Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 6, 1897

Mr. Peak to Mr. Olney.

Legation of the United States,
Berne, December 12, 1896. (Received Dec. 24.)

No. 55.]

Sir: I have the honor to inclose herewith for the information of the Department a translated copy of the correspondence between Messrs. Jenny & Kiebiger and the Swiss Government in reference to the exclusion of American meats by the Cantons of Zurich and Schaffhausen, the subject of my dispatch No. 51. This correspondence was sent to me by Mr. Gifferd, the United States consul at Basle.

It will be observed from the reply of the Swiss Government that two inspections are provided for in reference to the importation of foreign meats, one made at the frontier by the Federal authorities, and the other made by the authorities of the Canton in which the meat is offered for sale, and that in the latter case the Swiss Government has no supervision or control. It would seem, therefore, that each Canton may enforce this law in such manner as it may deem proper, giving to it such construction as may best serve its views, and from its judgment there is no appeal.

It will be further observed that Messrs. Jenny & Kiebiger, in their communication to the Swiss Government, expressly charge that the Cantonal authorities of Zurich and Schaffhausen habitually admit other foreign meats treated with borax and refuse to subject them to inspection, and that these orders are directed exclusively against American meats. And yet, notwithstanding these direct charges, no investigation is ordered by the Swiss Government, and no relief is given.

This correspondence has confirmed me in the opinion expressed in my dispatch No. 51, and has convinced me that the suggestions therein contained offer the speediest method of securing relief from this alleged discrimination.

I beg to suggest to the Department that, in my opinion, this present case is but another one of the many where the Swiss cantonal and Federal jurisdictions clash and where the Federal Government may seek to avoid redress or relief on the ground of incompetency to interfere, and, though this alleged discrimination seems to me to be in direct violation of articles 8, 10, and 12 of the treaty of 1855, between the United States and Switzerland, I am doubtful if adequate redress or substantial relief can be obtained unless the case were so completely presented that the facts would clearly show an intent upon the part of the cantonal authorities to discriminate against American meat. If convinced that the objectionable orders were a violation of the terms of the treaty above referred to, the Swiss Government would probably cause them to be revoked.

I inclose by separate mail for the use of the Department the rules for the enforcement of the Federal laws adopted October 14, 1887, printed in the French language, to which reference is made in the inclosed correspondence.

I have, etc.,

John L. Peak.

[Inclosure 1 in No. 55.]

Translation of letter of Messrs. Jenny & Kiebiger, Basle, to the Swiss Department of Commerce, Industry, and Agriculture.

November 16, 1896.

When, in the year 1895, the question of the admission for sale and consumption of meats treated with borax or borax preparations came up, the sanitary authorities of the different Swiss cantons arrived at conclusions not at all in harmony with each other; for, while the impression prevailed in most places that meats so prepared were absolutely innocuous, other health officers came to the contrary conclusion and held that such meats should not be offered for sale.

Hereupon the Swiss department of agriculture felt called upon, after a preliminary investigation, to communicate its views to the cantonal authorities. In its messages of February 18 and 23, 1895, it divided the meats coming under consideration into two distinct classes. (1) Meats, neither smoked nor, according to the notions that prevail in this country, salted, which have been treated with borax. Such meats must be regarded, in conformity with articles 100 and 101 of the Federal executive order of December, 1893, as fresh, and excluded from importation as well as from sale. (2) Meats, however, which may show traces of borax, but, at the same time, exhibit indications of smoking or salting, may be imported when they conform to the prescriptions of sections 4 and 6 of the articles above cited.

So far as our firm is concerned we beg to remark that we have never dealt in meats of the kind mentioned in (1), though we very well know that others have introduced considerable quantities of the same. More than twenty years of business experience has taught us that the offer of such merchandise is inadmissible. From our special standpoint it is even a matter of congratulation that its importation and subsequent marketing is forbidden. We know, however, that others have observed this rule only in part or have wholly ignored it. On the other hand, we have taken the greatest pains to conform to the regulations touching meats of the second class.

The sixth section of the Federal order of December 1, 1893, prescribed literally:

Salted and smoked hams, i. e., meats that through adequate dessication give perfect confidence that they will keep, and moreover possess the persistent characteristic color, odor, and firmness of salted or dried meat, may be admitted to entry.

We have not only given our furnishers strict orders to salt the merchandise sufficiently in accordance with the directions of your Department, which we have sent them, but we have bestowed our conscientious attention on a natural, gradual smoking of the meat, so that we have never offered the consumer a single piece that did not completely answer to requirements of section 6. Without hesitation we can invoke the testimony of every Swiss inspector of provisions and demand whether he has ever found anything to censure in our wares, or anything not in accordance with the above-mentioned prescriptions.

We take the liberty to add that it is by no means to be assumed that our merchandise is, so to speak, pickled with borax. For that purpose salt is now employed just as it always has been. Borax is employed only as a packing for the already corned meat, to preserve it during transportation. On arrival of the merchandise the borax is carefully removed from the outside of the meat, which is thereupon smoked. Our process of curing is such that the flesh when smoked and offered for sale retains only insignificant traces of borax.

