Wednesday Writs: US v. 40 Barrels and 20 Kegs of Coca Cola

L1: It was October of 1909. Federal agents took post near the Tennessee/Georgia state line, awaiting the target of their operation: a truck carrying a shipment from Atlanta to Chattanooga. The goal: to stop the distribution to the public of the illicit goods then in transport. When the truck came through, agents intercepted and seized the contraband within, which amounted to forty barrels and 20 kegs worth of Coca Cola syrup, headed to the bottling plant.

The man behind the seizure was the head of the US Department of Agriculture Bureau of Chemistry, Harvey Washington Wiley. Wiley suspected that Coca Cola contained an insidious ingredient that was a danger to the health of the public. No, not the one you are thinking of; Coca Cola stopped having what trace amounts of cocaine it once had in the late 1800s. But what it did contain was another ingredient which Wiley deemed detrimental to public health: caffeine. Wiley believed caffeine to be a very dangerous and addictive substance. He contended that the drink was so addictive because of the caffeine that the public referred to it as “dope” or “coke.” Coca Cola denied the claim (and did not trademark “coke” until the 1940s.)

Following the seizure Wiley took action Under the Pure Food and Drug Act of 1906, which prohibited the sale to the public of foods that had been “adulterated” by the addition of harmful substances. (“An article of ‘food’ is to be deemed to be ‘adulterated’ if it contain ‘any added poisonous or other added deleterious ingredient which may render such article injurious to health.“)The Coca Cola company demanded a trial by jury in the federal District Court. In addition to the claim of adulteration, the government claimed the product was misbranded, that it “contained no coca, and little if any cola.”

The company insisted that their product contained both, though they admitted that caffeine was a part of the formula for the syrup. But they maintained that their product was not “adulterated”, because caffeine was not added to the final product; it was a component of it. In other words, caffeine was not added to Coca Cola; it was part of Coca Cola. They maintained that adulteration, as used in the Pure Food and Drug Act, referred to the addition of some foreign and harmful substance to the finished product.

The government and the Coca Cola company were also in disagreement as to the supposed dangers of caffeine, and each side set out determined to prove its case, soon realizing that research on human consumption of caffeine was scarce. To that end, the  company hired a recently graduated doctoral student and college instructor named Henry Hollingsworth to conduct research into the effects of caffeine on the brain. Hollingsworth agreed to the work, provided he could publish his findings whether favorable to the company or not.

A double blind study concluded that caffeine caused in increase in cognitive function and alertness, “rapidly and temporarily uplifting.” Hollingsworth found no deleterious effects.

The jury in the District Court heard Hollingsworth’s testimony, which made headlines. But whether or not the testimony would have swayed the jury in favor of Coca Cola is unknown; the judge ordered a directed verdict in the company’s favor soon after. Specifically, the court ruled that caffeine was not an “addition“ to Coca Cola; with that question answered, the court did not have to proceed on the question of whether caffeine was a dangerous substance.

The appeals court upheld the verdict, but the government appealed to the Supreme Court. The United States v. Forty Barrels and 20 Kegs of Coca Cola is our case of the week.  The SCOTUS opinion, written by Justice Hughes, was unanimous (with one justice not participating.) The Court rejected Coca Cola’s argument that a substance is not adulterated if the allegedly harmful ingredient is part of the formula for creating the substance. If that were so, said the Court, “Manufacturers would be free, for example, to put arsenic or strychnine or other poisonous or deleterious ingredients with an unquestioned injurious effect into compound articles of food, provided the compound were made according to formula and sold under some fanciful name which would be distinctive. When challenged upon the ground that the poison was an ‘added’ ingredient, the answer would be that without [the poison] the so-called food product would not be the product described by the name.”

As to the misbranding allegation, the company argued that there were both Coca leaves and Kola nuts uses in the making of the syrup but, even if there wasn’t, “Coca Cola” had ceased to be descriptive of the ingredients and was a distinctive name for a specific product. The Court opined that whether the company proved the inclusion of those ingredients was a question for a jury, and rejected the rest of the argument:

To take the illustration suggested in argument, it would permit a manufacturer, who could not use the name chocolate to describe that which was not chocolate, or vanilla to describe that which was not vanilla, to designate a mixture as ‘Chocolate-Vanilla,’ although it was destitute of either or both…

Nevertheless, the Court conceded that there could be instances in which the name of a product could take on a widely known secondary meaning specific to that product, regardless of the ingredients. It’s safe to say that in our time, that is true of Coca Cola; the phrase does not conjure images of coca leaves and kola nuts, but of the bubbly brown soft drink. But in 1916, according to the Supreme Court, that was still a toss-up for the jury to decide.

The directed verdict was tossed aside and the case was remanded for a new trial to allow a trier of fact to determine whether caffeine, which SCOTUS ruled was an added ingredient, was a danger to health and whether the name Coca Cola was misleading. Before the case could be retried, the government reached a settlement with Coca Cola, as part of which the company agreed to reduce the amount of caffeine in its product. Prior to then, an 8oz glass of Coca Cola was the approximate equivalent of a can of Red Bull.

L2: It’s been 120 years and a million lawsuits since the first fatal car accident involving a pedestrian. How might driverless cars affect that landscape?

L3: New York takes a run at eliminating cash bail, but people are predictably unhappy.

L4: The latest lawsuit against the Boy Scouts of America involving sex abuse uses a novel approach to get into court.

L5: A don’t miss read: He was known as the redistricting architect of the Republican party; now his daughter has released his files, much to the chagrin of the GOP. 

L6: Note to my husband, who has been T’ed up three times while coaching youth basketball this season: Kentucky is considering a law against “intimidating” sports officials. 

L7: You gotta fight… for your right… to sell delicious Canadian donuts via drive-thru…

L8: Things are moving forward in Michael Avenatti’s extortion trial after a judge refuses to dismiss the charges against him.

L9: If a family court judge can’t have a threesome in her chambers with her secretary and her lover whom she recently hired to work for her, who can?