Science & technology
The seal deal
|More Science & technology Stories|
Greening our minds (4/7/2010)
Up from the ashes (12/23/2009)
Obama's moment (10/22/2008)
|More from Curt Guyette|
Pot shots (8/11/2010)
Block out (7/28/2010)
Crude awakening (7/14/2010)
The allegations were bizarre.
The person making them, a Detroit-area man in his mid-30s, contacted Metro Times to say he had both a story to tell and a haunting question he hoped could be answered.
He claimed that more than two decades ago, starting in the early 1980s when he was about 12 years old, someone wearing a white lab coat and speaking with an odd foreign accent would occasionally show up at his family's upscale home in Warren, always at night, to deliver blue 5-gallon containers holding something his father referred to only as "orange oil."
The man would park in the driveway, his car's back end close to the garage entrance. The door would be raised and the car's trunk opened. Then the visitor and the home's owner, a juice company executive named Daniel Kotwicki II, would put on gloves and transfer the plastic jerry cans into the trunk of Kotwicki's Cadillac sedan. The next day Kotwicki would drive through the tunnel running beneath the Detroit River to Windsor, where the contents of the blue containers would be added to the orange concentrate and water being mixed in pool-sized stainless steel vats at the Holiday Juice company.
Sometimes Kotwicki would take his son with him, warning the boy to say nothing about the containers stashed in the trunk should customs officials ask if there's anything to declare.
"I just want to know what was being put into the juice," explained the son, Daniel Kotwicki III, when asked why he'd come to a reporter with these allegations now, after so many years.
But it's more complicated than that.
The memories of those late-night visits and the trips across the border with his dad have lurked like a shadow, coming to the fore only occasionally, sometimes jumping out when he'd see a plastic jerry can or, worse, when passing a hospital.
"I'd look and wonder if there was anyone in there because of what was in the juice," he says, going on to explain how he'd imagine himself walking through the cancer ward, asking patients there if they'd ever drank the juice his dad made.
One way or another, he wanted to illuminate the past with answers and chase the shadows away.
So, he said, earlier this year he'd given his father one more chance to reveal what was in the juice that could always be found in the family fridge. The father, just as he had in the past when confronted with the same question, refused to answer.
"He said he wouldn't comment on 'legal matters,' so that was it," says the son. "That was his last chance."
Daniel Kotwicki III, who lives in Ann Arbor now, runs a small computer networking business he began about seven years ago. The elder Kotwicki makes his home in Sarasota, Fla., not far from the headquarters of the Tropicana juice company. But he's no longer in the business, according to his son. He'd been an executive in the industry for 20 years, but something had apparently gone wrong toward the end of the 1980s, something that probably had to do with those blue jugs. But the son wasn't sure.
Would we, he asked, help him put the pieces together?
An extensive online search found no mention of any Daniel Kotwicki associated with the orange juice business.
There was, however, a New York Times article from 1993 detailing the problem of juice adulteration and allegations that some juice makers in the United States and Canada were illegally adding a preservative imported from Europe. It arrived in blue 5-gallon containers.
So began the Metro Times' investigation of a story that involved a popular Detroit juice company, one of Canada's leading breweries, an international smuggling operation, a legal battle shrouded in secrecy and the widespread doctoring of orange juice produced in the Midwest throughout the 1970s and '80s.
It's also the story of a father and his son, and how the actions of one came to affect the life course of the other. In that respect, it's a one-sided tale.
We called the senior Kotwicki seeking comment, starting out by saying his son had come to us seeking help in learning what was in the blue containers he claimed were delivered to the family's home when he was a kid.
"I have no idea," was his response when asked about the contents of the jerry cans. "That was 20 years ago. So I can't help you."
Then he hung up.
We called again and left a message, saying there were more questions.
He didn't phone back.
A career takes root
Born in 1947, Daniel Kotwicki II grew up in a working-class Catholic family on Detroit's east side, the second of three sons. Determined early on to be a success, he majored in accounting at what was then the University of Detroit. From there, he went on to become a CPA.
In 1971, after a stint in the military and then working at a Detroit accounting firm, he became part of the Home Juice organization.
Founded by businessman Leonard Haddad in the early 1950s, the company began with plants in the Chicago area and Detroit. By the 1970s, it had grown to include operations in 11 states, Canada and Europe.
The Detroit facility, then located on East Palmer, was an affiliate that used both the names Home Juice and Everfresh on the juices and drinks it produced. Kotwicki hired on there in 1971 as its comptroller. From the start, he was immersed in a culture of adulteration.
Evidence of that was provided in 1992 when John R. Marshall, an executive then facing federal criminal charges for his role in cheating consumers out of tens of millions of dollars, provided the U.S. Food and Drug Administration with a revealing account of his four decades in the juice industry, including more than 20 years at Home Juice. As that company's vice president of research and development, a position he held until 1974, Marshall assisted the company's franchises in Minneapolis; Tulsa, Okla.; and Detroit, according to an FDA memorandum containing details of the information Marshall provided.
