Harvey Washington Wiley was a man with a mission.

As Chief Chemist of the United States Department of Agriculture Division of Chemistry and one of the founders of the Association of Official Analytical Chemists, Wiley led a crusade against the use of chemical additives in food and drugs. Using a specially selected “poison squad” (the twelve volunteers that he used to test food safety), Wiley’s campaign for purer food and drink products became the stuff of legend.  Although the Division of Chemistry had no regulatory powers at first, Wiley and his chemists published their findings on food adulterants in a ten-part series in 1902.  He then recruited various medical and special interest groups to lobby for reform.  Given that Wiley`s crusade happened at the same time as the publication of Upton Sinclair`s  more well-known book, The Jungle, the push for stringent safeguards in commercial food preparation became a major political issue. The crusade led to the passage of the Pure Food and Drugs Act in 1906 and Wiley`s book, Foods and Their Adulteration, became a standard in the field when it was first published in 1907.

With the passage of the bill and the increased mandate for the Division of Chemistry (which was a forerunner for the modern Food and Drug Administration), Wiley`s crusade was met with opposition from food companies over the continuing use of chemical preservatives in food (which was not actually addressed by the new law).  His puritanical attacks on many popular food and drink products offended many potential supporters although his ultimate downfall came with his crusade against caffeinated soft drinks.

Although caffeine had been around since the Stone Age and was a prime ingredient in coffee and tea, it wasn’t chemically isolated until 1819 when Friedrich Ferdinand Runge first extracted the purified form of caffeine from coffee (hence the name).  By the end of the 19th century, chemists learned to synthesize caffeine and it became a common ingredient in many food and drink products.  Despite caffeine’s popularity (and its largely undeserved reputation for curing drunkenness), medical authorities expressed concern over possible harmful effects on the human body. Ever since coffee and tea were first introduced to the West, medical tracts condemning coffee, tea, and chocolate were common enough and the Netherlands was probably the only European nation that didn’t have its own anti-caffeine temperance movement at some point. As coffeehouses sprang up all over Europe (the first American coffeehouse opened in New York in 1696), they acquired a sinister reputation as hotbeds of sedition and unrest. In 1833, John Cole wrote a paper published in the medical journal Lancet outlining the dangers of excessive coffee and tea drinking.  Cole presented nine case studies describing the various symptoms of coffee/tea intoxication and suggested that “May not the greater prevalence of cardiac disease of late years have been considerably influenced by the increased consumption of coffee and tea?”.  Cole’s paper would be highly influential in shaping later prejudices towards caffeinated products when they were later introduced.

Which brings us to Coca Cola…

Beginning as a patent medicine sold as a tonic syrup in pharmacies in the late 19th century, Coca Cola took its name from two of its main ingredients: coca leaves and kola nuts.  Originally billed as a cure for numerous ailments (including morphine addiction and impotence), Coca Cola became a popular soft drink by the turn to the 20th century. As its popularity grew, changes to the original formula were deemed necessary.  By 1904, the pure coca leaf extract (containing an estimated nine milligrams of cocaine per glass) was replaced by “spent” leaves with the cocaine content removed.  Any remaining stimulant value came from the caffeine which was provided by the kola nuts and the 46 milligrams of caffeine per twelve fluid ounces of Coca Cola.  Unfortunately, that’s where the company got in trouble with Harvey Washington Wiley.

Although Coca Cola was extremely popular in prohibitionist circles as a non-alcoholic beverage, Wiley was not pleased by its caffeine content and, given his considerable power at the time, decided to do something about it.  As he pointed out, there was quite a difference between coffee and tea and Coca Cola and its imitators.  While adults were free to drink caffeine products as they pleased, children needed special protection from the negative effects of caffeine.  Since children were the greatest consumers of Coca Cola, the potential harm was far greater (especially since Coca Cola’s advertising campaigns downplayed the caffeine content).  Although  Asa Candler (then CEO of Coca Cola) protested Wiley’s accusations and insisted that the product was safe, that wasn’t enough for Wiley.  Using his authority, Wiley had the US government seize a shipment of Coca Cola being transported from its main plant in Atlanta, Georgia to the principal bottling plant in Chattanooga, Tennessee on October 9, 1909.  Under the Pure Food and Drug Act, the shipment wast declared contraband beginning one of the most memorable early cases involving food products (still known as the U.S. vs. Forty Barrels and Twenty Kegs of Coca Cola case).

It was quite a trial.  On one side was Wiley with the full backing of the United States government while on the other side was the Coca Cola company, already one of the largest companies in the country.  Wiley’s case against Coca Cola focused on the product as being “adulterated and misbranded”.  The adulteration came in the form of  the caffeine content which “might render the product injurious to health”.  Chemical analysis also showed that, despite the product name, there were almost no traces of coca and “little if any cola”.  The actual ingredients, according to the trial transcript, included sugar, water, caffeine, glycerin, lime juice, “and other flavoring matters” (so much for the secret formula).  The company responded to Wiley’s complaint by insisting that Coca Cola was a registered brand name and that the formula had been followed for more than twenty years without problems.  As for the adulteration charge, that was harder to dispute since caffeine had never been proven to be harmful.  When the trial opened on March 13, 1911, there was an array of witnesses giving testimony on both sides.  Religious fundamentalists testified that drinking Coca Cola led to wild parties, sexual indiscretions by coeds and “induced boys to masturbatory wakefulness”.   Most of the remaining testimony was scientific in nature although the research methodology involved was often flawed.

Better research was needed.

My good friend Mike Maslanka has an excellent post up on his Work Matters Blog this week discussing the Texas Supreme Court’s granting review of  Marsh USA Inc, et al. v. Cook.  At issue is whether an employer can use cash or some other cash-like compensation (here it was stock options) as the sole consideration to support a noncompete agreement.

The answer under current law is pretty clearly no it can’t – this is what was held by the court of appeals that held in favor of the employee in this case.  You can view that opinion here.

Currently in Texas, an employer must, as consideration for a noncompete agreement, give the employee some type of private proprietary information or trade secret.  Thus the need for the noncompete is seen as tied to the need for the employee to have access to proprietary information.

The Marsh case represents a full-on frontal assault on this principal.  Here is how Mike puts it:

The stakes are high. Cook’s reply to Marsh’s petition hits the nail squarely on the head: Marsh’s “argument would allow an employer to impose on an employee a covenant not to compete in exchange for any benefit the employer provides to incentivize the employee to work hard and build the company.” Marsh similarly homes in on the key issues, asserting the 5th Court’s opinion “creates an environment hostile to economic development” and warning in its petition that “Employers like Marsh, whose goodwill exists in the form of customer relationships, may have to consider relocating to states that clearly and consistently protect goodwill.”

The stakes for this case are indeed very high.  Should the Court rule in favor of the employer, then virtually any employee in Texas could soon find themselves being asked to sign over their right to continue working in the same town or area of business in exchange for (as Al Pacino put it in Oceans 13) “a modest cash payment.”