I come now to your remarks to the President in regard to the Remsen Board, as follows: “This Board was appointed at the direction of President Roosevelt after it had become evident that in the enforcement of the Act repeated questions regarding the physiological action of the various food ingredients were arising.”

You forgot to state to the President who raised these 029 12questions. They were not raised by the consumers of this country, nor by high-grade manufacturers. These questions were raised solely by low-grade manufacturers who desired to use preservatives and artificial sweeteners in their foods. If these questions were to be investigated, it seems to me that the people who wanted them investigated should have paid the bills. They knew the attitude of the Bureau of Chemistry in the matter. That Bureau had made certain investigations and had made definite conclusions under the law. There was no need of any further investigation except before the Courts.

This body was appointed solely at the instigation of the lowest grade manufacturers of foods in the United States. You speak of it as being a physiological question. In that case, the Bureau of Chemistry was the party to settle the matter. There was no vestige of authority for the appointment of the Remsen Board, and the investigation of the Committee on Expenditures in the Department of Agriculture, unanimously found that the Board had no legal existence. The only justification was that they were personal advisors to the Secretary of Agriculture. As the Secretary of Agriculture was not charged by the law to determine any of these things there was, therefore, no authority to use money appropriated by Congress to enforce the Act to pay these people who were doing the work of the protesting manufacturers and to pay them out of the funds that Congress appropriated to carry the law into execution. The statement which you made to the President would naturally be conclusive with him and is a complete approval on your part of the validity of that Board.

In regard to the money which has been expended in the two cases in which saccharin has been under fire, I find that in the one case the expense was $28,038.68, and in the other instance, $8,279.19. In as much as these trials were brought after my separation from the public service, I am not acquainted with the character of the libels or charges made, nor with the method of conducting the trial. It seems to me that in a pure fraud like saccharin, there would be very little difficulty in securing a conviction, provided one goes about it in the right way and bases the action chiefly on its fraudulent character. In each case, I have been told that the majority of the jury was favorable to the Government. The money expended does not seem large when compared with the enormous expenditure of the Remsen Board in the interest of the adulterators. Approximately, $350,000. were wasted, or worse than wasted, on the Remsen Board. The expense which has been incurred by bringing the saccharin cases before the Courts is a mere bagatelle compared with those other expenditures to which I have just alluded.

I feel very keenly in this matter because of my long service in trying to establish a remunerative beet sugar industry in this country, and then seeing a fraudulent sweetener foisted on the public to save the expense of buying sugar. As the Remsen Board was the direct outcome of my denunciation of saccharin to President Roosevelt, I had a keen and abiding interest in this matter. I feel perfectly certain that when the matter is presented to the Courts in a way which is most likely to secure favorable action thereon, there will be little difficulty in ending this fraudulent practice upon our people. This is entirely aside from the well known manner in which saccharin is 031 14excreted from the body. It is passed through the kidneys, thus giving additional work to already over-worked organs and injuring the tissues of the kidneys to such an extent that the cells break down, refuse to work and albumin appears finally in the urine.

On page 6 of your letter to the President is a paragraph in which you refer again to the saccharin case. While I have already discussed this case from other points of view, there is one additional point of view to which I desire to call your attention. The Report of the Remsen Board on saccharin as interpreted by the Secretaries who were authorized to make rules and regulations for enforcing the law, was formulated in the following paragraph: “After full consideration of the representations made in behalf of the manufacturers of saccharin at the hearing before us and of the briefs filed by their attorneys, as well as the briefs filed, at our request, by officers of the Department of Agriculture, we conclude that the use of saccharin in normal foods, within the jurisdiction of the Food and Drugs Act, is a violation of law and will be prosecuted.”

Of course, the Secretaries had no authority to pass judgment on a matter like this as it is reserved exclusively by the Act for decision by the Bureau of Chemistry, but as this conclusion was all that could be desired in the way of condemning saccharin it is, to that extent, a regulation for enforcing the law, and possibly would be within the jurisdiction of the three Secretaries. It is signed by all three of the Secretaries.