The other two facilities produced only juice drinks, which legally contain added sugar. Along with making such drinks, the Detroit plant was also supposed to also be producing 100 percent pure orange juice made from concentrate.
While at Home Juice, Marshall told the FDA, he developed a formula for cutting juice with sugar as much as 25 percent along with water, citric acid and preservatives.
The motive was clear: higher profits. Because sugar costs much less than orange juice concentrate, the more sweetened water in the mix, the more money a company can make.
And the preservatives provided even more of a boost to the bottom line, according to court documents citing experts used by the government in the criminal case brought against Marshall and 10 others. Because suppliers reimbursed stores for juice that spoiled, extending the shelf life significantly reduced the need for juice makers to shell out money for product gone bad.
Like adding sugar, putting preservatives in what is supposed to be pure juice is a federal crime.
As Steve Nagy, a former inspector for the Florida Department of Citrus explains, "People take the risk because there's so much money to be made. It's a hell of a game, but they're going to do it."
A game, adds Nagy, "those guys up in Chicago" were notorious for.
It wasn't just the product that was fluid when it came to the juice business in the Midwest during the 1970s and '80s Executives moved from one company to another. Partners became competitors. Competitors became partners, or did business with each other.
During much of the 1970s, Detroit Home Juice/Everfresh a company that at one point had as one of its partners mobster Vito "Billy Jack" Giacalone was 50 percent owned by the Chicago parent company and 50 percent owned by Albert "Ace" Allen. A Detroit businessman with a passion for thoroughbreds, Allen raced horses in Detroit, Chicago and New Orleans for 30 years before his death in 1996 at the age of 69.
He and a handful of others, alleged Marshall, were part of a scheme that cheated unsuspecting consumers out of tens of millions of dollars.
"Mr. Marshall knew how to adulterate orange juice from experimentation," states the FDA memo. "Albert Allen was his contact at Detroit Home Juice and Mr. Marshall provided him with a formula on how to adulterate orange juice at the Detroit area plant."
Among the other people in Detroit with whom Marshall shared his illicit knowledge was Bruno Moser, the head of quality control at the plant, according to the FDA memo.
Born in Yugoslavia in 1919, Moser migrated to Buenos Aires as a young man, where he was in the liquor and wine business, then came to the United States around 1954.
He's the man with the odd foreign accent Dan Kotwicki III says showed up at his house late at night with the mysterious blue 5-gallon containers. Kotwicki recalled Moser by name when he first contacted us, saying his father had introduced the two during one of those visits.
The name stuck in his memory all these years, says Kotwicki, because Moser always struck him as sort of "creepy."
"I don't know if he was just coming from work or not, but he usually had on this white lab coat, which I thought was strange," Kotwicki recalls.
Moser, now retired, lives in Birmingham. Asked to comment on Kotwicki's claims, Moser told Metro Times he couldn't recall anything from that era.
"That was so long ago, I can't remember," Moser says.
"I'm 87 years old. I don't remember nothing of that."
By 1977, Marshall had become a partner in an Illinois company called Mr. Juicy. From the outset, the orange and apple juices being blended there were cut with sugar using the same profitable formula he'd help develop at Home Juice.
Along with his formula, Marshall also held onto the professional relationships he'd forged while at Home Juice. One of the longest lasting of those was with a German businessman named Friedrich Kohlbach, whom he'd met in the early 1960s. Eventually the two men, along with Home Juice's Haddad, became partners in H.J. Foods International, a Switzerland-based company that sold fruit juice and concentrates in Europe.
That company wasn't their only cooperative venture.
Kohlbach, with Marshall serving as his pitchman, would eventually begin shipping an illegal preservative to several Midwest orange juice companies around 1980, Marshall told the FDA. That preservative, concocted from what Kohlbach said was a secret formula, would arrive in this country in blue 5-gallon containers.
Invoices uncovered in two civil suits filed against Everfresh and others by Grove Fresh, a Chicago-based competitor, in 1989 and 1990 show that shipments from Kohlbach's European company were directed to Moser, according to court filings.
Dan Kotwicki III tells a story passed along to him by his maternal grandmother: Family lore has it that when his mother and father first started dating, the elder Kotwicki bragged to his future mother-in-law that he was going to "make a million dollars by the time I'm 30, or else."
As the son tells it, his grandmother, instead of being comforted by her daughter's interest in a young man intent on being wildly successful, found something unsettling in the fierceness with which the suitor made his bold pronouncement.
But by the mid-1970s, Kotwicki was working his way to making good on that vow. After being named Home Juice's chief financial officer and working a few years at the company's headquarters in the Chicago suburb of Melrose Park, he returned home to Detroit in 1976 as the new vice president of Everfresh, the Home Juice franchise here. He'd also obtained a 10 percent ownership share in another company affiliated with Home Juice Holiday Juice, located in Windsor.
The next few years would be a time of transformation for the Home Juice organization.
As detailed in the 1990 civil suit filed by Grove Fresh, a competitor alleging unfair business practices, Home Juice, by 1978, had grown "into a national and international enterprise serving diverse markets in the United States, Canada and Europe."
