TELiaAL	COIT2ROL .ADMINISTRATTO Washington, L. C.
MEMOR.ZDUM ON THE 1171-7T...T IS THISKEY" CONTROVERSY
r
'Office of tie General Counsel,
Alicast 1, 1935.
AM 513
\
	ANL,
Nlirms...	Anon.
INTRODUCTORY TOTE
This memorandum contains materials of an administrative or judicial character having a direct or general bearing upon the controversy concerning "What is Whiskey?". The controversy, which engaged conflicting interests in the liquor industry over thirty years ago, reached its climax in the famous opinion rendered by President Taft in December, 1909.
The decision of the President was of the greatest importance in the regulation and control of the liquor industry during the period prior to Prohibition. The principles of that decision were adopted by the regulatory agency enforcing the Federal Food and. Drugs Act, and the Bureau of Internal Revenue in its control over the collection of the tax, as well as by the trade. The Taft decision is even now followed by the Department of Agriculture in its administration of the Food and Drugs Act, Likewise, the Bureau of Internal Revenue in its marking and branding requirements continues to follow the opinion closely. The opinion was also the basis of the whiskey labeling regulations of the Federal Alcohol Control Administration in administering the codes of fair competition for the alcoholic beverage industries. So the question is not altogether of historical interest.
This memorandum has been prepared by Mr. Edward B. Bowers from materials gathered by him and his associates in the Office of the General Counsel, Federal Alcohol Control Administration.
Frederic P. Lee, General Counsel.
TABLE OF CONTENTS
Page
I. -- SUMMARY 	 1
II. -- THE SITUATION PRIOR TO THE TAFT DECISION 	 8
A. -- Early Standards Prior to the Food and Drugs Act -	8
Standards under Agriculture Appropriation Acts 1903-1907- - 9 Standards of Association of Official Agricultural Chemists- 10
D. -- The Food and Drugs Act 	 20
	Legislative History -   20
1. The "Blended and Compound" Provision 	 21
2. The "Poisonous or Deleterious" Provistun 	 23
3. Omission of Power to Prescribe Standards 	 25
Food Inspection Decision No. 45 	 29
Opinions by Attorney General Bonaparte	 30
Litigation	 33
C. -- Internal Revenue Regulations 	 35
Regulations of 1869 	 35
Opinions of Attorney General Bonaparte 	 38
Regulations of 1908 	 40
Litigation	 42
D. -- :he Whiskey Commission 	 48
E. - Report of the British Royal Commission  	49
III. -- THE TAFT DECISION 	 58
A.-- The Executive Order	 58
B. -- Hearing and Testimony	 59
C. -- Opinion by Solicitor General Bowers	 66
D. -- Exceptions to Solicitor General's Opinion 	69
E. -- The President's Decision 	 76
IV. -- REGULATIONS AND RULINGS FOLLOWING THE TAFT DECISION	 78
Food Inspection Decision No. 113	 78
Food Inspection Decision No. 118	 80
Treasury Decision, Int. Rev., No. 1620	 80
Molasses Spirits Litigation
Page
82
82
83
85
Internal Revenue Order No. 740
Opinion of Attorney General on "Canadian Club"
V. -- THE REVENUE ACT OF 1918	
APPENDICES:
"A" — Text of Section 3287 of the Revised Statutes	
"B" - Text of The Jamestown Standards
"0" - Text of The Mackinac Standards	
"D"	Text of The Taft Decision 	
91
92
96
99
I. - SUMMARY
Certain vital changes took place in the liquor industry about the early Seventies. Possibly it was around this time that causes began to arise which resulted in conflicts that were to culminate in 1909 in the decision by President Taft on "What is Whiskey?".
Prior to 1872 there were two distin6t branches of the industry. There were the distillers who made a distillate from grain call I'raw spirits" or "high wines", full of congenerics or secondary substances, such as fusel oil, aldellydes, furfurals and esters. "Impurities" they were termed by the trade, and they made the distillate undrinkable and unpotable in that form. These raw spirits or high wines were sold to the rectifiers, the other branch of the industry, who, by leaching through bharcoal tubs, removed the objectionable impurities. Some times the leaching failed to remove all the impurities, and a separate process of redistillation was necessary. Whatever the process, there resulted a high proof spirit as free of fusel oil and other impurities as it was possible to make it, a neutral spirit. Reduced by water to potable proof and colored and flavored with caramel, this spirit was sold as whiskey, and apparently it was the rectifier solely, and not the.distiller, who produced the finished article known as whiskey.
In 1872, Congress passed an Act permitting the continuous distillation process. This enabled the distiller to manufacture, in one sitgle process, the neutral spirits product which the rectifier previously had made by leaching or redistillation, or both. This product of continuous distillation was likewise reduced in proof, colored and flavored, and sold, as whiskwy.
Up to this time, there was no such thing as the warehousing by distillers of high wines in charred casks for the elimination or modification by
aging therein therein of the objectionable fusel oil and other impurities. Neither was there any allowance in tax on the loss caused by evaporation during the aging or storing period. The authority to warehouse came, however, around 1880, and in that same year Congress permittea an allowance for the loss by evaporation in those cases where the distiller stored or aged his so-caned straight whiskey in charred casks. The straight whiskey, aged in casks, came to acquire a reputation as the better prodUct, superior to the continuous distillation neutral spirits product flavored and colored, or the same product made by leaching or redistillation.
It would seem that around 1899, the. first real clash became apparent between the makers of straight whiskey and those who had been selling as whiskey neutral spirits flavored and colored. It is not clear whether the cause of this open antagonism between the two divisions of the industry was the desire of the straight whiskey makers to eliminate entirely from the field of competition the continuous distiller or the rectifier and their neutral spirits whiskey, or whether the producers of straight whiskey feared encroachment in their field of activity and determined., to combat the claims of those who produced neutral spirits whiskey and sold it as straight whiskey, by bringing this question out into the open. Whatever the reason, the straight whiskey manufacturers had, in 1899, acquired as an ally, Dr. Wiley, then chief of the Bureau of Chemistry, Department of Agriculture, and who later was to enforce the Federal Food and Drugs Act. Dr. Wiley was also a moving figure in the Food Standards Committee of the Association of Official Agricultural Chemists. That Committeo had just undertaken consideration of the question of a standard of whiskey, among other spirituous liquors, to be used as a guide by state officials in the enforcement of what food and drug laws the various states had at that time.--Their considered definitions and
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standards finally were adopted in 1907 by the Association and were revised in 1908.
England- was having her "What is Whiskey?" controversy. In 1905, a British Police Court, in the case of Borouch of Islington v. Wells and Davidge, 6onvicte'd the defendants of selling, as Irish and Scotch whiskey, respectively, 'products composed almost entirely of a patent still spirit, together with a small amount of a distillate possessing congeneric or sacon-dary substanoes. The. patent still spirit was virtually the product known in America as neutral spirits. This court decided that to be Irish and Scotch whiskey, the product must be one retaining these congeneric or secondary sub- - stances, and that the sale, as whiskey,. of the patent still spirit, which had practically none of these substances, was a fraud upon the consuming public.
This case Was to lead to such agitation in England that a Royal Commission was to be appointed by the Crown to consider the entire question, and that Commission reported in 1909, reaching conclusions entirely different from those of the Police Court.
In 1906, the Food and Drugs Act was finally enacted by Congress. The conflict between the straight whiskey manufacturers and the continuous distillers or the rectifiers was manufest throughout the consideration of the bill. The straight whiskey makers maintained that congeneric substances and. aging were necessary before any distillate was entitled to be termed "whiskey" -- the continuous distillers and the rectifiers •argued that their product bad been known to trade and consumers for years as "whiskey" without qualification. A significant feature of the statute, and undoubtedly written into the bill as a result of the controversy, was the provision requiring "blends", "imitations", and "compounds" to be so labeled, and providing that the. term. "blend" should be construed as .a mixture of like substances, not excluding harmless
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coloring or flavoring ingredients used for the purpose of coloring and . flavoring only.
Possibly sensing that they had not fared so well in the provision of the Food and Drugs Act requiring "blends", "imitations", and "compounds" to be so labeled, the continuous distillers and the rectifiers inquired of the Department of Agriculture whether mixtures of whiskey and neutral spirits could be labeled "blended. whiskeys". The answer of the Department was that neutral spirits diluted with water and flavored and. colored was a "spurious imitation" of whiskey, and, when mixed with genuine whiskey, could. not properly be labeled "blended whiskeys".
An appeal was made to President Roosevelt by the continuous distillers and the rectifiers from this decision. The President entertained the appeal and. directed Attorney General Bonaparte to render an opinion on the labeling of certain kinds of spirits claimed to be entitled. to the term "whiskey" with or without qualification. The decision of the Attorney General was against the continuous distillers and rectifiers. A "blended whiskey" was a mixture of distillates each possessing alone certain congeneric substances. A "compounded. whiskey" was to be a mixture of whiskey and. neutral spirits, provided there was sufficient whiskey to characterize the mixture. Neutral spirits containing harmless coloring and. flavoring was to be labeled "Imitation Whiskey". Such discontent was raanifeste,ul with the Bonaparte
decision that the continuous distillers and: rectifiers were able to persuade President Roosevelt to order another consideration of the question. •A third consideration was also had. On each of the two later ocOasions, the Attorney General adhered to his first opinion.
Regulations to carry out the Attorney General's rulings were pro—mulgated. by the Bureau of Chemistry. The Bureau of Internal Revenue did
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likewise. The Bureau of Chemistry made seizures of shipments of distilled spirits in interstate commerce, charging violations of these regulations and the provisions of the Food and Drugs Act as to "blends", "compounds", and "imitations". Attempts were made by the continuous distillers and rectifiers to enjoin internal revenue agents from csrrying out the Bureau. of Internal Revenue's regulations based on Bonaparte's rulings. Except in one instance, these attempts were unsuccessful.
Unsuccessful in their attempts to obtain favorable court rulings and also, through President Roosevelt, to obtain a.favorable ruling from Attorney General Bonaparte, the continuous distillers and rectifiers, who had by this time been joined by other dissenters, appealed in 1909 to President Taft who in the meantime had come into office. The result was an Executive Order, directing Solicitor General Bowers to hear testimony and arguments of the various interests and render a report.
Prominent at the hearings before the Solicitor General and strongly seeking a decision from him favorable to their interests, were those who pro—duced distillates from molasses. They had encountered an unfavorable ruling of the Bureau of Cheristry, to the effect that a distillate from molasses was an "unlike substance" to a grain distillate and, when mixed with a grain distillate, could not be termed other than a "compound whiskey" or, if unmixed, could not be termed "whiskey". An earlier proceeding brought by the Bureau of Chemistry to condeMia a molasses distillaZe labeled as "Bourbon Whiskey" had resulted in a jury verdict in favor of the Government.
Everyone was dissatisfied with the Solicitor General's decision, even the straight whiskey manufacturers, to whose side the Solicitor General had leaned in requiring whiskey to be a product retaining a certain amount of congeneric or setondary substances.
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So much dissatisfaction led. President Taft to decide the controversy. His decision, holding all potable spirits from grain to be whiskey, attempted to settle the controversy by requiring truthful and informative labeling - permitting straight whiskey to be so labeled and the label to indicate that the product was aged - and requiring rectified, redistilled or neutral spirits whiskey to be solely so designated. In the opinion of the President, the Solicitor General, Dr. Wiley, and other chemists, and. the straight whiskey manufacturers, were in error in attempting to confine "whiskey" to distillates possessing certain amounts of congeneric or secondary substances.
Both the Bureau of Chenistry and Internal Revenue Bureau announced amended parking regulations intended to carry out the President's rulings. It is important to note that each bureau required mixtures composed of whiskey and a distillate from molasses or other sources than grain to be labeled "Whiskey - A compound". In unmixed potable form, such distillates were required to be marked. "Imitation Whiskey".
A suit by the molasses interests followed to test the validity of the President's decision and the requirement of the Internal Revenue regulations. A suit was brought to restrain internal revenue agents from carrying out the provisions of their regulations. An injunction isaued and an appeal by the Government remained unprosecuted. In 1917 the molasses people Tucceeded in having written into the Revenu Act of that year, .a provision.. requiring that the Bureau of Internal Revenue abandon in its regulations discrimination in the marking and branding of distilled spirits "by reason of a difference in the character of the material from which the same may have been produced."
The Bureau of Chemistry I s reollatior.s remained unaltered. A mixture of whiskey and alcohol or neutral spiiiits from molasses or other, sources than grain remained "Whiskey - A compound". Internal Revenue had, however, amended their regulations to carry out .the Act of Congress. There is an indication from the hearings on the Revenue Bill that responsibility for the statutory provision was due in part to the Bureau of Internal Revenue. The difference in the regulations of the two bureaus continues to the present, the Bureau of Internal Revenue permitting marking of distillates warehoused at 160 degrees proof or more as "Alcohol", irrespective of the material from which distilled, and the Food and Drug Administration requiring the labeling of such mixture to indicate the sources from which the alcohol or neutral spirits were derived. The internal revenue regulations, however, apply to distillerts casks, barrels, or other large packages in which the distillate is stored or sold to bottlers; the .Food. and Druz Administration regulations to packages shipped in interstate or foreign commerce, mainly bottles and other small packages for the wholesaler, retailer, and consumer.
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II. -- THE SITUATION PRIOR TO THE TAFT DECISION.
A.	Early Standards Prior to the Food and Drugs Act.
While it seems impossible to point definitely to a time when the "What is Whiskey" controversy started,1 certainly the controversy was in full swing in 1900. Dr. Wiley was advocating his theory with respect to the labeling of whiskey long before the passage of the Food and. Drugs Act, namely, that whiskey was only the aged straight distillate of grain possessing the congenerics retained by distillation at ordinary temperatures and additional substances derived from extracts from the package in which aged. A review of his testimony taken before the Senate Committee on Manufacturers between March, 1899, and February, 1900, was made by the United States Industrial Commission at the request of the Senate, and is contained in the Senate documents of the Fifty-sixth Congress;2 also in the hearings before the Senate Committee on Manufacturers on S. 198 and. H. R. 6295 of the 58th Congress.3 Dr. Wiley later advocated his theory at hearings held to consider the Food and Drugs bill, enacted on June 30, 1906.4
1. There is an isolated decision of Attorney General Alphonso Taft in August, 1875 (apparently reported only in the Internal Revenue Record and Customs Journal, August 31, 1876, Volume =II, No. 34), involving the construction of section 3449, Revised Statutes. In refusing to accept a compromise of a penalty imposed against Corning and' Company for violation of the provizions of this section in billing alcohol as whiskey, the Attorney General naId.:
"I agree with my predecessor's information that the shipment of alcohol in the name of whiskey (the offense charged) is a violation of Section 3449, Revised Statutes, notwithstanding 'the trade' generally may have fallen into such a practice. Alcohol and whiskey are unquestionably different articles in contemplation of law as they are in fact, having different qualities and different values."
2. Senate Document No. 141, Feb. 6, 1901, 56th Cong., 2d Sess., p. 86.
3. See Senate Report No. 1209, March 5, 1904, 58th Cong., 2d Sess.
4. Hearings before the House Committee on Interstate and. Foreign Commerce, Feb. 13, 1906, on H. R. 4527, 59th Cong., let Sess., p. 322.
Standards under Agriculture.4propriation Acts 1901907. -- By the Agriculture Department Appropriation Acts for the fiscal years 1903 through 1907,1 the Secretary of Agriculture was authorized substantially as follows:
Ln collaboration with the Association of Official Agricultural Chemists, and such other experts as he may deem necessary, to establish standards of purity for food products and to determine what are regarded as adulterations therein; * * * and the Secretary of Agriculture, whenever he has reason to 'believe. that such articles are being imported from foreign countries which by reason of such adulteration are dangerous to the health of the people of the United States, or which are forbidden to be sold or restricted in sale in the countries in which they are made or from which they are exported, or which shall 17e falsely labeled or branded either as to their contents or as to the place of their manufacture or production, shall make a request upon the „Secretary of the Treasury for samples from original packages of such articles for inspection and analysis."
By the same Acts the Secretary of the Treasury was authorized to refuse delivery of any imported goods reported by the Secretary of Agriculture to be dangerous to the health .or falsely labeled or branded.
In order to facilitate the inspection of products and execution of this appropriation legislation, the Bureau of Chemistry of the Department of Agriculture issued on August 6, 1904, Food Inspection Decision No. 4. In. this decision importers were advised that, until further notice, or until the matter shall have been determined by judicial decisions, or until the permanent standards for the products mentioned have been established by proclamation, the Department submitted the following illustrations for the guidance of importers, as an index to the action of the Department in cases where the products hereinafter mentioned, and like products, _were offered for importation:
••••••••••
1. 32 Stat. 296; 32 Stat. 1158; 33 Stat. 287; 33 Stat. 874; 34 Stat.
686.
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" * * * 7. Whiskey is the Aistilled product of fermented cereal grains, properly aged in wood in.order, to remove the greater part of the fusel oils, etc. produced during the distillation. Whiskey should not contain less than-45 nor more than 55 per . cent, by volume,•of alcohol and not more than 0.25 per cent of total solids (extract). The content of fusel oils should not -exceed 0.25 per cent. No artificial color other than that derived from the wood in which it is stored is admitted in .whis- • key. Blended whiskey is whiskey made of two or more whiskies. Compount. or 'rectified' whiskey is whiskey made with:or without the use of some whiskey from neutral, cologne, or silent spirits; that is, pure alcohol, to which artificial flavoring and coloring matters may be added. Such whiskies should be plainly branded on the label 'Compound' or 'Compounded!, even if containing a percentage of pure whiskey. -L
It has not been possible to determine the origin of this standard for whiskey or upon whose recommendation it was adopted as part of Food Inspection Decision No. 4. It is probable, however, that the, st,,,,ndard was formulated through the activity of Dr. Wiley and the Association of Official Agricultural Chemi st s. 2
Standards of Association of Official Agricultural Chemists. -During all of the period from 1900. to 1907, the Association of Official Agricultural Chemists had been engaged in the consideration of standards for spirituous liquors,' although at the time 'of Attorney General Bonaparte's first and second opinions, discussed later lerein, the association had made no announcement on the subject. At the meeting of the association in 1697, a Food Standards Committee was appointed, consisting of Dr. Wiley, Chief of the Bureau of Chepistry; H. A. Weber, Columbus, Ohio, Chief Chemist of the
1. Food Inspection Decision #4 (1904).
2. Possibly F. 1. D. No. 4 was entirely Dr. Wiley's views. Support of this statement would seem to lie in the fact that, while the A. O. A C. had been engaged .in the question of establishing standards for whiskey, they had never at this early date adopted even tentative standards. It was not until the Jamestown meeting in the fall. of 1907 that the association first announced any standards for whiskey.
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Ohio State Dairy Food. Commission (chairman of the committee); M. A. Scovell, Lexington, Kentucky, Director of the Kentucky Agricultural Experiment Station, and charged with the execution of the pure food laws of that state; E. H. Jenkins, New Haven, Connecticut, Vice-Director and. Chemist of the Connecticut Agricultural Experiment Station; and Dr. William Frear, State College, Pennsylvania, Vice-Director and. Chemist of the Pennsylvania State College Experiment Station, and. Chemist of the Pennsylvania Department of Agriculture. The Food. Standards Comittee appointedl as referee on spirituous and other liquors and beverages, Dr. Charles A. Crampton, a chemist in the Bureau of Internal Reven112.
On November 16, 1900, Dr. Craqpton presente.d to the Food. Standards Committee a tentative draft of a definition and standard for whiskey, as follows:
"Whiskey. The alcoholic liquor obtained by the distillation of the fermented mash of grain (usually corn, rye, or wheat or mixtures of the same) after having been stored in wooden packages for at least four years.
"Whiskey of standard quality must contain not less than 44% of alcohol by volume (88 degrees proof) or more than 55 (110 degrees proof). It must not contain more than 0.25% of total solid matter, which must be solely that derived from the padkage."
(Then follow definitions of brandy, rum, gin, and liqueurs or cordials.)
In 1902, this draft, slightly revi.sed by the committee, was submitted to the trade to obtain criticism and. suggestions for changes. The submitted. draft read:
1. Whiskey.
Definition - Whiskey is the alcoholic liquor obtained by 'the distillation. of- the fermeritedmash of 'grain (usually
1. Report of the Committee on Food. Standards, 1898, p. 128, Proceedings of the 15th Annual Convention of the Association of Official Agricultural Chemists .(Bulletin No. 56, Bureau of Chemistry).
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corn, rye, or wheat, or mixtures of the same) and subsequent storage in wooden packages for at least four years.
. Standard - Whiskey of standard quality contains not less than 44% of alcohol by volume (eighty-eight degrees proof) nor more than 55% (110 degrees proof). It contains not more than twenty-five hundredths per cent of total solid matter, and this is derived solely from the package."
After the submission of this draft to the trade, it was the judgment of the committee, that, before action was taken upon the draft, a larger volume of analytical data representing authentic samples, especially of American liquors, should be secured, and much more investigational work done. Samples of known history were secured and analyzed. Dr. Wiley visited, the whiskey and brandy distilleries of Europe. The committee had visited wineries in California in 1899, and in 1905 it visited the rum distillery of Felton and. Son in South Boston. In 1906, various rye and bourbon distilleries in Kentuclr were visited. During all of this time, numerous hearings were given to members of the industry and their representa-
1
tives.
In addition to the activity of the Food. Standards Committee itself, Dr. Crampton, the referee on distilled liquors, had, from 1902 through 1905, 'been submitting samples made up of so-called genuine whiskey, bottled-in-bond whiskey, and so-called artificial whiskey made from neutral spirits reduced to potable strength and colored and flavored with caramel, to numerous chemists for purposes of obtaining their conclusions from analyses made thereon.
1. This information was derived from an affidavit of Dr. Frear which was made by him for use in connection with the second. Union Distilling Company case. Union Distilling Company v Bettman (C. C., Ohio, 1908) T. D., Int. Rev., 11, No. 1410.
For example, example, in September, 1904, a report on distilled liquors by Dr. Crampton was submitted to the twenty—first annual convention of the Association of Official Agricultural Chemists.1 This report contains the results by a number of chemists of analyses conducted by them upon three samples of liquors for a determination of their character. The identity of each of the samples was not made known to the chemists at the time the samples were submitted to them. Number one was a sample made by mixing several genuine trade whiskeys; number two was a sample of genuine five—year—old bottled in bond rye whiskey; and number three was an artificial whiskey made up from neutral spirits to which caramel and flavoring extracts had been added. These chemists reached the following conclusions as to the character of the samples submitted:
Barnard: Sample No. 1, artificial; sample No. 2, genuine; sample No. 3, artificial.
Gudeman: Sample No . 1, mixed whiskey; sample No. 2, straight
whiskey; sample No. 3, not a whiskey.
Lasche:	Sample No. 1, rectified; sample No. 2, genuine; sample .No. 3, artificial.
Law:	Sample No. 1, mixed; sample No. 2, genuine; sample No. 3, artificial.
Sawyer:	Sample No. 1, rectified; sample No. 2, genuine; sample No. 3, entirely factitious.
McCandless, Williams, and Burton:
Sample No. 1, not genuine; sample No. 2, genuine;
sample No. 3, not genuine.
