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flooded the market before an injunction can be secured. Very frequently such products are on the market for some time before the evidence of their adulterated character can be established. The adulteration may have been accomplished under skilled technical guidance and prolonged scientific work may be required for its detection. If the public is to be protected in such circumstances the bill should not prevent the removal of such products from the market, whatever the number of outstanding shipments.
And if language is drafted in the bill permitting multiple seizures only where the violation is gross, or to borrow a phrase from section 22 of the Dunn bill, where “it appears that * the public interest requires (such) proceeding
to safeguard the public health or to protect the purchasing public from gross deception *", then the question arises as to just where the line lies that marks the division between violations on which multiple seizures may be instituted and those on which seizures must be restricted in number. Certainly, the language of the Dunn bill furnishes no clear line of demarcation. How bad must a deception be to become gross? Obviously, under this provision there would be admittedly adulterated and misbranded products in interstate commerce that would not be subject to multiple seizure, and in every instance where the Department in its effort to protect the public against dangerous or deceptive products had exceeded the minimum number of seizures allowed the issues could be befogged by the contention that the violation was not gross, and thus the real issues as to adulteration and misbranding could easily be relegated to obscurity and real protection to the consumer denied. Frankly, I do not believe that in view of the complexity of the problem language can be drafted in the bill that would restrict the Department to the equitable policy that is now and has always been followed, without at the same time interposing insurmountable obstacles to seizure in cases where the public welfare dictates the removal of the goods from the market. As I have stated before in the course of this hearing, I am sympathetic with the proposal that legislation should be drafted so as to guarantee, if possible, against administrative abuse, but I merely wish to call your attention to the fact that in attempts to draft legislation from this point of view there is a real danger that the purposes of that legislation may be defeated.
I believe that the history of the enforcement of this measure in the Department of Agriculture has demonstrated that administrative abuse of authority has not characterized our operations. It may be significant that this plea for restrictions on multiple seizures comes from the patent medicine industry, the very industry whose abuses against public welfare have been least effectively controlled by the present law. The injunction proceedings authorized by section 19 will greatly minimize the need for multiple seizures, but this authority will not be effective in protecting consumers against goods which may have been shipped out in large volume prior to granting of an injunction.
Dr. Woodward made the recommendation that the minimum fines prescribed in section 17 be omitted and that merely maximum fines be provided. One of the troubles we have experienced in securing compliance with the act is the fact that the courts too frequently
have imposed fines ranging from 1 cent to 5 and 10 dollars. Incidentally a 1-cent fine was recently imposed on a worthless nostrum labeled for “ Rheumatism, diabetes, dropsy, heart failure, and other fatal ailments." With the possibility of escaping more serious penalties than these some firms, we know, have regarded their fines merely as license fees to continue in illegitimate business. Our purpose in suggesting minimum fines was to make this situation no Ionger possible. Since this bill authorizes the Secretary to abate cases involving minor violations, we regard it as distinctly important that provisions for minimum fines be retained.
Criticism has been advanced that section 17 (d), “No person acting in the capacity of publisher, advertising agency, or radio broadcast licensee shall be deemed in violation of paragraphs (b) or (c) of this section by reason of the dissemination of any false advertisement”, does not exempt advertising media such as those handling car cards, billboards, and the like. Obviously this comes from a narrow interpretation of the expression “ advertising agency." It has been our feeling that this expression was sufficiently broad to cover all concerns acting as media for the dissemination of advertising. In order to make this perfectly clear I suggest that the language be changed to read:
No person acting in the capacity of publisher, radio broadcast licensee, or other agency or medium for the dissemination of advertising shall be deemed in violation
It has also been suggested that this provision does not make clear where the liability for the false advertisement is to lie after the exemption of publishers, broadcasters, and agencies. This may be cleared up by adding at the end of the sentence, terminating on line 16, the words: but the liability shall rest upon the manufacturer, packer, distributor, or seller of the article so advertised, or any person in privity with him.
