Fifteen
THE HISTORY OF A CRIME
1912–1938
. . . I wonder, what’s in it.
Theodore Roosevelt’s unhappiness with Taft as president, combined with his absolute belief that he himself would do a far better job, had drawn him back into national politics. During the same spring, of 1912, he campaigned to be the Republican nominee for the fall election. His odds looked promising; he’d started sweeping presidential primaries, including in Taft’s home state of Ohio.
The embattled Taft realized that just one more controversy would end his chance of staying in office. With outrage over Wiley’s resignation still simmering, he put off naming a replacement to the position of chief chemist. Quietly he and Wilson replaced Bigelow as temporary acting chief, but with another ally of Wiley’s—Roscoe Doolittle, who had recently taken McCabe’s place on the Food Inspection Board.
In a report to Wilson that May, Doolittle reported that fakery and adulteration continued apace. Products most frequently at fault, he wrote, included “cordials containing artificial color without declaration . . . figs unfit for consumption because of worms and excreta . . . flour bleached to conceal inferiority, eggs decomposed and unfit for food, arsenic in baking powders [also in gelatin and the shellac used to give chocolate a shine], so-called egg noodles containing artificial color but little or no eggs . . . black pepper containing added pepper shells, maple products adulterated with cane products, confectionary products containing talc and unpermitted colors, misbranded mixtures of olive oil and cotton seed oil,” and more.
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 year 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.”
The U.S. entry into the Great War had helped speed its end, although not before more than fifty thousand U.S. troops had died in combat. American losses were a mere fraction of the total, however; military deaths from the more than two dozen countries involved in the war topped eleven million, and civilian deaths exceeded those. The war concluded, on notes of both relief and grief, with the Treaty of Versailles in November 1918. The following January, Theodore Roosevelt died in his sleep during a stay in his Oyster Bay, New York, home at the age of sixty. Many attributed his decline into illness to the death of a favored son during the war. NATION SHOCKED, PAYS TRIBUTE TO FORMER PRESIDENT read the New York Times headline. “Our flag on all seas and in all lands at half-mast.”
But Harvey Wiley spared no mourning for Roosevelt, who remained central to his grievances over the fate of the food and drug law. “Even if . . . the President favored the food bill, it is perfectly clear that he took the most active part in preventing the Bureau of Chemistry from enforcing it,” he would write bitterly some years after Roosevelt’s death. He had been further disillusioned by Woodrow Wilson’s complete indifference to issues of food safety—although being ignored by the president had tended to reduce interference and work in the Chemistry Bureau’s favor. Still, when Wilson had run for reelection in 1916, Wiley had campaigned for Republican challenger Charles Evans Hughes.
Wiley, by contrast, came to appreciate Wilson’s presidency, at least regarding her leading cause. In 1918, after a series of meetings with suffrage leaders, the president changed course and backed a constitutional amendment favoring women’s right to vote, publicly urging Congress to draft language that would enable that action. On June 4, 1919, after much argument and presidential pressure, both houses passed an amendment granting women’s right to vote, and it was sent out for ratification as the Nineteenth Amendment to the U.S. Constitution. In just over a year, the required thirty-six states ratified it—the last being Tennessee, by a single vote from a young legislator whose mother ordered him to cast it or be forever barred from the house—and it became national law on August 18, 1920.
The case against saccharin had been halted during the war, due in part to its use as a substitute sugar in military supplies, a use that Alsberg publicly criticized. He remained committed to regulating the controversial sweetener. In December 1919, his case against saccharin as a food additive at last went to court in St. Louis, home of Monsanto. Government attorneys began the trial by demonstrating how widespread the unlabeled use of saccharin was in the food supply: in sodas and ice cream, candies, cakes, pies, breads, canned fruits and vegetables, sweet wines. American consumers, often without their knowledge, now consumed the artificial sweetener with almost every meal. “Unrestricted consumption” of saccharin had been shown to be dangerous, the Agriculture Department insisted, and it had plenty of evidence in that regard.
The government’s leading expert during this round was Anton Carlson, professor of physiology at the University of Chicago. Born in Sweden and with a PhD from Stanford University, Carlson was known for his evidence-based approach to toxicology. He liked to sarcastically describe scientists who theorized without studies to support their ideas as “chicks who chirp but don’t scratch.”