In October, 1907, the Food. Standards Committee again reported to the Association of Official Agridultural Chemists on the definition of whiskey. The report2 was as follows:
1. Bureau of Chemistry Bulletin No. 90, 28.
2. Report of the Committee on Food Standards of the Association of Official Agricultural Chemists. Published in pamphlet form, October, 1907.
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'Mr' President and Members of the Association:
On behalf of the standing Committee on Food Standards, I beg leave to submit the following brief report of the operations of the Committee during the past Association year:
* * * * * The Secretary of Agriculture having authorized the Committee to hold a meeting in Louisville, December 1906, and commissioned the additional members of the Committee on Standards from the Association of State and. National Food and Dairy Departments
as ex-17.	tz act idb. yyar Committee, a	was held December
6 to L.3, 19C5, chiefly for the purpose of colv3idering the various questions that have arisen relative to whr,.t are to be regarded as adulterations in whiskey. Hearings were given ta. the representatives of both straight whiskey and 'blended i whiskey I.terest's and to representatives of allied industries, and. distilleries: and blending estab-lishmeAts producing the various types of thj.s cur.:3ity and its mixtures with the other spirits- were visiti for tho purpose of 'carefully studying the present conditions of manufactu.
Me Joint Committee was organized by the election of the following officers: William Frear, Chairman; Richard Fischer, Vice Chairman, acid. E. H. Jeflkins, Secretary.
It is impracticable to present Li detail the arguments pro and con presenteAt to the Joint Committee. . The questions bearing upon the chemical limits of composition and physical properties were but briefly discussed. The chief matters of consideration related to the defiDitions for whiskey, new whiskey, and blended whiskey, since these matters have a determining relation to the present practice of selling, as whiskey, neutral spirits mixed with whiskey. It appeared from the facts adduced in hearings that, while the practice is probably not very widespread, some firms are placing upon the market mixtures of straight whiskies that differ from one another in age and other qualities. The facts stated, showed that ordinary straight whiskey aged in oak casks and held in a bonded warehouse for four years, costs the manufacturer a much larger sum per gallon than do neutral spirit which is simply alcohol diluted. with water to proof. Aside from the additional cost entailed upon the dealer in straight whiskies by the expense of loss during storage in the bonded warehouse, it was stated that the greatest care was necessary to purchase high--
- grade, perfectly sound grains for the whiskey mash, whereas, owing to the chemical treatments forming a:part of the proce-ss of preparing neutral spirits, it was often possible to use for the latter low-grade or even !no-grade! corn. Tho &e who spoke for the !blend- ers: urged that there should be recognized no distinction between whiskey and neutral spirit, or at least that neutral spirit should be declared to be a !like substance! with whiskey. In view of the def-
inition for	blend.' which had been incorporated into the Food and. Drugs Act of June 30, 1906, In support of this plea it was represent-
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•	ed that for many decades . the manufacturers of whiskey had been refining their product by :passing it throuh wood charcoal, as well as by carefully limiting-the initial distillation processes so that the finished product might contain a less proportion of fusel oil and other secondary fermentation products. The whiskey thus refineil, it was urged, was alike substance with the neutral spirits now prepared by special methods of distillation, filtration through charcoal, treatment with refining • chemicals, .etc. Several speakers even went so far as to state that whiskey is by its derivation a synonym for aqua vitae, and is therefore a generic name for all spirits. In support of the likeness between whiskey and neutral spirits it was urged that the two substances are composed chiefly of alcohol and water, that the secondary products present in considerable quantities in whiskey, but removed as far as practicable from neutral spirit, make up too small a fraction of the entire materials to be made the determining factors in establishing the likeness or unlikeness between whiskey and neutral spirit. It was further urged that the manufacturer of straight whiskies endeavors to remove these secon-d.ary products through the aging process and that neutral spirit from whiskey differed chiefly because the removal had. been more fully ,accomplished.
The fact that whiskey and neutral spirit differed in color was not to be regarded as a criterion of likeness or unlikeness in view of the fact that the color.ofstraight whiskey is due to materials dissolved out of the chc.;rred oak cask during storage, new whiskey being colorless. The distinctive flavors of whiskey and neutral spirit were by some ascribed almost entirely to the dissolved oak extract, and were therefore claimed not to afford a 'basis for a declaration of -unlikeness, and finally it was alleged that the mixing of neutral spirit with whiskey was for the purpose of diminishing, 'softening, smoothing' the raw, rough flavor of newly distilled straight whiskey, or even of such whiskey when aged two or three years. It was furthermore stated that the practice of making so-called whiskey from neutral spirit alone by the addition of sugar-color and artificially prepared esters, beading oils, etc., had almost entirely been dropped, alti;ouch sherry and prune juice (alcoholic extract from prunes) were still employed. to deepen the tints of mixtures of neutral spirit and straight whiskey.
In reply to the question whether neutral spirit was to be regarded as a like substance with whiskey and equally so with brandy and run, practically every speaker on behalf of the rectifying interests answered 'Yes'.
In several cases the further question was asked whether whiskey; run and .brandy were alike substances', and. agaip. an affirmative reply was given.
On the other hand, in addition to the argument of cost, above mentioned, those who did net favor the recognition of neutral spirit as a like substance with whiskey urged that neutral spirit was sold at wholesale as 'neutral spirit', and not under the name of whiskey;
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furthermore, that when these spirits weresheld.for a time in charred oak. casks so as to take up from the wood some of the coloring extractives, the coloredproducts were sold to the retail trade under 'the name of 'domestics' and not as whiskey; that the use of neiltral spirits, either. colored or uncolored; without the addition of 'whiskey or of artificial materials imparting similar flavors and odors was little known, the persons using such beverages being in most localities regarded as abnormal. 'A number of arguments were made regarding the physiological effects of the several products, but the evidence was too vague to justify a closely drawn conclusion.
Prior to the conclusion of the hearings, representatives of the National Wholesale Liquor Dealers' Association urged that the Joint Committee investigate carefully the manufacture of rye whiskies as practiced in Pennsylvania and Maryland, before the formulation of any conclusion concerning whiskey standards. The Committee decided that this request should be brought to the attention of the Secretary of Agriculture, and that, meanwhile, final action upon the whiskey standards should be postponed."
Following this report and in the fall of the same year, the Association of Official Agricultural Chemists adopted certain standards for whiskey, rectified spirits, and other distilled spirits. These standards were familiarly referred to in the proceedings as the "Jamestown Standards". The standards so adopted are contained in Appendix 11311 to this memorandum)
Li August, 1908, upon the recommendation of the Joint Committee on Food. Standards, the Association of Official Agricultural Cher.lists and the Association of State and National Food and. Dairy Departments, in their meeting at Mackinac, Michigan, adopted2 a revised draft of definitions and standards for whiskey and other distilled spirits.
1. Report of the Committee on Food Standards of the Association of Official Agricultural Chemists, Published in pamphlet form by the Association in October, 1907, p. 9.
2. Apparently unreported except as published by the Association in a pamphlet entitled "Food Standards", published in 1908.
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These "Mackinac Standards" are, set forth in 4pendix "C" to this memoranaum. There are indications appearing throughout the coatroversy that it was the Jamestown Standards, and later the Mackinac Standards, that the Bureau of Chemistry, while not officially adopting, had followea in enforcing the pro visions of the Food and Drugs Act.1
The Jamestown Standard,s were essentially chemical standards. They prescribed, the kind, and quantity of constituent elements necessary to constitute the grain distillate defined as "whiskey" -- a determination capable of ascertainment by chemical analysis only -- rather than providing a maximum distillation proof figure beyond which a distillate from grain begins to lose its characteristics as "whiskey" and assumes a different and distinguishable identity. Accordingly, these standards provided minimum and maximum figures for fusel oil, alaehydes, ethers, volatile acids, and the so-called congeneric or secondary substances, to be found in a prescribed quantity of approximately one hundred gallons of proof ethyl alcohol.
The Jamestown Standards distinguished between new whiskey and whiskey, the latter being parenthetically described as "potable whiskey". In substance, new whiskey was defined as a distillate from a fermented mash of grain, containing, within the prescribed minimum and maximum figures, the essential ingredients aforementioned. Whiskey (potable whiskey) was new whiskey aged for at least four years witl. a permitted dilution with water to not less than a minimum.alcoholic content of ninety proof when ready for consumption.. At Jamestown there were also adopted two othor standards pertinent to the present discussion. These were definitions for
1. See, opening argument of Alfred Lucking on behalf of Hiram Walker & Sons befdre. Solicitor General Bowers.; Proceedings Concerning the Meaning of the Term "Whiskey" (1909) pp. 21-2.
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rectified. new whiskey and -rectified whiskey, which set forth respectively the standards for. the products referred to throughout the "That is Whiskey" controversy as "spirits" if in unpotable fOrm, and "neutral spirits whiskey" if in potable form. Rectified new whiskey ("spirits"--in unpotable form) as therein defined conformed practically to the definition provided above for "new whiskey", except that it was an article "deprived of a part of the secondary volatile products" (congeneric or secondary substances). In addition, this definition differed from the definition for new whiskey in the required amounts of the other essentials, such as fusel oil, aldehydes, ethers, and volatile acids. Rectified whiskey ("neutral spirits whiskey!' in potable form) was essentially rectified new whiskey, but required to be aged in wood not less than three years.
The Mackinac Standards .adopted 'by the Association of Official Agricultural Chemists ten months later, similarly were chemical standards. The Mackinac Standards differed from those adopted at Jamestown in that they abandoned maximum figures for the so-called. congeneric or secondary subst9nces. They retained, however, minimum figures for these substances necessary to be found in a distillate before it was entitled to the name "new whiskey" or "whiskey". "New whiskey" was defined as the distillate from a fermented mash of grain possessing, in a prescribed quantity of proof spirits, a minimum of congeneric substances, other than ethyl alcohol, derived from the grain from which made and, in addition, 'those produced during fermentation. Whiskey, parenthetically described as "potable whiskey", was defined essentially as new whiskey, but stored in wood not less than four years without any artificial heat save the usual storehouse temperature. Like the new whiskey standard, whiskey was required to possess a minimum percentage of the congeneric substances prescribed for
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new whiskey, except as those substances were changed or eliminated by storage in wood and the secondary substances produced during the aging•period; and in addition possessing substances extracted from the aging .casks. There is no indication as to why the maximum figure for the congeneric or secondary sz.i..bs.tances was eliminated. Probably the reason for the abandon-
ment of any ia:i	igun:7-;	he congeneric substances was that that re-
quirement atte:-pted to prescribe a factor upon which consumer tastes differed, since the amount of congenerics consid.erei desirable in the finished article might differ, depending upon =sL=1er i».')fe7en-2,e.
The principal feature of the Mackinac Stalidards, other than elimination of the maximum requirement, was the abandonment of the standards established at Jamestown for rectified new whiskey and. rectified whiskey, which, as previously pointed out, corresponded to the products referred to tha.-ouE:J)Dut the controversy as "spirits", if in =potable form, or "neutral spirits whiskey", if in potable form
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B. - The Food. and Drugs Act.
Legislative History. - That the w,,rihat is Whiskey" controversy was directly responsible for several provisions in the Food. and Drugs Act as enacted, is clear. -It unquestionably was largely responsible for the adoption
.
of the provis:.o..1 in the Food and Drugs Act providing that an article of food.
which does no'; 3cn.t:L!n any added poisonous or deleterious ingredients shall not be deemed. to be adulterated or misbranded. in the following cases:
" * * * Second, in the case of articles labeled, branded.,or tagged so as to plainly indicate that they are compounds, imitations, or blends, and the word. 'compound!, limitation', or tblendi, as the case may be, is plainly stated on the package in which it is offered. for sale: Provided, That the term blend as used. herein shall be construed. to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients used for the purpose of coloring and. flavoring only * *
It is als:, evident that this controversy and. the opposing views were responsible for much discussion on the floor of the House and Senate upon that provision of the Food. and Drugs Act having to do with adulteration by reason of the presence of poisonous or deleterious ingredients. It is doubtful that this controversy played. any part in the refusal of the Senate to adopt the provision in the House Food and Drug bill authorizing the Secretary of Agriculture to prescribe and, adopt standards for food products, although there is an inference from the portions of the Senate debate on the bill that possibly this contro:Fersy, together with other reasons, prompted the Senate to resist any efforts to write into the 'bill any authorization to the Secretary of Agriculture to prescribe food standards. Portions of the materials oa which the
1. Section 8, paragraph Fourth, in the case of food, 34 Stat. 768.
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above conclusions are founded are as .follows:
1. The "Blended and Compound" Provision. - As reported to the Senate by the Committee on Manufacturers, the bill S.88 separately treated liquor and contained a provision' that
"In tie case of liquors an article shall be deemed adulterated. :•if it .contain any aaded ingredient of a poisonous or deleterious character.
"Such liquor shall be deemed misbranded:
"First, if it is blended or rectified, or consists of an admixture of different grades of the same liquor, .or con-tains,or is mixed with, other substances, and such fact is not plainly stated on the package in which such liquor is offered' for sale, or if the label or any written or printed statement accompanying the package in which such liquor is kept or sold contains any false statement. ***."
This same provision and the separate treatment of liquors as a class distinct from the general class o.f food products was contained in the bill as it finally passed the Senate. When referred to the House Committee on Interstate and Foreign Commerce, that committee amended. S. 88 by striking out all the provisions after the enacting clause and substituting the House bill (H.R. 4527) therefor. This substituted House bill contained a separate provision (sec. 9) authorizinc the Secretary of Agriculture to adopt and prescribe standards for all food products. The House bill, moreover, dropped separate treatment of liquors as a class of food, and treated them under the broad general definition of a "food". The House bill, however, retained the provision that a mixture or compound shall not t'e deemed to be adulterated or misbranded if labeled, branded, or tagged so as to plainly indicate that it it a compound, imitation, or blend, and carried a like provision that the
1. 40 Cong. Rec. , pt. I, p. 897.
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term blend shall be construed to' mean a mixture of "like substances," not excluaineharmless coloring and flavoring ingredients.'
2
Congressman Mann, duiing the course of the debate on the bill
made the following statements indicating the part the present question played in:the consideration of the Food and Drugs bill, and also indicates the reasons behind the blending and compound provision of the statute:
"Another provision which has given rise to considerable controversy, at leas,t out of the House, is the one which affects whiskey. We found that there were two antagonistic interests involved in the whiskey ouestion. One was those who wished, all whiskey sold, as far as possible, to be the whiskey as it' came from the still after being aged; the other was the interest which wished to drive out of business, practically, the pot distilleries, and would require' the whiskey in the market to be made by so-called 'rectification' or other processes, out of ethyl alcohol, pure alcohol with the addition of coloring or flavoring matter. The committee did not take a decided stand. in. favor of either of these interests against the other, but leaves each to stand upon its own foundation, upon its own merits, but requiring that the so-called 'rectified.' whiskies shall bear upon their label the statement that they are imitation, compounded, or blended, so that the purchaser may know when he buys that class of goods that he is not obtaining whiskey as it came from the pot still, simply by aging in barrels or otherwise. We were asked on one side to adopt an amendment which would have. put out of business the straicht-whiskey manufacturers; and_ we were asked on the other side to adopt an amendment which would have put out of business those who mix or blend the whiskey. We did not recommend and have not recommended a proposition upon that point as either side requested, thinking it was not the duty of the committee to recommend to Congress legislation which would determine what people should either eat or drink, but rather to recommend legislation which would ,,permit people to know what they are eating or drinking."
1. House Report No. 2118, 59th Cong'., 1st Sess.
2. 40 Cong. P.ec. pt. 9, p. 8891.
3. See also, 40 Cong. Rec. pt..9, p. 9b62-9067, for discussions indicating that the whiskey question was responsible for the "blended and. compound" provision of the bill.
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2. The "Poisonous or Deleterious" Provision. -- As indicated, above, the Senate bill (s.. 88) as reported out of committee, dealt separately with liquor and provided that liquor should be deemed adulterated if it contained any added ingredient of a poisonous or deleterious character. It was argued during the course of the debate on this particular provision of the bill that the word. "added" discriminated in favor of the "straight whiskey" manufacturers and to the detriment of the blenders or rectifiers. Senator Heyburn had explained that the word "added" had been inserted in the bill for the reason that there were a great many poisons contained in foods in their natural condition, and that this particular word was necessary in order not to condemn all food products. Thera was considerable discussion on whether or not the word "added" should remain in this provision, and during the course of the discussion; Senator Tillman made the following statement:
regard to the proposed amendment, striking out the word !added', which the Senator says ought to go out, I tried to convince the few who listened to me the other day that if you strike outthat word 'added' it will open the door wide for the most outrageous adulteration.
"I think I can make it very clear to anyone who will pay attention why the word 'added' should remain. As .I stated, then, the basis of all common whiskies, blended whiskies, and rectified whiskies that are sold in the market is spirits or alcohol. There are two types of alcohol on the market--one cologne spirits, out of which all fusel oil has been taken, and the other is alcohol as it comes from the still with the fusel oil in it. The latter form is used largely in the manufacture of medicines, in chemistry, for fuel, and that kind of thing, when, of course, it is not necessary to extract the fusel oil from it. But if anyone wants to get a harmless alcoholic driik with this poisonous sub-stance—fusel oil--out of it, he must buy deodorized alcohol or cologne spirits,,which cost 6 or 8 cents more per gallon than crude alcohol.'
1. 40 Cong. Rec. pt. 3, p. 2751.
2. 40 Conc. Rec. pt. 3, p. 2749.
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'If you do not leave the word 'added' in the provision in regard to liquors or whiskies so dolled, you simply leave the door wide open for the rectifier or the manufacturer of common grades of liquor that are bold on the market to take the crude alcohol with. the fusel oil in it, add coloring matter, add flavor 'by means' of essential oils, and add anything' else that he sees fit--beading oil for one thing, as I instanced the other day--which are all adulteration's ?,11.d all more or less injurious. The rectifier, therefore, adulterates the whiskey to make it meaner than it would be with the fusel oil alone in it. The fusel oil being poisonous itself, and therefore very unhealthy, they aiscuise it,-make it palatable, and bamboozle the purchaser into buying it by adding other ingredients which. disguise, it. In other words, they color it in the first place, then beading oil is added., by which they make it have the ap-poarance of whiskey, When it is known that alcohol of no kind will bead; in other. words, there will be no bubble when it is poured from one glass to another, whereas any good whiskey will always have a bead.
"Therefore these adulterants of beading oil and of coloring matter of various kinds--logwood dyes, aniline dyes, tobacco, burnt caramel, prune juice, and I do not know what else--are adulterants which can be added if you strike this word 'added' out."
Senators Lodge and Penrose, particularly, were insistent that the provision discriminated in favor of the straight whiskey manufacturers as against blenders or rectifiers, upon the ground that straight whiskey, in its natural condition of manufacture or distillation, contained a considerable quantity of fusel oil, and that, with the word. "acid-ea" present in the bill, those whiskeys could be sold without being considered adulterated under the provisions of the act. Senator Penrose's argument is summarized
0
in the following statement-:
"The Senator has been very 'candid in that last statement. This bill is. calculated. to protect the producer of what is known as' 'straight whiskey', and to drive out of business or injure the
1. 40 Cong. Rec., pt. 3, pp. 2749-2755.
2. 40 Cong. Rec. pt. 3, p. 2751.
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business of the manufacturer of what is known as 'the blended product'. Whether intentionally or not, he has disclosed.what is either the deliberate purpose or the practical effect of the wording of this bill. In other words, the committee reports this bill and endeavors to defend the proposition that fusel oil when added is injurious, but when inherent in the straight whiskey, even if it be in much greater quantities, it shall pass uncriticised, unexamined, and unpunished, and be permitted to be sold all over the country, except in so far as it may run counter to the blanket provision existing somewhere in this measure."
A proposed amendment sponsored by Senator Foraker to amend this provision of the bill by striking out the word "added" was rejected1.
3. Omission of Power to Prescribe Standards. -- During the course of Senator Penrose's argument against the word "added" in the bill, as mentioned above, he made the following proposal2 to Senator Heyburn who was in charge of the bill on the floor of the Senate:
"Mr. PENROSE. I will ask the Senator whether he has any objection to specifically having a provision inserted here applicable to the straight-whiskey product which has fusel oil in it?
"Mr. HEYBURN. What kind of a provision, I would ask the Senator?
"Mr. PENROSE. That all straight whiskey shall be of the standard established in the American Pharmacopoeia.
"Mr. HEYBURN. As I said yesterday in discussing the amendment proposed by another Senator, that would be to enter upon the fixing of standards. The Pharmacopoeia is made the standard for determining the purity of all drugs and of all whiskey used in connection with drugs by an express provision of this bill.
1. 40 Cong. Rec., pt. 3, p. 2770.
2. 40 Cong. Rec. pt. 3, p. 2750.
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It would be utterly impracticable for us in legislating upon this subject to attempt to settle the controversy that has existed., and perhaps always will exist, between what is known as the 'manufacturers of straight whiskey' a:nd the iconcoctors of blended and rectified whiskies'. The committee tried to avoid that controversy. It is no part of our duty in legislating upon this question to settle these controversies any more than it would be to settle the question as to the superiority of any other article of food or commerce.
"These contending schools of distillers, or, rather, the distillers and those who take the product of the still and change it into something else, have always existed, and they probably always will, but I had hoped that their contentions would not be brought into the Senate in the discussion of this bill."
Other matters appearing in the debate upon this particular provision of the bill may possibly lead to the inference that it was this whiskey controversy that prompted the Senate to refuse the power to prescribe standards for foods. Senator SpponerI asked Senator Heyburn whether there was a standard in this bill for whiskey, and Senator Heyburn replied that "There is a standard in this bill for whiskey when used in connection with drugs." Senator Spooner replied, "But I am talking about whiskey for potable purposes", to which Senator Heyburn answered. "No".
"Mr. SPOONER. Is there any whiskey of which it can be said that it does not contain ingredients of a deleterious character? New whiskey contains more fusel oil than does old whiskey. 14 the old whiskey it is transformed into ether, I believe. But either is deleterious. Is not this clause practically a prohibition? In other words, what I want to get at is whether standards are not absolutely necessary somewhere to the understanding and administration of this bill when enacted into law?
"Mr. YBURN. I will answer the question.. Standards would be
necessary if whiskey were a new product which was just being introduced into commerce and into use and we were unfamiliar with
1. 40 Cong. Rec., pt. 3, p. 2751
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it and its effects. But whiskey has obtained, through the long years of its use by individuals and its place in commerce, a recognized standard. The process of making whiskey is one that has become recognized within fixed lines and limits. A certain quantity of grain and a certain process produce whiskey of a commercial standard, and the courts have. been engaged for the last fifty years, since we have had revenue laws, in determining what constituted a standard of pure whiskey, and it has been reduced to a legal certainty. Whiskey that is dropped from the still in a natural condition, has gone through a certain process, etc., the courts have held is. whiskey, and. pure whiskey."
* * *
"Mr. SPOONER. Is there not a standard of whiskey in the Pharmacopoeia?
"Mr. HEYBURN. There is a standard in the revenue laws. "Mr. SPOONER. Why not refer to some standard?
"Mr. =BURN. We do not need to refer to existing conditions. The courts will take cognizance of them."
