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POOD, DRUGS, AND COSMETICS Basing such a determination on any general agreement, as interpreted by the Secretary, would leave a wide-open field for error and one-sided opinion. It might also handicap Government in obtaining convictions.
If any criterion is needed, it should be something more definite and concrete, such as an accepted scientific and clinical test. But why should there be any criterion set up in advance? The courts have always been able to judge of expert testimony offered by either side, in medical as well as other fields.
In this connection it should be remembered that the infraction is a criminal offense, entailing severe punishment, and should conviction depend upon anything as vague and variable as general agreement of medical opinion?
In section 9 (c): To discourage self-medication, the bill prohibits claiming in an advertisement that a drug has any effect upon a list of mentioned diseases, many of them common and commonly treated by physicians, with the same or similar products.
Again the sufferer is deprived of having suggested to him, through advertising, palliatives used by physicians themselves.
If any effect were changed to read "any curative effect", it would give the consumer all the protection needed and not deprive him of suggested palliatives of substantial benefit to him.
Such claims are not prohibited if made in a scientific journal, appealing to doctors and pharmacists. Why should the sufferer himself be barred?
The Secretary is authorized to add to or subtract from that list of diseases, as he may see fit. That seems like unwarranted authority which should be exercised only on recommendation of a scientific body, with appeal to the courts.
In section 21, the Secretary is himself directed to do a form of advertising which might easily be false and very harmful to legitimate business, in the following paragraph:
The Secretary shall cause to be disseminated such (adverse) information regarding any food, drug, or cosmetic as he deems necessary in the interests of public health and for the protection of the consumer against fraud.
It seems to us this should be permitted only in case of imminent danger to public health, and then after a hearing, and in all other cases should not be permitted until after fraud or violation of the act has been adınitted by the offender or established in a court of law.
This is one of the most despotic features of an autocratic law; it would put into the hands of the Secretary a coercive power to undermine or ruin a business. Subsequent correction or reparation might be helpless undo thc harm. No man is wise enough to be entrusted with such power.
And the Secretary is not only empowered to do this; he is directed to do so.
In section 23, (c): It is provided that in hearings authorized or required by the act, the findings of fact by the Secretary shall be conclusive if in accordance with the law. This, we understand, will be changed by the sponsors of the bill—but it suggests a question as to how the Secretary will arrive at advertising judgment.
We feel that all advertising questions not involving fraud or the promotion of dangerous products, should be referred to responsible
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channels of experienced opinion in the advertising industry itself. If the Secretary is given power to make such decisions, they should be based upon the findings of such a judicial-minded body, just as physio logical and therapeutic questions should be referred to a scientific group.
This is a form of that self-regulation which the Government is fostering through the X.R.A., and should be contemplated or provided for in any legislation enacted regarding advertising. The advertising and publishing industry has already built such a body of opinion now ready to function.
In its definition of a false advertisement, the bill is altogether too vague and unsafe. It states in section 9 (a):
An advertisement of a food, drug, or cosmetic shall be deemed to be false if in any particular it is untrue, or by ambiguity or inference creates a misleading impression regarding such food, drug, or cosmetic.
According to this provision any harmless “puffing" or slight or inconsequent or fanciful variation from literal truth would constitute a false advertisement, as would also be true is a statement seemed ambiguous to any reader however unintelligent or prejudiced, or should deceive him by making a wrong impression upon his mind.
No statement, it seems to me, should be held responsible for infer ences drawn from it by any state of mind of the reader. He might be a moron or biased, full of inorbid fears or fixed ideas. What he might make out of a perfectly sound and true statement, nobody can control.
A statement is either true or it is false in itself; that is a question of fact; it is not a question of what anybody might think or infer.
Of course the details of a statement may be literally true and still make a misleading impression by arranging such details in false perspective. That should be included as deceptive advertising.
Would the following statement not be equally effective in protecting the reader without handicapping honest advertising?
An advertisement of a food, drug, or cosmetic shall be decmed to be false if in any material respect it is essentially untrue or inherently deceptive.