Carlson pointed out that the saccharin (an easily identifiable compound that meshed the well-known elements sodium, carbon, nitrogen, hydrogen, and oxygen) “gets into every place in the body and appears in every secretion in the body; it appears in the saliva; it may appear in the tears; it appears in the bile; just the same as it appears in the urine.” If fed to goats, it appeared in their milk. In every place, in every cell, he said, it had a physiological effect. His own studies on the digestive tract found saccharin caused an increase in stomach acids and a decrease in protein absorption. He absolutely would not describe it as “positively harmless,” the phrase used by the chemical industry. Monsanto’s lawyers didn’t attempt to rebut his studies but instead used a defense strategy inspired by the Supreme Court’s bleached-flour decision. Yes, saccharin might pose some risks, they argued, but the government had failed to positively show that putting it in the U.S. food supply caused active harm. Therefore, the Agriculture Department could not restrict it.
The jury failed to reach a verdict, splitting with seven in favor of the government’s case to five against. Against Monsanto’s urging, the judge agreed to a new trial, and Alsberg again directed his staff to begin building a case.
For many involved in the pure-food cause, these battles had become seemingly unending, largely because of the inadequacy of the 1906 food law itself. For example, the “Wiley law,” as everyone still called it, required ingredient labels but did nothing to address the problems of deceptive containers, designed to mislead consumers as to the amount of product they contained. Nor did it require manufacturers to reveal the number of ounces within those containers. Echoing the battles over the 1906 law, a “slack-fill” bill, introduced in 1919 and meant to improve regulation of such chicanery, was firmly opposed by the food industry and had failed in both houses of Congress that year. It then failed again the following year for the same reason.
In 1921, just before Republican Warren G. Harding took office as president, Carl Alsberg, himself battle weary, resigned as chief chemist. He took a position at Stanford as founding director of its new Food Research Institute. His replacement as chief of the Bureau of Chemistry was Walter G. Campbell, the Kentucky attorney whom Wiley had selected to direct the food-inspection programs created by the 1906 law. Wiley was pleased, although the two would not always agree on how to address the limitations of the old food and drug law. Campbell, for instance, would come to believe that an updated law was needed to address the deficiencies. Wiley fiercely defended his signature legislation, insisting that it simply needed better enforcement.
In the summer of 1923, President Harding suddenly died—doctors thought probably from a cerebral hemorrhage—during a visit to San Francisco. His vice president, Calvin Coolidge, succeeded him and won 1924’s election to continue in the office. Coolidge, a small-government conservative and former Massachusetts governor, had earned a well-deserved reputation as a friend to business and staunch opponent of regulation.
That same year the government’s prosecution of Monsanto and saccharin again ended in a mistrial, again on a 7–5 split in the government’s favor. Despite the president’s reputation for siding with industry, Coolidge’s secretary of agriculture, Henry Wallace, wrote to Monsanto’s Queeny, saying that the department was not giving up. This was echoed by a statement from the Bureau of Chemistry that “it would be a serious mistake to accept any form of compromise which would in any way, even partially, sanction the use of saccharin in food.” But the judge in St. Louis told the government attorneys that he was done with the case. He was prepared to strike it from the docket rather than revisit the issue. Further, if the government pursued it, he warned, then he was prepared to simply declare for the defendant. Angry Agriculture Department officials suspected that Monsanto, a major employer in the judge’s hometown, had finally applied enough pressure to end the case in the company’s favor. But they were stymied as to how to go forward.
The following year the government dropped its effort to regulate the artificial sweetener but issued a formal statement reiterating its lack of enthusiasm for the product: “The Government has much scientific evidence to show that saccharin is harmful to health and believes that it should not be used except as a drug under direction of a physician. It is sometimes prescribed for patients suffering with diabetes who demand some sweetening agent but who are prohibited the use of sugar. As a drug, saccharin has its uses. In our opinion, it has no legitimate use as food and is harmful to health.” The department used its authority to formally require that saccharin be listed as an ingredient on product labels, a measure that proved surprisingly effective in limiting its use. Many food companies, rather than reveal that they were surreptitiously using saccharin, removed it from their products. Others, inspired by the government’s preference for its health-related uses, began marketing saccharin and saccharin-sweetened products to diabetics and others who either needed or wanted to limit their sugar intake.
Wiley fumed over the decision to drop the case. He was increasingly disenchanted with everything about the federal approach to consumer protection. Upon Coolidge’s election, he’d written him an open letter, published in Good Housekeeping, urging newly aggressive enforcement and a reversal of decisions that allowed nitrates, sulfites, preservatives like sodium benzoate, and additives like saccharin and caffeine in the food supply. The letter closed: “It is the crowning ambition of my career before I die to see these illegal restrictions, which now make a prisoner of the Food Law, removed and the Law restored to the functional activity which Congress prescribed for its enforcement at the time of its enactment.”