Again at another point in the debate1 Senator Spooner argued that a standard for whiskey was necessary in the bill:
IIM±. SPOONER. * * * A man has strictly no right 'to say that he should be pex;mitted, to sell to the public poisonous food or poisonous articles until the Congress enacts a law which prohibits everybody else from doing the same thing. I do not know whether a provision can be drawn which will limit the sale as to straight whiskey; but straight whiskey is not adulterated, although it may be so manufactured, I take it, having in it only its natural ingredients, and that, too, perhaps, in larger quantity in one case then another, as to be extremely deleterious. Whether that can be reached I do not know.
"But, Mr. President, I want just a moment, in callImg the attention of the Senator from Idaho and also the Senator from North Dakota, to say that I do not understand how Senators can expect to make this bill, when it shall have been enacted, a valuable law or capable of succeesful administration if they fight shy, as they seem to have done, of anything, which looks like establishing standards. They have established a standard as to drygs.. That is the Pharmacopoeia.
"Mr. HEYBURN. We have adopted one.
1. 40 Cong. Rec., pt. 3, p. 2755.
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"Mr. SPOONER. Well, you have adopted one, which for the purposes of this bill establishes one. It is law after this bill shall have passed, because it is enacted into law. Without this bill it would not be law.
"Mr. =BURN. Mr. President---
"The VICE-PRESIDENT. Does the Senator from Wisconsin yield to the Senator from Idaho?
"Mr. •SPOOlIER. Certainly.
"Mr. HEYBURN. It has been the law by reason of the fact that the courts in determining cases involving that question have always held that the American Pharmacopoeia was the standard upon which their judgment was based. That is as old as that publication.
"Mr. SPOOL	Yet a man who sells anything now in the way of a drug which is not in harmdny with the standard of the Pharmacopoeia commits an offense under this bill. Withdut this bill he would not, except under the laws of the States. So the. Senator is mistaken if he suppos9s that the adoption of a Pharmacopoeia standard as to drugs has no added significance by being in this bill.
"Going back to the question of standards. I can not understand the argument upon which the Senators insist that all standards shall be excluded. As to an article in its natural condition, taking opium,. strychnine, or arsenic, .I can understand what function the word 'added' would perform as to that poison. But where it is a compound--arsenic and opium, or arsenic and stryahnine, to illustrate--I do not see what the word 'added' is to mean, because there is no standard. You can .not use the word 'inherent'. The applicability of that word is destroyed when you compound two thins. Mile it .is sensible applied to either, it is not susceptible of sensible or practical construction when applied to both.
"Now, the Senator from Idaho said--and I do not refer to it except to call his attention to the point I make-- that section 4 does not use the ,wora 'added', as I understood him."
There is an indication that the blenders and rectifiers, represented by Watwidk M. Hough, were opposed to the provision in the House bill
1. 40 Cong. Rec. pt. 9, p. 8965,8966.
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authorizing the Secretary of Agriculture, in collaboration with the Associa-
tion of Official Agricultural Chemists, to establish standards for food pro-
ducts. In a letter to Congressman Richardson, dated May 11, 1906, Mr. Hough
made the following statement:
. "I the so-called 'pure-food bill' only incorporated the idea
of 'honest labelinV, it would contain much of merit, and I
presume there would not be heard a voice raised in opposition
to it.
"But when, in addition to the principle of honest labeling,
there is incorporated an authority to establish definitions
and standards, and the denial of the right to ship from one
State to another an article which is adulterated or misbrand-
ed within the meaning of the bill as it shall be construed
by a Department of the Government, in the light of the defi-
nitions and standards to be established by it, there is in-
jected into the measure a most objectionable element, offen-
sive alike to our sense of propriety and our theories as to
the right of the individuals of each community to determine
for themselves what they shall eat and drink."
Food Inspection Decision No. 45. - Five months after passage of the
Food. and Drags Act, the Department of Agriculture announced (December 1, 1906)
Food Inspection Decision No. 45.1
In this decision, the Department of Agri-
culture was called upon to render an opinion as to the legality, under the
Food and Drags Act, of applying the designation "blended whiskey" to (1) a
mixture of 51,; bourbon whiskey and 49% neutral spirits, and (2) a mixture of
51% neutral spirits and 49% bourbon whiskey, both of which mixtures contained
a small amount of burnt sugar for coloring and flavoring. The right to so desig-
nate these mixtures was denied by the Department, holding that to permit the
use of the word "whiskeys" would be to admit "that flavor and color can be
1. Gviinn, Federal Food and Drugs Act and Decisions (1914) p. 36.
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added to neutral spirits and the resulting mixture labeled 'whiskey' ". The Department indicated, that these mixturs could not legally be labeled as "blended whiskeys" or "blended whiskey", ' and indthated that neutral spirits diluted:with water to potable strenth and artificially colored and flavored do not becone whiskey, but a "spurious imitation" thereof.
Opinions by Attorney General Bonaparte. - On April 10, 1907, Attorney General Bonaparte' rendered the first of his opiniohs (two more on the same question were to follow) to President RooseveltI, in which the Attorney General was called upon to decide what kinds of spirit night be designated, under the provisions of the Food and. Drugs Act, by the term "whiskey", with or without qualifying words. The principal question involved was whether or not a mixture of straight whiskey and neutral spirits or etbyl alcohol was sufficiently a mixture of "like sUbstances" within the meaning of the Act as to be entitled to the designation "blenaed whiskey" , or whether it was a mixture of unlike substances which, under the Act, should be la'Jeled "comound whiskey". In the course of the opinion, the Attorney General mentions a definition of whiskey which had. met with the approval of the Department of Agriculture, and apparently accepts it for the purposes of his decision, althow;h expressing some doubt as to whether it was broad enoush to meet the general intent of the statute. The definition is as follows:
"Thisy is a distillate at the required alcoholic strength from the fermented mash of malt cereals, or from malt with unmalted cereals, and contains the conE;eneric substances formed with ethyl alcohol, which are volatile at the ordinary tempera tures of distillation and which give the character to the distillate."
1. 26 Op. Atty. Gen. 216. Also reported in Gwinn, Federal Food and Drugs Act and Decisions (1914) p. 51, 56 as Food Inspection Decision No.. 65.
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The opinion also broadens this definition so as to include under the description of "whiskey" distillates from potatoes and other substances and cereals, a position at variance with the later opinions, of both Solicitor General Bowers and President Taft. .
The opinion of the Attorney General holds that a "blend of whiskeys" or "blended whiskey" or "blended whiskeys" was limited to mixtures of distillates each of which, standing alone, could be appropriately designated. as "whiskey" as that product is defined above. "Compound" or, "compounded" whiskey was held to be a mixture of "whiskey" as defined above and neutral spirits or ethyl alcohol, provided, in all cases, there was such a substantial amount of "whiskey" present in the combination as to make it a real compound. "Imitation whiskey", under the Attorney General's opinion, was neutral spirits or ethyl alcohol, either pure or mixed with water, containing harmless coloring and flavoring materials.
In a letter to the Secretary of Agriculture1, dated April 10, 1907, President Roosevelt concurred in the opinion of Attorney General Bonaparte and directed that action be taken in accordance with it as follows:
"Straight whiskey will be labeled as such.
mixture of two or more straight whiskies will be labeled 'Blended whiskey' or 'whiskies'.
"A mixture of straight whiskey and ethyl alcohol, provided
1. Gwinn, 'Federal Pool and Drugs Act and. 'Decisions (1914) p. 51, 52. Also included. as 'part of ,Food Inspection
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that there is a sufficient amount1 of straight whiskey to make it genuinely a 'mixture!, will be labeled as compound of, or compounded with, pure grain distillate.
"Imitation whiskey will be labeled as such."
The following month the Attorney General furnished an opinion2 to the President, reasserting the views expressed. previously by him3, as to the correct labeling of whiskey under section 8 of the Food and Drugs Act. Again the principal question involved seems to have been whether straight whiskey and alcohol were such "like substances"within the meaning of the Act as to permit a mixture of such ingredients to be labeled "blended whiskey" or whether they were unlike substances and a mixture thereof should be labeled
compound whiskey". The conclusion was that Congress must have legislated with reference to existing facts and since, at the time of passage of the Act, whiskey was mixed with only two substances; i. e ., other whiskey and alcohol, there must have been an intention to deny the designation "blend." to a mixture of straight whiskey and alcohol. If such was not the case, no justification could be found for, the provisions as to blends and compounds, those provisions having been generally assumd to have been inserted with some reference to whiskey. The former opinion holding that a mixture of straight whiskey and alcohol must be labeled as "compound whiskey" was reaffirmed.
1. Later the Attorney General rendered an opinion in effect construing this requirement of "sufficient amount". His opinion of December 1, 1908 (apparently unreported except as Food Inspection Decision No. 98 in Gwinn, Federal Food and Drugs Act and Decisions (1914) p. 113) given to the Secretary of Agriculture considered the question of how much whiskey must be present in a mixture of whiskey and neutral spirits before the combination was properly entitled to the designation "compound" or "compounded" whiskey. The decision, while recognizing that, in the absence of either legislative or judicial determination of the proper proportion, any view must be considered somewhat arbitrary, advised the Secretary of Agriculture in tbe. enforcement of the statute not to proceed with prosecution in any case where a "compound" or "compounded" whiskey consisted of at least one-third or more of whiskey by volume, together with neutral spirits.
2. 26 Op. Atty. Gen. 262.
S. 26 Op. Atty. Gen. 216.
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The last of Attorney General Bonaparte's three opinions as to the application of the Food and Drugs Act to the labeling of whiskey mixtures was rendered to the Secretary of Agriculture in 1908.1 On May 11th of that year the Attorney General eypressed his views on the question as to whether it was permissible under the Act to use in the place of grain neutral or silent spirits, a neutral or silent spirit from beet sugar molasses in the preparation of whiskey compounds and imitation. whiskeys. It was held by the Attorney General that there was nothing in the Food and Drugs Act which required a "compound" or "compounded" whiskey to be limited to a combination of. whiskey and a distillate from grain, and that a compound whiskey prepared with whiskey and a mixing distillate other than a distillate from grain was
- entirely proper, provided the label disclose-A the character of the other distillate with which the whiskey was compounded.
Litifation. - Certain notices of jud,7pent2 were issued by the Depart-mnt of Agriculture, announcinc the results of seizure proceedings that had been instituted during 1908 and 1909 under the Food and Drugs Act against shipments in interstate commerce of misbranded whiskey. These seizures were either of neutral spirits artificially colored with caramel and labeled as "whiskey", or other mixtures which the Bureau of Chemistry chared were im properly labeled under the provisions of the Act. The decrees in all these cases either provided for destruction of the coods where no claimant appeared, or provided for release of the goods under bond for proper relabeling.
1. Apparently unreported except as Food. Inspection Decision No. 95, in Gviinn, Federal Food and Drugs Act and Decisions (1914) p. 110.
2. Notices of Judgment, Food and Drugs, Nos. 15, 45, 68, 349, 350, 353, and 361.
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The case of'Unitecl.: States v. 50 Barrels of 'ffhiSkey1 involved libel proceeding instituted, under the Food and. Drugs Act to condemn fifty barrels of a molasses distillate branded as "Bourbon Whiskey". The case was decided in October, 1008;
The Government char,sed that the designation "Bourbon Whiskey" in-dicatea a liquor containing all the congeneric substances obtained, by distillation of a fermented, mixture of grain of which Indian corn forms the chief part, and. was confined to whiskey distilled in the state of Kentucky The Government's witnesses consisted of distillers, retail liquor dealers, retail grocers, druggists, the Chairman of the Revision Committee of the U.S. Pharmacopoeia, physicians, chemists, and food experts. The claimant proved tha his distillery was registered with the Bureau of Internal Revenue as a sweet-mash molasses distillery and that, for a long period of time preceding the trial, his product had been branded as "Bourbon Whiskey" and as such withdrawn and sold to various persons, and that the gaugers of the United. States Bureau of Internal Revenue had branded each of the barrels containing the product in question as "Bourbon Whiskey".
Upon the issue involved in the case - that is, 'whether this distillate was whiskey as known to the trade and to consum6rs, and, if such product was "whiskey", whether or not it was properly entitled to be called. "Bourbon Whiskey" -- the jury returned a verdict in favor of the Government, and a de—cree of condemnation was entered by the court.
1. (D. C., ma., 1908) 165 Fed. 966.
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C. -- Internal Revenue Regulations.
Regulations of 1869. -- The first statute wader which marking and
branding regulations for liquor were issued by the Bureau of Internal Revenue, was the Act of Congress of July 20, 186 .1 While 'the statute did not specifically 'provide for the marking of casks or packages as to the kind of distilled spirits contained therein, nevertheless under this statute the Commissioner of Internal Revenue promulgated certain regulations (August 20, 1869) with respect to the marking or branding of packages of distilled spir-
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its and rectified spirits.' So much of these regulations as seems pertinent read as follows:
"III. Marking or Branding of Cases or Packages of Distilled Spirits.
Under the authority vested in the Secretary of Treasury and Commissioner of Revenue by the provisions of the act of July 20, 1868, the following regulations are prescribed for the purpose of securing a uniform and correct system of marking and branding packages of spirits:
1. Raw Spirits: The term 'raw spirits' must be understood as including all spirits in the state in which they are produced. by the distiller, all of which must be entered in the distillery warehouse, and duly withdrawn therefrom upon payment of tax, and which should, except in cases where there has been a change of package, bear the distillery warehouse and tax paid stamps.
When such spirits are drawn from the receiving cisterns, they must be gauged, proved, and marked, and in addition to affixing the distillery warehouse stamp the gauger must cut upon the bung-stave in a legible manner, the number of wine gallons, the proof and number of proof gallons contained in each cask.' At the same time the gauger will cut with a die, or burn upon.the head of each cask, its serial number 'in figures not less than one inch in length, and the serial number of the distillery warehouse stamp in figures not less than half an inch in length,
1. 15 Stat 135.
2. Begs. No. '7, Series r64; 5, Supp. 1, Vol. 10, No. 11, Internal Rev:-enue Record and Customs Journal. p. 83.
placing the the same immediately under the serial number of the cask as follows:
No. 194
D.W.S. No. 47946
When withdrawn from the warehouse each cask must, in addition
to the tax paid stamp, have cut or burned upon it the name of
the distiller, the district, the date of the payment of the . tax, the number of proof gallons, and the number of the tax paid stamp. This brand may, in accordance with the present regulations, be abridged in the following manner:
John Smith & Co., Distillers 6th Dist., 0., T. P. Jan. 10, 1869 P.G. 44, Stamp 39857
All of this, except the date, number of proof gallons, and number of the stamp, may be burned upon the cask prior to its being filled at the cisterns, and the date and numbers cut.with a die at the time the tax date stamp is attached. The letters and figures constituting any brand or mark must in no case be less than one-half inch in length. In addition to this, the cask must be conspicuously marked or branded with the particular name of the spirits as known to the trade, as 'high wines', 'rye', 'Bourbon' or 'copper distilled' whiskey, as the case may be.
When it becomes necessary to change a package in a distillery warehouse, that is, to draw off the contents of a cask bearing the distillery warehouse stamp and the accompanyinz marks and brands, and to place the same in a new cask, the spirits must be again inspected and gauged, the number of wine and proof gallons must be cut upon the bung-stave and upon the head of each cask; the gauger will cut with a die or burn with a branding iron his name and office, the time and place of inspection, the proof of the .spirits, the name of such spirits as known to the trade, the name of the distiller, the distillery where such spirits were produced, and the serial number of the original package, together with the serial number of the warehouse stamp.
2. Rectified Spirits: Under the name )rectified spirits' are included all spirits which, after leaving the hands of the distiller, are leached through coal, redistilled, refined, compounded, or subjected to any process which would constitute the person using it a rectifier as defined by law.
Spirits subjected to any of these processes must be put up in casks, inspected and gauged, and in addition to attaching the' stamp for rectified spirits the gauger will cut upon the bung-stave the number of wine and proof gallons, and mark upon the
head. of of each cask, with a stencil plate, in durable ink, his narie. and. Dffice,..the date of inspection, the particular name of such spirits as known to the trade, the proof, the name ard:pl.ace_of business of the rectifier, and. the serial number of the stamp for rectified spirits affixed thereto: This mark or brand may be substantially as follows:
Thomas P. Smith, U. S. Gauger
1st Dist. Pa., Insp. May 15, 1869
Rye Whiskey, Proved 102
Greenleaf & Co., Rectifiers and Wholesale Liquor Dealers
IQ and 12 South Street, Philadelphia, Pa.
Stamp No. 64,275
To which the rectifier may add any known trade mark adopted and-used by him, or,. where such trade mark is a distinctive name of the spirits as known to the trade, it may be used as the name of the spirits.
This brand or mark will be understood to represent that the package is a rectifier's original package, and that the spirits contained therein were rectified,,refined;purified,redistilled
put„up bythe party named as a rectifier, and at the place stated in such brand or mark.
In his closing argument before Solicitor General Bowers, Warwick 11: Hough, on behalf of the continuous distillers and the rectifiers or corpounders, argued that these regulations were without authority. in law insofar as they required marking upon the package of the particular name of the spirits as known to the trade, as "high wines, rye, bourbon, or copper-distilled whiskey,
1
as the case may be".
Ten years later the Act of July 20, 1838, was amended2 so as to provide for the marking of casks or packages "by the particular name of such distilled spirits as known to the trade; that is to say, high wines, alcohol, or
1. Proceedings Concerning the Meaning of the Term "Whiskey" (190C) pp 1044-5.
2. R. S. , sec. 3287. It is this section on which Internal Revenue relies for its basic authority to prescribe 1-larking and branding regulations for liquor. The full text of this section is contained in Appendix "A" to this memorandum.
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spirits, as the case may be". The original marking and branding regulations, however, were permitted by the Commissioner of Internal Revenue to continue unamended under the new statute.1
gpinions of Attorney General Bonaparte. -- On January 11, 1908, Attorney General Bonaparte handed down an opinion21 upon the question of how far, if at all, sections 3287, 3289, and 3449 of the Revised Statutes were amended or repealed 1:). the Food and Drug's Act and whether the original 1869 regulations of the Commissioner of Internal Revenue still in effect were authorized by the law. Section 3287 provided that gaugers should mark: upon each container of distilled spirits drawn from the receiving cisterns either "high wines, alcohol or spirits, as the case maybe". Section 3289 provided for forfeiture of distilled spirits not marked as provided in section 3287. Section 3449 provided for the forfeiture of the distilled spirits and a fine
1. Other Treasury decisions issued under authority of R. S., sec. 3287, are as follows: T. D., Int. Rev., Nos. 1375, 1390; 1404, 1624, 1638, 2207, and 2560. They add nothing for the purposes of the present discussion.
Another statute, which has no particular bearing upon the present controversy except that it is mentioned in some of the cases hereinafter set forth, as well as in the opinion of ,Ittorney General Alphonse Taft, is section 3449 of the Revised Statutes. This section is short and reads as follows:
"Whenever any person ships, transports, or removes any spirituous or fermented liquors or wines, under any other than the proper name or brand known to the trade as dasiE;nating the hind and quality of the contents of the casks or packages containing the same, or causes such act to be done, he shall forfeit said liquors or wines, and casks or pa6kages, and be subject to pay a fine of five hundred dollars."
2. 26 Op. Atty. Gen. 474.
to be levied, upon anyone shipping, transporting, or removing distilled spirits "under any other than the proper name or brand known to the trade as designating the kind and quality".
As pointed out above, the regulations of the Commissioner of Internal Revenue required gaugers to brand on casks the particular name of the spirits as known to the trade as "high wines", "rye", "bourbon", or "copper distilled" whiskey, as the case might be. The Attorney General was, of the opinion that the term "spirits, as the case may be" in section 3287 was intended to authorize only the branding of a general name of a spirit as rum, brandy, or whiskey, and did not authorize or permit a further designation. No conflict was found between sections 3287 and 3289 and section 8 of the Food and. Drugs Act. However, section 3449 and section 8 of the Food and. Drugs Act were considered to be in conflict since the. proper name known to the trade provided by section 3449 might contain a statement, design, or device false or misleading within the purview of section 8 of the Food and. Drugs Act.
The Attorney General therefore held that the internal revenue regulations were contrary to law insofar as they required spirits to be branded with the name of the particular spirits as known to the trade; no further branding of spirits being contemplated by section 3287 than a general name such as whiskey, brandy, or rum)'
1. Later in the same year (August 3, 1908), the Attorney General rendered a further opinion to the Commissioner of Internal Revbnue. .27 Op. Atty. Gen, 47. 'Warwick M. Hough had advised the Commissioner that the spirits distillers had now abandoned the manufacture of neutral spirits and instead were manufacturing a product by rectification of high wines so as to retain in the distillate a much larger proportion of congeneric substance's than was present in the neutral spirits products. For this reason, Hough requested that Internal Revenue gaugers be instructed, to mark and. brand this
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ReKalations of 1908. - The opinion of the Attorney General resulted in a revision of the Internal Revenue marking and branding regulations. On May 5, 1908, new regulations, knovm as Internal Revenue Order No. 723,1 wore promulgated as follows:
I'M such distilled spirits, when drawn from the receiving cistorns, iil1 be classified in three classes—namely, 'high wines' , 'alcohol', or 'spirits', as the case may be--and will be marked or branded on the stamp head accordingly:
1. High wines. -- That which is practically the first product of distillation in which the substances, congeneric with ethyl alcohol have not been transformed or their properties otherwise partially eliminated, so as to convert them into any form of potable spirits, will be marked 'high wines'.
2. Alcohol. — (a) All forms of distilled spirits from which the substances congeneric with ethyl alcohol have been removed for practical purposes altogether, and which have been heretofore marked as 'pure, neutral, or cologne spirits', will be marked 'alcohol'. (b) That product which has been commercially known as talcoholl from which these congeneric substances have not been removed, will be marked 'commercial ricoholl.
3. Spirits, as the case may be, -- Those products of distillation in which, by reason of the original material used arid. the methods of distillation employed, the characteristic substances congeneric with alcohol have been retained, which differentiate them into various forms of potable spirits—such as whiskey, brandy, rum, and gin—will be marked with the particular name of such potable spirit.,
new product as Hniskeyn.
The question before the Attorney General was the propriety of so instructing the gaugers.
In declining to authorize the Commissioner to issue- such instructions, the Attorney General, while recognizing that such a question must be determined in each taits:a by whether the spirit is or is not, in fact, whiskey within the meaning of the Toad and Drugs Act, stated that "it is, according to the information of this Department, an undisputed fact that some portion, although perhaps a very small one, of the congeneric products is present in neutral or cologne spirits when used as the principal ingredient in compounds or imitations of whiskey, and that the absolute elimination, in a chemical sense, of such products from the neutral or cologne spirits above mentioned could not be effected without disproportionate trouble and expense."
1. T. D., Int. Rev., No. 1352.
as the case may be, without other description and without the addition of any adjective or descriptive word whatsoever; and the name of such particular spirit will be used even although when any of such spirits may be drawn from the receiving cisterns into casks certain congeneric products of distillation have ,not been changed by aging or otherwise, so as to bring them to the potable form in which they are ultimately' to be placed upon the market, provided such spirits have, befoare being drawn into the casks, been diluted to potable proof, so as to then constitute a crude form of potable spirits.
