FOOD INSPECTION DECISION 45.) BLENDED WHISKIES

Many letters are received by the Department making inquiries concerning the proper method of labeling blended whisky. Manufacturers are anxious to know the construction placed by the Department upon this particular part of the food and drugs act of June 30, 1906 and to ascertain under what conditions the words, "blended whisky" or "whiskies" may be used. The following quotation from one of these letters presents a particular case of a definite character:

"On account of the uncertainty prevailing in our trade at the present time as to how to proceed under the pure-food law and regulations regarding what will be considered a blend of whiskies, I am taking the liberty of expressing to you to-day two samples of whisky made up as follows:

"Sample A contains 51 per cent of Bourbon whisky and 49 per cent of neutral spirits. In this sample a small amount of burnt sugar is used for coloring, and a small amount of prune juice is used for flavoring, neither of which increases the volume to any great extent.

"Sample B contains 51 per cent of neutral spirits and 49 per cent of Bourbon whisky. Burnt sugar is used for coloring, and prune juice is used for flavoring, neither of which increases the volume to any great extent.

" I have marked these packages 'blended whiskies' and want your ruling as to whether it is proper to thus brand and label such goods.

"My inquiry is for the purpose of guiding the large manufacturing interests in the trade that I represent."

In a subsequent letter from the same writer the following additional statement is made:

"The reason for wanting your decision or ruling in this matter is just this: No house in the trade can afford to put out goods and run the risk of seizure and later litigation by the Government on account of the odium that would be attached. to fighting the food and drugs act."

To this a formal answer was prepared by the Bureau of Chemistry, and signed by the Secretary.

The question presented is whether neutral spirits may be added to Bourbon whisky in varying quantities, colored and flavored and the resulting mixture be labeled "blended whiskies." To permit the use of the word "whiskies" in the described mixture is to admit that flavor and color can be added to neutral spirits and the resulting mixture be labeled "whisky." The Department is of the opinion that the mixtures presented cannot legally be labeled either "blended whiskies" or "blended whisky." The use of the plural or the word "whisky" in the first case is evidently improper for the reason that there is only one whisky in the mixture. If neutral spirit, also known as cologne spirit, silent spirit, or alcohol, be diluted with water to a proper proof for consumption and artificially colored and flavored, it does not become a whisky, but a "spurious imitation" thereof, not entirely unlike that defined in Section 3244, revised statutes. The mixture of such an imitation with a genuine article can not be regarded as a mixture of like substances within the letter and intent of the law.

(Signed) JAMES WILSON,

Secretary of Agriculture.

Washington, D. C.,

December 1, 1906.

Early in January, 1907, in the very first days of the enforcement of the law it was discovered that the Secretary of Agriculture was very much perturbed in regard to F. I. D. 45. At that time the star of the Solicitor of the Department was rapidly increasing in brilliancy. The time was speedily approaching when the head of the Department became only the vehicle to carry the will of the Solicitor into action. I was cited to appear in the Secretary's office on the 22nd of February, 1907, for a conference on the whisky question. The birthday of Washington was used to perpetrate the first overt act against the food law. There were present at this conference the Secretary, and the Assistant Secretary of Agriculture, the Solicitor, Mr. George P. McCabe, and the Chief of the Bureau of Chemistry. The conference began by a statement by the Secretary that this conference should be behind closed doors and no report of it should be made in any way to the press.

I was first asked by the Secretary if the Bureau of Chemistry still held to the principles contained in F. I. D. 45. I replied in the affirmative. He asked the Assistant Secretary, Mr. Hayes, his opinion in the matter. Mr. Hayes promptly voted in favor of the Bureau's definition of whisky. He then asked the Solicitor his opinion. He replied, "Dr. Wiley's definition of whisky is absurd. Whisky is any alcoholic beverage made from grain, properly colored and flavored, according to the prevailing custom of the trade." The Secretary said, "I agree with my Solicitor." I immediately called his attention to the fact that there was only one body appointed by the Act to make an initial decision as to what constituted misbranding or adulteration of foods and drugs, namely, the Bureau of Chemistry. The only authority recognized by the Act to review this decision was a United States judge. I said, "The Bureau of Chemistry decision will therefore stand until over-ruled by a court of the United States." He replied, "I will not take your construction of the law, but that of my Solicitor; that is what he is here for, to interpret the law to me." This act of the Secretary and Solicitor constituted the first abrogation of the Food Law by executive authority and laid the foundation for a succession of similar violations.

As a matter of history I may say that I obeyed the Secretary's injunction to make no report of this matter to the press. Immediately on leaving his office I went to the Cosmos Club and called up Mr. Loeb, secretary to President Roosevelt. I related to him what had happened in the Secretary's office and asked him if he could come over to the Club and take luncheon with me. Loeb was immediately and greatly interested in this decision. I pointed out in detail all the circumstances which led to it. I felt certain that Secretary Wilson would go to President Roosevelt with this illegal decision.

I asked Mr. Loeb to acquaint the President of what had happened and to get a promise from him, if possible, that he would not give his approval to Secretary Wilson's decision until I had an opportunity to lay the whole matter before him. Later in the day Mr. Loeb called me over the telephone and said the President had agreed to this delay. Meanwhile the papers were full of this decision. It had been given to the press by some one of the four people who were present at the conference. I was not the one who gave it to the press.