It was, alleged Grove Fresh, an enterprise built on a foundation of fraud:
"... the Home Juice organization developed a formula for producing a beverage that had the look and taste of 100 percent pure orange juice from concentrate, and which was labeled and described to the consuming public as 100 percent pure orange juice from concentrate, but which, in fact, consisted of significant amounts of sugar, chemicals, flavorings and preservatives, mixed in a solution of water and only a minimal amount of orange juice concentrate."
One of the alleged conspirators identified in the suit was Daniel F. Kotwicki II. But that court action and other troubles were more than a decade away in 1978, when the future looked as bright as the sun-kissed product Kotwicki was allegedly doctoring.
At that point, the two principals controlling Home Juice/Everfresh, Chicago's Leonard Haddad and Detroit's Albert "Ace" Allen, decided to divvy up their holdings in the interest of efficiency and better management, according to court filings.
Allen gained sole control of the Detroit Everfresh facility and Home Juice's markets in the eastern and southeastern United States. Haddad got the Chicago-area Home Juice plant and its markets in Illinois and the rest of the Midwest (except for Michigan). Haddad also obtained controlling interest in Canada's Holiday Juice.
Kotwicki cast his lot with Haddad who died shortly after the companies and turf were divided up. After acquiring a partner and buying Haddad's share of Holiday Juice from his estate, Kotwicki became the Windsor company's president. It was then a failing business, but with Kotwicki at the helm its fortunes quickly reversed.
Grove Fresh alleged that the turnaround was fueled by a "regular supply of a product known as 'HJ-20' ... a liquid base used in the manufacture of adulterated orange juice."
That illegal formula for success provided a potent boost to the bottom line. At least that's the way Kotwicki's aggrieved competitor saw it.
"Between April 1979 and September 1983," Grove Fresh alleged, "Kotwicki, as a direct and intended consequence of the Home Juice conspiracy, transformed Holiday Juice Ltd. from a money-losing operation into one of the largest and most profitable manufacturers and distributors of fruit juices and drinks in Canada, with substantial sales in the United States as well."
The son didn't see much of his father during these years. The elder Kotwicki and his wife had divorced around 1976, when the boy they called Danny was just 6. His father gained custody of the couple's only child.
But most of the child rearing fell to Danny's paternal grandmother, while his father focused attention and energy on career success.
"With him," says the son, "money was always the most important thing."
Theirs was never a warm relationship, says the son. He describes his father as emotionally distant, strict and demanding, always prodding the boy to achieve more, both academically and athletically. The father particularly wanted his son to excel at sports; it was one thing he'd take time away from work for.
"He'd go to my games and afterward would tell me what I did wrong, never what I did good," Kotwicki says about the man he now refers to as 2.0, making it a point to say, "I don't call him 'Dad.'"
It was during this time, as he entered his teens, that the son understood he was being "groomed" to follow in his father's footsteps. It was obvious that the elder Kotwicki had hopes that, when it came to career choices, the orange wouldn't fall far from the family tree.
"He was trying to make me his little protégé," the son says. "He is a very controlling man."
But it was also at this point, sometime around 1982, claims the son, that the man introduced to him as Bruno Moser began showing up at the Warren house.
"One thing I remember is that he always came at night. Even in the summer, it would be dark out."
At first, claims Kotwicki, the visits were infrequent, maybe once a month or so. But as time went on, the man who wore a white lab coat would ring the doorbell more often, to the point where he was coming by every week, sometimes even more than once a week.
There are specific details the younger Kotwicki recalls, such as the men always putting on gloves when they handled the blue containers, and the pungent smell of oranges that would fill the garage whenever a shipment was dropped off.
When he asked his father what was in the containers, the reply perplexed him: "He'd say it was orange oil, but I didn't understand that. I understood getting oil from olives, but from oranges?"
There is, in fact, a product known as "orange oil" that's legitimately used. It's obtained from the peel, and in small amounts can enhance the flavor of juice made from concentrate, according to a Web site maintained by the University of Florida.
But if that's what really was in the jerry cans, why the clandestine deliveries? Why not have the product shipped directly to the plant in Canada?
Something else didn't make sense either.
Sometimes the boy would accompany his father on his commute to the plant in Windsor, and they'd talk about the juice business, like the time they discussed the difference between juices and fruit drinks: "He explained that drinks can contain other ingredients, but if it's juice, it's just concentrate and water."
If that's the case, he wondered, where did the contents of the blue jugs fit in?
Juice was always plentiful around their house. It was free, after all though, oddly, says the son, he can't remember his father ever drinking it. But he can remember reading the labels, and seeing that it was designated 100 percent pure juice made from concentrate.
"It didn't say 'orange juice concentrate from Florida and water and a secret ingredient,'" remembers the son. "That part was left out."
He assumed it was a "secret flavor" and left it at that.
There was something else, too, that bothered him deeply about those trips to Windsor, the trips that he claims were made with the blue plastic containers stashed in the trunk of his father's Cadillac.
He says he'd be instructed not to say anything when the customs agents all of whom the father seemed to know by name and would always make peasant small talk with asked if there was anything to declare. "And I'd ask him afterward, 'What about the jugs?' and he'd say, 'Oh, it doesn't matter, it's just an ingredient in the juice.'"
