Doolittle wasn’t the only one noticing that manufacturers seemed newly emboldened. A New York Globe series that spring bore the headline SODA WATER SOLD TO CITY CHILDREN IS FULL OF POISONS. For the Globe, writer Alfred W. McCann hired chemical analysts who found that many of the “fruit syrups” used to mix fizzy drinks contained anything but fruit. Both “raspberry” and “wild cherry” extracts were mostly alcohol, glycerin, acetic acid, succinic acid, benzoic acid, alcohol, and coal-tar dyes. The drinks were heavily sweetened with unlabeled saccharin; of the more expensive sugar there was barely a trace. As McCann made a point of concluding: “There wasn’t a single sign hanging at any soda fountain in New York City advertising the artificial and chemical character of the drinks.”
At the Republican National Convention that June in Chicago, Roosevelt failed to unseat Taft as the nominee. Despite the fact that he’d won the popular vote in the primaries, the GOP’s conservative leaders blocked Roosevelt’s return to the ballot. Believing that party bosses had stolen the nomination from him, he marched out of the convention. And shortly later, declaring himself “fit as a bull moose” going into the contest, he mounted a third-party bid for president under the Progressive banner. Predictably, the GOP vote in November split between Taft and Roosevelt, allowing Democrat Woodrow Wilson to win the presidency with only 41.8 percent of the popular vote.
With James Wilson surely on his way out at Agriculture, Wiley partisans pushed for the former chief chemist to become the next secretary. Wiley’s longtime foes—such as the National Association of Food Manufacturers—united instantly in opposition. The Chemical Trade Journal editorialized in near panic, “We cannot conceive of Mr. [Woodrow] Wilson inviting to his cabinet a secretary to create turmoil, commotion, confusion, tumult, disturbance, disquiet, annoyance, vexation, uneasiness, agitation, affliction, calamity, misfortune, anxiety, sorrow and misery. If Mr. Wilson wants that, Dr. Wiley is well-equipped.”
“I have no cabinet aspirations,” Wiley wrote in December of 1912, to a physician in Oregon who urged him to apply for the position. “. . . I shall hope to continue on the lecture platform and with my pen to speak a forceful word for pure food and the public health along many lines.” Since taking the magazine job, he had been offered several much more lucrative industry positions—one from his longtime fan the Kentucky distiller Edmund Haynes Taylor Jr.—now past eighty but still a force in politics. But Wiley turned them all down; for the first time in many years, he said, he was enjoying his work again.
On December 11 Wiley’s secretary at Good Housekeeping wrote to J. G. Emery, the food commissioner of Wisconsin, that Wiley was traveling but had left instructions for how to respond to any call for his return to government service. “The doctor doesn’t expect that the secretaryship will be offered to him and is not a candidate in any way; in fact, he is discouraging his friends from making any efforts in that direction and his enemies are very busy in the opposition direction. The National Retail Druggists Association has passed resolutions to the effect that the doctor’s appointment to the cabinet would be a national disaster.”
The retail druggists’ group was especially opposed to Wiley because of his longtime advocacy of honest and detailed labeling of food and drug products. Cure-all manufacturers had been fighting that requirement ever since the passage of the Food and Drug Act. In 1911 lawyers for the over-the-counter industry had convinced the U.S. Supreme Court that the 1906 law did not explicitly forbid “false therapeutic claims” but only misleading statements about individual ingredients. The decision sparked such public outrage that in 1912 Congress amended the act (a change known as the Sherley Amendment) to specify that “false therapeutic claims intended to defraud the consumer” were in violation of the law. Yet the industry successfully pushed back on that law too, repeatedly tying up enforcement attempts in the courts. Many Wiley advocates had urged him to return to the Agriculture Department, if not as secretary then to his old job, specifically to deal with the drug-labeling problems that continued to put so many at risk. He considered it but worried that such a move would involve a deep pay cut. As his secretary also wrote, in a message passed along from Wiley, “I do not think he would consider at all going back to the Bureau of Chemistry as it would be a great sacrifice financially.”