Section 17 (e) contains the provision beginning on page 27, line 24, that “No dealer shall be prosecuted
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
* " This creates a loophole for extensive traffic in adulterated or misbranded foods, drugs, and cosmetics. Any dealer purchasing from a manufacturer in the same State, against whom we could not proceed because of lack of Federal jurisdiction, could distribute throughout the country such products upon the mere compliance with this requirement to furnish us the name and address of the person through whom he bought them. The difficulty of showing bad faith on the part of the dealer would, in many instances, be insurmountable until extensive damage to the public had occurred. It would be quite easy for a manufacturer of illicit goods to set up within the same State a sales agency and effectively conceal the true relationship that existed between himself and the agency. If the commodities were only sporadically adulterated or misbranded, it would be practically impossible to prove bad faith on the part of the dealer, and the public would be afforded no protection. Under the present act the dealer is protected simply by the guaranty provision, set up as a second
subdivision of paragraph (e) of section 17. This provision, which states that no dealer shal be prosecuted if he establishes a guaranty from the person from whom he received the article, has been of untold value in fixing responsibility for infractions of the law where they belong, and has not led to unwarranted prosecutions of dealers. Administratively the Department, throughout the entire 27 years of the enforcement of the act, has directed its prosecutions at the manufacturer or other party responsible for the violation and prosecutions have been lodged against dealers only in case of collusion between them and manufacturers to foist adulterated or misbranded goods on the public.
However, if it is desired that additional protection be given dealers who receive goods in interstate commerce in good faith and distribute them, we suggest that this may be accomplished, without creating the loophole that now appears in the provision, by substituting for the first subdivision, beginning in line 25 on page 27 and ending in line 4 on page 28, the words:
for having received in interstate commerce an article and in good faith sold it at retail, unless he refuses to furnish 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 and all documents pertaining to the delivery of the article to him,
This would effectively protect dealers who receive goods from interstate sources and distribute them at retail, even if they had not taken the precaution to protect themselves with a guaranty as provided by the second subdivision of this paragraph. Dealers who ship in interstate commerce goods received from a manufacturer located in the same State as the dealer, could always protect themselves by the procurement of guaranty and thus make it possible for the Government to fix responsibility upon the person actually responsible for the adulteration or misbranding.
The criticism has been offered that the labeling of adulterated or misbranded goods with the phrase "For export", when they are to be shipped abroad, as provided by section 20, paragraph (d), lines 4 and 5 on page 33, may be interpreted as requiring this labeling to appear upon the individual containers. It has been our interpretation that this language would require the labeling only upon the outside of the shipping package. We therefore have no objection to the insertion of the word “ shipping", making the phrase read “is labeled on the outside of the shipping package with the words. For export.” ”
I have one suggestion to make on section 21, dealing with publicity. The proviso beginning in line 17, page 33, states:
That no such information shall be so disseminated regarding any brand of food, drug, or cosmetic before rendition of final judgment and proceedings against it except in cases involving imminent danger to health or gross deception of the consumer.
I believe there is justification for the deletion of the word “imminent" and that the Department should be permitted to give out information concerning specific brands where it is in position to show definitely that there is danger to health even though the peril not be sufficient to justify its description as “ imminent.”
A great deal of criticism has been advanced against section 22, providing for expert advisory committees to the Secretary and
authorizing the promulgation of regulations having the force and effect of law. Listening to these criticisms, one would infer that this is a unique departure in American legislation. On the contrary, there is ample precedent in both Federal and State statutes of recent date for the delegation of this quasi-legislative power. Some of the Federal statutes are the Clayton Act, the Federal Trade Commission Act, the Longshoremen's and Harbor Workers' Compensation Act, the Packers and Stockyards Act, the Grain Futures Act, the United States Grain Standards Act, and the Tariff Act. Furthermore, authority to make findings and regulations having the force and effect of law are conferred upon the Secretary by the McNary-Mapes amendment to the existing food and drugs act. In those instances in this bill where regulation-making power has been delegated, the limits within which such power may be exercised have been definitely delineated. The questions involved are so complicated and so subject to change with scientific developments that it would be wholly impracticable to treat them by specific legislative formulae. They deal with matters of such moment to the public health and to the protection of consumer welfare generally that the statute would be woefully deficient unless it made some such provision as this for the curtailment of abuses that cannot otherwise be reached. In the Union Bridge Co. v. The United States (204 U.S. 387) the Supreme Court said:
Indeed, it is not too much to say that the denial to Congress of the right under the Constitution to delegate power to determine some fact or the state of things upon which the enforcement of its enactment depends would be to stop the wheels of the Government in the conduct of the public business.
