by Deborah Blum
For example, the question of which alcoholic beverages could rightly be called “whiskey” arose yet again. Roosevelt and Attorney General Bonaparte considered that they had settled the matter. But bottling interests represented by that tireless lobbyist Warwick Hough never resigned themselves to the designations “compound whiskey” and “imitation whiskey.” Roosevelt had quietly tried to appease the angry liquor wholesalers by appointing an informal “whiskey commission,” supposedly to review the situation. It consisted of Wilson, Dunlap, and John G. Capers, head of the Department of Internal Revenue. The commission was so informal, and also apparently so secret, that Wilson and Dunlap at first denied it existed when reporters asked them about its rumored actions. This deceptiveness became a political embarrassment when Roosevelt and Capers acknowledged the panel’s formation. Further, Hough acquired a copy of a pro-industry letter from the commission to the president and leaked it to newspapers in order to press his cause. The document, which infuriated Wiley and his purist allies, read in part: “[T]he term ‘whiskey’ should not be denied to neutral spirits diluted with water to a proper strength and colored with caramel.”
Hough welcomed Taft’s election—largely because he remembered that at the height of the whiskey deliberations, the then-secretary of war had spoken out in favor of the wholesalers’ position. Not long after the 1909 inauguration, Hough brought members of the National Wholesale Liquor Dealers Association and his copy of the whiskey commission letter to a meeting with the new president. Afterward, with Taft’s encouragement, the association filed a formal petition to once again revisit the question of how to define whiskey.
In response, Taft asked Solicitor General Lloyd W. Bowers for a formal review of Roosevelt’s earlier decision and, at Bowers’s recommendation, a new series of whiskey hearings began on April 8, 1909. It continued for almost a month. The resulting 1,200-page volume of testimony retraced the ground that had been covered in earlier hearings before congressional committees. Hough again represented the wholesale liquor dealers. As he had in the past, Edmund Haynes Taylor Jr.—now in his seventies but still an outspoken advocate for aged Kentucky bourbon—represented the straight-whiskey interests. And Wiley, yet again, was called as an expert witness on alcohol analysis and purity. The subject matter may have been somewhat dry, but the hearings were not. Participants repeatedly gathered around a table to taste the samples of whiskey—straight, blended, imitation—submitted in evidence. Henry Parker Willis, an economics professor at Washington & Lee University who served as an adviser on whiskey tax issues, noted a corresponding rise in noise and described the hearings as often “reminiscent of a German drinking club.”
Typically impassioned, Wiley once again accused Hough and his association of dishonesty: “The evidence shows convincingly,” he said, “that the protestants in this case did not come into court with clean hands; that they have been for half a century guilty of taking neutral spirits and from these neutral spirits making all forms of so-called whiskey.” The use of dyes, he reminded the listeners, was purely to give products the false appearance of aged whiskey and to “make the article appear better than it really is, thus contravening the fundamental principles of the Food and Drug Act.” After all, the act required many manufacturers to place the term “imitation” on their label—imitation vanilla extract, for instance—when they were made primarily of other ingredients. And he concluded: “There is no hardship, therefore, in imposing the word ‘imitation’ upon a beverage made in imitation of old genuine whiskey.”
In late May, Bowers issued his opinion, agreeing with Wiley that neutral spirits—dyed, flavored, oiled—should not be called whiskey in an unqualified way. He ordered them to be labeled “imitation.” But he also agreed with the rectifiers that a blend of alcohols, if it contained primarily straight whiskey, could fairly be called a “blended whiskey,” even if it was dyed to a richer color. If this was “coloring matter of a harmless character,” such as a vegetable dye, Bowers said he would not call the whiskey adulterated. After all, he noted, “Whisky is not a natural product. It is always a thing manufactured by man.”
