the national pure-food law and the
purposes for which it was enacted to protect
the interests of food adulterators
END OF THE INDIANA CASE
Judge Anderson of the Federal
Court of Indiana decided this celebrated case
in favor of Indiana. It was appealed to
the Federal Circuit Court. The decision
of the lower court was approved.
Appeal to the
Seventh Circuit of United States Court of Appeals in the Case
of Curtice Brothers, vs. Harry
E Barnard, et al, Willis Baldwin, E. 0.
Grosvenor, and John Barton Payne,
attorneys for Curtice Brothers, Thomas M.
Honan, Attorney-General of Indiana,
attorney for Harry E. Barnard. Judge
Kohlsatt delivered the opinion
of the Court.
From the evidence and the
master's report thereon, it is evident that the
question of the harmfulness and harmlessness
of benzoate of soda is as yet an
open one in the scientific world. While
the voluminous record of this case deals
largely with that question, it is a question
of fact. The finding of fact of the
master may not in the absence of convincing
evidence to the contrary be set
aside. To show that the report is erroneous
and not justified by the evidence
the burden rests upon the appellant. That
burden is not convincingly sustained
by the record. We, therefore, start with
the proposition that the question is
yet an open one in the scientific world
and, therefore, an open one for the
purpose of this hearing. This being so,
it was within the power of the Indiana
Legislature to prohibit the use of benzoate
of soda in the preparation of foods.
Manifestly, if the Legislature
of Indiana in the reasonable exercise of its
police power and for the welfare of its
citizens condemns as an adulteration the
use of benzoate of soda in the preparation
of articles of food, then in the
absence of a general acceptance of the
proposition by the scientific world that
such is not the case there can as to that
matter arise no question of the
violation of the Constitution of the United
States, or, as here charged, of the
State of Indiana. When deemed necessary
by the Legislature for the public health
property rights such as here involved
must give way. It is therefore apparent
that the position taken by the appellant
with reference to the constitutionality
of the act in question is without merit,
as are also the other matters covered
by the assignment of errors. The decree
of the District Court is affirmed.
At the time of the decision
of the Seventh Circuit Court of Appeals Williams
Brothers of Detroit became convinced that
benzoate of soda was an injurious
substance and withdrew from the further
prosecution of the case. It was carried
by Curtice Brothers to the Supreme Court
of the United States. In 1915
negotiations were begun between the State
of Indiana and the Curtice Brothers
looking to abrogation of hostilities.
A stipulation was agreed upon in which
Curtice Brothers obtained all.they had
fought for in the district and circuit
courts of the United States as follows:
IN THE SUPREME COURT OF THE UNITED STATES
The Curtice Brothers Co.)
Appellant,) No. 243
Harry E. Barnard, et al.)
STIPULATION TO DISMISS
Whereas, the statute of the
State of Indiana known as Chapter 104 of the Acts
of 1907 forbids the sale of adulterated
or misbranded drugs and foods within the
meaning of the act;
And whereas, subsequent to
the passage of said act, and under date of
November 10, 1908, the appellees herein
notified the appellants, and the
purchasers of their said products in the
State of Indiana, that the use of
benzoate of soda was illegal in said State,
and that if they wished to find a
market in said State they must not use
And whereas, on the 22nd
day of December, 1908, a bill in equity, being the
bill in equity involved in this case,
was filed in the District Court of the
United States for the District of Indiana,
in which an injunction was prayed to
restrain the defendants, their successors
in office, their agents and servants,
from enforcing their determination to
prosecute these selling appellant's goods
And whereas, sundry proceedings
were had resulting in the entry of a decree
in the said District Court of the United
States for the District of Indiana on
June 21, 1912, dismissing said bill in
And whereas from said decree
an appeal was taken to the circuit Court of
Appeals for the Seventh Circuit, which
Court, on October 7, 1913, affirmed the
decree of the said District Court of the
United States for the District of
And whereas, an appeal was
taken on August 10, 1914, to the Supreme Court of
the United States from said decree of
the Circuit Court of Appeals for the
Seventh Circuit, which appeal is now pending
in said Supreme Court, entitled,
"Curtice Brothers Co., Appellant, v. Harry
E. Barnard, et al.," and numbered 243
on the docket thereof for the October
And whereas, since the institution
of said proceedings in the District Court
of the United States for the District
of Indiana, the government of the United
States, acting by its proper officers,
hereinafter named, and under authority of
the Act of Congress, approved June 30,
1906, known as the "Food and Drug Act"
promulgated a rule authorizing food products
containing benzoate of soda to pass
into commerce between the States, which
rule is in the following language:
" It having been
determined that Benzoate of Soda mixed with food is not
deleterious or poisonous and is
not injurious to health, no objection will be
raised under the Food and Drugs
Act to the use in food of benzoate of soda,
provided that each container or
package of such food is plainly labeled to
show the presence and amount of
benzoate of soda.
