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Wednesday, January 8, 2014

False Advertising and the Legacy of Duffy’s Pure Malt Whiskey.

The history of bourbon is full of legends, boasts, puffery and even outright lies, all in an effort to promote a brand and make a sale in a highly competitive craft.  Today’s false advertising and consumer protection laws have largely eliminated the lies, but who takes the all-time prize for false bourbon advertising?  James Pepper certainly seemed to stretch the truth; Paxton Bros. and the H.E. Pogue Distillery entered into a sourcing contract that a federal court held was “the perpetuation of fraud on the public;” and some unscrupulous whiskey rectifiers routinely defrauded the public until reined in by the Bottled-In-Bond Act and the Pure Food and Drug Act. 

But one brand stands far above the rest as the ultimate fraudulent advertiser:  The Duffy Malt Whiskey Company.  To quote Lionel Hutz, Duffy’s advertising may be “the most blatant case of false advertising since … The NeverEnding Story.”  The Simpsons, Episode 67 (“New Kid on the Block”).  Nov. 12, 1992.



Walter B. Duffy (1840-1911) took over his family’s distillery, The Rochester Distilling Company, in the 1870’s.  By the early 1880’s, Duffy was advertising his Duffy’s Malt Whiskey not only as a tonic that “Makes The Weak Strong,” but also as a cure for all sorts of diseases.  Consumption, influenza, bronchitis, indigestion, and practically old age itself were claimed to be no match for Duffy’s Malt Whiskey.

Duffy quickly over-extended his company, and he was forced into bankruptcy in November 1886.  The collapse of the Duffy Malt Whiskey Company and the appointment of a prominent Receiver were widely reported The New York Times and other established newspapers, and lawsuits were filed as debts were resolved.  But just as James Pepper and Col. E. H. Taylor, Jr. emerged stronger from their own financial troubles, Duffy turned his company around, albeit with more false advertising.  Here are a few samples:






  
This last example led to litigation because Duffy’s sent The Chicago Sunday Tribune the wrong picture (it’s unclear whether intentionally, or not, or whether the testimonial was fabricated, or not).  In Peck v. Tribune Co., 214 U.S. 185 (1909) (written by none other than Justice Oliver Wendell Holmes, Jr.), the Supreme Court of the United States reversed two lower court decisions that had dismissed the libel claims of the plaintiff – the subject of the photograph – who claimed that she was not a nurse, and, moreover, she never drank Duffy’s Malt Whiskey (nor any spirit), and she never, under any circumstances, would recommend its use.

The opinion of the Seventh Circuit to some extent, but more so Justice Holmes’s opinion, give insight into the growing temperance movement as the country grew closer to national prohibition.  For a much better account of Duffy’s outlandish advertising and how it contributed to the eventual success of the temperance movement, be sure to read Whiskey Women: The Untold Story of How Women Saved Bourbon, Scotch, and Irish Whiskey, by Fred Minnick, at pp. 57-58.

In the meantime, Duffy’s revitalized company was so strong that he was able to withstand and prosper during the Panic of 1893, and by 1900 he had formed the New York and Kentucky Company which acquired the George T. Stagg Company and the Kentucky River Distillery (previously, and better, known as The Carlisle Distillery) in Frankfort, which together are now the Buffalo Trace Distillery.  Col. E. H. Taylor, Jr., in particular, was disgusted that someone who he considered to be a disreputable rectifier had come to own Taylor’s former prized distilleries.

While owning these historical Kentucky sites, Duffy continued to market his Duffy’s Malt Whiskey for its claimed medicinal benefits.  Through the early 1900’s, the challenge to Duffy’s false advertising was building.  Samuel Hopkins Adams wrote an exposé of so-called “patent medicines” (elixirs sold as medical cures, but without any actual curative benefit) in 1905 entitled “The Great American Fraud” in Collier’s Weekly.

While Adams stated that it was “impossible” for him to name all of the patent-medicine frauds, and that he “can touch on only a few,” Duffy’s Malt Whiskey was egregious enough that he identified it by name:  “Duffy’s Malt Whiskey is a fraud, for it pretends to be a medicine and to cure all kinds of lung and throat diseases.”  Adams acknowledged that “[f]rom its very name one would naturally absolve Duffy’s Malt Whiskey from fraudulent pretense” because, at the time, the word “malt” conveyed medicinal qualities, so he was sure to reference a ruling by the Supreme Court of New York that Duffy’s Malt Whiskey was not a medicine.

The New York court had been considering whether or not Duffy’s was a medicine or a whiskey due to certain tax issues, and in Cullinan, as State Commissioner of Excise of the State of New York v. Paxon (1905), it heard expert testimony on that issue.  Experts noted the alcoholic content of Duffy’s and testified that a “search was made for added medicinal ingredients with negative results.”  Instead, they concluded that Duffy’s “is simply sweetened whiskey.”  Accordingly, the court declared that Duffy’s Malt Whiskey was a liquor, not a medicine.

Adams also refuted some of Duffy’s ringing endorsements, such as the “Clergymen Endorse” advertisement above.  Adams uncovered that one of the clergy pictured simply ran a “Get-Married Quick Matrimonial Bureau” and was paid $10.00 for his picture; another was a “Deputy Internal Revenue Collector” and racehorse owner, whose actual photograph was not used in the advertisement; and the third clergy was forced to resign by his congregation after they learned of his endorsement.  Adams also discovered that Duffy’s employees tricked some physicians into providing testimonials, for example by misrepresenting that they would not be used in advertising.  Ultimately, “The Great American Fraud” helped lead to the passage of the Pure Food and Drug Act in 1906.  This movement, along with the temperance movement and growing sophistication in medical knowledge, spelled eventual doom for Duffy’s.