When this food inspection was issued on March 11, 1912, it was just four days before my resignation of the office of Chief of the Bureau of Chemistry. Up to that time I had been forbidden by the Secretary of Agriculture from taking any steps in regard to this matter so long as it was pending before the Remsen Board. I, 032 15therefore, know nothing of the Court cases which arose thereafter in the endeavor to enforce the ruling of the three Secretaries. I imagine, however, that the members of the Remsen Board were willing to go to Court, and defend the results of this line of investigation as they so enthusiastically did in defending their decision on benzoate of soda in the famous Indiana case. In that case, as I have already called your attention, some of the members of the Remsen Board not only appeared in person but when they did not, their depositions were taken and read before the Court. They were enthusiastic in their efforts to secure favorable Court action on their decision which was against enforcing the law. Instead of enforcing it, as you know, they were paid by the Department of Agriculture for their efforts in this line. I have not seen any notice, however, of any evidence they gave before the Courts trying the saccharin cases in order to uphold the opinion which they had rendered in regard to saccharin.

It seems to me the most appropriate experts to have been brought before the Court were those who conducted the examinations which led to the ban on saccharin from human foods. I have not, however, seen any notice anywhere of their evidence in this case. Evidently, if they did not testify, it was because they were not invited to, or because they had no interest in seeing the law executed according to their decision, but rather confined their interest to preventing its being executed. As saccharin was the cause of the appointment of the Remsen Board it seems peculiarly fitting that the Remsen Board should have been foremost in maintaining the validity of their opinions. Moreover, saccharin happens to be a representative of three of the constituents of food which it has 033 16been my earnest purpose to forbid being used in human foods. It represents, in addition to itself, benzoic acid and sulphur, as it is called in chemical language, benzoicsulphimid. The sulphur and benzoic acid are never absent from this combination. Saccharin is wholly indigestible and is excreted almost exclusively, if not quite so, unchanged through the kidneys. But even the opinion of the Remsen Board is not in harmony with the decision of the Supreme Court in expounding the proper method of interpreting the phrase, “harmful to health.” Up to 0.3 gram per day it is harmless. If 0.31 gram is consumed it is harmful. This is not only bad law but it is worse physiology. Harmfulness in such addition to foods is by far a matter of personal idiosyncrasy rather than of quantity.

In regard to your summary of the matter, you state as follows: “The three cases just cited, namely, the coca cola case, the bleached flour case and the saccharin case, are illustrative of the supreme difficulty which is encountered in establishing by the introduction of technical scientific evidence that the addition of deleterious ingredients to foods in the small amounts in which they are present may render the foods injurious to health.”

Permit me to remind you in this matter that both in the coca cola case and in the bleached flour case, we won triumphant victories before the Courts. They were two typically different cases. In the coca cola case the trouble was with the Court below which ruled that caffein was not an added substance, but having been used in the original formula, was not subject to the provisions of the law. This decision of the lower court was carried to the Supreme Court which unanimously held that the lower Court was in error and remanded the case for a new trial.

The results of this trial, the President ought to understand. For a long while nothing was done. Finally, after several year's delay, the case was called for a new trial. In some way an immunizing paragraph was introduced into the decree. I, of course, not being in the public service at the time did not know who in the Department of Agriculture was guilty of making, or consenting to this decree. I assume it was not done without the consent of the Solicitor, at least, of the Department of Agriculture.

In spite of this, however, coca cola was declared a misbranded and adulterated article and all the costs of the trial were placed upon the Coca Cola Company. In my opinion, there is no legal ground for refusing to carry the mandate of the Court into effect, as very high legal authorities have informed me that such an immunizing statement in a decree is no kind of authority for preventing further activities of the enforcing officers.

The other case shows that a diametrically opposite course was pursued. The lower Court convicted the bleached flour people and the Supreme Court overruled the lower Court's decision on a technicality and remanded the case for a new trial. In doing this, however, they made a definition of what was meant by the word “may” which makes it most easy hereafter to secure convictions for the addition of deleterious or poisonous substances to our foods. It puts the manufacturer in the position of having to prove that his product is not harmful and that, of course, is an impossible task. The Supreme Court says that if it may injure the most non-resisting organism of an infant, or a convalescent, or sick person, or anyone, that is all the Government has to prove. It is not necessary that the Government bring into proof any significant 035 18injury at all to any particular person, but only the possibility of injury.

In the case of coca cola, even if we admit that as a result of this trial the quantity if caffein has been reduced, it is still there and it would be a brazen expert who would testify under oath that young children, infants, sick people and those who are peculiarly susceptible to caffein poison, and there are thousands of them, would not be injured by the caffein presumably now employed. Hence, we need only to enforce the decree of the Court, as we would be authorized to do, in both of these cases because in both cases the final decrees declare that they are adulterated and misbranded articles.

