Twelve
OF WHISKEY AND SODA
1909
The banquet how fine, don’t begin it
William Howard Taft won the presidency largely thanks to the support of Theodore Roosevelt, and he shared his patron’s wariness of the Agriculture Department’s crusading chief chemist: “I expect to give Dr. Wiley the reasonable and just support he is entitled to have,” Taft wrote, shortly after taking office, to one of Wiley’s anxious supporters. “But when I feel he has done an injustice I expect to differ with him even at the expense of having my motives questioned.”
He expected, on the other hand, that his relationship with Roosevelt would stay cordial. But the sitting president and the former one grew apart over the next four years. A simple and widely cited explanation for the split is that the office brought out Taft’s conservative tendencies even while Roosevelt, restless and unhappy at being out of power, grew more progressive. Their differences came to a head when a very public disagreement over wilderness protection prompted Taft in 1910 to fire the popular Gifford Pinchot from his position as U.S. Forest Service chief. The move alienated not just Roosevelt, who had appointed Pinchot to the position, but other progressive Republicans as well, creating a serious rift within the party.
Yet the alienation between the Taft and Roosevelt factions was rooted in more than one big dispute. From his earliest days in office, Taft showed a willingness to reconsider Roosevelt’s rulings, including some controversial new positions on enforcement of the food law.
For example, the question of which alcoholic beverages could rightly be called “whiskey” arose yet again. Roosevelt and Attorney General Bonaparte considered that they had settled the matter. But bottling interests represented by that tireless lobbyist Warwick Hough never resigned themselves to the designations “compound whiskey” and “imitation whiskey.” Roosevelt had quietly tried to appease the angry liquor wholesalers by appointing an informal “whiskey commission,” supposedly to review the situation. It consisted of Wilson, Dunlap, and John G. Capers, head of the Department of Internal Revenue. The commission was so informal, and also apparently so secret, that Wilson and Dunlap at first denied it existed when reporters asked them about its rumored actions. This deceptiveness became a political embarrassment when Roosevelt and Capers acknowledged the panel’s formation. Further, Hough acquired a copy of a pro-industry letter from the commission to the president and leaked it to newspapers in order to press his cause. The document, which infuriated Wiley and his purist allies, read in part: “[T]he term ‘whiskey’ should not be denied to neutral spirits diluted with water to a proper strength and colored with caramel.”
Hough welcomed Taft’s election—largely because he remembered that at the height of the whiskey deliberations, the then-secretary of war had spoken out in favor of the wholesalers’ position. Not long after the 1909 inauguration, Hough brought members of the National Wholesale Liquor Dealers Association and his copy of the whiskey commission letter to a meeting with the new president. Afterward, with Taft’s encouragement, the association filed a formal petition to once again revisit the question of how to define whiskey.
In response, Taft asked Solicitor General Lloyd W. Bowers for a formal review of Roosevelt’s earlier decision and, at Bowers’s recommendation, a new series of whiskey hearings began on April 8, 1909. It continued for almost a month. The resulting 1,200-page volume of testimony retraced the ground that had been covered in earlier hearings before congressional committees. Hough again represented the wholesale liquor dealers. As he had in the past, Edmund Haynes Taylor Jr.—now in his seventies but still an outspoken advocate for aged Kentucky bourbon—represented the straight-whiskey interests. And Wiley, yet again, was called as an expert witness on alcohol analysis and purity. The subject matter may have been somewhat dry, but the hearings were not. Participants repeatedly gathered around a table to taste the samples of whiskey—straight, blended, imitation—submitted in evidence. Henry Parker Willis, an economics professor at Washington & Lee University who served as an adviser on whiskey tax issues, noted a corresponding rise in noise and described the hearings as often “reminiscent of a German drinking club.”
