be uniform and invariably be excellent. This is equivalent to the assertion that the dealer in gold bricks introduces into his merchandise enough gold so that his customer will not be cheated. In practice no one doubts that the mixing would not be based on scientific fitness but on profit. The amount of adulterant used would be limited not by the mixers' notions of nutritive values, but solely by his cupidity. He will put in just as much of the cheaper product as the traffic will bear and have his mixture salable-not necessarily edible.

In "Fair Play for Corn," circulated by the proponents of this bill, at page 55 this significant statement occurs:

"In commenting upon the foregoing technical points, it is perhaps not out of place to bring out the fact that these laboratories have for many years been fully conversant with the subject of mixed flours. Disregarding the ethical question involved in the sale of such flour, which is foreign to this report, there can be no fair criticism directed at mixed flour."

The millers and bakers do not choose to ignore the ethical question which this proposed legislation presents. They are properly jealous of the integrity of wheat flour and wheat-flour bread and are opposed to this bill, because it is a means by which this integrity may be impaired. If it were otherwise, an opportunity under Government sanction to sophisticate would be welcomed, for there is no doubt that the unsupervised adulteration of flour in intrastate sales and inadequate control in all sales, which the bill under consideration permits, would be profitable.

THE EFFECT OF THE RAINEY BILL ON THE FOOD AND DRUGS ACT.

The present mixed-flour law, being a revenue act, embraces all manufacture and sale, intrastate, interstate, and foreign. The pure food act, being based upon the commerce clause of the Constitution, embraces only the territories, the District of Columbia, and interstate and foreign shipments. Mixed flour is now controlled at the source.

All markings on packages containing it are uniform everywhere from the time the package leaves the producer until it reaches the consumer. The operation of the law is adequate, complete, and uniform.

The food and drugs act does not operate within the various States. Any protection to the public within the States would have to depend on the contradictory provisions of State statutes, the divergent regulations under them, their various interpretations and frequently ineffective administration. Mixing plants could be installed in all large centers of distribution and the trade damaged by adulterated flour, without any remedy under the food and drugs act.

The foregoing is on the assumption that the proposed amendments to the food and drugs act are intended to and do provide adequate protection against deception. The most cursory examination of them is enough to show that they do not.

A fundamental objection at once arises. An exception is proposed to be made in the food and drugs act in favor of the adulteration of flour which does not apply to any other product.

Section 7 of the act defines adulteration as follows: "That an article is adulterated in the case of food if any substance has been mixed or packed with it so as to reduce or lower or injuriously affect its quality or strength."

Under the provisions of the food and drugs act as it now stands the admixture of cornstarch or corn flour to wheat flour is an adulteration. To attempt to except this particular adulteration of this particular product from the operation of the law is exactly to that extent a breaking down of its provisions. It establishes a precedent which would probably result in repeated applications by other sophisticators to permit their particular form of adulteration to be legalized. If the makers of adulterated flour are permitted to operate under the sanction of law, why should not the producers of adulterated milk, butter, canned goods, honey, sirups, packing-house products, and others be equally favored?

This legalizing of the adulteration of the country's most important article of food is, of course, indefensible, and if permitted would make further and additional attempts at legalized fraud inevitable.

It is contended that adulteration becomes legitimate when the purchaser is advised that what is being sold to him is not the genuine article. Disregarding the moral obliguity which this contention implies, the present bill does not adequately advise the purchaser what he is getting; as just pointed out, it reaches only a portion of the public, those who buy goods which are shipped from one

State to another, and there is no known way of determining the truth of the proportions of the adulterant which the proposed amendment is stated to require the interstate packages to show. A statement which when false can not be shown to be false protects no one. It is only an encouragement to cheat, for the benefit of those who need no encouragement.

The proposed second proviso to section 2 attempts to define "mixed flour," and then provides that when "mixed flour" is exported it shall in all respects comply with the amended provisions of section 8. Those provisions regulate the method of marking or branding "mixed flour." What if the "mixed flour" is not for export? The bill does not say. As the bill stands it defines mixed flour, it regulates the marking and branding, and provides that the required marking or branding shall be in all respects complied with when the mixed product is exported, and that is all that it enacts with respect to mixed flour. Any other construction would be based on inference or hypothesis as to what Congress meantnot on the language used.

When a statute makes an act theretofore not a crime subject to punishment as a crime if committed, and the food and drugs act is a criminal statute in that respect, the words of such statute will never be extended by construction beyond their natural import.