In the case of saccharin, in the two cases which have already been tried, if the reports are true, the majority of the jury was in our favor. It seems to me, therefore, that the intimation that you have conveyed to President Coolidge is not borne out by the plain facts of the case. On the other hand, the predominating results of these cases are wholly in the opposite direction and, therefore, would justify a vigorous campaign to correct these evils. It will be found to be a broker reed when all of these facts become public, as they will become in due course, to rely upon the Remsen Board as the sole support of the inactivity of the enforcing officers at the present time. The Remsen Board was the most unpopular body ever organized and those who followed its advice will doubtless share, to some extent, in the deserved unpopularity of that body of exports, paid by the United States of America to do the scientific work of adulterators and misbranders.

In regard now to the use of as much benzoate of soda as any manufacturer desires, I may say that that case also has been before the courts and in the case also those who were on the right side of the matter have won a complete victory. Encouraged by the action of the Remsen Board, the users of benzoate of soda endeavored to show that the regulations of the Indiana State Board of Health forbidding the use of benzoate of soda were all unconstitutional. Their attorney frankly admitted before the Congressional Committee that they would not have endeavored to coerce the state of Indiana had it not been for the favorable attitude of the Remsen Board on the subject of benzoate of soda. In this remarkable trial, the evidence of which covers over five thousand pages, the Remsen Board and about seventy-five of the persons who they had employed to work for them, appeared as witnesses against the state of Indiana and as shown, these witnesses were paid by the United states Department of Agriculture from funds appropriated by Congress to secure the enforcement of the Pure Food law. Both myself and my co-workers in the Bureau of Chemistry were denied the privilege of going to Indianapolis and testifying in behalf of the state. The Federal Court, therefore, was removed to Washington. Dr. Bigelow, Mr. Weber and one or two others of my assistants were told by the Solicitor that they need not appear before the Court. They were informed by Solicitor McCabe that they might ignore the subpoenas and ought not to testify against the policy of the Department in permitting the use of benzoate of soda. The State of Indiana was forced to get an order from the Supreme Court of the District of 037 20Columbia, compelling them to testify. It was a clearly marked battle between the Remsen Board and the Bureau of Chemistry. Of course, the testimony of the Remsen Board and their assistants and of myself and my assistants was not in any way connected with the constitutional question, but the constitutional question depended upon whether or not the evidence showed that benzoate of soda was an injurious or poisonous substance. That was a clear knockdown battle between these two bodies; four or five people of the Bureau of Chemistry and seventy-five people on the part of the Remsen Board.

District Court Judge Anderson decided those case in favor of the state of Indiana. It was appealed to the Circuit Court and this Court confirmed the decision of the lower Court even in stronger terms. At that time, one of the parties, Williams Bros. became convinced that the use of benzoate of soda was harmful and withdrew from the case. Curtice Bros. carried the case to the Supreme Court. After it was docketed they withdrew their case, feeling it was a hopeless task to get a ruling in their favor. So the case stands now with the judgments of the Courts against the use of benzoate of soda, which is specifically permitted by the Rules and Regulations based upon the conclusions of the Remsen Board. This evidence failed to stand the test before the courts of the country.

The President of the United States ought to know these facts, and the opportunity which you had was an opulent one in which to inform him of the real circumstances of the case. I shall endeavor to reach the President in another way, as I consider it my duty to see that this great wrong which has done the people of this country through the adoption of the opinions of the Remsen 038 21Board, should be undone and the law restored to its pristine vigor.

There are many other points in your letter to the President which I could, perhaps, discuss to show you that the purpose of my letter to the President has not been fully understood by you in your answer to him. That letter is a labored effort to convince the President that the authorities of the Bureau are not capable of securing a conviction under the terms of the law. The whole trouble is that they are not able to secure a conviction in view of the rules and regulations which have been illegally established. They would be able easily to secure a conviction if these limiting restrictions were withdrawn. The fact that four or five people of the Bureau of Chemistry were able to combat the whole Remsen Board with their seventy-five helpers and the whole power of the Department of Agriculture exercised against the state of Indiana, is a sufficient indication of the vigor and undying vitality of the right against the wrong.