Typically impassioned, Wiley once again accused Hough and his association of dishonesty: “The evidence shows convincingly,” he said, “that the protestants in this case did not come into court with clean hands; that they have been for half a century guilty of taking neutral spirits and from these neutral spirits making all forms of so-called whiskey.” The use of dyes, he reminded the listeners, was purely to give products the false appearance of aged whiskey and to “make the article appear better than it really is, thus contravening the fundamental principles of the Food and Drug Act.” After all, the act required many manufacturers to place the term “imitation” on their label—imitation vanilla extract, for instance—when they were made primarily of other ingredients. And he concluded: “There is no hardship, therefore, in imposing the word ‘imitation’ upon a beverage made in imitation of old genuine whiskey.”
In late May, Bowers issued his opinion, agreeing with Wiley that neutral spirits—dyed, flavored, oiled—should not be called whiskey in an unqualified way. He ordered them to be labeled “imitation.” But he also agreed with the rectifiers that a blend of alcohols, if it contained primarily straight whiskey, could fairly be called a “blended whiskey,” even if it was dyed to a richer color. If this was “coloring matter of a harmless character,” such as a vegetable dye, Bowers said he would not call the whiskey adulterated. After all, he noted, “Whisky is not a natural product. It is always a thing manufactured by man.”
Wiley wearily accepted the verdict; he was, to the relief of his allies, ready to let the whiskey fight go. The ruling satisfied neither Hough nor Taylor, however, and on behalf of their respective groups both challenged Bowers’s decision. Taft then announced he would make a presidential decision to end the argument, possibly later that year. Taylor was optimistic; he and his straight-whiskey colleagues had filed a detailed brief establishing the solid legal precedent for precise labeling of whiskey and its ingredients. In this they had the support of Senator McCumber, one of the powers behind the passage of the food law, who had written to the president that he considered it consumer fraud to allow cheap alcohol enhanced with “drugs and oils and colors . . . to be sold for a good brand of whiskey.”
Less openly, Taft also reviewed another Roosevelt decision, the creation of the Remsen Board. Shortly after taking office, the new president had asked deputy attorney general James Fowler to affirm that the board had legal standing. Fowler responded with a memo, copied to Wilson, that dismayed both the secretary and the president. It warned that the board represented an illegal use of department funds: “I do not think the Secretary of Agriculture was authorized by law to employ scientific experts to be paid out of the fund named.” Startled, Taft privately asked Attorney General George Wickersham to review Fowler’s finding. Wickersham concurred. Indeed, the attorney general’s office expressed concern over how much money Wilson was lavishing on these industry-friendly scientists—annual salaries of up to $60,000 and, from 1908 to 1909, an additional $40,000 for expenses. At Wilson’s urging, however, Taft decided to keep the board in place. Both men agreed that the department needed a counterweight to Wiley’s purist extremes. And both men agreed to keep the Justice Department ruling secret—another decision that would later prove a very public embarrassment.
At the Agriculture Department, Dunlap and McCabe now routinely joined hands against Wiley on every decision. McCabe had announced a “three-month rule,” stating that if cases were reported to the board more than three months after samples were collected, they would not be prosecuted. Wiley protested, pointing out that the Chemistry Bureau was understaffed and not always able to turn analyses around so quickly. “I consider there is neither justice nor reason in the three months rule,” he wrote. “I have never consented to it nor was I consulted in its adoption.” McCabe responded by requiring him to attach justification to every delayed analysis. The attorney continued to think Wiley far too quick to prosecute violations and too resistant to work with companies on solving problems. There was some merit in slowing things down, he thought, even though some wrongdoers might slip by along the way.
In June 1909 Wiley recommended that eight barrels from Ohio labeled “Sweet Catawba Wine” be seized and the company reprimanded. Departmental inspectors had discovered that the barrels contained not wine but an alcoholic liquid made from fermented corn sugars sweetened with saccharin. McCabe and Dunlap took the position that rather than fraudulent, the wine was merely poorly labeled. They blocked the seizure and scheduled a hearing with the manufacturer to work out a compromise. At least, Wiley suggested, the department might keep the mislabeled—and again, he would argue, fake—product out of the market until the situation was resolved. McCabe wrote back with undisguised hostility that he considered that a “ludicrous recommendation.”