Wiley wearily accepted the verdict; he was, to the relief of his allies, ready to let the whiskey fight go. The ruling satisfied neither Hough nor Taylor, however, and on behalf of their respective groups both challenged Bowers’s decision. Taft then announced he would make a presidential decision to end the argument, possibly later that year. Taylor was optimistic; he and his straight-whiskey colleagues had filed a detailed brief establishing the solid legal precedent for precise labeling of whiskey and its ingredients. In this they had the support of Senator McCumber, one of the powers behind the passage of the food law, who had written to the president that he considered it consumer fraud to allow cheap alcohol enhanced with “drugs and oils and colors . . . to be sold for a good brand of whiskey.”
Less openly, Taft also reviewed another Roosevelt decision, the creation of the Remsen Board. Shortly after taking office, the new president had asked deputy attorney general James Fowler to affirm that the board had legal standing. Fowler responded with a memo, copied to Wilson, that dismayed both the secretary and the president. It warned that the board represented an illegal use of department funds: “I do not think the Secretary of Agriculture was authorized by law to employ scientific experts to be paid out of the fund named.” Startled, Taft privately asked Attorney General George Wickersham to review Fowler’s finding. Wickersham concurred. Indeed, the attorney general’s office expressed concern over how much money Wilson was lavishing on these industry-friendly scientists—annual salaries of up to $60,000 and, from 1908 to 1909, an additional $40,000 for expenses. At Wilson’s urging, however, Taft decided to keep the board in place. Both men agreed that the department needed a counterweight to Wiley’s purist extremes. And both men agreed to keep the Justice Department ruling secret—another decision that would later prove a very public embarrassment.
At the Agriculture Department, Dunlap and McCabe now routinely joined hands against Wiley on every decision. McCabe had announced a “three-month rule,” stating that if cases were reported to the board more than three months after samples were collected, they would not be prosecuted. Wiley protested, pointing out that the Chemistry Bureau was understaffed and not always able to turn analyses around so quickly. “I consider there is neither justice nor reason in the three months rule,” he wrote. “I have never consented to it nor was I consulted in its adoption.” McCabe responded by requiring him to attach justification to every delayed analysis. The attorney continued to think Wiley far too quick to prosecute violations and too resistant to work with companies on solving problems. There was some merit in slowing things down, he thought, even though some wrongdoers might slip by along the way.
In June 1909 Wiley recommended that eight barrels from Ohio labeled “Sweet Catawba Wine” be seized and the company reprimanded. Departmental inspectors had discovered that the barrels contained not wine but an alcoholic liquid made from fermented corn sugars sweetened with saccharin. McCabe and Dunlap took the position that rather than fraudulent, the wine was merely poorly labeled. They blocked the seizure and scheduled a hearing with the manufacturer to work out a compromise. At least, Wiley suggested, the department might keep the mislabeled—and again, he would argue, fake—product out of the market until the situation was resolved. McCabe wrote back with undisguised hostility that he considered that a “ludicrous recommendation.”
Many of their disagreements centered on defining the risk of a poorly studied compound. In a typical argument with Dunlap that July, Wiley recommended barring the compound sodium acetate—a salt of acetic acid used widely by the textile industry—from also being used as an additive in candy. He worried, he said, that sweets were largely eaten by children, one of the groups that most needed extra protection. A clause in the law forbade the addition of mineral substances to confectionary. Admitting it was a stretch, he argued that, as sodium was a mineral, the departme
nt could apply the law in a protective sense until more was known. Dunlap countered that the action would pose a troubling scientific precedent: “If sodium acetate is a mineral substance, so is cane sugar, for cane sugar is composed of over 40 percent carbon and no one could possibly deny the fact that carbon is mineral.” True, Wiley admitted, but wasn’t it worth risking interpretive overreach in the interest of protecting the most vulnerable consumers? “I have not time to go into all the reasons that would lead me to exclude sodium acetate from confectionary. The fact that confections are eaten especially by children and others whose digestive systems are not the strongest is a good and sufficient reason to me,” wrote Wiley in a memo arguing his case. Dunlap again replied that he found that unconvincing and would not support enforcing the law in such an arbitrary way.