When you're in your early teens and afraid of your father, you do what he says, no questions asked. But there were times, says the son, when he just wanted to shout to the customs agents, "Look in the trunk. Look in the trunk!"
"I wanted to blurt it out," he says. "But I thought, 'What if I'm wrong? What if there's nothing the matter with what's in the jugs?'"
If so, he says, then he would have "betrayed" his father for nothing. Better to keep a dark secret than risk that shame, he decided.
The German connection
The elder Kotwicki's career took another jump in 1983 when Labatt, then Canada's dominant brewery, purchased Holiday Juice.
An explanation of Labatt's reasons for going into the juice business was laid out in court documents filed by Grove Fresh:
"By 1983 Labatt was faced with a mature beer market in Canada and a fiercely competitive market for imported beers in the United States. For the sake of continued sales and earnings growth, Labatt adopted a strategy of expanding its holdings in the packaged food and agricultural products industries. At the time ... these industries were highly fragmented and offered opportunities for Labatt to pick up market share quickly and relatively inexpensively.
"One of the focal points for Labatt's expansion strategies was the fruit juice business."
The company also sought to capture an increased share of sales across the border, which made Holiday Juice doubly attractive because it distributed products in Michigan and Illinois.
Around the same time as Labatt began moving into its new line, an old network began adding to its illegal formula.
James R. Marshall, the longtime juice industry executive who began experimenting with adulteration formulas while at Home Juice in Chicago, had changed the name of his company from Mr. Juicy to Flavor Fresh in the early 1980s.
But he was still boosting profits by adding sugar and other ingredients to products labeled 100 percent pure juice. He was also still working with German businessman Friedrich Kohlbach, who had developed a new additive that Marshall was talking up to people he'd known from his Home Juice days.
"Mr. Marshall pitched Mr. Kohlbach to Mr. Kotwicki at Holiday Juice, to Everfresh. ... He thinks Everfresh was already using the preservative at that time, and Home Juice may also have been using the preservative prior to this time," according to the 1992 FDA memo.
Yet another company, Lansing-based Peninsular, was also using Kohlbach's product, which was being imported from Europe. Kohlbach told Marshall it was a "secret enzyme" that greatly extended the shelf life of orange juice; but it was identified either as a "cleansing agent" or a "pesticide" on shipping manifests to get it past customs.
In a sworn affidavit provided in the criminal case against Marshall, Kohlbach and others, a Peninsular employee described Kohlbach's additive this way:
"Around 1982/83, Peninsular tested a preservative that Marshall was able to obtain from Kohlbach. It was a milky-white liquid that came in blue, five-gallon plastic containers. Our tests showed that the preservative was very effective. After adding the preservative to orange juice, the juice became virtually sterile."
There are two primary ways orange juice is processed and packaged. One is called "heat pack," where the juice is heated to 170 degrees or more to kill bacteria and then, while still hot, is put into a container and sealed. Juice packaged this way doesn't need to be kept cold, and has a shelf life of about a year because the hot liquid essentially sterilizes the containers.
"Cold-pack" juice is also heated to the same temperature, but it is immediately cooled back down before being placed in cartons or plastic bottles. Juice packaged this way will quickly spoil if it is not kept cold, and even when refrigerated has a shelf life of only about four weeks.
But, as with the use of sugar, extending a juice's shelf life can significantly boost profits. With Kohlbach's high-test preservative, cold-pack juice could be left sitting in the sun on a loading dock for hours with no fear of it going bad, and sit on refrigerated shelves for nearly two months longer than its undoctored rivals.
Grove Fresh alleged that abiding by the rules put it at a huge competitive disadvantage, driving it to the brink of bankruptcy. By contrast, it pointed to Kotwicki as an example of how cheaters can prosper.
As president of Holiday Juice, Kotwicki was able to take a company with a negative net worth in 1979 and turn it into one valued at several million dollars.
That success led to more opportunity.
"In part, Labatt was attracted to acquire Holiday Juice because it would also acquire the services of an executive, Daniel Kotwicki, who had a record of remarkable success in the juice industry," asserted Grove Fresh in a court filing. "In four years' time Kotwicki had completely turned around the fortunes of Holiday Juice. ... The financial results that Kotwicki achieved at Holiday Juice earned him a reputation as the wunderkind of the fruit juice industry in North America."
But it was, alleged Grove Fresh, a status achieved through chicanery: "Labatt knew or should have known from the outset that Kotwicki's success in the fruit juice industry was due in large part to his mastery of the economics and techniques of manufacturing adulterated orange juice and other fruit juices."
Labatt officials subsequently alleged to the FDA and in sworn testimony provided in the Grove Fresh suits that Kotwicki had indeed overseen the doctoring of juice with sugar and a preservative while working for the brewer, according to court documents. But for most of the 1980s, he was the company's premium juice man. His responsibilities and authority as president of the brewer's juice division kept expanding as four American companies were purchased in quick succession including Everfresh, which was bought from Albert "Ace" Allen for $10 million in 1986. That purchase brought Kotwicki back to his roots in the business, but now he was at the top of the tree.
