The second question is:

II

What did the term whisky include?

My opinion upon and answer to this question is:

The term "whisky" included, both at and prior to the date of the passage of the Pure Food Law, and has since included, the spirituous liquor composed of (1) alcohol derived by distillation from grain; (2) a substantial amount of by-products (often spoken of as congenors) likewise derived by distillation from grain and giving distinctive flavor and properties; (3) water sufficient without unreasonable dilution, to make the article potable; and (4) in some cases - though such addition is not essential - harmless coloring or flavoring matter, or both, in amount not materially affecting other qualities of whisky than its color or flavor.

A mixture of two or more articles, being each a whisky within the foregoing description, was at and prior to the date of passage of the Pure Food Law, and has since been, whisky. A mixture of one or more whiskies, being each whisky within the foregoing description, with alcohol or a neutral spirit - being an article different from whisky through lack of a substantial amount of by-products derived by distillation from grain, and giving distinctive flavor and properties - is whisky, if the alcohol or neutral spirit is derived by distillation from grain, and if the mixture still conforms to the above general description of whisky; and so it was at and prior to the date of passage of the Pure Food Law.

A spirit derived from any other substance than grain was not at or prior to the date of the passage of the Pure Food Law, and has not since been, whisky; and a mixture of a whisky with such spirit was not at or prior to the passage of the Pure Food Law, and has not since been, whisky.

A neutral spirit derived by distillation from grain, but lacking a substantial amount of by-products derived by distillation from grain and giving distinctive flavor and properties, was not at or prior to the passage of the Pure Food Law, and has not since been, whisky.

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From the above observations it will be seen that there has been a wide variance of opinion among established authorities respecting the correct use of the term "whisky." The President of the United States, W. H. Taft who, after giving the matter consideration, rendered a decision in which he summarizes an answer to the question, "What is Whisky?" as follows:

. . . The term "straight whisky" is well understood in the trade and well understood by 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" 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 the 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 99 1/2 percent ethyl alcohol and water, and with less than 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 and whisky 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 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 known 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 the 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 neutral-spirits 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.

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The regulations of the Bureau of Internal Revenue which control the marking and branding of distilled spirits at the present time (1918) are based on the above opinion but go much farther in validating misbranding and adulterations.