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CHAPTER V

BOARD OF FOOD AND DRUG INSPECTION AND
REFEREE BOARD OF CONSULTING SCIENTIFIC EXPERTS

 

PROLOGUE

   It has often been said that, to make discoveries, one must be ignorant. This opinion, mistaken in itself, nevertheless conceals a truth. It means that it is better to know nothing than to keep in mind fixed ideas based on theories whose confirmation we constantly seek, neglecting meanwhile everything that fails to agree with them. * * *

   "Men who have excessive faith in their theories or ideas are not only ill prepared for making discoveries; they also make very poor observations. Of necessity they observe with a preconceived idea, and when they devise an experiment, they can see, in its results, only a confirmation of their theory. In this way they distort observation and often neglect very important facts because they do not further their aim. This is what made us say elsewhere that we must never make experiments to confirm our ideas, but simply to control them; which means, in other terms, that one must accept the results of experiments as they come, with all their unexpectedness and irregularity.

   "But it happens further quite naturally that men who believe too firmly in their theories, do not believe enough in the theories of others. So the dominant idea of these despisers of their fellows is to find others' theories faulty and to try to contradict them. The difficulty, for science, is still the same. They make experiments only to destroy a theory, instead of to seek the truth. At the same time, they make poor observations, because they choose among the results of their experiments only what suits their object, neglecting whatever is unrelated to it, and carefully setting aside everything which might tend toward the idea they wish to combat. By these two opposite roads, men are thus led to the same result, that is, to falsify science and the facts."

   From Experimental Medicine, by ClaudeBernard, pages 37 and 38.

 

PURPOSE OF CREATING BOARDS

   In the enactment of the Food Law the Congressplainly provided the mechanism of its enforcement. There was no provision in thelaw for any additional machinery. It was evident that the Bureau of Chemistry wasthe dominant factor in bringing offenders of the law before the Courts. Those who"felt the halter draw" had "no good opinion of the law" as thepoet has pertinently and wittily said. The elimination of the Bureau was thereforethe thing of prime importance. The President of the United States seems to have takenthe initiative in this matter.

   President Roosevelt wrote to the various universitiesto secure a chemist, not to replace me, but to be placed in such a position as tocounteract all my activities. Accordingly on the recommendation of President Angellof Ann Arbor the President issued an order permitting Dr. Frederick L. Dunlap tobe appointed, without Civil Service examination, as associate chemist in the Bureauof Chemistry without being subject to the orders of the Chief of that Bureau, butreporting directly to the Secretary. (Moss Committee, page 921.)

   In order to make this point perfectly clear Iquote the following from page 849, Moss Committee:

   MR. MOSS: " It is also stated in the record that a boardof food and drug inspection was organized to advise the Secretary of Agricultureon matters concerning which the Pure-food law says he must make a decision."

   SECRETARY WILSON: "That is substantially correct."

   MR. MOSS: " These two boards were created by executiveorder?"

   SECRETARY WILSON: "Yes."

   MR. MOSS: "Then the powers and the duties of either oneof the boards were fixed by executive order and not by statute?"

   SECRETARY WILSON: "That is right. I do not think therewas any special order sent to me to do that, but President Roosevelt appealed tothe presidents of the big universities to get an additional chemist put on thereand that brought Dr. Dunlap from Ann Arbor. So I doubt if I had a special order,although there was a very clear understanding what was to be done."

   MR. MOSS: "The question I had in mind was that the Boardof Food and Drug Inspection was not created by statute but was created by executiveorder."

   SECRETARY WILSON: "That is what I was doubting. It wasnot created by statute. I created it for the purpose of getting information and allthat, but of the three gentlemen on the board, two were in the Department, and inbringing in Dr. Dunlap, an additional chemist, made the third one, so technicallythere was no general order of the President to do that, but there was a clear understandingthat it would be done. "

SPECIFIC DUTIES

   We should not forget that in the legislationof Congress specific duties are often assigned to particular units of administrationof a character which does not permit of executive interference. I may cite in thisconnection the activities of the Comptroller of the Treasury. To the Comptrollerof the Treasury is assigned by Congress certain specific duties. Even the Presidentof the United States can not legally interfere with the Comptroller's prerogatives.The story is told of a case in the Grant administration where the decision of theComptroller was particularly objectionable to certain citizens. They went to thePresident and asked him to rescind the comptroller's opinion. President Grant, whobelieved in obeying the law, replied that he could not legally alter a comptroller'sdecision. He said:

   "If I thought it was a very bad decision I might change comptrollers and get one who would decide the way I think he should. In this case there does not seem to be any exigency demanding any such action."

   The Bureau of Chemistry had specific duties assignedto it. Theoretically these duties could not be repealed by executive order. Practicallyin this case they were, but, of course, illegally. The proper way was to follow thesuggestion of Grant, and remove the Chief of the Bureau and put Dunlap in his place.

   Soon after the episode of the whisky conference,on February 22, 1907, was ended the Secretary of Agriculture walked into my officeone morning in company with a young man whom I had never before seen, and introducedhim as Professor F. L. Dunlap, your associate.

I said:

   "Mr. Secretary, my what?"

He said:

   "Your associate. I have appointed an associate in the Bureau of Chemistry who will be entirely independent of the Chief and who will report directly to me. During the absence of the Chief he will be acting chief of the Bureau."

   I was astounded and dumbfounded at this action.He handed me at the same time the letter in which he had established this officeand described the duties of the officer. Whatever qualification Dr. Dunlap had forthe office to which he was appointed does not appear. In the first place he was totake the office of Acting Chief in my absence, a position which was filled most ablyby Dr. W. A Bigelow, my principal assistant in the Bureau. Dr. Bigelow had rare judgmentand discrimination. I depended upon him largely for the control of the personnelof the Bureau. He was efficient, firm, just and capable. He had grown up in the Bureaufrom a humble position to be, for several years, my first assistant.

   There was no one else so capable as he to dischargethe duties of Chief in my absence. This action of the Secretary was a direct insultto one of the most able men with whom I have ever worked. At the same time he putin charge of the Bureau during the absence of the Chief a person who knew nothingof its personnel, nothing of its activities, nothing of its duties either under thefood law or otherwise, and wholly unskilled and untrained in the control of a largeBureau of several hundred members, as was the Bureau of Chemistry at that time. Thiswas an astounding action. At the same time I was informed that the Secretary hadorganized a Board of Food and Drug Inspection. Such a board was not authorized bylaw nor by any action of Congress, nor by any appropriation made by Congress. Itspurpose was to take away from the Bureau all its power and activities under the FoodLaw. This body was composed of the Chief of the Bureau as Chairman, with Dr. F. L.Dunlap and Mr. George P. McCabe as its other two members. As long as Dr. Dunlap actedwith Mr. McCabe--and that was always--all decisions in regard to food adulteration,placed by law in the hands of the Bureau of Chemistry, were approved or disapprovedby the other two members of the Board. This was a complete paralysis of the law.This Board was appointed by General Order III, on April 25, 1907. The time that elapsedfrom February 22d, when the whisky case was erroneously decided by the Solicitor,to April 25th, 1907, was only a little over two months. This order was issued beforethe final decision on the whisky question by the Attorney-General was published.The order reads as follows:

United States Department of Agriculture,
Office of the Secretary,
Washington, D. C., April 25, 1907.

   There is hereby created in the Department of Agriculture a Board of Food and Drug Inspection. The members of this board will be Dr. Harvey W. Wiley, Chief, Bureau of Chemistry, chairman; Dr. Frederick L. Dunlap, associate chemist, Bureau of Chemistry; and Mr. George P. McCabe, Solicitor of the Department of Agriculture. The board will consider all questions arising in the enforcement of the food and drugs act of June 30, 1906, upon which the decision of the Secretary of Agriculture is necessary, and will report its findings to the Secretary for his consideration and decision. All correspondence involving interpretations of the law and questions arising under the law not theretofore passed upon by the Secretary of Agriculture shall be considered by the board. The board is directed to hold frequent meetings, at stated times, in order that findings may be reported promptly.

   "In addition to the above duties, the Board of Food and Drug Inspection shall conduct all hearings based upon alleged violations of the food and drugs act of June 30, 1906, as provided by regulation 5 of the rules and regulations for the enforcement of the food and drugs act approved October 17, 1906.

   (Signed) JAMES WILSON, Secretary of Agriculture.

(Expenditures in Department of Agriculture, Hearings July-August, 1911, page 429.)

   First you will note that this Board was createdin the Department of Agriculture and not in the Bureau of Chemistry.

   The result of the appointment of a board of Foodand Drug Inspection was that the functions of the Bureau as defined by the law wereentirely paralyzed. The Solicitor of the Department was made, by General Order No.140, the supreme arbiter in all cases. In all of the decisions which he rendered,without exception, the Secretary of Agriculture supported him.

ORIGIN OF THE REMSEN BOARD

   Encouraged by the success of the first effortto evade the provisions of the law through the appointment of the Board of Food andDrug Inspection, the time was propitious to push the matter further. The servicesof President Roosevelt in securing the appointment of a chemist who would sympathizewith the efforts to defeat the purpose of the law had made that result possible.There was still needed some further encouragement to attack the activities of theBureau in the matter of what was injurious to health. Up to this time the decisionsof the Bureau on these points had been respected. To eliminate the Bureau completely,some plan had to be devised to counteract the decisions reached. A remarkable incidentmade it possible to use the President of the United States in the accomplishmentof this purpose. As an eye and ear witness of the event about to be described I amable now to set down exactly what occurred.

   Adulterators of our foods who were using benzoateof soda particularly in ketchup, and saccharin particularly in canned corn, had visitedPresident Roosevelt and urged him to curb the activities of the Bureau of Chemistryin its opposition to these practices. They had spent the greater part of the dayin the President's office. He promised to take these matters into consideration thevery next day and asked these protestants to stay over. He invited the Secretaryof Agriculture and the Chief of the Bureau of Chemistry to come to his office atten o'clock on the day following and listen to the protests of the gentlemen mentionedabove.

   At the appointed hour we all met in the President'soffice, or as I recall, in that part of his office where Cabinet meetings were usuallyheld. When all were assembled he asked the protestants to repeat in the presenceof the Secretary of Agriculture and the Chief of the Bureau of Chemistry the demandswhich they had made upon him the day before. The three chief protestants were CurticeBrothers of Rochester, N. Y., Williams Brothers of Detroit, Michigan, and ShermanBrothers of New York, represented by James S. Sherman, M.C., who was near his electionas Vice-President of the United States in 1908. There were a number of lawyers andothers closely related to the protestants, making a very goodly number in all. Theywere loath to repeat the charges but Mr. Roosevelt insisted that they should do so.Whereupon the representative of the ketchup industries spoke. He told the well-known"sob" story of how the business of putting up ketchup would be utterlydestroyed if the decisions of the Bureau banning benzoate were carried into effect.It was a touching and pathetic recital of the ultimate confiscation of hundreds ofthousands of invested capital. There was no way in which this disaster could be divertedexcept to overrule the conclusions of the Bureau. The Chief of the Bureau was dramaticallyset forth as a radical, impervious to reason and determined to destroy legitimatebusiness. After this recital was completed, Mr. Roosevelt turned to Mr. Wilson andsaid: "What is your opinion about the propriety and desirability of enforcingthe rulings of your Chief of Bureau?" Mr. Wilson replied:

   " The law demands that substances which are added to foods for any purpose which are deleterious to health shall be forbidden. Dr. Wiley made extensive investigations in feeding benzoated goods to healthy young men and in every instance he found that their health was undermined."