They also quarreled over whether the label “Norway Boneless Cod Strips” could be applied to cod from New England that still contained some of the smaller bones. “I do not know of but one meaning of the word ‘Norway’ and that is probably the signification of the word on this package,” Wiley wrote. The three-man panel eventually decided to order that “Norway” be removed from the package but, in a two-to-one decision, allowed small bones to be considered acceptable in a “boneless” product.
In another dispute they differed over whether a cookie could be called an “arrowroot biscuit” when it contained only 15 percent arrowroot starch. Predictably, Wiley took the stance that a higher percentage was needed to justify the name; McCabe countered that if they were so literal in applying the law, it would become a joke. This kind of stance on arrowroot biscuits, he declared, “would lead to the proposition that one product of the baker’s art, now styled ‘Lady Finger,’ is misbranded unless actually the result of mayhem.”
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The battle over sodium benzoate, meanwhile, had not abated. Frustrated with federal government inaction, the state of Indiana had independently banned the product’s use in foods. In 1908, fearing that Indiana’s action would trigger similar moves by health officials in other states, two large food processors, Curtice Brothers of Rochester, New York, and Williams Brothers of Detroit, filed suit, petitioning the U.S. District Court in Indianapolis to block the state law, describing it as economically crippling. The court issued a temporary injunction and scheduled a full hearing on the issue for the spring of 1909.
In anticipation of the hearing, the manufacturers quietly asked James Wilson for two favors. They wanted representatives from the Remsen Board to testify in their favor and they wanted Wiley and his loyal chemistry staff kept out of the courtroom. Wilson agreed to both requests, arranging to fund members of the Remsen Board to testify in Indiana, preparing to block any opposite viewpoints. When James Bingham, attorney general of Indiana, asked to have Wiley and some of his bureau staff testify in support of the state’s case, Wilson refused permission. When Bingham protested, Wilson sought Taft’s approval for the refusal, emphasizing that representatives of the Department of Agriculture should not so publicly take opposite sides in a lawsuit over preservatives. The president readily agreed and the secretary prepared to block all access to the recalcitrant chemists in his bureau.
Bingham, however, cabled the department that he now would get on a train and come to them for the depositions. Harvey Wiley agreed to give his statement, despite knowing that it was against department policy and that he would once again anger his boss by doing so. But others in the Agriculture Department declined, telling the Indiana attorney general they feared Wilson’s retribution. Now genuinely angry, Bingham filed suit in the Supreme Court of the District of Columbia (what is now called the U.S. District Court for the District of Columbia). Naming Wilson and the department, the suit sought to compel the department’s full testimony in the Indiana case. The federal court agreed with Indiana’s attorney general that the Agriculture Department could not suppress expert testimony. Bingham gathered all his requested depositions and put Wilson into a legal bind, forcing the secretary, against his will, to send Wiley to testify in the state case.
But the standoff between the federal government’s quarreling experts doomed the state law. The court ruled that without a consensus it could not find the preservative to be a health problem: “Ingredients and processes may be prohibited as unwholesome or causing deception but not merely because they preserve.” Further, the justices had been impressed by the manufacturers’ arguments that they were wholly dependent on chemical additives to stay in business: “While it may regulate,” they said, “the legislature may not destroy an industry.”
Paul Pierce’s magazine—its name now changed from What to Eat to the more serious-sounding National Food Magazine—responded with renewed attacks on sodium benzoate. The issue featured a strong warning from William Williams Keen—a Philadelphia physician acclaimed as the country’s first brain surgeon—on the risks of repeated low doses of chemical agents in food: “It must be evident that any drug used as a food preservative, eaten constantly, must affect the general health deleteriously and hence is most undesirable. . . . I have warned my grocer that I shall not accept such food for use and, if furnished me, I shall simply change my grocer.”
The issue also featured a full-page ad from H.J. Heinz. Titled “A Health Problem That Confronts the Nation,” it read in part: “Are you sure that your own state of health justifies you taking, for an indefinite period, drugged foods into your system? Are you willing to drug your family according to the prescription of any food manufacturer?
