THE PATHETIC STORY OF BLEACHED FLOUR

A further illustration of law enforcement negligence is found in the bleached flour case. On or about April 11, 1910, the Lexington Mill and Elevator Company shipped from Lexington, Nebraska to Castle, Missouri, a consignment of six hundred twenty-five sacks of flour, labeled "L 48-1 pounds Lexington Cream XXXXX Fancy Patent. This flour is made of the finest quality hard wheat. Lexington Cream--Lexington, Neb.--Lexington Mill & Elevator Co."

In due course libel was filed against the said 625 sacks of flour, charging that the product was adulterated and misbranded, and praying seizure and condemnation of said flour. In due course the case was called in the District Court of the United States in the Western Division of Missouri, by Arba S. Van Valkenburgh, District Attorney. Fortunately, the United States was able to secure as associate counsel for the prosecution of this case Mr. Pierce Butler, who assumed the principal rфle of the prosecuting officer, and is now an honored Associate Justice of the Supreme Court. Extensive testimony was given by experts, millers, wheat-growers, wheat-buyers, and other competent parties, both for and against the process of bleaching. The Honorable Smith McPherson acted as judge in the case. Judge McPherson in instructing the jury, used in part the following language (Notice of Judgment No. 722, November 4, 1911):

"The flour seized in this case is an article of food within the meaning of the act of Congress. And if the treatment of the same by the Alsop process caused it to contain any added poisonous or other added deleterious ingredient of a kind or character which may render the same injurious to health, then it is adulterated and must be condemned.

"It is admitted that this flour was treated by the Alsop process for the purpose of bleaching or whitening, and the evidence establishes that nitrogen-peroxide gas was employed for that purpose and further establishes that that gas, nitrous acid, nitric acid, and nitrites of the kind which may be produced by such treatment are poisonous and deleterious substances, and that these substances when taken in sufficient quantities will produce poisonous action or death.

"It appears from the evidence in this case that the bleaching process imparts and adds to flour substances referred to in the testimony as nitrites or nitrite-reacting material, and such substances were imparted to the flour seized in this case by the bleaching process. It further appears from the evidence that such substances so imparted or added to this flour are qualitatively both poisonous and deleterious, that is to say, that these substances are of a poisonous and deleterious character.

"It is well known that wheat flour is not eaten raw. There is evidence in this case that tends to show that during the process of making bread nitrites or nitrite-reacting material contained in the flour is lessened and may be eliminated under some circumstances, but it is also well known that wheat flour is used for the making of other articles of food--biscuits, dumplings, pastry, cake, crackers, gravy, and perhaps other articles of food--which may be consumed by all classes of persons--the young, the old, the sick, the well, the weak, the strong; and I charge you that it is right for you in reaching your verdict to take these facts into consideration together with all the other proven facts and circunistances in the case.

"The fact that the Patent Office at Washington issued a patent for the Alsop process has nothing to do with the question of branding correctly, or misbranding of flour. The fact that the Patent Office issued a patent for the Alsop process does not warrant nor authorize the adulteration of flour as made by the Alsop process if it is adulterated. All these things must be put to one side, and your verdict must be determined in accordance with the law and facts in the case. It is of no importance to, you, nor is it of importance to me, who will be pleased or displeased in this case, whether of counsel or of the parties, or of any other person. The only question is, "What is the right, and what is the wrong of this case?"

Thereafter the jury returned verdicts as follows:

"We, the jury, find that the flour seized in this case is adulterated. (Signed, John W. Thomason, Foreman.) "

"We, the jury, find that the flour seized in this case is misbranded. (Signed, John W. Thomason, Foreman.)"

An appeal was taken from the decision of the Court and the jury to the United States Circuit Court of Appeals of the Eighth District. On January 23, 1913, the case having come on for hearing before the Circuit Court of Appeals, the judgment of the Court below was reversed, and the case remanded for a new trial. In reversing this verdict the Circuit Court said:

"The Court charged the jury: 'It is clear that it was intended by Congress to prohibit the adding to the food of any quantity of the prohibited substance. The fact that poisonous substances are to be found in the bodies of human beings, in.the air, in potable water, and in articles of food such as ham, bacon, fruits, certain vegetables and other articles does not justify the adding of the same or other poisonous substances to articles of food, such as flour, because the statute condemns the adding of poisonous substances. Therefore, the court chargeth you that the Government need not prove that this flour, or food stuffs made by the use of it, would injure the health of any consumer. It is the character, not the quantity of the added substance, if any, which is to determine this case.'