   The President then asked me what I thought ofthis ruling. I replied as follows:

   "Mr. President, I don't think; I know by patient experiment, that benzoate of soda or benzoic acid added to human food is injurious to health."

   On hearing this opinion the President turnedto the protestants, struck the table in front of him a stunning blow with his fist,and showing his teeth in the true Rooseveltian fashion, said to the protestants:

   "This substance that you are using is injurious to health and you shall not use it any longer."

   If matters had rested there the crowning blowto the food law would have been prevented. Mr. Sherman, however, took the floor andsaid:

   "Mr. President, there was another matter that we spoke to you about yesterday that is not included in what you have just said about the use of benzoate. I refer to the use of saccharin in foods. My firm last year saved $4,000 by sweetening canned corn with saccharin instead of sugar. We want a decision from you on this question."

   Unfortunately I did not wait for the Presidentto ask the customary questions. I was entirely too precipitate in the matter. I addressedthe President without his asking me, which is considered an offense to royalty orto a President. In the presence of rulers, we should always wait until we are spokento before joining in the conversation. Had I followed this precept of respect thecatastrophe which happened might have been avoided. I immediately said to the President:

   "Every one who ate that sweet corn was deceived. He thought he was eating sugar, when in point of fact he was eating a coal tar product totally devoid of food value and extremely injurious to health."

   This answer was the basis for the complete paralysisof the Food Law. Turning to me in sudden anger the President changed from Dr. Jekyllto Mr. Hyde, and said:

   "You tell me that saccharin is injurious to health?" I said, "Yes, Mr. President, I do tell you that." He replied, "Dr. Rixey gives it to me every day." I answered, "Mr. President, he probably thinks you may be threatened with diabetes." To this he retorted, "Anybody who says saccharin is injurious to health is an idiot."

   This remark of the President broke up the meeting.Had he only extended his royal Excalibur I should have arisen as Sir Idiot. Thatdistinction has not departed from me to this day. The thing which hurts most is thatin the light of my long career I fear I deserved it. The next day the President issuedan order establishing the Referee Board of Consulting Scientific Experts. In orderthat his favorite sweetener might have fair hearing he asked Dr. Ira Remsen, whoheld a medal given him by the Chicago Chemical Society as the discoverer of saccharin,to be chairman and to select the other members. According to the ordinary conceptionof a juror Dr. Remsen would not have been entitled to sit on the subject of saccharin.Such little matters as those, however, were not dominating with the President ofthe United States. As Milton describes the episode in the Garden of Eden--

   "Of man's first disobedience and the fruit
   Of that forbidden tree whose mortal taste
   Brought death into the world and all our woe"

the creation of the Remsen Board of Consulting Scientific Expertswas the cause of nearly all the woes that subsequently befell the Pure Food Law.Joined to the creation of the Board of Food and Drug Inspection there was littleleft of the method prescribed by Congress for its enforcement.

UNIFICATION OF ADULTERATORS

   From this time on all the interests seeking toparalyze the enforcement of the food and drugs act acted as one body under the leadershipof the Department of Agriculture. The rectifiers were perhaps the best organizedof the enemies of the pure food and drugs legislation. The interests that supportedand demanded the use of benzoate of soda represented only a minority of the manufacturersof ketchup. Those who demanded the free use of sulphurous acid and sulphites wereconfined to the manufacturers of cane molasses and of dried fruits. Those who demandedthe use of saccharin were only a very small part of the interests engaged in thecanning and preserving of our foods. The people who were anxious to use alum, however,represented a great majority of baking-powders. Those manufacturers who made bakingpowder out of phosphates and tartrates were not so numerous and did not do so biga business as the makers of alum powders. The whole body of adulterators and misbrandersof our foods who were depressed by the results of the decision of the question ofwhat is whisky were restored to optimism and tremendous activity by the appointmentboth of the Board of Food and Drug Inspection and of the Remsen Board. By this time,however, public sentiment which had been so unanimously in favor of food and druglegislation was awakened to the danger which came from the betrayal of the causeof pure foods by these executive proclamations. The daily, weekly, and monthly pressof the United States were almost solidly opposed to these illegal activities of theexecutive officers in charge of the pure food and drugs legislation. Not a day passedwithout numerous attacks upon this laxity of administration appearing in all partsof the country.

   I will return to this condition of affairs lateron. The Secretary of Agriculture was perfectly acquainted with the incident justdescribed in regard to the origin of the Remsen Board. Nevertheless, in the followingstatements to the fruit growers of California he ascribed the origin of the RemsenBoard to a totally different cause. I quote from page 847 of the Moss Committee onExpenditures in the Department of Agriculture:

   I went out to the Pacific Coast, I think it was in 1907 to look at the forests which had just come to our department. Telegrams began to come all around me, and finally reached me that something was seriously the matter at San Francisco, and I wired back that I would be there at a certain day, and I went there. I found the mayor, the bankers, the business men and the farmers in a very great commotion. They wanted me to talk. I said, "I do not know what to say, I will listen; you talk, gentlemen." "Well," they said, "we have a $15,000,000 industry here in the growing and drying of fruits. These dried fruits are contracted for by the big eastern merchants. Our people borrow money from the banks, and when the fruit is sold everything is straightened out and things go on, but you people in Washington say we can only use 350 milligrams of sulphur to the kilo, and the eastern men who have contracted for our fruit will not make their contracts good; they are afraid it will not keep."

   After listening to these good people all day I said, "I see the condition you are in, gentlemen. I do not think the American Congress in making this law intended to stop your business. We have not learned quite enough in Washington to guide your business without destroying it; we will know better by and by, but I will tell you what to do. Just go on as you used to go on and I will not take any action to seize your goods or let them be seized or take any case into court until we know more about the number of milligrams to the kilo, and all of that. In the meanwhile I shall send a chemist from our Bureau of Chemistry out here, and I want to get the best chemist in your state at your State University at Berkeley, put the two together and try to get the facts," and we did that. They worked that summer; and before I think they completed all they would like to have done the Referee Board came * * * I think that about answers the question why the Board was created.

   When the chemists made their report, SecretaryWilson promptly refused to have it printed because they had found a harmless substitutefor sulphur fumes.

   The hearings accorded the users of saccharin,after the report on saccharin by the Referee Board had been published, developedthe following curious incident.

   The President selected the alleged discovererof saccharin as Chairman of the new committee to revise the findings of the Bureauof Chemistry. This committee entirely reversed President Roosevelt's decision thatbenzoate of soda was a harmful substance. They did not, however, agree with him entirelyin regard to the harmlessness of saccharin. In their report they permitted the useof a sufficient amount of saccharin to sweeten foods, but they were of the opinionthat if one consumed over 3/10th of a gram of saccharin at any one time it mightprove injurious and that also as a sweetener it was a fraud. The manufacturers ofsaccharin asked for and secured a hearing on this point. The hearing was held beforeSecretary Wilson and Secretary Nagel. Addressing the saccharin manufacturers, SecretaryWilson (Page 908, Moss Committee) made the following statement:

   I want to say frankly to you gentlemen that the Referee Board was organized and put in action for the very purpose of conserving the interests of the manufacturers, by insuring them a sane hearing, and, that being the case, it is the best the Government can do.

   To the users of burning sulphur he promised completeimmunity until the Remsen Board made its decision. In point of fact, that came onlyafter many years. It was never published by the Department of Agriculture. The indulgencehas continued for twenty-two years and bids fair to go on forever. Now to the makersof saccharin he says the Remsen Board was created to be sure manufacturers get a"sane hearing." The plain inference is that the hearing specified in theAct is not "sane."

   Of course Secretary Wilson was right in so franklystating the purpose for which the Referee Board was created. Manufacturers of adulteratedgoods were never shut out from a full and fair hearing. That was always availablebefore the Courts when they were cited to appear as violators of the law. The RefereeBoard was an effective buffer for all this class of manufacturers. It prevented afull and fair hearing of the case before a jury and a United States Court. It wasthe most baleful influence toward the degradation of the food supply of our countrythat ever existed. The Referee Board has passed away, but the evil effects of itsactivities will be felt for all time to come. Its decisions and its activities arestill regnant in the mal-administration of the pure-food law. The only hope of thefuture lies in the possibility of some day getting a Secretary of Agriculture whowith one stroke of his pen will erase forever from the records of the Departmentevery decision of the Referee Board and every regulation made in conformity therewith,and remove every administrative officer who willingly carries these decisions andregulations into effect.

SENSITIVE TO NEWSPAPERS AND MAGAZINES

   The officials, paid experts and aides of thelow-grade manufacturers realized very keenly their unpopularity as reflected in thenotices of their activities which appeared in the newspapers and magazines. Thissensibility caused Dr. Remsen at the end of his testimony before the Moss Committeeto express his feelings which have been recorded in another place. Prior to thishe was keenly sensitive to what the newspapers were saying about him and his Board.On Feb. 11th , 1910, in a letter to the Secretary of Agriculture, (Moss Committee,Page 366) he said:

   "A representative of our principal newspaper brought me yesterday an inflammatory article which had been sent by the Washington correspondent. The object of the article was to discount the reports of the Referee Board on the sulphur question. It was venomous and inflammatory to the last degree. It also took up the benzoate question with the object of showing how entirely unreliable the work of our Board had been. Our bombastic friend, C. A. L. Reed* of Cincinnati, was held up as a great and good man and a high authority. I presume this attack has been sent all over the country. I made some comments on it and the newspaper to which it was sent here declined to publish it. I have no doubt as to the source of that article. It was altogether the worst thing that I have seen."

*Eminent surgeon and Past-President of the American Medical Association. Diedin 1928.

   The curious thing about all this is that theSecretary of Agriculture and his aides, the Remsen Board and their followers werecontinually insinuating that there was some one in Washington who inspired all thesecriticisms of the Remsen Board. They were never bold enough to come out openly andsay who this person was. It is perfectly plain who was in their minds. The reportof Dr. Bigelow, who was the chemist sent to California, not by Secretary Wilson,but by myself, was refused publication when it was completed and has never yet seenthe light of day. Dr. Bigelow in this report showed how by dipping the freshly cutfruits in a weak solution of common salt and then drying them a product was producedequal in color to the sulphured article and far more palatable, wholesome, and desirablein every way.

   Large quantities of dried fruits made by thisprocess were shipped to Washington, submitted to dealers and pronounced a far superiorproduct in every way to the ordinary sulphured article. Also attention should herebe called to the fact that the meat inspection law specifically denies the use ofsulphur dioxide and sulphites in the preparation of meats on the ground that a preservativeof this kind is injurious to health. Its use had been discarded practically beforethe regulation forbidding it was made by reason of the scandal of embalmed beef whichstirred this country deeply during the Spanish War. In other words the use of anysulphur dioxide or sulphites in meat was an adulteration, but in dried fruits itwas necessary to prevent the destruction of the dried fruit business, in the eyesof the Secretary of Agriculture.