I beg you, therefore, to act upon the sentiment which you express near the beginning of your letter, which reads as follows: “Because of his eminence (referring to Dr. Wiley) as an advocate of the purity of the food and drug supply of the nation, and because of the great service rendered by him in helping to bring about the enactment of the Food and Drugs Act, one of the most beneficent pieces of legislation ever passed by Congress, his statements are deserving of the most careful and respectful attention.”

That is all I ask. That this legislation, which is truly one of the most beneficial pieces of legislation ever passed by Congress, should be restored to its pristine vigor just as it was passed by Congress and freed of all the illegal restrictions which have been woven about it in an apparently impenetrable net-work of inhibitions, permissions, indulgences, fears and approvals of adulteration and misbranding.

In regard to your statements respecting the Coca Cola trial. I desire to call your further attention to a few matters which, to me, are not quite pertinent. Your statement to the President is as follows: “Holding that a decision of the question at issue, in view of the reduction of the amount of caffein in the product, would not be conclusive in any future proceedings, the claimant withdrew its claim and all other pleadings and consented to the entry of a judgment in the case.”

If you will read carefully the proceedings of the final adjustment of the trial you will not find any statement therein supporting the contention you make that the amount of caffein in the product had been reduced. When this rather startling decision, which to my mind, promised immunity to the Coca Cola people, was issued I immediately applied to the Solicitor of the Department of Agriculture for further information as to what the change in the formula was. He replied that there was no judicial knowledge, so far as he was concerned, of what this change was. Thereupon, I addressed Mr. W. B. Miller, our attorney in the Coca Cola trial at Chattanooga, and asked for a statement of what change in the formula had been made. He said there was no statement to the Court as to the nature of the change. I then wrote to Mr. Hirsch, attorney for the Coca Cola Co., at Atlanta, and inquired of him what change had been made. He sent my question an impertinent answer, the gist of which is this: “You are a chemist. Find out.”

So far as my records show there is no justification for the statement that the amount of caffein had been reduced. All I did find out was that the change in the formula, and this was not 040 23official but only the statement of an interested party, consisted in consenting to Mr. Hoover's request that the amount of sugar in all soft drinks whatsoever be reduced during the high prices attending the war. I asked Dr. Browne, chief of the Bureau of Chemistry, if he knew the authority for stating that the amount of caffein had been reduced. He said he thought he had seen some statement of it but could not recall it at that time. I recently addressed a letter to Dr. Browne in regard to any analyses since the conclusion of the case made in the Bureau of Chemistry, as follows: “I note from your letter that several analyses have been made in the Bureau of Chemistry of Coca Cola in the past ten years. If it be in harmony with the rules of the Bureau may I have copies of these analyses and the dates at which they were made?”

To which he replied: “I have your note of the 4th inst., requesting, if in harmony with the Bureau's rules, that you be supplied with copies of the analyses of Coca Cola made during the past ten years, with the dates at which they were made. I am sorry that I am not at liberty to furnish this information. The departmental rule which was in effect in your time against giving out of information regarding the composition of specific products, except through the medium of Notices of Judgment, still prevails. Under those circumstances, I am not permitted to give you the detailed data you have requested.”

Even if the amount of caffein were reduced it should make no difference whatever in the attitude of the Bureau of Chemistry in checking and, if possible, eliminating, all interstate commerce in Coca Cola. The evidence at the trial was so overwhelmingly in favor of the contention of the Government that caffein was an injurious substance that there would be no difficulty whatever, even if the amount had been reduced, in securing a verdict. There is no one threat to the health of our people so menacing to their welfare 041 24as is Coca Cola. It is making neurotics of hundreds of thousands of children as well as of grown people in this country. The neglect to follow up our victory on the Coca Cola case is a blemish which it will take many years to remove from the administration of the Food Law. Those who are familiar with the injury that Coca Cola has done, and is doing, would welcome in the interest of public health a strict enforcement of the law respecting its distribution.

Immediately after this statement you take up the question of the Supreme Court decision in the bleached flour case which I have already covered in another part of this discussion. The full text of that decision shows the way in which every case of this kind can be easily won by the Government. In regard to this you entirely misunderstood my own attitude in the matter, in the phrase: “Before this decision was rendered enforcing officials, including we believe Dr. Wiley, had assumed that it was necessary to establish only that the ingredient was added and was in itself an injurious character in order to prove adulteration within the meaning of the law.”