Things go sour
While the elder Kotwicki's career was soaring, things were bottoming out between him and his son. They argued often, sometimes fiercely.
Once, the son claims, his father chased him around the house, shouting the clearly memorable if unnerving threat: "I'm going to kick your ass, and if I can't, I'll hire someone who can."
By the age of 16, at least in part because of that tempestuous relationship, the son's worldview was just beginning to change. A gradual process of transformation was under way, from the pubescent boy being shaped to become a conservative businessman in his father's mold to a rebellious teen rejecting the values that brought material luxury but lacked emotional sustenance.
And so he moved out of his father's house and in with his mother. Two years later, the remnants of his father's influence fraying but not completely shed, he enrolled at Wayne State University, where he majored in business. His father paid the tuition.
As his son was struggling to keep an interest in classes where international monetary rates were discussed, the father started to see his career get run through a shredder.
In 1988, Labatt consolidated its juice businesses into a single subsidiary named Everfresh Juice Co. with Kotwicki at the helm. By the end of that year, he was out of the job. For a few months afterward, he continued to work for the company as an outside consultant, earning more than $11,000 a month. But, according to the Grove Fresh lawsuit, that contract was abruptly canceled in April 1989 as Labatt began to pin blame for its mounting legal problems on the one-time "wunderkind."
A year earlier a competitor in Baltimore had filed a civil suit against Holiday Juice alleging that the company was illegally adding sugar and a preservative to its juice. With Labatt's approval, Kotwicki oversaw settlement of that suit for $250,000, according to court documents.
Also in 1988, Duane Bosch, a recently hired employee at the Michigan Everfresh plant (which had been moved to Nine Mile Road in Warren by that point) began asking questions about what he would later describe in a sworn affidavit as "five-gallon blue containers ... made of heavy-duty molded plastic."
He was told, according to the affidavit filed in the Grove Fresh litigation, that the "thick, milky-colored liquid" the containers held was something called "Oleum 320/IDEA" that was imported from Germany, and that it was being used in orange juice to help meet shelf-life requirements.
At one point, Bosch said, an FDA inspector touring the plant asked about the containers and was told by an employee that it was a "solution for cleaning the mixing and filling equipment."
Another employee, Bosch said, told him that it was known the substance should not be added to the juice, but two supervisors, one of whom was Bruno Moser, were ordering its use.
Grove Fresh, according to court documents, obtained Everfresh invoices during a time when Labatt owned it and Kotwicki was heading its juice operations showing that jerry cans containing "cleansing" compound were being shipped from Kohlbach's company in Switzerland directly to Moser at the Warren plant.
(It's also alleged in court documents that the product was sometimes identified as a "pesticide" to get it past customs inspectors at the Port of Detroit. Grove Fresh also alleged that, based on documents obtained from Everfresh, the Detroit company sold 3 million gallons of adulterated juice in 1987 alone. Kotwicki was still president of Everfresh at this juncture.)
Bosch, who filed a whistleblower suit in Wayne County, claimed that, shortly after successfully completing his three-month probationary period, he missed work after a shard of glass flew into his eye and scratched it. A few days later, he was told that he was being fired because of "insubordination."
Moser allegedly told him, "You're no good. You have to go."
"I believe that I was fired because I had started to ask questions about Oleum 320/IDEA, and because I had expressed the belief that it was wrong to add Oleum 320/IDEA to orange juice ..." Bosch declared in a sworn affidavit provided as part of the Grove Fresh civil suit.
Before heading out the door, Bosch grabbed samples from those blue containers, which he stored in his refrigerator at home for a month before turning them over to the FDA. Inexplicably, the agency waited another four months before analyzing the samples.
That total delay of five months had unfortunate consequences.
One of the things the FDA tested for was diethyl polycarbonate (DEPC), a preservative banned for use in the United States since 1971. Developed in Germany, DEPC effectively works as a cold sterilizer, killing bacteria that would cause juice to spoil.
Interestingly, the Home Juice crew which allegedly shared its original formula for adulterating juice with Everfresh had an intimate knowledge of the substance as far back as the 1960s, according to deposition testimony provided in the Grove Fresh litigation.
"During the late 1960s," it's noted in one court document, "Schlitz Brewing Co. of Milwaukee established a subsidiary to manufacture DEPC. The capacity of this facility was greater than what Schlitz could use for its brewery operations. Therefore, Schlitz solicited the fruit juice industry to work with Schlitz on experiments regarding the use of DEPC in fruit juices. Home Juice joined in these experiments."
But then Swedish scientists discovered in 1971 that, as it broke down, DEPC reacted with the juice to form urethane, a carcinogen.
The problem is that, when exposed to air, DEPC can break down in a matter of weeks, making identification difficult, if not impossible. The long delay in testing at the FDA could explain why the chemical wasn't found in the samples Bosch provided, it was later noted in the civil suit filed by Grove Fresh.
