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192

FOOD, T'RUGS, AND COSMETICS

"The Government is forced to prove that an added, not a naturally occurring poison (for that does not count), is present in a specific consignment of food in such quantity that the food may be deleterious to health if consumed. It is therefore open to the inanufacturer or shipper to prove that this particular lot of food may not be deleterious to health if 80 consumed. Each court case stands by itself and the cousunier is inadequately protected."

The matter of added poisons has always been well understood. The word appears in the present law.

The Supreme Court of the United States in 11.8. v. 40 Barrela, 241 U.S. 265, pointed out that the word "ndded" was used to distinguish between deleterio118 ingredients that might be found in an article and put there by man, from deleterious ingredients which inight be found in nature's products as she produces them.

The difficulties which, in the opinion of Professor Tugwell, apparently resiilt in the insufficiencies of the present law, is disclosed in the following language used by him in the article referred to: "The Government is forced to prove" and "it is

open to the manufacturer or abipper to prove that this particular lot of food may not be deleterious to health if so consumed. Each court case stands by itself and the consumer in inadequately protected."

Why should not the Government be forced to prove the facts it alleges? Why should property be destroyed without auch proof? Il a particular lot of food does not contain added poisons deleterious to health, why should not the manufacturer be permitted to meet the charge and prove that his article is a wholesome article of food containing no such poisonous or deleterious substances?

I take it that what the good professor desires is that the manufacturer be not perniitted to prove his innocence or that his preparation is a good food article.

The article contends that the consumer is inadequately protected if any appcal may be made to the courts. That is the sum and substance of it.

Another matter appearing in the Tugwell article to which I wish to advert:

“It does not give undue dictatorial powers to so-called Government burcaucrats. While it clocs grant the Secretary of Agriculture certain new authorities, it is very specific in these grants, and protects legitimato business interests effectually. Any attempt at the abuse of such authority by an arbitrary or capricious exercise of it will not succeed, because the courts, in the long rui, refuse to sustain any requirements too far divergent from the ordinary coinmunity standards of good conduct and fair practice.'

Notwithstanding that in one paragraph the statement is made that the grants of power to the Secretary of Agriculture are confined within narrow limits, in the very next paragraph appears the statement:

"A law must be sufliciently brond and flexible to effect the conviction of offenders whosc conduct hins fullen below the standarde deinanded by both conBumers and ethical competitors. But if the language of the statuto restricts itself mercly to specific antisocial acts that its drafters anticipate, the Macovery of loopholes in that law is inevitable, and the difficulties of its enforcement multiply endlessly."

The declaration that the grant is limited to a narrow acope is disposed of in the language which I have last quoted. The law must be so broad and flexible that the language is not restricted to specific violation for fear that loopholes may be discovered and difficulties of enforcement multiplied. Interesting, isn't it? In other words, bureaucracy is not to he limited. It is not to be confined within narrow limits. Powers must be a broad and nexible that thoAA powers mny not be challenged in court by an intorested party who may foool his rights have becn invaded.

The Congress is now being asked to ao rewrite the Food and Drugs Act that commerce in druge be the subject of edict and decrec and that action noed not be limited to proper cascs nor neccesary care be taken in the preparation and trial. Nore.--Italics supplied.

V The bills introduced declare among other things that their purpose is "to prevent the false advertiscient of foods, cirugs, and coninctics."

There his licens persistent effort to show that there is no regulntion of advertising in the field of foods, Irukh, and corinetich. You will see from what follows enout there is both low and efficient ooforeenient. I quote from the annual roport of the l'ederal Trade Commission, released December 12, 1932, for the fiscal your FOOD, DRUGS, AND COSMETICS

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ending June 30, 1932, and addressed to the Senate and blouse of Representatives of the United States, puges 40 and 47:

“During the fiscal year ending June 30, 1932, the special board concluded the in vestigntion of and reported to the Comiuission 100 cases. Of these, 3-1 were agninnt advertisers, 57 igninnt publishers, and 8 ilgninst ouvertising agencies.

"In 45 Cilhus the advertinori discontinued business, 12 mori: were forced out by, post-utlice frund orders, 3 discontinued fulse and misleading udvertising before comiplaints were made, 42 cuscs were disinished for lack of evidence or jurisdiction, 18 were referred to other divisions, 233 were disposed of by stipulation and prosecution of formul proceedings was recommended in 9 cases. In 44 cuse's investigations were conpleted, reported to the Commission, and await further orders.

While it is iinponsiblo to stuto accurutely the number of fulse and misleading udvertisements that have been discontinued antirely or revised to check fairly with the truth, it is cstimated that such uber for last year, considered us being directly due to the Commission's activities, excurs 20,000. The money nu ved to the purchasing public amounts to inuniy inillions of collars."

You will plouso noto the extraordinury activities of the Federal Trade Commission, together with their estimate that the number of sulse and misleading advertisements which have been either discontinued entirely or revised to check with the truth and resulting from the Commission's activities, exceeds 20,000.