Many of their disagreements centered on defining the risk of a poorly studied compound. In a typical argument with Dunlap that July, Wiley recommended barring the compound sodium acetate—a salt of acetic acid used widely by the textile industry—from also being used as an additive in candy. He worried, he said, that sweets were largely eaten by children, one of the groups that most needed extra protection. A clause in the law forbade the addition of mineral substances to confectionary. Admitting it was a stretch, he argued that, as sodium was a mineral, the department could apply the law in a protective sense until more was known. Dunlap countered that the action would pose a troubling scientific precedent: “If sodium acetate is a mineral substance, so is cane sugar, for cane sugar is composed of over 40 percent carbon and no one could possibly deny the fact that carbon is mineral.” True, Wiley admitted, but wasn’t it worth risking interpretive overreach in the interest of protecting the most vulnerable consumers? “I have not time to go into all the reasons that would lead me to exclude sodium acetate from confectionary. The fact that confections are eaten especially by children and others whose digestive systems are not the strongest is a good and sufficient reason to me,” wrote Wiley in a memo arguing his case. Dunlap again replied that he found that unconvincing and would not support enforcing the law in such an arbitrary way.
They also quarreled over whether the label “Norway Boneless Cod Strips” could be applied to cod from New England that still contained some of the smaller bones. “I do not know of but one meaning of the word ‘Norway’ and that is probably the signification of the word on this package,” Wiley wrote. The three-man panel eventually decided to order that “Norway” be removed from the package but, in a two-to-one decision, allowed small bones to be considered acceptable in a “boneless” product.
In another dispute they differed over whether a cookie could be called an “arrowroot biscuit” when it contained only 15 percent arrowroot starch. Predictably, Wiley took the stance that a higher percentage was needed to justify the name; McCabe countered that if they were so literal in applying the law, it would become a joke. This kind of stance on arrowroot biscuits, he declared, “would lead to the proposition that one product of the baker’s art, now styled ‘Lady Finger,’ is misbranded unless actually the result of mayhem.”
The battle over sodium benzoate, meanwhile, had not abated. Frustrated with federal government inaction, the state of Indiana had independently banned the product’s use in foods. In 1908, fearing that Indiana’s action would trigger similar moves by health officials in other states, two large food processors, Curtice Brothers of Rochester, New York, and Williams Brothers of Detroit, filed suit, petitioning the U.S. District Court in Indianapolis to block the state law, describing it as economically crippling. The court issued a temporary injunction and scheduled a full hearing on the issue for the spring of 1909.
In anticipation of the hearing, the manufacturers quietly asked James Wilson for two favors. They wanted representatives from the Remsen Board to testify in their favor and they wanted Wiley and his loyal chemistry staff kept out of the courtroom. Wilson agreed to both requests, arranging to fund members of the Remsen Board to testify in Indiana, preparing to block any opposite viewpoints. When James Bingham, attorney general of Indiana, asked to have Wiley and some of his bureau staff testify in support of the state’s case, Wilson refused permission. When Bingham protested, Wilson sought Taft’s approval for the refusal, emphasizing that representatives of the Department of Agriculture should not so publicly take opposite sides in a lawsuit over preservatives. The president readily agreed and the secretary prepared to block all access to the recalcitrant chemists in his bureau.
Bingham, however, cabled the department that he now would get on a train and come to them for the depositions. Harvey Wiley agreed to give his statement, despite knowing that it was against department policy and that he would once again anger his boss by doing so. But others in the Agriculture Department declined, telling the Indiana attorney general they feared Wilson’s retribution. Now genuinely angry, Bingham filed suit in the Supreme Court of the District of Columbia (what is now called the U.S. District Court for the District of Columbia). Naming Wilson and the department, the suit sought to compel the department’s full testimony in the Indiana case. The federal court agreed with Indiana’s attorney general that the Agriculture Department could not suppress expert testimony. Bingham gathered all his requested depositions and put Wilson into a legal bind, forcing the secretary, against his will, to send Wiley to testify in the state case.
