SEC. 9. That it shall be the duty of the Secretary of Agriculture to fix standards of food products when advisable for the guidance of the officials charged with the administration of food laws and for the information of the courts, and to determine the wholesomeness or unwholesomeness of preservatives and other substances which are or may be added to foods; and to aid him in reaching just decisions in such matters he is authorized to call upon the committee on food standards of the Association of Official Agricultural Chemists, and the committee of standards of the Association of State Dairy and Food departments, and such other experts as he may deem necessary. And upon request made to the Secretary of Agriculture prior to reaching any decision as provided for in this section, by any manufacturer or other person interested, asking for the appointment of a board to determine the wholesomeness or unwholesomeness of any preservative or other substance which is or may be added to foods, and concerning the use of which the person making the request has an interest, it shall be the duty of the Secretary of Agriculture to appoint a board of disinterested experts, which board shall consist of five members, one of whom shall be an expert toxicologist, one an expert physiological chemist, one an expert bacteriologist, one an expert pathologist, and one an expert pharmacologist, which board shall meet at the city of Washington, D. C., or elsewhere, at the call of the Secretary of Agriculture, and pass upon such question after proper notice and hearing granted to the person making such request. The compensation of the members of such board shall be fixed by the Secretary of Agriculture. SEC. 10. That every person who manufactures or produces for shipment and delivers for transportation within the District of Columbia or any Territory, or who manufactures or produces for shipment or delivers for transportation from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or to any foreign country, any drug or article of food, and every person who exposes for sale or delivers to a purchaser in the District of Columbia or any Territory any drug or article of food manufactured or produced within said District of Columbia or any Territory, or who exposes for sale or delivers for shipment any drug or article of food received from a State, Territory, or the District of Columbia other than the State. Territory, or the District of Columbia in which he exposes for sale or delivers such drug or article of food, or from any foreign country, shall furnish within business hours and upon tender and full payment of the selling price a sample of such drug or article of food to any person duly authorized by the rules and regulations herein provided for to receive the same, and who shall apply to such manufacturer, producer, or vendor, or person delivering to a purchaser, such drug or article of food, for such sample for such use, in sufficient quantity for the analysis of any such drug or article of food in his possession. SEC. 11. That any manufacturer, producer, or dealer who refuses to comply, upon demand, with the requirements of section ten of this act shall be guilty of a misdemeanor, and upon conviction shall be fined not exceeding one hundred dollars, or imprisoned not exceeding one hundred days, or both. And any person found guilty of manufacturing or offering for sale, or selling, an adulterated or misbranded article of food or drug in violation of the provisions of this act may, in the discretion of the court, be adjudged to pay, in addition to the penalties hereinbefore provided for, all the necessary costs and expenses incurred in inspecting and analyzing such adulterated articles which said person may have been found guilty of manufacturing, selling, or offering for sale. SEC. 12. That this act shall not be construed to interfere with commerce wholly internal in any State, nor with the exercise of their police powers by the several States; but foods and drugs fully complying with all the provisions of this act shall not be interfered with by the authorities of the several States when transported from one State to another so long as they remain in original unbroken packages, except as may be otherwise defined by law or provided by statutes of the United States. SEC. 13. That any article of food or drug that is adulterated or misbranded within the meaning of this act, and is transported or being transported from one State to another for sale. or if it be sold or offered for sale in the District of Columbia or any Territory of the United States, or if it be imported from a foreign country for sale, or if intended for export to a foreign country, shall be liable to be proceeded against in any district court of the United States. within the district where the same is found, and seized by a process of libel for condemnation. And if such article is