FURTHER ACTIVITIES OF THE REMSEN BOARD

The Attorney-General of the State of Indiana, Mr. James Bingham, desired to have testimony in favor of the State Board of Health from.the Chief of the Bureau of Chemistry and from other employees of the Bureau who had taken an active part in the investigations of benzoic acid and benzoate of soda. A suit had been filed against the State of Indiana in the Federal Court before Judge Anderson on the ground that the ban placed on benzoated foods by the State Board of Health was unconstitutional. Mr. Bingham came to Washington for the purpose of securing permission from the Secretary of Agriculture for these officials to appear before the Federal Court in Indianapolis. The Secretary refused to grant the request of Mr. Bingham on the ground that the Department of Agriculture was on the other side of the question and that it would not be in harmony with official etiquette for the employees of the Bureau of Chemistry to appear against the Remsen Board and their assistants and experts who were attending the trial in the interest of the complainant by the executive order and request of the Secretary of Agriculture. In order to secure this testimony Mr. Bingham found it necessary to remove the Federal Court from Indianapolis to Washington. When this was done the Solicitor of the Department of Agriculture on the request of the Chief of the Bureau made a ruling that the Federal Court had no right to issue a subpoena for attendance of the employees of the Bureau of Chemistry in the sense that they were compelled to attend and give testimony. He informed the members of the Bureau of Chemistry that it would not be a contempt of court if they should refuse to appear and give testimony on the summons unless they wanted to. I volunteered to give my testimony before the Federal Court. It begins on page 3,212 of the printed record and continues to page 3,548, inclusive, 336 pages. When Dr. W. D. Bigelow was called to the stand, after qualifying, in response to the first question asked him, he declined to answer on the ground that his testimony would be of a character not approved by the Department and he availed himself of the privilege given by the Solicitor of refusing to answer (Page 3,693 of the Record of the Indiana Case). Mr. Bingham immediately carried the case to Justice Barnard of the District Supreme Court. Justice Barnard promptly ruled that the employees of the Department of Agriculture were compelled to give their testimony if subpoenaed by the Federal Court and that the statement made by the Solicitor that they were not thus compelled to testify was an error. Under this ruling Dr. Bigelow and other employees of the Bureau gave their testimony. It would not be proper to go into any extended explanations of the nature of this testimony given contrary to the opinion of the Solicitor. A sufficient explanation of it is found in the fact that Judge Anderson of the Federal District Court of Indiana, to whom all the testimony in the case of over 5,000 pages was placed, with the summary by the master, promptly decided the case in favor of the State of Indiana. He said, in point of fact, that the State's rights in regard to the regulation of the sale of foods inside the State could not be questioned before the Federal Courts by citizens of other states.

MR JAMES BINGHAM
Attorney-General of Indiana

This recital shows plainly that although the privilege was denied the Bureau of Chemistry of bringing suit against anyone using benzoic acid, the employees were compelled to testify before the Federal Court. The users of these preservatives lost their ease due largely to the testimony of the experts of the Bureau of Chemistry. Thus it appears as if the "big chemists"--as the Secretary of Agriculture called them--of the Remsen Board, when opposed by the "little chemists" of the Bureau of Chemistry, were defeated. This incident shows the danger of unwise greed. The right to use these preservatives was guaranteed to those manufacturers who felt like doing so by all the power and authority of the United States Department of Agriculture. They should have been satisfied with that perversion of the law, but they were not. They determined to force benzoated goods upon the citizens of the State of Indiana. Fortunately they did not succeed. More fortunate still is the fact that one of the complainants against the State of Indiana was converted by the evidence adduced at the trial and abandoned the use of these preservatives. Still more fortunate is the fact that manufacturers in general, although this dispensation has now been in full force and authority for twenty-two years, have rarely indulged in the use of these preservatives. The goods manufactured under the aegis of the Department of Agriculture with these preservatives are distinctly inferior in quality and strength.

The activities of the Remsen Board were not devoid of doubts as to their wisdom. In a letter dated September 9, 1909, Dr. Remsen called attention to what might happen (Page 879, Moss Committee):

My Dear Mr. Secretary: The Referee Board is going to be subjected to very severe criticism for testifying in the Indiana suit, and in order to protect ourselves it is our desire that we should have from you a written request that we should give this testimony. I hope you will have no objection to sending this request to me. We are to testify at Seal Harbor, Me., on the 17th. We are all glad to have been at Denver, and we all recognize the soundness of your judgment in asking us to go.

