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WHAT IS THE MEANING OF THE TERM WHISKY UNDER THE PURE FOOD ACT, AND THE PROPER REGULATIONS FOR BRANDING VARIOUS KINDS OF WHISKY UNDER THE INTERNAL REVENUE ACT?
DECISION BY PRESIDENT TAFT
By the Pure Food Act of June 30, 1906, 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 being 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 whisky" is a misbranding Iwithin the act. All distilled spirits pay, under the internal-revenue laws, a heavy tax. The tax is measured by a certain rate per proof gallon. Theoretically, pure ethyl alcohol is 200' proof. A proof gallon of distilled spirits is half water and half alcohol, or a gallon of 100' proof. Potable strength varies from 99' 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 how certain distilled spirits should be branded. The effect of this order was to deny the right to the use of the brand "whisky" to any distilled liquor except that which is known to the trade as "straight" whisky and to require the branding of several kinds of liquor distilled from grain as "imitation whisky." The Pure Food Act does not mention the term "whisky"; 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 whisky to those who have to execute the pure-food law and the internal-revenue law, subject, of course, to a review of the correctness of their action by courts whenever a case between parties litigant, 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 whisky within the pure-food law, and rendered two decisions in which he, in effect. limited the proper use of the brand to what is known in the trade as straight whisky. So far as appears from Mr. Bonaparte's opinions, he accepted a definition of whisky 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. Bonaparte's opinions. A petition was filed in April last by a large number of distillers whose interests were affected, asking that the issue passed upon by Mr. Bonaparte and confirmed by Mr. Roosevelt in Internal Revenue Order No. 723 be reheard on the ground that the meaning of the term "whisky" is one of fact and is to be properly determined only after consideration of competent evidence drawn from those familiar with the trade in which liquors are manufactured 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 interested.
1. What was the article called "whisky 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 whisky " include?
3. Was there included in the term "whisky" any maximum or minimum of congeneric substances as necessary in order that distilled spirits should be properly designated "whisky"?
4. Was there any abuse in the application of the term "whisky" 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 "whisky as a drug applicable to a different product than whisky as a beverage? If so, in what particulars?
A 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 socilitor 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 whisky, as a term of the trade for many years, included much more than "straight" whisky; that it included “rectified" whisky, "redistilled" whisky, 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 whisky 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 of the term whisky" 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 the liquor the distinctive flavor of whisky. He found, further, that the mixture of neutral spirits with whisky, if a sufficient quantity of fusel oil or congeneric substances remained to retain the whisky flavor, was not an adulteration and did not make it other than whisky. 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 of the importance of the case, I thought it necessary to read 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 a somewhat different conclusion from him with much reluctance. But I am led to do so by a very clear conviction as to what the evidence means.
Whisky for more than 100 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 mean 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 produced 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 disagreeable 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 whisky as well as in American whisky, though not to the same extent or in the same proportion. Between 1850 and 1860 in this country a very large and profitable business began in certain well-known brands of whisky 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 whisky, the conventional amber or brown color and whisky flavor in America was that produced by a mixture of the raw whisky with its fusel oil reduced as much as possible and of burnt sugar and caramel.
Sometime during the Civil War it was discovered that if raw whisky as it came from the still, unrectified and without redistillation and thus containing from one-half to one-sixth of 1 percent 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 whisky to the conventional color of American whisky, 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 whisky exceedingly palatable without the use of any additional flavoring or coloring. The whisky thus made by one distillation and by aging in charred oak barrels came to be known as "straight" whisky, and to those who were good judges came to be regarded as the best and purest whisky.
Meantime, the other and shorter method of making whisky 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 whisky by the use of burnt sugar and other essences, far exceeded that of the so-called "straight whiskies"; and as according to this method a potable, pleasing beverage could be made in a short time with the aging in wood and without the loss of interest on the capital involved in holding the product for 2 or 3 years while 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 these high wines to a rectifying house and there passing them through leaching tubs to reduce as far as fossible the fusel oil, and then coloring and flavoring the whisky with burnt sugar; or by another step of 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 whisky"; 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'. They still had a small trace of the congeneric 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 whisky. The difference between the whisky made from high wines and the whisky made 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 determine 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 whisky from one-half of 1 percent to one-sixth of 1 percent, but that in rectified and redistilled whisky it is considerably less, and in the presence of burnt sugar it can hardly be perceptible to the taste.
All these products-straight whisky, rectified-spirits whisky, redistilled-spirits whisky, and neutral-spirits whisky-when reduced by water to 100 proof or less and sold upon the market as beverages, were known to the trade and to the customers as whiskies; the difference between straight whisky and the neutral-spirits whisky, which now constitutes and for 30 years last passed was constituted, perhaps 75 percent of all the whisky sold, was well understood, and the difference between the two was seen in the difference in price which each commanded in the market.
It was supposed for a long time that by the aging of straight whisky in the charred wood 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; and 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 whisky. Fusel oil is known to be poisonous and injurious. In the small quantity in the straight whisky it probably does not harm. But, however this may be, it is certain that in the whisky made of neutral spirits there is less fusel oil and less of the poison arising therefrom, than there is in the straight whisky. The question, therefore, is not here one of health. It is only one of correct branding to prevent deceit of the public as to what it is buying.