Marking of Rectifiers! Packages
Packages of distilled spirits stamped by gauger after rectification at a rectifying house shall be •marked as indicated in • one of the five following paragraphs, as the case mazr require; namely:
1. Those products of distillation which, without being blended or compounded with other spirits, have been so treated as to partially transform or otherwise partially eliminate the original congeneric substances and bring them to a condition of a particular form of potable spirits, will be marked with the name of. such form of potable spirits, as the case may be, as determined -under the paragraph above numbered 3, relating to marking at distilleries.
2. A mixture of such potable spirits of the same kind will be marked !blended!, followed by the particular name of such spirits, as, for example, !blended whiskeyi.
3. A mixture of a particular kind of such potable spirits with alcohol, provided there is enough of such potable spirits to make it a real compound and not the mere semblance of one, will be marked as a !compound: oft such spirit with the distillate with which it is mixed—as, for example, to compound of whiskey and grain distillate'; or, if preferred, with the particular name of such spirit I compounde(:,. with! 'such other distillate—as, for exthaple, 'whiskey, compounded with grain distillate!.
4. , Alcohol, commercial al coho 1 or high wine s1 whi eh have ,been manipulated by the aid. of artificial flavors, colors, or extracts, or otherwise, so as to resemble solae, particular kind of potable spirits, will be marked with the name of such spirits, preceded by the word !imitation's-7as, for e.kample., 'imitation whiskey'.
5. Packages containing cordials, liqueurs, and other like artificial compounds, will be.marked with such appropriate name .as shall indicate the kind of the contents."
These were the internal revenue regulations in force: at theime of the Taft decision.
Litigation. - During 1908 such4itigation arose with respect to the internal revenue marking and branding regulations. A summary of the decisions and opinions follows:
July 21,1908: Union Distilling Co. V. Bettmann1. An application for a preliminary injunction, to restrain the Collector of Internal Revenue and his agents from marking as required by Internal Revenue Order No. 723 casks of distilled spirits. as "alcohol", rather than by the name "spirits" which the complainant alleged was the trade name by which his product was known. The action of the collector and his agents was predicated upon the provisions of Internal Revenue Order No. 723, set. forth above, which provided that on and after July 1, 1908, all forms of distilled spirits from which the substances congeneric with ethyl alcohol had been removed for practical purposes altogether, and which have been heretofore marked as "pure, neutral, or cologne spirits", will be marked "alcohol".
While the nature of the distillate involved in the proceedings is not clear from the report of the case apparently the product involved was high proof spirit or neutral spirits in unpotable form, in other words, a rectified or redistilled spirit.
The question presented was whether the marking and branding regulation did not contravene section 3287 of the Revised Statutes, which provided that all casks should be marked or branded with the particular name of the distilled spirit as known to the trade; that is to say, high wines, alcohol, or spirits, as the case may be. The complainants contended that their distillate had always been known to the trade as "spirits", and was not to be confounded in any way with potable spirits..
1. (C. C., Ohio, 1908) 181 Fed. 419.
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The court held that the provisions of section 3287 had not been modified or repealed by the provisions of the Food and. Drugs Act, and that un-potable spirits had, prior to the regulations in question, been marked as high. wines, spirits, or alcohol, as those products were known to the trade, and that the differences in the markings of distilled spirits were so well known to the trade that there could be no question of deception to or misleading of purchasers under the provision's of the Food and Drugs Act.
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August 24, 1908: Union Distillinr, .Co. v. Bettman . An application
for an injunction pendente lite to restrain the Collector of Internal Revenue and his agents' from marking potable distilled spirits from grain which had been rectified so as to remove most of the fusel oil and. aldehydes, as "Imitation Whiskey". The defendants were acting under Internal Revenue Order No. 723,
The sole question in the case was whet:qer neutral spirits reduced to potable strength and artificially colored and flavored, was whiskey or an imitation of whiskey.
The court, relying upon affidavits of Professor Edward H. Jenkins and other chemists produced by the Government, held that the product in question was not genuine whiskey .and should be branded ."Imitation Whiskey".
The court accepted the views of chemists for the respondent that whiskey was distilled in a wholly different way from alcohol and was distilled with the design to retain in the distillate those congeneriC substances, higher alcohols, aldehydes, esters, and acids, to which, and. to which alone, when modified and altered by further, treatment, whiskey owes those characters which make it a potable beverage. Alcohol, (used as synonymous with cologne spirit,
1. (C. C., Ohio, 1908) unreported except as T. D. , Int. Rev., No. 1410.
neutral spirit, spirit, silent spirit, and velvet spirit), on the other hand, Professor Jenkins testified, is distilled with the design to get a product from which everything except ethyl alcohol and rater is, as far as possible, excluded, and is not distilled in such a way as to retain in the distillate
•	those congeneric or secondary substances; alcohol receives no aging, whereas whiskey needs and receives storage in charred casks.
An application for a rehearing was denied by the court on August 27, 1908. In denying a rehearing, the court handed down a memorandum opinion as follows:
"The case made by the bill had nothing to do with added flavors or essences.
"I agree with counsel that this product is a 'pure rectified spirit', but it is not whiskey, and it should be marked Ispirits' and not as whiskey. Whiskey is not made by diluting neutral' spirits with water. As I have said heretofore, in making genuine whiskey age modifies the objectionable elements and develops the flavor, but the process by which spirits are produced eliminates these elements and the flavor can not be restored. It may be imitated, but can not be restored. Dealers distinguish genuine whiskey from diluted spirits as straight whiskey, but consumers have not the same means of knowledge and are misled. - The consumer measures the merit and the money value of whiskey by its age, and would not knowing-17 prefer as whiskey diluted spirits, which can not be improved by age. Diluted spirits artificially colored and flavored in imitation of whiskey should be branded limitation whiskey', and diluted spirits, pure and simple, should be branded 'spirits' or 'diluted spirits', The misrepresentation of diluted spirits as whiskey for a long time will not establish a right to continue the representation in violation of the pure-food act."
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September 14, 1908: Woolner and CoEpany v. RennIck . A suit for
an injunction to restrain agents of the Internal Revenue from marking as
"Imitation Whiskey" a potable distilled spirit from grain, rectified so as
to remove most of the fusel oil and aldehydes. I so marking the complainant's
1. (C. C., Ill., 1908) 170 Fed. 662.
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product, the agents were acting under authority of Internal Revenue Order No. 723, requiring "alcohol, commercial alcohol, or high wines which have been manipulated by the aid of artificial colors, flavors or extracts, or otherwise, so as to resemble some particular kind of potable spirits", to be designated "Imitation Whiskey".
The issue in the case was whether or not that regulation correctly defined an imitation whiskey. Complainants contended that a distilled spirit from grain, reduced by water to potable strenth, from which most of the fusel oil had been removed by rectification, was whiskey, and that all distilled spirits from grain are "like substances", without respect to differences in congeneric substances. Defendants presented affidavits in support of the view that whiskey is a product made by the proper distilling of a fermented mash of grain with such care and at such low temperature as to retain the congeneric substances of the grain, aged under a normal temperature for not less than four years in charred oak casks.
In denying a preliminary injunction, the Court made the following observations respecting the character of whiskey and neutral spirits:
"The convincing weight of testimony on this subject given by such men as Profs. Frear of Pennsylvania, Scovill of Kentucky, Tolman and Adams of Washington, D. C., Shepherd of South Dakota, Jenkins of Maine, Fischer of Wisconsin, and many other state analysts and chemists of repute, is to the effect that neutral spirits reduced by 'water to potable strength, from which most of the fusel oil has been removed, is not a like substance with whiskey. Among the various reasons given for this conclusion are the following: Whiskey can only be made from sound grain, while neutral spirits can be made from moldy, heated, or unsound grain, or from various other substances, as fruits or vegetables. Whiskey is made at a low temperature, say, 150 to 155 degrees, so as to retain in the distillate the congeneric properties of the grain, the oil, the flavor, the higher alcohols and aldehydes, the esters, the acids, and salts, which, when modified by further treatment, give to whiskey its desirable potable character--a character which alcohol never possesses. Neutral spirits are made at a very high
temperature for for the very purpose of carrying off, so far as possible to do so, every property of the distillate except .alcohol and water. Whiskey is.aged,ana matured for not less than four years in charred oak barrels. Neutral spirits re-'quire no aging, but may pass immediately into consumption. The maturing of the product in charred barrels modifies and. corrects its raw, biting taste. The action of the congeneric properties of the grain so retained in the liquor on each other, and the action of the charred wood on all by the lapse of years, results in a flavor, an aroma, a color, a blending of inherent constituents resulting in a beverage agreeable to the sight, to the smell, and to the taste. In neutral spirits the name signifies the character. .There is neither taste, smell, nor color, and no amount of aging in charred or un-charred barrels will change it without the addition of foreign matter. The time required for maturing whiskey, resulting in a loss of perhaps 30 per cent, in quantity by evaporation and absorption, adds greatly to the expense of making it over neutral spirits, which require no maturing and suffer no loss of quantity thereby.
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1152,11e record also shows that diluted spirits treated with artificial coloring matter and essences are not sold to the trade as such, but are always presented under such labels, terms, and descriptions as import age and maturity, and which the consumer identifies with the genuine product whiskey.
September 28, 1908: Western Distilleries v. Auast Muenter1. An application for an injunction pendente lite, in which an opposite view to that in the Union Distilling Company case2 was taken,. The court in this case held Internal Revenue Order M. 723 entirely within the provisions of section 3287 of the Revised Statutes, and that that regulation
"is entirely in harmony with what the real designation of the out—put should be; that it is in fact alcohol, and not spirits, in the sense in which those designations should be properly understood."
Reference has also been made in these proceedings to the case of Jopeph. W. _Cheeseman et al v. Meyers, a decision .of the. United States Circuit Court in Kentucky.
1. (C. C., Calif., 1908) unreported, except as T. D., Int. Rev., No. 1427.
2. (C. C., Ohio, 1908) 181 Fed. 419.
The case case was not reported. It is understood, however, that substantially the same holding was made therein as was made in the Woolner V. Rennidk case. An opinion of the Court of Appeals of the District of Columbia in the case of Levy v. Uri 1, rendered during the same period as the foregoing
decisions is also of interest. This was a trademark-interference case, in-
.,.
volving the right to a certain trademark for whiskey.  The principal contention in the case was that, because of a material misrepresentation appearing on the labels containing the mark, Uri was not properly entitled to its registration. The product involved, was a mixture of Pennsylvania rye whiskey, Kentucky rye whiskey, Kntuclily bourbon, a proportion of neutral spirits, together with prune juice, beading oil, and caramel, and was labeled "Pure Old Brookwood Rye Whiskey" and "Brookwood Pure Old Rye Whiskey".
In denying to Uri the benefits of registration under the trademark law and any property rights in the trademark involved in the-proceedings, the Court of Appeals of the District held that pure rye whiskey is a whiskey made solely from malted rye and that such a whiskey has all the congeneric:proper-ties of the grain from which it derives its name. The court held, on the other hand, that neutral spirits is a colorless liquid which, has neither flavor nor character and is not a beverage at all. The court further said:
"Appellee admits the use of neutral spirits in the mixture sold. as 'Pure Old Rye Whiskey!, but does not state the proportion used. In view of this admission, however, it is safe to assume that a substantial proportion was used. We do not think a mixture of spirits and rye whiskey a pure rye whiskey, ana we do not believe the public would so regard it. As before tated, neutral spirits is not a beverage, has none of the distinguishing characteristics of rye whiskey, and is therefore !matter of another kind!. We think it very clear that to advertise and sell a mixture containing rye and bourbon whiskeys and neutral spirits, whether containing flavoring,and coloring matter or not, as a pure rye whiskey, is grossly to deceive the public."
1. (D. C. Ct. Apps, 1908), 31 D. C. Appeals 441, 445.
D. -- The Whiskey Commission
Some time following Attorney General Bonaparte's second opinion upon the labeling of Whiskey President Roosevelt apparently appointed a commission, consisting of Secretary of Agriculture James Wilson; Dr. F. L. Dunlap, Associate Chief, Bureau of Chemistry; and Mr. John G. Capers, Chief of the Bureau of Internal Revenue.1 This commission was referred to as the, "Whiskey Commission", and presumably was appointed by the President to give further consideration to the whiskey labeling question, much dissatisfaction having been manifested against Bonaparte's opinion. . The commission reported to the President, recommending recognition of the product made from neutral
•
spirits, reduced to potable proof and colored and flavored with caramel, by the term "whiskey", or, if a qualification seem necessary, by the terms "re—distilled whiskey", "rectified whiskey", or "neutral whiskey".
However, on February 19, 1909, Attorney General Bonaparte rendered an opinion2 to the President on- this point. It appears that Dr. Dunlap, a member of the Whiskey Commission and Associate Chief of the Bureau of Chemistry, had, despite the Attorney General's earlier opinions, apparently continued to refuse to accept the rulings made in these opinions and insisted that neutral spirits diluted with water to a potable strength and colored and flavored with caramel should not be termed "Imitation 7hi5ke-j". He suggested that the use of the term on such a product should be qualified with some term which will acquaint the consumer with the nature of the product. He suggested for this purpose the terms "neutral whiskey", "redistilled whiskey", or "rectified whiskey".
The Attorney General relied upon the cases of Lev v. Uri, Woolner v. Rennick, and Union Distilling  Company V. Bettmann, set forth' above, in support of the conclusions previously reached by him.'
1. Wiley, "History of a Crime Against the Food Law", p. 118.
2. 27 Op..Atty... Gen. 202.
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E. -- Report of the British Royal Commission.
As early as 1905, before the passage of the Federal Food and Drugs Act, a controversy similar to our "What is Whiskey" controversy was taking place in England. On November 6, 1905, it reached the courts when a police magistrate in England was called upon to decide the case of Borough of
1
Islington v. Wells and Davidge . This was a criminal prosecution under the
English Sale of Food and Drugs Act (1875) for the sale of Irish and Scotch whiskey, respectively, alleged to be not of the nature, substance, and quality of Irish and Scotch whiskey.
An analysis of samples by a chemist for the borough disclosed that it "consists entirely of patent still, silent or neutral spirits. Whiskey should contain a spirit distilled in a pot still, derived from malted barley, mixed or not with unmalted barley and wheat, or either of them. Such whiskey contains at least a coefficient or total of the above-mentioned, impurities of 380 parts per 100,000 fluid parts of absolute alcohol. Patent still spir-it2 contains from 89 to 204 parts of total impurities (chemical impurities only, said the court, such as acidity, aldehydes, furfural, ethers, and higher alcohols), with an average of 140 parts per. 100,000 fluid parts of absolute alcohol." The prosecution's chemist found that pot still whiskey3 contained at least 380 parts in 100,000 fluid parts of absolute alcohol of "impurities"
1. Apparently unreported except as ipart of Bulletin No. 102, Bureau of Chemistry, p. 27.
2. Patent still spirit is what we know as practically alcohol. It
is from 65 to 69 overproof, which is approximately 188 to 194 degrees American
proof.
3, Pot still whiskey compares with the so-called straight whiskey, retaining a sufficient amount of congeneric or secondary substances.
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indicating a minimum of congeneriC substances), while the patent still, sir-it, he found, .did not_contain anything. like so large a proportion of such "impurities" or congeneric substances.
•	The prosecution.contenaed that .Irish and Scotch whiskey are different kinds of potable spirits and that they must be the result of a distillation in Ireland or Scotland by the pot still method and derived from cereal grain indigenous to Ireland ana Scotland. Irish whiskey, it was contended,.must be derived chiefly from malted barley, to which has been added smaller quantities of barley, wheat, oats, and. rye, or any of them, and Scotch whiskey must be derived, from malted barley alone. The defendant maintained that, Irish whiskey is a spirit distilled in Ireland from grain, and Scotch whiskey a spirit distilled in Scotland from grain.
The court found (1) that, until the advent of the so-called patent still, the word "whiskey" signified a spirit distilled in a form of pot still in Ireland or Scotland, generally from malted grain grown there. Since the patent still came into use, a spirit distilled in that form of still was mixed with whiskey, and such mixture was the generally accepted product. The out-put of the so-called patent still .was not generally sold unmixed, but always blended with more or less of the pot still spirit and the resulting mixture sold as whiskey. The court further found (2) that the patent still spirit alone is not "whiskey", nor can it be Irish or Scotch whiskey, althuugh made in Ireland. and Scotland. The court also found (3) from the evidence before it that a mixture of patent still spirit with a.considerable proportion of pot still spirit or whiskey had long been sold to and accepted
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by the public in immense and increasincg auc.ntities as whiskey, although the court did not decide whether or not such mixture properly could be called "whiskey", since the issue was not involved in the case. . The court also found that (4) an .Irish or Scotch whiskey must be a product of the pot still, and the materials used in the manufacture of Irish whiskey should be barley malt (about 75) and barley, wheat, *oats, and rye, or any of them, and in the case of Scotch whiskey, the mash should be wholly barley malt.
Finally. the court found. (5) that the defendant sold as Irish and. Scotch whiskey, respectively, a patent still spirit to which had been added a dash of genuine Irish and Scotch whiskey (there was a conflict in the testimony which showed that the prosecttion!s ch.:LT.-list's conclusion that
the somples were ..-ntirely of patent still produce was	.eror), (6) that. the,oa:olucts sold bAthe defendant were not Scotch o/ Trisl. whiskey, and (7) that the sale of these products as Irish or Scotch whiskey was to the prejufice of the purchaser.
In its opinion, the court made the following observations:
"I have no doubt that the medicinal value of Irish or Scotch whiskey, with their larger proportion of Fo-called 'impurities', is greater than that of spirit from the patent still which does not contain 'impurities' in nearly so large a proportion. Irish and Scotch whiskey, on the one hand, and patent still spirit with little whiskey added, on the other hand, are two very different articles. They differ in their contents, in their flavors, and in their scents. * * * Misrepresentation with regard to Irish and Scotch whiskey has become very usual, and its adulteration by the addition to it of patent still spirit, made largely from maize, has, been gradually increasing for years, and the result has been
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traen by the unsuspecting public to the benefit of
the distillers, dealers, and retailers, until the
so-called blenders have dared .to concoct and place
upon the market and sell to the retailers raw, new
patent still spirit with a mere dash of Irish or
Scotch whiskey in it as Irish Whiskey', 'Scotch
Whiskey'. * * * It is time the fraud upon the
public in the matter of the sale of whiskey was
stopped."
An appeal from this case to an upper court was taken, and the lower court sustained by a tie vote. This case led to considerable agitation andprob-ably resulted in the appointment of the Royal Commission on. Whiskey and Other Potable Spirits'. It is also quite likely, becaus6.of the appointment of this Royal Commission, that no further appeal was made in the. Borouj;h of Islington case.
The British Royal Commission on Whiskey and 02.e:' Potable Spirits,
was appointed by the King to consider3:	•
1. Whether, in the general interest of the consumer, or in the
interest of the public health, or otherwise, it• is desirable --
(a) To place restrictions upon the materials or the processes which may be used. in the laan-c_factulre or preparation in the United. Kingdom of Scotch Tniskey, Irish Whiskey, or any spirit to which the term whiskey may be applied as a trade description;
1. See page 14, Vol. 1, Minutes of Evidence taken before the Royal Commission.
2. SL:e Question 440, page 16, Vol. 1, Minutes of Evidence taken before the Royal Commission.
3, Vol. II, Report of Royal Commission on Whiskey and. Other Potable Spirits,
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(b) To require declarations to be made as to the materials, processes of manufacture or preparation, or age of any such spirit;
(c) To require a minimum period during which any such spirit should be matured in bond; and
(d) To extend any requirements of the kind men-tiol-Ltd ir the two subdivisions immediately preceding to any such spirit imported into the United Kinzdon.
2. By what means, if it be found desirable that any such restrictions, declarations or period should be prescribed, a uniform practice in this respect may be satisfactorily secured.
The issues before the Royal Commission seems substantially to be the same matters at issue in the American controversy over the question of what is whiskey. The respective contentions before the Royal Commission may be summarized as follows:
That the pot still process is a simple, natural, and original method of distillation;
That in the early days of whiskey manufacture, all whiskey was made by this process, no other process being known;
That the patent still process, on the other hLnd, is of comparatively recent origin;
That it was not at first intended for the manufacture of "whiskey" exclusively, but for the production of "spirit";
And, lastly, it was contended that the public do not regard the product of the patent still as whiskey, and when they ask for "whiskey", expect to be supplied with the pot still product only.
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 •
Mainst this, it was urged that the patent still (patent still spirits compare in physical prqerties with our neutral spirl.ts1) represents an evolution from the primitive pot still; that since 1831 the patent still had been used for the manufacture of what had been recognized both by the trade and the public as whiskey; that, in certain districts of the United Kingdom, patent still spirit by itself is bought and sold as whiskey; and that the great proportion of the whiskey consumed in the United. Kingdom omported abroad is a blend of pot and. patent still spirit.
An interim report of the Royal Commission was rendered. June 24,
2
1908.	In this interim report, the commission stated --
"That the term 'whiskey' having been reco(7,11ized in the past as applicable to a potable spirit manufactured. from. (1)nclt, or (2) malt and unmalted barley or other cereals, the application of the term 'whiskey' should not be denied to the product manufactured from such mate-zials."
The Royal Commission in its final report rendered. July 28, 1909, upon the entire subject, reached the following conclusions:3
1. Testimony of Dr. Dunlap in the Proceeaings Concerning the Meaning of the Term "1711i&cey" (1909) p. 826.
2, Vol. I. Report of the Roy^.1 Comnissionon Whiskey Lnd Other Potable Spirits, p. 3.
3.	Vol. I. Report of :the Royal ComIgssioh, p. 21.
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"The spirit which is produced and. sold to the public in the
United. Kingdom at the present time under the name of whiskey is distilled in various kinds of apparatus which may be broadly classified as pot and. patent stills. The former are used in the manufacture of whiskeys with special and pronounced characteristics r. the matter of flavour and taste. They vary inter se, those used in Ireland. for the distillation of a fermented. wort, derived from malt and. unmalted barley, rye and. oats; differing, for enample, in some respects from those used in Scotland for the distillation of worts obtained solely from malt. The patent still, as applied to the production of whiskey in this country, is used for the distillation of fermented. worts derived from.various cereals, principally maize, with the addition of a proportion of . malt. It is adapted. for the economical production from such. materials of whiskeys which in general have less of the pronounced. characteristics above referred to.
"The evidence which we received above shows that such spirits (Note: referring to patent still spirits) have been frequently described. as Iwhisli..ey1 by distillers and traders since the patent still came into use; and that for many years a section of the public, particularly in parts of Scotland and. Ireland, has recognized patent still spirit without admixture under the name of whiskey, and. has purchased it as whiskey, no attempt being made by distillers or vendors to conceal the method. of distillation. Moreover, spirit produced in the patent still, as we have 'shown, has long been employed .for blending with or diluting whiskeys of different character and distilled, in different forms of still. This has been by far its largest use, and. most of the whiskey now sold in the United Kingdom contains in greater or less degree spirit which has been obtained by patent still distillation.
"Again, apart from the fact that pot stills differ so much that a comprehensive legal definition would be difficult to frame without either excluding certain types of still which are now commonly recognized as pot stills, or including other types which are not now looked. upon as legitimate variations of the pot still, there are strong objections to hampering the development of an industry by stereotyping particular forms of apparatus.
"Finally, we have received no evidence to show that the form of still has any necessary relation to the wholesomeness of the spirit produced.
"For thee reasons we aretunable to recommend that. the use of the word 'whiskey' should be restricted to spirit manufactured by the pot still process."
