Saturday, July 21, 2012

On Cokes and Camelot

“Everything not forbidden is compulsory,” is a line humorously borrowed by physicist Murray Gell-Man for what he called the Totalitarian Principle in quantum physics. Absolutely everything not forbidden to particles by a handful of conservation laws has an amplitude of probability – it must happen. He borrowed the line from T.H. White’s Arthurian fantasy The Once and Future King. There, it is a motto of Antland, where it summarizes a style of governance rejected by the young Arthur under the tutelage of Merlyn in favor of the age-old liberal principle of English law, “Whatever is not forbidden is allowed.”

Arthur, however, doesn’t reign in the Land of the Free. In the US, zoning laws, for instance, typically are “permissive,” which means the opposite of what it seems to mean; it means that whatever land use isn’t expressly permitted is forbidden. Increasingly, we seem at home with the Antland motto, too, untroubled by the tag it has acquired in physics. In every aspect of our lives – commercial, public, and private – Americans are forever voting to require this and proscribe that while restricting (through taxes, licenses, permits, and so on) some other thing. The courts sometimes mitigate the laws a little, but only sometimes. There is nothing particularly Left or Right wing about the American penchant for protecting every fellow citizen not only from theft, violence, and fraud (all of which involve the deprivation of the life, liberty, or property of one person by another) but from his or her own self. Each major political wing does it in a characteristic way, but each does it. Right-wingers are more likely to ban drug use and regulate sexual practices. Under the bizarre Mann Act still on the books, for example, it is illegal to cross a state line with lascivious intent, which makes every teenage boy everywhere a federal criminal at every single crossing. Left-wingers are more likely to ban or restrict foods (such as the soda limit in NYC), mandate behaviors (e.g. buying insurance), and tax “vices” (such as sugar and tobacco) at sky-high rates.

There is nothing new about this tendency either, alcohol Prohibition (promoted mostly by the Right) being the most blatant and blunderous historical example of it. Sodas, too, came under early fire (mostly from the Left), just they are under fire today. Take the case of the iconic American product Coca-Cola which was nearly put out of business in 1911 by crusading FDA scientist Harvey Washington Wiley.

A little background is in order. In 1886, pharmacist and patent-medicine tinkerer John Pemberton in Columbus, Georgia, invented a new fizzy drink made with (among other things) coca leaves, kola nuts, and sugar -- coca leaves and cocaine extract were perfectly legal at the time. The very first ad (May 29, 1886) in the Atlanta Journal reads, “Coca-Cola. Refreshing! Exhilarating! Invigorating! The new and popular soda fountain drink containing the properties of the wonderful Coca plant and the famous Cola nut!” Despite ownership battles among investors and family members, the Coca-Cola company grew rapidly. The cocaine, which was not a large amount anyway, was removed from the drink in 1903, though non-intoxicant coca extracts remain in it to this day. Given Pemberton’s background, it is not surprising that he initially would market Coca-Cola not just as a beverage but as “a valuable Brain Tonic.” The company quickly dropped the latter approach, however, and so was able to escape an 1898 tax on patent medicines. 

In 1911, Wiley took aim at the company. He claimed that caffeine in Coca-Cola was a drug aimed at unsuspecting children (this same argument is still heard today), and that Coca-Cola engaged in fraud because it advertised having “pure ingredients” even though caffeine was an impurity. Wiley’s objection to Coke at bottom was a moral one, as demonstrated in The United States vs Forty Barrels and Twenty Kegs of Coca-Cola when he called community leaders to testify that caffeine promoted promiscuity in young people. Government scientists also took the stand and testified to the ill-effects of caffeine on laboratory frogs. Coca-Cola countered with its own expert witnesses, who said that caffeine was not harmful in relevant quantities. The company defended its claim to pure ingredients. The company said that it openly declared kola nuts to be an ingredient, and that caffeine was naturally present in the nuts; caffeine wasn’t added separately, so it wasn’t an impurity. The trial was good theater, and newspapers took sides, railing at rapacious business or overweening government, according to their bent.

In the end, the court balked at ruling against caffeine per se, since this inevitably would mean outlawing tea and coffee as well. Instead, the trial court narrowed its focus to the impurity issue; it ruled in favor of Coca-Cola, buying the company’s argument that caffeine wasn’t an additive and therefore wasn’t an impurity. The company’s relief was short-lived. The government appealed the decision, and an upper court reversed the trial court. At this point, rather than appeal to the next higher court, Coca-Cola sought a settlement; Wiley had resigned by this time, so the government lost its enthusiasm for the case, and agreed to talk. The company agreed to cut the caffeine in its drinks in half and to pay all legal costs; the government dropped the case. The company’s survival was a close call, but it lived to defend itself in court another day.

Since 1912 the formula for Coca-Cola has stayed basically the same (except for the brief and disastrous New Coke episode in 1985). It still tastes very much like the original 1886 batch, though the effects of the modern version are considerably less stimulating.

With such a long history of attempts at direct and indirect regulation of what we eat, breathe, touch, and imbibe, there is little doubt we will see more of the same. It is, of course, possible to reject the philosophies of busybodies of both the Right and the Left, and to favor just being left alone in all private matters of drugs, sex, personal safety, diet, and so on. A couple decades ago I wrote a short story called Deep Fried, which was intended to be a satire of laws against marijuana; little did I know it was less satire than prediction: .

An Icon Drinks an Icon



  1. I had heard about that case, but didn't know the details. Thanks for the blog, very interesting. And you're right. This seems to be a real American issue, and I'm not sure it will ever be solved. Love the Marilyn commercial.

  2. Marilyn was the real thing, which is the set-up for another Coke commercial, isn't it?