   Further questioning of the Secretary threw additionallight on this point:

   MR. FLOYD: You, personally, as Secretary, were made responsible,but President Roosevelt acted in harmony with you in establishing this referee board?

   SECRETARY WILSON: We have to obey the President of the UnitedStates when he indicates what he wants.

   MR. FLOYD, I understand. The President, sanctioned this board?

   SECRETARY WILSON: Oh, yes. He wrote to the presidents of thegreat universities and got them to recommend men, and when the men came that he wantedhe ordered me to appoint them, and I appointed them.

   MR. HIGGINS: Mr. Secretary, in your observation of the enforcementof this law, is it your opinion, based upon that observation, that it was a wisething to have a referee board?

   SECRETARY WILSON: It certainly was my judgment that we shouldhave a referee board.

   MR. HIGGINS: Is that confirmed by your experience with it?

   SECRETARY WILSON: I have no reason to conclude that it was notwise.

   MR. HIGGINS: Are you familiar with the character of the gentlemenwho make up that board and their scientific attainments?

   SECRETARY WILSON: By reputation only; I did not know them personally,any of them.

   MR. HIGGINS: Have you ever imposed any restrictions on themas to the methods of investigation?

   SECRETARY WILSON: No. I told them frankly when they began thatnobody had any business to interfere with them anywhere; that they were to find usthe facts with regard to what we submitted to them; and I did not impose any restrictionsand nobody else had any right to, unless it was the President, and I did not thinkhe would.

   MR. MAYS: Did you have any doubt in your mind as to the legalityof their appointment at the time?

   SECRETARY WILSON: Never.

   MR. FLOYD: Now, Mr. Secretary, how many of these great questionshave been submitted to the referee board?

   SECRETARY WILSON: I suppose I could count them on my fingers.

   MR. FLOYD: The chairman tells me that that is in the record.

   SECRETARY WILSON: Very likely it is in the record.

   MR. FLOYD: Now, under the pure-food law, as I understand it,Mr. Secretary, the work of the Bureau of Chemistry is preliminary to a prosecution?

   SECRETARY WILSON: Oh, surely.

   MR. FLOYD: And no prosecution can be instituted against anyonein a criminal procedure until the Bureau of Chemistry has made an adverse findingand you have so certified to the district attorney?

   SECRETARY WILSON: That is the way it is done.

   MR, FLOYD: Now, I am going to ask you a question that I wouldask other witnesses as to the effect of the decision of the referee board. In casethe Bureau of Chemistry should make a finding adverse to the use of a certain commodityon the ground that it was deleterious to health and that should be referred to thereferee board and the referee board should make a contrary decision, is there anyway, under the regulations, to your knowledge, that the question at issue betweenthe Bureau of Chemistry and the referee board could be taken into the courts andbe settled by the courts?

   SECRETARY WILSON: Of course, I can not state intelligently withregard to how a thing might get into the courts, but the department would enforcethe decision of the referee board. They would do that, I suppose

   MR. FLOYD (interposing) : If the decision of the referee boardwas adverse to that of the Bureau of Chemistry the effect of enforcing the decisionof the referee board would be to prevent the prosecution of anyone using that commodity?

   SECRETARY WILSON: Well, it would depend on--yes, I see yourpoint; yes, it would.

   The unanimous decision of the committee investigatingthe expenditures of the Department of Agriculture completely exonerated the accusedofficials and censured their accusers.

 

ATTORNEY-GENERAL WICKERSHAM
Who certified to President Taft that Dr. Wiley was worthy of "condign punishment."

 

   The activities of two Presidents, three cabinetofficers, and one Attorney-General in promoting the efforts to exclude the Bureauof Chemistry from any efficient steps looking to the enforcement of the Food andDrugs Act created a veritable storm of protest, as has already been indicated, inthe press of the country. This protest was voiced most effectively by the attitudeof The World's Work under the able editorship of Walter H. Page. In the issueof that magazine for September, 1911, the following editorial comment is found, underthe title, "The Fight on Dr. Wiley and the Pure Food Law."

   There is no better illustration of the difficulty of really effective government than the obstructions that have been put in the way of Dr. Wiley, the head of the Bureau of Chemistry at Washington. So long as the Pure Food and Drugs Act ran foul of only small violators, it was easy to enforce it; but, as soon as it hit the vested interests of the rich and strong, the most amazing series of successful. obstructions were put in the way--so amazing and so successful that the story will be told with some fullness in the succeeding numbers of this magazine.

   Here is a man--Dr. Harvey W. Wiley--who has given his whole working life to the protection of the people from bad and poisonous food and drugs. There is no more unselfish or devoted public servant. He has time and again declined offers of lucrative and honorable private work. He has lived and labored for this one purpose.

   It is to him that we owe the law and the agitation for its enforcement. It is to him that we owe the education of the public which has brought state laws and municipal ordinances for pure food and drugs. It is to him that we owe such an important advance in more careful living and such a quickening of the public conscience as we owe to hardly any other living man; and the whole people are his debtors. He is the direct cause of a wider and safer public knowledge and of more healthful habits of life.

   Still the Pure Food and Drugs Act is not yet enforced against the great offenders. Dr. Wiley has had his hands tied from the time of its enactment. The Board, whose duty it is to report violations of the law, consists of Dr. Wiley, Dr. Dunlap, a chemist, and Mr. McCabe, the solicitor of the Department of Agriculture. But out of the thousands of cases of adulteration and fraud that have been discovered, practically no cases against the strongest corporations and groups of law-breakers have been brought to trial. Dr. Wiley is a man of scientific distinction, of accuracy, and of responsibility. Yet his two associates on this board, men, to say the most for them, of far less ability and less distinction, have been permitted to check almost every move that he has made. The aged Secretary of Agriculture has given his confidence and his support to them and withdrawn it from Dr. Wiley.

   More than this--the Attorney-General, reversing an opinion prepared by one of his own subordinates and accepting an opinion by Mr. McCabe, declared that the referee board of distinguished chemists (the Remsen Board) was authorized by the law--a very dangerous and very doubtful construction of a plain statute; and this Board has been used to prevent the enforcement of the law against the use of benzoate of soda. This Remsen Board has never declared that benzoate of soda is a permissible preservative. It has never been asked whether it can be or is extensively used to preserve rotten food. It was asked only if it proved injurious to the health of strong young men when taken for a time in small quantities. They found that it did these young men no appreciable harm. Then this declaration was used to permit the canners and packers of rotten fruits and vegetables to continue to put them up in benzoate of soda. Even if benzoate of soda does no harm to health, its use in disguising rotten food brings it within the proper prohibition of the law.

   This incident is a good illustration of the way in which Dr. Wiley has been balked and hindered. Influences, legitimate and illegitimate, have been used to prevent the enforcement of the law in its most important applications.

   Inside the Government and outside, the manufacturers of dangerous and unwholesome food and drugs have carried on a continuous and effective campaign against Dr. Wiley and his work. He has been practically without power to put the law into effect against strong offenders. He has been humiliated by being overruled by his subordinates. He has suffered from an inefficient administration of the Department of which his bureau is a part; for the venerable Secretary of Agriculture is too old vigorously to administer his great Department. Yet Dr. Wiley, purely for patriotic reasons, has suffered this hindrance and humiliation till some change might come which should unshackle him.

   On the outside the bad food and drug interests--or some of them--have maintained a lobby in Washington, have kept "syndicate" newspaper writers in their pay to write about the unfairness and the injustice of the law and the unreasonableness and "crankiness" of Dr. Wiley. One such organization--or pretended organization--some time ago sent a threatening letter to all the most important periodicals, saying that large advertisers would withdraw their patronage if they published articles favorable to the law!

   There has been an organized fight, therefore, against the law and the man. And, although the man's official power has been curtailed, he has won--won such a victory for the people as will insure the continuance, with new vigor, of the campaign for pure food and drugs, by national law and by local laws.

   The "charge" against Dr. Wiley that provoked this popular outburst of approval, is not worth explaining. He made an arrangement to pay Dr. Rusby, a distinguished specialist, a higher rate for work per day than the law specified for per them payments, but less than the law permitted as a yearly salary. By this arrangement the services of Dr. Rusby to the Government were secured for less than if the letter of the law had been followed and he had been paid the yearly salary that the law specified--since he gave and was to give only a small part of his time to the work. This technical violation of the letter of the law--if it were a violation of its real meaning--has long been customary in many departments of the Government; for it has common sense and economy to commend it.

   When the Attorney-General wrote that this offence deserved "condign punishment,"--the Attorney-General--what shall be said of him with respect? Surely it was a narrow and silly recommendation. He put a greater value on a microscopic legal technicality than on the incalculable service of a man whose work is worth more to the health and happiness of the people than the work of many Presidents and Attorneys-General. Dr. Wiley's "offence" was instantly forgotten by the public, which has some common sense if not much legal knowledge. But the accusation was important for this reason: it showed the determination of those who brought it to get rid of him.

   Now, if Dr. Wiley deserves dismissal for any sufficient reason, it is proper and it is the duty of somebody to present such a reason. But to propose "condign punishment" for saving the public money by following a common custom of paying for professional service-that shows a personal and private purpose to be rid of him.

   The upshot of it all is that Dr. Wiley has been made a sort of popular hero. Now popular heroism has decided disadvantages and even dangers. It is fair to Dr. Wiley to say that he has not sought such a place on the stage. He has his vanities (who hasn't?) and the popular appreciation of his work is of course welcomed by him, as it ought to be. But mere personal popularity and a personal "fight" are likely to obscure the main matter at stake. The main matter is the Pure Food and Drugs Act--not only nor mainly Dr. Wiley and his personal vindication, but the firm and permanent establishment of this fact and purpose: that no opposition of interested law-breakers, no personal jealousies, no departmental feuds, no infirm and feeble administration of any Department, no narrow legal technicalities, shall longer hinder the execution of the law that guards the health of the people. This is of far greater importance than anybody's tenure of office or than anybody's official "face" or dignity.

   It has been made plain that the administration of the Agricultural Department is feeble. Feuds and cliques are not permitted to obstruct the laws in well-administered institutions. And it has again been made plain by the Attorney-General that this is a "legal" administration; and, again, that the President's amiable qualities lead him to patch-up and smooth-over troubles that become worse with every patching and smoothing and can then be removed only after public discussion and possible scandal. The incident ought and seems likely to bring big results in rallying public opinion to the support of the law and of its author and zealous and useful guardian. The investigation by the Congressional Committee that has the subject in hand will bring out facts that are likely to make the law far stronger than it has ever been.

 

:

Committee on Expenditures in the Department of Agriculture, 1911, investigatingcharges preferred against Dr. H. W. Wiley, Representative Ralph W. Moss, presiding.At the right of Mr. Moss are the three of the Democratic members of the Committee,namely, Hon. J.C. Floyd, Hon. R.L. Doughton, Hon. D.H. Mays; Henry E. Davis and Hon.W.P. Hepburn, attorneys for Dr. Wiley. On the left of Mr. Moss are the Hon. EdwinW. Higgins, Hon. Burton L. French, and the Hon. Charles H. Sloan, the stenographerand H.W. Wiley.