The Royal. Royal. Commission seems to have relied to a considerable ex—
•••
tent in its consideration of this controversy upon the investi,f;ation and conclusions of a Select Committee on British and. Foreign Spirits which was appointed by the House of Commons in 1890. This committee was appointed to consider
"whether, on grounds of public health, it is desirable that certain classes of spirits, British and. foreign, should be kept, in bond for a definite period before they are allowed to pass into consumption, and to inquire into the. system of blending British and foreign spirits in or out of bond, and into the propriety of applying the Sale of Food and Drugs Acts and the Merchandise Marks Act to the case of British and foreign spirits and mixtures of British and foreign spirits, end also into the sale of ether as an intoxicant."
The following excerpt from the report df the committee may be of some general interest as bearing upon the matter under. consideration:
"Some witnesses desire to define whiskey as the spirit made in pot stills, and would deny that name to spirits made in patent stills, even though the proportions of malt and grain used in the production might be the some in both. Some of the distillers from malt desired that their whiskey should be called !malt whiskeyi though the general name !whiskey! might be extended to those who mix malt with grain. On the other hand, certain distillers in Belfast and Scotland urged that spirits distilled in patent stills from malt and grain were entitled to be considered. as whiskey; that they are used. sometimes as such directly, and are now largely euployed in blending pot still whiskey. They cave evidence that there was increased demand for whiskey of a milder kind., and. that blends of pot still and patent still whiskey were in large demand by the consumers, who thus obtained a cheaper and a milder whiskey containing a smaller quantity of fusel oil and other by—products.
"Your Committee do not attempt a legal definition of whiskey.
They would refer to the evidence of Dr. Pavy for. a general
and. useful definition of spirits of various kinds, but this
is too general for a legal definition. Whiskey is certainly
a spirit consisting of alcohol and. water, with a small quantity
1. Vol. I of the Report of the Royal Commission on Whiskey and Other Potable Spirits, p. 3.
of by-products coming from malt Or grain, which give to it a peculiar taste and aroma. It may be diluted with a certain quantity of water without ceasing to be whiskey, and. it may be diluted with spirits containing little of the by-products to suit the pocket and palate of customers, and .it still • goes by the popular name of whiskey. Your Committee are unable to restrict the use of the name as long.as the spirits added are pure and contain no noxious ingredients.
* * *
"The blending or mixing of different kinds of spirits, chiefly whiskey, has now become a large trade. From 13 to 14 million gallons are operated upon in warehouses in this way. It is stated that public taste requires whiskey of less marked characteristics th,q,n formerly, and to gratify this desire various blends are r.v.tde, either by the mixture of pot still products, or by the addition of silent spirits from the patent stills. In the lat.:.;er case cheapness is often the purpose of the blend, but it is also stated that it incorporates the mix ture of several whiskeys more efficiently. The blends, even when made from olO. spirits of various kinds, are frequently kept in bond for a considerable time, although, in other cases, they enter into consumption soon after the mixture, according to the requirements or the convenience of the dealers. Foreign spirits are not allowed to be mixed. with British spirits in bond., except for exptrtt?.ti9n, andweven.,whet .rY.uty pid seeth.to be little used for this pv.rpose. British and Irish patent spirits are largely ,used in blending, those kinds being preferred which contain byproducts of distillation. They are purchased. for this purpose by vendors and are not necessarily blended in bond.
"Some witnesses were of opinion that patent spirits should not be allowed to be blended with pot still products, but they admitted that this restriction could only be applied in bond, as the mixture could be made after payment of duties, and, could not be detected by any chemical means. On the other hand, the Scotch and. Belfast distirlers, who make both pot still and patent still spirits, state that a large induStry would be destroyed if any restrictions of this nature were put on their trade.
"Your Committee do not recommend any increased, restrictions on blending spirits. The trade has now assumed large proportions, and it isjthe object..Of .:1-116zding to meet the tastes and wants of the public, both in regard to quality and prices; The addition of patent still.. spirits, even when it contains .a very small amount of by-products, may be viewed. rather as a dilution than an adulteration, and, as in the case of the addition of water, is a legal act within the limits of strength regulating the sale of spirits."
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III. -- THE MATT DECISION
.A..	-- The Executive Order
On April 8, 1909, President Taft, by Executive Order, directed that the Solicitor General hear testimony on the whiskey controversy and render an opinion thereon to the President. The text of the Executive Order is as follows:
"A number of distillers and importers of spirits and whiskey, represented by Lawrence Maxwell, Esq., Hon. Joseph H. Choate, Alfred Luck in, Warwick. M. HouGh, and Hon. 71. 7. Arms tiong, having appealed to the. President for a hearing with respect to the order issucd y the Commissioner of Internal Revenue, known as Order No, ?23, pursuant to the rules and regulations for the enforcamen of the Food and DruEs Act and rood Inspection Decision No. 65, pronulgated and made by the Secretary of 4Gricu1ture under date of May 14, 1908, claiming that the pro.-visions of said ordar are in violation of the terms of the said act in that tly require to be branded as imitations or compounds, or °the:wise, whiskies which have well-settled names in the trade, and which it was not the intention of Conrs gress by the said. Food and Drugs Act to require to be described by any other designation; and certain distillers of whiskey having appeared by Edmund. W. Taylor and the Hon. John G. Carlisle, after consideration the matter is hereby referred to Hon. Lloyd. W. Bowers, Solicitor General of the United States, to take testi-moTarl report to the President his opinion upon the following points, namely:
. What was the article called whiskey ass known (1) to the manufacturers, (2) to the trade, and (3) to the consumers at and prior to the date of the passage of the pure food law?
"II. That did the term whiskey include?
"III. 17as there included in the term whiskey ay maximum or minim= of congeneric substances as necessary in order that distilled spirits should be properly designated whiskey.
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"IV. Was there any abuse in the application of the term whiskey to articles not properly falling within the definition of that term at and prior to the passage of the pure food law, which it was the intention of Congress to correct by the provisions of that act?
"V. Is the term whiskey as a drug applicable to a different product than whiskey as a beverage? If so, in what particulars?
"The Solicitor General will from time to time determine the extent and character of the hearing and will report with his opinion the evidence taken by him pursu4nt hereto.
(No. 1061)
April 8, 1909.	William H. Taft
E. - Hearing and Testimony
Pursuant to directions of the President, Solicitor General Bowers on April 8, 1909, began hearing testimony and arguments of various contenders and government officials as to the issues presented i..-. President Taft's
Executive Order. These proceedings lasted throw;h May	1909. No attempt
is made at this point to digest the testimony presented. It is, however, in effect summarized in the exceptions to the report made by the Solicitor General and later discussed. However, the conclusions of certain witnesses from the Department of Agriculture are set forth, particularly those of Dr. Wiley, who appears to have been the moving figure in the fight for recognition of straight whiskey solely as the article properly entitled to be sold as whiF_Ikey.
Dr. Wiley was at the time Chief of the Bureau of Chemistry, United States Department of Agriculture, and charged with the aaministrati9n of the Food and Drugs Act. Dr. Wiley expressed the view that the term "whiskey" to the trade and consumer embraced the idea that whiskey was a distillate of
grain containing containing the distinctive properties derived from the grain itself (which are pi.oduced during fermentation and which pass over at the ordinary temperatures of distillation) and containing in addition those substances which arime during storage by chemical changes in the original constituents and which are added to the whiskey by the extracts coming from the packagel; that the consumer regarded a certain content of secondary products (congeneric substances) necessary to constitute whiskey, and age also as essential, the older the better; that the consumer never had regarded neutral spirits colored and flavored and reduced to potable strength, as whiskey.
Expressing his opinion as a chemist, and also expressing the consensus of opinion of chemists in general, Dr. Wiley stated that neutral spirits diluted to potable strength and colored and flavored was not whiskey, never had been Whiskey, and never would be, because it dlffered from genuine whiskey in that it lacked the substances derived from grain which are produced as congeners during fermentation and which pass over with the distillate at the ordinary temperature of distillation at which whiskey is made and which gives to the product those organoleptic (taste, odor, smell, etc.) properties which are recognized as whiskey.
1. Proceedings Concerning the Meaning of the Term "Whiskey" (1909) pp. p36-8.
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•-
The same conclusion was expressed by Mr. L. M. Tolman, then
1
Chief of the Food-Inspection Laboratory, Bureau of Chemistry .
Dr. Frederick L. Dunlap, Associate Chief of the Bureau of Chemistry, United States Department of Agriculture, expressed views diametrically opposed2 to those of Dr. Wiley and Tolman. Drs. Wiley and Dunlap, together with Tolman, apparently were the only government representatives heard by the Solicitor General. Dr. Dunlap .reached the conclusion that neutral spirits diluted with water to a potable strength and colored and flavored was whiskey. He also expressqd the view that a neutral spirit which is diluted to a potable strength is as much entitled to the name "whiskey" as the so-called "straight whiskey" was before it received color and flavor from the charred packages3.
Warwick M. Hough presented at the hearing the principal argument on behalf of the continuous distillers and blenders. His contention was that the product made from neutral spirits, colored and flavored with caramel and reduced to potable strength, had always been
1. Proceedings Concerning the Meaning o± the Term "Whiskey" (1909) pp. 761-800.
2. Proceedings Concerning the Meaning of the Term "Whiskey" (1909)
p. 822. 	3. Proceedings Concerning the Meaning of the Term "Whiskey" (1909)
p. 823. 	
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known to the trade and to consumers as whiskey, whether unmixed -or blended with the so-called straiga or genuine whiskey. He argued as a secondary proposition that certain statutes and Internal Revenue regulations had been enacted at the instance of the so-called straight whiskey people, solely in recognition of the views of that group that the neutral spirit product, reduced to potable strength and colored and flavored with caramel, was whiskey.:'
For a better understanding of this portion of Houghs argument, it is necessary to point out that apparently nt;earlier periods distillers. produced only the first product of distillation, or probably what would be called "high wines". This product of the first distillation by distillers was bought up by the so-called "rectifiers" or "compounders", -alio took it to their rectifying plants, where it was treated by leaching through charcoal to eliminate as much as possible the fusel oil and other impurities which characterized these spirits. If more elimination of these objectionable ingredients was necessary, the rectifiers redistilled it, which produced a high-proof spirit as free of impurities as it was possible at that time to make it. This product, made either by leaching or redistillation, or both processes, reduced to potable proof by the addition of water and colored and flavored, was the product (so Hough argued) which was known as "whiskey". He charged that the Internal Revenue laws and regulations recognized that only the product of the rectifier or compounder, rather than of the distiller, was thd finished article which was to be known as "whiskey".
1. Proceedings Concerning the Meaning of the Term "Whiskey" (1909) closing argument of Hough, pp. 1041 - 1051, opening argument of Hough, pp. 44-9.
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At that time, there were no distillers' warehouses in which they kept their first distillation product a number of years foraging and. transformation and elimination by time of these objectionable impurities.
The distiller paid the tax upon the article before it went to the rectifier, and it appears that the rectifiers, in subjecting the spirits so acquired from the distiller to the leaching or purifying process, or by a separate process of distillation, lost from three to five per cent of the volume, -a loss which they had to stand, inasmuch as they had already tax paid on the amount at the time they acquired it from the distiller. The rectifiers objected to this, on the ground that "it is necessary to take that thing out in order to make the finished, product" (referring to fusel oil and other so-called impurities). This id to an attempt to change the procedure in removing the raw product from the premises of the distiller to the premises of the rectifier, but apparently the changes made possible certain frauds upon the revenue. The Bureau of Internal Revenue 'decided that thG best thing to do was to permit the distillers who wanted to produce that kind of whiskey to unite in one process, on the distillery premises, the two processes that previously had been carried on by the rectifiers (leaching through charcoal or redistillation, or both), This was first permitted by regulation, but, as it required the expenditure of large amounts for new equipment and machinery, the distillers -apparently were unwilling to rely upon a regulation, and so in 1872 an Act of Congress was passed permitting distillers to manufacture whiskey by a process of contin-
uous distillation.1
1. Section 13, Act of Congress, June 6, 1072, 17 Stat. 244, which reads in part "that nothing in this section shall be held to prohibit the purifying or refining of spirits in the course of original and continuous distillation through any material which will not remain incorporated with such spirits when the manufacture thereof is complete."
64
•	As to this process of continuous distillation ,put through by distillers, Hough, in his closing argument -before the Solicitor General, had. this to say1:
THE SOLICITOR-GENEPAL. What was the date of the statute that first adopted it?
"MIL HOUGH. 1872; but a large number of the wealthy distillers of the country were unwilling to invest their capital, in .machinery of this character when the right so to do was based only upon a regulation of the Comiaissioner of Internal Revenue; and so the regulation permitting that process to be carried on by the continuous system was not taken advantage of to the extent which it was desired by the revenue department it should be. They insisted that they should have the sanction of an act of Congress, and that sanction was obtained in 1872, and then millions of dollars commenced to be invested in that kind, of machinery, solely upon the understanding that the article so produced by that process could be used by the rectifier or the distiller in making this whiskey. Would one dollar have been invested if at that time it was suggested that the article was not whiskey? Would one step of that importance have been taken if it was suggested at that time that that thing could not be regarded as whiskey, because .it accomplished the very thing which it was the purpose of the process to accomplish, which was the elimination, as far as possible, of these congenerics? Certainly not."
As indicated above, prior to this time there was no provision for the bonding of liquors or the stora-7e of whiskey in charred barrels in distillers' warehouses for the purpose of enabling it to improve with time and aging. That permission came shortly afterward, but when that law was passed there was no provision for distillers to be excused. from the payment of the tax upon what had been lost by evaporation during the storage period. They were required to pay a tax upon the number of gallons originally put into the barrels. Hough argued that Mr. Carlisle (who represented the straight whiskey
1. Proceedings Concerning the Meaning of the Term "Whiskey" (1909) p. 1048.
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group, but who in 1880 was in Congress), at the solicitation of.theKentucky distillers, introduced a bill in .Congress, the purpose of which was to exhi case the distiller who mad.e'sle—called straight whiskey from .being required to pay the tax on the amount lost by evaporation during the period of storage. Carlisle and the KetiicIr distillers, in arguing for the bill for the allow—ance of this loss by evaporation or outage, maintained, that the makers of the continuous distillation whiskey already had the benefit of an outage, since, by the process of continuous distillation, they were able to eliminate these impurities, and that, accordingly, when taxed upon the whole quantity after rv-rufacture, the outage or evaporation caused by the elimination of the impurities had been accounted for. The straight whiskey manufacturers, on the other hand, they argued., had not been given the same privilege of an al—lowance for evaporation or so—called outage, since, by being taxed on the quantity when first put into the barrels prior to storage, they were being taxed for a loss of three to five per cent,.occasioned by the elimination in storage of these so—called impurities.1
The bill was passed permitting an outage allowance to those distil—lers who stored straight whiskey in warehouses for aging and the elimination of irr.purities.2
1. See the interesting debate on the bill when it was in the House, in which. President Garfield, then in the House of Representatives, argued against the outage allowance. Proceedings Concerning the Meaning of the Term uniskey" (1909) pp. 45-9.
2. Act of Congress May 28, 1880, 21 Stat. 149.
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As to this outage bill and the contentions of the Kentucky distil-
1
lers, Hough said :
" * * * And upon what ground was that contention based? Upon what ground was that claim urged. that he should be .excused? Solely upon the ground that this product of the continuous still was whiskey. If it was not whiskey there
wa••no 'reason why he should have that allowance	no • less a man than President Garfield, then a member of the 'House of Representatives, stated to the members of the House (and his opinions were confirmed by Mr. Carlisle and Mr. Butterworth and. Mr. Mills and other people, indicative of the common 71=0.e.rstanding in those days) that this product of the continuous still was whiskey. It was not an:imita-tion whiskey, nor an imitation of whiskey, nor an imitation of Bourbon whiskey, nor an imitation of any particular kind of whiskey, but it was whiskey with which they had to compete, and. it constituted from two-thirds to three-fourths, according to Mr. Carlisle, of all the whiskey which was then on the market.
"What difference does it make whether they had a little more or a little less of the congenerics taken out by that process than were taken out when the two processes were separated? It makes no particle of difference. It was common understanding at that time that it was whiskey, just as it was common understanding in 1851 and 1857, and at all times prior to the war, that the rectification or the elimination of these secondary products.as far as possible did produce a whiskey. The question as to the extent of the rectification has not been raised. until this controversy. Does not that establish the proposition, your honor, that in the public estimation that thing was whiskey in 1880? Can stronger confirmation be pointed out, or would it be possible to have stronger confirmation of the popular intelligence at that time, than that statement by these learned gentlemen in Congress that that substance was whiskey? And that means that beyond their recollection it was whiskey, Upon the claim and. contention that it was whiskey this allowance was given to the Kentucky distillers, and no question was ever raised as to its not being whiskey until, we will say, after 1899."
C. - 0:21.nion By Solicitor General Bowers
The answers and controlling reasons for those answers given by
Solicitor General Bowers in his opinion of May 24, 19092, in response to the
. 1. Proceedings Concerning the Meaning of the Term "Whiskey" (1909) p. 1050..
2. Reported in Gwinn, Federal Food and. Drugs Act and Decisions (1914) p. 818.
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questions propounded to him inPresident Taft's Executive Order set forth above, are as follows:
I. The article called, whiskey as known to the manufacturers, trade, and consumers at and prior to the date of passage of the Food and Drugs Act included:
1. "StraiEht whiskey!' made from grain.
••
2. "Rectified whiskey" made from grain when not a mere neutral spirit.
3. Ainixture of straiht whiskies, or of rectified whiskies, or of straight whiskey and rectified whiskey, or of
straight whiskey and what is often known as neutral spirit (made from grain), or o.f rectified whiskey and such neutral spirit (made from grain), or of straight whiskey, rectified whiskey and such neutral spirit (made from grain), if in the particular case the mixture satisfied the description of whiskey given below in answer to question II.
Neutral spirits distilled from grain, 'but lacking a substantial amount of by-products, was known to. manufacturers as whiskey only when colored and flavored and sold to retailers and was not so known in the dealings of distillers, rectifiers, and wholesalers. Neutral spirits when colored and flavored was generally known to the trade as whiskey but was not so known to retailers, because they were not aware the product was neutral. spirits. Neutral spirits, whether or not colored and flavored, was not known to consumers as whiskey. Neutral spirits made from other than grain was found izot to have been known to the trade or consumers as whiskey and to have been known to manufacturers as whiskey only .in rare cases.
The. Solicitor General was of the opinion the terms alcohol and whiskey were not used synonymously and that if consumers and retailers had accepted neutral spirits as whiskey, it had not been consciously done. It was found that two things upon which the public was most united, were that whiskey must
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.	1.
be made from grain and that it had capacity far improving with aging. It was found that in the case of neutral spirits, mixed with whiskey, the public had for at least thirty .years accepted such mixture as whiskey, knowing it to be a mixture. The addition of alcohol to whiskey resulted only in increasing the al:lc:unt of one of the constituents present in whiskey, and so long as a substantial amount of by-products was present, the proauct was Intitled to
•.
the name whiskey.
II. :The tarn whiskey was found to include the spirituous liquor com-
posed of -
(1) alcohol derived by distillation from grain; (2) a substantial amount of by-products (often spoken of as congeners) likewise derived by distillation from grain and giving distinctive flavor and properties; (3) water sufficient without unreasonable .dilution, to make the article potable;
1' (4) in some cases	tliough such addition is not essential -- hornless coloring or flavoring matter, or both, in amount not materially affecting other qualities of whiskey than its color or flavor.1
Neutral spirits lacking a substantial amount of by-products and spirits derived from other than grain were found not to be whiskey. By-products were considered essential in order to give to Whiskey distinctive flavor and properties. It was found that throughout the history of whiskey making, harmless flavor and coloring had been used and that the addition of such matter did not alter the character of whiskey unless it unduly diluted it.
III. It was found that there was a minimum of c9ngenerics required in whiskey, but no maximum except as potability might demand. The minimum was such quantity as would give distinctive flavor and proljel'ties differentiating, the product from alcohol or other distilled spirits:
1. Gwinn, Federal Food & Drags J.ct and. Decisions (1914) p. 820.
IV. It It was found that there had been abuses in application of the term whiskey prior to the Food and. Drugs Act which it was the intention of Congress to correct. Those abuses were in applying the term whiskey to spirits from other than grain, to mixtures of such spirits with whiskey, and to neutral spirits or mixtures of neutral spirits with whiskey which did not comply with the definition in answer to question II.
V. It was found that the term whiskey as a beverage did not refer to a different product from whiskey as a drug. The public made no distinction between the two. The particular requirements of the United States Pharmacopoeia as to age, specific gravity, acidity, etc., were held to be merely distinctions between superior and inferior whiskey.-
D. — Exceptions to Solicitor General's Opinion
The exceptors to the report and opinion of Solicitor General Bowers fall roughly into three groups. By this it is not meant that all of the exceptors in each group represented the same interest, but that the particulars in which they disagreed with the findings of Solicitor Genaral Bowers were essentially the same. The groups are as follows:
First. The group who contended that the Solicitor General was in error in holding that the neutral spirits which might be mixed with straight whiskey in the production of blended whiskey, mist necessarily be neutral spirits distilled from a fermented mash of grain. The primary contention of this group was, of course, that blended whiskey might be made by blending whiskey with neutral spirits without regard to the material from which the neutral spirits was distilled. Those who presented these exceptions to the
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President were representatives solely of what may be termed the "cane spirits interest".
Second; The:group which contended that the Solicitor General was in error in finding that, the ter7a "whiskey" miht properly be applied to a mixture domposed of.straiglIt whiskey and neutral spirits. The contention of this gr6uli -/a.s that the term "whiskey" could, under the Food and. Drugs Act, be properly applied only to that product known as straight whiskey. One of the exceptors in this group appears (although his contention is not clear from the brief) to contend that the Solicitor General was in error in not laying down the pharmacopoeia standard for whiskey insofar, at least, as whiskey as a drug was concerned. Included in this group is the Association of State and National Food and. Dairy Departments and the Association of Official Agricultural Chemists, who advanced the contention that the standard which they had. adopted for whiskey, to wit, straight whiskey, shoula have been found by the Solicitor General to be the correct standard. The contention of this group was that the term "whiskey" was properly applicable only to straight whiskey.
Third. The group which contended that the Solicitor General was in error in finding that the term "whiskey" was not properly applicable to neutral spirits diluted by water alone to potable proof, and who further contended that there was error in finding that whiskey must contain a substantial amount •of by-products giving distinct flavLi and. properties. The interests represented by this group were what was then lalown,as "continuous distillers" and blenders. The continuous distillers produced their product by the dilution of neutral spirits with water and adding thereto coloring and flavoring materials.
•
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A detailed list of the exceptions taken by the various groups and the arguments by which they expected to sustain those exceptions follow
"Cane Spirits" Group: 
1. Exceptions. -- That the Solicitor Genera' erred. in said report in holding that neutral spirits used in making whiskey must be made from grain (Brief of Michigan Chemical Company, page 1; Brief on behalf of Columbus, Distilling Comp6my, page 29).
Argument to sustain exception.	Neutral spirits is simply ethyl alcohol which has been produced by refining and redis-• tilling so as practically to remove all the congeners and is the same article whether produced from molasses or grain, in fact they are identical whatever their origin. The chemists who testified before the Solicitor General testified that the characteristics of neutral spirits were the same whatever source the neutral spirits were derived from, and that the source from which made could be determined neither by the taste, the smell, nor a chemical analysis of the product.
