The Medical Messiahs:
A Social History of Health Quackery
in Twentieth-Century America

4: Fraud in the Mails

James Harvey Young, PhD


There is something wrong with my testicles and I don't know what to make of it. I noticed for some time that they don't hang even and that the left one hangs lower. I ain't got the nerve to ask our doctor about it. Please use plain envelope."

—Test letter from postal inspector to the Interstate Remedy Company, 1913 [1]


The first federal agency to combat medical quackery was the Post Office Department. Before Dr. Alsberg sought to test the Sherley Amendment, even before Dr. Wiley began to enforce the Pure Food and Drugs Act, the Postmaster General had aimed a powerful weapon at unscrupulous medical promoters who used the mails.

Back in 1872, during the widespread chicanery of the Gilded Age, Congress, in revising the postal statutes, bad devised a new way of fighting fraud. Promoters of get-rich-quick schemes involving securities, mining rights, counterfeit currency, and the like depended on the mails, especially the conveyance of money in registered letters, for the success of their shady transactions. Gullible people fleeced by such schemes usually lived too far away from the site of the crime to seek reparation by the usual legal remedies. So Congress proposed a means of protection. If the Postmaster General should become persuaded, "upon evidence satisfactory to him," that a person or corporation was operating a "scheme or device for obtaining money through the mails by means of false or fraudulent pretences, representations, or promises," then the cabinet officer could take a drastic step. By issuing a "fraud order," be could direct that all registered letters addressed to the crooked enterprise be intercepted, stamped "Fraudulent," and returned to their senders. In 1895 Congress extended the same procedure to cover all other types of mail arriving for an illegal promoter. It all was stopped, stamped "Fraudulent , and sent back. Letters with no return addresses went to the dead letter office, for even fraud was not sufficient grounds for violating the mail's sanctity. No postmaster or any other person, the 1872 law read, could open a letter not addressed to him [2].

It is not clear when the first mail-order medical quack felt the heavy hand of the Postmaster General upon his shoulder, but probably not until the very end of the century. Up to that point, the Post Office Department sought to restrain fraud involving finance but not fraud involving health. Not until 1901 did the Postmaster General refer in his annual reports to "quack medicines." Two years earlier, however, the Bureau of Chemistry began a collaboration destined to continue for decades, when Dr. Wiley analyzed some "medicinal tablets" for the Post Office Department, finding them "wholly and intentionally fraudulent." Similar services were performed by the Bureau with increasing frequency during the next several years. Over from the Postmaster General came pills to restore "lost manhood," powders to turn black skin white, lotions to straighten kinky hair [3].

One of the purported skin whiteners, Wiley discovered, was mainly corrosive sublimate mixed with glycerine. Rejuvenators turned out to be petroleum jelly, or cold cream, or a mixture depending on red pepper for its zip. The flagrant fraudulency of these nostrums which Wiley analyzed for the Post Office Department may well have helped awaken him to the fact that the food and drug law for which he was fighting must contain a definition of drugs broad enough to cover patent medicines. In 1904, Wiley provided a Senate committee with data on a new batch of rejuvenators and some tuberculosis "cures" under scrutiny by postal authorities. Mormon Bishop Pills came in three colors, Wiley indicated, red, white, and blue, and Sir John Hampton's Vital Restorative in two. Sir John's first pill, containing methylene blue, would turn the urine green and frighten patients into further treatment. The second pill was licorice and saw palmetto [4].

Wiley's analyses formed part of the evidence "satisfactory" to the Postmaster General that the nostrums under question were actually fraudulent. Since postal authorities were prohibited from opening and reading correspondence between a suspected quack and his customers, the task of securing conclusive evidence was difficult. A fraud order was too rigorous a penalty to be dispensed without due cause. When newspaper advertisements asserted categorically that a pill could cure incurable diseases, and Wiley's laboratory reported the pill to be made of inert ingredients, then action seemed justified. The pill maker was informed of the charges against him and summoned to Washington to make such defense as he might wish. If he came, he was accorded a full hearing at which both his evidence and that of the Department were presented. Then the chief legal officer for the Department, at that stage an assistant attorney general, wrote a summary of the hearing and sent it to the Postmaster General with a judgment as to what action should be taken: fraud order or dismissal of the complaint. Almost without exception the Postmaster General followed his lawyer's advice [5].

In many mail-order ventures, advertisements in magazines and newspapers merely hinted at the curative powers of the remedy for sale. The full gaudy gamut of promises came only with circulars mailed to all who read the ad and wrote the company pitiful letters of hopeful inquiry. Since reading this exchange of mail was taboo, postal authorities developed a technique for finding out what a quack said when he answered a poor, suffering inquirer. This technique was the test letter. Postal inspectors pretended to have cancer, tuberculosis, male weakness, venereal disease, and engaged in extensive correspondence, often under assumed names, with medicine vendors. So when a male-weakness expert came to Washington for a hearing, he might find the man who had written, "I seen your ad about that free prescription. . . ," testifying to every step in the high-pressure mail campaign touched off by such a letter.

Right at the start of its contest with quackery, the Post Office Department had been given some guidance as to ground rules. A case reached the Supreme Court, resulting in a decision that has exercised an influence over all federal regulation of medical quackery ever since.