 

   The editor of The World's Work did nothave to wait long to know the conclusions reached by the committee investigatingthe expenses of the Department of Agriculture. The report was issued early in 1912.It was a complete vindication of the Bureau of Chemistry and a complete reversalof the penalties which the personnel board had inflicted, or tried to inflict onthe Chief of the Bureau and his assistants. Before the committee's report was published,however, the President of the United States, who had been asked to approve the dismissalof the Chief of the Bureau, wrote the following letter to the Secretary of Agriculture(Page 2 of the Report):

   "The truth is, the limitations upon the bureau chiefs and heads of departments to exact per diem compensation for the employment of experts in such cases as this is of doubtful legislative policy. Here is the pure-food act, which is of the highest importance to enforce and in respect to which the interests opposed to its enforcement are likely to have all the money at their command needed to secure the most effective expert evidence. The Government ought not to be at a disadvantage in this regard, and one can not withhold one's sympathy with an earnest effort on the part of Dr. Wiley to pay proper compensation and secure expert assistance in the enforcement of so important a statute, certainly in the beginning, when questions arising under it are of capital importance to the public."

   Other high lights of the report of the committeeare summarized below:

   "The committee on expenditures in the Department of Agriculture beg leave to submit the following report of the recent hearings commonly referred to as the "Wiley Investigation." This inquiry was instituted on information that an alleged conspiracy had been entered into between certain high officials of the Bureau of Chemistry and Dr. H. H. Rusby whereby Dr. Rusby was to be paid a compensation for his services at a higher rate than authorized by law. * * * In the discharge of its duties under the rules of the House, your committee made a patient and careful investigation of the whole controversy. * * * Your committee regards the "Wiley Investigation," so-called, only an incident in its broader inquiry into the organization and administrative routine of the Bureau of Chemistry and the Referee Board. * * * We failed to find from the evidence in the whole case that there existed any secret agreement or that the terms of compensation or rates to be paid Dr. Rusby were withheld from the Secretary designedly or otherwise. * * * We therefore find from the evidence adduced that the charges of conspiracy have not been established, but, on the contrary, that the accused officials were actuated throughout solely by desire to procure for the Bureau of Chemistry an efficient assistant in the person of Dr. H. H. Rusby under terms and conditions which those officials believed to be in entire accord with the law, regulations, and practice of the Department of Agriculture. * * *

   "The record shows that three members of the Referee Board were in attendance at the trial at Indianapolis, Indiana, in the capacity of witnesses at the instance and on behalf of the plaintiffs in the suit to which Curtice Brothers and Williams Brothers, who are interested in the sale of food stuffs to which soda benzoate has been added as a preservative, and that the expenses of these witnesses were paid by the Department of Agriculture. In the opinion of your committee the payment of these expenses by the Department of Agriculture was wholly without warrant of law. * * *

   "Your committee does not question the motives or the sincerity of the Secretary of Agriculture, whose long service as the head of the Department of Agriculture has been of signal service to the American people. From the beginning, however, the honorable Secretary has apparently assumed that his duties in the proper enforcement of the pure-food laws are judicial in character, whereas in fact they are wholly administrative and ministerial. This misconstruction of the law is fundamental and has resulted in a complex organization within the Department of Agriculture, in the creation of offices and boards to which have been given, through Executive order, power to overrule or annul the findings of the Bureau of Chemistry.

   "The statute created the Bureau of Chemistry as an agency to collect evidence of violations of the food and drug act and to submit this evidence duly verified to the Department of Justice for judicial action. The Secretary of Agriculture is the officer whose duty it is to transmit this evidence from the Bureau of Chemistry to the Department of Justice. Added to this simple duty is the more responsible obligation delegated to him by the three Secretaries to review the findings of the Bureau of Chemistry by granting a hearing to parties from whom samples were collected and in the light of these hearings, of deciding whether or not the findings of the bureau are free from error.

   "This construction of the law, which, in the opinion of your committee, is the correct one, places the judicial determination of all disputes in the courts, where the standard of purity in foods must finally be established. It also makes it the imperative duty of district attorneys to proceed against all violators of the law on receipt of certified record of cases prepared by the Bureau of Chemistry; but if we accept this construction of the law in its full meaning, it is apparent that at the time of the taking effect of this law the prompt prosecution of every infraction, whether of major or minor importance, was an impossibility, as such a course would have utterly congested the business of the courts. * * *

   "Thus the administration of the law began with a policy of negotiation and compromise between the Secretary and the purveyors of our national food supplies. * * *

   "The strength of the statute and the jurisdiction of the courts cannot be affected by the executive orders of the Secretary of Agriculture, though they be issued in obedience to the suggestion of the President of the United States.

   These respective duties of the Secretary and Bureau are enumerated separately in the statute and whatever other duties either may be charged with in the administration of the Act come by virtue of the rules and regulations established by the Secretary of Agriculture, the Secretary of the Treasury, and the Secretary of Commerce and Labor. * * *

   "The Act of Congress approved March 4, 1907, contains this provision, 'and hereafter the Secretary of Agriculture is hereby authorized to make such appointments, promotions, and changes in salaries, to be paid out of the lump sum of the several bureaus, divisions and offices of the Department as may be for the best interest of the service.' In view of these provisions of law your committee is of the opinion that there may be authority under the law for the creation and maintenance of such Board (Referee Board) to aid the Secretary in the discharge of any duty enjoined on him in his official capacity; but raises the question as to its legality on the sole ground that the determination of the general questions submitted by the Secretary to the Referee Board is not enjoined upon him under the law.

   "We have here presented the very crux of the controversy which has been waged over the terms of the pure-food law, and which, fortunately for your committee, has been recently discussed (by the Supreme Court) in a decision of the United States vs. Morgan, et al. * * * The weight of this decision clearly denies to the Department of Agriculture any judicial authority. * * * We have thus presented another weighty question to be considered in this connection as to the necessity, wisdom, or sound policy of maintaining such a board at a heavy expense to the Government when the work done by it is largely a duplication of work performed, or which might be performed by the Bureau of Chemistry. The functions of this board as at present constituted are purely advisory. Their decisions have no legal or binding effect upon any body. The Secretary can follow or ignore their recommendations as he sees fit. * * * The Honorable Secretary of Agriculture seems to have regarded the findings of this board as conclusive in all cases over the opinions and findings of the Bureau of Chemistry, the tribunal which by express terms of statute is vested with authority to determine the questions of adulteration and misbranding within the meaning of the act. In the practice of the Department, the Bureau of Chemistry has been restrained from examining any specimens of foods and drugs under any general subject which is submitted to the Referee Board during the time of examination of such questions by such Board; and if such general subject is submitted to the Referee Board before the Bureau of Chemistry has made any examination of specimens to determine the question of adulteration and misbranding, then the Bureau is not permitted by the Secretary to make any such examination until the Board shall have made its report.

   "It has resulted in another remarkable situation, namely, that under the practice of the Department the decisions of the Bureau of Chemistry, if in opposition to the findings and opinions of the Referee Board cannot be referred to the Courts and thus permit a judicial decision to be made as is comprehended under the plain provisions of the law. It would thus happen that if the Bureau of Chemistry were right and the Referee Board were in error that violations of the law would receive protection through the proposed enforcement of the law; because the effect of such a policy is to give this advisory Board, created by Executive order paramount authority over the Bureau of Chemistry and lodges in the personal advisers of the Secretary the power to annul the decisions of the Bureau within the Department of Agriculture which was created by law."

   These luminous opinions of the committee investigatingthe expenditures of the Department of Agriculture show that not a dollar of the moneyexpended by the Referee Board was legally expended. At the time this investigationtook place the total expenditures made by the Referee Board of the money appropriatedby Congress to enforce the Food and Drugs Act amounted to over $175,000. Every dollarof this money was expended in protecting and promoting violations of the law. Itseems strange in view of these findings which were approved by the House of Representativesthat no effort was made to impeach the Secretary of Agriculture and the Presidentof the United States who had thus perverted money appropriated for a particular useto activities totally repugnant to the purpose of the appropriation. The followingviolations of law were permitted and protected by this crime, namely, the use ofbenzoate of soda as a preservative of foods, the use of sulphur dioxide and sulphitesas bleaching agents and food preservatives, the use of saccharin as a sweetener infoods up to an amount not exceeding three-tenths of a gram, and the free and unrestricteduse of alum in food products. It is a striking comment also on the attitude of Congressand the people at large that no steps have ever been taken from 1911 to 1928 to correctthese outrages on the Americaia people and to attempt to restore the law to its powerand purpose as enacted. Administration after administration has come and gone andthese abuses still persist.

THE REFEREE BOARD ALREADY DECLARED ILLEGAL

   After considering all the evidence adduced overa period of six weeks the House committee on expenditures unanimously declared theReferee Board to be an illegal organization. It had a very good reason for doingso even before the evidence was considered. The matter had been decided by an assistantto Attorney-General Wickersham in a report from the Department of Justice dated March31, 1909. This was fully two years and more before the decision of the investigatingcommittee was rendered. This report of the Department of Justice was signed by J.A. Fowler, assistant to the Attorney-General. It is printed in full in the proceedingsof the committee, pages 205 and following. Attorney-General Fowler called attentionto the fact that at the time the committees of the House and the Senate met for finalconference on the food and drugs bill, the House bill contained a provision authorizingthe appointment of a committee of five experts to consider questions of deleteriousor injurious substances in foods, and to establish food standards. The Senate billdid not contain a provision of this kind but did contain a statement of the dutiesof the Bureau of Chemistry to perform these functions. The Senate conferees insistedon the elimination of the House provision for a special board and this was accededto by the conferees from the House. When the conference report was presented to thetwo houses Mr. Mann, manager for the House made the following statement in answerto a question by Mr. Pollard:

   MR. POLLARD: Was there any change made in the provision of theHouse bill wherein we provided that a board, of five inspectors should be selectedto pass upon the wholesomeness or deleteriousness of the foods?

   MR. MANN: That provision was in Section 9, directing the Secretaryof Agriculture to determine standards and the entire section goes out. As I statedin the House when the bill was before the House, it is the courts which must determinein the end as to the question of the wholesomeness or the deleteriousness of preservativesor of any article of food. * * * The Senate conferees were unalterably opposed tothat provision and as it was not an essential provision of the law we gave way onthat provision in order to save the rest of the bill practically intact as the Househad enacted it. (Record 59th Congress, First Session, Page 9738, Expenditures inthe Department of Agriculture, page 269.)

   MR. FOWLER: "This statute authorizes the prescribing ofsuch regulations as are consistent with law, and for the reason above stated I regardthe appointment of this Board of Referees as inconsistent with law.

   Senator McCumber also commented in the Senateon this same subject, as follows:

   "Now what have we eliminated from this bill? Senators will remember that the House measure provided for the fixing of standards and it called to the assistance of the Secretary of Agriculture certain experts who were to aid him in determining what the standards should be and also provided that the standards so established by them should be for the guidance of the court. The Senate has always contended that the power to fix standards should not be given to any man and the House conferees receded from that portion of the House amendment and it goes out."

   In spite of this clear intention of Congressthe Solicitor of the Department of Agriculture wrote an opinion to the effect thatthe appointment of the Referee Board was legal and this opinion was adopted by Attorney-GeneralWickersham as a choice between the opinion of the Solicitor of the Department ofAgriculture and the opinion of his own assistant in the Department of Justice.