But the standoff between the federal government’s quarreling experts doomed the state law. The court ruled that without a consensus it could not find the preservative to be a health problem: “Ingredients and processes may be prohibited as unwholesome or causing deception but not merely because they preserve.” Further, the justices had been impressed by the manufacturers’ arguments that they were wholly dependent on chemical additives to stay in business: “While it may regulate,” they said, “the legislature may not destroy an industry.”
Paul Pierce’s magazine—its name now changed from What to Eat to the more serious-sounding National Food Magazine—responded with renewed attacks on sodium benzoate. The issue featured a strong warning from William Williams Keen—a Philadelphia physician acclaimed as the country’s first brain surgeon—on the risks of repeated low doses of chemical agents in food: “It must be evident that any drug used as a food preservative, eaten constantly, must affect the general health deleteriously and hence is most undesirable. . . . I have warned my grocer that I shall not accept such food for use and, if furnished me, I shall simply change my grocer.”
The issue also featured a full-page ad from H.J. Heinz. Titled “A Health Problem That Confronts the Nation,” it read in part: “Are you sure that your own state of health justifies you taking, for an indefinite period, drugged foods into your system? Are you willing to drug your family according to the prescription of any food manufacturer?
“Benzoate of soda is not necessary in any food. Every food product sold in a preserved state can be and is put up without it. Reputable manufacturers (and there are many) who do not use waste products of canneries, evaporating plants and other refuse raw materials and who do not permit untidiness and unsanitary practices about their factories find it unnecessary and do not use it. . . .
“Heinz 57 varieties are prepared from fresh, sound, wholesome fruits and vegetables; by neat uniformed work people; in model kitchens that are open to the public every day and visited annually by thousands from all parts of the world.
“Our products do not—and regardless of any legislative action or Government ruling—they will never contain Benzoate of Soda or any drug or chemical.” The ad concluded by suggesting that despite the new law, consumers still needed to protect themselves by reading food labels carefully.
Wilson knew that Ladd, Shepard, and many of the other critics who had so savaged his reputation the previous summer in Michigan would have another opportunity that August as the Association of State and National Food Dairy Departments was scheduled to convene in Denver. Just weeks earlier, the secretary had authorized Agriculture Department agents to start seizing bleached flour shipments and publicly proclaimed his vigilance against dishonest manufacturing practices. “I am utterly hostile to having the people’s foods tampered with,” he told the American Food Journal. “We want to know that what we eat is the pure product.”
More privately, Wilson acknowledged that his decision had been urged as a test case by department solicitor George McCabe, who believed the bleaching issue offered a chance to sharpen up some vague wording in the law. The law, as McCabe correctly pointed out, did not provide clear definitions for what constituted an injurious additive or adulteration. On that point he agreed with Wiley, who had long complained about the vague standards. The solicitor thought judicial clarification was needed to improve the situation. “This can come only from the courts,” he wrote, “and there is not a single serious administrator connected with the law who does not join in the opinion that further progress must depend very largely on judicial rulings. If the bleached flour people bring their case to trial, they will do a valuable public service whether they win or lose.”
Despite agreeing to seizures for legal purposes, Wilson appeared increasingly hostile to his department’s role in tackling public health issues. He moved to block a bureau report on the chemical risks inherent in bleaching flour. He had also, not surprisingly, refused a provocative request from Wiley in June to reprint the report on benzoic acid and benzoates. He’d also shut down a series of other planned publications: on the use of the sugar alcohol glycerin in processing meat, on preventing spoilage of tomato ketchup, on pathogenic bacteria growing in frozen and dried eggs, and even an assessment of the arsenic content of confectioner’s shellac, the glaze used on chocolate candies. He’d further blocked the release of a troubling report from Lyman Kebler, chief of the bureau’s Drug Division, on the growing problem of medicated soft drinks.