(Signed) George B. Cortelyou,
Secretary of the Treasury
Secretary of Agriculture
Oscar S. Straus,
Secretary of Commerce & Labor
(F.I.D. 104, issued March 3, 1909.)
And whereas, the paramount
and controlling authority of the Federal
government over foods in original unbroken
packages entering into interstate
commerce is now recognized and admitted,
in accordance with which recognition
and admission the Board of Health of the
State of Indiana, successors in office
to the said appellees, under date of April
9, 1915, did promulgate the following
"Whereas, the decisions of
the Supreme Court of the United States in cases
concerning the sale of food transported
in interstate commerce, and sold in
original packages, reserve to officials
charged with the enforcement of the
Federal Food and Drug Act the authority
to regulate the labelling and character
of such food, the chemist to the State
Board of Health, who is the state food
and drug commissioner, is hereby instructed
to follow, without exception, the
regulations for the enforcement of the
Food and Drug Act, promulgated by the
Secretary of Agriculture, the Treasury,
and Commerce and Labor, in the
enforcement of the pure food and drug
law, Chapter 104, 1907, in the cases of
food sold in interstate commerce in the
original unbroken packages;"
"And whereas, there now,
therefore remains no question at issue before the
Supreme Court of the United States for
adjudication between the parties to said
proceedings, entitled "The Curtiee Brothers
Co., Appellant, v. Harry E. Barnard,
NOW THEREFORE, in consideration
of the foregoing, IT IS HEREBY STIPULATED by
counsel for the parties thereto, that
the appeal herein shall be dismissed
without prejudice, and without costs to
either party as against the other.
(Signed) Lawrence Maxwell,
Counsel for Appellants.
Evan B. Stotsenburg,
Attorney General of the
State of Indiana.
This stipulation gave
as a free gift to Curtice Brothers everything that they
were asking for through both the District
and Federal Circuit Court of Appeals
which it had been denied by both Justice
Anderson and Justice Kohlsatt. The
whole stipulation appears to have been
composed by Lawrence Maxwell, attorney
for Curtice Brothers. It assumes
that the contention of the Curtice Brothers
that benzoate of soda is a perfectly harmless
substance is true. It has never
been pronounced so by a Federal Court.
In so far as experts are concerned, there
is always a difference of opinion, but
the far greater number of experts have
held that benzoate of soda is harmful.
Those who used it have been led by one
cause and another to entirely abandon
its use. Even the persons who sought to
restrict the Indiana State Board of Health
from obeying the rules and
regulations under the State law finally
came to see the error of their ways and
joined the ranks of the non-users of benzoate.
The three Secretaries who signed
Food Inspection Decision 104 had no warrant
by law to make such a ruling. There
was only one authority named by the law
to bring an indictment under the law.
This indictment was not valid unless it
was sustained by the Federal court. The
publication of this order on March 3,
1909 was a plain violation of law. The
Indiana Board of Health on the 9th of
April, 1915, issued an order forbidding
interference with the sale of benzoated
goods as long as they were in the
original packages. The Attorney-General
of the State of Indiana advised the
commissioner of foods that there were
certain conditions in which imported
packages never ceased to be in the original
containers. This of course is a
reductio ad absurdum. The very moment
an Indiana dealer sells goods it is an act
of intrastate commerce and brings that
article directly under the control of the
CONTEMPT OF COURT
In my testimony in the Indiana
case, Mr. Baldwin, the attorney for the
complainants in cross-examination endeavored
to fix the responsibility of the
almost unanimous sentiment expressed in
the newspapers and magazines on me. He
asked me if I kept in touch with the progress
of the case. I told him I did as I
was greatly interested in it, that I knew
it was under way and had been pending
for a long while. He asked me this question:
Q. Now then, you have stated
your opinion here to the reporters of the
different papers as to the outcome of
A. I think I have said that
I hoped it would be decided in favor of the State
Q. You said that to the reporters
of the papers.