I never had any such opinion of the law in respect of the deleterious additions on health. But I held and still hold to that opinion in respect of the addition of any kind of non-foods to the food supply, in Section 7, First under, “In case of Foods,” which reads as follows: “If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength.”

There is no limiting or qualifying clause here. It is a direct unqualified veto of any addition to foods that lowers to any degree its quality. This inhibition enabled the Government to win its sweeping victory in the bleached flour case. It was not, 042 25however, until the decision of the Supreme Court in the bleached flour case that the case of establishing the injurious nature of the added body was so vividly set forth. This part of the decision of the Supreme Court was not included in the resume of this decision published by the Bureau of Chemistry. It is so pertinent and so deciding that I give it here. “The word ‘may’ is here used in its ordinary and usual signification, there being nothing to show the intention of Congress to affix to it any other meaning. It is, says Webster, ‘an auxiliary verb, qualifying the meaning of another verb by expressing ability, * * * contingency or liability, or possibility or probability.’ In thus describing the offense Congress doubtless took into consideration that flour may be used in many ways - in bread, cake, gravy, broth, etc. It may be consumed, when prepared as a food by the strong and the weak, the old and the young, the well and the sick; and it is intended that if any flour, because of any added poisonous or other deleterious ingredient, may possibly injure the health of any of these, it shall come within the ban of the statute. If it cannot by any possibility, when the facts are reasonably considered, injure the health of any consumer, such flour, though having a small addition of poisonous or deleterious ingredients, may not be condemned under the act.”

The most striking feature of the case, however, is yet to be mentioned. The Bureau of Chemistry, as long as it was permitted to function, decided every point in which there was the least doubt, in favor of the consumer. That is the only safe way for a grand-jury to act. The grand-jury does not have to be convinced of the guilt of the party indicted. That is a matter which can only be determined by the ordinary process of the court. If there is any doubt of any kind in regard to the matter the grand-jury always decides against the accused party. This is the only safe way in which justice can be done. If the accused party is innocent he can easily establish that fact before the court. If he is guilty and the grand-jury does not indict him, he goes 043 26scot free. A Bureau of Chemistry functioning in the interest of public welfare under the Food and Drugs Act that will not bring a case unless it has an overwhelming proof of its ability to establish the guilt of the accused party, falls far short of what the Bureau of Chemistry should do. This kind of a feeling would paralyze any grand-jury. This timidity and departure from a high purpose is voiced in this part of your letter: “By reason of the reduction of the amount of caffein in the formula of the Supreme Court's decision in the bleached flour case, and because as will later be developed, of the difficulty of establishing harmful effects by expert testimony, the Department has never felt that it has had available sufficient evidence of the deleterious character of Coca Cola to warrant it in bringing action against the product as now manufactured on the charge that it is adulterated within the meaning of the food and drugs act, because of the presence of added caffein.”

This is a complete surrender of the high duties and privileges under the law confided to the Bureau of Chemistry and unless the attitude of the Bureau can be changed it will be impossible hereafter to enforce many of the provisions of the Pure Food Law relating to the preservation of health. In other words, the great purpose of the Act will be entirely abandoned. You again quote from the Supreme Court decision, as follows: “The Supreme Court's decision as already stated was that ‘if it can not by any possibility, when the facts are reasonably considered, injure the health of any consumer such flour, though having a small addition of poisonous or deleterious ingredients, may not be condemned under the Act’.”

While the evidence, in my opinion, was entirely overwhelming in favor of the deleterious effects of bleached flour, the law offices representing the Government consented to withdraw this charge. This was a grave mistake, in my opinion, and such compromise with a great evil ought not to be taken as a type for 044 27future administrations. As I have already shown you, bleached flour was adulterated on two other counts and for that reason should have been denied any further permission to enter interstate commerce. It may be that the Department of Agriculture advised the Department of Justice to withdraw this charge, but it certainly was not done by the Bureau of Chemistry, the authority which made the original libel. I am fully convinced that the Bureau of Chemistry's action in laying down its arms and surrendering to the bleaching interests has caused a greater amount of fraud and imperfect panification and injury to health than any other act of compromise in which it has engaged save in the case of Coca Cola. There is one thing which the present Bureau of Chemistry seems to have entirely forgotten, namely, that all expert evidence in favor of public health and honesty has an immensely greater weight with judge and jury than any amount of expert evidence claiming that things are innocuous, harmless and non-fraudulent. In weighing the evidence the jury is always influenced by the evidence on the right side and looking to the protection and benefit of humanity rather than evidence which opens the floodgate of adulteration. If the Bureau would only consider the fact that being in the right is almost equivalent to being a victor they would not any longer exhibit such timidity and feebleness of purpose.

