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Senator VANDENBERG. You are not particularly partisan to it, however, I apprehend?

Dr. WOODWARD. Not self medication, no; but let me say—I do not want to take up too much of your time, but the idea that self-medication is detrimental to the doctors' interests is a mistake. I am quite sure that a considerable number of persons who resort to self-medication get well, while the self-medication is in progress, and they may get well because of the self-medication, if you please, but the chances are that for every person who is benefited in that way, there is one person who is made worse, and possibly passes into a chronic condition, so I believe the debit and the credit account, so far as the doctors are concerned, would be not far from equal.

Now, passing to page 26, after all, to what seems to me to be the very backbone of the bill, the penalizing feature

Senator COPELAND. Doctor, just a moment. I gave you a job, the other day, relative to the list of diseases on page 16. Are you ready to deliver the goods, this morning!

Dr. WOODWARD. I have referred that to headquarters, where our council on pharmacy and chemistry happen to be in session at the present time, with the request that they inform me.

Senator COPELAND. Well, I would like to ask you one question, however. If you observe page 16, line 2, where it says "blood poison ", suppose we were to change that to "blood diseases" and put those two words in quotation marks, would that cover this advertising of cures of venereal disease, and these other fake ads that are put out along that line?

Dr. WOODWARD. It would be a popular term that might have different meanings in different parts of the country. I should say that the term “ blood poison ” as it is used there probably is intended to cover two diseases, one of which is not a blood poison, and that is gonorrhea and syphilis. I see no reason why, in this day and generation, we should not frankly name gonorrhea and syphilis among the diseases, and leave out the phrase "blood poison", which refers to septicaemia, for which self-medication is practically never reconmended.

Senator COPELAND. Well, then, you will pretty soon give us, from your Chicago office, the list of diseases?

Dr. WOODWARD. I hope to be able to do it within a few days, Senator.

Senator COPELAND. Have you gone over it yourself, this list?

Dr. WOODWARD. Yes; I have. Personally, if I were called on to express an opinion, the two changes I have named, I would leave it as you have prepared it, I would leave it as it is, and I say that despite the fact that I had nothing to do with the preparation of it. After all, in any criminal statute, the penalizing clauses are a vital part, and if we will turn to page 26, section 17, we have those penal clauses. Section 17 (a) provides that “the following acts are hereby prohibited—the introduction into interstate commerce of any food, drug, or cosmetic that is adulterated or misbranded.

Paragraph 3, beginning at line 7 on the same page, reads: The receipt in interstate commerce of any food, drug, or cosmetic that is adulterated or misbranded and the delivery or proffered delivery thereof in the original unbroken package for pay or otherwise.

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So far, so good. No one could object, it seems to me, to those provisions of the law. What I do criticize is to be found on page 27, paragraph (e), beginning at line 24:

No dealer shall be prosecuted under paragraph (b) of this section (1) because of commerce in any article he has purchased or received in good faith if he furnishes on request of an officer or employee duly designated by the Secretary the name and address of the person from whom he purchased or received such article.

That means that when the inspector finds a man who has either purchased or received an article in good faith, who says, “I bought it from so and so”, giving some name and address, the person in whose hands the inspector has found the adulterated or misbranded article is exonerated. When he goes to the person named by the man in whose possession the article is, he says: “I bought it from so and so." Now, of course, there are objections to that. One is that it is an endless chain that an inspector can hardly follow up. Another is that a man may name a person in a foreign country, across the border somewhere, and the third is that it does not make due allowance, as has been pointed out in the course of these hearings, for deterioration and condemnation in the hands of the holder. I do not think that is a workable provision.

Senator COPELAND. Well, now, Doctor, I want to ask you a question about this. I know it is controversial, but what are you going to do with the druggist in Dexter, where I was born, in Senator Vandenberg's State, who has purchased an article made in Chicago. He bought it in good faith and put it on his shelves, and so far as Matt Guinan is concerned, of Dexter, he receives that in good faith. What are you going to do? Are you going to prosecute him for having it on his shelves?

Dr. WOODWARD. He can protect himself by a guaranty in the first place, and in the second place he can submit to prosecution and conviction, if necessary, and then recover damages from the man who has unlawfully sold him an article, for the unlawful sale. I have known that to happen.

Senator COPELAND. Suppose the manufacturer disappeared ?

