Thirteen
THE LOVE MICROBE
1910–1911
Till you think of the past and the future and sigh
Wiley wasn’t prepared to give up. As Wilson knew all too well, his chief chemist never was. With the idea of pressing his beleaguered cause outside the department, by the start of 1910, Wiley had lined up months’ worth of public talks.
In January he had promised to talk to the Men’s Club of Newark, New Jersey, on the “morality of business”; to testify about aluminum levels in baking powder at a state trial in Harrisburg, Pennsylvania; to talk about food additives to the Montgomery County Medical Society and the Medical Society of New York. In February, the Harvard Club in Philadelphia; in March, the New York State Department of Health; in May, the Historical and Art Society; in July, the United States Pharmaceutical Convention in Washington, DC, and the National Dental Association in Denver. He’d also tentatively accepted engagements in Oklahoma City; Des Moines; Lawrence, Massachusetts; and Brooklyn, Newburgh, and Buffalo, New York.
In March, at Lakey’s urging, Wiley agreed to add a trip to Cincinnati for a presentation at the national convention of the General Federation of Women’s Clubs. More than ever he recognized how important politically motivated women were to the pure-food cause. The same month, he accepted an invitation to speak to a women’s suffrage club in Washington, DC. Although that decision was perhaps less political. The invitation came from Anna Kelton.
Kelton, now thirty-two years old, was still single and living at home, still working as a clerk at the Library of Congress. Still elegant, intelligent, well read, still a deep supporter of progressive change, she was also, these days, a passionate advocate for equality. She’d joined the National American Woman Suffrage Association (NAWSA) to help in the drawn-out, frustrating fight for women’s right to vote. The association worked closely with other women’s organizations, from the WCTU, which now had a ratification committee, to the General Federated Women’s Clubs. And like them, the suffragettes had begun to take on consumer issues such as the struggling food and drug law. That interest encouraged Anna Kelton—Nan to her friends—to draw on an old relationship and invite Wiley to speak to her group about the importance of the national food law. He was happy to say yes—and just as happy that she still embodied the kind of crusading zeal that had always appealed to him.
In May 1910 Wilson issued a formal directive (General Order 140) giving George McCabe full authority over the regulation of food and drugs, including the ability to revoke earlier decisions by the Bureau of Chemistry.
Wiley, now perpetually on edge, told his friends that he feared that with this new power McCabe would enact further rollbacks on the regulation of preservatives. But the attorney surprised him by tackling a different contentious issue. Responding to industry complaints, McCabe moved to loosen restrictions on food dyes, one of the more successful enforcement actions taken after the passage of the 1906 law.
Before the law, even food manufacturers had become alarmed about the toxic nature of industrial coloring agents. Some still used the old-time vegetable-based dyes, such as saffron or annatto for yellow. But those dyes were both comparatively expensive and muted in tone. They did not offer the eye-popping yellows, reds, and greens that could be achieved by using metallic elements such as arsenic, mercury, lead, and copper. Yet thanks to a combination of toxicology studies and occasional poisoning episodes, such metallic additives were increasingly regarded as more trouble than they were worth. The National Confectioners Association had recommended back in 1899 that to avoid injuring customers, members voluntarily avoid almost two dozen coloring agents in their candy and other sweets.
New options arose with synthetic dyes made from coal tars—dense, chemically complex residues left over from the processing of coal. These compounds dated back to work by the English chemist Sir William Henry Perkin, a student of August Wilhelm von Hofmann, who pioneered analysis of coal tars and whose lectures Wiley had attended on his 1878 sabbatical in Germany.
Some decades earlier, in 1856, Perkin had used the coal-tar derivative benzene to create a purple dye that he called “mauvine” (a name later shortened to “mauve”). Benzene, a neatly linked ring of carbon and hydrogen atoms, also proved a handy base for other synthetic dyes, offering up a vivid chemical rainbow. The new dyes were durable, cheap, and potent—and rapidly adopted by industrial processors of everything from fabric to food. Chemists called them “aniline” dyes but they were widely known by a more direct description as coal-tar dyes. By the time the food and drug law passed, more than eighty such coloring agents were being used in American food and drink, without any safety review or restriction.
After passage of the 1906 law, the USDA had quickly banned food dyes based on lead, mercury, arsenic, and other toxic metals. And Wiley had hired an outside expert, a respected German food dye chemist named Bernhard Hesse, to evaluate the safety of the coal-tar dyes. Hesse’s research led him to conclude that only seven of eighty such dyes on the market could fully be considered safe. A resulting 1907 Food Inspection Decision approved only those seven—three red, one orange, one yellow, one green, and one blue—as “certified colors.” Predictably, makers of colorful foodstuffs sought to lengthen that list. But Hesse had stockpiled an arsenal of evidence showing that many of these other dyes could be directly linked to health problems. Wiley had firmly kept the list short, moving to block any coloring agents that weren’t clearly identified as safe.