Mr. Moss asked the Secretary to explain why the Remsen Board whose usefulness in so large a measure must depend on the respect and confidence which the public have for the high character of its membership should be subjected to severe criticism in order to assist in an effort by private corporations to overthrow the pure food laws of a sovereign state. To which Secretary Wilson replied that it was never in his mind to help overthrow the pure-food laws of a sovereign state, and that he would have been perfectly willing to have the Referee Board go where the people seemed to need information; but as to an attack upon the State of Indiana, that was not to be thought of. The Chairman continued by asking him if he did not know that the suit filed by Curtice Brothers and Williams Brothers was inaugurated before the Referee Board had made its report on benzoate of soda; to which he replied that he did not know anything about the nature of these proceedings. The Chairman of the committee continued by asking him if he had been requested by Attorney-General Bingham to permit Dr. Wiley to go to Indianapolis and testify in person in the Indiana case on behalf of the State of Indiana; to which the Secretary responded that he did not think Dr. Wiley had ever asked him whether he could go to Indianapolis or not. Whereupon the chairman submitted a letter dated May 31, 1910, which the Hon. James Bingham had written the Secretary in regard to this matter. This letter is so pertinent that it is given in full:

Hon. James Wilson,

Secretary of Agriculture,

Washington, D. C.

Dear Mr. Secretary: I am in receipt of a letter from President Taft with copy of your letter attached in re testimony of Dr. Wiley in the so-called benzoate case. I am taking the liberty of writing you personally for the reason that I feel quite sure that you misapprehend the position of the State in this matter. You understand that Dr. Long, of Chicago, and Dr. Taylor, of California, both members of the Referee Board, attended in person here at Indianapolis and testified in this case.

The master, who is hearing the evidence, is manifesting considerable interest in the testimony of the different witnesses and personally interrogates them, and it is my desire to give him this opportunity in the case of Dr. Wiley if possible.

There is no attempt on my part to make it appear that the Government is not supporting the work of the Referee Board. On the other hand, whatever appears in the record to indicate that the Government has taken sufficient interest to sustain the decision of the board is there at my instance, since I personally asked the witnesses who have testifled that they were testifying at your request, at whose request they were testifying in the case, and I did this after a personal interview with them, and learning the facts with reference thereto before asking the questions.

My position is that this question is one not capable of scientific demonstration, and this fact, I think, I have pretty thoroughly established by the testimony of the members of the Referee Board themselves. I think, however, that such a test was perfectly proper for whatever value it might have in the investigation of the injurious effects of sodium benzoate, but I feel very certain that the results of such an investigation are not conclusive. Indeed, I would not hesitate to try this question before you or any other fair man regardless of any conclusion you may have reached based upon the results of the work of the Referee Board.

1 attach more importance to an investigation made by Dr. Wiley than I do to that of the Referee Board, in view of his practical experience in such matters and especially in view of the experience of the corps of workers he must have had to assist him. In the case of the Referee Board work was carried on by students in many instances, and in the investigation I have made I am satisfied that many of the results obtained, upon which the Referee Board bases its opinion, are unreliable. That the members of the Referee Board were conscientious and thoroughly capable scientists there can be no doubt, but their conclusion, vased upon a false premise due to inaccuracy in analytical work and want of regularity in habits of living by subjects, would, in my opinion, destroy the value of any such conclusion.

In justice to you I can not go into detail, but the evidence in this case shows in some instances variations in duplicate analyses where the same articles were being analyzed under the same conditions, running from 15 per cent. to 1,800 per cent., when every member of the Board testifies that there should not be a variation to exceed 2 per cent.

I am very desirous of having Dr. Wiley appear in person in order that the master may personally interrogate him as to his premises most thoroughly, and I think you will readily appreciate the merit of my position. I assume that you have no interest in this question except to have it decided right, and in this case we are not only availing ourselves of the results obtained by the Referee Board and Dr. Wiley, but of a vast number of other experiments, and especially of-the results of practical demonstrations, and it occurs to me that when the evidence is concluded in this case the court will be in a better position to reach an intelligent conclusion as to what the real effect of benzoate of soda is upon the human system when administered in food than the department was with nothing to depend upon but the result of a scientific investigation standing alone.