I believe the advertising agency group which I represent would also endorse the definition of false advertising made by Mr. Charles Wesley Dunn this morning in his address on behalf of the Grocery Manufacturers, as follows:
An advertisement of a food, drug, or cosmetic shall be deemed false if it is false or injuriously deceptive in any material particular related to the purposes of this act.
Section 17 (6) (d): Does not clearly exempt media ouders and advertising agencies from liability for infraction and hold the advertiser solely responsible, as should be done and is intended to be done. Paragraph (d) of section 17, exempts the media owner and advertising agency *if, on request of an officer or employee duly designated by the Secretary, he furnishes the name and post-office address” of the advertiser. 'In event the Secretary did not choose to request this information, there would be no exemption. The provision should be so written that exemption should always apply unless the media owner or the advertising agency declined to furnish such information, if known, and on request.
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The advertiser himself should be solely liable for false advertising, because he alone is always in possession of thc facts and can authorize publication of the advertisement. The responsibility is his.
The responsibility of the advertised product, by a reputable firm in a responsible magazine, is the consumer's best safeguard against inferior products or false claims about them; and any unnecessary handicapping of sound advertising by rigid methods of interpretation, in order to catch a small minority of offenders, would work an injury to the consumer.
'It is vital to the best interests of advertising and to its ability to serve the consumer that no legal restriction of advertising be so worded as to obstruct or emasculate legitimate and honest appeal. There should be no vague borderland of ambiguity or inference which might or might not be regarded by someone as untruth.. Only essential truth or falsity should be in question-inherent in the statement itself.
Otherwise there is bound to be a widespread discouragement advertising, by honest concerns afraid to venture into an undertaking which would expose them to failure through ineffective appeal, on the one hand, or lawbreaking, on the other.
A serious slump in advertising would inevitably slow down business at a time when stimulation is critically needed, and might inflict disastrous harm upon the publishing and advertising, interest. Especially would this be felt among the thousands of small-town newspapers now already in distress, so dependent for volume upon food and drug advertising, constituting over 50 percent of all advertising volume. It might bankrupt the weak and weaken the strong to a degree which might easily undermine the editorial and news independence of this major arm of the country's press.
The Department of Agriculture, in our opinion, is interested in protecting the public health. It is not interested in regulating advertising per se or the ethics of advertising, beyond the underlying purpose of the act; to protect public health.
It might do more harm than good, to carry out this major purpose in any way which discourages or obstructs the honest advertising of a worthy product.
The great bulk of advertising of food, drugs, or cosmetics, falls within that designation. It is helpful to consumers in bringing to their attention wholesome food values and their economical or appetizing use; safe home remedies and their beneficial application; cosmetics skillfully designed and compounded to improve appearance without deleterious effect.
These products and their advertising should not be handicapped by restrictions applicable only to a few violators of good faith or public health. Any legal effort to catch them should be so safeguarded by clear definitions of dishonesty and dangerous effect as to sift out the guilty in advance and exempt all others.
There is something else behind this question, fundamental to public welfare, and that is distribution.
The propelling force behind that is advertising. You cannot check the one without slowing down the other. Advertising is commercial news, as potent in its field as the daily press. There is no substituto for it. Just as news; to be influential, must be interesting and written to at once arouse interest and then satisfy it-80 advertising must
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give the public an incentive to read about products and then to use them.
No dry statement of fact could do that. No mere analysis of ingredients or their technical application would suffice. The most authoritative appraisal of them by Government itself, would leave the reader cold, uninterested, and unimpressed by the worthiest product if presented without emotional glamour, or the promise of personal benefit, which is the life of advertising.
People respond to advertising because it is like life itself, full of human incentives to get on in the world, be comfortable and have pleasure.
People want, and will always want, their information about merchandise in the cheerful, inspiring, and optimistic mood of advertising. There is no substitute for that. They want to feel that a given product will do something to make life brighter and better--more endurable and less drab--for themselves and their children. That's half the fun of owning and using, of striving and earning.
The influence of advertising is enormous in these respects. induces effort, raises the standards of living, sustains courage, keeps a brimming tide of merchandise flowing from producer to consumer.