After an examination of all the evidence it seems to me overwhelmingly established that for a hundred years the term "whisky" in the trade and among the customers has included all potable liquor distilled from grain; that the straight whisky is, as compared with the whisky made by rectification or redistillation and flavoring and coloring 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 "whisky to that which modern manufacture and taste have made the most desirable variety.
Eactly the same question has arisen in England and has been determined by a Royal Commission of eminent 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 whisky when reduced to potable strength. The same conclusion is 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 taxation of straight whisky and of that liquor which was the product of continuous distillation. Both were denominated whisky 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 term "whisky" 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 whisky 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 "whisky" beyond theirs, he fell into what seems 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 whisky 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' to 160' when reduced to potable strength and containing a very small quantity of fusel oil and flavored by burnt sugar are whisky, as he found, then the mere improvement in the process by continuous distillation so as to give a product of from 160' to 188' proof and still further to reduce its fusel oil is to not change its whole nature or to make what was genuine “whisky' ""imitation whisky' 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 40 years to regard it as the same, there was no deceit in continuing to call whisky that which was thus merely improved in its manufacture without substantial change of composition or flavor.
It is undoubtedly true that the liquor trade has been disgracefully full of frauds upon the public by false labels, but these frauds did not consist in palming off something which was not whisky as whisky but in palming one kind of whisky as another and better kind of whisky. Whisky made of rectified or redistilled 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 whisky. The way to remedy this evil is not to attempt to change the meaning and scope of the term "whisky ", accorded to it for 100 years, and narrow it to include only straight whisky; 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 "whisky " which will indicate just what kind of whisky the package contains. Thus, straight whiskies may be branded as such whisky made from rectified, redistilled, or neutral spirits, as the case may be.
With this result, the question arises that what ought the order to be so that the purpose of the Pure Food Law can be carried out. The term "straight whisky is well understood in the trade and well understood by the consumers. There is no reason, therefore, why those who make straight whisky may not have the brand upon their barrels of straight whisky, with further descriptive terms as "Bourbon 99 or "rye" whisky, as the composition of the grain used may justify, and they may properly add, if they choose, that it is aged in the wood.
Those who make whisky of "rectified" "redistilled ", or "neutral spirits " cannot complain if, in order to prevent further frauds, they are required to use a brand which shall show exactly the kind of whisky they are selling. For that reason it seems to me fair to require them to brand their product as "whisky" made from rectified spirits, or whisky made from redistilled spirits, or whisky made from neutral spirits, as the case may be; and if aged in wood, as sometimes is the case with this class of whiskies, they may add this fact. A great deal of the liquor sold is a mixture of straight whisky with whisky 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 compounds, imitations, or blends, the term “blend" 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 whisky and whisky made from neutral spirits, each with more than 992-percent ethyl alcohol and water, and with less than one-half of 1 percent of fusel 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 whisky is much older than the coloring and flavoring by the tannin of the charred bark. Therefore, where straight whisky and whisky made from neutral spirits are mixed, it is proper to call them a "blend" of straight whisky than whisky made from neutral spirits. This is also in accord with the decision by the British Royal Commission in the case which I have cited upon a similar issue.
Canadian Club Whisky is a blend of whisky made from neutral spirits and of straight whisky aged in the wood, and its owners and vendors are entitled to brand it as such.
Neutral spirits made from molasses and reduced to potable strength has sometimes been called whisky, but not for a sufficient length of time or under circumstances justifying the conclusion that it is a proper trade name. The distillate from molasses used for drinking has commonly been know as "rum." The use of whisky 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.
By such an order as this decision indicates the public will be made to know exactly the kind of whisky they buy and drink. If they desire straight whisky, then they can secure it by purchasing what is branded "straight whisky." If they are willing to drink whisky 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 whisky and whisky 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 this act. It injures no man's lawful business, because it only insists upon the statement of the truth in the label. If those who manufacture whisky made of neutral spirits, and wish to call it whisky without explanatory phrase, complain because the addition of neutral spirits in the label takes away some of their trade, they are without a just ground, because they lose their trade merely from a statement of the fact. The straight-whisky men are relieved from all future attempt to pass off neutralspirits whisky as straight whisky. More than this, if straight whisky or any other kind of whisky 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 proper regulation under the internal revenue law.
THE WHITE HOUSE,
December 27, 1909.
HUGH J. MCMACKIN,
WILLIAM H. TAFT.
ST. LOUIS, Mo., June 19, 1935.
Secretary National Press Building, Washington, D. C.: Duncan, of Ways and Means Committee, advises us that hearing on Alcohol Control Act will be at 7:30 tonight and tomorrow night, and asks us for representative. We are wiring him that you will represent us at the meeting to protest against legislation that will deprive the wholesale liquor dealer from receiving bulk liquors, as he has had such privilage for a generation. By order of Otto Hirsch, president.
MISSOURI WHOLESALE LIQUOR DEALERS' ASSOCIATION OF MISSOURI,