F. I. D. 64 (Mar. 29, 1907).

LABELING OF SARDINES.

Many inquiries have been made of this department respecting the extent to which the term "sardine" can be used in food products entering into foreign or interstate commerce. The question of the proper labeling of fish of this kind was submitted by the department to the Department of Commerce and Labor, Bureau of Fisheries. After reviewing the nomenclature and trade practices the Department of Commerce and Labor reached the following conclusion:

Commercially the name sardine has come to signify any small, canned, clupeoid fish; and the methods of preparation are so various that it is impossible to establish any absolute standard of quality. It appears to this department that the purposes of the pure-food law will be carried out and the public fully protected if all sardines bear labels showing the place where produced and the nature of the ingredients used in preserving or flavoring the fish.

In harmony with the opinion of the experts of the Bureau of Fisheries, the Department of Agriculture holds that the term "sardine" may be applied to any small fish described above, and that the name sardine should be accompanied with the name of the country or State in which the fish are taken and prepared, and with a statement of the nature of the ingredients used in preserving or flavoring the fish.

It is held that a small fish of the clupeoid family, caught upon or near the shores of and packed in oil in Norway, or smoked and packed in oil, is properly labeled with the phrase "Norwegian Sardines in Oil," or "Norwegian Smoked Sardines in Oil," the nature of the oil being designated. In like manner a small fish of the clupeoid family caught upon or near the shores of and packed in France. may be called "French Sardines in Oil," the nature of the oil being specified. Following the same practice, a fish of the clupeoid family caught on or near the shores of and packed in the United States may be labeled "American Sardines Packed in Oil," or "Maine Sardines Packed in Oil," or be given some similar appellation, the nature of the oil being stated. It is suggested that the name of the particular fish to which the term sardine is to be applied should also be placed upon the label-for example, "Pilchard," " Herring," etc.

F. I. D. 65 (Apr. 11, 1907).

THE LABELING OF WHISKY, BLENDS, COMPOUNDS, AND IMITATIONS THEREOF.

The labeling of whisky, blends, compounds, and imitations thereof, under the Food and Drugs Act of June 30, 1906, will be governed by the opinion of the Attorney General, dated April 10, 1907, bearing the approval of the President, published herewith.

THE WHITE HOUSE, Washington, April 10, 1907. MY DEAR MR. SECRETARY: In accordance with your suggestion, I have submitted the matter concerning the proper labeling of whisky under the pure-food law to the Department of Justice. I inclose the

Revoked by F. I. D. 113. See F. I. D. 45, 95, 98, 113, 118, 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

Attorney-General's opinion. I agree with this opinion and direct that action be taken in accordance with it.

Straight whisky will be labeled as such.

A mixture of two or more straight whiskies will be labeled "Blended whisky" or "whiskies."

A mixture of straight whisky and ethyl alcohol, provided that there is a sufficient amount of straight whisky to make it genuinely "mixture," will be labeled as compound of, or compounded with, pure grain distillate.

a

Imitation whisky will be labeled as such.

Sincerely, yours,

Hon. JAMES WILSON,

Secretary of Agriculture.

THEODORE ROOSEVELT.

OPINION OF THE ATTORNEY GENERAL.1

The PRESIDENT:

APRIL 10, 1907.

66

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 the 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 purposes 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:

*

126 Op. Atty. Gen., 216.

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 are 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, 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 and 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 for 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 the view of a chemist or physicist or an expert in some particular industrial art, as in the distillation and refining of spirits. Moreover, the same name may be given by dealers or by the general public to two or more substances varying very materially in their scientific characteristics and this fact must be given due weight in passing upon questions of branding or labeling under the law.

Human experience has associated certain impressions on the senses of taste and smell with the consumption of certain articles of food, and the so-called "flavor" which expresses the resultant of these impressions constitutes a factor of decisive weight in determining the similarity or identity of substances of this character to the mind of the ordinary member of the community, quite irrespective of the relative importance of these chemical or physical properties in the substances which impart this flavor as compared to their other chemical or physical properties. This fact is aptly illustrated by a question considered at much length in the papers referred and also submitted to me as above, namely: "What is Whisky?" A chemist or a distiller might answer this question altogether differently from the ordinary purchaser of whisky for his own consumption; but the purchaser's view of the matter is material to attain the primary purpose of the pure food law; and I think it may be safely said that what he means by "whisky" when buying it is a distilled spirit, fit for use as a beverage and having the particular flavor which human

experience has classified as that of "Whisky." Undoubtedly the flavors of different kinds of spirits all known as "Whisky" differ considerably, and it may be that the general impression of their similarity is due, in some measure, to imagination or imperfect memory; nevertheless, a distinct and definite idea is suggested to the mind by the words "whisky flavor;" this idea is an essential factor in ascertaining the identity of a spirit claimed to be whisky, and, in my opinion, it is the decisive factor in determining the relative weight of the claims of two or more kinds of spirit to the name.

