department, and follow that interpretation in their business transactions, no prosecution will lie against them. It needs no argument to show that the Secretary of Agriculture must himself come to a decision in every case before a prosecution can be initiated, since it is on his report that the district attorney is to begin a prosecution for the enforcement of the provisions of the act.

In so far as possible it is advisable that the opinions of this department respecting the questions which arise may be published. It may often occur that the opinion of this department is not that of the manufacturer, jobber, or dealer. In this case there is no obligation resting upon the manufacturer, jobber, or dealer to follow the line of procedure marked out or indicated by the opinion of this department. Each one is entitled to his own opinion and interpretation and to assume the responsibility of acting in harmony therewith.

It may be proper to add that in reaching opinions and decisions on these cases the department keeps constantly in view the two great purposes of the Food and Drugs Act, namely, to prevent misbranding and to prohibit adulteration. From the tenor of the correspondence received at this department and from the oral hearings which have been held, it is evident that an overwhelming majority of the manufacturers, jobbers, and dealers of this country are determined to do their utmost to conform to the provisions of the act, to support it in every particular, and to accede to the opinions of this department respecting its construction. It is hoped, therefore, that the publication of the opinions and decisions of the department will lead to the avoidance of litigation which might arise due to decisions which may be reached by this department indicating violations of the act, violations which would not have occurred had the opinions and decisions of the department been brought to the attention of the offender.

F. I. D. 45 (Dec. 1, 1906).
BLENDED WHISKIES.1

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.

1 Revoked by F. I. D. 113. See F. I. D. 65, 95, 98, 113, 118 and 127 on the labeling of whiskies. See also opinions of the Attorneys General, pp. 775, 783, 797, post, Report of the Solicitor General, p. 818, post, and Decision of the President, p. 831, post, on the same subject.

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.

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 opinion that the mixtures presented can not legally be labeled either "blended whiskies" or "blended whisky." The use of the plural of 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 artifically colored and artificially 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.

F. I. D. 46 (Dec. 13, 1906).1

FICTITIOUS FIRM NAMES.

F. I. D. 46, issued on December 13, 1906, on the subject of fictitious firm names, is hereby amended to read as follows, for the purpose of obviating any ambiguity that may have existed in the original decision. The amended portion is set in italics.

The following extract from a letter is typical of a question frequently asked:

In connection with our manufacture of flavoring extracts, we produce an article containing a certain percentage of artificial coumarin and vanillin. This product has been placed on the market under the name of and Company, a fictitious firm, although dealers have always understood that it was our product. Is there any objection to our continuing to brand the product as manufactured by and Company?

The same question has frequently been asked by importers who state that they desire to assume the responsibility for particular brands.

It has been held by the Attorney General (F. I. D. 2) that—

Daisy Sugar Corn,

the words " Company, Milwaukee, Wis.." clearly imply that the goods referred to are manufactured or prepared by that company in Wisconsin. The general public, unfamiliar with trade practices, would inevitably reach that conclusion.

1 As amended Feb. 21, 1907.

Regulation 18 provides that if the name of the manufacturer and the place of manufacture be given, they must be the true name and the true place. It would appear, therefore, that the use of a fictitious name in such a manner that it would be understood to be the name of the manufacturer would be clearly a violation of regulation 18. It is apparent that the provisions of regulation 18 will not be fulfilled by the nominal incorporation of a fictitious firm. The regulations require that goods must be actually manufactured by the firm represented on the label as the manufacturer.

When a proper name, other than that of the manufacturer, is placed upon a label it must not be used in the possessive. For instance,

CHARLES GASTON'S

OLIVE OIL
BORDEAUX

can only be properly used on an oil manufactured by Charles Gaston at Bordeaux. The same is true if the designation

be employed.

GASTON'S
OLIVE OIL
BORDEAUX

On the other hand, the word "Gaston" might be used in an adjective sense, and not in the possessive case as qualifying the words "olive oil," in a manner that would indicate that it represented a brand and not a manufacturer, as

Or,

GASTON OLIVE OIL.

OLIVE OIL, GASTON BRAND.

In such case, however, neither given name nor initials should be employed. The word "Gaston should be in the same type as "olive oil" and in equal prominence, thus forming a part of the label.

The phrase "Olive Oil, Charles Gaston Brand," may be used, in which case the name of the actual manufacturer should appear, in order that no false indication of the name of the person or firm manufacturing the product may be given.

F. I. D. 47 (Dec. 13, 1906).

FLAVORING EXTRACTS.