Newly employed by James Wilson in 1910 to guide the law’s enforcement, McCabe decided to review Wiley’s consumer-friendly decision. Deliberately splitting legal hairs, he wrote that “certification” was not a strictly approved process under the food and drug law. The legislation provided a framework for banning food products and additives considered injurious, but not for official sanction of others as safe.
Wiley pointed out in return that prior certification was less punitive to manufacturers than after-the-fact seizure and prosecution—something that he thought McCabe should find appealing. Further, the process had removed some very risky products from the food supply. He warned that weakening the certification provisions would allow unsafe dyes back onto the market. McCabe, unmoved, joined with Dunlap on the three-member Food Inspection Board to remove the certification requirement from the rules governing dyes. Wiley refused to sign the paperwork. The department issued the decision without his signature but the chief chemist decided to fight that move. He asked Hesse to prepare for Secretary Wilson a full report on the safety of coal-tar dyes. Perhaps the actual evidence would prove persuasive.
While Hesse worked on the new report, McCabe moved ahead with his legal test of bleached flour. He had a major enforcement question that needed clarifying. The nitrates that occurred as a result of bleaching were but by-products of processing. Did the government have the authority to regulate by-products as well as additives? It was an issue that needed a quick resolution. The Agriculture Department had that spring seized 625 sacks of bleached flour en route from the Lexington Mills and Elevator Company of Lexington, Nebraska, to a large grocery company in Missouri. The National Millers Association—also seeking a test case—decided to fight the seizure in the U.S. District Court in Missouri.
In court, the millers’ group argued that bleaching did not degrade flour; rather it enhanced it. Thus the practice rose above the standard of adulteration under the law. The manufacturers further asserted that residual nitrates and nitrogen peroxide were not unsafe or injurious industrial additives but products of nature, created by a whitening process that used such harmless methods as electricity and naturally occurring gases, “a blast of God’s own pure fresh air.” Bruce Elliott, the attorney representing the millers, pointed out in court that nitrates occurred in nature, including in the human body. Even if they carried some hazard, he continued, the average American undoubtedly had a natural tolerance for them.
The Agriculture Department’s experts countered with evidence that bleached baked goods contained an unnaturally high nitrate level. In a courtroom demonstration, a bureau chemist brought in two batches of biscuits, one made with unbleached flour and the other with some of the seized bleached flour. Both had been treated with a compound that turned red when exposed to nitrates. He offered to the jury a choice between a plate of golden brown biscuits and a plate of bright pink ones.
The defense did not deny that the bleached-flour biscuits contained nitrates, enough to produce a rosy color in the chemical test. But, changing tactics, the millers’ attorneys argued that even if nitrates were indeed injurious to health no safe level had been established scientifically. Therefore, it was impossible to argue how much was too much. The government’s insistence on a low and “harmless” level of the compounds could then not be based on solid evidence and ought not to be admitted. The Missouri judge found that final assertion completely reasonable.
As he told the jury, “The fact that poisonous substances are to be found in the bodies of human beings, in the air, in potable water . . . does not justify the addition of the same or other poisonous substances to articles of food, such as flour, because the statute condemns the adding of poisonous substances.” But it was the character of the additive, not the amount, that should guide the rules, the judge said, and if nitrates had no clearly defined toxicity levels, then they did not meet the law’s definition of a poisonous substance. The jury, composed of bread-eating citizens clearly unhappy about the addition of nitrates to their daily meals, did not embrace such over-legal reasoning. As their verdict made clear, they wanted their food to be safe before all. The jurors found for the government, rejecting the judge’s advice, firmly declaring that the bleached flour was both adulterated and misbranded and had been seized legally.
On behalf of his shocked clients, Elliott responded—embarrassingly for the White House—by complaining to newspaper reporters that he’d been promised better results. In fact, he had personally met with President Taft and been assured of a fair trial, which he took to mean a decision in his favor. He added that he had also met with Wilson and been assured that the flour studies would be taken away from Wiley and turned over to the far more sympathetic Remsen Board. In his opinion, the case was evidence of the unreliable nature of administration officials, not to mention government failure to support good American businessmen. He made it clear that he and his clients would appeal the decision and were prepared to fight for years if necessary. This government overreach would never stand, Elliott declared, and he predicted that the U.S. Supreme Court would agree.
Bernhard Hesse’s eighty-page report, Coal-Tar Colors Used in Food, described experiments in which he had supplied colored food and water to test subjects—dogs and rabbits—over periods of not less than thirty days. The dosage of the dyes was calculated to be comparable to a possible high end of human exposure in a daily diet. The resulting health effects on the animals included weakness, nausea, vomiting, irritation of the intestinal tract, damage to the mucous membranes, fatty degeneration of the liver, swelling and discoloration of the kidneys, and, on occasion, evidence of dyes in the brain or the lining of the lungs.