The proviso further prescribes that mixed flour shall be taken and construed to mean a food product resulting from the grinding or mixing together of wheat or wheat flour with any other grain or with the product of any other grain. Since this is a bill in the interest of the corn-products companies it is not surprising that potato starch, which can now be mixed with flour under the present mixed-flour law, is excluded under the Rainey bill.

If the proponents of this bill are so insistent on "fair play" why are they not willing to accept the provisions of the food and drugs act? Is their cornstarch so much more precious than any other food product that it should receive a classification all its own? The testimony of Dr. Wiley shows conclusively that potato starch is superior to cornstarch in food value; why should it be made a crime to mix potato starch with wheat flour and mark it "mixed flour" if it is made lawful to call a cornstarch mixture “mixed flour"? Why discriminate against the other starches? Is it because they are not manufactured by the corn products (glucose) trust?

THE MEANING OF THE WORD FLOUR.

The word "flour" without a qualifying adjective indicates wheat flour. United States Department of Agriculture, Circular No. 19, June 26, 1906, provides:

“Flour is the fine, clean, sound product made by bolting wheat meal and contains not more than 134 per cent of moisture, not less than 1.25 per cent of nitrogen, not more than 1 per cent of ash, and not more than 0.50 per cent of fiber."

See in this connection F. I. D. 42 on Rye Flour and S. R. A. 130, August 18, 1915.

Drs. Wesener and Teller, proponents' experts-before their conversion to adulteration and their retainer as advocates in its behalf-defined flour in an article written by them in the Journal of Industrial and Engineering Chemistry of April, 1915, as follows:

"Flour may be defined as the white meal of the interior of the wheat grain, either by itself or mixed with a small proportion of finely ground wheat bran or wheat germ."

Therefore, the phrase "mixed flour" indicates that the product is a mixture of different varieties of wheat flour. When it is considered that the Rainey bill permits the mixing not only of wheat with any other grain but with the product of any other grain, and that the proponents of the bill frankly state that they intend to use starch for mixing with flour the situation is much more serious. Cornstarch is the product of corn, therefore it is the product of a grain-cornstarch is not flour-even when it is pulverized, and to permit a product resulting from the mixing together in any proportion (because the bill is silent on the proportion) of wheat flour and starch to be sold as flour or mixed flour is to put a premium on public deception by permitting starch, which is not flour, to be sold as flour, and under the Rainey bit wheat or wheat flour need not be the predominating ingredient. As long as any wheat or wheat flour is used in the combination the resulting product can lastly be described as mixed flour: that is to say. 90 per cent cornstarch and 19 per cent flour can be sold as mixed flour.

This is a complete reversal of "Service and Regulatory Announcement No. 130," where the Bureau of Chemistry held (August 18, 1915) that starch can not be designated "flour." Here it was said:

66

'It has come to the attention of this bureau that such products as potato starch, rice starch, and cassava starch are ofen designated by the terms potato flour,' 'rice flour,' and 'cassava flour,' or 'tapioca flour.' In the opinion of this bureau the term 'flour,' when applied to potato or rice or cassava products, has the same meaning as when applied to other products; that is, a finely divided or powdered product containing proteids, fat, fiber, and ash constituents from the edible portions of potato, rice, or cassava, and not such a product containing the starch alone."

The food and drugs act, if the proposed amendment is incorporated in it, will contain other contradictory provisions and will be very difficult to interpret and apply.

The proposed paragraph (third A) is in itself blind. It is susceptible of the construction that the two clauses of it are disjunctive and in the alternative. It provides:

"That an article shall be deemed to be misbranded in the case of foods ** if it be the product designated mixed flour * * * and the packages containing it be not plainly marked with the words 'mixed flour' as the principal name of the product; or, if it fails to bear below the principal name a correct statement of the names and percentages or relative proportions of all ingredients contained therein."

* *

*

It is at least arguable that if the package is marked "mixed flour" it need not contain the statement of the ingredients and their proportions. If the word "or" between the two clauses means what it does grammatically (Webster's Collegiate Dictionary, p. 575), “A particle that marks an alternative; it corresponds to either; it often connects a series of words or propositions, presenting a choice of them," then if the product is either marked "mixed flour" or bears a statement of the proportions, it is not misbranded. It need not do both.

The word " or" would have to be read “and” to make it obligatory on the producer of mixed flour both to use the word "mixed flour" and state the proportions of the ingredients.