The case arose from efforts by the Post Office Department to restrict the activities of a mental healing practitioner. In 1897 an uneducated exponent of this "science," J.H. Kelly, settled down in Nevada, Missouri, where he began practicing and teaching. The next year he incorporated his venture under the name of the American School of Magnetic Healing. Besides treating patients face to face, Kelly believed he could exert his curative powers across vast distances. Through extensive advertising, he conveyed this promise far and wide. To him and his associates, he asserted, had been committed a startling revelation whereby all. human ills could be dispersed as if by magic. It was, indeed, the same power Christ had possessed 1900 years before. The human mind, Kelly held, was mainly responsible for sickness. By a proper focusing of the brain, guided from afar, men could largely control and cure their afflictions. For a price Kelly would transmit the healing regimen of his "practical scientific system"—not to be confused with Christian Science. An inquirer received from Kelly certain directions: at a specified moment of time the inquirer should rid his mind of all disturbing thoughts and compose it in a passive condition. He was then prepared to absorb influence from the mind of the healer who, at the same moment in Nevada, would exert the mysterious curative power. In actual fact, Kelly and his associated healers might never see the letters of inquiry, which were answered by female secretaries who copied form responses. Nor did the telepathic wizards necessarily concentrate at the appointed hours—they might be off vacationing in Colorado. Nonetheless the advertising was effective. By 1900 some 3,000 letters a day were arriving in Nevada for the Magnetic School, and the daily cash intake ran from $1,000 to $1,600 [6].

After a hearing in Washington, the Postmaster General directed the Nevada postmaster, J. M. McAnnulty, to refuse delivery on all mail addressed to Kelly and the School. As McAnnulty, in pursuance of the order, prepared to return all mail—stamped "Fraudulent—to the senders, Kelly went to court. Arguing that the fraud statutes were unconstitutional, he sought an injunction to prevent McAnnulty from sending back the 25,000 letters which crowded his post office. A circuit court judge refused the injunction, saying that the constitutionality of the several laws had already been established. Kelly appealed.

The Supreme Court, although avoiding constitutional questions, sided with Kelly and against the Postmaster General. The fraud order, said justice Peckham, rested on "a mistaken view of the law." It assumed a fact not capable of being,' proved, that the mail-order therapy dispensed by the Magnetic School was worthless.

Obviously, Justice Peckham argued, "the influence of the mind upon the physical condition of the body is very powerful, and . a hopeful mental state goes far, in many cases, not only to alleviate, but even to aid very largely in the cure of an illness from which the body may suffer." To exactly what degree this mental influence may go, no one can say.

"One person may believe it of far greater efficacy than another, but surely it cannot be said that it is a fraud for one person to contend that the mind has an effect upon the body and its physical condition greater than even a vast majority of intelligent people might be willing to admit or believe." Thus Kelly's claims for his "practical scientific" therapy "cannot be proved as a fact to be fraud." "We may not believe in the efficacy of the treatment to the extent claimed" by Kelly and his supporters, "and we may have no sympathy with them in such claims, and yet their effectiveness is but matter of opinion in any court."

Justice Peckham did not rest content with making his point exclusively with respect to Magnetic Healing. He extended his argument to cover the entire field of therapy. With respect to all aspects of the healing art where medical opinions differ, he said, "there is no exact standard of absolute truth by which to approve . . . [an] assertion false and a fraud." "As the effectiveness of almost any particular method of treatment of disease is, to a more or less extent, a fruitful source of difference of opinion, even though the great majority may be of one way of thinking, the efficacy of any special method is certainly not a matter for the decision of the Postmaster General within these statutes relative to fraud."

The McAnnulty rule, coming at the very start of federal regulation of quackery, was a "roadblock" to strong control, a source of solace and comfort to generations of nostrum vendors." [7] The decision made governmental administrators cautious. It also gave instructive lessons to quacks. They would be well advised to sell medicines for diseases still baffling orthodox physicians, to use drugs which some doctors at some time had said were worthy, to hire for their staffs physicians willing to present to a trial or hearing the medical opinion—though it might be a decidedly minority view—that the remedy under discussion was effective therapy for the advertised diseases. It was the McAnnulty doctrine which Oliver Wendell Holmes applied to let Dr. Johnson's cancer claims stay on his labels, overruling Dr. Wiley's interpretation of the 1906 law. It was the McAnnulty doctrine which molded the phrasing of the Sherley Amendment.

Justice Peckham's opinion did not, however, destroy the Postmaster General's authority to combat quackery. In Peckham's wide-ranging dicta, he suggested several limitations upon the main thrust of his central doctrine. Some medical issues had passed beyond the "empirical stage" and had entered the realm of material fact, so that the value or lack of value of a given therapy, no longer a matter of opinion, could be demonstrated scientifically. A promoter whose claims contradicted medical fact was proper prey for the Postmaster General. Even where opinions were still in conflict, Peckham intimated, fraud might occur if curative claims were absolutely unrestrained, if the promise were made "that the treatment . . . will always succeed." And there might be nostrums not assailable on the basis of their claims, the justice asserted, which could be acted against if postal authorities could prove that the "business ... as in fact conducted" amounted to fraud.