With this preliminary explanation, I proceed to state what I understand to be the questions as to which my opinion is desired. In substance, these are:

First. Under what circumstances should a distilled spirit be labeled or branded "Whisky" without any qualifying words?

Second. Under what circumstances should a liquid be marked a "Blend of whiskies," or "Blended whisky," or "Blended whiskies?" Third. Under what circumstances should a liquid be marked as a "Compound of whisky," or "Compounded whisky," and what word or words, if any, must be added to such title to make the same appropriate under the law?

Fourth. Under what circumstances, if at all, could a distilled spirit, with additions of coloring and flavoring substances, be termed "Imitation whisky?"

Before dealing directly with these questions, I think it may be well to indicate the application of this law to a class of liquids affording a field for its interpretation with less opportunity for dispute-I refer to wines. It will not be questioned that to be branded or labeled "Sherry," "Port" or "Madeira," a wine must have inherently, and not because any other substance is added to it, the flavor known as that of sherry, port or madeira, as the case may be. There are different kinds of each of these wines; experts can recog nize different brands or vintages by their respective flavors, and these flavors vary considerably; nevertheless, there can be no doubt that the sherry, the port and the madeira flavors are distinct from each other, and that each of them has some quality of its own shared by all varieties of the same species of wine.

There is, however, an evident distinction to be drawn between a wine such as sherry, port or madeira, and a wine such as champagne. In the view of a chemist or physicist, champagne would be doubtless described as "a compound," for it consists essentially of a wine, of sugar and of an aerating gas, three substances obviously "unlike." The law, however, in my opinion, does not contemplate that an article should be marked as a "blend," "compound," or "imitation" unless its designation would be otherwise "false or misleading" to the consumer; and the name "Champagne" would indicate to any would-be purchaser, who was ordinarily intelligent and well-informed, a wine artificially sweetened and aerated, or, in other words, a composite substance.

To determine the proper use of the term "Blend" we must first note that the definition of the word in the law is novel and arbitrary. It is thus defined by Webster:

Blend, n. A thorough mixture of one thing with another, as colors, liquors, etc.; a shading or merging of one color, tint, etc., into another, so that it cannot be known where one ends or the other begins.

There is nothing in this definition about "likeness" in the substances mingled: this feature is introduced for some special purpose in the law, and the latter must be interpreted so as to give effect to this purpose. To show this more clearly we may also note the same dictionary's definition of "Compound." This is:

Compound, n. That which is compounded or formed by the union or mixture of elements, ingredients, or parts; a combination of simples.

"Compound" and "Blend" are substantially synonymous when applied to mixtures of liquids in ordinary speech, but the pure-food law establishes a distinction of its own between them based upon the character of the ingredients entering into the mixture. In discussing therefore what degree of "likeness" between the mingled substances will justify their designation as a "Blend" it must be always and carefully remembered (1) that "Blend" is meant to be something essentially different from "Compound," and (2) that the subject under consideration is a name for an article of food to be embodied in a label or brand in harmony with the primary purpose of the law as above explained. Without going into metaphysical distinctions, or needless explanations, it is my opinion that effect will be most surely given to the evident intent of this provision of the law if it be held that "Blend," as a substantive, or "Blended," as an adjective, can be properly and legally used in brands or labels under the act of 1906 only when a single substantive, either in the singular or in the plural, need follow to appropriately and adequately designate the combination: thus we can speak of a "Blend of Teas" or a "Blended Tea," but not of a "Blend of Tea and Coffee." To state the same proposition in different language, I think the two articles mixed must be capable of accurate and sufficient description by a single generic term: they must be substances known by the same name, and that name must be sufficiently distinctive to afford reasonable warning to a purchaser.

If, therefore, the question be what ought to be called "Blend of sherry," or "Blended sherry," or "Blended sherries," I think that such terms could be applied with propriety only to a mixture of two or more sherries, and not to a mixture of sherry with port or with madeira. This is not because "likeness" does not exist between the three kinds of wine mentioned, nor because great similarity may not be found in their chemical composition: it is quite possible that, in the latter respect, some kinds of sherry would be found to have a greater resemblance to some kinds of port than to other kinds of sherry; just as the chemical composition of a diamond might have much greater similarity to that of coal than to that of some other gems; but the term "Blended sherry" could not be appropriate to a mixture of sherry and port; it would mislead an intending purchaser as to the fact that port entered into the combination; the latter might be named with equal propriety "Blended port." On the other hand, if this mixture should be termed a "Blend of port and sherry," there is no distinction in generic designation between a mixture of these two distinct wines and a mixture of two sherries or of two ports, and I think the law clearly intended there should be such a distinction. It might be, perhaps, consistent with the law to call such a mixture " Blended wines," but this title would be insufficiently specific; it might designate a mixture of burgundy and