2. Exception. -- The Solicitor General erred in holding that the spirits derived from any other substances than grain was not at or prior to the date of passage of the Pure YOod Law, and .has not since, been whiskey; and a mixture of the whiskey with such spirit has not at or prior to the passage .of the Pure Food. Law, and has not since, been whiskey (Brief of the. Western Distilleries, page 1; Brief of the Columbus Distilling Coppany, .page 30).
Argument to sustain exception. -- Large quantities (100,000,000 gallons) of neutral spirits derived from molasses have been sold to rectifiers for the purpose of rectifying whiskies. Forty wholesale liquor dealers and rectifiers haa made an affidavit to the effect that neutral spirits made from molasses was in every respect equal to or superior to neutral spirits made, from grain ,in the blending of whiskey, and that such a blend was commercially known as whiskey and accepted by the entire trade as such. The Internal Revenue Laws have never drawn any distinction between the use of neutral spirits made from grain and neutral spirits made from Whiskey in the blending of whiskey.
3. Exception. -- The Solicitor General .erred in holding that one of the abuses that Congress intended, to correct by .tile Pure Food Law was the application of the term "Whiskey" to a mixture of whis-
1. Page references are to Briefs filed on exceptions to the Solicitor Generals report.
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key with spirits (i.e., ethyl alcohol) derived from molasses (Brief of Columbus Distilling Company, page 30).
Argument to sustain exception. -- None urged..
4. Exception. -- The Solicitor General erred in holding that neutral .SpiritS'derived from grain could be compounded with whiskey and tie resulting mixture designated. as "whiskey11,. while holding on the other hand that a mixture of whiskey and neutral spirits derived from molasses could not be designated as "whiskey" (Brief of Columbus Distilling Company, page 30).
Argument to sustain exception. -- Same as under 1 above.
"Straight Whiskey" Group:
Distillers of Straight Whiskey -
1. The report errs in that it does not give due consideration to the provision of the Pure Food.Law which is. mandatory as to what constitutes adulteration and misbranding, and under which an article of food or drink is adulterated if it be colored in a manner whereby inferiority is concealed. Sufficient recognition is not given to the difference between color which is the result of age and that which conceals inferiority and tends to deceive the public (Brief of Whiskey Distilleries in Pennsylvania, Ohio, Kentucky and Maryland, and. Wholesale and Retail dealers in various parts of the United. States, pages  50, 52, and 53).
Argument to sustain exception. -- The evidence before the Solicitor General shows that artificial coloring was used to conceal the inferiority resulting from the substitution of neutral spirits and whiskey either in whole or in part. Judgments of condemnation have been rendered against products artificially colored, on the ground that such coloring concealed inferiority and imitated old, matured whiskey.
2. Exception. -- The report errs in holding that whiskey may have mixed with it neutral spirits, an unlike substance, and still retain the single name "whiskey"; since neutral.spirits being an entirel:-/ different article, such mixture should, under the Pure Food Law, be labeled as a compound; and further, since there was no evidence that consumers understood that what they were sometimes buying as whiskey.was whiskey to .which neutral. spirits had been added (Brief of Whiskey Distillers in Pennsyl-
vania . .	. 'pages 50, 52, and. 53).
Argument to sustain exception. -- The Federal Courts and the President had previously held that whiskey and neutral spirits are not 'like substances" and could not therefore be labeled as
"blended. whiskey". whiskey". The debate in Congress during consideration of the Pure Food Law showed that the word "blend" as applied to whiskey was. intended to apply to a blend of two or more similar hinds of whiskey, and this position was later sustained by the States in their standards.
3. Exception. -- The report errs in construing certain federal decisions and the English case of i'Borough of Islington vs. Wells and Daviage" to hold that neutral spirits may be mixed with whiskey and the resulting product labeled as 2ffhis-hey (Brief of Pennsylvania Distillers, page 51).
Argument to sustain exception..	That the point was not involved in any of the cases.
4.. Exception. -- The report errs in holding that Congress aid not intend by the Pure Food. Law to correct the abuse of mixing neutral spirits with whiskey (Brief of Pennsylvania Distillers, page 53).
Aroament to sustain exception. -- No specific argument to sustain found.
"Pharmacopoeia Standard" Adherent (Duffy Malt Whiskey Company) --
This company appears to take no specific exception to the report of the Solicitor General. However, it points out that the Solicitor General prescribed that there must be a minimum of by-prod-o.cts present in whiskey, but did not fix a maximum of by-products such as is laid down by the pharmacopoeia. The company points out that certain of the samples of straight whiskey and bottled-in-bond whiskey produced at the hearing contain such an excess quantity of by-products that they did not comply with the pharmacopoeia standard for whiskey. The company contended that if the President was going to promulgate a standard for whiskey as a drug, it should be the standard prescribed in the pharmacopoeia, since that standard was clearly designated by sections 6 and 7 of. the Food and. Drugs Act. (Brief of Duffy Malt Whiskey Company.)
Association of State and. National Food and Dairy Departments and the Association of Official Agricultural Chemists --
1. Exception. -- The Solicitor General erred in finding that neutral spirits mixed with straight. whiskey had, as a matter of fact,. been accepted by the. public as whikey for a period of not less than thirty. years .an, hence it was entitled to the name .whiskey (Brief, page 18).
•	.Argument to sustain exception. -- The Solicitor General's opinj.onwas not based upon competent evidence of consumers, but was rather.the result of a process of inference. The facts developed by the Association's incidiry showed that no consumers
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had. mixed straight whiskey and neutral spirits and. 'considered such product whiskey, nor had .he labels of mixed straight whiskey and. neutra; spirits contained statements which would justify the conclusion that consumers had bought such products knowingly.
2. Exception. -- The Solicitor General was in error in finding that straight whiskey plus alcohol was on theoretical grounds whiskey (Brief, page 20).
AxE;ument to sustain exception. -- That whiskey to which neutral spirits had. been added could, under sections 7 and 8 of the Pure Food. Law, only be labeled as " compound" or imitation". The argument of the Solicitor ' General that the dilution of straight whiskey with neutral spirits was similar to the reduction o straight whiskey to proof by the addition of. distilled water was not valid_ since the first dilution would result in a dilution not only of the congeners, but also of the flavoring and coloring.
3. Exception. -- The Solicitor Gelieral wa's in error in finding that the coloring and flavoring by addition of extraneous matter was not illegitimate (Brief, page 26). -
Argument to sustain exception. -- The addition of caramel coloring came within the ban of Section 7 of the Pure Food. Law in that it was a coloring to conceal damage or inferiority. Decisions of the Federal Courts had established that caramel coloring was used to imitate age. The U. S. P. provided that color should be obtained through aging.
"Continuous Distillers" and. Blenders Group:
"Continuous Distillers" --
1. Exception. -- If the Solicitor General meant to so find, he was in error in finding that neutral spirits reduced to potable proof is not whiskey (Brief of Continuous Distillers, page 2),
Argument to sustain exception. -- Thiskey made by continuous processes had been known as whiskey for thirty years and whiskey as highly refined as that made by the continuous processes and containing no greater amount of congeners had been known as whiskey for more than fifty years. Congress had by the Internal Revenue Act of April 10, 1869, recognized that continuous distillation was a substitute for redistillation. Ne.p.tral spirits as produced by continuous distillation frequently contained as mariy congeners as were present in straight whiskey and the product had the capacity to change by aging in wood. The continuous processes did not elitlnate anything of value and added nothing deleterious. The product produce4.1)ythe continuous processes, since identical with that produced by .redistillation, could, properly be designated as "redistilled whiskey".
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Hiram Walker Company --
.
Hiram Walker contended that its position was essentially different from that of other "continuous.distilers"; in that its product, .Canaclian Club Whiskey, was produced. by the blending of two distillates, one of which was distilled, in such a i?anner as to retain the grain flavors and unavoidable fusel ail, while the other had eliminated from it all fusel oil and . practically all flavors. The resultin blend was matured for the full period indicated on the labels and thus differed from those Products made by the addition of new neutral spirits to matured straight whiskey or ..tose products produced by the mere dilution of new neutral spirits. However, the company expressed itself as fully identified by the contentions of the "continuous distillers" and in complete accord with their opinions as to the correct application of the term "whiskey".
1. Exception. -- Solicitor General erred in finding that neutral spirit recauced to potable proof is not whiskey (Brief in behalf of Hiram Walker and Sons, Limited, page 11).
Argument to sustain exception. -- There was evidence •that the product had been so known by manufacturers, retailers and consumers. The report of the British ?oyal Commission placed no restrictions upon the apparatus and/or processes used, and the only restriction made was that the material used should
be grain. .(Brief, page 13).
2. Exception. -- The Solicitor General erred. in finding that the term "whiskey" includes a substantial amount of by-products giving distinctive flavor and properties (Brief, page 11).
Argument to sustain exception. -- The general public was not familiar with the distinctive flavor of by-products since whiskey was not sold new, but only after aging when the flavor of the new whiskey was entirely changed. • The standard of a substantial amount would be too indefinite and would result in straight whiskies being passed without qualification, while the best blends might be attacked at any time. (Brief page 15).
3. Exception. -- The Solicitor General erred in finding that there had been abuse in the application of the term "whiskey" to neutral spirits (Brief, page 11).
Argument to sustain exception. -- It was not contended that the product made by dilution of neutral spirit should be driven out of commerce, and the only name by which the public knew such article was "whiskey". Consumers were aware that there were many varieties and classes of whiskey, and if no untrue statements were made by the manufacturers, the public would. be amply protected. (Brief page 18).
Oral hearings, were granted by President Taft to all exceptors to the opinion of. the Solicitor General. The hearings extended through two days,
June 28th 28th am', June 29th, and sitting with the President, at his invitation, were Attorney General Wickersham and. Secretary of Agriculture James Wilson. E. -- The President's Decision
Following the oral argument before President Taft upon exceptions to the opinion of Solicitor General Bowers, the President rendered his decision on December 27, 1909, on the question as to what is the meaning of the term "whiskey" under the Pure Food Act and the proper relations for branding various kinds of whiskey under the Internal Revenue Act.
President Taft found that Straight whiskey, rectified spirits whiskey, redistilled spirits whiskey, and neutral spirits whiskey were known to the trade and customers as whiskey and that the difference between straight and neutral spirits whiskey had been well understood. He did not consider the distinction made by the Solicitor General that whiskey must have a substantial quantity of by-products a valid one or a practical one for the purpose of executing the law. President Taft further considered it unjustifiable to permit high wines distilled at 140° to 160° to be designated as whiskey and to deny the same designation to neutral spirits distilled at 160° to 188°.
The President held that "Straight Whiskey" should be so branded; and that "rectified", "redistilled", or "neutral spirits" whiskey should be labeled as "whiskey made from rectified spirits", "whiskey made from redistilled spirits", or "whiskey made from neutral spirits", respectively. Whiskey made by blending straight whiskey and neutral spirits should be labeled as "a blend of straight whiskey and whiskey made from neutral spirits". Neutral spirits made from molasses and diluted to potable strength could not properly be labeled as "whiskey".
The difference between Taft's views, and the views of Dr. Wiley, the Solicitor General, and the straight whiskey manufacturers, is stated in
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•••
his opinion as:
"With deference to the very able consideration of this question made by Doctor Wiley and other distinuished chemists, think the fundamental error in all- conclusions differing from this is one of fact as to what the name of whiskey
•••	actually has included for the last hundred years; and while, Mr. Bowers, the Solicitor General, greatly enlarged in his definition the character and scope of the term "whiskey' beyond theirs, he fell into what seems to me to be the error of making too nice a distinction in reference to the amount of congeneric substances or traces of fusel oil required to constitute whiskey for practical purposes when the flavor and color of all whiskies but straight whiskies have been chiefly that of ethyl alcohol and burnt sugar. If high wines at from 140 degrees to 160 degrees when reduced to potable strength and 'containing a very small quantity of fusel oil and flavored by burnt sugar are whiskey, as he has found, then the mere improvement in the process by continuous distillation so as to give a product of from 160 degrees to 188 degrees proof and still further to reduce • its fusel oil, is to not change its whole nature or to make what was genuine 'whiskey' 'imitation whiskey' because of a slightly reduced trace of one ingredient. The distinction is too impracticable, in my judgment, for the execution of the law. It may be that the public were not fully or exactly advised as to the change in the process when it was made, but the change in the process was slight and effected economy in the production rather. than the flavor of the product; and if the public detected no difference in flavor in the product of the improved process, as they did not, but continued for forty years to regard it as the same, there was no deceit in continuing to call whiskey that which was thus merely improved in its manufacture without substantial change of composition or flavor."
The text of President Taft's decision is set forth in full in Appendix "u D to this memorandum.1
1. Also to be found in Gwinn, Federal Food and Drugs Act and Decisions (1914) p. 831.
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IV. -- REGULATIONS ,',ND RULINGS FOLLOWING THE TAFT DECISION.
Following the Taft decision, the regulations of the Department of AgTiculture and the Bureau of Internal Revenue were revised in accordance with the principle's 'of that decision. Various rulings and opinions carrying out the decision were also promulgated. These regulations, rulings, and opinions are set forth chronologically below.
Food Inspection Decision No. 1131. -- This decision of the Secre-
tary of Agriculture rendered February 16, 1910, exDressed the views of the Department of Agriculture with respect to the labeling of whiskey under the Food and. Drugs Act as interpreted by the Taft decision. The Food Inspection Decision reads as follows:
"Under the Food and Drugs Act of June 30, 1906, all unmixed distilled spirits from grain, colored and flavored with harmless color and flavor, in the customary ways, either by. the charred barrel process, or by the addition of caramel and harmless flavor, if of potable strength and not less than 800 proof, are entitled to the name whiskey without qualification. If the proof be less than 800, i. e., if more water be added, the actual proof must be stated upon the label and this requirement applies as well to blends and compounds of whiskey.
"Whiskies of the same or different kinds, i. e., straight whiskey, rectified whiskey, redistilled whiskey and neutral spirits whiskey are like substances; and mixtures of such whiskies, with or without harmless color or flavor used for purposes of coloring and flavoring only, are blends under the law and must be so labeled. In labeling blends the act requires two things to be stated upon the label to bring the blended product within the exception provided by the statute: First, the blend must be labeled, branded or tagged so as to plainly indicate that it is a blend, in other words that it is composed of two or more like substances, which in the case of whiskey must each be of itself a whiskey, and second, the word. Iblend: must be plainly stated upon the package in which the mixture is offered
1. Gwinn, Federal Food and Drugs Act and Decisions (1914) p. 129.
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for sale. A mixture of whiskies, therefore, with or without harmless coloring or flavoring, used for coloring and flavor-lug only, is correctly labeled 'Kerwan Whiskey. A Blend of Whiskies.
'Since the term whiskey is restricted, to distillates from grain, and distillates from other sources are unlike substances to distillate's from grain, such distillates from other sources without admixture with grain distillates are misbranded if labeled Illnizace,y without qualification, or as a blend of whiskies. However, mixtures of whiskey, with a potable alcoholic distillate froffsources other than grain, such as cane, fruit or vegetables, are.Aot misbranded if labeled compound whiskey, provided the following requirements of the law are complied with: First, that the product shall be labeled, branded or tagged so as to plainly indicate that it is a compound, i. e., not a mixture of like substances, in this case whiskies; and, second, that the word 'compound' is plainly stated upon the package in which the mixture is offered for sale. For example, a mixture of whiskey, in quantity sufficient to dominate the character of the mixture, with a potable alcoholic distillate from sources other than grain and including harmless color and flavor, is correctly labeled 'Kerwan Whiskey. A compound of whiskey and cane distillate.' Unmixed potable alcoholic•distillates from sources other than grain, with or without harmless color or flavor, are not mis-bned. if labeled 'Imitation Whiskey'
'When an essence or oil is added to a distillate of grain, which without such addition is entitled to the name whiskey, and the effect of such addition is to produce a product which simulates a whiskey of another kind different from the kind of whiskey to which the essence is added, the mixture is an imitation of the particular:kind of whiskey which is simulated, e. g., if rye essence be added to a highly rectified distillate of corn, the mixture is misbranded if labeled rye whiskey. Such a mixture is not misbranded if labeled 'Whiskey--Imitation Rye'.
"Nothing in the Food and Drugs Act inhibits any truthful statement upon the label of any product subject to its terms, such as the particular kind or kinds of whiskey, vended as whiskey or as blends or compounds thereof, but when descriptive matter, qualifying the name whiskey, is placed upon the label, it must be strictly true, and not misleading in any particular. The law makes no allowance for seller's praise upon the label, if :flIze or misleading, and the product is misbranded if a false or misleading statement be made upon one part of the label and the truth about the product be stated upon another part. Similarly a product is misbranded if the label is false or misleading through the use of a trademarked statement, design or device. The fact that a phrase, design or device is registered in the United States Patent Office
gives no no license for its deceptive use. All descriptive matter qualifying or particularizing the kind of whiskey, whether volunteered or required by the law. to be stated, as in the case of blends and compounds, must be given due prominence as compared with the size of type and the background in which the name whiskey appears so that .the label as a. whole shall not be misleading in any particular."
Food Inspection Decision No. 1181. 7- An application to the Depart-merit of Agiiculture for a modification ofFood Inspection Decision No. 113, requesting that a mixture of whiskey and alcohol from sources other than grain be permitted to be labeled. 'A blend of whiskey and, neutral spirit" or "1. blend of whiskey and xieutral molasses. spirit", or other like designation which would indicate the source of the material from which the neutral spirit was distilled.
The Department, on April 18; 1910, refused to grant the modification applied for, holding that such•a•modification would conflict with the fundamental Nrinciple in President Taft's opinion, The opinion was em-pressed that such a mixture could only be a compound under the provisions of the Food and Drugs Act.
Treasury_Decisio	Int. Rev., No. 1620. -- This decision of April 23, 1910, set forth the new internal revenue regulations as follows:
"Marking and Branding at Distilleries
distilled spirits when withdrawn from receiving cisterns will be marked or branded on the stamp head of the cask or package containing same, as follows:.
"1. High Wines. -- That which is the first product of distillation produced below 160 degrees of proof and withdrawn from the cistern room above 110 degrees of proof shall loe marked and branded "High wines".
1. Gwinn, Federal Food and Drugs Act and. Decisions (1914) p. 133.
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"2. Alcohol or spirits. -- All distilled, spirits produced above 160 degrees of proof shall be marked and branded "Cologne spirits", or "Neutral spirits", or "Alcohol" as the case may be.
"3. niskey. -- All distillate from grain withdrawn from the cistern.room at a proof below 110 degrees shall be marked or branded "Whiskey".
"4. Brandy, rum, and gin. -- Those products of distillation, which, by reason of the material used and the method of distillation employed, are differentiated into various forms of potable spirits will be marked or branded with the name as known to the trade, as "Brandy", "Rum", "Gin", etc., and other truthful descriptive words may be used, such as "Apple", "Peach", "Grape", etc., provided that no distilled spirits produced from material other than grain shall be marked or branded whiskey, unless the word "Whiskey" is preceded by the word "Imitation".
"On the Premises of Rectifiers
"Packages of distilled spirits, stamped by a gauger after rectification at a rectifying house, shall be marked or branded as follows:
"1. All grain distillate reduced to potable proof, not excluding harmless coloring and flavoring matter, shall be marked or branded "Whiskey".. All mixtures of whiskies, not excluding harmless coloring and flavoring matter, shall be marked or branded "Whiskey - a blend".
"2. Any mixture of whiskey, not excluding harmless coloring and flavoring matter, with a distillate other than grain, provided sufficient whiskey to dominate the mixture is used, shall be labeled "Whiskey - a compound".
"3. Where not sufficient whiskey to dominate the mixture is used, or where the article contains no grain distillate, the word. "Whiskey" in connection therewith shall not be used unless preceded by the word "Imitation".
44. No distilled spirits shall be entered by a government officer for dumping in any rectifying establishment unless it shall plainly appear upon the package containing the same whether the spirit's have been produced from grain or from material other than grain.
"5. Packages containing cordials, liqueurs, and other like artificial compounds shall be marked with such appropriate names as shall indicate the kind of contents."
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Liolasses Spirits Litigation.	APParently, shortly after the
Presidents opinion, the molasses interests instituted a suit for an in-
.
junction1 against certain Internal Revenue officers to restrain them from
carrying out the provisions of T. D., Int. Rev., No. 1620, providing that a molasses distillate mixed with whiskey' should be labeled "Whiskey - a compound" or "Imitation Whiskey," depending upon the quantity. of whiskey present in the mixture. The court in this case enjoined the Government. It is understood that an appeal was taken by the Government, but for some unknown reason had not been heard when the Revenue Act of 1917 was passed, and apparently the appeal was abandoned because of the passage of that statute. The issuance of the injunction in question led_to Internal Revenue amending its marking regulations on July 20, 1910.
Internal Revenue Order 1To. 740.2 - Following the court decision above referred to, the Commissioner of Internal Revenue issued on July 20, 1910 the following decision:
"To Collectors of Internal Revenue and others concerned:
"Litigation having been instituted to test the validity of the decision of the President promulgated December 27, 1909, passing on the question as to what is whiskey, the following modifications are na.cle i.:a.Circular 737:
"Until otherwise ordered, you are hereby directed to permit the following marking and branding of distilled spirits produced from molasses:
"1. On the premises of the distiller. -- You will follow the provisions of Circular 737 and instructions relating thereto, except that no distillate from molasses shall, be marked or branded whiskey. In lieu thereof any distillate from molasses produced. at 160 degrees of proof and over, withdrawn from distillery premises at a prof lower than .110 degrees, may be marked or'branded 'Dilute Neutral Spirits', 'Dilute Spirits', 'Dilute Cologne Spirits', 'Dilute Alcohol', or other similar truthful descriptive terms, and, if withdrawn at 100 degrees proof, 'Proof Spirits':.
1. Louisiana Distillery Co., Ltd., v. Seyburn (D.C., E.D., La.)un - reported.
2. T. D., Int. Rev., No. 1647.
"2. On the premises of rectifiers. -- Molasses distillate may be used for mixing with grain distillate, and the resulting mixture, provided sufficient grain distillate is used to dominate the character of the mixture, may be narked or branded 'Whiskey - a blend'. Where no grain distillate is used, or where grain distillate in quantities not sufficient to dominate the character of the mixture is used, the resulting mixture may be marked or branded 'Whiskey - a compound' or 'Imitation Whiskey', or may be marked or branded 'Dilute Alcohol', 'Dilute Neutral Spirits', 'Dilute Cologne Spirits', 'Dilute Spirits', 'Cane Neutral Spirits', 'Rectified. Spirits', or other similar truthful descriptive terms, or, if 100 degrees proof, 'Proof Spirits'.
"Until otherwise ordered, section 4 of Circular 737, 'On the Premises of Rectifiers', is suspended; gaugers and other government officers, however, are directed to note, as far as practicable, on the records provided for that purpose, whether the spirits entered for dumping were produced from grain or material other than grain a:3 disclosed by the name of the distiller or other evidence avalible.