The most common effect seemed to be a lingering stupor, sometimes followed by a gradual slide into a coma and on rare occasions the death of the test animal. He also noted minor side effects such as mild diarrhea and low levels of albuminuria, or protein in the urine, a symptom of kidney disease.
“It must be remembered,” Hesse noted, “that smaller amounts of drugs, and therefore coal-tar colors, affect children as a rule than are effective upon adults.” He suggested that a three-year-old child’s dose should be about one-fifth that of an adult’s—a twelve-year-old should receive no more than half. “All of this should be taken into account in drawing conclusions as to the harmfulness of coal-tar dyes on humans.” As a large variety of dyed foods—candies, decorated cakes and pastries, soft drinks—were marketed largely to children, he worried that animal research–based “deductions” about the risks to adults might well underestimate the problem. To the surprise of some in the department, Hesse’s thorough job, impassive and scientific, won over Secretary Wilson. The certification program, he announced, would remain in place—a decision that allowed Wiley a moment to savor an increasingly rare victory.
By 1910 Wiley had been at the USDA for twenty-seven years. There’d been tumult and struggle at the department, but he had prospered personally. He had good friends in Washington and across the country. After twenty years rooming with a Washington family, he had acquired his own house, a three-story brownstone, just a short walk from Dupont Circle in northwest Washington. He turned sixty-six that year and had confided in letters and in his daily journal that he had considered retiring—especially after recent professional setbacks—and he’d bought himself a modest country place in anticipation, a farm in Loudoun County, Virginia, in the eastern lee of the Blue Ridge Mountains. Admiring its rolling meadows, he’d named it Grasslands. He’d even purchased a newfangled steam-powered automobile, among the first in Washington, with the idea of driving himself out to his country property. The car, however, had been almost immediately damaged in a collision with a horse-drawn wagon, an incident that Wiley would describe, with some amusement, as a collision between past and future.
The accident would also return him, while repairs were under way, to traveling by public transportation. In late October 1910, Wiley was waiting for a streetcar when he found himself standing near Nan Kelton. She appeared genuinely glad to see him again. Before they parted, he impulsively asked her if he could come call, perhaps take her to a show or out to dinner. To his surprise and happiness—confided to his journal—she said yes. Over the next month, he embarked on a renewed courtship. They quickly rekindled their relationship, and in the first week of December Wiley again proposed. This time she accepted without reservation. The engagement announcement was received with pleasure—and amusement—by the nation’s newspapers.
DR. WILEY WILL TAKE A BRIDE, began a headline in the Chicago Tribune. PURE FOOD EXPERT TO DESERT CAFES FOR HOME COOKED MEALS. The paper added a cheerful subhead: “Fiancée Not Terrified.” As the story that followed put it: “Dr. Harvey Washington Wiley, pure food expert and rampant foe of the near-lamb chop and almost-chocolate drop, conserver of the national digestion and chief exponent of the we-must-have-pure-food-to-be-happy cult, is getting married.”
The Los Angeles Examiner headlined its story GREATEST ENEMY OF FOOD GERMS FALLS VICTIM OF LOVE MICROBE. The writer speculated that the wedding cake “will have no old eggs, no alum, no clay-clad eggs or near-butter. Nothing but the purest of flour and baking powder and dairy out put [sic] will be used.” The Denver Post printed a cartoon showing a fainting Kelton being carried away as her relentless husband searched the kitchen for chicory in coffee and preservatives in jam.
Kelton, swamped by interview requests, took the attention in stride. She used the opportunity to advocate for women’s right to vote. A newspaper in Bangor, Maine, headlined its resulting story WILEY TO WED SUFFRAGETTE. She cheerfully told the Boston Journal that she didn’t know how to cook. “I have been in the Congressional Library almost since I left college so I have had little time for domestic science.” Fortunately, she added, her husband-to-be happened to be an excellent chef. That made Wiley laugh. He appreciated the story, which described her as a woman who “admires and takes pride in her fiancé and doesn’t hesitate to say so.”
At work he was so visibly happy that Wilson permitted himself to hope that his obsessive chief chemist would finally have another interest besides pure food. “There is a shade of hope for Wiley’s future,” the secretary wrote to Ira Remsen. “He is going to marry a suffragette, I believe, which may result in a change for the better; at least in these Christmas holidays, let us hope so.”
After the passage of the 1906 law and his savage evaluation of its shortcomings, David Graham Phillips, the journalist whose work had so enraged President Roosevelt, had been undaunted by presidential insults. He saw nothing wrong with being described as a “muckraker.” Phillips had continued to expose backroom deals between federal lawmakers, state legislatures, and the corporate interests—including food processors and their ilk—to whom so many officeholders were in deep financial debt. His articles detailing those well-financed connections would eventually help spur passage of the Seventeenth Amendment to the U.S. Constitution. That amendment threw out the old and increasingly corrupt system in which state legislators chose the U.S. senators to represent their respective states, and put in place public elections. The reform would not happen, though, until 1913, and Phillips would not live to see it.
