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Many other instances of softness in food-law enforcement may be cited. Early in the history of the activities of the Bureau of Chemistry in its efforts to carry out the provisions of the food law evidence in relation to the Coca-Cola habit, especially in the South, was procured. The character of this evidence was sufficient to induce the enforcing officers to bring charges against Coca-Cola under the Food and Drugs Act. A number of seizures of the goods in transit was recommended and criminal charges against the manufacturers and dealers were formulated. It was impossible to get any of these accusations endorsed by the Board of Food and Drug Inspection. Finally the Bureau of Chemistry was ordered in writing, over the signature of the Secretary, to cease its activities in trying to bring Coca-Cola to the bar of justice. A short time after this order was received Mr. Seely, proprietor of an influential newspaper in Atlanta, paid the Bureau a visit. In the course of his conversation he asked why no case had ever been brought against the Coca-Cola corporation. In answer to this question he was shown the order of the Secretary of Agriculture, forbidding the Bureau of Chemistry from making further efforts in this line. He was greatly astonished that the Secretary of Agriculture had thus interfered with the administration of justice. He immediately called on the Secretary of Agriculture, and he entered a vigorous protest against the policy of the Department in protecting adulterators and misbranders of foods. He stated to the Secretary that unless this order was recalled he would publish all the details in the matter in his newspaper. The Secretary promptly recalled the order and directed the Bureau to proceed with its activities. The officials of the Bureau desired to bring the case in the District of Columbia, as more convenient for the Government in assembling its evidence and experts. Two members of the Board of Food and Drug Inspection were determined that the case should be brought in Chattanooga. In the latter city the Coca-Cola Corporation had its chief bottling works. They also owned large bodies of real estate, including the principal hotel. The whole environment at Chattanooga was favorable to the Coca-Cola industry. The Department was put to a large expense to send its scientific officers so far away from the base. It was equivalent even to trying the case in Atlanta, if that had been possible under the law.

The result of this trial, which was a long drawn out one, lasting over three weeks, is found in Notice of Judgment No. 1455. The case was warmly contested. Experts testified on both sides and with the usual contradictory testimony, which it is not advisable even to summarize here. When the evidence was completed, the attorneys of the defendant moved to dismiss the libel on the ground that caffein, which was the chief injurious substance in Coca-Cola, was not an added substance because it was mentioned in the original formula. The presiding judge, the Hon. E. T. Sanford, granted this motion, and the case was therefore dismissed.

The Department of Justice appealed the case to the United States Circuit Court of Appeals of the sixth district. This court sustained the action of the court below. (Notice of Judgment No. 4032.) The Department of Justice then appealed the case to the Supreme Court of the United States. The unanimous opinion of the Supreme Court held that the courts below erred in their decision, and the case was remanded for a new trial. This action of the Supreme Court is detailed in Notice of Judgment No. 4801 issued Septem-her 18, 1917. The opinion of the Supreme Court was written by Justice Charles E. Hughes. Justice Hughes' decision contained the following principal points:

"The questions with respect to the charge of 'adulteration' are (1) whether the caffein in the article was an added ingredient within the meaning of the Act (section 7, subdivision 5) ; and if so (2) whether it was a poisonous or deleterious ingredient which might render the article injurious to health. The decisive ruling in the courts below resulted from a negative answer to the first question, * * * but it was concluded, as the claimant contended, that the caffein--even if it could be found by the jury to have the alleged effect--could not be deemed to be an 'added ingredient' for the reason that the article was a compound known and sold under its own distinctive name, of which caffein was a usual and normal constituent."

Justice Hughes discusses in considerable detail the claims of the defendant and then continues as follows:

"Having these considerations in mind, we deem it to be clear that whatever difficulties there may be in construing the provision, the claimants' argument proves far too much. We are not now dealing with the question whether the caffein did, or might, render the article in question injurious; that is a separate inquiry. * * * We think an analysis of the statute shows such a construction of the provision to be inadmissible, * * * nor can we accept the view that the word 'added' should be taken as referring to the quantity of the ingredients used. It is added ingredient which the statute describes, not added quantity of the ingredient, although, of course, quantity may be highly important in determining whether the ingredient may render the article harmful, and experience in the use of ordinary articles of food may be of the greatest value in dealing with such questions of fact. * * * We can see no escape from the conclusion that it is an added ingredient within the meaning of the statute."

