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misbranded or adulterated is subject to seizure when it passes across State lines, then every interstate shipment can be seized. The number of seizures is limited only by the number of shipments.
The practice of the Department to make or threaten seizures has had the following effect:
(a) The defendant is confronted with the necessity of defending a number of cases at distant and widely separated places in the country at about the same time, because the multiple seizures are nearly always simultaneous. The Government has seized, for instance, in New York, Pittsburgh, Philadelphia, Baltimore, Oakland, Calif., Portland, Maine, Miami, and elsewhere, simultaneously, with a threat implicit in the situation that if the controversy is not settled in a manner acceptable to the Department, other seizures will follow. (b) If no further seizures are made and the case eventually goes to the jury, the Department is in a position to select a jurisdiction which it deems favorable, or where its distance from the domicile of the defendant makes it difficult for him to gather and transport the necessary witnesses and data.
(c) The defendant, in the fear of additional seizures, and the paralysis of his business, is constrained to accept the Department's interpretation of his labeling relating to the usefulness or purity of his product.
I am told that sometimes the Department gives notice before seizure, sometimes not. I am also informed that there have been instances in which the first intimation the manufacturer has had that his goods had been seized was a communication from a jobber or warehouseman. If the manufacturer communicates with the Department and inquires whether there will be more seizures, he is told that the matter is in the hands of the Department of Justice, and that therefore the Department cannot negotiate with him. If he asks how he may get the matter out of the Department of Justice so that he may negotiate he is told that he may confess judgment and pay the costs. In such circumstances it is impossible to get a judicial determination of any dispute with the Department. Seizures should be limited to adulterated, poisonous, putrid, or filthy goods, and misbranding should be punished by indictment and prosecution.
Of course, misbranding of a flagrant nature, such as representing an article to be a cancer cure, even though manufactured by a group of physicians, would be imminently dangerous to public health, and new legislation should meet that contingency by including in section 17 a subdivision authorizing district courts, on application of the United States attorney, to impound any articles the labeling of which bears or contains any statement, design, or device concerning the therapeutic value of such articles which is false or misleading and dangerous to public health. Such treatment of misbranding would treat fairly with the manufacturer because he would have an opportunity to be heard before an impartial court. It would be fair to the Department and the public as it would accomplish the same result as seizures. Adulteration is simple of determination. It is difficult with misbranding, where opinions may differ. Because of that fact the administrative officer should not have the extraordinary power of seizure in misbranding cases.
Our specific recommendation is that a new paragraph 17 (h) reading somewhat as follows be added to the bill:
(h) In connection with any prosecution under this section, it shall be the duty of the United States attorney, at the instance of the Secretary, to apply to the district court (or to the courts of the District of Columbia) in any jurisdiction where an article of food, drug, or cosmetic may be found, the labeling of which bears or contains any statement, design, or device concerning the therapeutic value of such article, or of the ingredients contained therein, which is false or misleading, and upon a showing satisfactory to said court that said statement, design, or device concerning the therapeutic value of such article, or of the ingredients contained therein, is dangerous to public health, obtain an order directing the United States marshal to impound such article pending further order of the court.
In section 6 (b) which refers to labeling of merchandise in package form, we find certain requirements among which are (1) the name and place of business of the manufacturer, packer, seller, or distributor, and (2) an accurate statement of the quality of the contents in terms of weight, measure, or numerical count. Let's see how this would apply to one particular product, a cake of soap for example. Consumer preference has been definitely established during recent years in favor of a wrapped bar of soap. Under this provision that wrapper would have to contain an accurate statement of the weight or measure or numerical count. It seems obvious that the Department of Agriculture would not permit the simple statement that it contained one bar of soap--that would be too obvious and easy. Therefore, it must be inferred that the cake of soap must either be measured or weighed.
Soap authorities tell me that the shrinkage in the weight of cake soap, likewise in the size, ranges anywhere from 25 to 40 percent. In fact, the Bureau of Standards and the Quartermaster Department of the Army recognize this quality and ask for bids on soap with the weight guaranteed at the time not of delivery but of manufacture. Now, then, if a manufacturer must be put to the expense of trying to offset the reaction which would result against his product if it weighed appreciably less at the time of consumption than it did at the time of manufacture, obviously the consumer must pay more for that article. The shrinkage in soap is entirely due to the water content and no matter how great the shrinkage in weight the saponification remains the same, so wherein is the consumer benefited by any such requirement as that just stated?