After completing the last of his exposés of senatorial corruption, Phillips decided to take a break from muckraking and return to the relative tranquility of writing fiction. The choice, ironically, proved more dangerous than investigative journalism. Fitzhugh Coyle Goldsborough, a well-born member of a Baltimore family, who apparently suffered from mental illness, arrived at the deluded notion that a character in Phillips’s novel The Fashionable Adventures of Joshua Craig was based on Goldsborough’s sister. He confronted the author in front of the Princeton Club in New York, shot him multiple times, and then fatally shot himself. Taken to Bellevue Hospital, Phillips, just forty-four years old, died the next day, January 24, 1911. It marked an unhappy start to a year that would become one of the most stressful in Wiley’s career.
Barely two months later, in Tennessee, the matter of United States v. Forty Barrels and Twenty Kegs of Coca-Cola at last went to trial. Wiley, McCabe, Wilson, and the whole Bureau of Chemistry had been conferring for months on how to approach the lawsuit. The government’s case rested on three main points. First, it objected to what it described as the company’s shoddy manufacturing processes. Second, on Wiley’s recommendation, it challenged the very name “Coca-Cola” as false advertising because it implied that the drink contained both cocaine and kola (or bissy) nut extracts in its formula. This had been true in the nineteenth century but was no longer so; the Chemistry Bureau’s latest analysis of the drink showed that its primary ingredients were water, sugar, phosphoric acid, caffeine, caramel, glycerin, and lime juice.
The government’s third point—and this would become the primary focus of the trial—was that the drink did, however, contain another potent stimulant, namely caffeine. This charge immediately caught the attention of a dedicated nation of coffee drinkers as well as soft-drink imbibers. The Coca-Cola trial was going to put caffeine—and early-twentieth-century scientific understanding of its effects—at center stage. Not surprisingly, reporters flocked to Chattanooga for the show.
Newspaper coverage was constant and varied widely according to the editors’ perspectives. EIGHT COCA-COLAS CONTAIN ENOUGH CAFFEINE TO KILL, the Atlanta Georgian announced based on testimony in the trial’s first week, continuing its ongoing crusade against Asa Candler and his company. COCA-COLA DRINKERS SAY IT IS NOT BAD, the Chattanooga News countered. Wiley hadn’t wanted the trial to be held in that southern city, where a large Coca-Cola bottling plant was one of the city’s main employers. He had urged McCabe to get a change of venue to Washington, DC. But McCabe refused, fueling conspiracy theories among Wiley’s allies that the solicitor—and the agriculture secretary—wanted the case to fail as a means of further crippling the influence of the chief chemist.
McCabe began the prosecution by calling J. L. Lynch, an Agriculture Department food and drug inspector. Lynch promptly provided a detailed and alarming portrait of Coca-Cola production methods. Describing the way the syrup soft-drink base was made, he said: “The Negro cook engaged in dumping the ingredients in the kettle was scantily attired in a dirty undershirt, old dirty trousers and broken shoes. His bare feet were protruding from his shoes in places and he was perspiring freely. He was chewing tobacco and spitting from time to time, the expectorate falling on the floor and on the platform from which he was dumping the sugar.” Excess sugar also fell onto the platform, and the cook would shove it into the kettle with either a board or his feet, Lynch said. The caramel coloring was added on another floor of the building, he continued, and that level was so slimy with tobacco spit and other substances—“it had apparently never been scrubbed”—that the inspector declared that he’d been afraid of slipping and falling.
After Lynch came two scientists—H. C. Fuller, a pharmaceutical industry chemist, and W. O. Emory of the Bureau of Chemistry—who had independently analyzed the syrup. Both verified it no longer contained either coca leaf or kola nut extracts—although pictures of the plant leaves still decorated Coca-Cola barrels. Both verified that the primary stimulant now found in the drink was caffeine. They also noted some other unexpected ingredients—such as dirt, straw, and insect parts.
The government’s main expert on caffeine was Henry Hurd Rusby, professor of botany and materia medica at Columbia University’s College of Pharmacy and a longtime editor for U.S. Pharmacopeia, the publication that set uniform standards for pharmaceutical compounds. Rusby—fifty-six, slight, fair haired, brisk of manner—was a former physician who had developed a passionate interest in medicinal botany. Among other research projects, he’d spent more than a year in South America researching the plant sources of cocaine and caffeine. He was relieved to find the former missing from Coca-Cola but testified that caffeine was “apt to be deleterious to human health.”