   With the promulgation of the opinion of the Attorney-General,the effacement of the Bureau of Chemistry from any further participation in the enforcementof the food and drugs act was completed. Even the Board of Food and Drug Inspectionwas deprived of its office of confirming or overturning the decisions of the Bureauof Chemistry. Under General Order No. 140 the Solicitor of the Department was madethe sole arbiter of the recommendations which should go to the Secretary in regardto whether or not an article was misbranded or adulterated. General Order No. 140is found on page 10 of the report of the committee. The committee expressed the followingopinion thereon:

   "Under the terms of this order all the evidence in all cases examined in the Bureau of Chemistry, together with such summaries as the solicitor may prescribe is referred to the solicitor to determine whether or not a prima facie case has been made. * * * We are at a loss to understand what favorable results can come from the preparation of such summaries in the Bureau of Chemistry and their further study in the solicitor's office."

   The committee realized that this was the consummationof the plan of the solicitor. It totally disregarded the provisions of the food lawas to the methods of its execution. It placed the solicitor, not mentioned nor recognizedin the law, in the place of the Bureau of Chemistry as the sole arbiter of all processeslooking to the enforcement of the act. With this final blow at the vitality of thelaw its enforcement passed entirely into the hands of the enemies of the law. Thepublic which it was intended to protect was left without any redress. The resultwas a wild orgy of adulteration and misbranding, paid for by the money of tax-payersappropriated for the enforcement of the law. The members of the Referee Board becameexperts paid by the Government to protect the interests of adulterators and misbranders.Their eff orts in this direction were put into effect by the Solicitor of the Department.All the fruits gained by the victory in the enactment Of the legislation were thussacrificed by the direct negation of the law's demands. The fai-reaching effectsof this crime against law I have tried to set down in as small a space as possibleto do justice to the story.

UNCONTROLLED FOOD SUPPLY

   If an expert dietitian and physiologist shouldtake up for study a report on metabolism made by a scientific authority, he wouldexpect first of all that the composition and weight of food ingested should be accuratelystated. Without knowing the amount of intake, data respecting the outgo have no significance.In Bulletin 84, Part 4, Benzoate of Soda, containing the experimental data of theBureau of Chemistry, it will be noticed that careful analytical examinations weremade of all the foods ingested and the quantities of each kind of food for each subjectis accurately stated. The data in this investigation therefore obtained by the examinationand analyses of the feces and urine have a direct significance. In the experimentson the same subject conducted by the Referee Board no attempt was made to have completeanalyseg of the foods administered nor the quantities thereof eaten. It was all leftto the experimentees themselves. This is forcibly brought out by the statement ofDr. Chittenden on page 17 of Report No. 88 of the Referee Board. He says:

   First, the subjects were not restricted to a limited dietary, but on the contrary were allowed reasonable freedom of choice, both as to character and quantity of the daily food. 1n other words, there was no interference with the normal desires of the individual but each subject was allowed full latitude in the exercise of his personal likes and dislikes. To be sure each day a definite menu was arranged for all three meals, but this was sufficiently generous in character to admit of choice; further' after a short time sufficient knowledge was acquired of the special tastes of the subjects, so thdt a daily dietary could easily be provided quite satisfactory to all. By this method of procedure there was no violation of that physiological good sense so essential in experiments of this character.

   In the experiments of the Bureau of Chemistryno such latitude was permitted. In the fore period in each case sufficient quantitiesof the diet prescribed, which was a thoroughly wholesome and well-balanced one, wereused to establish an even daily weight of each one. This quantity was given to thesubject each day, during the experimental administration of the drug. If during theadministration of the benzoic acid the subject would not feel like eating his wholemeal, the amount he did not eat was weighed and deducted. This failure of appetite,if no other cause could be found for it, was an indication of the effects producedby the administered preservative. I suppose this method of procedure would be designatedby members of the Referee Board as "physiological" nonsense.

   The records printed in Report No. 88 indicatethe wildest riot in diet ever recorded in a physiological investigation. Enormousdifferences in the amount of food consumed are recorded in that report. In the evidencebefore the court in the Indiana case, page 33, this matter was brought to the attentionof Dr. Remsen in the following question:

   Now, Doctor, in order to conduct an examination of that. kind, an investigation that was of any very great value, oughtn't every article of food that was given to the subject to be analyzed, some part of it, so as to know what it contained?

   A. I suppose there are other ways of getting at that besides analyzing it. You can often form generally an opinion of the character of the food you are giving or examining without analyzing.

   Q. Are there not variations, for instance in breads?

   A. There are variations, undoubtedly.

   Q. And they are variations of wide extent, are they not, doctor?

   A. Well, wide--depends on the meaning of the word wide. That is a technical question that I should want to refer to the experts of this Board.

   Q. You would not be prepared to say what would be a normal range in the quantity of nitrogen that would be found?

   A. Not I, no. I could get the information very readily. One moment--my impression is that there were analyses of some foods made--very many.

   Some time in the remote future when all personalmatters have passed away and an expert chemist and physiologist calmly reviews thedata obtained by the Bureau of Chemistry and the data obtained by the Referee Boardon the same subject, they will show a comparison of values of the two investigationswhich I am quite content to leave to the judgment of the unbiased future.

   As has been clearly illustrated, the Remsen Boardwas appointed to protect manufacturing interests. The Chief of the Bureau of Chemistryunder his oath was trying to protect the neglected American consumer. One would havethought that in selecting five eminent scientific men that at least some one of themmight have revolted from the purpose to which he was assigned. The quotation fromClaude Bernard discloses most emphatically the proper psychological attitude of thetrue investigator when he undertakes his task.

PROFESSOR CARLSON ON THE REMSEN BOARD

   The Supreme Court has ruled that the user ofa deleterious product in foods must justify that use. Prof. A. J. Carlson* sees ascientific reason therefor:--

   Modern chemistry has opened up another avenue of poisoning the human system through the field of food preservatives and food substitutes. We have the problem of the harmfulness or the harmlessness of the various baking powders, of benzoic acid as a permissible food preservative, of saccharin as a substitute for sugar, etc. Many of the experiments purporting to prove the permissibility or harmlessness of the substance or preservative, even those carried out by competent scientists, seem to me wholly inadequate. I have in mind, as an example, the experiments and finding of the Remsen Consulting Board, on the question of saccharin in foods. Under the direction of this board, composed of leading biochemists and chemists, varying quantities of saccharin were fed to a small number of healthy young men, daily, for periods up to nine months. The board concluded that the daily ingestion of this food substitute below a certain quantity (0.3 gram per day) is without injurious effects; above this saccharin produces injury. This conclusion became guide to federal legislation and regulation. Was the above conclusion warranted by the experiments performed? We think not. All the experiments proved was that the substance (saccharin) when taken by healthy young men over this period did not produce any injury that the commission could detect by the tests used. Society is composed of individuals other than healthy young men, and nine months is a short period in the span of human life. There are many deviations of physiological processes that can not be detected by body weight, food intake, or the chemical examination of the urine. Most of the organs in the body can be injured a great deal before we become actually sick. It would seem a safer principle for governments and society to insist that the burden of proof of harmlessness falls on the manufacturer or the introducer of the new food substitutes rather than on society, and the test of the harmfulness or harmlessness should involve all phyidological processes of man.

*Prof. A. J. Carlson, Science, April 6, 1928, page 358.

POLITICS AND PURE FOOD

   One of the most remarkable episodes in the activitiesof the Remsen Board was in connection with the Convention of State, Dairy and FoodOfficials in their annual meeting in Denver, in 1909. The previous meeting of thisofficial body was held at Mackinac Island in 1908. At this meeting vigorous protestsagainst the mutilation of the food law by the creation of the Remsen Board were voicedin the resolutions adopted by the convention. These resolutions reflected severelyupon the attitude of the Secretary of Agriculture and other officials of the Departmentin accepting the decisions of this Board which were held to be contrary to law. TheSecretary of Agriculture was indignant at this feature of the meeting in 1908. Itis evident that he did not want a repetition of it to occur in 1909. Previous tothe date of the meeting George P. MeCabe, Solicitor, made an official trip to theCentral West, which, according to the testimony given, was for the purpose of interviewingprospective delegates to Denver and urging them to vote to support the policies ofthe Department of Agriculture. As related in the testimony in the Moss Committeeon the expenditures of the Department of Agriculture, Mr. McCabe was somewhat hazyas to the purposes of this trip and as to exactly when it was made. Only two yearshad passed, but they seemed to have had a remarkable effect upon his memory. Underthe urgent questioning of members of the Committee and in a burst of loyalty to hischief he finally told the whole story.

   To strengthen still further the administrationlines in the forthcoming convention, the Secretary of Agriculture requested the membersof the Referee Board also to attend this convention. In addition to this urgent requestof the Secretary, the President of the forthcoming convention, the Hon. J. Q. Emery,Food and Drug Commissioner of Wisconsin, invited the members of the Referee Boardto attend the convention and justify, if they could, the conclusions already reachedin the benzoate of soda question. It was particularly desirable, also, to hear theiropinions on the saccharin question, inasmuch as that was the chief motive of theappointment of the Remsen Board. The attitude of Dr. Remsen, the Chairman of thatBoard, and the part played by it in the Denver convention are luminously set forthin the testimony of the Moss committee which follows. The memory of Mr. McCabe, asI have said, was somewhat short, andthis seemed to be the case with the memory ofDr. Dunlap. He was specially sent by the Secretary of Agriculture to acquaint Dr.Remsen with his plans for controlling the Denver convention. Dr. Dunlap's memoryin regard to the plan which he discussed with Dr. Remsen was quite as hazy as wasMr. McCabe's memory in regard to his trip to interview the delegates to the Denverconvention. One of the most striking features in connection with this event was thefact that special commissions were issued to the members of the Remsen Board to covertheir expenses in connection with this trip. It was shown by the questioning of thecommittee that there was cloubt as to the legality of these expenses under the generalproclamation establishing the Remsen Board. That no question might arise with thedisbursing officers, this special dispensation was given. The reading of the testimonywill be sufficient to illustrate the other points in regard to the appearance ofthe Remsen Board at Denver. Following this are quotations from the Denver press atthe time the meeting was in session. The pages of the testimony are given in eachselection.

 

HON. J. Q. EMERY

 

EXCERPTS FROM TESTIMONY BEFORE MOSS COMMITTEE

Dr. Remsen's Testimony

   Page 257.

   MR. FLOYD: What is saccharin, Doctor?

   DR. REMSEN: I can explain that if you want a scientific lecture.I happen to be the discoverer of that substance. I could not explain it in a fewwords very well.

   MR. FLOYD: Did you say you were the inventor of saccharin?

   DR. REMSEN: No; I would not say I was the inventor. The substancewas discovered in the laboratory under my direction in an investigation carried outway back, over 30 years ago. A young man was associated with me in the work, andhis name is generally connected with "saccharin." That man is Mr. Fahlberg.

   MR. FLOYD: Is it a patent?

   DR. REMSEN: He patented it. I did not. Incidentally he madea good deal of money out of it. I did not.

   MR. FLOYD: For what reason, if to your knowledge, was saccharinreferred to your board for investigation?

