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How whiskey gave America one of its first consumer protection laws.

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Show Notes

Food fraud was a rampant in the 18th and 19th Centuries. The Industrial Revolution had taken food quality out of the hands of the individual and on to business owners. Adulteration and food fraud would find its way into whiskey and one Kentucky distiller decided to fight back.

Listen to the full episode with the player above or find it on your favorite podcast app under "Whiskey Lore." The full transcript is available on the tab above.

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Transcript

Food Safety As An Issue

Check out a store shelf today, and you’ll spot words like “all natural” or “fat free”  or “Non-GMO.” You’ll read about free range chicken, no antibiotics and no steroids. In this information age that we live in, we are inundated with journalist exposes, documentaries, medical journals, and social media posts telling us all the things that may be happening to our food supply. 

While most people go through their lives assured that that big corporate can of corn sitting in their pantry is on the up and up, there are a few that want to question the production standards and act as watchdogs to make sure we can all be comforted in knowing our food is safe for both us and our families and friends.

But as you’re about to hear, our ancestors in the 18th and 19th Centuries were not so lucky. There were no watchdog groups or government agencies overseeing what unscrupulous business owners might attempt to pass off as quality food in the name of profit. 

Food fraud was rampant and sometimes downright deadly.  But after a couple of centuries of alarmingly despicable and dangerous practices - food safety would finally find a hero in a most unlikely source - a whiskey distiller from Kentucky.

Food Safety History

Turn back the clock to the birth of the industrial revolution. Those years would bring incredible advances in our achievements as human beings. 

Machine power increased production. Textile production clothed us. Iron production gave us tools and machines. 

In turn machine power increased our production. And as we developed as a society, we harnessed steam power and coal to provide amazing new forms of transportation. Iron lead to steel and bridges and taller buildings began to dot and then fill in the landscape.  Progress was real and things were growing at a pace no one had ever seen or could even imagine.

But one of the hardest transitions of the Industrial Revolution was the move away from an agricultural economy. Families that once provided for themselves were now living in cities with no ability to grow their own food.  Oh there were advantages. There was less danger of going hungry because of a bad growing season on the family farm. You could just take your weekly wage from your job and buy what you needed. But now the quality of food was being taken out of the individuals hands and was being put into the control of business owners.

And for those businesses, getting all of this fresh food into town was becoming a logistical nightmare.  These were the days before electricity, refrigeration, or quick and reliable transportation. It left many of them scrambling for ways to stay in business, even if they had to doctor the food supply to do so.

Many producers saw nothing wrong with mixing in some dirt with coffee grounds. Or dumping broken up leaves into burlap bags filled with tea and spices. With these freely available additives they could easily bulk up a package,fool the customer and make up for losses or potentially take home some profits. This may have seemed harmless to them, but it went well beyond food adulteration. This was food fraud, plain and simple.

What’s the difference? Well, let’s take the case of the people of New Orleans. During a Union blockade of city, Louisianans were cut off from their supplies of their beloved coffee.  In an effort to stretch that supply, they began adulterating their coffee grounds by adding in the root of a weed called chicory. What they found was, the chicory root actually reduced the bitterness of the coffee and improved it. So Louisianans made the conscious decision to add it themselves - in fact, they still prefer their chicory coffee over regular coffee, to this day. 

This form of adulteration was a deliberate and transparent choice.

Food fraud is the obvious and deliberate concealment of adulteration. 

Watering down milk was a common occurrence in those days. The problem with watering down milk though is, it starts to look translucent. Nothing some chalk or plaster of paris couldn’t solve. 

But it was much worse than that. 

In 1840, German chemist Fredrick Acc-um completed an alarming study on some of the staples of life that were found in London mercantiles and how they had been adulterated. Wine, beer, brandy, rum, and cheese - all using lead for coloring, alum - which could be fatal for children and could make adults extremely ill - was being added to bread. His book read as a warning, but also helped readers find ways to detect poisonous pickles, olive oil, custard, and more.

But the graphic on the cover of the book was it’s most impactful message, “there is death in the pot.”

Up until that time, these were easy things to get away with, because there were no real tests available to confirm the quality or purity of food. It was the evolution of chemical analysis and invention of microscopes that provided the first weapons of detection in a war against abnormalities in food.