In late December 1912, James Wilson picked Dr. Carl L. Alsberg as the new chief of the Bureau of Chemistry. Taft, in the last month of his presidency, promptly approved the appointment. Alsberg, a biochemist, had been working in the USDA’s Bureau of Plant Industry and was known as a careful scientist and a far-less-flamboyant personality than his predecessor. But Alsberg surprised those expecting him to quickly drop the agenda set by the former chief chemist. He began determinedly pursuing some of the key cases that had arisen during Wiley’s tenure—returning to the issues of caffeine content in Coca-Cola and the regulation of saccharin as a food additive. More than Wiley had, he would put an emphasis on the investigation and regulation of pharmaceutical products—and even Wiley’s longtime supporters would come to admire the way he could do so without being hampered by political baggage. Or, as it turned out, by Wiley’s long-standing opponents. Secretary Wilson, as expected, stepped down just a few days into Woodrow Wilson’s term (now having served under four presidents). Frederick Dunlap also left the department later that year. George McCabe left government service in January 1913 for a position with an Oregon law firm.
President Wilson chose David Houston, chancellor of Washington University in St. Louis, to be the next secretary of agriculture. Houston kept Alsberg on as chief of the Bureau of Chemistry and—to the surprise and dismay of the food industry—the new secretary proved far less willing than Wilson to change the rules at corporate demand. This change was highlighted after a new federal policy on saccharin—banning it from foods as a nonnutritive additive with pharmaceutical properties—was formally instituted in April 1912.
Once again Warwick Hough, representing Monsanto, prepared for battle. He contacted Houston directly, pushing him to reverse that policy, which, he complained, was rooted in outdated research done during the Wiley days. Hough again cited the company position: The artificial sweetener was harmless, possibly helped preserve food, and had “value from an economic standpoint.” Houston merely referred him to the new chief chemist, who dismissed such points as lacking any real merit. Alsberg countered by pointing out that the soft-drink industry was now generally using such high levels of saccharin that a consumer’s daily intake, when other artificially sweetened foods were considered, could easily exceed the safe levels identified by even the Remsen Board. Following yet another hearing on the subject in June 1913, Houston further backed his chief chemist. He refused to lift the ban on saccharin and—in the face of warnings from Hough that Monsanto would fight this in court—merely encouraged Alsberg to continue building his case against it.
Meanwhile, as promised, the organization of millers that had lost the bleached-flour trial in Missouri had appealed their case all the way to the U.S. Supreme Court. In February 1914 the court issued a business friendly decision. The justices agreed that—as Wiley had always argued—vulnerable populations should be considered in drafting regulations. Flour offered a perfect example of why the most vulnerable must be considered, because the product “may be used in many ways, in bread, cake, gravy, broth, etc. . . . 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.” But the court also said that just because a product contained a compound considered toxic didn’t mean that said compound was harming the bread and gravy consumers. Toxic effects had to be demonstrated for the law to apply, and the burden of proof was on the government. Thus nitrates, though poisonous in large quantities, could not be considered poisonous as residues in bleached flour unless the government could prove that they were directly harming consumers. The high court concluded that in the Lexington Mill case,
the government had failed to prove such harm. The ruling, though, ignored the fact that the government did not have the resources to safety-test all products and that the law did not require businesses to do so at all. It thus threatened to cripple the existing regulatory process. The justices had not only found in favor of the millers—they had set a formidably high standard, especially given the state of toxicology in the early twentieth century, for the banning of any additive as “injurious.”
Appalled, Wiley sent a furious statement to the wire services, complaining that the Supreme Court seemed set on delivering “knockout blows” to the food and drug law. “To permit the unrestricted addition of poisons into foods unless such can be proved specifically injurious paralyzes that section of the law relating to harmful adulterations,” he warned. “Under the present decision, a man may add traces of arsenic or strychnine to a food with impunity.” Further, the court decision left the responsibility for product safety entirely in the hands of regulatory agencies. Without a legal requirement—explicit or implied—for companies to safety-test their products in advance of selling them to the public, the consumer safety net would only continue to fray.