I can conceive of no situation of comparable importance to public welfare where this observation by the Supreme Court more aptly applies.
I have undertaken to analyze the provisions of S. 2800 which have been the subject of the strongest criticism during the course of this hearing. While this bill in some respects is not as desirable from the standpoint of consumer protection as the bill S. 1944, which was prepared in the Department, it is nevertheless a desirable measure. Certainly the modifications of S. 1944 to meet the strenuous opposition lodged against it which have resulted by a process of evolution in the provisions embodied in S. 2800, leave this bill still far superior from the standpoint of protecting not only the consumer but honest manufacturers than those measures which have been introduced at the request of Mr. Dunn and Dr. Beal. The latter bill, S. 2355, is one advocated by the patent-medicine industry. A perusal of its provisions leads to the very obvious conclusion that the measure extends to that industry an extraordinarily solicitous consideration. While it purports to extend jurisdiction to cosmetics, therapeutic devices, and advertising, its implementing provisions are so restricted that the public could be given very much less protection than it now has under the act of 1906. Certainly the control of patent medicines would be practically impossible. It is in this class of products that the public receives least protection under the present law, and a still further emasculation of the present inadequate provisions is unthinkable.
Turning to the Dunn bill, S. 2858, I am not unmindful that this would regulate, after a fashion, cosmetics, therapeutic devices, and false advertising, and that it contains an injunction provision to supplement seizure and criminal prosecution. But the administrative procedure under this bill is so circumscribed and amplified and the definitions of offenses are so befogged by a multiplication of adverbs and adjectives that the passage of this measure would very definitely weaken the public protection now afforded by the act of 1906.
S. 2800 does not have this fault. In no respects does it weaken the existing law. In comparison with the present act it
(1) Prohibits false advertising of food, drugs, and cosmetics.
(2) Extends the law to cover cosmetics, outlawing those dangerous to health and requiring all to be sold truthfully.
(3) Prohibits traffic in food dangerous to health, whether the dangerous ingredients be normal or added. For purposes of effective administration of this requirement it authorizes the establishment of tolerances for or the total prohibition of added poisons.
(4) Proscribes the use of poisonous containers.
(5) Compels the observance of reasonable standards of cleanliness in the preparation and handling of food.
(6) Forbids traffic in confectionery containing metallic trinkets which have been found to be a serious menace to the health of children.
(7) Forbids the use in food of uncertified and impure coal-tar colors.
(8) Forbids slack-filling and the use of deceptive containers.
(9) Provides for the promulgation of standards of identity and a standard of quality for food.
(10) Requires disclosure of ingredients, except coloring and flavoring, for unstandardized foods.
(11) Provides for appropriate information to the consumer of special dietary foods.
(12) Prohibits traffic in drugs which are dangerous to health under the conditions of use prescribed on the label.
(13) Requires that official drug products comply not only with the standard of strength, quality, and purity announced in the Pharmacopeias and National Formulary, but with the definition, formula, and description set forth therein.
(14) Requires further that such products be packaged and labeled as required by those standard authorities.
(15) Provides for regulation of deteriorating drugs.
(16) Declares nonofficial drugs in violation if the standard of strength varies from rather than falls below the standard claimed.
(17) Contributes to the safety of self-medication by preventing medicines from being sold as cures unless they are cures, and requires affirmative information in the sale of drugs which produce no more than palliative effects.
(18) Makes sheer ignorance no longer a defense for false claims of curative effect for drugs.
(19) Requires habit-forming drugs to bear warning labels.
(20) Requires label declaration of a list of potent drugs when used as ingredients in medicines.
(21) Requires plain and explicit directions for use and appropriate warnings against the consumption of drugs which in certain pathological conditions are contraindicated.