There was good reason for the FDA to suspect that Everfresh might have been using DEPC to extend the shelf life of its juice. In the early 1980s, it had received at least three anonymous tips in the mail from a "competitor" claiming that Everfresh was using the illegal preservative.
The tipster who provided detailed information also sent letters to the U.S. Customs Service and the Florida Citrus Commission expressing growing frustration at the apparent inability of regulators to take meaningful action. In a 1983 letter, obtained by Grove Fresh through a Freedom of Information Act request filed with the FDA, the tipster wrote: "It is inconceivable that with all the facts laid out that you cannot seem to enforce any rules and regulations. You have been informed that you should check customs entries into the United States and examine the product being imported. Nobody has done this, nobody cares, and needless to say, I am keeping records on this. Sooner or later, someone in charge must do some investigative work, and enforce laws."
But, according to court documents, FDA regulations prevented it from obtaining a search warrant based on information provided in an anonymous tip alone. It could have obtained warrants had it found a preservative in a sample taken off a store shelf, but if DEPC were being used, it wouldn't have shown up because it breaks down within 24 hours after being added to liquid. The FDA, according to information on file in the Grove Fresh case, also apparently failed to realize that it could have found a link to DEPC by testing for the carcinogen urethane; Metro Times found no indication such tests were ever conducted.
But Bosch's tip wasn't anonymous. And whatever the substance was, adding it to orange juice without making note of it on the label is illegal. That meant that Everfresh, and its parent company, Labatt, had a major problem on their hands. So did Daniel Kotwicki II.
But they weren't the only ones. About this same time, federal customs agents were beginning to ask questions regarding some other Midwest juice companies using the preservative coming from Kohlbach's operation in Europe.
With federal agents starting to sniff around, the juice makers did what they could to "quash" any investigation, Marshall told the FDA in 1992. Those efforts apparently succeeded for a few years, but everything began to unravel completely for Marshall and others around him early in 1991, when an FDA inspector visiting the Peninsular plant in Lansing witnessed a company employee illegally adding "pulp wash" a low-cost mixture of water and the leftover remains of squeezed oranges with juice concentrate. Pulp wash isn't permitted in pure orange juice.
In 1993, Marshall, and 10 others connected with Chicago's Flavor Fresh and Lansing's Peninsular pleaded guilty to "defrauding consumers of more than $40 million by selling products containing low-cost, inferior ingredients labeled as pure orange juice from concentrate," according to an article in the government publication FDA Consumer.
Among those indicted along with Marshall was German businessman Friedrich Kohlbach, who received two years' probation with eight months home confinement and was fined $100,000 after pleading guilty to felony orange juice adulteration.
Prosecutors determined that one of the ingredients in Kohlbach's secret formula was natamycin, an antimicrobial agent that's permitted for use as a mold inhibitor on cheese but barred by the FDA for any other use.
However, it appears from Metro Times' examination of court records that the government never actually tested Kohlbach's additive to determine with certainty its ingredients. Instead, it relied on the confessions of Marshall and Kohlbach, as well as information contained in a telex sent between the two men and a written formula, that natamycin was the active ingredient.
Included in that criminal case was an affidavit from Bruno Moser the man Marshall told the FDA he'd worked with when both were still part of the Home Juice operation, and the man Daniel Kotwicki III claims showed up at his house in the early 1980s delivering blue containers to his father.
In that sworn affidavit, Moser who was not being charged with any crime admitted that "Home Juice Detroit and Everfresh used Kohlbach's product from approximately 1980 through approximately 1986 when Labatts [sic] purchased Everfresh and we were directed to discontinue its use."
(Invoices on file in the Grove Fresh civil case, however, show Everfresh continued to import Kohlbach's product at least through 1987. And whistleblower Bosch stated in his sworn affidavit that Kohlbach's preservative was being used as late as October 1988.)
Moser also admitted: "Kohlbach's product was imported to our plant as a cleansing compound. I knew that his product was not a cleansing compound, but was a preservative since I was directed by Kohlbach to add it directly into our juice. I also know it was not a cleansing compound since cleansing compounds used in the cleansing and disinfection of machinery costs approximately $20.00 a gallon."
Everfresh was paying about $800 a gallon for Kohlbach's product.
Given Moser's admission, how is it that Everfresh and its executives were able to avoid prosecution? One possible answer to that question can be found in court documents filed by Grove Fresh.
The D.C. deal
Along with Bosch's whistleblower lawsuit, filed in state court in 1989, and the FDA investigation he launched, Everfresh and Labatt were hit with two federal civil suits filed by Grove Fresh, the first in 1989 and the second a year later.
Cecil Troy, a highly regarded African-American ophthalmologist, businessman and civil rights activist in Chicago, started Grove Fresh in 1961 with $1,000. By the late 1970s, it was grossing more than $3 million a year in sales. But business declined drastically in the 1980s as competitors began undercutting his prices. Since they all paid the same prices for the concentrate they made their juice from, he knew his competitors had to be cheating.
So he went to federal court.
It was described as a David vs. Goliath battle. Labatt, parent company of what had become the Everfresh juice group, was doing more than $5 billion a year in gross sales at that point. But as Troy, who's now deceased, told The Chicago Reader in 1993, "If they have nerve enough to put me out of business, then I have nerve enough to fight them."