Dr. WOODWARD. Then I think he would have to bear the burden. We cannot pass an act that is not going to work hardship in some cases, but the fact that a man knows that he is bound to answer to the court for any violation of the law is going to make him more careful than he otherwise would be.

Senator COPELAND. Well, go ahead, Doctor. We stumbled over this provision more or less, and I was asking for the alternative language that we had. I don't happen to have it here.

Dr. WOODWARD. I would leave it out, and leave it to the judgment of the prosecuting officers. Now, incidentally, I might call attention to the provisions on page 23 of the bill, that provides, “that nothing in this act”, and these are the things that are tending to weaken the bill that some of us are trying to build up into an effective measure.

Senator COPELAND. Where is that? Dr. WOODWARD. Page 23, beginning at line 3— Nothing in this act shall be construed as requiring the Secretary to report for prosecution or for the institution of libel or injunction proceedings minor violations of this act whenever he believes that the purposes of the act can best be accomplished by a su ole tice or warning.

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I don't believe language of that kind is necessary in the statute. I think it is an invitation for a lax enforcement.

Senator COPELAND. Doctor, under the present law, the Secretary has no choice, and the manufacturer, by reason of the fault of an employee, or by some explainable act, puts out a product which is violative of this act. Now, if that particular act is not one which causes imminent danger to the health, why isn't it proper that the Secretary should call in that manufacturer and say: "How did this happen?"" And then, if it is found to be a minor violation, and not a willful violation, why should there not be some mercy shown?

Dr. WOODWARD. An efficient administrative officer will do that, anyhow.

Senator COPELAND. Yes.
Dr. WOODWARD. And he will do it within the law.
Senator COPELAND. Well, he cannot do it within the present law.

Dr. WOODWARD. He may do it within the present law. You cannot read any law of this character as one item of legislation. You have got to read any act of this kind in connection with all other legislation on the statute books; you have got to read it even in connection with the appropriation acts.

Now, I will admit that when Congress appropriates an amount of money that is sufficient to enable the Food and Drugs Administration to enforce an act of this kind literally, the Food and Drugs Administration has no option, but so long as Congress appropriates an amount adequate to allow only a reasonable partial enforcement of the law, the administrative officer has got to use his best judgment and enforce and prosecute where he thinks prosecution will be most effective.

I have faced the question, I would say, not hundreds of times, but probably thousands of times. When I was health commissioner of the District of Columbia, some interested milk men tried to have the House of Representatives District Committee investigate the Health Office. They produced my reports, and I had reported hundreds of cases of violations of the milk law, where the milk was below standard. I had reported hundreds of cases in which the smoke law had been violated, the emissions for a half a minute. I was accused of not doing my duty, because I had not prosecuted in those cases.

No notice of it was ever taken of it by the committee, and I was never called on to make a rebuttal.

Senator COPELAND. Doctor, I have had exactly the same experience, but nevertheless I think that the law should be definite, that if the violation is minor in its nature and has not been harmful to the public or individual health, that there ought to be some discretion on the part of the secretary to deal with such a case, to give suitable notice and warning, and not be under obligation to take it to the district attorney for action. Wouldn't you have felt more comfortable when you were health commissioner here, when you passed over those violations which you found to be trifling and not willful or intentional-wouldn't you have felt better if the law had given you a little latitude on that matter?

Dr. WOODWARD. I do not recollect that I ever felt uncomfortable because I did what I did, because it was simply justice. It put more

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responsibility on me. I had more responsibility and more discretion, because I did not have a statute. I did not need to say: “ This is a minor violation, and this is a major violation, and I will do this in this case and that in that case”; but what I did I had to do on my own responsibility and I did it. I think that weakens the

I law to put this provision here.

Senator VANDENBERG. Can't you make a perfectly good law obnoxious, Doctor, by just going a step too far sometimes?

Dr. WOODWARD. Very frankly, that was what persons were endeavoring to do, particularly with the smoke law. The smoke law provided that any emission of dense or black, thick or gray, smoke from a stack or chimney connected with a stationary engine was a violation of the law. If I had undertaken to have my inspectors prosecute for every puff of dense or black, thick or gray smoke, I would sooner have had the law repealed. We adopted our own administrative standards.

Senator COPELAND. Yes; but if the law says you must do that, you are setting yourself above the law when you set that aside. Now, I have had the same experience about the smoke.

