[For the exam in my legal history class, I write an essay about some administrative regime that we did not cover but that developed in ways analogous to those that we did. (I think of it as the historical equivalent of an “issue-spotter” hypothetical in a doctrinal law course.) This year I chose the Bureau of Chemistry in the U.S. Department of Agriculture, the precursor to the Food and Drug Administration. I was surprised and pleased to see how closely intradepartmental strife between Secretary James Wilson and Bureau Chief James Wiley mirrored the roughly contemporaneous conflict between Secretary Charles Nagel and Bureau of Immigration Chief Daniel Keefe at the Department of Commerce and Labor and anticipated that between Agriculture Secretary Henry A. Wallace and George Peek, the first head of the Agricultural Adjustment Administration, during the New Deal. Parallels to today also surprised me. Wilson's use of his solicitor to discipline Wiley provides a not unambiguously comforting perspective on recent calls for government lawyers to serve as guardrails in the second Trump administration. Wiley's blast at the “minions of the food-dopers” might have come from Robert F. Kennedy, Jr., had he been around at the time. Congressional insistence on criminal prosecution in the federal courts anticipates Jarkesy. DRE]
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| Harvey W. Wiley (LC) |
Until the Pure Food and Drug Act (PFDA) passed in June 1906, some 200 bills were introduced in Congress without success. The force that broke the stalemate emanated from deep within the U.S. Department of Agriculture (USDA). At its founding in 1862, the USDA acquired the Chemical Division of the U.S. Patent Office. Since 1883, the division, later renamed the Bureau of Chemistry, had been headed by Harvey Washington Wiley. Born in a log house in southern Indiana, Wiley graduated from the state’s first liberal arts college, earned a medical degree, studied chemistry in Germany, and started the first chemical laboratory at Purdue University. He probably shocked staid USDA officials when he turned up in Washington. “Tall and massive of statute, with a big, firm head poised above a pair of titanic shoulders,” a coworker wrote, Wiley’s hair was always out of place, giving him “a somewhat uncouth appearance.” His favorite attire was an ill-fitting, rarely laundered suit. Many found him charming, gregarious, and lovably eccentric, but he was also “a man with an overwhelming sense of mission,” “a lion among fighters.”
Wiley turned the Bureau of Chemistry into an efficient experimental research laboratory and published its findings in a series of reports. Bulletin 13, published over sixteen years in ten parts and amounting to over 1400 pages, covered adulteration in a wide range of food products. Other reports publicized Wiley’s “Poison Squad,” twelve USDA employees who volunteered to imbibe food preservatives to test their effect on health. He lectured across the country and, in the process, assembled the nation’s first pure food coalition, including state boards of chemistry, doctors, women’s groups, muckraking journalists, large food processors (which expected a pure food law to end the competitive advantage of adulterating rivals), and Members of Congress. “Doctor Wiley’s name was a household word, and he definitely enjoyed his fame,” a coworker recalled. “His arrival in any city was always the occasion of newspaper items, including quotable and usually humorous remarks by the doctor.”
Two publications–Upton Sinclair’s novel, The Jungle, on the horrifying conditions of Chicago’s stockyards, and a magazine series devoted to patent medicine–provided the final push for both the PFDA and the Meat Inspection Act of 1906. President Theodore Roosevelt (TR) claimed credit, but it was Wiley who became known as the “Father of the Pure Food Law.” Congress continued to favor Wiley: between 1906 and 1912, the Bureau of Chemistry’s appropriations jumped from $155,000 to $963,780, and it acquired its own building.
Yet the Bureau and its Chief were always formally subordinated to the Secretary of Agriculture, who, under the PFDA, alone approved prosecutions for adulterating or misbranding goods. Since 1897 the Secretary had been James Wilson, who had been born in Scotland but ended up in Iowa, where he was a farmer, agriculture professor and politician. Journalists often referred to him as a “canny Scot” for managing to retain the Secretaryship under three Republicans presidents, but he was seventy-one years old when the PDFA passed. A historian thought that Wilson governed most of USDA’s nine bureaus “with a soft hand,” convinced that their chiefs were “practical men, assisting him in helping farmers increase production, discovering new markets, and expanding old ones.”
He felt otherwise about the Bureau of Chemistry and its famous, headstrong Chief Chemist. Growers who used sulfur dioxide in drying fruits, canners who sweetened corn with saccharin, and millers who used chemicals to bleach flour complained to Wilson that Wiley’s war on additives hurt American agriculture, but when Wilson asked Wiley to relent, the chemist adamantly refused. Wilson came to regard the chemist as “a mischief-making, low-bred fellow” and “a consummate hypocrite.” Wiley decided that Wilson “had the greatest capacity of any person I ever knew to take the wrong side of public questions, especially those relating to health.”