condemned as being adulterated or misbranded, within the meaning of this act, the same shall be disposed of as the said court may direct, and the proceeds thereof, if sold, less the legal costs and charges, shall be paid into the Treasury of the United States, but such goods shall not be sold in any State contrary to the laws of that State. The proceedings of such libel cases shall conform as near as may be to proceedings in admiralty, except that either party may demand trial by jury of any issue of fact joined in such case; and all such proceedings shall be at the suit of and in the name of the United States. SEC. 14. That the Secretary of Agriculture is authorized to investigate the character and extent of the adulteration of foods and drugs, and whenever he has reason to believe that articles are being imported from foreign countries which by reason of such adulteration are dangerous to the health of the people of the United States, or are of kinds which are forbidden entry into or forbidden to be sold or restricted in sale in the countries in which they are made or from which they are exported, or which shall be falsely labeled in any respect, either by the omission of the name of any added ingredient or otherwise, or in regard to the place of manufacture, or the contents of the package, shall make a request upon the Secretary of the Treasury for samples from original packages of such articles for inspection and analysis; and the Secretary of the Treasury is hereby authorized to open such original packages and deliver specimens to the Secretary of Agriculture for the purpose mentioned, giving que notice to the owner or consignee of such articles, who may appear before the Secretary of Agriculture and have the right to introduce testimony; and the Secretary of the Treasury shall refuse delivery to the consignee of any of such goods which the Secretary of Agriculture reports to him have been inspected and analyzed and found to be any of the kinds mentioned in this section: Provided, That the Secretary of the Treasury may deliver to the consignee such goods, pending examination and decision in the matter, on execution of a penal bond of the full invoice value of such goods, together with the duty thereon, and on refusal to return such goods for any cause to the custody of the Secretary of the Treasury, when demanded, for the purpose of excluding them from the country, or for other purposes, said consignee shall forfeit the full amount covered by the bond. SEC. 15. That the term territory" as used in this act shall include the insular possessions of the United States. SEC. 16. That this act shall be in force and effect from and after its passage: Provided, however, That no penalties herein named shall be imposed until after the expiration of one year from the passage of the act. LEGISLATIVE HISTORY OF THE SHERLEY AMENDMENT. An Act To amend section 8 of the Food and Drugs Act, approved June 30, 1906. Message of President Taft, dated June 20, 1911, recommending amendment of the Food and Drugs Act so as to make it applicable to false and misleading statements borne on the packages and labels of drug products relative to their therapeutic or curative value (H. Doc. 75). Cong. Rec., 62d Cong., 1st sess__ Page. 2379-2380, 2434 Message of the President ordered printed and referred to the Committee on Interstate and Foreign Commerce of the House, and Senate Committee on Manufactures. Cong. Rec., 62d Cong., 1st sess., June 21, 1911____ 2380, 2434 Bill (H. R. 11877) to amend section 8 of the Food and Drugs Act, ap- Reported back without amendment, accompanied by a report (No. 1138), 2362 10257 11322-11323 Debated, amended, and passed by the House August 19, 1912. Cong. Rec., Approved (Públic, No. 301) August 23, 1912. Cong. Rec., 62d Cong., 2d sess Reports: Message of the President, H. Doc. 75, 62d Cong., 1st sess. House Report, No. 1138, 62d Cong., 2d sess. 40066-14- -52 11352 11744, 11853 LEGISLATIVE HISTORY OF THE GOULD AMENDMENT. An Act To amend section 8 of the Food and Drugs Act, approved June 30, 1906. Bill (H. R. 22526) introduced March 28, 1912, and referred to the Com- Page. 3981 7833-7834 Debated, amended, and passed by the House August 5, 1912. Cong. Rec., 62d Cong., 2d sess.. 10235-10236 Bill (H. R. 22526) read twice by its title in Senate and referred to the Committee on Manufactures August 6, 1912. Cong. Rec., 62d Cong., 2d sess. 10264-10265 Reported back February 17, 1913, with amendments, accompanied by a report (No. 1216). Cong, Rec., 62d Cong., 3d sess. 2273-2274 Debated, amended, and passed by the Senate February 20, 1913. Cong. Rec., 62d Cong., 3d sess___ 3503 House disagrees to Senate amendments and asks for a conference Februrary 21, 1913. Conferees appointed. Cong. Rec., 62d Cong., 3d sess. 3618 Senate insists on its amendments and agrees to conference February 24, 1913. Conferees appointed. Cong. Rec., 62d