In addition to the above, the so-called “Printer's iuk law" prohibiting fulse advertising has been enacted by the legislatures of all of the States and the District of Columbia, except Arkansus, Delaware, Georgia, Maine, Mississippi, iind Texas.

The desire for new legislution in this behall is tho wish to extend the new despotism.

Tho CHAIRMAN. Every effort will be made to accomodato everyone. The next statement that we have is that by Mr. Huston Thompson.

STATEMENT OF HUSTON THOMPSON

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Mr. Huston THOMPSON. Gentlemen of the committee, having been before committees a number of times, I think I had better stute spocifically just whom I represent, so there will be no question is lo iny position. I am here as the executor and trustee of the estate of Cärl H. White. The Carl II. White Co. is vendor of certain products. Carl 11. White was the founder of the Houlth Products Corporation. This corporation produces a number of medicinal articles. Among those articlos are what is known as “White's Concentrate,” and a laxativo chewing gum called Feonamint. In looking over the bill, it seems to me that there should be an amendment or inclusion or u proviso that will cover articles of this kind; that is, articles such as Heenamint being a laxative chewing gum, and "White's Concentrate." The bill, as it now stands, has a definition. The CHAIRMAN. On page 2?

Mr. THOMPSON. Yos. "On page 2 there is a definition of the term "drugs. On page 1 thero is a definition of the word “food.' Those articlos of which I spcak, and there are many othors, of course, on the murkot of a similar nature, which are composed of both food and drug. So that so far as this bill is concerned, they are in a twilight zone, being covered by neither group.

It is my suggestion that we have a proviso by inserting the words, after the word "aniinuls”, on the lust lino-10, it is on line 11 of puyo 2-thint will cover articles where the article is both a food and a drug. I have a draft of this proviso to follow the word "animals" on line 11 on page 2, in paragraph B.

The CHAIRMAN. Just read it.

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Mr. Thompson. This is an amendment offered by IIouston Thompson to this bill. I offor the following language as an amendment in the form of a proviso to be placed after tho period following the word "animals” on the eleventh lino under (3) of paragrapli B," page 2, of the said bill.

Proviileil, That any substance or preparation which inny bo a combination of a food and drug shall be deemed and classified only as to food or drug, dependent upon its intended and/or actual 18C, which shall be clearly expressed ou the carton containing the said combination, or on the label marking.

The CHAIRMAN. I do not understand the last part of that.

Mr. THOMPSON. That should be "which shall be clearly expressed in or on the carton contnining the label marking the said combination.”

My renson for that is this: This bill merely leaves a great discretion to the outhor of the bill or its administrator in connection with that, without being at all specific. It does not provide for it as specifically as would be desirable. For instance, if you turn over, for example, to the section covering tolerances, section 10, page 14, nt the bottom of the page, you will find the subject of tolerances for poisonous ingredi. ents in food and cosmetics and certification of coal-tar colors. Also you give discretion, as I understand this bill, to the Secretary to determine on the question, for exainplo, of poisons and of antidelctcrious substances. If this were a food in all cases and there wore used this element in there, as, for example, phenolphthalein, tho question will arise ns to whether thero wns injected a deleterious substance. You are in a position, if you leave the definition as it is now covering simply the question of food and drugs, that the strict interpretator would have the power over such a combination or such a product that might be a very serious one.

The CHAIRMAN. I see your point, and on page 2, between lines 11 and 12, you wish to liave inserted the material which you have given us.

Mr. W. Bruce Philip, of Washington, D.C., counsel for the Association of National Retail Druggists, one of our 5-minuto speakers, will now state his views in connection with this matter.

STATEMENT OF W. BRUCE PHILIP

Mr. PHILIP. The National Association of Retail Druggists has for over 25 years represented the interests of 60,000 retail druggists in the United States.

We wish to subscribe to Dr. Benl's analysis of the Tugwell bill.

We wish also to subscribe to the suggested amendment to the present. Food and Drugs Act that will be prosentod.

Brielly, the problem of the retail druggist is quite different from the problem of the large manufacturer. On tho druggists special subjects I would like to give you a little information and some experiences.

It is enay enough to say that is the laws or rogulations are not satisfactory you can go to court. The average retnil druggist cannot afford to go to court, in fact, the druggists, I should say, over 59,000 of the 60,000, will be forced to accept the regulation, regardless of whether they are in accordanco with the law or in accordanco with their rights. It is almost impossible for the average retail druggist to protect himself ngninst 11 o regulations. This bill, as I read itand I have read it carefully--is n skeleton bill that gives to tho

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authorities, the Secretary of Agriculture and his assistants, full power to reguluto food, drugs, and cosmetics.