   DR. REMSEN: I have no idea why it was referred except the generalidea that in every case it was desired to know whether the substance mentioned inthe reference is or is not harmful That is the main point.

   MR. FLOYD: When used in food?

   DR. REMSEN: When used in food; yes.

   MR. FLOYD: Is saccharin a food within itself or is it a preservativeused in foods? I do not want you to go into a long scientific explanation, of course.

   DR. REMSEN: It is not a food; it is to a slight extent a preservative.But the purpose for which it is used is as a sweetening agent. It is about 500 timessweeter than ordinary sugar and can be made at a rate which renders sweetness perunit very much cheaper than ordinary sugar.

   MR. MAYS: Is it harmful?

   DR. REMSEN: That was the question.

   MR. MAYS: And have you decided it?

   DR. REMSEN: Yes; we have made our report.

   MR. FLOYD: Their opinion is printed in the record.

   DR. REMSEN: I may say also that it is used as a medicine indiabetes. I believe it is very useful in that disease, as diabetic patients cannottake sugar, but can take saccharin and thrive under it.

   MR. FLOYD: Do you know whether any members of the board selectedby you previous to their appointment had taken any special interest in or expressedany opinion of chemical preservatives of food?

   DR. REMSEN: I can not answer that question fully, but I cangive an answer to the best of my knowledge. They had all been interested in the generalproblem of the use of preservatives. Two of them--possibly only one; I know Dr. Chittendenwas interested in the effect of saltpeter on meat and was engaged in an investigationon that subject until quite recently. He also, I believe, although I am not sureabout that--I have seen this in the newspapers and have not followed it in detailotherwise--was interested at one time in the investigation of the effects of borax*or boracic acid as a preservative. I think Dr. Long was on that same committee thatinvestigated saltpeter. I am not sure.

*Dr. Chittenden appeared before a legislative committee and declared borax a harmlesspreservative.

   MR. FLOYD: Did you attend the convention of State and Nationaldairy and food departments at Denver, in 1909?

   DR. REMSEN: Yes, sir; on the way back from California I stoppedthere.

   Page 262-263.

   MR. FLOYD: Did you attend on your own volition, or were youdirected by the department to attend?

   DR. REMSEN: I was not directed; I was requested.

   MR. FLOYD: You were requested to attend?

   DR. REMSEN: Yes.

   MR. FLOYD: How long did you remain at Denver during that convention?

   DR. REMSEN: Two or three days; I am not sure just exactly howlong.

   MR. FLOYD: What was the purpose of that convention, and whatwere the questions discussed there? Did they relate to pure foods?

   DR. REMSEN: Well, I do not know much about the association.I do know that I was asked by the president of the association to give an addresson the subject of the work of the referee board, I think, or, at least it had referenceto the benzoate question, and after finding I could stop there conveniently on theway from California and that the other members of the board could do the same, Iaccepted the invitation. The association discussed all sorts of questions pertainingto things of which I have no knowledge, but I do know that they took up this benzoatequestion in rather an active way, and I suppose it was felt by the Secretary thatit was desirable to have some one there to explain what it all meant. They seemedto be going on the wrong track, so far as we could gather. They got some wrong impressionsof the thing and the nature of the work, or what we were appointed for, or what wewere doing, and it did seem wise not to let them go too far that way without someexplanation from us, which we gave in a dignifled way, I think I can safely say.

   MR. FLOYD: And the expenses of yourself and the other membersof the board for this trip to California and this trip to the convention in Denverwere paid by the department?

   DR. REMSEN: Yes. Of course, the trip to the convention amountedto very little. That was simply stopping over.

   MR. FLOYD: You state that you addressed the convention yourself.Did any of the other members of the board address the convention, and if so, who?

   DR. REMSEN: Dr. Chittenden, Dr. Long and Dr. Herter all addressedthe convention, at the request of the president of the association, Mr. Emery.

   MR. FLOYD: I will ask you to state if in the address you madebefore the convention on the question of benzoate of soda you made a defense of theuse of benzoate of soda?

   DR. REMSEN: No, sir.

   MR. FLOYD: You just discussed the findings?

   DR.. REMSEN: I discussed the general method of procedure whichwe had followed. I have nothing to do with the use of benzoate of soda. We were notasked to decide whether it was,a good thing to use or not, and we have never expressedourselves upon that point.

   THE CHAIRMAN: Your expenses at Denver were also paid by theDepartment of Agriculture?

   DR. REMSEN: We went, as I said yesterday, to California foran important purpose, looking into the sulphuring process, and on our way back westopped there. We did make a little effort to time our trip back so that we couldattend the meeting, because we had been asked to give addresses. We were asked bythe president of the association. We stayed there possibly three days. I am not surewhether it was two or three, but not more than three. The slight expense of the boardduring that period in the way of traveling expenses was paid by the--

   THE CHAIRMAN (interposing): You gave an address there?

   DR. REMSEN: Yes.

   THE CHAIRMAN: And the purpose of that address was to explainand defend the report you had made to the Secretary of Agriculture?

   DR. REMSEN: I did not defend the work. I didn't think that wasmy business. The report had been made. But I did do this: I explained, somewhat asI have explained to this committee, how the board came into existence, and very littleelse. I don't think that the address was ever published. Then, I may say, that afterthat the work of the board was attacked very violently by Dr. Reed, of Cincinnati,which was most astonishing to me. After that attack I felt it my duty to respond,which I did in measured manner, and I didn't say anything I would not repeat. I willadd that to what I said yesterday, because I made really two addresses there. Theother members of the board I think did not answer the attack. I think they were satisfiedwith my answer.

   THE CHAIRMAN: In making either one of those addresses did yougo beyond the official work of your board and defend the use of benzoate of sodaas a preservative of food?

   DR. REMSEN: No, Sir.

   Dr. Reed's address was solely in the interestof public health. The criticism he made of the Remsen Board was for its open supportof adding benzoate of soda and saccharin to foods. If it was "violent"it was because of Dr. Reed's indignation that a law passed, as the Supreme Courthas said, for the protection of public health, was so flagrantly flouted by the RemsenBoard in the two cases then decided, namely, benzoate of soda and saccharin.

 

DR. C. A. L. REED
Who led the fight against the Remsen Board at the Denver Convention

 

DR. REMSEN'S AVERSION TO NEWSPAPERS

   Page 292-293.

   MR. HIGGINS: Did you desire to make any other statement thathas not been covered by the questions that have been asked?

   DR. REMSEN: There is just one point that I should like to referto, that has not been brought out in the examination. This board has been aware forsome time that there is some influence at work to undermine it and discredit it.We do not pretend to know and have not discovered what the source of that influenceis; but it is perfectly clear that that influence is at work.

   MR. HIGGIN: How does it manifest itself?

   DR. REMSEN: Newspaper articles. So far as I know the newspapersalmost without exception are opposed to the Remsen Board. Why, I am sure I don'tknow. The Remsen Board is an innocent board and does not quite like to be consideredguilty before it has been tried, at all events. I have noticed that within the lastmonth nearly every reference to the Remsen Board that has appeared in the papershas put the board in a bad light, and anybody reading those articles day after daywould get the impression that Remsen and his whole tribe ought to disappear fromthe face of the earth. Sometimes friends of mine come up to me with long faces andsay, "Remsen, it is too bad about this matter." I say, "What's thematter?" They say, "Haven't you seen that article about your board?"I say, "Oh, no, and don't show it to me; I have seen enough." Now, thosearticles would not appear day after day, at least I can not imagine they would appear,without there being some influence at work to inspire them. I merely make this statementto show my state of mind. I am getting, as I have confessed, somewhat thicker skinned,and I rather rejoice that I have been through this experience because I think onthe whole a thick skin is worth something.

   The attack upon the Remsen Board by the publicpress was nation-wide. The only people who were pleased with it, aside from the highofficials of the Government, were the adulterators and misbranders of our foods.At the hotel in Denver I saw a most remarkable phenomenon. There was gathered atDanver a strong lobby of the supporters of the Remsen Board. At the head of thislobby, which apparently numbered 100 at least, was Warwick M. Hough, chief attorneyfor the rectifiers. There seemed to be little enthusiasm among the people of Denverfor the Secretary of Agriculture, his solicitor, and the members of the Remsen Board.There was, however, tremendous enthusiasm of the lobby above referred to for allof these individuals. After adjournment of the afternoon session I saw this lobbygathered around the members. of the Remsen Board and Warwick M. Hough's arm was lovinglyencircling the shoulders of Dr. Ira M. Remsen, eminent chemist and president of JohnsHopkins University, and according to his own statement, discoverer of saccharin.Although each member of the Remsen Board was personally known to me except Dr. AlonzoTaylor and Dr. C. A. Herter, not one of them spoke to me during the three or fourdays they were in Denver except Dr. Herter. He came up and introduced himself tome and attempted to make some apology for his part in the activities of the RemsenBoard. He realized very keenly the condition they were in, in espousing the causeof adulteration, becoming the paid agents of the adulterators, and incurring theuniversal condemnation of the press and the people of the country. Dr. Herter wasthen a very sick man. In a few months from that date he died. I have often wonderedwith what misgivings he approached his end and what feelings the other members ofthe Board must have had when they realized the universal condemnation which was heapedupon them. I doubt if any reference is ever made in the biographies of these men,as they pass away one by one and their deeds while living are recorded, to the servicethey rendered their country as members of this Board.

   Page 293-294.

   THE CHAIRMAN: Might not the fact that you gave certain testimonyand the fact that you appeared at the Denver convention making speeches there beat the bottom of some of this influence that you are speaking about as being inimicalto the Remsen Board?

   DR. REMSEN: I am sure I don't know, but I can say that it wasfound that the influence, whatever it was, was at work long before the Denver meeting.

   THE CHAIRMAN: When the Remsen Board was appointed of courseno one expected that it was going to do anything more than give advice to the Secretaryof Agriculture in his official duties, and yet, according to your testimony, theDepartment of Agriculture has suggested to different members to appear in court andgive testimony, has paid their expenses at that trial, when the effect would be toaffect the decision of the courts in the State of Indiana.

   DR. REMSEN: Well, it might affect the decision of the courtin so far as it would enable them better to get at the truth, which I suppose wasthe object of the court.

   THE CHAIRMAN: That may be the object of the court, but it surelywas not the object of the creation of this referee board, was it?

   DR. REMSEN: Of course the referee board was never defined exactly--exactlywhat it should do.

   THE CHAIRMAN: Well, let us define it. Do you understand it nowto be part of the purpose of the referee board to in fluence the decisions of thecourts of this country?

   DR. REMSEN: Why, no; in no sense, except--

   MR. HIGGINS: Except so far as the truth is concerned?

   DR. REMSEN: Except so far as the truth is concerned by tellingthe facts, and if I am asked to do so I should do so, so far as it would influencethe action of the court I should think it would be proper for the board to do so.

   THE CHAIRMAN: However, I believe you admit that your officialreport is not evidence?

   DR. REMSEN: Yes, sir.

   THE CHAIRMAN: And it is voluntary with you whether you shouldappear and give this testimony?

   DR. REMSEN: I think I could have been subpoenaed. I am not sure.

   THE CHAIRMAN: And you referred the matter to your superior andit was upon his advice that you gave this testimony?