Section third A is inserted before certain other provisos. It is before the first and second provisos of subsection 4, which in substance are that an article not containing any added poisonous or deleterious ingredients shall not be deemed to be misbranded in the following cases:

(1) In the case of mixtures or compounds under distinctive names, if the place of manufacture is stated, and

(2) That articles labeled to indicate that they are compounds and the word "compound" is used.

What effect the insertion of the proposed paragraph (third A) is going to have on these provisos no one can say. If it makes an exception of mixed flour, it seems indefensible; if it does not make an exception of mixed flour, it is superflous. Under the food and drugs act as it now is interpreted, a mixture or compound, when sold under a distinctive name, is not misbranded if it has the place of manufacture stated, and under the second proviso of the same section the addition of the word “compound” would serve the same purpose.

In any event, these provisos coming after the paragraph which it is proposed to insert, limit its operation, and it is entirely clear that mixed flour, when it comes within those exceptions, need not be marked "mixed flour" or bear any statement of the proportions of the ingredients.

Why omit the name of the place of manufacture? Is it possible that it would be commercially inexpedient to name a glucose factory as the birthplace of a sack of flour? If the miller were to do the mixing, as the proponents of the Rainey bill argue, there could be no objection to stating the nativity of the product, but it is idle nonsense to argue that the miller will do the mixing if this bill becomes law. The honest miller would not if he could, and the dishonest miller in Minnesota or west of the Missouri River (and that is where most of the American flour is made) could not if he would. Freight rates absolutely forbid. The principal cornstarch factories are located east of the Mississippi River. Only a very limited quantity of starch is produced as far west as Cedar Rapids, Iowa. The freight charges on cornstarch moving north to Minnesota or west and southwest into Missouri, Kansas, and Oklahoma, together with the return freight on the commodity to the markets in the East, would more than counterbalance any possible gain in lower cost of the product by reason of the adultera

tion. The net result of this legislation, therefore, if enacted, will be this: The same interests which now control the production of cornstarch and which also control many other of the important industries of the Nation, at least financially, having observed the food field as one of great promise of profit, if it can be occupied, have determined to possess it to the exclusion of competitors; in other words, if they can monopolize the means of appeasing the hunger of the Nation, as they can under the operation of this bill, it will enable them to become masters of the situation and the miller the servant.

That they are prepared for this opportunity and are quite frank about their intention to avail themselves of it, is evident from the statement made by their counsel at last year's hearing:

"If this law is repealed, our people—that is, the cornstarch manufacturerswill, of course, push the sale of the flour. We have brokers and sales agents in every large city in the United States. In every city of any size whatever we have our brokers, and a selling campaign would be started immediately, so the consumer would get the whole benefit of the repeal of this law. It is not going to be hard to educate the consumer to use this flour, because with our sales force that we have, and the brokers that we have scattered all over the United States, a selling campaign would bring it immediately into use, and the repeal of the law would be felt by the people almost immediately. We have tried to do it heretofore. We have tried to sell these products, but we have been unable to do it on account of this tax." (Hearings before the committee of the Sixtythird Congress, p. 17.)

If the bill becomes law the economic operation of the industry will be this: Flour will be purchased from the millers in Minnesota, Kansas, and other points of manufacture, shipped for eastern consumption, stopped in transit at a convient glucose factory and converted into the "mixed" flour and go forward to its destination. If there is one demand which never fails it is the demand for food. If the pure product is driven out of the market the adulterated product must be eaten.

The advocates of the bill contend that the food-and-drugs act has dispensed with the necessity of the earlier legislation regulating the adulteration of flour. If this is true why are they not content with a repeal of the act taxing mixed flour? Why do they ask to have the pure-food act emasculated for their benefit?

The amendment which they propose to the food-and-drugs act places cornstarch in a class by itself as a favored adulterant of flour above all the vegetable and fruit starches. It withdraws this adulterant from the operation of the general provisions of the food-and-drugs act, and the proposed amendments are so artfully or artlessly drawn that is is impossible to see in advance of judicial interpretation what their operation will be.

Printed as Appendix II are the relevant sections of the food-and-drugs act with the proposed amendments inserted in the places where it is intended that they shall go.

THE ALLEGED DISCRIMINATION AGAINST CORN IN THE PRESENT LAW.

Discrimination to be unjust must be unequal. Pace v. Alabama, 106 U. S., 584, 585.