Dr. WOODWARD. You are not setting yourself above the law if you are using only the weapons that Congress has given you to use. If Congress appropriates nothing, you can't charge a man with avoiding his duties by not enforcing a law, and if Congress appropriates 50 percent of the amount that is necessary for a literal enforcement of the law, a wise administrative officer has got to take that into consideration in his enforcement of the law, and put that 50 percent where he will get the best results.

Senator COPELAND. That is, you would send your milk inspector out looking at soda fountains and he wouldn't have time to attend to his other duties?

Dr. WOODWARD. You mean the smoke inspector?
Senator COPELAND. Yes.

Dr. WOODWARD. We never had a time when we could do that. I think it weakens the law, and you had better let the administrative officer bear the burden, and if he does not bear it properly, why, get a new administrative officer.

Senator COPELAND. Well, an administrative officer might possibly have a conscience. That doesn't happen often, however.

Dr. WOODWARD. Well, maybe I didn't.

Senator OVERTON. Doctor, if the administrative officers usually disregard minor violations, and if it is proper that they should do so, why not give them authority to disregard them?

Dr. WOODWARD. They not only do so, but it is presumed they do So.

I cannot give the exact citation, but the title of the case is Jacobson v. Massachusetts, a compulsory vaccination case, where you will find a dictum, it is true, by the Supreme Court, that an administrative officer is presumed to use some discretion. The appellant in the case pleaded that a person in ill health might be killed by the enforcement of the law, because vaccination would turn the scales against him; but the court intimated that an officer was presumed to use some discretion. I think that is a pretty fair rule.

Now, we come to another provision that seems to me to very definitely weaken the law.

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Senator COPELAND. You are still referring to page 26 ? Dr. WOODWARD. Yes; but this time to clause (4). The dissemination of any false advertisement by radio broadcast, United States mail or in interstate commerce, for the purpose of inducing, directly or indirectly, the purchase of foods, drugs, or cosmetics, is an offense.

No one can find any fault with that. It is a very reasonable law, and I call your attention to the fact that that offense relates not to interstate commerce in foods, drugs, or cosmetics, but relates to the transmission of the advertisements by radio-broadcast, United States mails, or in interstate commerce.

Now, if we turn to page 28, line 16, we find a provision of this sort:

No retail dealer shall be prosecuted under this section for the dissemination, other than by radio broadcast, of any advertisement offering for sale at his place of business any product which is not distributed or sold in interstate commerce.

In other words, you leave the retail dealer free to use the mails for advertising his adulterated and misbranded foods, drugs, and cosmetics, and you leave him free to use any medium of publication except the radio broadcast. I can see no reason why a retail dealer should be allowed to do that, or why any other dealer should be allowed to do that.

Senator COPELAND. You want to insert “ mails ” there?

Dr. WOODWARD. I should say mails", or in “interstate commerce. If you send them by express they are articles of commerce. These advertisements are paid for.

Now, we are still on page 26, referring to clause (6), beginning with line 18:

The introduction into interstate commerce of any food, drug, or cosmetic, if the manufacturer, processor, or packer does not hold a valid permit when so required by regulations under section 12.

It may be a matter of minor importance, but if the permit system is to be established and maintained, and I hope it will, with modifications that I shall suggest later, it might be advisable to put there " hold an unsuspended valid permit."

That is a clause that is very commonly used in the enforcement of Medical Practice Acts to preclude the practice of a man who holds a valid permit, but which has been suspended. Technically, it may not be valid, but that contention has been made.

On page 27, as a matter of practical administration and I might say, from experience in the enforcement of the law, I question the wisdom of inserting minimum penalties, at least, minimum penalties, except for second offenses or willful offenses.

Senator COPELAND. Let me see. Where is that?

Dr. WOODWARD. Page 27, on line 3. The beginning of it you will find at the bottom of page 26, on line 24:

Any person who violates or causes to be violated any of the provisions of paragraph (a) of this section shall be guilty of a misdemeanor and shall on conviction thereof be subject to imprisonment for not more than 1 year or a fine of not less than $100, nor more than $1,000, or both such imprisonment and fine; and for a second or subsequent offense imprisonment for not more than 2 years, or a fine of not less than $100, nor more than $3,000, or both such imprisonment and fine.

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