In regard to saccharin, I notice the Department's attitude is based on the findings of the Referee Board which findings, after careful consideration by the Committee of Congress, were 045 28declared invalid, illegal and not binding. It was partly for the purpose of securing the withdrawal of this decision which now guides the Bureau of Chemistry that I wrote my letter to the President. The disasters which have followed the rulings of the Remsen Board, and the deep wrong which they have done the cause of public health, are of a character which ought not to be any longer tolerated in any system of administration of law. A law which has been perverted from its original purpose to a diametrically opposite purpose by executive action remains in its essence unchanged but in its execution has altogether a different position from what which it should occupy. The very nature of saccharin convinced me that its use was an adulteration and a fraud and it should have no place whatever in the foods of our country.

The Remsen Board decided that up to .3 of a gram it was harmless but it is not harmless in any quantity. It is a deception from beginning to end. It has no place in our food supply in any quantity whatever. There are provisions of the food law that are not limited by quantity. Anything that reduces or lowers the quality or nutritive value of food is prohibited in any quantity whatever. There is no limitation as to health or anything connected with it, hence if the law be properly presented to the courts, whether or not saccharin is injurious to health would make no difference in the judgement of the court if the plain provisions of the law are set forth. Moreover, it is hardly a fair jury to submit the subject to when the president of the jury claims to have been the discoverer of saccharin. Another member of the jury had appeared before state legislatures in endeavoring to prevent 046 29legislation against the use of borax. Dr. Remsen said also that a third member, Dr. Long, had engaged in similar activities. Thus, three out of five of the jury had been related in some particular way to one or more of the substances referred to them for decision. We could not expect any just decision from a jury of that character.

From your letter, I find that the Department of Agriculture including the Bureau of Chemistry, stands unanimously on the platform made for it by the Remsen Board. So long as one stands on this platform it is impossible to execute the food law as Congress intended. My sole object in appealing to President Coolidge was to have all of these restrictions withdrawn. I did not say anything in my letter to the President by way of criticizing the Bureau of Chemistry. I assumed that the paralysis of that Bureau was due to the same cause that it was while I was chief of the Bureau, by the illegal executive action both in the appointment of the Board of Food and Drug Inspection and in the Referee Board of Consulting Scientific Experts. All I asked was that the restrictions be withdrawn. From the high character of the present administration of the Bureau and of its devotion to the public welfare, I believe it would have the same attitude toward the execution of the law that it had when the law was first enacted if the restrictions under which it is now working were withdrawn. I still entertain that hope and I see no reason why I should change my attitude of respect and confidence in the present personnel of the Bureau of Chemistry unless, after securing the rights which the food law gives, it should not live up to its opportunity.

I was surprised, therefore, to see that the purpose of my letter to the President had been largely misunderstood by you. I was not complaining of the inability of the present Bureau of 047 30Chemistry to secure results. Perhaps you may be interested in what the Bureau accomplished even under the restrictions that were speedily thrown around it.

In the first place, the examinations and studies of salicylic acid and borax, benzoic acid, sulphurous acids and sulphites, also saltpeter, and sulphate of copper led the Bureau to the inevitable conclusion that all of these bodies were harmful to health. I do not think that anyone, after the publication of my researches on salicylic acid ever used that again in foods in this country. There was, however, an attempt to continue the use of borax. That was ended by one trial before the Federal Court of western Illinois at Springfield. I went myself as the chief witness in this trial and secured a conviction. That ended, so far as I know, the use of borax in foods in this country. I feel perfectly certain that if the Bureau had been allowed to bring the case before the Courts as the law intended, benzoate of soda would have traveled the same road. As it was, the case was brought into the Court not by the Bureau of Chemistry, as should have been done, but by the users of benzoates themselves. As you know, the whole personnel of the Remsen Board was thrown into the breach in favor of benzoate of soda. I was not allowed to go to Indianapolis to testify in the case. The Federal Court was moved to Washington. The whole battle circled around the conflict between the Bureau of Chemistry and the Remsen Board in this trial, the evidence of which covers 5947 pages. The Bureau of Chemistry won a sweeping victory against the Remsen Board. So that case has already been decided before he courts. Under the malignant restrictions that new paralyze the Bureau of Chemistry, it is 048 31impossible for that Bureau to bring a case against benzoates, sulfites, bleached flour, alum or coca cola into the Courts of the country.