It is alleged that because there is a tax on a mixture of wheat and corn there is a discrimination against corn. It is difficult to see how such a contention can be made by any one possessing a mind capable of adult reasoning. The tax is not on the ingredients, it is on the mixture, and if the mixture contains 80 per cent wheat and 20 per cent corn the wheat pays 80 per cent of the tax, and therefore is discriminated against four times as much as the corn. There is not now and never has been any restraint upon the sale of corn or of the products of corn any more than there has been against wheat or the products of wheat. Each can be sold upon its merits and for what it is. By recognizing the likelihood of fraud in the sale of flour adulterated with corn products the present law does not forbid this mixing, but regulates and supervises it so that the fraud is minimized. The application of the law is now uniform throughout the country. Every package containing the adulterated product whether sold in the States, among the States, or in foreign commerce must be marked by the Government to show that it is an adulterated product. This is no discrimination against corn. To forbid the watering of milk is not to discriminate against water.

When interests so thoroughly commercialized as the Corn Products Association are, appeal to Congress for legislation to legalize the use of their product

as an adulterant of food and urge the cause of justice to the producers of the raw material of the product and the cause of humanity and philanthropy as principal reasons for the proposed legislation, legislators, in our judgment, should look with suspicion upon such arguments. When a business man comes forward and assigns reasons of humanity and the injustice to producers, in whose behalf he is not interested, as the reason for the legislation which he seeks, we are apt to regard it, expressed in common parlance, as “bunk.”

The contention that the corn and the corn farmer are discriminated against has already been disposed of. It is too absurd for argument. It is a matter of common knowledge that the two cereal products involved in this discussion are raised principally in the States of the Middle West, and it is safe to say that at least 70 per cent of the acreage in those States is equally fitted and equally available for the production of either commodity. Whether the land shall be planted to wheat or corn in a given season does not depend upon any revenue act, but on the relation of the prices between the two commodities. This was evidenced by the response of wheat culture to the higher prices resulting from the European war. If next year, corn should have a relatively higher price than wheat, the corn area will be increased and the wheat area decreased until the normal cost-of-production relation between the two products is again established.

With respect to the consumer, this may be said: It is common knowledge that the retail prices of commodities do not vary and fluctuate with the variations in the wholesale price. We do not recall when the price of the loaf of bakers' bread has been less than 5 cents, nor do we recall a time when it has been more, although the wholesale prices of flour have fluctuated from time to time. The ordinary consumer, especially the poor man, who for the time being is the pet of the Glucose Trust, does not buy his flour by the barrel. He buys 10-pound sacks, 25-pound sacks, and very rarely as large a quantity as a 50-pound sack. Will it be argued that there will be any variation in the retail price of these lesser packages of flour by reason of a possible reduction in the price of the barrel of flour to the amount of 40 cents to 60 cents by the introduction of a 20 per cent adulterant of cornstarch?

We say, without fear of contradiction by the record, that the proponents of this bill have not been frank or fair to the committee, to the consumers of this country, to the millers of the country, or to the mechanical manufacturers of corn flour, some of whom they deluded to attempt the delicate job of raking the chestnuts of the Cornstarch Trust out of the fire. The record shows that the question was repeatedly put to the proponents of the bill whether or not they would be content with a repeal of the present legislation on the subject of mixed flour, which they contend is a discrimination against corn, and to operate their business under the general provisions of the pure-food act as it now stands, but in no instance was it possible to elicit a definite answer as to their position in that regard. They are, of course, conscious of the fact, which they prudently decline to admit, that the pure-food law, as at present interpreted, would prevent the mixing of cornstarch and its sale as flour, "mixed " or otherwise, and therefore not only do they insist that the mixed-flour law be repealed but that they be given a legislative license to adulterate wheat flour under their proposed amendment to the pure-food act. Respectfully submitted.

APPENDIX I.

MIXED FLOUR.

JOHN LIND.
EDWARD S. ROGERS.
FRANCIS M. PHELPS.

[H. Rept. No. 1537, 55th Cong., 2d sess.]

The Committee on Ways and Means have had under consideration the bill (H. R. 9380) defining mixed flour and also imposing a tax upon and regulating the manufacture, sale, importation, and exportation thereof.

This bill was presented to the committee as a substitute for House bill 6705, introduced by Mr. Pearce, of Missouri, January 17, 1898.

Hearings before the full committee were granted to all persons who expressed a desire to be heard. The evidence thus presented to the committee will be found in Document No. 309, and consists of a report submitted by the Secretary of Agriculture showing the fact and extent of the adulteration of wheat flour,