Given the quantity of caffeine in the soft drink, as described by Fuller and Emory, Rusby testified, if the “product known as Coca-Cola were taken into the system in repeated doses it would be injurious.” Some twenty other government witnesses supporting Rusby’s claim were also part of McCabe’s expert list, a roster that showed he intended to win, despite rumors to the contrary. Expert after expert spoke of the risks involved in continually consuming the alkaloid, some telling the jurors about animal studies with alarming outcomes.
USDA chemist F. P. Morgan had found that a regular dose of Coca-Cola appeared to cause inflammation and lesions in the stomachs of rabbits. Boston-based toxicologist William Boos of Massachusetts General Hospital had looked at caffeine’s effect on frogs, finding that it interfered with heart rate and affected the nervous system and caused “reflex irritability.” The jurors also heard about unsettling effects on humans. “I consider caffeine a habit-forming drug,” said Dr. John Musser of the University of Pennsylvania. His patients who drank caffeinated beverages rarely consumed a single glass or cup: “Once taken, there is a desire or craving of the system to repeat the dose.” Dr. Oliver Osborne of Yale Medical School testified that several glasses of Coca-Cola a day registered above the recommended dose for caffeine set by U.S. Pharmacopeia. Dr. Maurice Tyrode of Harvard University testified that eight glasses of Coca-Cola contained so much caffeine that their rapid consumption was potentially fatal.
The court also heard from “Coca-Cola addicts.” A patient from Philadelphia reported that he had found the soft drink a helpful stimulant—at first. “When I felt tired or fagged a glass or two of Coca-Cola would revive me. As the habit increased, I consumed about a dozen drinks a day.” He sought treatment after developing insomnia and a state of constant jitters: “After I quit using Coca-Cola my general health improved and has continued to improve.”
Lyman Kebler represented the Bureau of Chemistry position. “I have traveled extensively in the United States and have observed that Coca-Cola is sold indiscriminately to all comers at soda fountains, without distinction as to youth or old age, nervous or robust persons. I have seen children as young as four years old drinking Coca-Cola at fountains,” Kebler said. Both as a scientist and a family man, he found this irresponsible and dangerous. He’d accompanied Fuller on the tour of the Coca-Cola plant, where he’d also been appalled by the filthy conditions; he’d been particularly struck by the spiderwebs’ dangling over the vats and the workers dripping sweat all over the floors and spitting tobacco juice everywhere: “I saw no cuspidors.” But Kebler had also noticed the two-hundred-pound containers of caffeine, in crystalline form, sitting alongside the cooking vats.
Like everything else in the plant, Kebler testified, the caffeine had appeared somewhat grimy. It was “not as white as the ordinary article.” There was a reason, Kebler continued, that Coca-Cola had two popular nicknames. One was “dope” and the other was “Coke,” and both referred, he said, to its well-known stimulant effects. That had been true when it contained cocaine and it was true now. “Caffeine is a drug having poisonous tendency,” Kebler said.
Coca-Cola was angrily prepared to counter these accusations. Its defense began with testimony from two members of the company’s founding family. First, John S. Candler, who had partnered with his brother, Asa, and other investors in forming the soft-drink company in 1892, declared that he consumed at least one glass of Coca-Cola a day—and sometimes six or more—but did not consider that evidence of addiction. He just liked it. “I have never experienced any inordinate craving for it or observed any tendency to form a habit.” In other words, he stated, “My health is good.”
Asa Candler’s oldest son, Charles Howard Candler, who was vice president and general manager of the company, directly contradicted the government’s accusations of cheapjack production standards. “About eight men, three white and five colored, are employed in making the Coca-Cola syrup,” he said. “The sugar is dumped into the kettle by a Negro who has been employed since 1906. He does not chew tobacco.” And that cook wore good protective gear while working on a well-cleaned factory platform, Candler added. The company called the cook, James Gaston. He said that he wore coveralls and heavy shoes while working in the factory—and for good reason. It would be dangerous to wear shoes with holes in them, he said, because “the stuff splashes out of the kettle and would scald my feet.”
Candler suggested that the government was untrustworthy. Certainly he doubted the veracity of its finding of dirt and insect parts in the soft-drink syrup. And he dismissed Kebler’s reference to the beverage’s drug-linked nicknames as unfair. The street terms were unauthorized and unwanted by the makers of Coca-Cola. “The company has never advertised or sold Coca-Cola under the names ‘Dope’ or ‘Coke.’” (This was true at the time; the company wouldn’t trademark the name “Coke” until 1945.) Further, the company disputed the idea that it was selling just another version of a stimulant—or a toxic substance—because its formula happened to include caffeine.