Over the following several years, the millers and the Agriculture Department would wrestle with how the court decision should be applied specifically to flour. They would finally agree on three main points: (1) bleached flour had to be labeled as such; (2) the government would withdraw the charge that such flour contained “deleterious” compounds; and (3) the millers would accept the original charge of misbranding their flours. Recognizing that the federal government had basically lifted all restrictions on bleaching flour, some states tried tackling the issue on their own, but to little effect. Only a few unbleached-flour cranks—Harvey Wiley being the most notable—continued to argue in favor of “natural flour.” In The Pure Food Cookbook, published in 1914 by Good Housekeeping, he explained with uncharacteristic diplomacy, “I am not an enemy of white flour but I am a friend of whole wheat flour.”
Good Housekeeping was now his public platform—and it was an effective one. At the magazine, a Hearst publication with some 400,000 subscribers, he had the title of director of the bureau of foods, sanitation and health, and he was free to write what he chose in a monthly column. Not surprisingly, he wrote in support of state food safety regulations and better federal protections. He also reported on scientific developments in food and nutrition. An essay on everything wrong with poultry was typical, beginning, “There is perhaps a greater quantity of unfit poultry offered on the American markets than any other kind of food,” before exploring the causes of food poisoning and the need for sanitary practices at both farms and processing plants.
He produced a detailed series on the significance of vitamins, a new and exciting area of nutritional science. When his editors complained that housewives were unlikely to appreciate so much technical chemistry, he brushed off the criticism. Women should be treated as intelligent human beings, not as children, he stated. His contract with the magazine specified that no advertisements of food, drugs, or cosmetics would be run without his approval. He sent samples of all advertised products to a commercial laboratory for analysis. Based on the results, advertisements received a star (approved by Wiley) or not (a noncommittal rating). If he found the products deceptive or risky, he had the power to censor the ad—and he did so. He enjoyed the ability to say what he thought so freely. “I had no longer to restrict myself on account of official propriety. What I thought would be good for the people at large and for the readers of Good Housekeeping, in particular, I was at liberty to express in my own way.”
In 1915 the members of the Remsen Board, ruthlessly ignored by the new secretary of agriculture, resigned from federal service. Carl Alsberg had ignored them too. He was less publicly combative than Wiley but he shared his predecessor’s zeal for investigating business practices, which made him almost as disliked by the food-processing industry. In 1916 Alsberg authorized an undercover sting operation aimed at McCormick & Company’s pepper production. The bureau’s inspectors had discovered that McCormick was importing large amounts of pepper shells in addition to the pepper itself. The company refused to explain why; tests of McCormick’s “Pure Black Ground Pepper” suggested impurities but at levels too low to identify. The chief chemist of the New York station, which had been tracking the imports, suggested that the Agriculture Department intercept the shells as they came into port and secretly spray them with an identifying agent. The department sprayed almost two hundred bags of pepper shells with the drug quinine and then followed their delivery to the McCormick plant in Baltimore. In May 1916 the government seized six barrels of black pepper, heavily contaminated with quinine, and charged the company with misbranding.
Embarrassed and angry, the company fought the accusation in court. And lost. The judge in the case ordered McCormick to label its adulterated product accurately as “ground black pepper containing from 10 percent to 28 percent added pepper shells.” The company also was required to offer that product at a public sale to be conducted by U.S. Marshals, to pay all legal costs, and to pay a fine of $750.