The percentage of alcohol is not required to be stated in the case of extracts sold for the preparation of foods only. It is held, however, that extracts which are sold or used for any medicinal purpose whatever should have the percentage of alcohol stated on the label.

Numerous inquiries are received regarding the proper designation of products made in imitation of flavoring extracts or in imitation of flavors. Such products include "Imitation vanilla flavor," which is made from such products as tonka extract, coumarin, and vanillin,

with or without vanilla extract. They may also include numerous preparations made from synthetic fruit ethers intended to imitate strawberry, banana, pineapple, etc. Such products should not be so designated as to convey the impression that they have any relation to the flavor prepared from the fruit. Even when it is not practicable to prepare the flavor directly from the fruit, "imitation "is a better term than "artificial."

These imitation products should not be designated by terms which indicate in any way by similarity of name that they are prepared from a natural fruit or from a standard flavor. The term "venallos," for instance, would not be a proper descriptive name for a preparation intended to imitate vanilla extract. Such products should either be designated by their true names, such as "vanilla and vanillin flavor," "vanillin and coumarin flavor," or by such terms as "imitation vanilla flavor" or "vanilla substitute." 1

Articles in the preparation of which such substitutes are employed should not be labeled as if they were prepared from standard flavors or from the fruits themselves. For instance, ice cream flavored with imitation strawberry flavor should not be designated as "strawberry ice cream." If sold as strawberry ice cream without a label the product would appear to be in violation of regulation 22.

Artificial colors should be declared whenever present.

F. I. D. 48 (Dec. 13, 1906).

SUBSTANCES USED IN THE PREPARATION OF FOODS.

The following letter was recently received at the Department of Agriculture:

We import a preparation of gelatin preserved with sulphurous acid for the purpose of fining wine. This gelatin is not used as a food and does not remain in the wine, although a small amount of the sulphurous acid may be left in the wine. Please inform us if the sale of this product is a violation of the food law.

It is held that the products commonly added to foods in their preparation are properly classed as foods and come within the scope of the Food and Drugs Act. The department can not follow a food product into consumption in order to determine the use to which it is put. Pending a decision on the wholesomeness of sulphurous acid as provided in regulation 15 (b), its presence should be declared.

F. I. D. 49 (Jan. 8, 1907).

TIME REQUIRED TO REACH DECISIONS ON DIFFERENT PROBLEMS CONNECTED WITH THE FOOD AND DRUGS ACT, JUNE 30, 1906.

Many letters have reached the department asking for action on very important questions connected with the Food and Drugs Act which require much study and time to secure all the facts necessary

1See United States v. Three Barrels of Vanilla Tonka and Compound, p. 356, post; and Hudson Mfg. Co. v. United States, p. 506, post.

to the rendering of a just decision. It is quite impossible to answer all such letters in detail. The following general statement shows the attitude of the department on questions of this kind:

All manufacturers and dealers have copies of the law and regulations or can secure them and study them carefully. Each manufacturer and dealer should conduct his business as nearly as possible in harmony with the law as he interprets it. When each particular problem involved reaches a solution in this department, it is hoped it will be found that the manufacturers and jobbers have come also to a similar decision in the matter. Public notice will be given of each decision as it is issued, that the manufacturers and dealers may be informed and be able at once to place themselves in line with the decisions of the department. In this way it is hoped that all injustice will be avoided in the execution of the law and everyone be given an opportunity to put himself right and to have due notice of decisions which may be made.

The department will use every endeavor to reach prompt decisions, but must take time to collect the facts and subject them to a proper study; otherwise the decisions would not have the value which should attach to them in important matters affecting the execution of the

law.

F. I. D. 50 (Jan. 18, 1907).
IMITATION COFFEE.

A manufacturer writes as follows:

66

We beg to ask for your opinion as regards the hyphenated word CerealCoffee," and whether or not we are entitled to its use for a cereal substitute for coffee. In our opinion the term Cereal-Coffee" would come under the so-called trade name and distinctive name.

It is held that since the product mentioned is not a coffee it can not properly be called by the term mentioned. Regulation 20 (d) provides that a distinctive name shall give no false indication of character. The use of the name "cereal-coffee" might be taken to indicate that the product is coffee or has the properties of coffee, and hence the use of this term does not comply with the definition of distinctive name. Even if the product consist in part of coffee, the name would not be correct. It is suggested that products of this nature be designated as "imitation coffee," as provided in regulation 21 (f). In such case the word "imitation " should be in uniform type, on uniform background, and should be given equal prominence with the word "coffee."