And referring to the definition of terms in section 2, paragraph (b), we find a curious phrase, which has not yet made its appearance in any of the predecessors of this bill. I quote the paragraph in part:
The term "drug" for the purpose of this act and not to regulate the practice of medicine, includes all substances and preparations recognized in United States Pharmacopoeia, Homeopathic Pharmacopoeia of the United States, or National Formulary, or supplements thereto.
Inasmuch as this is supposed to be an act to prevent the manufacture, shipment, and sale of adulterated or misbranded food, drink, drugs, and cosmetics, and so forth, and nothing in the title says anything about regulating the practice of medicine, and inasmuch as the various States have their own laws regulating the practice of medicine, we wonder why this assurance to the medical profession was thrown into the last draft of this bill.
And in section 17 (e) we find another curious clause. After providing that a dealer may not be prosecuted for selling any article.
purchased in good faith, if upon the request of the Department he furnishes the name of the person from whom he purchased it, or if the dealer establishes a guaranty from his vendor, it goes on to provide that a retail dealer may not be prosecuted under this section for advertising, other than by radio broadcast, any product which is not distributed or sold in interstate commerce. I am told that there is a grave question whether such a provision would stand the test of constitutionality, as it would seem to be an unwarranted discrimination against radio broadcast advertising.
In regard to the advertising sections of the bill I have not prepared a statement, even though these manufacturers represented by this committee might with much better grace be accepted as the ones who have the final word to say as to whether or not an advertising section is satisfactory. Because after all, it is the advertiser who pays for the advertising. The purveyor of advertising, to our minds, bears the same relation to advertising that the railroad does to the manufacture of food or drug products both are common carriers. And I haven't heard any of the railroad companies presenting arguments in regard to the types of diseases for which certain drugs should be permitted to be sold. It would be equally absurd for the Public Printer to attempt to speak for the United States Senate.
In passing, I should like to say that any advertising provision which militated against trade puffing would be a serious mistake, and serve no real public good. May I be pardoned for a simple analogy of trade puffing? That question was discussed yesterday morning in this room. Every 2 or 4 or 6 years some constituency somewhere is told by billboard, newspaper ads, and otherwise "Å vote for Jones is a vote for democracy or prosperity-or something or some other desirable condition." In the light of cold analysis, some of these statements might not stand up, yet no real harm is done, and they are part of Americana.
If I might be permitted to make a suggestion to the committee, it would be that it consider the experience of the Department of Commerce in regard to advertising, before placing such a large section of it under the Department of Agriculture. As near as we are able to learn, the Department of Commerce has not been consulted on these sections, and yet it should be that Department rather than the Department of Agriculture which should be consulted, and which should regulate the activities of advertising; being, as it is, such a large part of our Nation's commerce, it would seem to me that it should come within the purview of the Department of Commerce.
A further suggestion would be that Mr. Dunn, who made such an able presentation here yesterday, might be permitted to present his arguments in regard to the advertising sections of this bill, or of the McCarran-Jenckes bill.
The CHAIRMAN. Mr. Dunn has been informed that he can have that opportunity.
Mr. DARR. Thank you, sir.
Many public-spirited persons see in this bill not only a threat against the affected industries but the possible permeation of the
philosophy behind the bill to the other Government departments, and the ultimate attempt to supervise and regulate all business to the end that private enterprise is hampered, the profit motive in business removed, Government standards and grades of all products be established and the present methods of distribution-in which advertising plays a part-be forced to undergo a complete change. This dangerous road leads to the destruction of brand, fiood will, trade-mark rights, prestige built up through years and millions of dollars of advertising, with the consequent upset of present capital structure and the general demoralization of all American industry under the present American system. The philosophy inherent in this bill would change all these things in the alleged interest of the consumer, but, in so doing, would tend to dissipate wealth to the degree that a tremendous unmployment problem might be createdthereby so hampering the capacity of the consumer to purchase that his purchases would no longer require government supervision.