A. I think so. I do not see
any reason why I should not say so.
Q. You said that to them
with the expectation that they would use those
statements in the press.
A. I think reporters usually
Q. It is your experience
that they do use those things.
A. I have no objection to
my opinion being expressed in the public press on a
question of that kind; none whatever;
I have a right to my opinion
in this country and will exercise it.
Q. Didn't you know that it
is improper for any person to express an opinion
as to what the Court was going to do in
a pending case.
A. In what sense? In what
Q. I say in a way so that
that opinion would get in the newspapers.
A. As to the outcome of the
A. I did not know that it
was improper to express the hope in a civil suit
without a jury that the decision would
be this way or that. If it were an
illegal or an improper thing I am sorry
I said it. I have done it dozens of
times as to cases I have seen on trial.
Q. You made it in such shape
that that opinion got.into the newspapers?
A. I suppose it did get into
the newspapers. I had no objection to its
Q. In fact you wished it
to get in?
A. I did not think of that.
Q. You must have volunteered
it, because it was not forced from you.
A. I did not run around and
hunt them up. They came to me.
Q. You voluntarily made those
A. Oh, yes. Nobody tried
to force me to make any.
Q. Do you keep a set of clippings
from different papers at all?
A. I am not a subscriber
to any agency. I usually cut out articles in which I
am interested that come to my notice.
Q. And don't you know that
those statements of your opinion were published
generally throughout the country?
A. I don't know if they were
Q. Don't you know they were
published in other papers than those in
A. Oh, I suppose so; I don't
Q. Do you know whether they
were published in any Indianapolis papers or not?
A. I do not.
Q. Don't you know they were
published in the Detroit Free Press?
A. I do not.
At this point Mr. Baldwin
offered an article published in the Washington
Post, July 13, 1910. This article related
the facts that at the 66th Convention
of the American Institute of Homeopathy,
held at Pasadena, California, a
resolution was adopted denouncing food-laws
that prohibit the use of
preservatives in food and the use of sulphur
in curing fruit. He stated that
12,000 homeopathic physicians had sent
telegrams to President Taft and Secretary
Wilson in favor of the farmer, the fruit-grower
and the preserving factories and
against the pernicious rulings of Dr.
H. W. Wiley, Chief of the United States
Bureau of Chemistry. The latter part of
this clipping reads as follows:
American Institute of Homeopathy at its convention at
Pasadena, Cal., Monday, adopted
a resolution rescinding its action taken last
year condemning the use of benzoate
of soda as a food preservative, Dr. Wiley,
chief chemist of the Department
of Agriculture, has stronger opinions than
ever on that subject. Dr. Wiley's
views did not prevail in the department, as
the board appointed by Secretary
Wilson under the pure food law disagreed with
the chief chemist and sanctioned
the use of benzoate of soda as a food
" 'The developments
during the last year,' said Dr. Wiley, 'have
accentuated my opinion as to
the harmful character of benzoate of soda as a
food preservative. I expect
to see that view sustained by the Federal courts,
as the evidence that has been submitted
recently in Indiana cases points that
(Page 3460, Indiana
I never lost faith, in the
whole two or three years during which the Indiana
case was considered, in the character
of the outcome. I think Mr. Baldwin, the
attorney for the complainants, was justified
also in his optimism that the
Referee Board would win. He realized that
all the heavy artillery of the most
powerful government in the world had been
brought into play and directed against
the crackling reports of the short shot-guns
fired by the Bureau of Chemistry.
Later he must have realized the truth
of the poem;
to earth will rise again;
The eternal years
of God are hers;
While error languishes
And dies amid