Wilson also tried to prevent Wiley from taking his case to popular publications. “I regret that I shall have to withdraw my offer to write you an article which would be truthful, readable and useful on the subject of ‘The Campaign for Pure Food, up to Date,’” wrote Wiley to an editor at Century magazine. “As I told you, I submitted your request to the Secretary of Agriculture and he informed me that if I would write an article which he would approve I could publish it. The Secretary and I are so diametrically opposed in our view in regard to this matter that I am convinced it would be useless for me to try to secure his approval to any article which in my opinion would do anything like justice to the subject. . . . I reluctantly ask you to cancel the engagement.”
When the Association of State and National Food Dairy Departments convened in Denver that summer, little of the previous year’s bitterness from the Mackinac Island convention had faded. “James Wilson, secretary of agriculture, and Dr. H.W. Wiley, chief chemist of the department, have come to the parting of the ways on the subject of food,” reported the Chicago Tribune in a story predicting a “battle royal” over preservatives, especially sodium benzoate. Wilson brought the entire Remsen Board with him to Denver, paying for their rooms at the city’s Brown Palace Hotel, convention headquarters. Despite the luxurious setting, Ira Remsen would later describe the conference as “a bear pit.” He found himself repeatedly defending the board against charges that it favored industry at the cost of public health and safety. The secretary had prepared an aggressive strategy. He demanded that a scheduled vote on the sodium benzoate question be decided on an open ballot. Then he privately assured attendees that the Department of Agriculture would withdraw funding to all those who voted against him.
Food commissioners from Pennsylvania and Michigan, both sodium benzoate critics, protested Wilson’s heavy-handed approach by angrily walking out of the meeting. The walkout backfired, as the final tally—absent those votes and the influence of the two protesting officials—went narrowly in support of both the Remsen Board and its finding that sodium benzoate was a fully safe additive. An editorial in the Los Angeles Herald decried Wilson’s tactic and its result: “As the inside facts concerning the Denver convention become more generally known it is revealed as one where the artifices of the politicians were considerably more in evidence than the sober thought of the expert charged with protecting the public health.”
But Wilson was wholly satisfied. He wrote to President Taft that “we fully smashed the program, turned things end for end, fully endorsed the Referee Board and its findings.” Wiley, Wilson added, was a troublesome “low class fellow” but he believed that the Denver vote had sent the chief chemist a warning to Wiley that his policy of defiance would not be tolerated much longer.
Between his fight to maintain some level of toxicity research and his battles for enforcement and public awareness, Wiley’s staff worried that their chief was beginning to sound exhausted. They were also angry over Wilson’s dismissal of their own work and increasingly willing to push back. One of the most determined to do so was Lyman Kebler, still steaming over the suppression of his investigation of medicated soft drinks.
Kebler had left a lucrative job at Smith, Kline, French & Co. in Philadelphia for the Department of Agriculture, because he believed that it was critical to establish honest practices for pharmaceutical products. Now forty-three, he led the Chemistry Bureau’s oversight of the drug industry and had earned a reputation as meticulous and, on occasion, ruthless. The Bulletin of Pharmacy, while not entirely an enthusiast, had described Kebler, with some respect, as the country’s most eminent “foe to fakers.”
Kebler, with Wiley’s backing, decided to counter Wilson’s suppression of his report with an even more in-depth investigation. To do so, he reviewed more than one hundred brands of medicated soft drinks and bottled waters on the market. The manufacturers ranged from small companies such as New Hampshire’s Londonderry Lithia, which made a drink rich in the element lithium, to large ones, such as the Atlanta-based Coca-Cola Company, which had famously made its fortune through a nineteenth-century formula that had included the potent stimulant cocaine. By withholding his report, Kebler told Wiley, the department was hiding both knowledge and risk from American consumers. He knew Wiley was under constant attack; he knew that Wilson had very little patience with the bureau. He also knew that his planned publication had a very provocative title: “Habit-Forming Agents: Their Indiscriminate Sale and Use a Menace to Public Welfare.” But, he added, that title realistically summed up a national problem.