In the Missouri state courts, it must be noted, Kelly and his associates of the Magnetic School did not fare so well as in the Supreme Court of the United States. Rebuked in a newspaper article for being "miserable charlatans," they sued for libel and won. But on appeal a Missouri supreme court justice reversed the decision. The lower judge, he said, should not have permitted the jury to decide whether or not Kelly's alleged therapy was a legitimate business, despite the long parade of former patients who testified gratefully in Kelly's behalf. "Courts are not such slaves to the forms of procedure," the high court stated, "as to surrender their own intelligence to an army of witnesses testifying to an impossibility. They are not required to give credence to a statement that would falsify well-known laws of nature, though a cloud of witnesses swear to it." [8]

The Postmaster General, restrained by the McAnnulty decision but guided by its clues, moved slowly and with great deliberation. The pace of his march against medical fraud can be detected by the number of analyses run for him by the Bureau of Chemistry: 21 in 1906, 13 in 1907, 5 in 1908, 15 in 1909, 20 in 1910, 21 in 1911. [9] Postal authorities assailed the most outrageous quacks, those promising sure cures for incurable diseases. Every effort was made to develop unassailable evidence in the quack's methods of promotion to demonstrate his fraudulent intent.

The great majority of Post Office cases dealt with cures for cancer, consumption, and epilepsy. Also attacked were remedies for blindness and deafness, the drug habit and the tobacco habit, lost manhood and failing womanhood. To make a fraud order stick against a concern vending a deafness cure, a postal inspector submitted thirteen symptom blanks, filled in so as to indicate various types of deafness listed as incurable in the quack's own promotional literature. In every case, the quack responded by diagnosing the deafness as due to "deep seated and chronic" catarrh, and by prescribing as the perfect treatment his own drugs and an $8 "electro-magnetic head-cap." Relying on the McAnnulty decision, the promoter went to court. Relying on a McAnnulty exception, the judge ruled against him. "What might otherwise be a legal business or profession," the judge stated, "may be so conducted as to render it a vehicle of fraud and deception." In this case, the advertising doctor, exhibiting "utter indifference" to the symptom blank, sought merely "to get . . . as much of . . . [the patients] money as possible." [10]

Choosing its cases with care, the Post Office Department developed an excellent statistical record of success. Many mail-order promoters, hailed to a hearing, were anxious to revise their promotional methods so as to avoid the death grasp of a fraud order. In some cases this was permitted, the proprietor signing an affidavit promising to discontinue practices deemed fraudulent by postal authorities. When fraud orders were issued, they were seldom contested, and when contested in the courts, rarely overthrown [11]. A most ecouraging fact, however, began to be evident to those within the Department charged with combatting fraud. There existed a breed of inveterate quacks who could not easily be curbed. Defeated in one venture, they launched a new one, with a new name, a new address, and a new—and often more subtle—approach. It was a somewhat risky but financially rewarding life, fleecing the sick and miserable through the mails, and called for imagination, audacity, and utter lack of scruple.

In 1904 the Postmaster General issued two fraud orders on the same day, one aimed at the Dr. Raynor Medical Company, the other at the Dr. Knapp Medical Company. In point of fact, the two companies were the same, and the moving spirit in both was a Detroit resident named Edward D. Hayes, Six years before, with help from a doctor and a chemist, Hayes had begun to play the "lost manhood" game. He had placed ads in magazines like Mail and Breeze, headlined "Makes 'Old Men' Boys Again," showing a grandfather type holding aloft a bouncing baby while his pretty young wife looked on. Hayes had distributed pamphlets condemning both regular physicians and "the company of quacks," and promising, "We treat and guarantee to cure absolutely the following troubles: SPERMATORRHEA (Night Emissions), VARICOCELE, LACK OF ERECTILE POWER, SMALL OR UNDEVELOPED ORGANS, HASTINESS OR PREMATURITY, URINARY TROUBLE AND KIDNEY AND BLADDER TROUBLES." [12]

The Restorative Remedies were really shotgun formulas, mostly herbal, containing drugs like damiana fabled in folklore for their rejuvenating powers. Called to Washington for a Post Office Department hearing, Hayes and his associates backed down. They signed an affidavit agreeing to abandon their enterprises and to permit the Detroit postmaster to return mail to the senders for a space of time, marked not as "Fraudulent" but as "Refused." But the agreement was broken: money orders were cashed and new promotional pamphlets distributed. Fraud orders followed promptly as a matter of course.

The Knapp and Raynor companies had collapsed, but very shortly Hayes was back in business. His new venture, the Interstate Remedy Company, vended the same kind of wares, but with more caution. Hayes, at least, took pains to make a great show of circumspection. On the first of many voluntary journeys to Washington, Hayes told postal authorities that it was not he, but a partner, who had cashed the money orders, and then only because of erroneous advice from the Detroit postmaster. Promotional plans for the new Interstate concern were discussed with Post Office legal officers to make sure they did not cross the border into fraud. During the next few years, Hayes dropped by the Post Office Department from time to time, just to see if there were any new rules he ought to know about. He also checked his advertising copy and direct mail pamphlets with a Chicago outfit, the Federal Guide Association, staffed by former postal inspectors who sold advice to proprietary promoters on how to avoid trouble with the law. (Hayes had taken pains to ask the assistant attorney general of the Post Office Department if the Association was run by "respectable people." So far as he knew, the legal officer had answered, it was.) And, for good measure, Hayes saw successive district attorneys in Detroit, presenting his medical literature for scrutiny [13].

