By Harvey W. Wiley, MD
Summary: In 1906 the United States Congress passed the country’s first federal “truth in labeling” law, the Pure Food and Drug Act. Among the provisions of the landmark legislation was the prohibition of any food preservative or other additive that could be injurious to consumers. Charged with determining the safety of those food additives was the U.S. Bureau of Chemistry, a division within the Department of Agriculture (USDA) that would later become the U.S. Food and Drug Administration (FDA). The head of the bureau, Dr. Harvey Wiley, adopted a “better safe than sorry” policy, banning any additive that showed a possibility of causing harm. Dr. Wiley’s approach immediately earned him enemies within the food manufacturing industry, which used its influence in the government to circumvent the bureau’s rulings and eventually oust its chief. In 1925 Dr. Wiley struck back, publishing a letter to President Calvin Coolidge in which he admonished the government for its complicity in bypassing the food law and allowing potentially dangerous additives into America’s food supply. After the president demanded an explanation from the USDA, Dr. Wiley wrote the following letter expressing his profound disappointment in the department’s position, which opened the floodgates to a stream of questionable substances in America’s foods that continues to flow to this day. Following Dr. Wiley’s letter are several advertisements for popular foods of the time, showing just how early industrial food processors had infiltrated the nation’s food supply. From Good Housekeeping, 1926.[The following is a transcription of the original Archives document. To view or download the original document, click here.]
No Pure-Food Action Now
Dr. Wiley’s Letter to the President Is Passed Upon by the Bureau He Indicted[Dr. Wiley:]
In Good Housekeeping for September 1925 was published my letter to President Coolidge with regard to certain laxities in the administration of the Pure Food and Drug Act. I pointed out in that letter that these laxities began almost as soon as the Food Law came into effect and had since continued to accumulate in number and in importance. Most of these laxities were due, as I pointed out to the president, to a misunderstanding on the part of the Secretary of Agriculture of his functions and duties in connection with the administration of the law. This letter excited a great deal of attention and has been the subject of frequent comments among the readers of Good Housekeeping. I am sure the housewives of the country will be interested in knowing what has happened to this letter up to the present time.
Mr. Coolidge received my letter on the eve of his departure for his summer vacation. Before he went, however, he instructed his secretary to transmit the letter to the Secretary of Agriculture for advice with regard to the points therein. The Secretary of Agriculture was absent on a long tour to the West, and the letter went into the hands of the Assistant Secretary, Mr. R.W. Dunlap. I do not think it could have fallen into more able hands than his.
Mr. Dunlap served four years as Commissioner of Foods in the State of Ohio. It was during this period that the celebrated Denver Convention of 1909 was held, in which the officials of the Department of Agriculture and the Association of Dairy, Food, and Drug Officials of the United States were induced to approve the Remsen Board—by a slender majority—as the competent adviser of the Department of Agriculture on matters connected with food and drug legislation in plain violation of the law.
Mr. Dunlap was one of the members of the convention at Denver who bitterly fought this resolution and voted against it on the final roll call. He therefore, by training and conviction, had the necessary information to handle a case of this kind even better than the present Secretary of Agriculture himself. When it came into his hands, he referred it to the officials of the Bureau of Chemistry. These officials prepared an answer to the president’s letter, which Assistant Secretary Dunlap signed and forwarded to the president. A few highlights of this letter may show how the Bureau of Chemistry is still wedded to the illegal restrictions that limit its activities.
In replying to the president’s letter, Assistant Secretary Dunlap called attention to the serious accusations made by me in regard to the present condition of affairs in the Bureau of Chemistry. He paid a high compliment to my services in securing the enactment of the Food and Drug Law, which he called one of the most beneficent pieces of legislature ever passed by Congress. He stated it was not his purpose to hamper the Bureau of Chemistry by any restrictions that would prevent the literal application of the terms of the law to food and drug products brought within the jurisdiction of the act.
I was firmly convinced from this introduction of the answer to the president’s letter that I should get at the hands of the assistant secretary all I had anticipated from him, both on account of the merit of the case and of his former relations to all these matters in his official capacity as Food and Drugs Commissioner of the State of Ohio.
I was not long, however, in becoming disillusioned. After this preliminary statement, he gave the president a long list of reasons why the Bureau of Chemistry should stand by the paralyzing restrictions to which it has been so long accustomed. He entered also into a learned and extensive discussion of the reasons why the officials of the bureau were unwilling to undertake the enforcement of the law along the lines that I had pointed out in my letter to the president. He told—in a most unsatisfactory way, in my opinion—why nothing had been done to enforce the [Supreme] Court decision against bleached flour or against Coca-Cola.
In justice to the assistant secretary, I must say that he—having been only a few months in his present position—assigned the preparation of his answer to the president’s letter to the competent officials of the Bureau [of Chemistry], that all these opinions denying my pleas were prepared by bureau officials, and that the letter was signed by the assistant secretary in the line of his duties. He is to be pardoned, of course, for assuming that the officials who had been long in the service would not fail to inform him of any of the conditions that exist in the bureau at the present time regarding the strict performance of the bureau’s duties.