The indiscriminate use of narcotics remained an enormous risk to public health, Kebler pointed out. Many “soothing syrups” for children were laced with morphine, heroin, and chloral hydrate, among other sedatives; cough syrups and asthma medications for adults could contain a mixture of several of these narcotics. Further, Kebler considered the problem of medicated soft drinks particularly troubling because consumers often had no idea that the sodas contained stimulants and/or intoxicating agents. Doctors reported cases of soft-drink addiction, and insurance companies, he said, were trying to develop a plan to deal with “soft drink habituees [sic].” Wiley agreed to make the case to Wilson yet again. But, he told Kebler ruefully, he could make no promises that his argument would work.
The yet-to-be published “Habit-Forming Agents” offered a damning review of the unrestricted use of narcotics in over-the-counter remedies. It was equally unsparing on the subject of counter drinks: “During the last 20 years, a large number of soft drinks containing caffeine and smaller or greater amounts of coca leaf and kola nut products have been placed on the market. Preparations of this class, on account of insufficient information, were formerly looked upon as harmless, but they are now known to be an impending evil.” Kebler had drawn up a list of the worst offenders, many of which were named to hint at their stimulant content: Mello-Nip, Dobe, Kola-Kok, Pillsbury’s Koke, Kola-Ade, Kos Kola, Café-Coca, and Koke. As a further example, the department had ordered the seizure of two products from the American Beverage Corporation: Great American Coca Cream and Great American Pepsette. An analysis found that Coca Cream contained saccharin, benzoic acid, cocaine, and caffeine; and Pepsette, which advertised itself as a pepsin-based, fruit-flavored soft drink, contained no pepsin at all but plenty of cocaine.
It was one thing for the department to find fault with any of those companies—most of them serving limited regional markets—and even to take enforcement action against one or a few. It was quite another to take on Atlanta-based Coca-Cola. The National Druggist estimated that the company sold more than ten million gallons of Coca-Cola to American soda fountains alone, “representing 300,000,000 glasses” consumed annually. This combination of money and influence played a role in the careful approach of James Wilson toward the company; he was especially wary of provoking the company’s influential and combative president, Asa Candler.
The Georgia tycoon had publicly supported the 1906 food and drug law, emphasizing the “pure and wholesome” nature of Coca-Cola. And after the law passed, Candler’s company also stopped secretly sweetening the beverage with cheap saccharin and returned to the old sugar formula. To Candler’s unhappy surprise—expressed loudly to Wilson and others—those measures had not led to a perfectly harmonious relationship with government regulators.
The U.S. Army in 1907 dropped Coca-Cola from its list of approved beverages, responding to rumors that the drink contained a possibly intoxicating level of alcohol. Arguing its innocence, the company requested an analysis by the Bureau of Chemistry to prove such suspicions wrong. The results convinced the army to take Coca-Cola back: Wiley’s chemists found only a trace amount of alcohol residue from the oils and extracts used in the soda, nothing even close to a level that could cause intoxication. The bureau analysis also confirmed that the soft drink was cocaine free. The only notable stimulant in Coca-Cola was caffeine. A glass of the soft drink, served at a soda fountain, contained slightly more than half the amount of caffeine in a cup of coffee and close to twice that in an average cup of tea. Candler assumed these findings were as reassuring to the Agriculture Department as to the Department of War. But as would gradually become clear, the tests raised other issues to trouble Wiley and Kebler.
Wiley, who, as his colleagues often complained, was given to literal-mindedness about labels, thought the word “coca” implied to consumers the existence of that ingredient; some of the labels even depicted the fruit of a coca plant. Kebler was more bothered by the caffeine levels. This was a drink marketed directly to children, without any disclosure of the stimulant involved, and he took that worry to the chief chemist and again asked his aid in raising the issue with the secretary of agriculture. “I am not a believer in the promiscuous use of caffeine,” wrote Wiley to Wilson in a memo detailing his concerns about “so-called soft drinks.” As always, the chief chemist had a list of other concerns, such as the artificial flavoring (industrial citric acid instead of real lemon juice, pepper dust instead of ginger), coal-tar dyes, and cheap saccharin as an unlabeled sugar substitute. These methods were “highly objectionable both on ethical grounds and because of their possible injury to health.” But he’d come to agree with Kebler that the unlabeled caffeine issue should be addressed first.