   DR. REMSEN: Yes.

   THE CHAIRMAN: That is the point I wanted to get at, and thatyou advised Dr. Chittenden also to give his testimony?

   DR. REMSEN: Yes; I did the second time.

   THE CHAIRMAN: Yes; and that Dr. Chittenden's expenew were paidby the Department of Agriculture?

   DR. REMSEN: I believe so. I am not entirely clear about that.

   MR. HIGGINS: And the Indiana courts had the benefit of the decisionwhich your board had reached as the result of its scientific investigations as tothe effect of benzoate of soda?

   DR. REMSEN: That was the effect of our appearance, that is all.We did not argue the case, of course.

   Page 858.

   To Secretary Wilson:

   THE CHAIRMAN: You are speaking there about the Board of Foodand Drug Inspection; you are referring to some advice to be given to Dr. Taylor aboutsome testimony to be given at Indianapolis, Ind., and you state there: "I shallconsult with our people on the Board of Food and Drug Inspection (that is, Dunlapand McCabe)." What meaning do you attach to that language--if you dare to attachany?

   SECRETARY WILSON: There is no hesitation in my mind in tellingyou all that was in my mind there.

   THE CHARMAN: I recognize the fact that you need not answer unlessyou wish.

   SECRETARY WILSON: Oh, I am going to answer it, My answer isthis: You are pretty well aware that there was friction between those men, there.You have got that pretty much every bit in your testimony. It would have been aninsult to Dr. Wiley to have consulted him in regard to anything concerning benzoateof soda.

   THE CHAIRMAN: Why?

   SECRETARY WILSON: Because he despised it, and everything connectedwith it, and believed that a big mistake had been made, and a big mistake had beenmade by ever getting the Referee Board; that is why. I do not gratuitously offerinsults to any of my people.

 

INVESTIGATIONS OF THE BUREAU OF CHEMISTRY
REFUSED PUBLICATION BY SECRETARY WILSON

   Page 868-869.

   THE CHAIRMAN: I understand also, Mr. Secretary, that you havereferred the report of the Bureau of Chemistry on the copper question to the RefereeBoard without publication?

   SECRETARY WILSON: Oh, yes; I remember now. I had two bureausconsidering the sulphate of copper, and there was a man in the Plant Industry namedWoods who had done a most remarkable lot of work with sulphate of copper. He foundby taking a little bag of sulphate of copper and going into a large reservoir thathad green scum over it, if he would sail around for an hour and drag that bag afterhim he would kill every single particle of that green scum there; and he went toa number of States in the country, and he went to Panama and cleaned up every oneof the reservoirs they had. He and the doctor did not come within gunshot of agreeingon sulphate of copper. In a case of that kind, Mr. Chairman, one must go slow whenthey have two scientists in two different lines and they do not quite agree. It isnot best to bring any arbitrary rulings in there, but wait and see if we can notget more light.

   THE CHAIRMAN: It is a matter of fact, however, the Bureau ofChemistry did make a report upon copper, and it has not been published?

   SECRETARY WILSON: Yes; and that is the reason, Mr. Chairman;that is the reason.

   THE CHAIRMAN: Mr. Secretary, will you be willing to have preparedand inserted in the record at this point a complete list of the investigations ofthe Bureau of Chemistry which you have refused or have failed for any reason to havepublished?

   SECRETARY WILSON: I could do that; yes; I could do that.

   (Manuscripts relating to subjects involved in the enforcementof the food and drugs act, approved June 30, 1906, submitted for publication by theBureau of Chemistry, but not published:)

   Corn Sirup as a Synonym for Glucose. Submitted as Food InspectionDecision 83, November, 1907.

   Investigations of a Substitute (weak brine) for Sulphur Dioxidein Drying Fruits, by W. D. Bigelow.

   Sanitary Conditions of Canneries, Based on the Results of Inspection.By A. W. Bitting, February, 1908.

   Influence of Food Preservatives and Artificial Colors on Digestionand Health:

   The Bleaching of Flour. By H. W. Wiley, February, 1909.

   Influence of Food Preservatives and Artificial Colors on Digestionand Health:

   Medicated Soft Drinks. By L. F. Kebler and others. July, 1909.

   Drug Legislation in the United States:

   Food Legislation During the Year Ended June 30, 1909. January,1910.

   Estimation of Glycerin in Meat Preparations. By C. R Cook. March,1910.

   Technical Drug Studies. By L. F. Kebler and others. April, 1910.

   Experiments on the Spoilage of Tomato Ketchup. By A. W. Bitting.January, 1911.

   The Influence of Environment on the Sugar Content of Cantaloupes.By M. N. Straughn and C. G. Church. May, 1911.

   A Bacteriological Study of Eggs in the Shell and of Frozen andDesiccated Eggs. By G. W. Stiles. May, 1911.

   The Arsenic Content of Shellac. June, 1911.

   THE CHAIRMAN: Is it the policy of the Department of Agriture,Mr. Secretary, to suppress or refuse publication of the reports which the Bureauof Chemistry may make to you on any questions which are referred to the Referee Board,until, after the board has made its final report?

   SECRETARY WILSON: I may have done that. I think probably thereis justification for having anything which treats with benzoate of soda handled inthat way. I believe that is the question, is it? Benzoate of soda is a question thatwas referred to the Referee Board. I think I would not favor printing anything inthe department until we heard from them.

   THE CHAIRMAN: As a matter of fact, whether the findings of theReferee Board govern your action, or whether the findings of the Bureau of Chemistrygovern your action, is a question which you yourself decide within your own diseretion,is it not?

   SECRETARY WILSON: Surely. You have to have a secretary therewho must decide.

   THE CHAIRMAN: In other words, the decisions of the Referee Boardhave no value whatever until approved by you? I am speaking now legally, and as toits influence upon the administration of the pure food law.

   Page 865-866.

   THE CHAIRMAN: It is true, is it not, Mr. Secretary, that moneywhich you allot to the Referee Board is drawn from money appropriated for the Bureauof Chemistry, and that this allotment is anticipated in the estimates which you make?

   SECRETARY WILSON: Yes; anticipated and understood by the Committeeon Agriculture when they appropriate the money.

   THE CHAIRMAN: And for that reason you do not consult with thechief of bureau in regard to making that particular allotment? Is that true?

   SECRETARY WILSON: The chiefs of the bureaus are always consulted.Dr. Wiley, the chief of that bureau, is a little touchy on anything of that kind,and one has to bethink himself quite often about getting along smoothly in this world,you know.

   THE CHAIRMAN: Has Dr. Wiley ever recommended that any moneybe allotted to the Referee Board from the appropriation under his department?

   SECRETARY WILSON: I think I would not want to hurt his feelingsby ever mentioning it at all.

   We had a referee board, and I think a pretty expensive refereeboard, you will confess. We had gone after big men, and it was costing a good dealof money, and those people met there at Mackinac Island and got themselves outsideof sympathy with the department along those lines, attacked me personally, misrepresentedthings, and I thought the amount of effort the United States was making and the amountof money it was expending to get facts from the greatest chemists in the land madeit worthwhile for us to get those big men there before that class of men and letthem see them and let them hear them. I did not think they comprehended the differencethere was between a small chemist and a big one. That was the one thing in my mind.They were in California studying the drying of foods with sulphur, and the arrangementwas that they should stop over at Denver on the way back. I was going to the forests,and I arranged and it was my plan to stop there on my way to the forests. I wentinto the forests from Denver and stayed a month. Those were the plans. There is nothingI care to conceal here, noththing. Those were the plans and we talked them over,and everyone of them addressed that convention, everyone of them, and I think thosepeople got new light from those men.

   THE CHAIRMAN: I wish to refer to you page 338 of the hearingsof August 3, to correspondence between yourself and Dr. Remsen. Dr. Remsen says,in this letter: "It is clear from the newspaper reports that there is 'perniciousactivity' somewhere." In your reply you say: "The pernicious activity youspeak of is quite evident." Will you kindly tell the committee what you referredto as "pernicious activity"?

   SECRETARY WILSON: Yes. The activity of people attacking thatRemsen Board. That is just what it was.

   THE CHAIRMAN: It was correspondence between you and the chairmanof the board. Of course, if this "pernicious activity" is without the Departmentof Agriculture it would not be proper for us to go into it. But if it is within theDepartment of Agriculture, it would seem to me proper for us to know what you referredto as "pernicious activity."

   SECRETARY WILSON: If you have been watching the public pressyou have discovered that there has been a good deal of criticism. If you have beenwatching the proceedings of Congress you will no doubt have seen there has been adesperate effort made there for the purpose of destroying the Remsen Board, and thingsof that kind. That is what I had reference to.

   THE CHAIRMAN: In your letter of April 19, 1909, you say further:"Things will come to a head before a great while, I think, along this line."Would you care to explain what that means?

   SECRETARY WILSON: I thought the work of that board, as it wasbeing done and reported, would settle all those questions.

   THE CHAIRMAN: Do you consider, or did you consider at the time,that the attendance of members of the Remsen Board and Solicitor McCabe at this Denverconvention, which we were speaking about heretofore, was in line with their officialduties?

   SECRETARY WILSON: Yes; it was a kind of public trial we werehaving, really, of the Remsen Board.

   THE CHAIRMAN: Their attendance being in the line of their officialduty, will you explain why you issued to each one of them a special authorizationfor traveling expenses to attend this particular convention, when each one of themhad an annual authorization for travel anywhere in the United States upon officialbusiness?

   SECRETARY WILSON: If you have evidence of that special authorization,you had better call my attention to it.

   THE CHAIRMAN: Very well, I will be glad to do that.

   (Reads letter from Secretary Wilson to Dr. Remsen, dated August6, 1909, wherein it is stated that authorization No. 1163 is amended so as to permitDr. Remsen and his assistants to attend the Denver convention.)

   SECRETARY WILSON: I guess that is correct. What do you wantto know about it?

   THE CHAIRMAN: I want to know, if this attendance was in linewith their official duties, as stated here, why it was necessary they should havespecial authorization when they had a regular authorization?

   SECRETARY WILSON: I 'Presume they had some doubts about stoppingoff at Denver being in their original authorization. If they had, then I gave themall the authorization they would need.

   THE CHAIRMAN: If there were any doubt it would be doubt as towhether or not that came within their official duties?

   SECRETARY WILSON: Precisely.

   THE CHAIRMAN: Do you hold that you have executive authorityto add to the official duties of the Remsen Board other than that prescribed in theorder creating them?

   SECRETARY WILSON: To this extent, yes.

   THE CHAIRMAN: To that extent you have?

   SECRETARY WILSON: Yes.

   One of the most detestable features of the persecutionof those delegates to the Denver Convention of 1909 who opposed the decision of theRemsen Board was the dismissal of Floyd Robison. This action was investigated bythe Moss Committee. Mr. Robison was one of a group of state chemists who were occasionallyrequested to cooperate with the officials of the Bureau of Chemistry in enforcingthe Food Law. (Pages 522-524.)

 

MR. FLOYD ROBISON

   MR. Moss: Were there any charges filed against you?

   DR. ROBISON: None.

   MR. Moss: Have you the letter of dismissal with you?

   DR. ROBISON: I have.

   MR. Moss: Please read it to the committee.