Thanking you for your courtesy in offering to permit the deposition of Dr. Wiley to be taken, but hoping that you will see your way clear to permit him to attend in person, I remain,

Very truly yours,

(Signed) JAMES BINGHAM,

Attorney-General

This letter of Mr. Bingham evidently removed every reason to justify, even in the smallest degree, the determined purpose of the Secretary of Agriculture, with the collaboration of the Remson Board, to break down the Board of Health of Indiana which had placed its ban on food products containing benzoate of soda. Driven to the last extreme the Secretary sought to justify his action against the State of Indiana because the law of Indiana forbade the manufacture of beet sugar within the State! In answer to the question of the chairman of the committee he said it was his purpose to help every state to the limit of his efforts, but when a state came out and said one could not use beet sugar it gave him pause. He continued as follows:

We are making 500,000 tons of beet sugar every year in the United States. Indiana, can make all the sugar she needs and supply half a dozen other states. But I have come up square against this law, and I do not want to break the laws of Indiana; I would not for the world do that.

It appears that William Brothers and Curtice Brothers alleged, in their suit to abolish the ruling of the State Board of Health as being unconstitutional, that there were other points in the Indiana law which were likewise unconstitutional, and among these was an expression in the law delining sugar as "cane suagar." Of course every one knows that cane sugar is frequently used to designate sucrose. Indiana in her statement for defense against the suit of Curtice Brothers used the following statement:

These defendants, farther answering, say that they deny that the use of beet sugar is prohibited by law in food products in the State of Indiana, or by any rule adopted by these answering defendants, as such State Board of Health of the State of Indiana.

Dr. Alonzo E. Taylor, whose absence in Europe had prevented him from taking any active part in the investigations of benzoate of soda, was nevertheless very eager to appear against the State of Indiana in the benzoate trial. Under date of March 1, 1910, he made the following report to the Secretary of Agriculture:

"I have just been giving testimony in the Indiana sodium benzoate case. I understand it was inferred that because I did not sign the report of the Referee Board that I was not in agreement. I therefore testified, not as a member of the Board, but as an expert, pure and simple. Since last summer, being engaged on the sulphite question, I have been making a lot of control observations with the purpose of determining the normal variations in the metabolism of nitrogen, sulphur and phosphorus. These data, I believe the best in literature, I wish to use in my evidence, as they support strongly the position of our Board and are in contradiction with the work of Dr. Wiley on the action of benzoate. In a word, these investigations indicate that many of the reported deviations of Dr. Wiley are entirely within the range of those to be seen in normal persons on a normal diet, and show that the figures obtained by my colleagues are normal figures for normal men. Have I your permission to offer these normal charts of normal metabolism to the United States Circuit Court in the Indiana Case?".

To which the Secretary replied under date of March 12, 1910, in a letter to Dr. Remsen in the following words:

"I enclose a very interesting letter from Prof. A. E. Taylor which please return to me. I shall leave this matter entirely with you."

Dr. Remsen in his reply to the secretary recommended that he be given permission to use the data in the manner suggested. The Secretary left no stone unturned in his determined effort by all means, fair and foul, to secure a declaration from the Federal Court that the Indiana law was unconstitutional. (Pages 367, 368, Moss Report.)

The testimony of Dr. A. E. Taylor in the Indiana case is found on pages 2137, to 2207 of the printed testimony. He repeated in his testimony that he thought the data he had obtained were the best in literature. Dr. Taylor in his experiments, which were not made, by the way, on the subject of benzoic acid, employed a plan greatly superior to that followed by the other members of the Referee Board. He employed as his subjects trained scientific men. He took over bodily the whole force of the California State Board of Health. He employed state chemists who made all the examinations for fertilizers in the state. When asked on cross-examination in regard to control of the diet of these trained men he stated that their diet was rigidly weighed and apportioned to them. When attention was called to the fact that the other members of the Referee Board did not control either the quantity or the kind of diet, therefore the results which they obtained could not be comparable to his own, he replied that he thought his own plan was better but that the uncontrolled diet might lead to similar results. He was particularly opposed to the use of benzoate of soda in milk. On direct examination he was asked this question:

Q. What are the reasons for not using it in milk?

A. For the simple reason that a large amount of experience has taught us that the bad milk ought to be allowed to spoil and that an absolutely harmless preservative, or even refrigeration, or pasteurization ought to be equally prohibited. (Page 2162).