"The trial judge decided that if the added substance was qualitatively poisonous, although in fact added in such minute quantity as to be non-injurious to health, that it still fell under the ban of the statute; and the distinction is sought to be drawn between substances admittedly poisonous when administered in considerable quantities but which serve some beneficial purpose when administered in small amounts, and those substances which it is claimed never can benefit and which in large doses must injure. The distinction is refined. To apply it must presuppose that science has exhausted the entire field of investigation as to the effect upon the human body of these various substances... that nothing remains to be learned. Otherwise the court would be required to solemnly adjudge today that a certain substance is qualitatively poisonous because it can never serve a useful purpose in the human system only to have this conclusion made absurd by some new discovery. There is no warrant in the statute for such a strained construction. The object of the law was evidently (1) to insure to the purchaser that the article purchased was what it purported to be, and (2) to safeguard the public health by prohibiting the inclusion of any foreign ingredient deleterious to health. Hall-Baker Grain Co. v. United States (198 Fed. 614). The statute is to be read in the light of these objects, and the words 'injurious to health' must be given their natural meaning. It will be observed that this paragraph of the statute does not end with the words 'added deleterious ingredient,' but as a precaution against the idea embodied in the instruction complained of, it says 'which may render such article injurious to health.' Without these latter words, it might, with more force, be argued that deleterious and beneficent ingredients are to be divided into two general classes independent of that particular effect in the actual quantities administered, but the possibility of injury to health due to the added ingredient and in the quantity in which it is added is plainly made an essential element of the prohibition. The investigation does not stop with the consideration of the poisonous nature of the added substance. It is added to the article of food and the statute only prohibits it if it may render such article--the article of food--injurious to health.

"The judgment below must be reversed and the case remanded for a new trial, and it is so ordered."

(Notice of Judgment 2549, issued October 18, 1913.)

The Department of Justice immediately appealed from the decision of the Circuit Court to the Supreme Court of the United States. The case was called by the Supreme Court on February 24, 1914. The Supreme Court confirmed the decision of the Circuit Court below and remanded the case to the original court for retrial. The decision of the Supreme Court was written by Mr. Justice Day, and was a unanimous decision. The Supreme Court made many luminous explanations in regard to the matter under consideration. The decision, among other things, states:

"The statute upon its face shows that the primary purpose of Congress was to prevent injury to the public health by 'the sale and transportation in interstate commerce of misbranded and adulterated foods. The legislation, as against misbranding, intended to make it possible that the consumer should know that an article purchased was what it purported to be; that it might be bought for what it really was and not upon misrepresentations as to character and quality. As against adulteration, the statute was intended to protect public health from possible injury by adding to articles of food consumption poisonous and deleterious substances which might render such article injurious to the health of consumers. If this purpose has been affected by claims and unambiguous language,, and the act is within the power of Congress, the only duty of the courts is to give it effect according to its terms. * * * Congress has here in this statute, with its penalties and forfeitures, definitely outlined its inhibition against a particular class of adulteration. * * *

"It is not required that the article of food containing added poisonous or other added deleterious ingredients must affect the public health, and it is not incumbent upon the Government, in order to make out a case, to establish that fact. The act has placed upon the Government the burden of establishing, in order to secure a verdict of condemnation under this statute, that the added poisonous or deleterious substances must be such as may render such article injurious to health. 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, * * * contixgency 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. (Notice of Judgment 3398.)

The above quotation, it will be observed, is largely based on the instructions given by the trial judge, the Honorable Smith McPherson, to a trial jury. The information, however, which it gives those who undertake to prove injury to health is of the highest significance. The Supreme Court of the United States says to those who enforce the law that it is not required "that the article of food containing added poisonous or other added deleterious ingredients must affect the public health, and it is not incumbent upon the Government, in order to make out a case, to establish that fact." This iialicizing of this statement was not done by the Supreme Court, but by myself. I believe it is a very important statement made by the Supreme Court in regard to the enforcement of the Food and Drugs Act. It was worth all the trouble and disappointment of having the decision of the bleached flour case reversed in order to secure such a luminous explanation as the result thereof.