But the public wasn’t concerned enough. The warning flags sent up by Fredrick Accum were not strong enough to move the needle. It took a horrific event in 1858 to shake a trusting public out of their slumber.

By the mid 19th Century, New York City was firmly established as the nation’s largest city. Teeming with natural waterways, it had become a focal point for both shipping and immigration as hoards of people left desperate conditions in Europe for the freedom on American soil, they’d heard so much about. 

Meanwhile politicians across the country were positioning themselves for the coming Civil War.

But New York was dealing with a population crisis. Yet the political bosses in Tammany Hall were more focused on kickbacks from local businesses and business as usual.

It was during this time that the city fell into the grips of a frightening epidemic. Infants were dying by the thousands and New Yorkers had no idea why. 

It took the New York Academy of Medicine to narrowed the search down to a staple in every infant’s life: milk. And this is where whiskey makes its first appearance.

In those days, there were what are known as dairy-distilleries. Crafty business owners realized that all of that left of grain - called mash or spent grain - would be an incredibly cheap source of feed for their cattle. To maximize profits, as soon as the distillery was done with the grain, they would dump it into troughs to feed their dairy cattle. They didn’t even wait until the grains cooled down. The cattle would burn themselves and step away from it, until they started to starve, and they would adapt and learn how to eat the steaming hot mash. 

And while spent mash does contain certain nutrients such as protein that can be very beneficial to the health of cows, a diet of spent grains alone deprives the animal of other critical nutrients including calcium. The cows were so sickly in these dairy-distilleries that some had to be milked while being held up by ropes because their bones couldn't support their own weight.

Add to that, the horrid conditions these animals were left to live in. Suffering from injuries and maladies (so bad some would have their tails fall off), living in cramped conditions with hundreds or thousands of other cows, and wallowing in their own filth and waste.

And the byproduct of all of this malnutrition and abuse was a product that was not pleasing to the eye - The milk actually had a bluish tint to it and the taste was definitely off. So to produce a sellable product, they doctored the milk with Plaster of Paris and thickened the liquid with rotten eggs and starch. And to chase out that strange blue tint, they would add colorants like burnt sugar or molasses. 

Worst of all, while it was theorized by the distillers that spent grains helped cows produce more milk. In reality, the cows were not only excreting milk, but also puss, disease, and whatever waste their bodies could discharge.  

Yet this disgusting and dangerous product was sold as "pure country milk" or "Orange County Milk" after a county just outside of New York City to give the illusion it came from a farm. And at the same time mothers were being told to wean their infants off of breastmilk because this extremely healthy milk was cheap and in great supply. These poor mothers were unknowingly killing their own children. 

It took an expose by illustrator Frank Leslie, in his own newspaper, to finally sensationalize and blow the lid off of these horrendous practices. He even took out ads in other papers to ask people if they knew what they were drinking.  

In this, it’s worst year, the New York Times reported that an estimated 8,000 infants had died in a single year from what was being referred to as Swill Milk.  And the death’s were by no means pleasant, as they would succumb to dehydration through uncontrollable diarrhea. The Swill Milk Scandal of 1858 was one of the most deplorable examples of how far some producers were willing to go to make a profit. 

And sadly, it all could have been over a decade earlier, the connection between Swill Milk and infant mortality was not a new thing. A temperance reformer by the name of Robert Hartley, the Ralph Nader of his day, raised the alarm bells in the 1840’s, but because of his temperance stance, he was dismissed as having an axe to grind with the whiskey industry.

But even with the siren call of Mr. Leslie and the New York Academy of Medicine, Tammany Hall politicians found a way to protect their buddy’s from their evil deeds. 

Under pressure because of angry mobs outside the distilleries, New York alderman took action and set up inspections of the facilities to placate the crowds. But they tipped the distillery managers off, and when it came time to inspect, the worst they said they could find were some dirty vents.

The next drawing in Frank Leslie’s Illustrated Newspaper showed an alderman painting a cow white to make it appear healthy. The scandal died down, but Frank Leslie, to his credit, wouldn’t let the story die and finally four years later forced the New York state legislature to finally pass stricter milk regulations.

