The previous installment of Decade by Decade told the story of an influential booster in 1925 who worried that Harry Steenbock’s vitamin D patents would undermine Wisconsin’s dairy industry.1 By the 1940s, controversy would come from the opposite direction. According to the U.S. Court of Appeals for the Ninth Circuit, in an opinion issued November 24, 1944, the foundation supported “research in natural science of an undisclosed character by the University of Wisconsin, a state of powerful vested interests in dairy enterprises.” For that reason, the court wrote, WARF had chosen to act “against the interest of the public in the health of its citizens” through its “refusal of licensing of the irradiation of oleomargarine, one of the foods of the poor, with the antirachitic vitamin D.” The ruling ordered the invalidation of Steenbock’s patents.2
What had happened during those intervening years to set the young foundation on a collision course with the federal government?
WARF’s controversial stance towards the oleomargarine industry goes back to the foundation’s earliest days and raises legitimate ethical questions. After all, almost everyone involved with WARF in 1925 believed that allowing the makers of butter substitutes to fortify their products with vitamin D would weaken the market for real butter made in Wisconsin. Steenbock had reservations, but Graduate Dean Charles Slichter, Agriculture Dean Harry L. Russell, and even WARF skeptic, Assistant Dean F.B. Morrison, all agreed that the patent should be used to prevent the “powerful and well organized oleomargarine people,” as Slichter called them, from using Steenbock’s process.3 4
WARF’s trustees agreed. With the exception of foreign patents, where British food regulators required WARF to license oleo, and a butter shortage in 1942 brought on by the war effort, the foundation would make no attempt to license margarine. According to the Antitrust Division of the Justice Department, which joined the federal case against the Steenbock patents, these restrictions amounted to an unfair restraint of trade.5
What should not get lost in this story, however, is the long and arduous campaign to bring Steenbock’s initial discovery from the laboratory to the marketplace. For one thing, and to Steenbock’s consternation, butter manufacturers showed little interest in vitamin D fortification. They figured customers chose butter for the taste, not the nutrition. Making matters worse, while experiments showed milk to be an ideal source for getting vitamin D into the diets of American children, prolonged exposure to ultraviolet light tended to give fluid milk a foul odor and an off-putting taste.6 On top of that, any excess heat had the counterproductive effect of destroying the milk’s vitamin A.7
With the development of dairy irradiation at a roadblock, and with skeptical pediatricians speculating that too much vitamin D might be toxic, Steenbock and Henry T. Scott, WARF’s first full-time employee and, after 1933, director of biological research, launched a series of rigorous experiments to bolster the scientific data on irradiated foods and enhance the credibility of WARF-licensed products.8 Their program determined the optimal dosage of vitamin D for human consumption, assessed which foodstuffs were best suited for fortification, and controlled the quality and efficacy of anything carrying WARF’s name on its label. Apart from these extensive tests, WARF’s labs gathered scientific literature from leading experts on vitamins and built close relationships with the chemists employed by the foundation’s licensees. As company representatives had no problem reminding the foundation during contract negotiations, many of them spent considerable resources developing irradiation technology for industrial use.9
On a separate front, Harry Russell, who in 1930 retired as dean to become the first director of WARF’s executive office, conceived a nationwide campaign to educate the public about vitamin D and ward off patent infringers. This included speeches, presentations and pamphlets by Russell, Steenbock and other WARF scientists as well as advertisements in the Journal of the American Medical Association explaining the rigorous testing and labeling process of the WARF labs. As Russell explained the overall strategy in his public statements, the foundation refused to license products “where there was no inherent justification for Vitamin D fortification” other than “advertising appeal.” This meant rejecting the many requests flooding in from the makers of chewing gum and tobacco, beer and whiskey, pillows and bed sheets.10
Instead, WARF focused on staple foods that could best reach a wide population. In addition to Quaker’s oatmeal and other cereals, WARF licensed Fleischmann’s yeast and Bond flour. These products put vitamin D in a variety of bread and breakfast foods but also in stock feeds, which improved the quality of cattle and poultry. In addition, WARF licensed five pharmaceutical companies to market irradiated ergosterol, or Viosterol, a concentrated form of vitamin D that could replace the cod liver oil mothers often forced on their children.11
But, of course, for both political and nutritional reasons, finding a way to deliver vitamin D dairy products remained the ultimate prize. After years of testing, Steenbock, Scott and their collaborators finally determined a three-part scheme for fortifying milk. First, dairy cows could be fed with irradiated feed to produce higher levels of vitamin D. Second, industrial machines constructed by companies like Creamery Package Manufacturing and Hanovia Chemical allowed large-scale irradiation of fluids while minimizing the negative effects on taste and smell.12 Third, irradiated ergosterol could be mixed into the final product as a tasteless additive.13
Finally, in 1932, a full eight years after Steenbock’s initial discovery, WARF would license technology to four evaporated milk producers. Two years later, the foundation began issuing non-exclusive licenses to fluid milk producers across the United States and Canada.14 In the years that followed, WARF and its partners published reams of pamphlets, ads and flyers that promoted the health benefits of milk as only a proud Wisconsin outfit could.15 16
Their efforts paid off, with about half of the royalty income from the licensing of Steenbock’s technologies coming from milk producers and total royalties more than tripling over a five-year period in the 1930s.
And as the red labels in the coolers of today’s supermarkets attest, “Vitamin D Milk” would prove to be the most lasting commercial contribution of the Steenbock patents. Throughout the 1930s and 40s, milkmen left jugs on doorsteps with the WARF seal of approval printed across their lids.17 And through the 1970s, a WARF-owned subsidiary, Vitamin Concentrates Inc., sold additives to dairies.
The success of WARF’s efforts made the lingering oleomargarine question something of an afterthought. That is, until the Justice Department took notice in the 1940s. To learn how that story unfolded, up to and beyond the Ninth Circuit ruling, come back for our next installment.