Coolidge did not reply. Instead Wiley received a letter from assistant secretary of agriculture Renick W. Dunlap (no relation to Frederick Dunlap). In diplomatic language, it emphasized the department’s essential support on protection issues and agreed that the compounds listed by Wiley were “for the most part undesirable from the broad general standpoint of human health and nutrition” and that to eliminate them was “an object greatly to be desired.” But Dunlap also emphasized a growing consensus that the 1906 law was inadequate. Its primary enforcement mechanism—seizure of goods followed by prosecution—had turned out to be a cumbersome tool. More important was its failure to define key terms, such as “injurious,” or to provide a mechanism for doing so. Due to that failure, the court decisions, notably the bleached-flour ruling, had ended up hobbling enforcement. “To bring cases and fail,” Dunlap pointed out, “invited an increased employment of these [harmful] substances.”
Wiley had known since before the food and drug law passed that it was flawed. He’d argued in 1906 that it should include exactly the kinds of specifics that Renick Dunlap now cited as lacking, but away from the bureau, he had grown increasingly protective of “his” law. It was a position that would alienate him from some of his longtime friends at the agency, but not one that he could bring himself to change.
Still, in 1926, at age eighty-one, he joined former colleagues in a campaign to protect the law against a new push from an old enemy. The Corn Products Company, the corporation that had persuaded Roosevelt to allow the term “corn syrup” instead of “glucose,” had now persuaded a friendly Iowa senator to introduce an amendment to the food law that would have stripped away any power to regulate corn sweeteners in the food supply. The new language had been slipped in as part of an agricultural relief bill, and it specifically exempted dextrose—another name for sugar made from cornstarch, especially in its dry form—from being indicated on any label. Under the proposed amendment, dextrose would just be called sugar.
The proposal had gone through the Senate’s committee process without a single dissenting vote when Wiley, Campbell, and the alarmed regulators at the Agriculture Department learned of it. They also learned that Monsanto was providing lobbying money in support of the amendment; the company hoped that this exemption would pave the way for others to follow. Walter Campbell immediately organized an Agriculture Department pushback against the amendment, warning publicly that this move was designed to mislead consumers into believing they were purchasing a cane sugar– or beet sugar–sweetened product.
Wiley, back in warrior mode, canceled plans for a Florida vacation with his family. He sounded the alarm in newspapers, giving a widely printed interview to United Press in which he said: “I had hoped to do my small share in protecting the country from the wicked actions of food adulterers but I am afraid the battle is going against us.” Congress, he warned, was moving to allow food manufacturers to deliberately cheat American consumers, “mak[ing] legal the grossest kind of food adulteration in this case,” opening the door for countless other cheats and basically nullifying the good done by the 1906 law.
He said the same in his Good Housekeeping column, he personally wrote to all senators and congressmen, and he requested a private meeting with Coolidge to urge a veto if the law did pass. He did not gain the president’s help but he attracted the attention and support of Senator Matthew M. Neely of West Virginia, who took up the cause and, when the bill reached the floor of the Senate, conducted a filibuster. Throughout it Neely held a copy of Good Housekeeping in one hand, and he interspersed his speech with paragraphs read aloud from Wiley’s column, including the plea “Why should legislation be used to deceive the public?” The proposed amendment failed shortly later. The following day, Wiley wrote a glowing note to Neely: “The country owes you a vote of thanks for your heroic and successful endeavor yesterday to block the approval of the so-called ‘Corn-Sugar Bill.’”
In a 1927 efficiency move, the Agriculture Department split the old Bureau of Chemistry in two. It created a Food, Drug and Insecticide Administration to handle consumer protection duties, with Campbell as its head. The other division was the Bureau of Chemistry and Soils, with a focus on more basic agricultural research. The former chief hated the change, which he felt dismantled the agency that he had nurtured and shaped. He feared, as he wrote in his column, that the government had split and weakened the unit and would next simply set pure-food issues aside. Despite the positive signs—three years later Campbell’s agency was renamed the Food and Drug Administration, a clear sign of sharpened focus—he saw nothing but his own work being undermined and dismissed. He was now eighty-two years old and he was weary of the war. He stepped down from his full-time job at Good Housekeeping and decided to channel his remaining energy into detailing his grievances.
Wiley poured his anger and disappointment into a self-published book, The History of a Crime Against the Food Law. It appeared in 1929, bearing the unwieldy subtitle The Amazing Story of the National Food and Drugs Law Intended to Protect the Health of the People, Perverted to Protect Adulteration of Food and Drugs. A four-hundred-plus-page tirade, it detailed the many often-vicious attacks on Wiley and derided his attackers. It revisited in detail the early corruption of the law’s enforcement and leapfrogged into the enforcement failures of the 1920s.