We now believe that, having so carefully and conscientiously observed all the requirements of the agricultural department, we could carry on our long-established business in peace and security; but unfortunately this has not been the case. Quite recently the sanitary authorities of the cantons of Zurich and Schaffhausen have abruptly forbidden the introduction of and sale of meats that have undergone a preliminary treatment with borax. We inclose copies of the orders in question.

We believe ourselves justified in laying before you our protest against these prohibitory measures and at the same time in giving notice of our claim to indemnity for the considerable loss thus occasioned us. As we have observed all legal requirements on importation of the merchandise, paid the duties, and offered it for sale in such a condition as to conform entirely to the prescriptions of the agricultural department, issued on the 13th and 23d of February, 1895, we believe we have acquired the right to sell our meats. That the prohibited import and the reasons given for it are in complete contradiction with your department’s orders and regulations needs no further proof, and is self-evident from the foregoing explanations. But even were it to be conceded that the health officers of Schaffhausen and Zurich are justified in their action—and this we deny in the most decided manner—the prohibition must in that case apply to all meats imported and offered for sale, and not especially, or as actually occurs, exclusively to meats imported from America.

From Italy, Germany, and Austria shipments of salted meat, ham, sausage, etc., which, with few exceptions, have been treated with borax (and all are sold without objection), and in Zurich the authorities charged with the execution of the prohibitory measures formally refuse to subject them to an examination. Swiss meats are treated, according to the time of the year, with borax, more or less, known here as “conservemittel” or “conservesalz,” consisting almost wholly of borax. Of this fact we possess ample proofs, as well with reference to domestic products as to those of Italian, German, and Austrian origin.

If, then, the treatment with borax is to be forbidden, it is not permissible to enforce the prohibition exclusively against the United States. It is not for us to determine whether meats prepared with borax are injurious to the health or not; we would simply point out that, up to the present time, no case is known where it has been proved that such food has been harmful, although borax has everywhere been employed in this way for more than ten years. It is to be added that after our treatment above described only a trifling quantity of borax is retained in the meat. But the question arises whether the saltpeter prescribed by Zurich and Schaffhausen for preserving meats can be regarded as harmless. We doubt it. From the specialist’s point of view we must declare, as the result of our long experience, that—

(a) There can be prepared from flesh treated with borax a slightly salted, fresh, agreeable bacon, which is universally popular, and which for working people is to-day a cheap, indispensable article of food of prime importance.

(b) From meat of like quality as (a) prepared with saltpeter only, bacon can be produced that retains & sharp, unpleasant taste of saltpeter, which is disliked by the consumer and regarded by the trade as of inferior quality.

It is unnecessary for us to draw the obvious conclusion from the above premises. While respectfully requesting your Department to take steps that will lead to the speediest possible removal of the obstacles placed in our way by the cantons of Zurich and Schaffhausen, we beg to state further: Thus far we have conducted our business in conformity with the laws relating to it and have strictly observed all the regulations laid down by the Federal authorities. We have, therefore, besides our considerable stock of the merchandise in question, made large purchases of the same for future delivery, which we in turn have sold to our customers in the same way. The law does not allow us to annul these business engagements, and we can only look forward to a series of disastrous suits at law, while at the same time we do not know what disposition to make of the merchandise should the prohibition be maintained. Freight and import duties have been paid, and since the meats have been cut and prepared for the Swiss market their shipment to a foreign market is impossible.

Commending our application to the benevolent consideration of your Department, we remain, etc.

[Inclosure 2 in No. 55.]

Translation of reply of Bundesrath Deucher to Messrs. Jenny & Kiebiger.

Berne, November 20, 1896.

In yours of the 16th instant you complain of the action of the competent authorities of the cantons of Schaffhausen and Zurich in forbidding traffic in meats preserved by the use of borax. Invoking the provisions of article 100 of the Federal executive order in regard to the cattle plague police of October 14, 1887, you request us to effect the repeal of the prohibitory measures.

We have the honor to reply that article 100, which you cite, has exclusive reference, so far as its execution belongs to the Confederation, to the action of the frontier veterinary surgeons touching meats introduced from abroad when, from the standpoint of the cattle plague police, such action seems necessary. In the present case the competence of the Federal authorities is limited to the oversight of the certificates of origin prescribed by section 6 of article 100, while, according to section 9 the sanitary inspection is committed exclusively to the cantons, whose right and duty it is made to superintend the introduction of all meats and to require a renewed inspection of the same if the occasion requires it. Also, according to the tenor of article 80 of the order in question, the traffic in meats, etc. (meat inspection), in the interior of Switzerland lies exclusively in the jurisdiction of cantonal authorities. We can not, therefore, take any action against the measures adopted by the cantons of Zurich and Schaffhausen and opposed by you.

Very respectfully,

Swiss Department of Agriculture, Deucher.