Through all this checking and rechecking, business developed nicely. During one five-day span in early 1914, the Institute cashed $1,245.80 in money orders, and only Hayes knew how much in cash and checks arrived in the 1,444 pieces of mail that was the company's daily average.

This money came mainly from men with doubts about their potency, "brought on by excesses, unnatural drains or the follies of youth." Hayes appealed to them through ads in publications ranging from the Baptist Record to the Police Gazette. "$3.50 Recipe Cures Weak Men-Free," the headline read.

This recipe was a physician's prescription, "the surest-acting combination for the cure of deficient manhood and vigor failure ever assembled." The "up-building, spot-touching" formula cost nothing and would be sent inquirers in a plain envelope, with all correspondence kept strictly confidential. The Interstate Company also ran advertising which promised to cure weak kidneys. Many of the ads of both kinds were signed by Dr. A.E. Robinson.

At the Interstate offices, each day's incoming mail was sorted by a large staff of clerks. Every desk bore a sign warning against the commitment of fraud. The clerks operated according to a system which, the company's lawyer said, was "almost automatic." Initial letters went into one of three piles. If the clerk interpreted the letter to describe symptoms of "lost manhood," he placed it in the "nervous" pile. There was a similar "kidney" pile. Should a letter reveal symptoms of ailments not amenable to treatment by the company's two formulas, the clerks had a third pile which Dr. Robinson would read. It seems unlikely that the doctor's labors in the company's behalf required much time.

Dr. Robinson's facsimile signature was much employed, at any rate. It came at the end of form letters sent out to all .nervous" and "kidney" patients, letters printed to resemble typewriting, with name and address typed in to enhance the illusion of personal attention. Similar letters went forth from Interstate to men who might never have seen an Interstate ad. For the company bought from brokers batches of letters written by worried males to other "male weakness" companies. Sometimes a promise to remedy exhausted virility might be addressed to a young boy of twelve. But accidents happen in all businesses.

True to the advertising, with the Interstate form letter went a prescription. No druggist, however, could fill the formula sent kidney sufferers. It contained two remarkable ingredients, "kydnos" and "urikol" obtainable only from the company. Happily the sufferer need not delay. For simultaneously with the letter, Interstate dispatched a fortnight's supply of medicine by express. The cost was $3.50 C.O.D., and the letter explained how the doctor was sure the sick man would want to lose no time.

The "Man Medicine" formula, mailed to the impotent, contained no trick ingredients and could be filled at any drugstore. Most men, Hayes evidently believed, would not get their prescriptions filled locally for fear news of their ailment might leak out. So the C.O.D. package, private and convenient, was a mighty safe bet. Get the package from the express office without delay, the form letter urged. "Do you think you will be better a week from now? Are you not convinced in your own mind that every week that goes by and nothing done is just seven opportunities for health wilfully squandered?"

Behind the first form letter lay a variable series of letters, to be sent according to how the sufferer behaved. If he paid $3.50 for the two-week supply, he was quickly sent enough for a month, C.O.D., costing $6. If he delayed, he was dispatched a round of increasingly frightening letters, ending with a cut in price to $1.75.

In 1913 the Post Office Department decided to check into Interstate's methods of operation. A new political administration was in office, and postal attorneys may not have known about Hayes' earlier efforts at conspicuous rectitude. Or he may have actually aroused suspicion by another visit to Washington. At any rate, postal inspectors, following their usual procedure, began to write Interstate heartrending letters.

"There is something wrong with my testicles," one test letter began, "and I don't know what to make of it. I noticed for some time that they don't hang even and that the left one hangs lower. I ain't got the nerve to ask our doctor about it so am writing to you to find out what you think about it. Please use plain envelope."

Of course, this perfectly natural condition was, to Interstate, an ailment. You have "swollen testicles," the company answered, and need Man Medicine for "quick recovery."

Another inspector asked if Interstate's prescription would cure" him "of a weak stomach." He got a personal answer. "You say in your letter," it began, "that you are suffering from weak stomach and weak manhood...."

"Ben Watkins" of Grass Lake, Michigan, was a bachelor of 23. He didn't run around much with girls, but every six or eight weeks had a "wet dream." "Now i don't feel no bad effects from them," he told Interstate, "but am kinder wondering if them dreams are bad for me." They were indeed, was the reply, and a special $6-package of medicine awaited Ben at the express office.

No symptoms were listed at all in the letter "Abe Rutledge" wrote. "I seen your ad about that free prescription of yours but dont know if it is the thing I need. I would of liked to ask our local doctor but kinder don't want him to know about it. I thought by writing to you I could find out if I need treatment because I don't want to eat no medicines if it ain't necessary.

Interstate sent a personal answer along with a pamphlet. If Rutledge was suffering from any of the listed troubles, the doctor said, "I am confident I can restore you to health and sexual strength." A 15-day C.O.D. treatment was being shipped by Wells Fargo Express.

Rutledge continued perversely obtuse. "I got your letter and your book," he replied, "but can't make head or tale out of it. I dont know that my sexual strength is not allright and before taking the medicine from the express office I wished you would tell me if I ought to take the treatment."

"Call at the express office at once for the treatment," the reply came back, "and commence using it." Two follow-up letters from Interstate reached Rutledge when he failed to heed this counsel.