"The provisions of :;ircular 737 will apply in full-force and
effect in every'respect except as herein permitted otherwise."4'
Opinion'of Attorrey General on "Canadian Club." - An opinion of the Attorney General2_to the Secretary of Agriculture upon the question of whether or not the name "Canadian Club Whiskey" was such a distinctive name under the provisions of section 8, paragraphs 10 and 11, of the Food and Drugs Act, as to relieve the product of the necessity of being labeled "A
1. On February 12, 1915, a further Treasury decision was issued on the labeling of molasses distillates. It provided:
"In issuing Regulations No. 7, revised July 10, 1914 (These regulations contain essentially the same narking and branding requirements as are contained in Circular 737, T. D. 1620), it was not intended to abrogate the provisions of Circular 740, dated July 30, 1910 (T.D. 1647), relating to the marking of packages containing distilled spirits produced from molasses.
"Said circular was intended to relieve a condition, pending litigation which has not yet been terminated, and is therefore to be regarded as in full force and effect until further notice,
"If instructions to the contrary have been given in any case, collectors will be expected to see that the same are changed at once, and that the practice is made to conform to the terms of Circular 740". - T.D., It-Rev., No. 2154,
2. 28 Op. Atty. Gen. 455; also promulgated as Food Inspection Decision
No. 127, October 26, 1910.	.
blend of of whiskies", under section 3, paragraph 12, of that Act, was rendered on October 19, 1910.
Canadian Club Whiskey was stated to be a.mixture of grain distillates (both of which-were whiskeys under President Taft's decision), aged after mixture, sold at that time and for a number.of years previously exclusively under the name "Canadian Club Whiskey" and so known to the trade and consumers. Section 8 of the Food and Drugs Act1 provides in part:
"An article Of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases:
"First. In the ce.sz. of mixtures or compounds which may be now or from t:Lv. to time hereafter known as articles, of food urcIeT their own distinctive names, • and not an imitation of or offered for sale under the distinctive name of anoher article .* * *.
'"Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are cm-pounds, imitations, or blends, and the word tcompoundl, :imitation', or 'blend', as the case may be, is plainly stated on the package in which it is offered for sale * * *
The Solicitor of the Department of Agriculture contended that the distinctive name under which a mixture or compound might be sold. under section 8 must be purely arbitrary and fanciful and. r'auot not contain the name of any of the component ingredients and hence the word "whiskey" could not appear in the fanciful name involved in the instant case. The Attorney General held that the name ”Canadian Club Whiskey" was such a distinctive name under Section 8, so arbiti'ary and so.fanciful as to distinguish the whiskey from. ail other whiskeys ; ai4 that by common use the name, was one which distinguished the product 'so labeled from ev?rything else'. It was. therefore held that the label did not have to bear the statement "A blend of.whiskies."
34.Stat., 763.
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V. -- T} REVENUE ACT OF 1918
The fifth paragraph of section 605 of the Revenue Act of 19181, still in force, provides in. part:
"All distilled spirits or wines taxable under this section shall be subject to uniform regulations concerning the use thereof in the manUfacture, blending, compounding, mixing, marking, branding, and sale of whiskey and rectified spirits, and no discrimination whatsoever shall be made by reason.ofa difference in the charaater of the material from which the same may have been produced * * *.H
An examination of the House and Senate Committee reports, the conference report, and the House and Senate hearings, together with the debates on this bill, disclose no materials which would indicate the purposes of this provision.
However, section 304 of the Revenue Act of 19172 contained a sul-stantially similar provision, and from arguments for and against the provision in question, it is possible to acquire some indication as to its purpose.
Argument of Levi Cook, Esquire, against the provision:3
"This, provision, as stated by J. P. McGovern, Attorney for the Industrial Alcohol Company, large distillers of molasses spirits for industrial uses, .is intended to make legal the blending of molasses spirits with whiskey, to be sold as whiskey. This provision ameuds the Food and Drugs Act, if it is possible for .a revenue measure to do so, and at least compels Internal Revenue branding of rum spirits as whiskey. Mr. McGovern frankly stated that he wished, in behalf of his clients, to remove the 'discrimination' by which under the facts and the law, run .spirits cannot now be sold as whiskey, and to Opeil the whiskey market to ,the sale of the Industrial Alcohol company's molasses spirit under a legalized use of the name whiskey."
1. 40 Stat. 1108.
2. 40 Stat., 310.	•
3. Hea'ri-iigs before the.$enate Finance Committee. oh H. R. 4280; 65th Cong., 1st Seas., 1917, p. 95.
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Argument1 of Mr. James P. McGovern, Counsel for the United States Industrial Alcohol Companyi in support of the provision:
"At the fear ofperhaps suggesting a leak, I am informed by members of the Ways and Means Committee that the provisions of this bill were in large measure recommended by the United States. Internal Revenue Department, including the very prevision of which Mr. Cook has last spoken. as regards the removal of the discrimination between neutral spirits, with one possible exception, and that is that. one of his own clients suggested the $1.10 increased distilled spirits tax, the Internal Revenue Department having recommended $2.00.
* * *
"Now Mr. Cook suggests that, in the case of beverages, neutral spirits made from sugar cane and beet sugar molasses should, be discriminated against because whiskey can only be. made from a grain distillate. I believe this Committee should be prepared to -rely upon the recommendations .of the Internal Revenue Department of this government, which is most conversant with this trade discrimination--a discrimination without parallel in the history of commercial operations • in this country. That Department says that that discrimination is ridiculous; that it never should have been permi.tted to creep into the .rectified spirits business; that it is time to wipe it out, and they want absolute authority in order to make all tax payers equal before the law, and I doubt whether there is any member of the Internal Revenue Department who will come before this Committee and say this man producing neutral spirits from sugar cane molasses and beet sugar molasses and paying $2.20 a proof gallon and willing to do so, should not have .the same equal competitive and commercial rights as the other tax payer who produces the same stuff from another raw material."
Mr. McGovern also pointed out that there was a further field for collection of additional taxes by writing this provision into the law, because blends of straight whiskeys at that time, if of the same production, quality, and kind, and differing in age not more than one year, were not subjected to
1. .Hearings before the Senate Finance Committee. on H. R..4280, 65th Cong., 1st Sess., p. 100.
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a rectification tax, and that, if this provision were kept in the bill, it would have a tendency to open up the use by industry members of molasses spirits (which were less cOstly) in the makinc:-; of blends, with a resultant increase in the amount of revenue from this additional taxable rectification.
Pursuant to the provision in the Revenue Act of 1917 the follow-
1
ing regulations were issued October 4, 1917:
"To Collectors of Internal Revenue, rectifiers,, and others interested:
"Section 304 of the new revenue measure (Revenue Act of 1917). provids, among dthar
"All distilled spirits taxable under this section shall be subject to uniform regulations concerning the use thereof in the manufacture, blending, compounding, mixing, marking, branding, and sale of whiskey and rectified spirits, and no discrimination whatsoever shall be made by reason of a difference in the character of the material. from which same may have been produced.
"Hereafter, therefore, all products of rectifioatils,n from molasses spirits, or spirits other than grain at rectifying houses, will be marked and branded in the same manner as spirits derived from grain. All regulations in conflict herewitli are accordingly revoked.
The present regulations of the Commissioner of Internal Revenue with respect to the narking and branding of liquors are as follows:
9
"Beverage Spirits-
"(a) Whiskey: All spirit (otlier than alcohol) produced from grain below 160 degrees proof shall be branded 'Whiskey'.
1. T. D., Int. Rev., No. 2548.
2, Article XI, Par. 71, Gauging Manual, U. S. Treasury Department, Jan., 1934.
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"(b) Such spirits shall be further branded to show the particular kind, of whiskey, according to the grain used. Where corn is the principal material used, the spirits will be branded 'Bourbon (or Corn) Whiskey', and where rye is the principal material used, the spirits will be branded 'Rye Whiskey'. If all the grain, Or the principal part thereof, is malted, the word 'malt' or lnalted' shell also be used, as 'Rye Malt Whiskey', 'Bourbon .(or Corn) Malt Whiskey', etc. Other. truthful descriptive words may be used, such as • 'straight' or 'pure', where. the whiskey is made in whole from one kind of grain, as !Pure Rye Whiskey', 'Pure Rye Malt Whiskey', etc. Legends, if truthful, such as 'Sour Mash', 'Hand Process', 'Copper Distilled', etc., may also be used; provided, however, that the use of not more tlaau 20 per cent barley malt shall not preclude the spirits being branded Istraight' or 'pure'.
"(c) Brandy: All spirits (other than alcohol) produced from fruits shall be branded 'Brandy'; provided, however, if the spirits are produced from grapes or grape wine and warehoused at or above 160 degrees proof, they may be branded 'Fruit Spirits' or 'Wine Spirits'.
"(d). Such spirits shall be further branded to show the particular kind of brandy, according to the fruit used, as 'Grape Brandy', 'Peach Brandy', 'Apple Brandy', etc.
"(e) Rum: All spirits (other than alcohol) produced from molasses, which by reason of the method of manufacture employed and the characteristic congeneric constituents of the spirits, are known to the trade as rum, shall be branded I Rum'
"(f) Gin: All spirits distilled over, or with, juniper berries, and having the characteristic constituents of spirits known to the trade as gin, shall be branded 'Gin'."
Paragraph (a) above was amended on January 20, 1934,1 to read as follows:
"(a) High Wines: All spirits (Other then alcohol) produced from grain below 160 degrees proof and withdrawn from the cistern room above 110 degrees proof shall be branded 'High Wines'.
•	"(aa) Whiskey: All spirits (other than alcohol) produced from grain and withdrawn from the cistern room at or below 110 degrees proof shall be branded 'Whiskeyl."
1. T. D. 26, Bureau of Industrial Alcohol, U. S. Treasury Department.
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Indus trial Alcohol Marking and Branding'
"Art. 4. Definition's. -- * * * (b) !Alcohol! means that substance known as ethyl alcohol, hydrated oxide of ethyl, or spirit of wine, from whatever source or process produced, having a proof of 160 degrees or more, and does not include the substances commonly known as whiskey, brandy, rum, or gin."
"Art. 54. Marking and Branding Packages. -- Where alcohol is withdrawn from receiving tanks into packages for entry
into warehouse, the alcohol must be weighed and the proof	•
of same taken by the proprietor of the bonded warehouse.
* * * The word 'Alcohol' must also appear on the heads of
all packages of more than 30 wine gallons capacity in
letters of not less than 1 inch in height. On packages
of 30 wine gallons or less, such letters shall be not less
than three-fourths of an inch in height."
Marking and Branding of Rectifiers! Packages2
"Par. 214. The gross weight, tare, and net weight of barrels and similar containers will be cut on the bung stave next to the bung. Each such container will also be marked on one head thereof with the serial number, the kind of spirits, the wine gallons, proof, and proof gallons contained therein, and the name of the rectifier, followed by the word !Rectifier! (except the words !Wholesale Liquor Dealer! will be used on unrectified spirits and wines) and the address of the rectifier."
1. Regulations 3, 13. S. Treasury Department, Bureau of Industrial Alcohol, April 1, 1931.
2. Article XXXI, Regulations 15, September 1, 1934, Bureau of Internal 'Revenue, Treasury Department.
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A-P-P-E-N-D- I- C-E-S
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APPENDIX "A"
Text of Section 3287 of the Revised Statutes
Sec. 3287, Revised Statutes.1 All distilled spirits shall be drawn from the receiving cisterns into casks or packages, each of not less capacity than ten gallons wine measure, and shall thereupon be gauged, proved, and marked by an in'ternal-revenue gauger, who shall cut on the cask or package containing such spirits, in a manner to be prescribed, by the Commissioner of Internal Revenue, the quantity in wine gallons and in proof gallons of the content& of such casks or packages, and the  particular name of such dis  tilled spirits as known to the trade, that is to say, high wines, alcohol, or spirits, as the case may be, -shall be marked or branded on the head of such cask or package in letters of not less than one inch in length; and the spirits shall be immediately removed into the distillery warehouse, and the gauger shall, in the presence of the storekeeper of the warehouse, place upon the head of the cask or package an engraved stamp, which shall be signed by the collector of the district and the storekeeper and gauger; and shall have written thereon the number of proof gallons contained therein, the name of the distiller, the date of the receipt in the warehouse, and the serial number of each cask or package, in progressive order, as the same are received from the distillery. Such serial number for every distillery sha:11 be in a regular sequence of the serial number thereof, beginning with number one (No. 1) with the first cask or package deposited therein after July twentieth, eighteen hundred and sixty-eight, and no two or more casks or packages warehoused at the same distillery •shall be marked with the same number.
* * * *
1. Sec. 367, Title 26, U. S. C.
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APPENDIX "B"
The Jamestown Standards
(Adopted in the Fall of 1907 by the
Association of Official Agricultural Chemists)
1. Distilled  spirit is the distillate obtained, from a fermented mash of cereals, molasses, sugars, fruits or other starch or sugar-bearing substances and contains all the condensed products of the fermentation, ' volatile at the usual temperature of distillation.
2. Rectified  spirit is distilled spirit which at the time of or subsequent to distillation is subjected to a rectifying process by means of which a part of the volatile products of the distillation is separated. from the ethyl. alcohol therein.
3. Alcohol, cologne spirit,  neutral spirit, velvet spirit, or i-lent  spirit is distilled spirit from which all, or nearly all, its constituents are separated except ethyl alcohol and water, and contains not less than ninoty-four and rime-tenths (94.9) per cent (189.8 proof) by volume of ethyl alcohol.
4. New whiskey is the distilled spirit from the properly fermented mash of malted cereals or cereals the starch of which has been hydrolyzed by malt, is of an alcoholic strength corresponding to the excise laws of the various countries in which it is made, and contains not less than one hundred and twenty-five (125) nor more than three hundred and fifty (350) grams of the secondary products of distillation congeneric with ethyl alcohol, not less than ninety (90) nor more than two hundred and twenty-five (225) grams of fusel oil (higher alcohols as amylic), not more than twenty (20) grams of aldehydes, not less than fifteen (15) nor more than one hundred (100)grams. of ethers (as acetic ether), not less than two (2) nor more than twenty-five (25) grams of volatile acids (as acetic) to one hundred (100) liters of proof ethyl alcohol (50 per cent ethyl alcohol by volume).
5. Whiskey (potable whiskey) is new whiskey which has been stored in wood for not less than four (4) years and mixed only with pure water at the time of its preparation for consumption, and contains, unless otherwise prescribed by law, not .less than forty-five (45) per cent of ethyl alcohol by volume, and, the relative quantities of secondary products to ethyl alcohol corresponding to the varieties of whiskey under six (6) to fifteen (15), inclusive.
6. Rye whiskey is whiskey in the manufacture of which rye is the principal cereal used, and contains not less than two hundred. (200) nor more than five hundred (500) grams of the secondary products of distillation congeneric with ethyl alcohol, not less than one hundred (100) nor more than two
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hundred and fifty (250) grams of fusel oil (highei alcohols as amylic), nor more than. twenty-fiva (25) grams of oldeh:d.des., not. less than forty .(40) nor more than one hundred and fifty (150) grams.of ethers (as: acetic ether), not less than thirty (30) nor mor6 than eight.--five (85) grams of volatile acids (as acetic) to one hundred (100) liters of proof ethyl alcohol (50 per cent ethyl alcohol by volume).
7. Bourbon whiskey is whiskey in which Indian corn (maize) is the principal cereal used, and contains not less than two hundred (200) nor more than five hundred (500) grams of the secondary products of -distillation congeneric with ethyl alcohol, not less than one hundred (100) nor more than two hundred and fifty (250) grams of fusel 'oil (higher alcohols as amylic) not more than .twenty-five (25) grams of aldehydes, not less than forty (40) nor more than one hundred and fifty (150). grams of ethers (as acetic ether), not less than thirty (30) nor more than eighty-five (85) grams of volatile acids (as acetic) to one hundred (100) liters of proof ethyl alcohol (50 per cent ethyl alcohol by volume).
8. Corn whiskey is whiskey made from maize (Indian corn), the starch of which as been hydrolyzed by malting or by the action of barley malt, and contains the proportions of the various ingredients specified for bourbon whiskey.
. 9. Blended whiskey is a mixture of twO or more whiskies, and contains the relative quantities of secondary products to ethyl alcohol of the varieties of whiskey forming the blend.
10. ,Rectified new whiskey is new whiskey deprived of a part of its secondary volatile products, and contains not less than sixty (60) grams of the secondary products of distillation congeneric with ethyl alcohol, not less than forty (40) gram of fusel oil (higher alcohols as amylic), not more than eight (8) grams of aldehydes, not less than five (5) grams of ethers (as acetic ether), not less than one (1) gram of volatile acids (as acetic) to one hundred (100) liters of proof ethyl alcohol (50 per cent of ethyl alcohol by volume).
11. Rectified whiskey is rectified new whiskey, stored in wood not less than three (3) years, except where otherwise prescribed by law, and contains not less than one hundred (100) grams of the secondary products of distillation congeneric with ethyl alcohol, not less than fifty (50) grams of fusel oil (higher alcohols as amylic), not more than ten (10) grams of aldehydes, not less than twenty (20) grams of ethers (as acetic ether), not less than fifteen (15) grams of volatile acids (as acetic) to one hundred (100) liters of proof ethyl alcohol (50 per cent ethyl alcohol by volume).
12. Scotch new whiskey. is whiskey made in Scotland solely from barley malt in the drying of which, over burning peat, a smoky or peaty flavor is imparted to the product, and contains not less, than one hundred and twenty-five (125) not•p.ore ,Vhan three. hundred: and' fifty. (350) grams of the secondary
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products of 'distillation congeneric witlj•ethyl alcohol, not less than ninety (90) nor more than two hundred and-twenty-five (225) 4rams of fusel oil•(high-er alcohols aS'amylic) not more than twen:ty (20) grarfts of aldehydes, not less than fifteen (15) nor more than one hundred (100) grams of ethers (as acetic ether), not less than two (2) nor more than twenty-five (25) grams of volatile acids (as acetic) to one hundred (100) liters of proof ethyl alcohol (50 per cent ethyl alcohol by volume).
13. Scotch whiskey is, Scotch new whiskey which has been stored in wood for not less than four (4) years and mixed only with pure water at the time of •its preparation for consumption, and contains not less than one hundred and fifty (150) nor more than four hundred and fifty (450) grams of the secondary products of distillation con,0;eneric with ethyl alcohol, not less than one hundred (100) nor more than two hundred and fifty ('250) grams of fusel oil (higher alcohols as amylic), not more tl-lat. twenty-five (25) grams of aldelvde not less than twenty-five (25) nor more than one hUndred and twenty-five (125) grams of ethers (as acetic ether), not less than ten (10) nor more than forty (40) grams of volatile acids (as acetic) to one hundred (100) liters of proof ethyl alcohol (50 per cent ethyl alcohol by volume).
14. Irish new whiskey is whiskey made in Ireland either from barley malt or malt and unmalted barley or other cereals, and contains not less than one hundred and twenty-five (125) nor more than three hundred and fifty (350) grams of the secondary products of distillation congeneric with ethyl alcohol, not less than ninety (90) nor more than two hundred and twenty-five (225) grams of fusel oil (higher alcohols as amylic), not more than twenty (20) grams of aldehydes, not less than fifteen (15) nor more than one hundred (100) grams of ethers (as acetic ether), not less than two (2) nor more than twenty-five (25) grams of volatile acids (as' acetic) to one hundred (100) liters of proof ethyl alcohol (50 per cent ethyl alcohol by volume).
15. Irish whiskey is Irish new whiskey which has been stored in wood for not less than four (4) years and mixed only with pure water at the time of its preparation for consumption, and contains not less than one hundred and fifty (150) nor more than four hundred and fifty (450) grams of the secondary products of distillation congeneric with ethyl alcohol, not less than one hundred (100) nor more than two hundred and fifty (250) grams of fusel oil (higher alcohols as amylic), not more than twenty-five (25) grams of aldehyde, .not less than twenty-five (25) nor more than one hundred and twenty-five (125) grams of ethers (as acetic ether), not less than ten (10) nor more than forty (40) grams of volatile acids (as acetic) to one hundred (100) liters of proof ethyl alcohol (50 per cent ethyl alcohol by volume).
16. Arradk is distilled spirit made from rice.
17. New rum is distilled spirit made from the fermented juice of the sugar cane, the nassecuite made therefrom, 'molasses from the Imssecuite or any intermediate product save sugar, and contains not less than one hundred and twenty-five (125) nor more than three hundred and fifty (350) grams of the
secondary products products of distillation congeneric with ethyl alcohol, not less than sixty (60) nor more than one hundred and fifty (150) grams of fusel oil (higher alcohols as amylic), not more than thirty (30) grams of aldelvdes, not less than thirty (30) nor more than one hundred (100) grams of ethers (as acetic ether), not less than twenty (20) nor more than fifty (50) grams of volatile acids (as acetic) to one hundred (100) liters of proof ethyl alcohol (50 per cent ethyl alcohol by volume).
18. Rum is new rum stored not less than four (4) years in wood and contains not less than one hundred and seventy-five (175) nor more than five hundred (500) grams of the secondary products of distillation congeneric with ethyl alcohol, not less:than eighty (80) nor more than two hundred (200) grams of fusel oil Pligher alcohols as amylic), not more than forty (40) grams of aldehydes, not less than fifty (50) nor more than one hundred and fifty (150) grams of ethers (as acetic ether), not less than thirty-five (35) nor more than one hundred (100) grams of volatile acids (as acetic) to one hundred (100) liters of proof ethyl alcohol (50 per cent ethyl alcohol by volume).
19. New brandy is.a distilled spirit made from sound, potable wine, and contains not less than one hundred and twenty-five (125) nor more than three hundred and fifty (350) grams of the secondary products of distillation .congeneric with ethyl alcohol, not less than seventy (70) nor more than one hundred and fifty grams of fusel oil (higher alcohols as amylic), not more than twenty (20) grams of aldehydes, not less than thirty (30) nor more than one hundred (100) grams of ethers (as acetic ether), not less than five (5) nor more than twenty (20) grams of vol4Iile acids (as acetic) to one hundred (100) liters of proof ethyl alcohol (50 per cent ethyl alcohol by volume).
20. Brandy is new brandy stored in wood for not loss than four (4) years, and contains not less than one hundred and fifty (150) nor more than five hundred (500) grams of the secondary products of distillation congeneric with ethyl alcohol, not less than eighty (80) nor more than two hundred (200) grams of fusel oil (higher alcohols as amylic), not more than thirty (30) grams of aldehydes, not less than thirty-five (35) nor more than one hundred and fifty (150) grams of ethers (as acetic ether), not less than thirty (30) nor more than one hundred (100) grams of volatile acids (as acetic) to one hundred (100) liters of proof ethyl alcohol (50 per cent ethyl alcohol by volume).
21. Cognac is brandy prepared in the departments of the Charente, . France, from pure, sound wine produced in those departments.
(NOTE: These standards fixed a maximum as well as a minimum of congeneric substances.)
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APPENDIX "Cu
The' Mackinac Standards
Spirituous Liquors
1. Distilled spirit is the distillate obtained from a fermented mash. of cereals, molasses, sugars, fruits, or other fermentable substances, and contains all the vblatile flavors, .essential oils, and. other substances derived. directlr from the materials used, and the higher alcohols, ethers, acids, and. other volatile bodies congeneric with ethyl alcohol produced during fermentation, which are carried over at the ordinary temperature of distillation mid the principal part of which are higher alcohols estimated as amylic.