Cong., 3d sess.. Conference report (No. 1579) made and agreed to in the House February 26, 1913. Cong. Rec., 62d Cong.. 3d sess. 3762 4123 4256 Vote on conference report reconsidered in the House and conference report withdrawn February 27, 1913. Cong. Rec., 62d Cong., 3d sess_ Conference report made, debated, and agreed to in Senate February 28, 1913. Cong. Rec., 62d Cong., 3d sess_4286, 4287, 4299-4301 Conference report (No. 1606) made and agreed to in the House March 1, 1913. Cong. Rec., 62d Cong., 3d sess.. Presented to the President for approval March 2, 1913. Cong. Rec., 62d Cong., 3d sess.. Approved March 3, 1913 (Public, No. 419). Reports: House Report 850, 62d Cong., 2d sess. 4559 4635 4854 Senate Report 1216, 62d Cong., 2d sess. Conference Report 1579, 62d Cong., 2d sess. REPORT OF THE SOLICITOR GENERAL TO THE PRESIDENT UPON CERTAIN QUESTIONS SUBMITTED TO HIM CONCERNING THE MEANING OF THE TERM "WHISKY".1 [1] DEPARTMENT OF JUSTICE, May 24, 1909. The PRESIDENT. SIR: Pursuant to the Executive Order made by the President of the United States on April 8. 1909, which reads: A number of distillers and importers of spirits and whisky, represented by Lawrence Maxwell, Esq., Hon. Joseph H. Choate, Alfred Lucking, Warwick M. Hough, and Hon. W. W. Armstrong, having appealed to the President for a hearing with respect to the order issued by the Commissioner of Internal Revenue, known as Order No. 723, pursuant to the rules and regulations for the enforcement of the Food and Drugs Act and Food Inspection Decision No. 65, promulgated and made by the Secretary of Agriculture under date of May 14, 1908, claiming that the provisions of said order are in violation of the terms of the said act in that they require to be branded as imitations or compounds, or otherwise, whiskies which have well-settled names in the trade, and which it was not the intention of Congress by the said Food and Drugs Act to require to be described by any other designation; and certain distillers of whisky having appeared by Edmund W. Taylor and the Hon. John G. Carlisle. See F. I. D. 45, 65, 95, 98, 113, 118, and 127, pp. 36, 51, 110, 113, 129, 133, and 159, ante; also Opinions of the Attorneys General, pp. 775, 783, and 797, ante; and Decision of the President, p. 831, post, on the labeling of whiskies. after consideration the matter is hereby referred to Hon. Lloyd W. Bowers, Solicitor General of the [2] United States, to take testimony and report to the President his opinion upon the following points, namely: I. 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? II. What did the term whisky include? III. 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? IV. 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 pas sage of the pure food law, which it was the intention of Congress to correct by the provisions of that act? V. Is the term whisky as a drug applicable to a different product than whisky as a beverage? If so, in what particulars? The Solicitor General will from time to time determine the extent and character of the [3] hearing and will report with his opinion the evidence taken by him pursuant hereto. APRIL 8, 1909. I have the honor respectfully to report as follows: WM. H. TAFT. At the beginning of the hearings on April 8, 1909, appearances were made before me by Hon. Joseph H. Choate and Alfred Lucking, Esq., on behalf of Hiram Walker & Sons, manufacturers; Lawrence Maxwell, Jr., Esq., and Warwick M. Hough, Esq., on behalf of rectifying distillers and blanders and eastern rye distillers; Hon. John G. Carlisle and Edmund W. Taylor, Esq., on behalf of various whisky distillers; and William W. Armstrong, Esq., on behalf of Duffy's Malt Whisky Company. On May 15, 1909, appearance was made before me by J. D. Rouse, Esq., on behalf of the Louisiana Distillery Company. On April 8, 1909. preliminary statements were made, but no evidence was taken. On April 17, 1909, the taking of evidence began, and it continued from day to day (except Sundays) through May 1, 1909. On May 7 and 8, 1909, final arguments were made by the parties appearing as above stated on April 8, 1909. On May 15, 1909, evidence was taken at the instance of the parties appearing on that day, and argument also was then made for those parties. [4] TESTIMONY AND ARGUMENT. The oral testimony taken before me comprises 2.365 pages, contained in 17 separate books, numbered 1 to 16 consecutively, and also 19; each labeled upon its cover "Use of the Term Whisky. Before the Solicitor General," over my signature. A voluminous mass of documentary evidence also was submitted to me. The final arguments of counsel, made on May 7, 1909, and May 8, 1909, are found in books numbered 17 and 18 and labeled and signed by me like the books of testimony. The arguments for the parties appearing before me on May 15, 1909, are contained in book 19, above mentioned, on pages 2721-2742. All the testimony and documentary evidence offered before me and the arguments made before me accompany, and are submitted as part of, this report. ANSWERS TO THE SEVERAL QUESTIONS STATED IN THE ORDER OF THE PRESIDENT. The first question is: I. 