Man Medicine was analyzed for the Post Office Department by the Bureau of Chemistry. Like Hayes' earlier Restorative Remedies, it was a mixture of "well-known tonics and laxatives," a mixture which could not rejuvenate, could not, as promised, ensure "once more the gusto, the joyful satisfaction, the pulse and throb of physical pleasure, the keen sense of man-sensation."

Once more Hayes showed up in Washington, this time summoned to show cause why a fraud order should not be issued against the Interstate Medicine Company. Into the hearing record were read the test letters and the replies, Hayes' formulas, and testimony by various physicians about the futility of treating impotency by means of such drugs. Moreover, the company kept offering the remedy when inquirers suggested no hint of an ailment, but merely normal conditions of healthy males. Diagnosis by mail on the basis of laymen's letters was simply not possible, the medical experts said. An inspector told of corresponding with 37 of Interstate's customers: two claimed they had been helped; the rest reported no benefit while taking Man Medicine for periods ranging from a month to five years.

To contradict the advertising promises of privacy, the Post Office Department revealed a letter written by Interstate to a Chicago broker handling "sucker lists." The company had 70,000 to 80,000 letters from weak-men inquirers, the letter said, "the choicest lot of Nervous Debility names to be had in the country, and have never been copied by anyone." If Interstate could get something close to a proper price, it would sell or rent.

In defending himself, Edward Hayes recounted the steps he had taken, after his earlier troubles, to stay on the right side of the law-his consultations in Washington, his conversations with district attorneys, his expensive advice from the Federal Guide Association, his reiterated injunctions to employees to function uprightly. The Interstate formulas had been devised, Hayes said, by Dr. Robinson, an M.D. from Queen's University in Toronto. Other physicians might hold a contrary opinion, but Robinson believed in his remedies, and so did Hayes.

Only once had letters written to Interstate been sold to a broker, and none was of a confidential nature. Hayes stopped the practice when told by the Federal Guide Association that the Post Office Department considered it "not very nice." The later offer to sell over 70,000 letters to the Chicago company, Hayes insisted, was not bona fide. It was a ruse to discover the going price, for while Interstate no longer sold, it often bought such merchandise.

The screening of incoming letters, Hayes admitted, was regrettably not perfect. The clerks occasionally made a mistake. No medicine should have been sent out in reply to the "weak stomach" letter, and the low-hanging testicle letter should have been given an individual, instead of a form, reply.

"You can see," Hayes' attorney amplified, "that in the multitude of letters that come in, and the number of clerks that are working on this, it is very easy for a person to get a letter that should have gone to the doctor specially, to get them into the catalogue where the debility case was and then get the regular system of follow up . . . debility letters. That is pure mistake and you can see how almost diabolically clever that [test] letter was written to trap these people, and they have simply trapped them into a mistake."

If blame there was, in short, it was on the heads of the sneaky postal inspectors.

The assistant attorney general for the Post Office Department, W. H. Lamar, did not agree. "There are facts that have developed here in connection with the actual operation f this case," he stated frankly during the hearing, "which would convince any reasonable man's mind that a fraud was being committed." Nor did Hayes' almost obsessive consultations impress Lamar. The Interstate president, Lamar told the Postmaster General, "sought advice for the purpose of enabling him so to disguise the nature of the scheme as to evade the law, or else for the purpose of being able to make a colorable showing of good faith should the business at any time be questioned." [14]

If that was Hayes' scheme, it backfired badly. On April 17, 1914, the Postmaster General issued a fraud order. But he did not stop there. By a law of 1889, using the mails to defraud had become a crime. Under this law, Hayes, his partner, and Dr. Robinson were indicted in Detroit. They pleaded guilty, and Hayes was given the maximum fine, $5,000, which the law allowed. In recommending fines instead of jail sentences, the district attorney told the judge that Hayes had agreed to turn over to the government a mailing list of half a million names. Seven to eight tons of a "lost manhood" company's most valuable asset were converted into pulp [15].

Hayes no longer needed the names, for he was through with proscribing for weak men. He was not done, however, with mail-order medicine. While operating Interstate, Hayes had launched an obesity cure. Marmola was to be ten times the nostrum that Man Medicine had been [16].

One thing the Post Office Department discovered in checking on Edward Hayes' medicines was that he did not manufacture them himself. Like many mail-order operators called in for hearings, Hayes bought his wares from major ethical drug producers.

Most makers of prescription drugs, during these years, were just crossing the threshold of sophisticated science. In 1902 Parke, Davis & Company had built a research laboratory, claiming the distinction of being the first industrial concern in the country to erect a structure especially for research. The legislation of 1906, enacting the Pharmaeopeia and National Formulary standards into law, forced many pharmaceutical manufacturers, who had never before had such scientific staffs, to establish laboratories for both biological and chemical assay of their products. German imports dominated the market in chemical synthetics, American concerns neglecting this scientific field. They devoted their energies chiefly to extracting the active ingredients from plants and embodying them in various pills, tablets, and elixirs. Marketing policies left much to be desired. "The advertising departments of the pharmaceutical firms . . . " in the opinion of the director of the AMA Chemical Laboratory, "could well afford to cooperate more closely with the scientific workers before copy is sent broadcast." Even the scientific workers were viewed with some suspicion. Until past the middle of the .1920's, the American Society for Pharmacology and Experimental Therapeutics would expel a member who took permanent employment with a drug firm [17].