And advertising would fail and shrivel if you dispelled its pleasing aspects, its emotional appeal, its cheerful promise of a better, brighter or easier way-all within the limits of worthy goods honestly presented.
No government can afford to tamper with that force. It runs through the human
heart. It moves the human will. It idealizes a world of things. Those who look upon this force as waste must think the same of life itself with all its vanity, hope and aspiration motivating progress.
The value of advertising to the consumer as well as to the producer might be seriously impaired if the Tugwell bill by implication or inference authorizes the Secretary to make Government classifications of quality and grade of foods, based on analysis and inspection, and then himself advertise those grades to the public.
Doing so might discourage producers from advertising their own brands and trade-marks, upon which millions of consumers have come to rely in their choice of food, and thousands of factories have come to depend for moving their output. The latter might lose much of their incentive to pack a fine product, if the Government grades prevailed. There would be much less consumption, without the inviting appeal of advertising. The food industries would suffer.
While many consumers might be guided by Government standards in their purchase of food, they would not be encouraged to purchase, take no pleasure in choosing their favorite brands. Government appeal would have a deadening effect upon them and upon trade. People do not want to be regimented in their purchases any more than they want to be regimented in any other respect. They want liberty of selection through the inviting and attractive appeal of the printed word.
Advertising would still persist, of course, because people want it; but it would be seriously impaired by Government competition.
Fixing minimum standards or grades would be a safeguard to the public, without interfering with the advertising of brands or slowing down of the demand for meritorious food. There could be no objection to that.
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Thr CHAIRMAN. The next speaker is Mr. William L. Daley, Washington representative of the National Editorial Association. STATEMENT OF WILLIAM L. DALEY, WASHINGTON REPRESENTATIVE OF THE NATIONAL EDITORIAL ASSOCIATION
Vr. Daley. My name is William L. Daley, and I am the Washington representative of the National Editorial Association.
I am appearing on behalf of the National Editorial Association to protest the provisions of bill S. 1944, commonly called the Tugwell bill. Our association represents directly and by affiliates 12,000 newspapers located mainly in the smaller cities and towns of each of the 48 States. The association has been in existence for 50 years and during that time has been the recognized spokesman for several hundred small city dailies and all of the so-called country weekly press.
At the outset let it be understood that we believe that in the main some of the objectives of the bill are laudible. The plan in its present form is sufficiently spacious to raise grave doubts in our minds as to its practical aspects. Much of the testimony adduced before their subcommittee by previous speakers show's quite clearly that present laws are adequate or could be made effective by a few amendments in order to clear out any undesirable undergrowth that has cropped out here and there in the industries covered by this bill.
It would be foolhardy for the Congress, in its wisdom, to acquiesce in this proposition, which would place axes in the hands of one or two officials to be used at will and without any substantial legal checks. Much has been said by previous speakers about the prop that this affords to bureaucracy. I do not believe that there is any industrial or professional group which has more intimate knowledge of the workings of bureaucrats than small-town publishers and printers. It is only natural that in view of experience that the smalltown press should resent any proposal that smacks of bureaucracy on any bill that will clothe Government employees with power to build up
what may amount to vicious tyranny. This bill would bestow on the bureaucrats the mechanism of power so that all their acts based upon their own ideas or whims would have a halo of legality under this proposed law. They are in a position to propose restraints on the ground of general interest, whereas, it might simply be a case of conflicting opinions between government experts and equally efficient technical men in the employ of private interests. Unlimited power entrusted to bureaucrats warps their judgment on the opinions they might have as normal citizens. It may be compared to what the notorious Max Weber, in a discussion upon municipal enterprise at the Vienna congress of the Verein fur Socialpolitik declared,
I should think myself a very poor bureaucrat indeed, if I did not believe myself to know better than these blockheads what is really good for them.
We want little of this bureaucracy in America. Professor Tugwell in one of his propaganda articles in behalf of this bill, appearing in a trade paper September 16, said, “By far the most flagrant abuses are found in