I am still willing to go as a witness whenever the Bureau of Chemistry is freed from the thongs which now bind it, and I will be glad to meet again the members of the Remsen Board who will come before the Courts to defend the use of benzoic acid in human foods. I feel so strong in my sense of the right that I do not believe the right can lose, even with such eminent men against it. I feel that the justice of the cause is its great strength. I do not share the timidity of the members of the Bureau in regard to the difficulty of establishing by preponderating evidence the injurious effects of these drugs which are still added to American foods. It seems to me, therefore, that much of your letter showing the timidity of the Bureau is not germaine to the problem which I put up to the President.

In view of these facts which I have stated as tersely as I can, I beg of you to withdraw your letter written to the President and notify him that you are in perfect sympathy with my pleas and that these illegal restrictions of the Bureau of Chemistry be removed. It requires only the signature of the Secretary, or Acting Secretary, to withdraw the whole of them to eliminate them entirely from a position which they should never have occupied. Therefore, the administration of the law, as you stated in your address to the oleomargarin manufacturers, may easily be brought up to the high standard you describe.

On February 24th, 1914, the Supreme Court of the United States handed down a decision sustaining the decision of the Circuit Court of Appeals reversing the verdict in the bleached flour trial, which is found in Notice of Judgment 722, issued February 8th, 1911, and remanding the case for a new trial. In a matter of such importance to the public, it is remarkable that the new trial was never provided for until April 21st, 1919, a period of five years. Meanwhile, no action was taken by the Bureau of Chemistry, so far as I know, to bring another suit, or to urge speed in securing a new trial in the first jurisdiction. Apparently, however, negotiations were entered into for a compromise in regard to this case. The language used by the Judge in the decree of the Court by mutual consent is most striking and informing. It is as follows: “Now on this, the 21st day of April, 1919, came Francis M. Wilson, United States Attorney and proctor for the libelant, and by leave of Court first had and obtained, amends the amended libel or complaint heretofore filed in this cause, to wit: on the 19th day of May, 1910, by striking out from the fourth page thereof the paragraph (c) reading as follows: (c) In that, by the treatment as aforesaid, the said flour has been caused to contain added poisonous, or other added deleterious ingredients, to wit: nitrites or nitrite reacting material, nitrogen peroxide, nitrous acid, nitric acid, and other poisonous and deleterious substances, which may render said flour injurious to health.” “Now here comes also the Lexington Mill and Elevator Co., a corporation claimant herein, by Bruce S. Elliott, Esq., attorney and proctor for said claimant, and the said claimant thereupon, after the amending of the said amended libel as aforesaid, withdraws its claim and answer heretofore filed to the said amended libel or complaint, and withdraws its appearance and declines to further appear or to make any further claim, answer, or defense herein.” * * * * “Now, therefore, it is ordered that the said amended 050 33libel be taken pro confesso; and the said cause coming on to be heard exparte, and the court being fully advised, doth find all of the allegations of said amended libel herein are true. “It is, therefore, ordered, adjudged and decreed that the said six hundred and twenty-five (625) sacks of flour, more or less, as aforesaid, be and the same are hereby condemned and forfeited to the United States, and the Marshal of this Court is hereby ordered and directed to proceed to confiscate and utterly destroy all of said property, and to report to this Court how he executed this order and decree.”

There were three charges of adulteration in the libel before this agreement took place. One of them, as stated above, was withdrawn. The other two charges of adulteration were: (a) “In that a substance know as nitrites or nitrite reacting material has been mixed and packed with the said flour so as to reduce and lower and injuriously affect its quality and strength. (b) “In that by the treatment as aforesaid the said flour has been mixed, colored and stained in a manner whereby damage and inferiority are concealed.”