When this case was decided the World War had already broken into flames over the whole continent of Europe. It was soon evident that the United States of America would eventually be drawn into this whirlpool of destruction. There is no wonder that all thought of bleached flour was forgotten in the excitement and activities which preceded our entrance into this great conflict. It was not until the contest was over and the victory had been won that any further procedure was taken. It was not until April 1, 1919, that counsel for the government of the United States called the attention of the District Court of the Western District of Missouri to the fact that the mandate of the Supreme Court had never been put into effect. Under the ruling of the Supreme Court the claimants for the 625 sacks of flour had had practically the whole foundation of their defense swept away. They were very glad, therefore, to make some arrangement with the District Attorney whereby they could retire, not without laurels, from any further contest of this case. To this end they proposed that if one section of the libel would be dropped they would enter a plea of nolle contendere to the other parts of the libel. Accordingly, Francis M. Wilson, United States District Attorney, withdrew section e of the libel which reads 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 nitric reacting material, nitrogen peroxide, nitrous acid, nitric acid, and other poisonous and deleterious substances, which may render said flour injurious to health."

Accordingly, the Court entered the following verdict on the 9th day of, April, 1919:

"Now, therefore, it is ordered that the said amended libel be taken pro confesso; and the said cause coming on to be heard ex parte, 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 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 a,nd utterly destroy all of said property, and to report to this court how he executed this order and decree.

"It is further ordered adjudged and decreed that the taxed costs of the libelant herein, and the taxed costs of the claimant, be paid by the claimant, Lexingtqn Mill and Elevator Company, said claimant in open court consenting thereto." (Notice of Judgment No. 6380.)

This famous case was ended April 9, 1919. No notice, however, was taken of this event by the executive officials of the Department of Agriculture, until July 31, 1920. On this date the following remarkable document was issued:

"Labeling Bleached Flour.

Department of Agriculture Announces Ruling on Bleached

Flour Under the Food and Drugs Act.

Washington, D. C., July 30, 1920-Bleached Flour coming within the jurisdiction of the Federal Food and Drugs Act is adulterated if the bleaching has reduced the quality and strength of the flour or concealed damage or inferiority, according to a statement issued to-day by the Bureau of Chemistry, United States Department of Agriculture, in answer to a number of inquiries regarding the attitude of the department on the bleaching of flour. Bleached flour may be shipped within the jurisdiction of the law only under the condition that the bleaching has not concealed inferiority or impaired the quality or strength of the article, and then only on condition that it is branded plainly to indicate that it has undergone a process of bleaching. Failure to label the containers to show that such -flour has been bleached will subject it to a charge of misbranding.

"The United States Supreme Court has ruled with reference to the section of the law relating to the addition of a poisonous or deleterious ingredient that to constitute an offense an article of food sold must, by the addition of an ingredient, be rendered injurious to health, and, furthermore, that all the circumstances must be examined to de termine whether the article of food has been rendered injurious. No action will be taken at the present time on the ground that bleaching introduces into the flour a substance which may be injurious to health, say the officials, provided as a result of bleaching there is not introduced into the flour such a quantity of the bleaching agent as may render it injurious as indicated in the decision of the Supreme Court. Should evidence later become available that the bleaching of flour introduces an ingredient in minute quantities which has the effect of rendering the article injurious to health, announcement of the fact will be made and appropriate action taken to prevent thereafter the shipment of bleached flour within the jurisdiction of the food and drugs act.

"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 ease. "

In regard to this document I may say that its purpose evidently was to open wide the opportunities for bleaching flour and the promise that no action would be taken looking to a restriction of this process. In point of fact no effort has ever been made directly or indirectly to take advantage of this victory before the court in considering bleached flour as both an adulterated and misbranded article. The result is that the millers who at first were unwilling to indulge in bleaching have been forced to bleach in order to maintain their trade. This proclamation was properly interpreted by the bleachers. They knew its exact intent, that it was an open statement to the millers and the public that no further steps toward the control of this injurious and highly undesirable practice would be taken in any way to restrict or hinder this practice. Nearly ten years have now elapsed since this proclamation was made, and so far as bleaching flour is concerned by any process whatever the Food and Drugs Act does not exist. It seems indeed incredible that a food enforcement bureau of any kind, would read into the opinion of the Supreme Court an entirely antagonistic statement respecting injury to health. The food enforcement officers said you must convict the adulterator of injur~ng health. The Supreme Court said it is not necessary on the part of the Government to bring any evidence looking to the actual establishment of injury and it is not incumbent upon the Government to do this. All the Government has to do is to show the possibility in the most extreme case of doubt that such injury may take place. Thus the very law which the Supreme Court has said was enacted chiefly to protect the public health has been turned into a measure to threaten public health and to defraud the purchasers of flour.