   (I will quote only last line of this letter.)

   DR. ROBISON (reading): "He is removed from the departmentfor the good of the service. James Wilson, Secretary of Agriculture."

   Dr. Robison appealed to the Secretary of Agriculturefor reasons which led to such drastic action. The Secretary, in his reply, underdate of July 25, 1911, says:

   "* * * At the meeting of the Association of State and National Food and Dairy Departments at Denver, in July, 1909, you attracted attention by taking a strong and public position against the policies of the department and of the administration. You appeared in the Federal court in Indianapolis in opposition to the policies of the administration with regard to the reports of the Referee Board on benzoate of soda and the report of the three secretaries with regard to it. * * * I have approved your dismissal for the good of the service. There are no charges against you; we make none. I recognize the fact that you have a perfect right to occupy any position you see fit. with regard to the policies of the administration or of the department, but I do not think you should draw salary while you are taking this stand."

   Question by MR. MOSS: Were you a delegate to the Denver convention?

   DR. ROBISON: I was.

   MR. MOSS: Whom did you represent?

   DR. ROBISON: The State of Michigan.

   MR. MOSS: Who paid your expenses for attending that convention?

   DR. ROBISON: The State of Michigan.

   MR. MOSS: Were you drawing any salary from the Government atthat time?

   DR. ROBISON: I was not.

   MR. MOSS: Did you draw any money, either directly or in. directly,from the National Government for your attendance at the convention or for your expenses?

   DR. ROBISON: I did not.

   MR. MOSS: What position did you hold at the Denver convention?

   DR. ROBISON: I held the position of chairman of the committeeof eleven State food chemists appointed by the president of the Association of Stateand National Food and Dairy Departments.

   MR. MOSS: Did you make any report?

   DR. ROBISON: As chairman of the committee, I did.

   MR. MOSS: Will you read into the record that report?

   DR. ROBISON: I will read the final recommendation:

   "'Your committee therefore respectfully suggests to this association the wisdom of asking the President of the United States and the honorable Secretary of Agriculture to institute investigations along some such broader lines as indicated above."

   MR. MOSS: Did you make any address to the Denver conventionin which you referred to the Remsen Board one way or the other?

   DR. ROBISON: I did not.

   MR. MOSS: Did you receive any information from Secretary Wilsonor any person representing him as to the policy of the Department of Agriculture?

   DR. ROBISON: I received none.

   MR. MOSS: Did you make any address to the convention advocatingor opposing the use of benzoate of soda?

   DR. ROBISON: I did not.

   MR. MOSS: In your capacity as delegate did you cast a vote forpresident of that association?

   DR. ROBISON: I did. I voted for Mr. Bird, the commissioner ofthe State of Michigan.

   MR. MOSS: Did Mr. Bird receive the support of the Departmentof Agriculture?

   DR. ROBISON: He did not.

   MR. MOSS: So far as you know, then, did you appear in oppositionto the Department of Agriculture in any other manner except casting your personalvote for the president of the association?

   DR. ROBISON: I did not.

   MR. MOSS: At whose request did you appear at Indianapolis togive testimony at that trial?

   DR. ROBISON: At the request of the Board of Health of the Stateof Indiana.

   MR. MOSS: Were you paid any fee?

   DR. ROBISON: I received no fee.

   MR. MOSS: In your testimony, did you give your original workas a chemist?

   DR. ROBISON: I testified according to the truth as, I understoodit to be and had found it from my own investigations, and according to my oath, andwithout any regard in any capacity to any other policy.

   MR. MOSS: Were you warned in any way by the Department of Agriculturenot to do this?

   DR. ROBISON: I was not.

 

EXTRACTS FROM THE DENVER PRESS, AUGUST 25-28, 1909
WILSON'S HOT REPLY

   Replying to President Emery, Secretary Wilson said:

   "I came out here to listen, and I glean from the address of your president that the Department of Agriculture, which I thought had been doing much, has been doing nothing. Now let me tell you some of the things that it has done within the last year.or so."

   The Secretary then enumerated some of the achievements of the department.

   "Now with regard to a few preservatives, there is, a difference of opinion among the chemists of the world. One of these questions is benzoate of soda.

   "The manufacturers of the United States went to the President when the use of this was prohibited and asked for fair play. Finally he concluded to ask the presidents of the great universities to appoint some men to conduct an investigation who were competent to do the work. Under his authority I appointed five such gentlemen, who, I believe, are the best chemists in the United States, if not in the whole world.

   "President Emery has attacked their report. Now I have but one request. You have arranged a place upon your program to have the Referee Board here on Thursday to be heard. All I ask is that the hearing be a full and fair one."

   With representatives of interests aggregating more than $500,000,000 present to enter protest against a tentative "model" food law bill, which will probably be presented to the pure food convention for endorsement, the committee which drafted.the bill met last night at the Brown and gave the manufacturers' side a hearing.

         (The Daily News, Denver, Colo., Aug. 25, 1909.)

   The morning session was quite as pungent, although in another way. The convention was called to order at 10 o'clock and Gov. John F. Shafroth made an address of welcome. He complimented both Secretary Wilson and Dr. H. W. Wiley, Chief of the Bureau of Chemistry at Washington, upon the work they have done for the country. He termed Secretary Wilson "the greatest Secretary of Agriculture the country has ever known," and the remark was greeted with enthusiastic cheers. He favored a uniformity in the state and national food laws and finished with an eulogy of Colorado's growth and development.

   PRESIDENT EMERY:

   "We held that if the National Government should indorse benzoic acid it would thus license one of the preservatives which encourages the same conditions in fruit and vegetable manufacture as were abolished in the meat-packing establishments by the national meat inspection law.

   In view of this position we appealed to President Roosevelt in the latter part of his term to appoint another committee to investigate the findings of the Remsen Board. This request was referred by President Roosevelt to Secretary of Agriculture Wilson, who reported back to the President against granting that request.

   Secretary Wilson's remarks were greeted with cheers, yet before he had stepped from the platform President Emery angrily said: "This Referee Board was asked to come to this convention by the executive committee, and the insinuation that it is not to be given fair play comes with poor grace. The report went to the Secretary of Agriculture and he sent it back without comment. We took it that it did not meet his approval.

   Secretary Wilson asked a moment to answer, and said dryly:

   "You gentlemen up Mackinac way took it upon yourselves to condemn us down at Washington unheard, and so we figured you were not the material from which judges of the Supreme Court can be made."

   R. W. Dunlap, of Ohio, is the only commissioner in the United States who is elected by the people instead of being, appointed. Commissioner Dunlap was elected by 12,000 majority, and is one of the most popular officials in Ohio.

        (From Denver Republican, Aug. 25, 1909.)

   After apparently having been whipped upon every question brought up during the pure food convention until there was no further fight left in them, the opposers of Secretary of Agriculture James Wilson's policies developed a remarkable strength in the battle for the electiort of the association's officers and put up one of the hottest contests ever seen during a convention meeting in this city. George L. Flanders, of New York, was elected president. New Orleans was chosen as the next place of meeting.

   The thirteenth annual convention of the National Association of State Food and Dairy Departments developed at its termination yesterday afternoon into a political struggle for the officers for next year, in which the Wilson, or administration, crowd won the presidency by three votes and lost all but one of the other officers. Had not Secretary Wilson been in Denver on the spot the administration would have been badly defeated not only on the election of the president but on many other questions as well. It was his political power and prestige as a member of the President's Cabinet and his experience in political campaigns that won the support of the convention for the administration. He seconded the nomination of Flanders. Supporters of President J. Q. Emery and Dr. Charles Reed, of Cincinnati, the opponents of benzoate of soda and of the administration, were quite free to call Secretary Wilson's crowd apolitical "ring" and a "clique." Certainlyitwas largely by a political trick that. the election of George L. Flanders, of New York, was secured and the defeat of A. C. Bird, of Michigan, was encompassed. George P. McCabe, Solicitor of the Department of Agriculture, and director of the battle for Secretary Wilson, was very busy just before the vote was taken and the votes upon the other officers looked as if he had made some advantageous trades for Flanders. This did not prevent Mr. McCabe's defeat for the office of executive committeeman, A. N. Cook, of South Dakota, winning against him.

 

GROUP AT SECOND DENVER CONVENTION IN 1925
Left to right: Dr. W. D. Bigelow, my first assistant in the Bureau of Chemistry;Dr. Harry E. Barnard, formerly Food Commissioner of Indiana; Dr. Harvey W. Wiley,former Chief of the Bureau of Chemistry; Mr. I. L. Miller, present Food Commissionerof Indiana; Dr. Robert M. Allen, former Food Commissioner of Ken. tucky; Mr. W. C.Geagley, Sec.-Treas. Association of Dairy, Food and Drug Officials of the UnitedStates

 

   Field Marshal McCabe became busy in his travels about the convention room, and when the vote was finally taken it was 57 to 54 in favor of Flanders, or the Wilson administration had only one state the best of the argument. The fact that the Secretary took the floor to second Flanders' nomination personally operated greatly for the latter's benefit, it is said.

   When the vote was taken on the other officers the Wilson slate was broken so badly that the pieces could not be found.

        (Denver Republican, Aug. 28, 1909.)

   After one of the stormiest sessions any convention of any kind ever had in Colorado, in which a great national organization at times took the aspect of a bitter political ward meeting, and in which politics was played every moment of the time, Dr. George L. Flanders, of New York, Secretary Wilson's candidate, yesterday was elected president of the Association of State and National Food and Dairy Departments, adding another point to the Secretary's sweeping victory in the benzoate of soda battle.

A. C. BIRD
State Dairy and Food Commissioner of Michigan

   The Secretary of Agriculture led the fray in person. Flanders defeated A. C. Bird, State Dairy and Food Commissioner of Michigan, Wiley's candidate, by a vote of 57 to 54. Thirty-six states voted, each state having three votes. The vote by states was: Flanders 18, Bird 18, but the Department of Agriculture had three votes, and these three votes went to Flanders.

   The votes by states on the presidency was as follows: Flanders--Arizona, California, Colorado, District of Columbia, Georgia, Idaho, Illinois, Iowa, Louisiana, Massachusetts, Missouri, Nebraska, Nevada, New York, Oklahoma, Department of Agriculture, Utah, Washington and Wyoming, three votes each, total 19; total votes, 57.

   Bird--Connecticut, Florida, Indiana, Kansas, Kentucky, Maine, Michigan, Minnesota, New Jersey, North Carolina, North Dakota, Ohio, South Dakota, Pennsylvania, Tennessee, Texas, Virginia, Wisconsin, total 18; total votes, 54.

        (The Daily News, Denver, Colo., Aug. 28, 1909.)

 

J. S. ABBOTT
Food Commissioner of Texas, in attendance at Denver Convention

   Thus ended that most turbulent exhibition ofdisreputable politics ever witnessed in a so-called scientific convention in anycountry. It was the vote of the Department of Agriculture that elected Mr. Flanders.The Bureau of Chemistry took no part in this discreditable affair. The Health Officeof the District of Columbia through Dr. Woodward cast its three votes in favor ofthe candidate of the food adulterators. The eminent members of the Referee Boardmust have been amazed at the character of their enthusiastic admirers. It was anastounding apotheosis of the Unholy.



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