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.
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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.
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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.
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p; 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.
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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.
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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.”
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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.