It therefore seems that this legislation is a problem of vital interest not only to the affected industries but to all business and to all industry and all taxpayers, perhaps not today but certainly tomorrow or some other tomorrow in the not very distant future.
This committee believes that a bill based on the following sound and democratic principles should be the objective of these deliberations:
First, protect public health by keeping high standards of purity in foods, drugs, cosmetics, and all other items of human consumption.
Second, encourage research and laboratory experimentation by private industry.
Third, protect the interests of industry which has always taken the initiative in raising standards, through their competition to gain markets.
Fourth, preserve the American system of legal procedure.
Fifth, preserve the profit motive in business in order that more efficient methods of distribution may result in decreased cost to the
Sixth, leave the making and administering of law in the hands of the duly elected representatives of the people, instead of appointive officers.
Seventh, perhaps amending the prsent law is th sanr cours.
The CHAIRMAN. Mr. Carson P. Frailey.
STATEMENT OF CARSON P. FRAILEY
Mr. FRAILEY. My name is Carson P. Frailey. My address is 406-507 Albee Building, Washington, D.C. I am president of the National Drug Trade conference.
Dr. James H. Beal intended last night, had time permitted, to summarize his remarks by stating that the National Drug Trade Conference, which he represented, is opposed to S. 2800 in its present form, and endorsed S. 2858, the McCarran-Jenckes bill. The CHAIRMAN. Dr. Robinson, of Ohio.
STATEMENT OF DR. W. B. ROBINSON, MOUNT GILEAD, OHIO
Dr. ROBINSON. I am Dr. W. B. Robinson, Mount Gilead, Ohio. I will give you my credentials later.
First, I want to speak of Dr. Nathan Tucker, a graduate physician, graduated from Bellevue Medical College in 1866. He practiced medicine until his death. I am W. B. Robinson, a graduated and licensed practicing_physician. Associated with me is my son, Dr. G. B. Robinson, a B.A., a Phi Beta Kappa from Yale, also an M.D. from Yale, with an Alpha Omega Alpha, and Sigma Xi, honorary fraternities.
To you who are not physicians, I want to say that those fraternities are similar in a technical school to Phi Beta Kappa in a literary school.
He is also a diplomate of the National Board of Medical Examiners, and received from Yale the Campbell gold medal.
In what I shall say, I shall approach this problem in a little different way from what you have been hearing, because it is necessary for me to more fully identify myself. I do not represent a trade association, but simply myself and my associates.
For 43 years, we have been treating asthma and hay fever and our history has been like that of the proverbial mouse trap. The world has beaten a path to our door though we live in a town of but 1,854 people, which is 2 miles off the "Big 4" Railroad.
It has been said you can sell red water for $1 per bottle by proper advertising. We have never spent 1 cent in any kind of advertising and never yet have solicited a patient, but 150,000 have beaten a path to our door in the edge of the woods.
Among our patients are some of the outstanding physicians of the country. We have patients from all walks of life. Name what title you will in America and I believe I can show you a clinical history that will demonstrate that such men have been our patients. I think at present we have patients in every Department of Government as well as in both ends of the Capitol.
We are endeavoring to practice our profession ethically, honestly, and honorably. If in any respect our relations with our patients are not 100 percent honest and honorable, we would consider it a favor to have it pointed out to us.
The symptoms of asthma and hay fever are so characteristic that any intelligent layman can make the diagnosis.
In the interval between the attacks the diagnosis can be made only by the subjective symptoms, that is what the patient describes as his trouble.
No physician could at this time tell if I have asthma or hay fever, but if I say that 3 or 4 hours after I retire I may wake up, coughing,_wheezing, and gasping for breath, anyone knows that is asthma. If about August 15 my nose and eyes begin to water and I have sneezing spells and these symptoms continue until the first severe frost, even the boys on the street know that is hay fever.
All cases of asthma and hay fever have symptoms that are common, but all cases are not alike by a long way. Therefore we get from the patient a full and complete statement of their condition and prescribe accordingly. Hundreds of these patients come to our offices and thousands come by mail.