What’s interesting is, to this day, the process of sending spent grains to farmers is standard practice with most major distilleries. And tour guides can’t let go of the urge to suggest that the distillery’s slop is the reason their region is filled with such happy cows. However, when pressed, they’ll admit that the cows only consume this as a protein-filled supplement to their regular diet. And most likely, this was one of the best lessons learned by the whiskey industry during the Swill Milk Scandal. 

But the scandal didn’t kill the concept of dairy-distilleries. In fact, 35 years later, The Distilling and Cattle Feeding Company of Illinois, would find itself in the crosshairs of a Federal investigation into the adulteration of whiskey. 

In an era of greedy business consolidation, that started with John D. Rockefeller’s Standard Oil trust, companies were merging and acquiring at breakneck speed.  In 1887, the Great Western Distillery of Peoria, Illinois decided to take advantage of the business climate of the day and merged with 65 other distilleries, forming what would be known as “the Whiskey Trust.” To drive up profits and control the market, they shut down most of their competition, including some of the distilleries they had merged with. If owners wouldn’t sell, they would use intimidation tactics to force their hand. 

By its peak, the Whiskey Trust owned nearly 90% of whiskey production in the United States. If you were drinking whiskey, most likely it was being produced by the Trust.

But with the passage of the Sherman Antitrust Act a few years before, the House Judiciary Committee was smelling blood in the water and launched an investigation against the Trust, citing their anti-competitive practices. But on day one of the hearings, a key witness would produce a revelation that would bring on a whole new set of concerns.

You see, the Whiskey Trust were engaging in a process known as “rectifying” spirits. Rectifying of whiskey had gone on for most of the 19th Century in the United States. It was a process of a “grocer” or rectifier, buying Grain Neutral Spirits (basically high alcohol mostly flavorless spirits akin to vodka) and blending them with whiskies to create a smoother, more palatable sipping whiskey.  Many honest rectifiers would treat this process as an art, creating high quality blended whiskies as a result. But for bad actors, it was common practice in those days to add colorants to the mixture to deceive the consumer into thinking it was a pure whiskey. And what they used for colorant depended on the morals of that particular rectifier. Some used prune juice or brown sugars, some used tobacco or even tobacco spit. And if the whiskey didn’t have enough bite, it wasn’t beyond some rectifiers to add acid to the mixture.  

There was no evidence that the Whiskey Trust was putting dangerous additives into their spirits, but what was being conveyed by the witness was that they weren’t really using any whiskey at all.

In his testimony, the insider disclosed that a group of Cincinnati chemists with Alexander Fries & Brothers, had concocted a variety of flavor additives, that when added to Grain Neutral Spirit could easily recreate the taste, flavor and color of anything from whiskey to rye to rum and gin.  Just pull up a barrel of neutral spirits and dump in the appropriate agent, and whala - you had a certain type of Kentucky whiskey or Jamaican Rum.

While his testimony was later called into question as he was accused of trying to manipulate the Whiskey Trust’s falling stock for gain, that wouldn’t be discovered for many more years. Meanwhile, whiskey had earned a black eye. And while it's sense the public’s outrage, for a passionate bourbon baron in Kentucky, it was time to take the gloves off.

Enter our unlikely food safety hero, Colonel Edmund Haynes Taylor, Jr., Col. Taylor, a descendant of both President James Madison and old rough and ready President Zachary Taylor, The Colonel was a banker as well as the founder of the Old-Fashioned Copper (O.F.C.) distillery, which would later become Buffalo Trace. Wearing his shiny black top hat, grey beard, and rimless spectacles, he was a master at promoting and marketing his bourbons. 

And having put in the time, money and effort that was required in the 19th Century to promote and market his product, and having unscrupulous “rectifiers,” undoing all of his good works, he knew he had to find a way to keep his customer’s confidence by differentiating his product from all the riff raff. 

So he joined with a former presidential hopeful and at that time current Secretary of the Treasury John G. Carlisle and they began to lobby Congress. Their goal was to great as set of legal regulations that would allow distillers to create pure whiskey under a protective set of bottling, production, and advertising rules. 