In point of fact, however, both the bleached-flour case and the Coca-Cola case were settled by decrees of the federal courts, and each was pronounced to be an adulterated and misbranded article. All the action proper to be taken in the Bureau of Chemistry was the publication of these facts, with a statement that both articles, having been condemned as violating the law, would be denied interstate commerce or manufacture or sale in the District of Columbia. Such a statement would have put an end once and for all to these two offenses—offenses not only against the public but against the law itself. The failure to do this on the part of the then competent officials of the Bureau of Chemistry has been the cause of all its shortcomings and its condition of “innocuous desuetude” with regard to these matters.
One of the most interesting features of this miscarriage of justice is that the assistant secretary was not informed of that part of the Supreme Court decision that defined what was meant by an “added substance injurious to health.” The light thrown upon the administration of the law by this Supreme Court decision was extremely illuminating. It pointed the way by which conviction could be obtained in cases of small quantities of added injurious substance in which it perhaps would [be] difficult to prove whether any particular case were injurious to health. While I am aware of the fact that the readers of Good Housekeeping do not like to read quotations from legal documents, I think I must acquaint them with this opinion of the highest judicial authority in the country. I beg therefore to print the exact language of the Supreme Court on this point:
“The word ‘may’ is here used in its ordinary and usual signification, there being nothing to show the intention of Congress to affix to it any other meaning. ‘It is,’ says Webster, ‘an auxiliary verb, qualifying the meaning of another verb by expressing ability…contingency or liability, or possibility of probability.’ In thus describing the offense, Congress doubtless took into consideration that flour may be used in many ways—in bread, cake, gravy, broth, etc. It may be consumed, when prepared as a food, by the strong and the weak, the old and the young, the well and the sick; and it is intended that if any flour, because of any added poisonous or other deleterious ingredient, may possibly injure the health of any of these, it shall come within the ban of the statute. If it cannot by any possibility, when the facts are reasonably considered, injure the health of any consumer, such flour, though having a small addition of poisonous or deleterious ingredients, may not be condemned under the act.”
No mention whatever of this matter, except the last paragraph, was contained in the answer to the president’s letter.
As long as the Bureau of Chemistry was permitted to function under the provisions of the law specifically appointing the bureau as the executive power of the Pure Food Law, it decided every point in question where there was the least doubt in favor of the consumer. This is the only safe way for a grand jury to act, and the Bureau of Chemistry was nothing more than a grand jury. The grand jury does not have to be convinced of the guilt of the person who is indicted, but if there is a presumption of guilt, it is the duty of the grand jury to indict. If the person is innocent, he can establish that fact before the court. If he is guilty and the grand jury does not indict him, he goes scot-free.
A Supreme Court Decision
A Bureau of Chemistry functioning in the interest of public welfare under the Food and Drug Act that will not bring a case unless it has an overwhelming proof of its ability to establish the guilt of the accused party falls far short of what the Bureau of Chemistry should do. This kind of feeling would paralyze any grand jury. Here is where this luminous decision of the Supreme Court comes in to help. It would be an easy matter to show that any injurious substance added to our foods might possibly do injury to someone, as pointed out by the Supreme Court.
This point was beautifully illustrated in the Coca-Cola trial at Chattanooga, when Dr. Vaughn was on the witness stand in favor of the Coca-Cola company. He had testified that in drinking up to two or three or four glasses of Coca-Cola per day, there would be no injury. When asked upon cross-examination what effect three or four glasses of Coca-Cola per day would have upon a child, he at once said he would not recommend it for any child—that almost any child would be injured by it.
At that time the Supreme Court had not made the decision quoted above. So now it will be easy to convict any manufacturer who adds even small quantities of a poisonous or deleterious substance to a food. There would be someone—some sick person, some child, some person with remarkable sensibility to injury in the vast number of our people who would be hurt by this procedure—and under these conditions it would be, under the construction of the law by the Supreme Court, an offense to use even these small particles of poisonous substance.
In my letter to the president, I stressed the fact of the inactivity of the Bureau of Chemistry along these lines. I do not blame the Bureau of Chemistry for its inactivity. I blame the restrictions of an illegal character that have been thrown around it by the decisions of the long-since defunct Remsen Board and others condoning adulteration of our foods and permitting, under certain conditions, this adulteration to be practiced. Under the restrictions that now obtain, it faces a most difficult problem. I was therefore surprised to find that this feature of my letter to the president had been almost ignored in the answer made by the assistant secretary. The whole tenor of his letter was to show why the Bureau of Chemistry had not undertaken further prosecutions, which was because of the extreme difficulty of getting convincing expert testimony.
I do not think the readers of this article will be much interested in that point. When two experts differ on a question relating to the public health, as they may conscientiously do, the judge and the jury will be much more likely to incline to the testimony in defense of the health of the public than to that which will open the floodgates of adulteration with injurious substances to our foods. The expert who favors the protection of the public health may be far less eminent than the expert who says it does not need protection, but the judge and jury—like most human beings—would incline to believe that which is a protection rather than that which is not.