Whatever their other shortcomings, ethical manufacturers did one thing that deeply bothered patent medicine critics: they engaged in the surreptitious production of nostrums. Wiley and Kebler had discovered this from the flood of correspondence loosed by the passage of the Pure Food and Drugs Act. "A large majority of all the proprietary remedies," Wiley wrote late in 1906, "are made by manufacturing concerns whose names appear nowhere upon the label, and who would be, I am sure, heartily ashamed to have them there.... That first-class firms should lend their influence or countenance to a thing of this kind is almost incredible." [18]

Such expressions of incredulity kept recurring. "The Great Drug Laboratories of America," commented a visiting Australian, ". . . might, with ample reason, claim to be the biggest packers of quack medicines in the world. Anything from homicide to humbug, with all between, is prepared and packed to order for the nostrum-vendors." At the hearing on Congressman Richardson's abortive bill, Dr. Kebler expressed chagrin that "reputable" manufacturers were making "the most vicious frauds." "I have furthermore been informed," be added, "that some of the ethical firms actually furnish the formula, compound the medicines, supply the literature, and everything else so that these quacks can go on doing business."[19] This gloomy fact the Post Office Department kept rediscovering as it continued trying to close the mails to the most unscrupulous of the medical fakers.

The year of the victory over Interstate marked the beginning of an upsurge in Post Office activity against medical swindlers that has not slackened since. Cooperation between the Department and the Bureau of Chemistry, already close, was strengthened. With the arrival of Dr. Glover at the Bureau to handle Sherley Amendment matters, Lyman Kebler became a full-time liaison scientist between the two agencies. He ran the increased number of analyses which growing Post Office action required, testified at hearings and in court, and wrote numerous articles that publicized what postal authorities were doing to fight medical fraud [20].

Protecting the public demanded close cooperation between the regulatory agencies, for each could combat quackery in ways the other could not. Where promotions were conducted mostly through the mails, Post Office action could be "more prompt and complete" than any measures the Bureau of Chemistry was permitted by law to take. The Bureau especially encountered difficulty in fighting alleged drug-habit cures that themselves contained narcotics. These were mailed direct from the proprietor to the consumer, and it was hard for food and drug inspectors to get evidence. The courts looked with disfavor on cases started with "induced shipments." So postal inspectors—whose "test letters" the courts approved—fared better in this field [21].

The definition of fraud, under postal statutes, was broader than that of medical quackery under the 1906 Pure Food and Drugs Act. Certain promotions, therefore, which the Bureau of Chemistry was helpless to handle could be attacked by the Post Office Department. As a result of a long and hard-fought criminal case, ending in 1915, fraudulent medical devices were shown to be a proper object of postal control. The case concerned the Oxypathor, one of the "gas-pipe cures," which as a therapeutic agent "belonged in the same class as the left hind foot of a rabbit caught in a graveyard in the dark of the moon." The gadget was a piece of nickel-plated tubing fill d with inert material and sealed shut. Attached to each end was a flexible cord culminating in a garter-like band of elastic, one for a wrist, the other for an ankle, to be worn while the cylinder rested in a crock of water. The device purportedly permitted the body to absorb more oxygen and hence combat almost any ailment. Besides such crooked therapeutic devices, the Post Office Department could take action against weight reduction drugs and certain cosmetics which the Bureau of Chemistry lacked authority to fight [22].

During World War I, both agencies joined in battling the rising flood of nostrums promising to cure venereal disease. This campaign led to an effort in Congress to bar from the mails all advertising concerned with venereal disease. To be successful, the prohibition would have to be broad enough to cover various euphemisms by which syphilis had recently been disguised in order to escape postal authorities and state advertising control bills. Everybody knew now that "blood poisoning" in an advertisement meant venereal disease. "But while syphilis is blood poison," as the Proprietary Association counsel told a House committee, "it doesn't follow that all blood poisons are syphilis." So to exclude from the mail all venereal disguises would be to eliminate some of the oldest and most established of family remedies. The next step would be a law to prevent anyone from dosing himself with a proprietary remedy "unless he shall go to the doctor for a personal examination." The bill, said another witness, had aimed at a mountain lion but would also reach "a harmless, household canary." The measure was not reported by the committee to the House [23].

What the venereal remedy quacks did in employing euphemisms was one example, of course, of what quacks always did when regulation pressed too hard. They made some sort of shift, especially the shrewdest enterprisers, which sought to avoid or lessen legal hazards. Another maneuver and one widely used in the late teens and twenties, was the abandonment of high-risk products, like cancer cures, in favor of wares aimed at ailments about which medical opinion was not so uniform. To judge by Post Office cases initiated between 1925 and 1930, there was a boom in remedies for reducing and for rheumatism. Postal inspectors had to work harder at their jobs, and chemical and medical analyses had to be more thorough. In earlier days, as Dr. Kebler said in 1922, schemes had been ,'much cruder than . . . at present." [24]

If less crude than formerly, the most disreputable remaining schemes still posed the main target for postal authorities. The burden of proving fraud was easiest against drugs and devices offering to restore "lost manhood" and against panaceas promising to cure all of mankind's ills. These categories led medical fraud cases started during the late twenties, with nostrums for tuberculosis and venereal disease also ranking high.` Despite constant vigilance and crash campaigns—like a 1926 effort aimed at two score Kansas City mail-order promoters—the ranks of quackery were annually augmented. Numerous promoters, some naive and ignorant, others crass and clever, entered the market with products claiming to cure virtually every ailment known to man.