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? My opinion upon, and answer to, this question is:. (1) The article called whisky as known to the manufacturers at and prior to the date of the passage of the pure food law was [5] (a) What is often spoken of as "straight whisky," made from grain. (b) Also, what is often spoken of as "rectified whisky." made from grain, when not a mere neutral spirit. as described in section (d), below, of the answers to this question I. (c) Also, a mixture of straight whiskies, or of rectified whiskies, or of straight whisky and rectified whisky, or of straight whisky and what is often known as neutral spirit (made from grain), or of rectified whisky and such neutral spirit (made from grain), or of straight whisky, rectified whisky and such neutral spirit (made from grain), if in the particular case the mixture satisfied the description of whisky given below in answer to question II. (d) Also, neutral spirit-being a distillate from grain, which lacks a substantia! amount of by-products (other than alcohol) derived by distillation from grain and giving distinctive flavor and properties—when, but only when, colored and flavored and sold by the manufacturer to a retailer; but the purchasing retailer in such case seldom knew that in fact he was getting neutral spirit, colored and flavored. Such neutral spirit made from grain was not known to the manufacturer as whisky in the dealings of distillers with rectifiers; and I do not consider that it 18 proved to have been known as whisky in the dealings of distillers or rectifiers with wholesalers. A neutral spirit made from molasses, potatoes, or any other sub[6]stance than grain has not been known to manufacturers as whisky, except in very rare cases. (2) The article called whisky as known to the trade at and prior to the date of the passage of the pure food law was (a) What is often spoken of as "straight whisky," made from grain. (b) Also, what is often spoken of as “rectified whisky," if conforming to the description of whisky given below in answer to question II. (c) Also, a mixture of straight whiskies, or of rectified whiskies, or of straight whisky and rectified whisky, or of straight whisky and what is often known as neutral spirit (made from grain), or of rectified whisky and such neutral spirit (made from grain), or of straight whisky, rectified whisky, and such neutral spirit (made from grain), if in the particular case the mixture satisfied the description of whisky given below in answer to question II. (d) Also, neutral spirit-being a distillate from grain, which lacks a substantial amount of by-products (other than alcohol), derived by distillation from grain and giving distinctive flavor and properties-when colored and flavored; except that neutral spirit was not known to retail dealers as whisky, because such retailers seldom were aware that the article which they were buying or selling was in fact neutral spirit. A neutral spirit made from molasses, potatoes, or other substance than grain has not been known to the trade as whisky. [7] (3) The article called whisky as known to the consumers at and prior to the date of the passage of the pure food law was (a) What is often spoken of as “straight whisky," made from grain. (b) Also, what is often spoken of as “rectified whisky" is conforming to the description of whisky given below in answer to question II. (c) Also, a mixture of straight whiskies, or of rectified whiskies, or of straight whisky and rectified whisky, or of straight whisky and what is often known as neutral spirit (made from grain), or of rectified whisky and such neutral spirit (made from grain), or of straight whisky, rectified whisky, and such neutral spirit (made from grain), if in the particular case the mixture satisfied the description of whisky given below in answer to question II. A neutral spirit derived by distillation from anything else than grain has not been known to the consumer as whisky, whether or not it was colored or flavored or both colored and flavored; and a neutral spirit derived by distillation from grain, but lacking a substantial amount of by-products (other than aleohol) which are derived by distillation from grain and give distinctive flavor and properties, has not been known to the consumer as whisky, whether or not it was colored or flavored or both colored and flavored. [8] 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 spiritous liquor composed of (1) alcohol derived by distillation from grain; (2) a substantial amount of by-products (often spoken of as congeners) 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-barmless coloring or flavoring |