In 1990, having fired his first lawyer after allegedly discovering a secret agreement he had with Labatt, Troy and his company, Grove Fresh, filed a second lawsuit against Everfresh and the brewer. Kotwicki, as well as several others, was also named in that suit.
But even before the new case was filed, attorneys for the brewer persuaded the federal judge handling the original case to have that second case sealed. Portions of that case remained under seal until 2001. (See side story.)
By that point, there was nothing to prompt any media scrutiny that would bring details of the case into the open until Kotwicki's son came forward, wanting to know what was in the juice his father made.
As alleged by Grove Fresh's lawyer in documents filed in the civil suit against Labatt, this is how the company was able to contain a potentially explosive problem:
After hiring the former head of the FDA's Office of Enforcement as its consultant a person who had worked at the agency for more than 30 years before retiring Labatt officials, with the consultant in tow, held meetings with the FDA in Washington, D.C., in May and June of 1989. Written summaries of those meetings were obtained by Grove Fresh's lawyer through the Freedom of Information Act. In court documents on file in its civil case, Grove Fresh alleged that Labatt officials and their attorneys, by voluntarily coming forward, were able to derail any criminal prosecution of employees involved in the adulteration of juice.
Grove Fresh's lawyer alleged in the same court documents that FDA officials in the Detroit offices who were investigating Bosch's whistleblower claims were not notified of the Washington meetings, and that FDA officials meeting with Labatt in D.C. didn't know about Bosch's allegations or the anonymous tips from the early 1980s that Kohlbach's preservative allegedly contained DEPC.
"If Labatt had disclosed that Everfresh had been using Kohlbach's preservative, the FDA would have been obliged to determine whether that additive was health-endangering," Grove Fresh alleged in the court filings.
Prior to the FDA meeting, Labatt conducted an internal investigation of Everfresh. The team dispatched to look into the problems there conducted its investigation in March 1989. Based on depositions taken as part of its civil action, Grove Fresh alleged that "at least one of the persons interviewed told the team of auditors that he had heard that Oleum 320/IDEA [Kohlbach's product] was actually DEPC, a carcinogenic agent that had been banned by the FDA. ..."
By coming forward voluntarily, yet concealing "the most critical information from a public health perspective," it's claimed in Grove Fresh filings, company officials were able to evade criminal prosecution.
Although Kotwicki was never charged with any crime, Labatt officials made it clear that they held Kotwicki primarily responsible for the mess.
According to court documents, Labatt officials told the FDA that Kotwicki and three other employees had been involved in a conspiracy to "systematically" adulterate orange juice with pulp wash, sugar and "a mix of chemical substances. The composition of the chemical mixture was a closely held secret between the former president [Kotwicki] and several others. The mixture was intended to conceal the adulteration by causing the product to appear normal in the usual tests for adulteration. A completely false set of books was fabricated to conceal the adulteration from Labatt."
The attorney for Grove Fresh called this the "scapegoat defense." Not that he didn't concur that Kotwicki was culpable, but rather Labatt was trying to avoid any responsibility by laying all the blame on what they were portraying as one rogue executive and several lower-ranking employees.
Grove Fresh's attorney, John P. Messina of Chicago, in documents on file in the Grove Fresh civil case, also provided other possible explanations of why Everfresh officials avoided prosecution while their counterparts at Flavor Fresh and Peninsular landed in jail.
Messina, who wouldn't comment for this article, drafted a press release as he attempted to fight contempt charges imposed by the federal judge overseeing the civil suits brought by Grove Fresh. (Messina was accused of violating the seal order by attempting to "try the case on the courthouse steps" and alert the public to his concerns about the possible use of DEPC.)
In that release, which is part of the now-unsealed court record, Messina offered his opinions as to why criminal charges weren't filed against Everfresh officials.
A turf war on the part of the feds may have played a part.
According to the press release: "In a September 1991 telephone conversation an FDA lawyer ... told Mr. Messina that the Michigan U.S. Attorney wanted to expand the scope of its investigation to include illegal practices at Everfresh and Home Juice. However, he told Mr. Messina, the United States Attorney in Illinois was not willing to cede jurisdiction over any investigation of Everfresh or Home Juice. The gist of this conversation was later confirmed in a letter from ... the general counsel to FDA's parent agency."
(Everfresh, which had become the corporate entity under which all Labatt's juice companies operated, had established its headquarters in the Chicago area by then, putting it under the jurisdiction of the U.S. Attorney overseeing the Northern Illinois district.)
Another reason, Messina contended, had to do with the 1993 affidavit Bruno Moser provided for prosecutors in the criminal case against Marshall, Kohlbach and others. In that sworn statement, Moser asserted that Everfresh had stopped using Kohlbach's preservative sometime around 1986, when Labatt purchased the company from Allen. If true, then the five-year statute of limitations would have expired in 1991.
It seems prosecutors may have taken Moser's statement at face value. However, as Messina points out in court filings, evidence in the sealed case showed that Everfresh continued to use Kohlbach's preservative through 1988.