It also offered a lineup of expert witnesses. Rudolph Witthaus, a New York toxicologist known for his testimony in high-profile murder trials, promised, “I know of no case of caffeine in any quantity causing death.” John Marshall, of the University of Pennsylvania, one of the founders of American toxicological analysis, said that he’d tested caffeine’s effect on protein metabolism and found no measurable impact. Charles F. Chandler of Columbia University, an industry-allied sixty-five-year-old chemist who had testified for the meatpackers in the oleomargarine hearings before the U.S. Senate in the 1880s, declared, “I am familiar with caffeine. It is not a toxic or poisonous substance.”
Victor Vaughan, a chemist from the University of Michigan, who had earlier disputed Wiley’s contention that sodium benzoate might pose a health risk, also came forward as a soft-drink company witness. In his testimony Vaughan said he’d based his analysis on the possibility of imbibing an ounce of Coca-Cola syrup, mixed with a cup of carbonated water, six or seven times a day. “I have no doubt it would be stimulating to the brain and muscles, and to some extent, possibly the kidneys, slightly, but such stimulation would be normal.” Vaughan had fed guinea pigs Coca-Cola for almost four months and, he said, seen no ill effects worth mentioning.
Coca-Cola had also hired Columbia University psychologist Harry L. Hollingworth to run tests on caffeine’s effect on human mental processes and physical reactions. Later hailed as doing the most impressive research presented during the trial, Hollingworth’s study involved sixteen subjects, ten men and six women, between the ages of nineteen and thirty-nine. All had swallowed capsules daily during a four-week period. The capsules contained either no caffeine or caffeine in a range of different doses.
It was a classic double-blind study; neither the participants nor Hollingworth knew who received what capsule. At regular intervals, every subject was tested to evaluate motor skills and cognitive function. Each was also required to keep a journal recording sleep patterns and noting periods of either alertness or fatigue. By the end of the study, Hollingworth had accumulated 64,000 data points that he presented to the slightly stunned jury through a series of complex charts.
The psychologist found that caffeine did speed up motor reactions briefly. Its influence on cognitive processes was more gradual and more persistent. He described caffeine as a mild stimulant that, overall, seemed to enhance general performance across the spectrum of given tasks, without measurable harm that he could identify. The journalists covering the trial, many of them regular coffee drinkers, reported these results in great detail.
John F. Queeny, founder of the Monsanto Chemical Company in St. Louis, followed Hollingworth. The company was, as it was proud to say, the maker of both saccharin and the crystalline caffeine used by the soft-drink company. Queeny testified that Coca-Cola’s caffeine contents remained modest compared with other beverages such as coffee and tea. His company’s chemical analyses suggested that a strong cup of tea, for instance, could contain almost three times the caffeine in a glass of Coca-Cola.
The company then focused on consumers. A group of Atlanta doctors testified that none of the children they treated ever drank Coca-Cola—a counter to Kebler’s assertions. Witnesses also included ten carefully selected adult Atlanta residents—ranging in age from twenty-four to fifty-seven. These upright citizens, Coca-Cola’s attorneys said, had been consuming their product for an average of seven years, some drinking fifteen or more glasses a day. None of them had reported ill effects. The physicians hired by Coca-Cola were also confident that the adults who did imbibe Coca-Cola handled it without side effects. One doctor told of a traveling salesman who regularly knocked back nearly two dozen drinks a day. Or as the Chattanooga Daily Times put it—to the undoubted annoyance of the Candler family—the salesman had consumed “20 dopes daily” but remained in “perfect health.”
Before McCabe could assemble his rebuttal witnesses, Coca-Cola’s lawyers made a surprise appeal to Judge Edward T. Sanford to dismiss the case. They did not argue that Coca-Cola had proved that caffeine was harmless or that heavy soft-drink consumption was without risk; clearly that remained a matter of scientific debate. Rather the company now made an entirely new argument: The scientific debate was irrelevant because the company had made a new reading of the law. Coca-Cola now argued that caffeine was not an “added ingredient” but a basic part of the soft-drink formula. The law addressed additives and adulterants. If caffeine was not an additive, as Coca-Cola now argued, then the Agriculture Department had no standing to prosecute.
It was something of a legal gamble at this stage of a three-week trial. But to the surprise—not to say shock—of those on both sides, Judge Sanford readily accepted the company’s position. He agreed that the inclusion of caffeine in a soft-drink formula—regardless of whether the compound posed a health risk—was legally different from, say, adding formaldehyde to milk or copper sulfate to canned peas. On Friday, April 7, the day after Coca-Cola presented the new argument, Sanford dismissed the jury and closed the case: “I am constrained to conclude that the use of the word ‘added,’ when applied to poisonous and deleterious ingredients . . . cannot be considered meaningless.”
COCA COLA IS THE WINNER, announced the Chattanooga Daily Times headline, adding with some partisan pleasure, “Case is practically thrown out of court.” The paper speculated that the judge had taken sides, to protect not only the soft-drink company but also American business in general. The Daily Times claimed to have discovered that “if the government proved successful in the Coca-Cola case, it was the first of 2,500 prosecutions planned.” That number was a journalistic exaggeration, but it was true that the Agriculture Department had hoped for a clear legal precedent that would support better enforcement of the law and smooth the way for other cases.