Today’s claims of false advertising are tame by comparison.  Some people believe that Diageo’s product placement of Bulleit Bourbon on Deadwood (the HBO western series set in the 1870’s) constitutes false advertising because Bulleit was not introduced as a brand until 1999.



Others contend that bourbon brands that don’t distill or age their own bourbon engage in false advertising when they hide the true nature of their business and tout their Master Distillers (who don’t actually oversee any distillation).  Michter’s is often on the receiving end of this criticism.


However these recent criticisms are viewed, at least we’re not being sold snake oil, and at least mendacious rectifiers adding things like tobacco juice, pepper sauce or potentially harmful adulterations to simulate age, color and flavor in our bourbon is a thing of the past (remember, some rectifiers had scruples and were simply blenders, or only added safe products, like brown sugar, prune juice, honey, tea and wintergreen).  So Cheers to Walter B. Duffy for his outrageously false advertising, which helped set the wheels in motion for bourbon we can enjoy today. 

24 comments:

  1. I found a dark brown bottle with name of The Duffy Malt Whiskey Company Rodchester New York on it. So Decided to check the internet to see what the story was. I guess I found a pretty good story.

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    1. Yes, you definitely lucked into a fantastic story that's far more than just about whiskey! Great find, and thanks for sharing!

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  2. I have a new haven clock with duffy's pure malt whiskey engraved around the clock face and the picture of the chemist on the glass in front of the pendulum. it has to somewhere between 100 and 130 years old.

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    1. What a great find! If you wouldn't mind sharing, I'd love to add a picture to my post and attribute it to you however you see fit. If you're interested, please email me from the link in the profile page. Thanks!

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  3. I just found a Aug 24 1886, Brown, The Duffy Malt Whiskey Company Rochester Ny. sticking out of the marsh in the middle of nowhere on the Chesapeake Bay. All I could see was the neck. I knew it was old. When I pulled it out it was perfect. A great story to go with it now. Thanks.

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    1. Cleaning up the Bay and finding history at the same time! That's fantastic!

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  4. I came across a brown The Duffy Malt Whiskey Company Baltimore MD bottle. What years did they make this bottle, please. I found it at a yard sale for free. Thanks

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  5. I came across a brown The Duffy Malt Whiskey Company Baltimore MD bottle. What years did they make this bottle, please. I found it at a yard sale for free. Thanks

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    1. That's a nice find (especially for free)! The lawsuits that I read for this post did not mention dates when bottling was done in Maryland. However, you will want to check out this link: http://www.peachridgeglass.com/2013/05/is-it-just-a-duffys-pure-malt-whiskey-bottle/, a great article in Peachridge Glass by Ferdinand Meyer V.

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  6. I found 14 bottles in an excavation of a construction site in Washington DC. The most distinctive of the bottles is a brown bottle with the letters WDB on it with a crest or shield below the letters with a lighthouse inside the shield. I have been told it was a fake Duffy malt whiskey bottle but it is definitely pre 1900's. The construction site I have learned was a landfill in the late 1800's and early 1900.

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    1. Thanks for reading and sharing! There were definitely other brands that tried to look like Duffy's, although Duffy bottles were pretty distinctive. Cheers!

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  7. I have a medicine spoon that say's Duffy's Malt Whiskey--medicine on it. Any idea of when it was made?

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  8. Just found a 1901 newspaper article from minnesota with and ad from Duffys quoting different testimonials from pleased customers. The best being a 120 year old man who claims "Duffys Pure Malt Whiskey is my only medicine".

    http://chroniclingamerica.loc.gov/lccn/sn83045366/1901-09-24/ed-1/seq-8/

    hope i can link the URL in the comment.

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    1. The link worked great -- and what a great find. Thanks!

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  9. I have one of those bottles but mine was a sticker on the front and back. On the back sticker, it has doeses of how much to take, even for infants. The only date on the bottle is the patent date on the bottom of 1886.

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    1. That sounds like a great bottle to have! Infants!!

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  10. I have a brown bottle with Duffy's Whiskey Rochester on it. Is it worth anything?

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    1. Just a bottle or is it full? Value will depend on numerous factors.

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  11. Hello. My great, great, great grandfather, Austin Cronin, was featured in a Duffy's ad. Austin was a street sweeper, a 'white wing' in Syracuse New York. He was featured many times in the local papers due to his whimsical manner and outlandish claims including an age much older than he truly was. I set up a 'shrine' to Austin comprised of a couple of the Duffy's brown bottles and a framed image of the following ad:

    https://www.findagrave.com/cgi-bin/fg.cgi?page=pv&GRid=98219712&PIpi=146515730

    Thanks for the fun read.

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  12. That is so cool! Definitely "shrine-worthy"!

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  13. I co-authored a biography, "The Boy Soldier: Edwin Jemison and the Story Behind the Most Remarkable Portrait of the Civil War." The subject of the biography was killed at Malvern Hill. Many years after the Civil War a Confederate veteran claimed he witnessed the death of this young soldier. This veteran also appeared in ads for Duffy's claiming Duffy's restored his health after the Civil War. Thank you for telling more of the story.

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    1. The story of Private Edwin F. Jemison is as remarkable as his photo, and now there's a Duffy's link. Thanks for sharing this connection!

      PS readers: Here's a link to the book on Amazon -- https://www.amazon.com/Boy-Soldier-Jemison-Remarkable-Portrait/dp/1594162646

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