Justice Hughes also comments on the claim made by the defendant that Coca-Cola was not a misbranding, but that it was a distinctive name, and he continues as follows:

"We are thus brought to the question whether if the names 'Coca' and 'Cola' were respectively descriptive, as the Government contends, a combination of the two names constituted a distinctive name within the protection of the proviso in case either of the described ingredients was absent. * * * In the present case we are of the opinion that it should not be said as a matter of law that the name was not primarily descriptive of a compound with coca and cola ingredients as charged. Nor is there basis for the conclusion that the designation had attained a secondary meaning as the name of a compound from which either cocoa or cola ingredients were known to be absent; the claimant has always insisted and now insists that its product contains both. But if the name was found to be descriptive, as charged, there was clearly a conflict of evidence with respect to the presence of any coca ingredient. We conclude that the court erred in directing a verdict on the second count.

"The judgment is reversed and the cause is remanded for further proceedings in conformity with this opinion."

The above decision of the Supreme Court, discussing as it did all the angles of a legal character, completely demolished the lines of defense established during the trial, having decided on both counts, first that caffein was an added substance, and second that Coca-Cola was a descriptive and not a distinctive name. The subsequent proceeding before the court must of necessity result in victory on the part of the Government. It was a long while, however, before the case was called for retrial in harmony with the injunction of the Supreme Court.

The case was called in the District Court of Tennessee at Chattanooga on November 12, 1917. The defendants, otherwise known as the claimants in the case, entered a plea of nolo contendere. On motion of the district attorney the court passed the following sentence:

"' Now, therefore, the premises considered, it is ordered, sentenced and adjudged by the court, now here, and His Honor, the district judge, by virtue of the power and authority in him vested, does hereby order, sentence and adjudge that the goods, wares and merchandise seized in this proceeding be, and the same are hereby forfeited to the United States, and that the said Coca-Cola Company pay all costs of this proceeding. And it is further ordered that the said goods, wares, or merchandise, seized herein, to wit, the forty barrels and twenty kegs of Coca-Cola, shall be released to the claimant upon said claimant paying the cost above adjudged and giving sufficient bond, conditioned that the product shall not be sold or otherwise disposed of contrary to the provisions of the Federal Food and Drugs Act, or the laws of any state, territory, district, or insular possessions of the United States."

Added to this decision is the following paragraph:

" It is further ordered, adjudged and decreed that the judgment of forfeiture shall not be binding upon the said Coca-Cola Company or its product, except as to this cause, and the particular goods seized herein, nor binding upon the claimant and its product as it shall relate to any other cause or proceeding of any kind or character."

This paragraph was evidently interpreted by the food enforcement officials to forbid any further proceedings against the Coca-Cola Company or its product on the part of the administrative authorities executing the food law. In any case the answer is that it is not binding on anybody except the Coca-Cola Company and further that it did not estop the executive authorities enforcing the food law from further proceedings against the Coca-Cola Company or any of its products. No attempt was made by the executors of the food law to enforce the decree of the courts by beginning action against Coca-Cola products every time they crossed a state line. Under the opinions of the Supreme Court such proceedings would have been uniformly successful. Owing to a lack of these proceedings the Coca-Cola Company has its stock now listed on the New York Stock Exchange. Its sales have been enormously increased, invading the North, as they previously invaded the South. The effects of drinking caffein on an empty stomach and in a free state are far more dangerous than drinking an equal quantity of caffein wrapped up with tannic acid in tea and coffee. The threat to health and happiness of our people is reaching far greater proportions due to this expansion of trade. The governors of the New York Exchange have admitted the stock of the Coca-Cola Company, the products of which have been condemned by a United States Court as both adulterated and misbranded. This baleful condition could have been easily avoided if the enforcing officers had raised their hands in protest against the further development of this business by seizing its products and bringing criminal action against its manufacturers.

Another interesting story would have been clarified if the Supreme Court could have passed an opinion on the immunity granted the Coca-Cola Company by the court.

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