In its continuing contest with quackery in the mails, the Post Office Department got help from understanding court decisions. The Oxypathor case had been one instance. Equally significant was victory over a chronic offender in the "weak manhood" racket, whose Organo Tablets contained a substance extracted from the testicles of rams. This decision broadened the McAnnulty exceptions in a significant way. In that crucial case justice Peckham had stated that no one could "lay down the limit and say beyond that there are fraud and false pre tenses." But in the Organo Tablets case a circuit judge did in fact draw such a line. The issue, he said, was not whether sheep's testicles were entirely worthless, about which there was some conflict of medical evidence, but whether the drug was so promoted as to constitute a fraud. Without question this "male weakness" pill had been so advertised. Thus the court blended together the panacea and the "as in fact conducted" exceptions to Peckham's main doctrine so as to cover the significant border zone wherein a remedy might not be entirely devoid of value but go forth with curative claims far beyond actual therapeutic use. This zone had become well populated with shrewd promoters, and the Organo decision aided postal authorities in driving them out [27].

Encouraging, too, to postal authorities was evidence that the courts would keep step with advancing science. In 1916 the government had lost a Sherley Amendment case aimed at Tuberclecide. At the trial, medical opinion was evenly divided, at least quantitatively. just as many doctors asserted the utility of creosote carbonate in treating tuberculosis as argued that the chemical had long since been discarded in proper medical practice. The judge counted noses and could not find that Tuberclecide's claims were false. Nor were they fraudulent. Granted that the nostrum's discoverer was an ignorant man. "Dr. Jenner, who discovered [smallpox] vaccine did not do it by any scientific method. He discovered it from deduction from the fact that milkmaids did not have smallpox, or, if they did have it at all, they had it only in a mild form. It did not take a graduate from any college, or a licensed physician, to make that deduction, and the same might probably be said concerning Tuberclecide." [28]

So a cruel deception continued for more than ten years, its promoter, indeed, taking a cue from the judge's words. "The greatest inventions of modern times that have benefited mankind," Charles Aycock boasted in a booklet, "have been the children of the brain of the lowly born and obscure." At a Post Office Department hearing, Aycock also sought to make a virtue of his ignorance. "I am like Jesus Christ," he said, "opening the eyes of the blind and when critics asked bow it was done he said: 'I do not know, I was blind but now I see.' That is all I can say. I took it and got well. Others took it and got well. That is all I know." [29]

In 1928 a federal circuit court agreed with the Postmaster General that Tuberclecide was useless and its promotion fraudulent. More than a decade of diligent effort among scientists had as yet produced no cure for tuberculosis, the judges conceded, but some treatments earlier propounded as of value could now be discarded as futile. "Representations then made in good faith would, if now made in the light of greater scientific knowledge, and in the light of greater experience in the use of these medicines themselves, be wholly inconsistent with the theory of good faith or any honest belief in their correctness.

The Tuberclecide decision was timely. The Post Office Department—and all other agencies policing medicines vended for self-dosage—were soon to face a rigorous time of testing. For with the Great Depression came a great upsurge of questionable practices in the self-medication realm. In the meantime, the Bureau of Chemistry—and its successor, the Food, Drug, and Insecticide Administration, which in 1927 assumed responsibility for enforcing the 1906 law [30]—confronted its own version of Tuberclecide. At stake in the protracted battle over the good faith of another promoter of a tuberculosis remedy was the very integrity of the Sberley Amendment itself.