They got support from an unexpected quarter. George McCabe thought Coca-Cola might offer a test case on the unlimited use of stimulants in products sold to children and urged Wilson to at least consider the idea. Meanwhile, Wiley continued to urge the secretary to act: “Coca-Cola is one of the most widely sold beverages in the country. Its use is to a certain extent habit-forming and great injury may come to health by the continued and excessive use of an alkaloid of this kind.” In his memo to Wilson, Wiley emphasized that he wasn’t deliberately singling out the soft-drink industry; it was a healthy alternative to alcohol for adult drinkers, and “there is much to be said good about it and little bad,” he wrote. But publicly, the chief chemist was starting to take a harder stance.
In a spring 1909 speech at the Holy Cross Academy in Washington, DC, Wiley warned the students: “If you only knew what I know about these soft drinks you would abstain from them,” he said. “It would surprise you that most of them have more caffeine in them than coffee—and a drug even more deadly.” After newspaper accounts of the talk provoked angry complaints from the American Bottlers Association, he clarified that, emphasizing that caffeine was his major concern. “What I did say to the young girls at that academy is that parents often forbid their children to drink coffee or tea and yet they could get caffeine, the most injurious part of those drinks, at the soda fountain.”
What he didn’t mention was that, following the Coca-Cola analysis, he’d sent Lyman Kebler down south to take a closer look at both the company and the culture surrounding soft-drink consumption. Kebler had combined a visit to the company headquarters and production facilities with some time spent lurking at Atlanta soda fountains. He was dismayed to observe children as young as four years old drinking glasses of stimulant-rich Coca-Cola. It was this report, in part, that had led Wiley to urge a legal test case, arguing that caffeine was an unlabeled additive that posed a genuine health risk to children.
Wilson, still annoyed, sent Wiley a memo ordering him to drop the subject—and again refused to publish Kebler’s report. Wiley had no evidence that the Coca-Cola Company had helped influence the decision, but he thought it highly likely. “I was, of course, surprised and grieved at this action on the part of Mr. Wilson, but as usual I could see behind it the manipulation of powerful hands.” He suspected that an action against Coca-Cola was never going to happen. And then a visit from a muckraking Atlanta journalist changed that prediction.
In October 1909 Wiley sat down for an unexpectedly hostile interview with Fred L. Seely, editor of the reform-minded newspaper the Atlanta Georgian. Seely was a longtime critic of the Coca-Cola Company’s indifference to others and he saw the federal government as complicit in the company’s bad behavior. He demanded to know why the Agriculture Department had never gone after Coca-Cola for the health issues linked to consumption of its product. Wiley responded defensively that he had in fact recommended that the company be prosecuted. His chemists had even done research suggesting that the soft drink might be both “habit-forming and nerve-racking.” He then showed the journalist a handful of the memos he’d written to Wilson on the subject—all of which had been rebuffed.
There was, for instance, the memo telling the secretary that “this product contains an added ingredient [caffeine] which may render the product injurious to health.” There was also one regarding false labeling, noting that “the name Coca-Cola would indicate that it contained the substances and active principals of the coca leaf and the kola nut, when as a matter of fact it contains only an extract derived from exhausted coca leaves, which is a refuse product obtained in the manufacture of cocaine.” There was another memo urging that “an effort should be made to stop the traffic in a dangerous beverage.”
In that last note, Wiley had written to his boss that Coca-Cola “contains an alkaloidal, habit-forming drug of a character which is forbidden to be used by hundreds of thousands of parents in this country who refuse to allow their children to drink either tea or coffee, which contain caffeine in its natural state and in a much less injurious form than this misbranded and adulterated beverage. Our duty is clearly in this case to protect the people of our country in every possible way.”