One experience that we had under a law that was wiped out this month (the oighteenth amendment), was al caso in point whicro undoubtedly not only our constitutional rights, but the sorvices to u largo group of people were affected. We raised $4,000 to carry the case to the United States Supreme Court. We did the best we could. The Government informed ine that they were very happy to have the point involved decided by the Supreine Court. When the case came to the Supreme Court, the Government's attorney found that we had failod to join tho Collector of Internal Revenue and therefore we lost our case. The point was never decided and unquestionably our rights were affected until the eighteonth amondment was repealed. The enthusiasm that people get in the Government omploy oston carries them boyond the point of necessity. Innsmuch as this is a bill depending upon regulation rather than the wording of the bill we cannot understand what it moans. let me tell you of an instance that occurred showing how important regulations are. Some of you may be familiar with this regulation. This regulation existod for vears aftor it was written.

I think you, Dr. Copeland, may have had some personal experience in connection with this regulation. Inasmuch as I am a pharmacist. At that timno I was in my own drug store, and we were filling prescriptions for a great many tuberculosis patients. I, personally, was working at the prescription counter und I was familiar with the regulation I will tell you about. It was a narcotic regulation. Let me, before I go further, say this. Our association is behind the narcotic regulations; we will go to almost any degree to support any officer in the enforcement of narcotic regulations, and they will so tell you.

This regulation required that when a narcotic was prescribed for a person with an incurable disease the name of the diseiso had to be written on the prescription. It was undoubtedly a good intention. They wanted to protect the public from receiving lots of nurcotic prescriptions or to prevent a fow physicians or a few pharmacists abusing the law. But actually what did this rogulation do? The doctor hunded the patient a piece of paper and the patient could rend his own death warrant. The regulation made the prescription the patient's deuth warrant. I, personally, have seen people dejected and in despair with their narcotic prescription in their hands which said to them, “You must die.” It was not the law; it was a regulation. It took 2 or 3 years to have that regulation changed. Thut is a long time.

We could have gone into court, but we had no money to go into court. Instead, we protested, and we huu to protest time and time agnin. Finally, the regulution wus changed.

Our members have to deal not with men like Mr. Campbell, not with the people here in Washington, but with the hundreds of people thut aro lesser employees in the Governient service. Many are inexperienced. We have untold problems with these inspectors and enforcing officers. The first time we had an insecticide law in Californiu, wo hud tooth paste and hair preparations tied up in one district for a week or two until we could get our coinmitteo together and go to Sacramento and have the regulutions changed and new instructions given to the inspectors. Thint is the way regulutions

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were carried out in an insecticide Inw. We had to have inspectors told how regulations were to be carried out under an insecticide Inw. If this law is to be effective, and our idea is to have laws effective we must have a similar Tugwell bill in every Sunte. "To pass an entirely new law that is different from 48 similar State laws, must mean the repeal of 48 present State food and drug acts and the passing of a bill like the Tugwell l»ll in every Sunte. This is a very difficult proposition. It is far better to take the present law and amend it and then have State laws which are now following the present Food and

rug Act, amended. As I said, S. 1944 is a skeleton bill with full power in the Secretary of Agriculture. Are we going to have 48 States laws with the power in each State in the Stato secretary of agriculture? Are we going to hnve nny uniformity? Under these conditions, are we going to have anything thnt is n protection to the public and that is satisfactory to the public? I doubt it.

We have here in the S. 1944 on example of the Department's enthusingm, and I do not blame Mr. ('nmpbell for his enthusiasm; I do not blamo anyone working for a low like this, being onthusiastic, but in the definition of confection, in his desire to punish those putting metallic substances in candy he lias written S. 1944 so that it would destroy the entire chowing gum industry. It was not the intention of Mr. Campbell or Mr. Tugwell to do that, and I am sure the law will bo modified. But, in their enthusiasm to reach one or two or threo problems they lnve written provisions that live a very far-ronching effect. In their effort to reach these cases which are asserted to be dangerous, the bill has been written without regard to how far runny provisions will go. I mean by that, that in trying to onforce this Inw aginst such things as those inetallic trinkets that do not represent the average condition, but are more or less for fetched, that the farreaching effect of tho regulations and the Inws will be difficult to be lived up to in ordinary practice.

The Chairman. You will remember that Mr. Campbell suggested an amendment to that particular soction.

Mr. Puitp. Ho did, and that is tho point, Sonntor Copolnnd. Lawa nro preparod so that we may como hero and protost nnd have the law rowritton, but a regulation is issued over night. Wo do not see the regulations until they are handed to us and they have the forco of law. If the definition of a confection was a regulation it would wipe out the industry of chewing gun until we could go into court or roach the proper person here in Washington and have the rogulation changed. What we want, Senntor, is this: Wo want a law we can understand. We think we are right in wanting it, and we think wo aro onrnost in our intentions in coming here, to ask for n law that we can understand, that we can rond, understand, and follow as a part of our business. We have the diflicult problon of serving the public and we must know exactly what we should do.

I object, both ns a citizen and in the name of the association, to placing a great deal of power in the hands of any Government buronu. Congress meets every year. We will go with you or with Mr. Campbell or anyone else in an endeavor cach year to have Inws strengthened and modiliod, but is the law is so writion that wo live regulation after regulation, and it takes 2 or 33 years to change that regulation, we aro simply at a disadvantage in serving the public. There is one moro thing I would like w call to your attention, that is the voluntary in

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