For once, George McCabe and Harvey Wiley were united in dismay; on the same day that Sanford announced his decision, McCabe announced the government’s decision to appeal the Coca-Cola verdict.
The defeated delegation from the Agriculture Department had barely returned from Chattanooga to their jobs in Washington when the increasingly contentious saccharin question reemerged—and this time in ways that did not please Monsanto and its allies. A just-completed report by the Remsen Board, based on a review initiated at industry request, had found that the sweetener did indeed present a potential health risk if consumed in large enough doses.
And those large doses were made the more likely because of the common practice among food processors of substituting cheaper saccharin for more expensive sugar without informing the consumer, leading to a cumulative exposure. This was what Wiley had been warning about since before his unfortunate confrontation with the previous president. It underscored not just the chief chemist’s belief that saccharin could damage health but also his near obsession with truth in labeling. The finding, from the supposedly industry-friendly Remsen Board, headed by saccharin codiscoverer Ira Remsen himself, was a shocker to McCabe and Wilson—and one that infuriated Monsanto’s head, John Queeny.
It had come about in part because Remsen had prudently recused himself from the investigation. The lead investigator had been board member Christian Herter, a physician on the faculty of Columbia University and cofounder of the Journal of Biological Chemistry. In December 1910 Herter had unexpectedly died, at age forty-five, of what his doctors called a neurological wasting disease. His friend and colleague Otto Folin, a professor of biological chemistry and molecular pharmacology at Harvard University, had then completed the research.
Swedish-born Folin had used a Poison Squad–style method of adding capsules containing saccharin to the meals of healthy male volunteers. A tally of the results after four weeks found that tiny amounts of saccharin (less than 0.3 grams) taken daily did not produce any signs of obvious injury. In trace amounts, Folin reported, it appeared to be safe.
But in subjects given higher doses, both Herter in the early stages of the study and Folin in his follow-up work had recorded signs of digestive upset, ranging from nausea to stomach pain. Further, such higher doses were a real possibility for average American consumers, the report reminded the authorities, given that unlabeled saccharin was now found in products including canned fruits and vegetables, jams, jellies, wines, and other spirits. The Remsen Board also, again to industry dismay, concurred with Wiley that saccharin lacked any of the nutritive (caloric) value of natural sugar and therefore lessened the quality of food.
McCabe had long believed, along with Theodore Roosevelt and Secretary Wilson, that saccharin was relatively harmless, too benign to merit Agriculture Department regulation. That belief had become a de facto federal policy, reflected in the way that the U.S. War Department now included saccharin tablets in its military rations. But department policy was also to consider the Remsen Board findings the final word. In late April, just three weeks after the Coca-Cola trial ended, the Agriculture Department announced that starting in July 1911, all foods containing saccharin would be considered adulterated and therefore subject to prosecution.
Queeny, energized by the Coca-Cola trial, hurried to Washington to mount an immediate counterattack. He summoned Monsanto’s new attorney, Warwick Hough, the same Hough who had so ably represented the liquor wholesalers on the whiskey question. Together they gathered a cadre of chemical and food industry representatives, secured a meeting with Wilson, and asked the secretary to rethink the decision. First they contended that the government had moved too fast. They recognized that Wilson was a supporter of the Remsen Board. But the manufacturers, Hough now said, had a right to read and respond to the Remsen report before a rule was issued. Second he asserted that if the rule was to be issued, it should be amended to allow industry time to adapt, particularly time to gradually sell and reduce existing saccharin inventories.
Following the Coca-Cola debacle, Wilson was reluctant to rush into another industry showdown. He accepted both points. Following the meeting, and without consulting either Wiley or Ira Remsen, the secretary announced that the saccharin ban would be delayed until January 1912. He also reassured the business leaders that the Remsen Board had not been co-opted by the overly purist Wiley faction. “I want to say frankly to you gentlemen,” Wilson told the assembled group of saccharin industry representatives “that the referee board was organized and put into action for the very purpose of conserving the interests of manufacturers.” He then took a sly swipe at Wiley. The board, he added, was there to give industry a “sane hearing.”
The conversation was meant to be private, and Wilson would deeply regret both that it didn’t stay that way and, even more so, the reason it became national news. The exchange would soon be reported during a Senate investigation of a scandal at the Agriculture Department, one that would eventually involve not only the secretary and his underlings but also the president, drawing unwanted comparisons to the political storm over Taft’s 1910 firing of forestry chief Gifford Pinchot.
This new mess—and it would be publicly revealed to be one of many in the Agriculture Department—grew out of a plot hatched by Dunlap, backed by McCabe and Wilson, with the goal of removing Wiley and his allies from the department. The ill-managed conspiracy was rooted in the Coca-Cola trial and particularly focused on the government’s prominent expert witness, Henry Rusby, the prosecution’s prized critic of caffeine.