The claimants also agree to all of the libels in regard to misbranding. Therefore, after the judgement of the Court, bleached flour was adjudged adulterated in two of the counts and was also a misbranded article. Under this judgment, therefore, it had no right to interstate commerce. All that the Bureau of Chemistry had to do was to issue a statement that, in as much as bleached flour had been pronounced an adulterated and misbranded article, immediate steps would be taken to prevent its entering interstate commerce. Was this done? On the contrary, quite a different action was taken. In the S. R. A. - Chem. 26, issued December 30th, 1920, it was announced: “Flour bleached by any process is regarded by the Bureau as adulterated if the bleaching has reduced the 051 34quality and strength of the article or has concealed damage of inferiority.”

This is exactly what the claimants confessed. Why should the Bureau of Chemistry make such a statement when the Courts had already settled the matter finally? Of course, no appeal could be had from the pro confesso decree.

Again it says: “Whether bleaching in any given shipment reduces the quality and strength of the flour or conceals damage or inferiority must be decided on the basis of the facts in each particular case.”

This is a most amazing statement in view of the fact that these matters had already been decided, as evidenced by the decree of the Court. The only point which remained, of course, was whether or not the process of bleaching introduced poisonous or deleterious substances which might be injurious to public health. On this point, the Bureau of Chemistry made the following statement, quoting from the decision of the Supreme Court.

(In order to show that the decision of the Supreme Court was entirely misunderstood, I copy the exact words of the Supreme Court decision in a column parallel with what the Bureau of Chemistry says the decision was.)

You will see from the above that the decision of the Supreme Court was misrepresented by the Bureau of Chemistry in the publication referred to. The plain inference from this publication was that in so far as the Bureau of Chemistry is concerned, all the adulterators of our flour were invited to “go to it” to their fullest extent. It was thoroughly understood that the Bureau of Chemistry had given up the fight, had shown the white flag and had inadvertently, or purposely, misrepresented the whole situation. The result was most disasterous. Many mills which had fought bleaching were compelled to strike their colors and join the mad rush for the complete debasement of our flour and the continuance of the fraud upon the public in selling at the highest figure the almost entire output of the mills instead of the old fashioned patent flour which was only a part of the output. The fraud upon the people of the United States by paying increased prices for their flour, according to the estimates which I have made as carefully as possible, amounts to not less than $15,000,000. per year.

The claimants fully understood that they had not a ghost of a chance to win the case in a new trial under the terms laid down by the Supreme Court in the interpretation of the word “may.” 053 36They were wise, therefore, in offering to admit all the other allegations in the libels filed against them. They doubtless realized also that another trial under the same libels would end in a decision of guilty even when the Judge quoted the whole language of the law and added thereto the meaning of “may.” Why then should they go to the expense of a new trial after paying all the costs of the old trial which were assessed against them? They realized that bleaching flour by oxides of nitrogen was a dead issue. Pending the final verdict in the case, bleaching was almost wholly abandoned. Had the Bureau of Chemistry issued the following order it would not have been resurrected: “It having been decided by the Courts that bleaching flour produces a product that is both adulterated and misbranded, such product when crossing a state line or when found in the District of Columbia is liable to seizure and condemnation and the makers thereof to criminal prosecution.”

This action would have ended this fraudulent and injurious practice for all time. No bleachers of flour would have dared to send any flour out of the state or subject themselves to criminal prosecution. But the proclamation of the Bureau of Chemistry acted like adrenalin on a heart that had ceased to beat. The circulation in the corpse of bleached flour was restored. It not only recovered its own health, but encouraged by the torpidity of the Bureau it grew to fabulous proportions. This is fully illustrated by the letter of the Washburn-Crosby Co. already referred to. (page 7)

There is a tree growing in Java, svelte and beautiful and, therefore, most attractive. It exudes a milk white juice but unlike milk it is a deadly poison. It was used by the native toxophilites for tipping their arrows so that a mere scratch with a 054 37poisoned arrow would prove fatal. Tradition also taught that every living being attracted by the beauty of the tree would soon die when he came near it.

These illegal restrictions to which I have endeavored to call your attention remind me of the upas tree. Together they present an attractive figure. They are vouched for as wholly innocent by eminent chemists, physicians and professors. They have the approval of Cabinet officers and even Presidents. They attract the unwary and the confiding. But they spread abroad a fatal influence that stifles and paralyzes the helpless Pure Food Law.