Speaking further (page 2163) in regard to milk, he says:

A very minute trace of formaldehyde will keep milk for 48 hours but the tubercular and typhoidal bacilli will not be killed, and it is objectionable on that account. We object to anything that keeps milk without killing those germs, not being of a type to affect the common defects of sourness or souring. That is the reason I guarded myself absolutely in the use of this other substance. I would object to the use of benzoate of soda, of hydrogen peroxide, of the pasteurization of milk, this being the result.

Evidently Dr. Taylor was not aware of the fact that pasteurization of milk at 145° for thirty minutes would destroy both typhoid and tubercular germs. The spores of germs require a much higher temperature for their destruction. By reading his testimony, the historian of the future will gather valuable information respecting the attitude of Dr. Taylor in general toward preservatives in foods and pasteurization.

Dr. Taylor also was particularly opposed to the use of benzoate of soda in meat as well as in milk. He cites the attitude of Hammerstein, the Scandinavian chemist and physiologist. He asked him:

Q. Do you use benzoate of soda?

A. No, sir.

Q. Is there any law against it?

A. No.

Q. Do you use salicylic acid?

A. Yes.

Q. why?

A. It is cheaper.

Q. Is it injurious?

A. Possibly it is, but it is so easy we take the chance.

FURTHER EXCERPTS FROM THE REPORT OF THE MOSS COMMITTEE AND THE RECORD OF THE INDIANA CASE

Page 878.

THE CHAIRMAN, MR. MOSS, of Indiana: Please tell me in what sense you regarded the Indiana case as an important one?

SECRETARY WILSON: Simply because it was in the. Federal court, and it was taking up the question of whether the decision of the Referee Board was to be sustained.

THE CHAIRMAN: That brings me to a question I want to ask you. At that time, what did you understand the issues of this suit at Indianapolis to be?

SECRETARY WILSON: I understood it was a question of whether--I do not know that I am entirely clear. I think it was an injunction asked by somebody.

THE CHAIRMAN: It was by Curtice Bros. and Williams Bros.?

SECRETARY WILSON: Yes; to require the board that you have there in Indiana to do something they wanted done.

THE CHAIRMAN: We have a board of health; yes, sir.

SECRETARY WILSON: That is my recollection. It was something of that kind. But there was benzoate of soda on one side and opposition to it on the other.

THE CHAIRMAN: Would you mind telling us where you obtained that information?

SECRETARY WILSON: Oh, I could not do that; I do not remember.

THE CHAIRMAN: I have the original complaint here, and your information was so badly apart from what the real issues were that I wanted to find out your source of information.

Page 882.

THE CHAIRMAN: You did request, both orally and in writing, the members of the Referee Board to attend the Indianapolis hearing?

SECRETARY WILSON: They are on a little different basis.

THE CHAIRMAN: As the Indiana law expressly permits the sale of food products which are guaranteed under the provisions of the pure food law, how can the defense of this suit by the State or any of its agents be considered as an attack on the decision of the Referee Board?

SECRETARY WILSON: That is an academic question, I think, Mr. Chairman.

THE CHAIRMAN: You have stated that Dr. Robison in appearing to testify there was opposing your policy?

SECRETARY WILSON: He was a subordinate of the department.

THE CHAIRMAN: The question is that inasmuch as the Indiana law expressly permits the sale in Indiana of any food product guaranteed under the pure food law of your department, when you guarantee it, how can a defense against a suit to strike down that law be considered an attack upon the Referee Board?

(There is no apparent answer to this question, save the following.)

Page 883.

SECRETARY WILSON: I would not be known to do a discourtesy to the State of Indiana for the world, and besides, Mr. Chairman, I find in looking over my behavior toward Indiana that I have a great lot of scientists there, and it might be wise for me to get them back out of there. I have men from nearly all our scientific bureaus there, helping the State of Indiana along these scientific lines, and cooperating with them.