References

  1. Cited in Hearing 80, Interstate Remedy Company, Mar. 12, 1914, Transcripts of Hearings of Fraud Order Cases, Records of the Post Office Dept., Office of the Solicitor, RG 28, NA.
  2. 17 Stat. 322-23 (June 18, 1872); 28 Stat. 963 (Mar. 2, 1895). The basic phraseology remains almost identical in current law. 39 U.S. Code, 259 (1958). In 1878 the words "firms or corporations" were omitted in a revision of postal statutes, so the law applied only to persons until 1890, when "company" was included. 26 Stat. 466. Dead letter office personnel are permitted to open first-class mail in an effort to identify the sender.
  3. Report of the Postmaster General, 1901, 36; Wiley, "Report of Work Done [1896-991 by the Division of Chemistry . . . for the Various Executive Departments, (carbon), Miscellaneous Papers, n, Bur. of Chem. Records, RG 97, NA; Wiley, "Bureau of Chemistry, 1897-1905" (typed ms.), 89-90, Wiley Papers, box 199, Library of Congress. Jean Broderick, "Confessions of a Reformed Mail Order Quack," reminisces about events at the turn of the century. Hygeia, 12 (1934), 1077-80, 1144; 13 (1935), 34-37, 92-94.
  4. Investigations of Adulterated Foods, Etc., 58 Cong., 1 ses., Sen. Doc. 270 (1904), 2-4.
  5. Report of the Postmaster General, 1902, 39-40.
  6. American School of Magnetic Healing and J. H. Kelly v. J. M. McAnnulty, 187 U.S. 94. Data on promotional methods derived also from Weltmer et al. [including Kelly] v. Bishop, 171 Mo. 110 (Su. Ct., of Mo. Div. 1, 1902), 17 Southwestern Reporter (1902), 167.
  7. Edgar R. Carver, Jr., "The Rule in the McAnnulty Case," FDC Uw X., 5 (1950), 494-512, an excellent discussion of the case and its continuing applicability. See also, "Proving the Falsity of Advertising: The McAnnulty Rule and Expert Evidence," Indiana Law Jnl., 32 (1956-57), 350-73.
  8. Weltmer et al. v. Bishop.
  9. Reports of the Bureau of Chemistry, passim.
  10. Ibid. Reports of the Postmaster General are not helpful during these years, containing few references to medical quackery as distinguished from other types of fraud. N& Q, i, derives a great deal of material from Post Office fraud cases. The deafness case is Branaman v. Harris, 189 Fed. 461 (1911); see also N& Q, x, 252-65.
  11. Carver, 494-512. That the Post Office Dept. did seek to enlarge the definition of quackery over which its controls might operate is indicated by trade reaction to the "Nature's Health Restorer" fraud order, Druggists' Circular, 11 (1905), 376.
  12. Fraud Order jackets 1993 and 1995, Fraud Orders 1074 and 1076, Sep. 23, 1904, Dr. Raynor Medical Co. and Dr. Knapp Medical Co, Records of the Post Office Dept., Office of the Solicitor, RG 28, NA.
  13. Fraud Order jacket 3657, Fraud Order 7977, Apr. 17, 1914, Interstate Remedy Co., and Hearing 80, in ibid. See also N&Q, 1, 266-75; 11, 284-87.
  14. All of Hayes' assertions about having had the assurances of previous Post Office officials as to the propriety of his promotional methods were made orally at the hearing. When asked if he had anything in writing to substantiate his version of the conversations, Hayes said no.
  15. 25 Stat. 873 (Mar. 2, 1889); N&Q, 11, 284-87; Kehler to A. J. Cramp, July 27, 1927, Marmola folder, Dept. of Investigation, American Medical Association.
  16. See chs. 6 and 9.
  17. Tom Mahoney, The Merchants of Life: An Account of the American Pharmaceutical Industry (N.Y., 1959), 4, 75; Julius Stieglitz, ed., Chemistry in Medicine (N.Y., 1928), 397, 404-05, 414-15, 473; Paul N. Leech, "Chemistry in the Service of Pharmaceutical Medicine," JAMA, 85 (1925), 138-41.
  18. Amer. Druggist, 49 (1906), 357.
  19. Secret Drugs, Cures, and Frauds: Report of the Royal Commission of the Parliament of the Commonwealth of Australia (1907), x, 133; The Pure Food and Drugs Act, Hearings . . ., 62 Cong., 2 ses. (1912), 492. Arthur J. Cramp of the AMA did not believe that this evil had diminished by 1926. Hygeia, 4 (1926), 398.
  20. Remedies, 6 (Feb. 1920), 21, 22; (Apr. 1920), 15, 16, 18; (Sep. 1920), 15, 16; (Oct. 1920), 15, 16; 7 (Feb. 1921), 11, 12. He also wrote "Public Health Conserved through the Enforcement of Postal Fraud Laws," Amer. Jnl. of Public Health, 12 (1922), 678-83, and a series for Druggists Circular, reprinted in 1928 or 1929 as The Mail-Order Medical Game.
  21. Rexford C. Tugwell to Postmaster General, Mar. 29, 1933, MedRem folder, General Corres. of the Office of the Secy. of Agric., 1933, RG 16, NA; 1922 Report of the Bureau of Chemistry, 22; 1923 Report, 16-17; Kebler, "Public Health Conserved through the Enforcement of Postal Fraud Laws," 681.
  22. Moses v. United States, 221 Fed. 863 (1915); N&Q, 11, 706-13.
  23. Kebler, "Public Health Conserved through the Enforcement of the Postal Fraud Laws," 682; Excluding Advertisements of Cures for Venereal Diseases from the Mails: Hearings before the Committee on the Post Office and Post Roads of the House ... on H. R. 5123, 66 Cong., I ses. (1919).
  24. Fraud and Lottery Dockets, volumes 7-9 [including 1925-1930], Office of the Assistant Attorney General for the Post Office Dept., Records of the Post Office Dept., RG 28, NA; Report of the Postmaster General, 1928, 66-67; Kebler, "Public Health Conserved through the Enforcement of the Postal Fraud Laws," 679.
  25. Fraud and Lottery Dockets, 1925-1930.
  26. Printers' Ink, 135 (June 24, 1926), 85-86, 91 [hereafter cited as PI]; Cramp, "Long Distance Quackery," Hygeia, 4 (1926), 395-98.
  27. Leach, Doing Business As Organo Product Company v. Carlile, Postmaster, 258 U.S. 138 (1922); Carver, "The Rule in the McAnnulty Case," 504-505; N&Q, I, 322-26.
  28. United States v. Tuberclecide, 252 Fed. 938 (1916); N&Q, 1, 16572.
  29. Aycock v. O'Brien, 28 Fed. (2d) 817 (1928); N&Q, III, 108.
  30. 1928 Report of Food, Drug, and Insecticide Administration, 1.

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