To rein in Wiley, Wilson turned to his solicitor, George P. McCabe. McCabe had been a high-school principal in Utah before landing a clerical position in Washington at USDA. “Young, capable, ambitious and aggressive,” he rose through the civil service ranks while studying law at night at what is now the George Washington University Law School. After he graduated from GW, Wilson appointed him to the newly created post of Solicitor and relied on his advice on nonlegal as well as legal matters. A coworker recalled that McCabe “was eager to exercise all the power the Secretary would confer upon him” and used it in “what he believed was the best interest of the Secretary.”
The intradepartmental campaign to contain Wiley commenced in January 1907, when Wilson summoned Wiley to his office for a conference with McCabe and others on whether “rectified” whiskey--that is, newly made whiskey flavored to taste as if it had been aged in barrels--could be labeled “whiskey.” McCabe called Wiley’s position that it could not “absurd.” To be misbranded under the PDFA, McCabe argued, a product’s label must contain a statement that was “false or misleading in any particular.” According to “the prevailing custom of the trade,” McCabe said, “whiskey” was “any alcoholic beverage made from grain, properly colored and flavored,” and that included rectified whiskey. After Wilson sided with McCabe, Wiley left, at once asked TR’s secretary to lunch, and told him what had happened. TR promptly invited Wiley to the White House. The chemist arrived with the equipment needed to rectify whiskey and spent the next two hours doing so for the president. At last, TR said, “Dr. Wiley, I have heard nothing but whiskey for the last three weeks, and you are the first person who has ever given me a single idea I can comprehend.” TR referred the matter to his Attorney General, who on April 1907 backed Wiley. When a manufacturer complained, TR replied, “You don’t understand, Sir, that Dr. Wiley has the grandest political machine in the country.”
Two weeks after the Attorney General’s ruling, Wilson created a three-person Board of Food and Drug Inspection (BFDI). Wiley was its chair, but McCabe was its second member, and the third was Frederick Dunlap, a young Harvard- and Yale-educated chemist hired from the University of Michigan (and immediately ostracized by Wiley’s loyal staff). The BFDI was unanimous in about a third of its cases, but in the rest, McCabe and Dunlap outvoted Wiley. McCabe rejected some prosecutions as beyond the PFDA, others for lack of an adequate evidentiary record, and still others because he thought the violations trivial and would make USDA look ridiculous. Wiley dismissed McCabe’s legal objections as so much red tape. When told that a prosecution would be beyond the statute, Wiley replied, “We must read it into the law.”
Meanwhile, two other groups of manufacturers took their cases to TR, who convened a White House meeting. The first speaker represented the manufacturers of ketchup (or, if you prefer, catsup) who mixed a preservative called benzoate of soda in with tomatoes. TR asked Wiley for his opinion, and the chemist unhesitatingly declared benzoate hazardous to health. TR then pounded the table and forbid the ketchup makers from using it. Next up was a Republican congressman representing canners who used saccharin to sweetened their corn. After his presentation, Wiley made a serious mistake. Without waiting for TR to speak, he declared saccharin extremely injurious to health. At once an enraged TR turned on him. His doctor gave him saccharin every day, the president declared. “Anybody who says saccharin is injurious to health is an idiot.”
Seizing this opportunity, the congressman suggested the appointment of a board to reconsider the issue. TR directed Wilson to do so, and the “Remsen Board” was created in February 1908. Named after its chair, a distinguished chemist at Johns Hopkins University, the board’s five members were all distinguished professors of chemistry, with far more impressive credentials than Wiley’s. Formally, the Remsen Board’s job was “merely to give the Secretary the benefit of the disinterested and unbiased advice of eminent and expert chemists when a serious conflict of opinion should arise as to the deleteriousness of any particular article or substance added to food.” In practice, Wilson followed the Board’s recommendation, including one approving the use of benzoate in ketchup, which Wiley denounced to his dying day.
In 1910, McCabe got Congress to add the following provision to an appropriations act: “Hereafter the legal work of the Department of Agriculture will be performed under the supervision and direction of the Solicitor.” Days later, Wilson issued General Order No. 140. It directed Wiley’s chemists to send their findings directly to the Solicitor. Only after the Solicitor determined that they constituted “a prima facie case” would he advise the Secretary to order BFDI to hold a hearing. After the hearing ended, the BFDI’s report again went to McCabe, who made his recommendation to the Secretary.