We have many honest people in this country who do not believe in vaccination, who are opposed to immunization against typhoid fever, diphtheria, or scarlet fever. They are honest in their convictions, but they have very poor success when they come into court to support them. Insofar as I know, every court in this country that has had a question of compulsory vaccination before it has supported those who believed in vaccination. This sentiment, which pervades the court—both judge and jury—will also obtain in all efforts to protect the public health.
I have no fear of what will happen from conflicting testimony. I know too well the attitude of juries and of judges, and I am especially comforted with this fact: that in the cases of benzoic acid, Coca Cola, and bleached flour, against the testimony of eminent experts, including the members of the Referee Board of Consulting Scientific Experts, we obtained decrees in the courts.
In each case we met just such opposition as is pleaded by the assistant secretary as a justification of the inactivity of the Bureau of Chemistry. I do not think the judges and juries have changed, and I still believe that the expert who is on the right side and who is endeavoring to protect the public health will have far greater weight than the expert who appears against him, as has already been evidenced in the decisions of the courts themselves in all the cases that I have just mentioned above.
Therefore, it was foreign to the purpose of my letter to plead all these “baby acts” as a justification of doing nothing. What we want is the removal of these restrictions, which have made the Bureau of Chemistry so afraid and so timid because such a great weight of authority has been established against it. The fact that this weight of authority was illegally established should be sufficient to warrant the removal of these restrictions immediately. Then the Bureau of Chemistry would be free to execute the laws if it wanted to. It would have no adverse decisions to fight and would have a free field for the exercise of its activities. In such a case the bureau would soon recover its vigor.
The Referee Board
The worst feature, however, of the answer of the assistant secretary to the president’s letter is that he places himself squarely on the platform that the chief authority that now is looked to in the execution of the Food Law is that of the Referee Board of Consulting Scientific Experts. I have shown that this board was simply a body of experts paid by the United States for reviewing the work of the Bureau of Chemistry at the request of the adulterators and misbranders of our foods.
This is the body that the assistant secretary so vigorously fought at the Denver convention of 1909 and during his two terms as Food Commissioner of the State of Ohio. It is a complete surrender of the rights of the Food Law to protect the health of our people—by taking a stand that it is improper to initiate any movement contrary to the decisions of the Referee Board and the subsequent decisions of the Bureau of Chemistry in harmony with that restriction. Since these restrictions were secured by so-called business organizations, it is interesting to make another short quotation as to what is business in the eyes of President Coolidge, as given in his address to the New York Chamber of Commerce in November last. It was as follows:
“True business represents the mutual organized effort of society to minister to the economic requirements of civilization. It is an effort by which men provide for the material needs of each other…It rests squarely on the law of service. It has for its main reliance truth and faith and justice. In its larger sense, it is one of the greatest contributing forces to the moral and spiritual advancements of the race.”
This is quite a different business from that which secured the annulment of the Food Law and the enactment of these malignant restrictions that I asked the President to have removed and that the assistant secretary advised him should be retained. I have shown that these decisions were entirely illegal in their origin and that the adoption of these findings over the contrary findings of the Bureau of Chemistry was a plain, open, purposeful violation of the statute.
There is a tree growing in Java, svelte and beautiful and therefore most attractive. It exudes a milk-white juice, but, unlike milk, it is a deadly poison. It was used by the native toxophilites for tipping their arrows, so that a mere scratch with a poisoned arrow would prove fatal. Tradition also taught that every living being attracted by the beauty of the tree would soon die when coming near it.
These illegal restrictions, to which I have endeavored to call your attention, remind me of the upas tree. Together they present an attractive figure. They are vouched for as wholly innocent by eminent chemists, physicians, and professors. They have the approval of cabinet officers and even presidents. They attract the unwary and the confiding, but they spread abroad a fatal influence that stifles and paralyzes the executors of the helpless Pure Food Law.
By Dr. Harvey W. Wiley, Director, Bureau of Foods, Sanitation, and Health, Good Housekeeping magazine. Good Housekeeping, February 1926.[Advertisement in Good Housekeeping for Quaker quick-cooking oats, with the following text. See original for image.]
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A 10-Second Education in Scientific Reasons
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Why deny yourself the natural stimulation of this rich, warm food?[Advertisement for Morton’s iodized salt, with the following text. See original for image.]
When It Rains—It Pours
A New Table Salt Gives Children Better Health…It Prevents Goiter, Childhood’s Common Ailment—Tastes No Different
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Most Famous of All Salts…“When It Rains—It Pours”
Long before the need for iodized salt became apparent, this product had captured the fancy of millions. It still represents the utmost in flavor, in quality, in economy, and in convenience, because, “When it rains—it pours.” Families without children use it. Where there are children, the iodized [form] is advisable.[Advertisement for Jell-O gelatin dessert, with the following text. See original for image.]
Jell-O: American’s Most Famous Dessert
Six Delicious Pure Fruit Flavors…The Quality Is Always the Same[Illustration of a prepared gelatin dessert. See original for image.]
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Dr. Wiley’s letter and all advertising content from Good Housekeeping, Vol. IXXXII, No. 2, February 1926.