The assistant U.S. attorney who led the criminal prosecution of Marshall and others didn't return a phone call seeking comment.
Clearly Labatt and Everfresh had much economic motivation to avoid prosecution. In his press release, Messina contended that had the same guidelines been used to determine the loss to consumers as in the criminal case against Marshall and others, the cost to Labatt and its subsidiaries could be as much as $53 million.
As it was, Labatt, Everfresh and American Citrus formerly Home Juice ended up settling the civil suit with Grove Fresh before the case went to trial, agreeing to pay $2 million to Cecil Troy's company.
Labatt sold its Everfresh juice division to a group of American investors in 1992.
A time to blossom
The son didn't know what was happening to the father in 1989. He'd moved in with his mother two years earlier and "never looked back."
He thought it strange when his father suddenly packed up and moved to Florida, because "2.0 is a guy who likes to be rooted."
As far as he and others in the family knew, the elder Kotwicki had sold his company and, just entering his 40s, gone into an early retirement with his second wife.
In retrospect, he says now, it seems that his father's days as a high-ranking juice industry executive were reduced to the professional equivalent of pulp wash at that point.
Things weren't going well for the son either, sitting in business classes wondering with increasing frequency "what the hell I was doing there."
"One day, when I was about five classes from getting my business degree," he says, "I quit going, because I looked at myself in a mirror and thought I was turning into him."
He did a lot of biking sometimes pedaling the 40 miles from downtown Detroit to the Palace at Auburn Hills and then back and worked as a bartender at a Detroit concert hall. Earnest but personable, he was more than good at the job. Readers of this paper, for example, voted him Detroit's "best bartender."
"I didn't look at customers as tips," he says. "I looked at them as people. If you were drunk, I'd cut you off. And I think people appreciated that."
A few years later he returned to Wayne State, dropping his pursuit of a business degree to major in English. This time he paid the tab.
It was, he says, a truly liberalizing experience. Learning about different cultures, exploring matters of the human mind and heart instead of microeconomics, he felt like he was finally finding himself.
But life wasn't necessarily easy. There was, he says, a whole range of negative traits he says he'd learned growing up and was working to shed.
"I've had to teach myself how to communicate, how to love, and how to break free of my father's mold," he says. "I think I'm succeeding at that, but it's something I keep working on."
In 1999, realizing that he "couldn't be a bartender forever," he started his own business providing computer network support services, primarily to law firms. It began with one customer, which led to another and then a few more.
Now he has four employees.
The last time he saw his father now working as a private business consultant was around Christmas, at a family function. Despite everything that had happened, he was still hoping to connect with his dad, to somehow, despite everything, gain his approval. But the father didn't have any interest.
"I just wanted him to give me a call and say, 'Hey, I'm in town, let's go have a beer.' To be like a normal dad. But it didn't happen."
It was shortly after that that the son made the call asking his father to reveal the secret of what was in those blue jugs.
And with the refusal to talk came the decision to go to a reporter with his story, seeking an answer to the mystery that has haunted him for more than two decades.
What was in the blue container?
Maybe, as documents on file in the criminal case indicate, it was natamycin, although some experts contacted by Metro Times were skeptical.
Natamycin, they explained, works only on mold and yeast. It wouldn't have the broader effect of sterilizing bacteria in juice the way DEPC would.
"My guess is that DEPC would be a likely candidate," says Professor Charles Sims, chair of the Food Science and Health Nutrition Department at the University of Florida.
As Sims points out, unlike natamycin, DEPC was intended to be used in juice before it was banned.
Professor Joseph Hotchkiss, chair of the Department of Food Science at Cornell University, likewise notes that DEPC "is a real possibility."
"It is called a 'cold sterilant' because it inactivates all or nearly all microorganisms," he explains. "It would likely render orange juice incapable of supporting microbial growth."
Producing exactly the effect Kohlbach bragged it would, and the effect tests done using it at Peninsular juice company in Lansing found it accomplished.
But that is all just informed speculation.
And the man who might give Daniel Kotwicki III a definitive answer isn't talking.
The son admits that exposing the allegations against his father like this is a "gut-wrenching" experience. And he already knows from talking to friends that there are some people who will not understand how he could turn on his father like this, no matter what the reason.
So why's he doing it?
He doesn't think it's retribution, though he allows some fragment of that may be in the mix. But hurt is definitely some part of the equation. When he says, "There's not a day that goes by that I don't wish that he'd just be a regular dad, but he's never done that," the pain caused by their estranged relationship is clear.
But what's much more significant in terms of his decision to publicly dig up this past, he says, is the desire to let his community in on the secret he has carried with him for so long, that something hidden was being added to the juice not just that he drank, but that they drank as well.
And in coming forward like this, he's relieving some of the guilt still carried for not shouting out long ago to those customs agents, "Look in the trunk. Look in the trunk!"See Also:
The seal deal
by Curt Guyette
How sealed court records keep the OJ facts in deep freeze.
Curt Guyette is Metro Times news editor. Contact him at 313-202-8004 or email@example.com.