2. Alcohol, cologne spirit, neutral woi.rit, velvet spirit, or silent spirit is distilled spirit from which all, or practically all, of its constituents except ethyl alcohol and water are separated, and contains not less than ninety-four and nine-tenths (94.9) per cent (189.8 proof) by volume. of ethyl alcohol.
New whiskey is the properly distilled spirit from the properly prepared and properly fermented mash of malted grain; • or of grain the starch of which has been hydrolyzed by malt; it has an alcoholic •sti'ength corresponding to the excise laws of the various countries in which it is produced, .and contains in one hundred (100) liters of proof spirit not less than one hundred. (3.00) grams o f the various substances o the r than ethyl alcohol derived from the grain from which it is made, mid of those produced during fermentation, the principal part of which consists of higher alcohoq.s.estimated.as
4. Vilaiskey, (table whiskey.) is new whiskey which has been stored -_ in wood not less than four (4) years without any artificial heat save that which may be imparted by warming the storehouse to the usual temperature, and contains in one hundred (100) liters of proof spirit not less than two himdre,d. (200) grams of the ubstances found in new whiskey save as they are changed or eliminated by storage and.' of those produced as secondary bodies during aging; and, in addition thereto, the substances extracted. from the, casks" in which it has been stored. It contains, when prepared for consumption as permitted. by the regulations of the Bureau of Internal Revenue, not less than forty-five (45) per cent by volume of ethyl alcohol, and, if no statement is made concerning its alcoholic strength, it contains not less than fifty (50) per cent of ethyl alcohol by volume, as prescribed by .law.
5. Rye whiskey is whiskey in the manufacture of which rye, either in a malted condition, or with sufficient barley or rye malt to hydrolyze the starch, is the only grain used.
6. Bourbon whiskey is whiskey made in Kentucky from a mash of
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Indian corn and rye, and barley malt, of which Indian corn forms more than fifty (50) per cent.
7. Corn whiskey is whiskey made from malted Indian corn, or of Indian corn, the starch of which has been hydrolyzed by barley malt.
3. Blended whiskey is a mixture. of two or more whiskies.
9. Scotch whiskey is whiskey made in Scotland solely from barley malt, in the drying of which peat has been used. It contains in one hundred (100) liters of proof spirit not less than. one hundred and fifty (150) grams of the various substances prescribed for whiskey exclusive of those extracted from the cask,
10. Irish whiskey is whiskey made in Ireland, and conforms in the proportions of its various inc;redients to Scotch whiskey, save that it may be made of the some materials as prescribed for whiskey, and the malt used is not dried over peat.
11. New rum is properly distilled spirit made from the properly fer—mented, clean, sound juice of the sly;ar-cane, the clean, sound massecuite made therefrom, clean, sound molasses from the massecuite, or any sound, clean, intermediate product save suL;ar, and contains in one hundred. (100) liters of proof spirit not less than one hundred (100) crams of the volatile flavors, oils, and other substances derived from the materials of which it is made, and of the substances congeneric with the ethyl alcohol proc'ncea during fermentation, which are carried over at the ordinary temperatures of distillation, the principal part of which is higher alcohols estimated as amlic.
12. Rum (potable ram), is new run stored not less than four (4) years in wood without any artificial heat save that which may be imparted by warming the storehouse to the usual temperature, and contains in one hundred (100) liters of proof spirit not less than one hundred end seventy-five (175) grams of the substances found in new rum save as they are dhanged or eliminated by storaGe, and of those produced as secondary bodies during aging; and, in addition thereto, the substances extracted from the casks. It contains, when prepared for consumption as permitted by the re7alations of the Bureau of Internal Revenue, not less than forty-five (45) per cent by volume of ethyl alcohol, and, if no statement is made concerning its alcoholic strength, it contains not less than fifty (50) per cent by volUme.of ethyl alcohol as prescribed by law,
13. New brandy is a properly distilled spirit made from wine, and contains in one hundred (100) liters of proof spirit not less than one hundred 100 grams  of the volatile flavors, oils, and other substances derived from the material from which it is made, and of the substances congeneric with ethyl alcohol produced during fermentation and carried over at the ordinary temperature of distillation, the principal part of which consists of the higher alcohols estimated as amulic.
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14. Brandy (potable brandy) is new brandy stored in wood for not less than four (4) years without any artificial heat save that which nay be imparted by warming the storehouse to the usual temperature, and contains in one .hundred (100) liters of proof spirit not less than one hundred and fifty (150) grams of the substances found in new brandy save as they are changed or eliminated by storage, and of those produced as secondary bodies during aging; and, in addition thereto, the substances extracted from the . casks in which it has been stored. It contains, when prepared for consupp-tion as permitted by the regulations of .the Burerm of Internal Revenue, ndt less than forty-five (45) per cent by volume of ethyl alcohol, and, if no statement is made concerning its alcoholic strength, it contains not less than fifty (50) per cent by volume of _ethyl alcohol as prescribed by law.
15. Cognac, cognac brandy is brandy produced in the departments of the Charente and Charente Inferieure, France, from wine produced in those departments.
(NOTE: These standards prescribed only a minimum for	congdn-
eric substances.)
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APPENDIX "D°
The Taft Decision
By the pure food act of June 30,1_906, Congress ,forbade the introduction into interstate and foreign commerce.of .adulterated or misbranded drugs or articles of food, with two objects, one to preserVe the health of the people, and the other to prevent their bein(; deceived by label or brand as to the real character of drugs or articles of food offered for sale. Within the definitions of the act potable liquors are articles of food. An important controversy has arisen in the execution and the application of the act as to whether the branding of certain potable liquors with the name "whiskey", is a misbranding within the act. All distilled spirits pay, under the interna-revenue laws, a heavy tax. The tax is measured by a certain rate per proof gallon. Theoretically pure ethyl alcohol is 200° iDrogf.. A proof gallon of distilled spirits is half water and half alcohol, Or a gallon of 100° proof. Potable strength varies from 90° to 102° or 103°. Distilled spirits are manufactured under the close supervision of revenue officers and the brands which. are placed upon the packages containing the spirits after manufacture are placed there under regulations of the Internal Revenue Bureau. It is, of course, of the highest importance that the internal-revenue law and the pure-food law should be enforced in such a way as to accomplish the purposes of both.
In Internal Revenue Order No. 723 (April, 1907) directions were given as to haw certain distilled spirit should be branded. The effect of this order was to deny the right to the use of the brand "whiskey!' to any distilled liquor except that which is known to the trade as "straight whiskey° and to require the branding of several kinds of livors• distilled from grain as "imitation whiskey." The pure-food act does not mention the term "whiskey"; it does not authorize any officers to fix a standard in respect to any article of food or liquor. It therefore leaves the question of what liquor may be properly branded as whiskey to those Who have to execute the pure-food law and the internal-revenue law, su7oject, of course, to a review of the correctness of th3ir action by courts whenever a case between parties litigent, properly within the jurisdiction of such courts shall arise. Attorney General Bonaparte was asked to pass upon the question of what properly might be included under the brand of whiskey within the pure-food law, and rendered two decision S 14 whici-i he in effect limited the proper use of the brand to what is known in the trade as listraihtliw-iliskey. So far as appears from Mr. Bonaparte's opinions, he accepted a definition of whiskey from a dictionary or encyclopedia, and, in forming and expressing his opinion, he had not the benefit of any evidence as to the meaning or scope of the term
*acquired from manufacturers, dealers, or consumers in the trade. Internal	.
Revenue Order 723 Was founded on Mr..nonapartels opinions.
A. petition was filed in April last by a large number of distillers whose interests were affected, asking that the issues passed upon by Mr. Bonaparte and confirmed by Mr. Roosevelt in Internal Revenue Order No. 723
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be reheard on the ground that the meaning of the term °whiskey" is one of fact, and is to be properly determined only after consideration of coppetent evidence drawn from those familiar with the trade in which liquors are manu facturea and sold. The rehearing was granted, and the matter was referred to Hon. Lloyd Bowers, Solicitor general, to determine upon evidence to be submitted by all parties in interest:
1. What was the article called "whiskey" as known (1) to the manufacturers. (2) to the trade, and (3) to the consumers at and prior to the date of the passage of the pure-food law?
2. What did the term "whiskey" include?
3. Was there included in the term "whiskey" any maximum or minimum of congeneric substances as necessary in order that distilled spirits should be properly designated. "whiskey"?
4. Was there any abuse in the application of the term "whiskey" to articles not properly falling within the definition of that term at and prior to the passage of the pure-food. law, which it was the intention of Congress to correct by the provisions of that act?
5. Is the term "whiskey" as a drug applicable to a different product than whiskey as a beverage? If so, in what particulars?
A very full hearing was had before the Solicitor General and a large amount of evidence was taken, making a record of more than 1,200 printed pages. The answers of the Solicitor General to the questions were detailed and exact. I shall not set them out. It is sufficient to say that he found from the evidence that whiskey, as a term of the trade for many years, in-, chideci much more than "straight" whiskey; that it included "rectified" whiskey, "redistilled" whiskey, and all distillates of grain reduced by water to potable strength and containing a sufficient trace of fusel oil or the congeneric substances accompanying grain distillation to give a distinctive whiskey flavor to the liquor; and this whether or not colored by burnt sugar or other harmless flavoring and coloring matter. But he excluded from the proper meaning and scope o the term "whiskey" that product of continuous distillation called "neutral spirits," though reduced to potable strength and colored and flavored by burnt sugar, on the ground that in. such product there was not enough of the fusel oil or congeneric substances to give to tie liquor the distinctive flavor of whiskey. He found farther that the mixture of neutral spirits with whiskey, if a sufficient quantity of fusel oil or congeneric substances remained to retain the whiskey flavor, was not an adulteration and, did not make it other than whiskey.
Exceptions were taken by all parties to these findings of the Solicitor General, and the whole record of the evidence has been brought before me for consideration and decision. I invited the Attorney General and the Secretary of Agriculture to sit with me and hear the arguments. Because o the importance of the case, I have thought. i.t necessary to. reM with care the entire evidence adduced. The Solicitor General has rendered an opinion to justify his findings of great ability and acumen; and. I reach
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a somewhat different conclusion from him with such reluctance. But I am led to do so by a very clear conviction as to what the evidence shows.. :
Whiskey for more than one hundred years has been the most general and comprehensive term applied to liquor distilled from grain. :It is derived from the Irish word "Usquebaugh, " and for more than a century has been used in Ireland, Scotland, England, and in this country to :Jean ardent spirits - distilled from grain reduced to potable strength. Its flavor and color have varied, with the changes in the process of its manufacture in the United States, Ireland, Scotland, and England, and have been varied by the introduction into it of fruit juice and burnt sugar and other substances. It was manufactured originally in what was called a "pot still" by the distillation of wort or beer fermented from grain. It was composed of about equal parts of water and ethyl alcohol and certain substances now called congeneric substances which united were known as fusel oil; and when the distillate was first produce-C._ the so-called fusel oil gave to the liquor a very disagreeable odor and a • very raw taste. The efforts of those engaged in the manufacture were directed toward the reduction of the amount of fusel oil in the product and toward the elimination of the disagreene odor and taste produced by it. This was effected for a great many years by passing the distilled spirit through leaching tubs of charcoal, which tended to purify it and reduce the amount of fusel oil, and subsequently rectification was followed by another step--i. e., redistillation--and at all times by the introduction of fruit essences or burnt sugar. Burnt sugar is used in Scotch whiskey as well as in American whiskey, though not to the same extent or in the same proportion. Between 1850 and 1860 in this country a very large and profitable business bet-an in certain well-known brands of whiskey, which were purified by leaching tubs and were colored and. flavored by the use of caramel or burnt sugar. Though there was some American white whiskey, the conventional amber or brown color and whiskey flavor in America was that produced by a mixture of the raw whiskey with its fusel oil reduced as much as possible, and of burnt sugar or caramel.
Some time during the Civil War it was discovered that if raw whiskey as it came from the still, unrectified and without redistillation, and thus containing from one-half to one-sixth of 1 per cent of fusel oil, was kept in oak barrels, the inside of the staves of which were charred, the tannic acid of the charred oak which found its way from the wood into the distilled spirits would. color the raw white whiskey to thQ conventional color of American whiskey, and after some years would eliminate altogether the raw taste and the bad odor given the liquor by the fusel oil and would leave a smooth delicate aroma, making the whiskey exceedingly palatable without the use of any additional flavoring or coloring. The whiskey thus made by one distillation and by aging in charred oak barrels came to be known as "straight" whiskey, and to those who were good judges came to be regarded as the best and purest whiskey.
Meantime the other and shorter method of making whiskey grew greatly in its use, and the amount of distilled spirits made from grain either by rectifying or by redistilling, which were reduced to potable strength and given a conventional flavor of whiskey by the use of burnt sugar and other
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essences, far exceeded that of the so-called "straight whiskies," and as according to this method a potable, pleasant beverage could be made in a short time without the aging in wood and without the loss of interest on the capital involved in holding the product for two or three years *hile it acquired color and flavor, it could be sold, of course, much cheaper. It was made originally by distilling a product at a proof of from 140° to 160°, called "high wines," by taking.thesehigh wines to a rectifying house and there passing them through leaching tabs to reduce as far as possible the fusel oil, and then coloring and flavoring, the whiskey with burnt sugar; or by another step or purification, which was a redistillation of the high wines, reducing the fusel oil still further, and then the coloring and flavoring by caramel. The product of this system was known as "finished whiskey;" whereas the raw spirits delivered were known as "high wines."
Subsequently, about 1872 or a little later, a patent still came into use by which it was possible through one process of continuous distillation .to clarify the spirits somewhat more completely of the fusel oil than the old system of rectifying by leaching tubs, or even by redistillation as a separate step; and the result of this continuous distillation was the production of what was known, and is known now, as."neutral spirits" at a proof varying from 160° to 188°. May still had a small trace of the coneneric substances that go to make up what is known as "fusel oil," but not enough substantially to affect the flavor. The rectifiers, who pay a tax as such under the internal-revenue law, then began to use neutral spirits as they had used high wines before, to color them with, burnt sugar, and to offer them as whiskey. The difference between whiskey made from high wines and the whiskey Amade from neutral spirits was the difference in the traces of fusel oil, being less in the latter than in the former, but, so far as I am able to ae-termine from the evidence, there was only a difference in slight degree. The importance of the fusel oil in the product ready for the drinker can be judged by the fact that it varies in straight whiskey from one-half o I per cent to one-sixth of 1 per cent, but that in rectified and•redistilled whiskey it is considerably less, and in the presence of burnt sugar it can hardly be perceptible to the taste.
All. these products—straight whiskey, rectified spirits whiskey, redistilled spirits whiskey, and neutral spirits whiskey--when reduced by water to a hundred proof or less and sold upon the market as beverages were known to the trade and to the customers as "whiskies;" the difference be7 tween straight whiskey and the neutral spirits whiskey, which, now constitutes and for thirty years last passed has constituted, perhaps 75 per cent of all the whiskey sold, was well understood, and the difference between the two was seen in the difference in price which each commended in the market.
It was supposed for a long time that by the aging of straight whiskey in the. charred wooe, a chemical change took place which rid the liquor of fusel oil and thus destroyed the unpleasant taste and odor. It now appears by chemical analysis that this is untrue; that the effect of .the aging is only to dissipate the odor, and to modify the raw, unpleasant flavor, but to leave the fusel oil still in the straight whiskey. Fusel oil is known to be poisonous and injurious. In the small quantity in the straight whiskey it probably does no harm. But however this may be, it is certain that in the
whiskey made made of neutral spirits there is less fusel oil and less of the poison arising therefrom than :there is in the. straightnwilislcey. The quesr-tion, therefore, is not here one of health. It is only one of correct brandin,,; to prevent deceit of the public as to what it is buying.
After an examination:of all the evidence it seems to me over-whelmingly.establishea that for a hundred years the term. "whiskey" in the trade .and amons"the customers has included all potable liquor distillea frOm.grain; that the straight. whiskey is, as compared with the whiskey made by rectification or redistillation and flavoring and colorin matter, a subsequent improvement, .and that therefore it is a perversion of the pure-food. act to attempt now to limit the meaning of the term !Iwhiskey" to that which modern manufacture and taste have made the most desirable variety:
Exactly the some question has arisen in England and has been determined by a Royal Commission of euinent lawyers and scientific men.in the same way. That commission held, after a full investigation, that neutral, or velvet spirits as they are there more frequently called., made by a. patent still from grain was whiskey when reduced to potable strength. The same cOn-,. cluiaais shown to have been in the mind of Congress in 1882 when a question arose in the House of Representatives, as between the method of ta±ation of straight whiskey and of that liquor which. was the product of continuous distillation. Both were denominated whiskey in the discussion Congress legislated with reference to the distinction between the two in the method of manufacture and preparation for use as a beverage, which was admitted on all: sides to* exist, but no question was made as to the proper application of the terra "whiskey" to both kinds of liquor.
With deference to the very able consideration of this question made by Dr. Wiley and other distinguished chemists, I think the fundamental error in all conclusions differing from this is one of fact as to what the name of whiskey actually has included for the last hundred years, and while Mr. Bowers, the Solicitor General, greatly enlarged in his definition the character and scope of the term uvhiskey" beyond theirs, he fell into what seems to me to be the error of making too nice a distinction in reference to the amount of congeneric substances or traces of fusel oil required to constitute whiskey for practical purposes when the flavor and color of all whiskies but straight whiskies have been chiefly that of et41 alcohol and burnt sugar. If high wines at from 140° to 1600 when reduced to potable strength and containing a very small quantity of fusel oil and flavored by burnt sugar are whiskey, as lie 11.as found, then the mere improvement in the process by continuous distillation so as to give a product of from 130° to 188° proof and. still further to reduce its fusel oil, is to not change its whole nature or to make what was genuine "whiskey" "imitation whiskey" because of a slight reduced trace of one ingredient. The distinction is too impracticable, in. .my judgment, for the execution of the law. It 'may be that the public were not fully or exactly advised'as to the change in :the process when it was made, but the change in the 1.3rocess was slight and effecfed economy in the production rather than the flavor of the product; and if the public detetted no difference in flavor in the product of the improved process, as they did not, but continued for forty years to regard it as the' same, there was nq • deceit in continuing to call whiskey that which was thus merely improved in
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its manufacture without substantial change ofcomposition or flavor.
It Is undoubtedly true that the liquor trade has been disgracen4117 full of frauds upon the pulqic by false labels; but these frauds did not consist in palming off something which was not whiskey as whiskey, but in palming one kind of whiskey as another and -better kind of whiskey. This1;.'ey made of rectified or reditilled or neutral spirits and. given a color and flavor by burnt sugar, made in a few days, was often branded as Bourbon or Rye • straight whiskey.. The- way to remedy this evil is not to attempt , to .,chalige• the meaning al' id scope of the term "whiskey" accorded to it for. one hundred s years, and narrow it to include only straight whiskey; and there is nothing in the pure-food law that warrants the inference of such an intention by • Congress. The way to do it is to require a branding in connection with the use of the term "whiskey" which will indicate just what kind of whiskey the pack.age contains. Thus, straight whiskies may be branded as such and. may be accompanied by the legend "aged in wood." Whiskey made from rectified., redistilled, or neutral spirits may be branded.as whiskey made from rectified, redistilled, or neutral spirits, as the case may be.
With this result, the question arises what ought the. order to be so that the purpose of the pure-food law can be carried. out. The term "straight whiskey" is well understood. in the trade and well understood by con-suraers. There is no reason, therefore, why those who make straight whiskey may not have the brand. upon their barrels of straight whiskey, with further descriptive terms as "Bourbon" or 1117.e" whiskey, as the composition of the grain used nay justify, and they may properly add, if they choose, that it is aged in wood.
Those who make whiskey of "rectified.," "redistilled," or "neutral" spirits can not complain if, in order to prevent further frauds, they are required to use a brand which shall show exactly the kind of whiskey they are selling. For that reason it seems to me fair to require them to 'brand. their product as "whiskey made from rectified spirits," or "whiskey made from red.istilled spirits," or "whiskey made 1ron neutral spirits," as the case may 'be; and if aged in the wood, as sometimes is the case with this class of whisld.es, they may add this fact.
A great deal of the liquor sold is a mixture of straight whiskey with whiskey made from neutral spirits. • Now, the question is whether this ought to 'be regarded. as a compound or a blend. The pure-food law provides that "in the case of articles labeled, branded, or tagged. so as to plainly indicate that they .are• ce•mpounds, imitations, or blends," the tem nlend" shall be construed to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients used. for the purpose of coloring and. flavoring only. It seems to me that straight whiskey and, whiskey made from neutral spirits, each with more. than ninety-nine and one-half per cent ethyl alcohol and water, and with less than half, of one per cent of fu.sel oil, are clearly a mixture of like substances, and that while the latter may have and often does have burnt sugar or caramel to flavor .and color it, such coloring and flavoring ingredients may be regarded as for flavoring and. coloring only, because the use of 'burnt sugar to color and flavor spirits as whis-
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key is much older than the coloring and flavoring by the tannin of the charred. bark. Therefore, where straight whiskey and whiskey made from Leu-tral spirits are mixed, it is proper vto call than a blend. of straight whiskey and whiskey made from neutral spirits. This is also in accord with the decision of the British Royal Commission in the case which I have cited. upon a similar issue.
Canadian Club whiskey is a blend. of whiskey made from neutral spirits and o straight whiskey aged in the 'wood., and. its owners and. vendors are entitled. to brand it as such.
Neutral spirits made from molasses and. reduced to a potable strength has sometimes been called. whiskey, but not for a sufficient length of time or under circumstances justifying the conclusion that it is a proper trade naLae. The distillate from molasses used. for drinking has commonly been known as rm. The use of whiskey for it is a misbranding.
There are other kinds of liquor in respect to which a decision is invoked, but it is thought that the principles above stated, and. the directions above given in specific cases, will furnish a clear precedent for all other cases;
Thy such an order as this decision indicates the public will be made to know exactly the kind of whiskey they buy and drink. If they desire straight whiskey, then they can secure it by purchasing what is branded "straight whiskey." If they are willing to drink whiskey made of neutral spirits, then they can buy it under a brand showing it; and if they are content with a blend of flavors made by the mixture of straight whiskey and. whiskey made of neutral spirits, the brand of the blend. upon the package will enable them to buy and drink that which they desire. This was the intent of the act. It injures no Pants lawful business, because it only insists 'upon the statement of the truth in the label. If those who manufacture whiskeymade of neutral spirits, and wish to call it "whiskey" without explanatory phrase, complain because the addition of "neutral spirits" in the label tokes away some of their trade, they are without a ji.st ground, because they lose their trade merely from a statement of the fact. The straight-whiskey men are relieved from all future attempt to pass off neutral-spirits whiskey as straight whiskey. More than this, if straight whiskey or any other kind of whiskey is aged in the wood., the fact may be branded on the package, and this claim to public favor may truthfully be put forth. Thus the purpose of the pure-food. law is fully accomplished in respect of misbranding and truthful branding.
This opinion will be certified to the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor to prepare the regulation in accordance herewith, under the pure-food law; and. to the Secretary of the Treasury and the Commissioner of Internal Revenue to prepare the prober regulation under the Internal .Revenue Law.
Win. H. Taft.
The White House, December 27, 1909.