Wiley howled that “the minions of the food-dopers were in control.” McCabe scoffed that no prosecution Wiley sought would hold up in court. At last, McCabe found what he thought was a way to oust the chemist. It seems that Wiley had attempted to circumvent a civil service rule limiting pay to expert witnesses by hiring a chemist at an annual salary for only part of the year. McCabe’s gambit backfired, however, when one of Wiley’s congressional allies called a hearing, and Wiley attacked “the whole damnable conspiracy” against him. When letters backing Wiley deluged the White House, President William Howard Taft decided he could not remove the chemist and even hinted that he might give him a freer hand. Little changed, however. Wiley left USDA in February 1912 for a better paying job at Good Housekeeping magazine. He outlasted McCabe, who had left a month earlier to try his luck as a lawyer out West. Wilson remained Secretary until the Taft administration ended in March 1913.
During this period the domestic enforcement of the PFDA took two forms, criminal prosecutions and condemnations. We will consider only the former. Those proceedings began when one of the Bureau of Chemistry’s inspectors collected a sample and sent it to one of its thirty-nine laboratories located across the country. If its chemists concluded that the sample was adulterated or misbranded, their chief sent the results to Washington, where the sample might undergo another analysis. If the BFDI and the Solicitor agreed that the sample violated the PFDA, the Secretary then notified the concerned parties that a hearing would be held at some convenient location. According to a treatise writer, “The hearings are presided over by laymen, usually having no knowledge of orderly legal procedure, who are primarily interested in upholding the result of the examination already made by the Bureau of Chemistry.” Only “questions of fact” were considered. Respondents could appear in person or by attorney, or they could simply submit a brief. Statements were not under oath, and the rules of evidence were not followed. Although respondents could submit questions for the presiding officer to ask the Bureau’s chemists, cross-examination was not allowed. A record was compiled for the Secretary, but, as the Supreme Court stated in United States v. Morgan (1911), an adverse finding did not bind a respondent. The hearing was just the statutorily required precondition for the Secretary’s certification to the proper U.S. District Attorney that the respondent had violated the PFDA. Upon receiving the certification and a copy of the chemists’ analysis, the district attorney had to seek an indictment without conducting his own examination. The case then proceeded like any other federal criminal trial. Defendants had a right to a jury, and the Bureau’s chemists usually appeared as witnesses.
In a paper written for Felix Frankfurter’s graduate seminar on administrative law and published in 1933, two lawyers claimed that the requirement that the Food and Drug Administration–as the enforcement staff of the Bureau of Chemistry was by then called–had to go to court had “undoubtedly hampered enforcement” and considered whether a commission taking “quasi-judicial action in the first instance, subject only to judicial review” might be preferable. Yet, the draft of a new PFDA prepared that year at the request of Rexford Tugwell, FDR’s Assistant Secretary of Agriculture, retained the old procedure. One of its drafters later explained that “a system of licensing controls, vested in an administration with broad quasi-judicial and quasi-legislative powers” was not “politically possible” because of the breadth of the discretion the new bill would confer on the FDA. When the bill, which did not pass during the Hundred Days, was reintroduced in 1936, a congressman charged that its false advertising provision would give Tugwell “a whip lash not only over business, but over the press of this country.” Rather than give Tugwell that power, another congressman said, Congress should entrust the regulation of advertising to the Federal Trade Commission, “with such men as Judge [Ewin] Davis.”
--Dan Ernst
Sources after the jump.
Jonathan Rees, The Chemistry of Fear: Harvey Wiley’s Fight for Pure Food (Johns Hopkins University Press, 2021); Clayton A. Coppin and Jack High, The Politics of Purity: Harvey Washington Wiley and the Origins of Federal Food Policy (University of Michigan Press, 1999); Oscar E. Anderson, The Health of a Nation: Harvey W. Wiley and the Fight for Pure Food (University of Chicago Press, 1958); Food and Drug Law Institute, Seventy-Fifth Anniversary Commemorative Volume of Food and Drug Law (1984); Lauffer T. Hayes and Frank J. Ruff, “The Administration of the Federal Food and Drugs Act,” Law and Contemporary Problems 1 (1933): 16-35; C. C. Regier, “The Struggle for Federal Food and Drugs Legislation,” Law and Contemporary Problems 1 (1933) 3-15; David F. Cavers, “The Food, Drug, and Cosmetic Act of 1938: Its Legislative History and its Substantive Provisions," Law and Contemporary Problems 6 (Winter 1939): 2-42; Gustavus A. Weber, The Food, Drug, and Insecticide Administration: Its History, Activities and Organizations (Johns Hopkins Press, 1928); Charles O. Jackson, Food and Drug Legislation in the New Deal (Princeton University Press, 1970); Paul B. Dunbar, “Memories of Early Days of Federal Food and Drug Law Enforcement,” Food, Drug, Cosmetic Law Journal 14 (1959): 87-138; Harvey W. Wiley, The History of a Crime against the Food Law (1929).