“Benzoate of soda is not necessary in any food. Every food product sold in a preserved state can be and is put up without it. Reputable manufacturers (and there are many) who do not use waste products of canneries, evaporating plants and other refuse raw materials and who do not permit untidiness and unsanitary practices about their factories find it unnecessary and do not use it. . . .
“Heinz 57 varieties are prepared from fresh, sound, wholesome fruits and vegetables; by neat uniformed work people; in model kitchens that are open to the public every day and visited annually by thousands from all parts of the world.
“Our products do not—and regardless of any legislative action or Government ruling—they will never contain Benzoate of Soda or any drug or chemical.” The ad concluded by suggesting that despite the new law, consumers still needed to protect themselves by reading food labels carefully.
Wilson knew that Ladd, Shepard, and many of the other critics who had so savaged his reputation the previous summer in Michigan would have another opportunity that August as the Association of State and National Food Dairy Departments was scheduled to convene in Denver. Just weeks earlier, the secretary had authorized Agriculture Department agents to start seizing bleached flour shipments and publicly proclaimed his vigilance against dishonest manufacturing practices. “I am utterly hostile to having the people’s foods tampered with,” he told the American Food Journal. “We want to know that what we eat is the pure product.”
More privately, Wilson acknowledged that his decision had been urged as a test case by department solicitor George McCabe, who believed the bleaching issue offered a chance to sharpen up some vague wording in the law. The law, as McCabe correctly pointed out, did not provide clear definitions for what constituted an injurious additive or adulteration. On that point he agreed with Wiley, who had long complained about the vague standards. The solicitor thought judicial clarification was needed to improve the situation. “This can come only from the courts,” he wrote, “and there is not a single serious administrator connected with the law who does not join in the opinion that further progress must depend very largely on judicial rulings. If the bleached flour people bring their case to trial, they will do a valuable public service whether they win or lose.”
Despite agreeing to seizures for legal purposes, Wilson appeared increasingly hostile to his department’s role in tackling public health issues. He moved to block a bureau report on the chemical ri
sks inherent in bleaching flour. He had also, not surprisingly, refused a provocative request from Wiley in June to reprint the report on benzoic acid and benzoates. He’d also shut down a series of other planned publications: on the use of the sugar alcohol glycerin in processing meat, on preventing spoilage of tomato ketchup, on pathogenic bacteria growing in frozen and dried eggs, and even an assessment of the arsenic content of confectioner’s shellac, the glaze used on chocolate candies. He’d further blocked the release of a troubling report from Lyman Kebler, chief of the bureau’s Drug Division, on the growing problem of medicated soft drinks.
Wilson also tried to prevent Wiley from taking his case to popular publications. “I regret that I shall have to withdraw my offer to write you an article which would be truthful, readable and useful on the subject of ‘The Campaign for Pure Food, up to Date,’” wrote Wiley to an editor at Century magazine. “As I told you, I submitted your request to the Secretary of Agriculture and he informed me that if I would write an article which he would approve I could publish it. The Secretary and I are so diametrically opposed in our view in regard to this matter that I am convinced it would be useless for me to try to secure his approval to any article which in my opinion would do anything like justice to the subject. . . . I reluctantly ask you to cancel the engagement.”
When the Association of State and National Food Dairy Departments convened in Denver that summer, little of the previous year’s bitterness from the Mackinac Island convention had faded. “James Wilson, secretary of agriculture, and Dr. H.W. Wiley, chief chemist of the department, have come to the parting of the ways on the subject of food,” reported the Chicago Tribune in a story predicting a “battle royal” over preservatives, especially sodium benzoate. Wilson brought the entire Remsen Board with him to Denver, paying for their rooms at the city’s Brown Palace Hotel, convention headquarters. Despite the luxurious setting, Ira Remsen would later describe the conference as “a bear pit.” He found himself repeatedly defending the board against charges that it favored industry at the cost of public health and safety. The secretary had prepared an aggressive strategy. He demanded that a scheduled vote on the sodium benzoate question be decided on an open ballot. Then he privately assured attendees that the Department of Agriculture would withdraw funding to all those who voted against him.