branded if labeled whisky without qualification, or as a blend of whiskies. However, mixtures of whisky, with a potable alcoholic distillate from sources other than grain, such as cane, fruit or vegetables, are not misbranded if labeled compound whisky, provided the following requirements of the law are complied with: First, that the product shall be labeled, branded and 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 whisky, 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 Whisky. A compound of whisky and cane distillate.' Unmixed potable alcoholic distillates from sources other than grain, with or without harmless color or flavor, are not misbranded if labeled 'Imitation Whisky.'

"When an essence or oil is added to a distillate of grain, which without such addition is entitled to the name whisky, and the effect of such addition is to produce a product which simulates a whisky of another kind different from the kind of whisky to which the essence is added, the mixture is an imitation of the particular kind of whisky which is simulated, e. g., if rye essence be added to a highly rectified distillate of corn, the mixture is misbranded if labeled rye whisky. Such a mixture is not misbranded if labeled 'Whisky-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 whisky, vended as whisky or as blends or compounds thereof, but when descriptive matter, qualifying the name of whisky, 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 false 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

PURE FOOD-28.

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 U. S. Patent Office gives no license for its deceptive use. All descriptive matter qualifying or particularizing the kind of whisky, 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 of the whisky appears, so that the label as a whole shall not be misleading in any particular.

"Food Inspection Decisions 45, 65, 95 and 98, and all rulings in conflict herewith, are hereby revoked.""

"At the instance of certain parties in interest we have considered the suggestion for a modification of the rules embodied in Food Inspection Decision No. 113. The suggestion was that mixtures of whisky with a potable alcohol distillate from sources other than grain, such as cane, fruit or vegetables, are not misbranded if labeled 'a blend of whisky and neutral spirit.' After exhaustive consideration we have concluded that such a change would be in conflict with the controlling reason of the rule itself.

"It has also been suggested that the term 'blend' might be employed under the circumstances given if the neutral spirit disclosed its origin by the designation 'neutral molasses spirit,' or other like terms. While a modification in that form might protect the public against deception or misunderstanding, we are nevertheless of the opinion that such a modification would still be in conflict with the fundamental principle adopted in the President's opinion and in Food Inspection Decision No. 113. In our opinion such a combination, if it is to be designated according to the terms of the law, would be a compound, and not a blend, and if either term is to be employed the former is the only one that is permissible.

1 F. I. D. 113.

"Our conclusion accordingly is that we must decline to modify the decision heretofore adopted in any respect."2

To brand a whisky as "Prairie Flower Whisky" is to represent it as a straight whisky, and if it contains a rectified. product combined with grain distillates it is misbranded.3

§ 384. Whisky, Opinion of the Attorney General on Blending.

On April 10, 1907, the Attorney General of the United States gave the President the following opinion on the blending of whiskies, which the then President, Roosevelt, approved:

"Sir: In accordance with your instructions, I have examined the papers referred to me by you, at the suggestion of the Secretary of Agriculture, and herewith submit you my opinion on certain questions which appear from said papers to have arisen in connection with the labeling or branding of different kinds of spirit, claimed by their manufacturers

or proprietors to be entitled to the name of 'Whisky,' with or without qualifying words. In addition to the papers referred to me by you, I have received and considered a number of other papers submitted to me by various individuals, including Messrs. Hemphill and Worthington and Mr. W. M. Hough, as counsel for certain distillers and rectifiers interested in the questions under consideration, and I have personally gathered some further information which seemed to me material in view of the character of the questions involved.

"These questions have arisen in the construction of section 8 of the Act approved June 30, 1906, entitled:

"An Act for preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes,' and generally known as "The pure food law.' The portion of that law bearing upon the points in dispute is section 8, which, so far as material, is as follows:

"Sec. 8. That the term "misbranded," as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein, which shall be false or misleading in any particular. That for the purpose of this Act an article shall also be deemed to be misbranded: In the case of food: First. If it be an imitation of or offered for sale under the distinctive name of another article.

Fourth.

If the package containing it or its label shall bear any statement, design, or device regarding the ingredients or the substances contained therein, which statement, design or device shall be false or misleading in any particular: Provided, That 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 case of mixtures or compounds which may be now or from time to time hereafter, known as articles of

food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced.

"'Second. In the case of articles labeled, branded, or tagged, so as to plainly indicate that they were compounds, imitations, or blends, and the word "compound," "imitation," or "blend," 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: And provided further, That nothing in this Act shall be construed as requiring or compelling proprietors or manufacturers of proprietary foods which contain no unwholesome added ingredient to disclose their trade. formulas except in so far as the provisions of this Act may require to secure freedom from adulteration or misbranding.'

"Before stating or discussing the particular questions as to which you desire my opinion, I think it will conduce to clearness to call attention to the general purpose of this Act and to some considerations founded thereon.

"The primary purpose of the pure food law is to protect against fraud consumers of food or drugs; as an incidental or secondary purpose, it seeks to prevent,, or, at least, to discourage the use of deleterious substances for either purpose; but its first aim is to insure, so far as possible, that the purchaser of an article of food or of a drug shall obtain nothing different from what he wishes or intends to buy. According to the recognized canons of statutory construction, the language of its provisions must be interpreted with reference to and in harmony with this primary general purpose; so that, in determining the proper nomenclature of articles of food as defined in the Act, the intention of the law will be best observed by giving to such articles names readily understood and conveying definite and familiar ideas to the general public, although such names may be inaccurate in