At first Rusby had refused to testify because of a reduction in federal pay for scientific consultants. The rate for such work had been $20 a day under Roosevelt. Taft’s thrift-minded attorney general, George W. Wickersham, however, had cut it to a mere $9 a day. With reluctance, Rusby had accepted the lower pay for his drug-analysis work for the government. He thought it too important to give up, he explained. But he said he couldn’t afford to accept so little for testifying in the Coca-Cola case. At that rate, by the time he had paid for unreimbursed travel from New York to Tennessee, not to mention hiring a substitute to teach his classes, it would be a money-losing endeavor.
Wiley pointed out to McCabe that Wickersham’s ruling allowed for some independence; several federal departments, also confronting witness reluctance, were still paying $20 a day for trial testimony. But McCabe refused to consider any additional money for chemistry experts. So, quietly, Wiley’s lieutenant Willard Bigelow devised a work-around arrangement. The bureau would hire Rusby for an annual fee of $1,600 a year. This would cover any expert testimony and all analytic work that might be required over the next year.
The Agriculture Department’s respected pharmaceutical expert, Lyman Kebler, wrote to Rusby, urging him to take the offer and pointing out that the flat fee would guarantee a regular monthly stipend no matter what the workload. “Personally, I am of the opinion that your new option is much better than the old.” Rusby accepted the deal and Wiley approved it, making a point of sending it to the department secretary. Wilson signed off as well, although, once the scandal blew up, he would hastily deny responsibility, saying that he had not been fully informed about the details.
The correspondence and records regarding the Rusby arrangement were filed in Wiley’s office before he left for Tennessee. There, Frederick Dunlap “discovered” them while searching through the chief chemist’s documents when he was gone. Dunlap was serving as acting bureau chief while Wiley attended the Coca-Cola trial, and he had requested and received access to Wiley’s office. After pulling the Rusby file and studying the arrangement, Dunlap—knowing of Wilson’s discontent with the chief chemist—realized that he could use Rusby’s hiring arrangement as the basis for charges that the chief chemist and his allies had defrauded the government.
In May 1911, he prepared a memo accusing Wiley, Kebler, and Bigelow of illegal misuse of government money, carefully keeping his action secret. Dunlap had his memo typed outside the department so that none of the secretaries or clerks—whom he had found to be distressingly loyal to Wiley—knew anything about it. He then took the memo to Wilson. The agriculture secretary did indeed see Dunlap’s memo as a political gift, an opportunity to remove a perpetual thorn in his side.
Not surprisingly, Wilson also decided to keep the memo secret from Wiley and his staff, referring it directly to the department personnel committee chaired by McCabe. The solicitor, also weary of Wiley’s endless arguments, instructed the committee to find that Wiley, Kebler, and Bigelow had acted “in defiance” of Wickersham’s ruling on pay. McCabe recommended that Rusby’s contract be declared invalid, that Kebler be demoted, and that Wiley and Bigelow be offered the opportunity to resign. Wilson then reported the affair to Wickersham and asked him, as the country’s attorney general, to move the recommendations forward.
It was a politically fraught recommendation, as all would recognize belatedly. Wickersham carried the scars of the embarrassing Pinchot affair, in which he had favored the controversial firing, but his critics would complain that he appeared not to have learned from the experience. Major Archie Butt, an aide to Taft, described the attorney general as having the “political judgment of an ox.” Despite that earlier fiasco, in mid-May Wickersham wrote to Taft supporting McCabe’s decision.
It was the president himself who hesitated. He had warned Wilson earlier about having “too great of a disposition to charge people with bad faith and too great encouragement to newspaper controversy.” Taft remembered well the catastrophic fallout of the Pinchot decision and, recognizing that Wiley too was immensely popular in the country, saw a real risk of repeating it. He didn’t need another political struggle, especially within his own party, with an election year approaching. Also, Taft was himself a legal scholar. The president worried that Wilson’s procedure in this case had violated due process. None of the accused employees had been shown any of the charges against them or allowed to respond to them. Further, some of Taft’s most trusted confidants, such as U.S. senator W. Murray Crane of Massachusetts, had recently warned him that legislators were beginning to consider the Agriculture Department something of a snake pit.
Taft took some weeks to consider the recommendation. Finally he decided to proceed—but with caution, and with an eye to due process. On Monday, July 11, 1911, the president ordered Wilson to inform his subordinates of the accusations and proposed actions. No decisions would be made until the accused scientists had a chance to respond. Even so, Taft expected some blowback, maybe some bad press. But, as with the earlier Pinchot decision, he underestimated the popularity of the civil servant involved and the extent of public anger that would greet the news. Although not, perhaps, as much as James Wilson had done.