They were eyeing the practice of government bonding, a practice that had been available to them for years. But it had very loose guidelines for product quality and labeling. And they wanted to propose something that would guarantee the quality of any product that followed the guidelines.

The resulting legislation was to be called the Bottled-In-Bond act. Under it, what was bottled had to be produced by the same distiller, at the same distillery, during the same distilling season, aged for at least four years, unadulterated with anything other than water for proofing, and it must be bottled at exactly 100 proof (or 50% alcohol), all under government supervision, including the use of government bonded warehouses. In addition, the label also had to identify the distillery where the whiskey was distilled and where it was bottled, and it required a green wrapped sticker over the cork.

Those that took advantage of it, would have the proof they needed to show they had the purest product available on the market. And by taking advantage of the law, distilleries could defer tax payments on whiskey aging in bonded warehouses. And the government was happy, because they had tight-fisted control over the records, so there was no cheating the tax man.

But not everybody was happy. Whiskey rectifiers, especially the one’s that were making legitimate products felt it would give distillers an unfair advantage over them. Isaac Wolfe Bernheim, founder of I. W. Harper argued that blenders would be put in a bad light and straight whiskey could monopolize the market. 

But the arguments were not enough to sway Congress and President Grover Cleveland signed the 1897 Bottled-In-Bond act into law on March 3rd. The United States had its first major food safety law.

In 1895, the Whiskey Trust had gone into receivership and then split up. Remnants of it would surface from time to time, and some would attempt the same consolidation strategies, but they never held the same kind of power again. 

The rectifying of whiskey continues to this day under the term blended whiskey. And if you can’t beat them, join them. Many of the critics of the Bottled-in-Bond act, such as I. W. Bernheim purchased their own distilleries to take advantage of the act.

During the age of Prohibition, when adulteration of spirits returned enmasse, medicinal whiskey labeled Bottled-In-Bond became the most trustworthy whiskey available. And sadly, it was necessary because one of the unforeseen tragedies of Prohibition would be the amount of lives lost due to underground adulteration of whiskey that made its way into the gin joints and speakeasies.  

As for adulterated food, bad practices were still in play. In 1899 a New York Times article blew the lid off of a deplorable meat production scandal. . Showing no shame, producers creating beef bouillon decided they wanted to double dip and make the profits off of the pulp that remained from extraction process. A product devoid of nutrients was chemically enhanced and sold as roast beef to feed American soldiers fighting in the Spanish-American War. It lead to thousands of illnesses and deaths among military.

This and Upton Sinclair’s book The Jungle, which highlighted the abhorrent conditions present in Chicago’s Stockyards, would lead to the 1906 Food and Drug Act. An act, that would further press the question of what “pure” food or “pure” whiskey was. But one that also created a powerful government watchdog known as the US Food and Drug Administration. 

Bourbon producers would have another fight on their hands. But that’s another story, for another time.

So, when you see a whiskey these days that says Bottled-In-Bond on the label, really have any meaning anymore, or is it just clever marketing to get you to buy a bottle?

Well with the explosion of craft distilleries across the United States, there has been an influx of whiskey produced by third parties and sold to non-distiller producers. Many of these third-party distillers are creating high quality spirits to help jump start many of the new brands that are crowding onto your store’s shelves. But label requirements are lax on non-Bottled-In-Bond whiskey’s and there have been some high profile cases where distilleries were advertising a heritage and product while stretching the truth, or creating downright deception. 

Bottled-in-Bond, even after having some of its rules relaxed in the 80’s, still requires that a whiskey come from a single distillery, with a single distiller, in a single season. It is still stored in government bonded warehouses, and it still has to be bottled at 50% alcohol by volume, with no additional adulteration and is still aged for at least 4 years. The main things that are missing would be the tax stamp over the cork.

And many find that a 100 proof whiskey provides a whole lot more flavor than it’s 90 and 80 proof cousins.  So many Bottled-In-Bond whiskey’s are considered some of the best values on the market.  

Our food quality standards have come a long way since the days of the Industrial Revolution. There were some major growing pains along the way. And we still have issues to work out. But we whiskey fans know there is still a place on the shelf where we can rest easy with a guarantee of quality, without fear of adulteration or fraud.