The government had gotten it wrong, he wrote, on everything from toxic food dyes to imitation whiskeys, preservatives, labeling, corn syrup and soft drinks, and, most recently, saccharin. He decried “the ignominy and disgrace of great scientific men bending their efforts to defeat the purpose of one of the greatest laws ever enacted for protection of the public welfare.” If successive administrations had not bent to industry pressure, he asserted, the government would have avoided “outraged public opinion,” the American people would have become stronger and healthier, and “this History of a Crime would never have been written.”
The book’s bitter tone dismayed Wiley’s old colleagues, but they could recognize that his weariness and anger came partly from his declining health. Suffering from heart disease, he kept mostly to his home. But he too felt that his angry screed should not be his last word. Wiley began working with freelance writer Orland “O.K.” Armstrong on another book, an autobiography to be published by the Bobbs-Merrill Company of Indianapolis.
It may have been the influence of Armstrong, a social activist and reform-minded journalist (and later a member of Congress from Missouri), but the resulting work reflected a personality much closer to that of the younger Wiley—the Indiana-born chemist and occasional versifier with a lively sense of humor. It reflected his old passion to do good and his abiding belief in the power of science to benefit society. “The freedom of science should be kept inviolate,” he urged in its conclusion, and he returned to his old call for moral standards in research—that science should live up to its ultimate calling, which was “to search for truth and thereby to elevate and improve mankind.”
Harvey Washington Wiley: An Autobiography was published in late 1930, but Wiley never had a chance to hold that last book or learn how it was received. He died on June 30 of that year exactly twenty-four years to the day after Theodore Roosevelt had signed into law the Pure Food and Drug Act. He was buried in Arlington National Cemetery with a full military service, and his tombstone, on Anna Wiley’s orders, bore the legend FATHER OF THE PURE FOOD LAW. She’d also asked the minister to base his final tribute in a sermon on St. Paul’s words in the second Gospel of Timothy: “I have fought a good fight, I have finished my course, I have kept the faith.”
Walter Campbell was at the graveside to pay his respects. Despite Wiley’s late-life doubts about him, Campbell would continue to lead the fight for stronger food and drug regulation. In this he would be joined by activist groups formed in the 1930s, such as the Consumers’ Union, as well as longtime Wiley allies such as the American Medical Association and the still-powerful women’s organizations. New adulteration abuses would also come to light, ones that again highlighted the weaknesses of the old law. In a scathing book on the country’s health policies, 100,000,000 Guinea Pigs, the founders of the Consumers’ Union stated flatly, “Pure food laws do not protect you” and provided instances of everything from fake antiseptics to mascaras thick with lead to apples tainted by arsenic-rich pesticides. The consumer group directly blamed the pro-business U.S. government for the “squeezing out of Dr. Wiley and his policies,” a program that daily put American citizens at risk.
Consumer advocates renewed those charges to real effect when, horrifically, more than one hundred people—many of them children—died in late 1937, poisoned by cough syrup sweetened with the solvent diethylene glycol (often found in antifreeze). The Tennessee company that made the lethal concoction had, of course, not been required to safety-test it under the 1906 regulation. In fact, the only charge possible under the law was mislabeling; the syrup had been labeled an “elixir” despite the fact that it did not contain alcohol.
Campbell’s FDA had mounted an investigation of the event and now put it to political use. He’d been pushing the administration of Franklin D. Roosevelt on this issue for years, with limited success. Now, with everyone from pediatricians to parents expressing deep anger at government inaction, the cough syrup tragedy spiraled into a national scandal, one that soon sparked passage of that better law, the Food, Drug, and Cosmetic Act of 1938. The legislation replaced and greatly expanded on the 1906 legislation, correcting many of its deficiencies and enlarging the authority of the U.S. Food and Drug Administration. And although he did not live to see it, the new law, signed by President Roosevelt on June 25, 1938, marked the moment that Harvey Wiley’s once-tiny, six-man Division of Chemistry achieved one of his long-held dreams. The newly empowered FDA would become an independent agency with the real authority to protect American citizens against risky drugs and tainted food.
Wiley might have seen, at last, in the new agency that “more perfect” regulatory structure he’d hoped would arise from the 1906 law. He would have also undoubtedly continued to harangue the FDA to pursue even more perfect protection of his fellow citizens. “I believe,” he said while lobbying year after year for the first food and drug law, “in the chemistry of inward and spiritual grace. And I believe in its application to the welfare of humanity,” and nothing less would do.