The same year, Alsberg again took on the issue of deceptive use of saccharin. That spring the chief chemist ordered the seizure of a one-pound can of saccharin sent from the St. Louis Monsanto plant to a Chicago soft-drink supply house. He formally charged Monsanto with misbranding, citing the company’s dishonest statements on the label, ones that described the artificial sweetener as “positively harmless” and “healthful.” Alsberg’s action set the stage for a legal fight over the sweetener, and there, he would later admit, he was perhaps too optimistic.
But he, Wiley, and just about everyone involved in consumer protection had been buoyed by a U.S. Supreme Court decision, also in 1916, regarding the Coca-Cola case. In a decision written by Chief Justice Charles Evans Hughes, the court overturned the lower court’s finding that the soft-drink company’s use of caffeine was merely part of a brand-name formula and therefore could not be classed as an adulterant.
The ruling had created a dangerous loophole, Evans wrote, in which any compounded product could be deemed out of reach of federal regulation. Coca-Cola, “like any formulaic product,” was subject to the law’s primary intent, “which was to protect the public from poisonous and deleterious substances which might pose a danger to public health.” Further, Evans declared, “Coca-Cola” was not the distinctive generic name of a substance, like coffee, but the brand-name hyphenation of two common words. Caffeine, therefore, should be considered not integral to the product but an added ingredient; the Supreme Court ordered the case back for retrial.
Hoping to avoid another deluge of bad press coverage and uncertain that this time it would prevail, the soft-drink company moved to settle the case. Alsberg rebuffed the offer and instead authorized new research into the risks of caffeine. The company’s lawyers, noting that the new chief chemist was known primarily as a thorough and careful researcher, again warned the Candler family that they might well lose this round. Secretly the company began experimenting with reducing caffeine levels in the soft drink. In late 1917, surprising the Agriculture Department, the company entered a no-contest plea to the original charges of adulteration. And by providing proof that it had now reduced the amount of caffeine in the drink by half, it negotiated a final settlement to the court case.
This time the Coca-Cola machinations received little public notice. World affairs had by that time taken over the nation’s newspaper headlines. In April 1917 the United States had made a belated entry into the Great War (later known as World War I). As Alsberg wrote to Secretary Houston, “the urgent demands of the various war agencies” meant that most of his scientists had been reassigned to military duty, the regulatory teams were for the most part disbanded, and projects that had “no immediate bearing on the prosecution of war” had been closed down. He assured his boss that enforcement of the food law continued, however. The bureau had managed that yea
r to prosecute an impressive eight hundred cases of adulterated or misbranded products.
Even in the shadow of war, the Wiley family managed to annoy a U.S. president. Anna Kelton Wiley, now the mother of two young sons—Harvey Washington Jr. and John Preston—went to jail for picketing the White House on behalf of women’s right to vote. After a 1917 demonstration in which she and fellow activists in the suffrage movement demanded that President Wilson stop stalling and put his support behind equal voting rights for all, the president impatiently requested an end to “women howlers” and recommended a more dignified approach from equal-rights supporters. Wilson, who had been reelected in 1916, had deeply disappointed voting rights activists. He’d flatly rebuffed calls for federal action on suffrage, insisting that voting rights should be decided on a state-by-state basis.
In protest of such an unrealistic position, the militant National Women’s Political Union mounted another demonstration, one that Anna Kelton Wiley proudly joined. Dressed in a gray carriage dress and her best hat, she marched carrying a sign reading: MR. PRESIDENT: HOW LONG MUST WOMEN WAIT FOR LIBERTY? On November 10 she and other protest leaders were arrested and she was sentenced to fifteen days in the city jail. On appeal, she accepted a five-day sentence. Harvey Wiley at first encouraged her to ask for a pardon and stay out of jail. But when she refused, he supported the decision. He was proud of her suffragette activities; shortly after starting at Good Housekeeping he’d prompted the magazine to do a feature story on her right-to-vote work: “She believes the ballot to be a necessary tool for the advancement of women.” To his friends who wondered how he could let his wife and the mother of his children serve jail time, Wiley answered that “he had fought all his life for a principle and hardly could deny her the same privilege.”