Seely studied the memos that Wiley brandished at him. Then, newly outraged, he marched over to Wilson’s office and demanded a meeting on the spot. When it was granted, he told Wilson that he planned to write a story about the department’s refusal to protect consumers from a dangerous product. He would feature the secretary’s order telling Wiley to leave Coca-Cola alone. He planned to make an example of Wilson as government corruption at its worst. The following day, Wilson called Wiley into his office and told him that it was time to make a formal seizure of Coca-Cola products. “It is remarkable,” Wiley noted sarcastically, “what the fear of publicity will do!” The secretary also told Wiley that he would schedule Kebler’s medicated-soft-drink report for the following spring.
On October 21, 1909, two weeks after Seely’s visit, the U.S. government moved to seize a shipment of Coca-Cola syrup bound for the company’s bottling plant in Chattanooga, Tennessee. The action meant that the government would need to schedule a formal court hearing into the company’s famous and lucrative product. A date had not yet been set for the hearing, but the legal action was already gaining attention based on its title alone: United States v. Forty Barrels and Twenty Kegs of Coca-Cola.
Toward the end of 1909, rumors began circulating that Taft was preparing to announce his whiskey decision. The rumors also predicted which side the president would take. Newspapers began writing mockingly about the new “Taft Whisky,” which would be “neutral spirits made from molasses and beet refuse.”
On December 26 the president announced his decision, officially changing the Roosevelt rules and establishing final definitions. The president ruled that the term “whiskey” could and should be used for any and all liquors made from grain alcohol. The government would require some “subordinate” description—whether the product was blended and a list of ingredients, such as coloring agents or neutral spirits. But there would be no requirement to label a quick-stilled and well-dyed product as imitation and there would be no describing barrel-aged whiskeys as the only real thing. Taft said that he agreed with the wholesale group that all alcohols were basically “like” substances. Or as economics professor Henry Parker Willis put it, “Whiskey appears to be virtually anything that will serve to intoxicate.”
Lloyd Bowers, the solicitor general who had issued the more nuanced decision earlier in the year, called Wiley the next morning. As Wiley described the conversation, Bowers, who was an old friend of the president, said that he was about to depart on a much-needed vacation. But before he left he wondered, “What do you think of Mr. Taft’s decision?” Wiley replied ruefully that he felt as if he’d been spanked. “He laughed and said so do I.”
Not everyone took Taft’s decision with such grace. In January 1910 Arthur Stanley, head of the Louisville-based Glenmore Distillery, wrote to Wiley that he thought the president was mostly a very good friend to Joe Cannon and his Peoria rectifiers: “What I fear is that wine distillers of Illinois will be allowed to brand their output as whisky, it will then be shipped to the rectifiers and mixed with real whisky and then called a ‘Whisky Blend.’” It was a terrible precedent for those who cared about honest labeling, Stanley said bitterly, and had the potential of “virtually nullifying the Pure Food Law.”
Alice Lakey felt the same. Her organization, the National Consumers League, issued a formal resolution to that effect: President Taft’s statement “that neutral spirits, which the most eminent food chemists have declared an unlike substance to whisky, may be added to whisky and the whole product colored with burnt sugar or caramel without stating the latter fact on the label, etc. is destined to open the door for the return of all the evils of adulterated foods, drugs, liquors and medicines that have for a time been held in check by the operation of the pure food law. . . . We the executive board protest against this action and urge state officials to stand up.”
Lakey also wrote to magazines and newspapers: “We believe that Mr. Taft’s decision is the most serious blow to the pure food legislation this country has had. We believe that it is class legislation. We believe it permits special rulings for one product coming under the pure food law which was designed to make uniform regulations specific. . . . If this decision holds, it opens the door for every other product to demand the same ‘immunity bath.’ . . . If we follow this reasoning when, then, should blackberry brandy contain any blackberry juice? . . . This decision robs the consumer and the honest manufacturer of the protection designed by the pure food law.”
To Wiley she wrote privately that she doubted the decision could be changed: “It is a very strong illustration of how clever the rectifiers are.” But Wiley, increasingly besieged at the Department of Agriculture, put most of the blame on Wilson, who he suspected had quietly moved to undermine the law. In a letter to Lakey, he wrote, “There is but little we can do as long as the present Secretary of Agriculture is in the saddle.”