Mr. JACOWAY. The laboring oar would be in the hands of the prosecution. You would have to make out your case beyond a reasonable doubt?

Mr. WILLIAMS. They do this. They say that in seizure cases, where we have held it up in interstate commerce, where, as I have illustrated, we have stopped this bullet on its way to the consumerthey say that the burden of proof is more than the preponderance of the evidence, but they do not put it beyond a reasonable doubt. They strike a sort of intermediate ground between an ordinary civil action and the ordinary criminal prosecution.

Mr. JACOWAY. You have got to make out more than a prima facie case.

Mr. WILLIAMS. Yes.

Mr. JACOWAY. You have got to make out a case beyond a fair preponderance of the evidence?

Mr. WILLIAMS. Yes.

Mr. JACOWAY. Somewhere between that and beyond a reasonable doubt.

Mr. WILLIAMS. Yes, in the seizure cases. Under the other section it is beyond a reasonable doubt.

Mr. CANDLER. The purpose and intent of this statute is to protect the consumer from the damage he may receive, regardless of the intent by which the damage was brought about.

Mr. WILLIAMS. Precisely.

Mr. CANDLER. That is what we are trying to get at.

Mr. WILLIAMS. Precisely. Now, with reference to this intent, gentlemen, suppose you put in there this language that Mr. Lannen has suggested. It, to my mind, carries the intent back to the manufacturer. Suppose the manufacturer puts it up and he sells it to a wholesaler in New York City, and then the wholesaler ships it in interstate commerce. Where is the intent? If the intent was with the original manufacturer we could not catch that fellow, and it would allow these "bullets" to proceed; and I am afraid if "intent" were put in there we could not secure any effective administration of the law.

Mr. LANNEN. Would not that issue be in rem, Mr. Williams?
Mr. WILLIAMS. Yes, the proceeding would be in rem.

Mr. LANNEN. I mean under this law the issue would be in rem?
Mr. WILLIAMS. Yes. What difference does that make?
Mr. LANNEN. It makes all the difference in the world.

Mr. WILLIAMS, What?

Mr. LANNEN. You try the legality of the can, but you fine the manufacturer.

Mr. WILLIAMS. That is just what I have been trying to impres upon these gentlemen. In these seizure proceedings it is the article which is the offender. The Supreme Court itself has said that the articles are the offenders, they are the outlaws. That is just the point I wanted to bring out. The intent of the manufacturer has nothing to do with it. It is these packages which are the bullets that are turned loose and go to the consumer. It does not matter whether they were intentionally turned loose; it does not matter whether they were intentionally prepared as an exploding bust, or as the result of negligence or accident.

Mr. JACOWAY. You would have to stop them in the courts,

Mr. WILLIAMS, That is right.

Mr. MCLAUGHLIN of Michigan. The package itself might carry the

intent?

Mr. WILLIAMS. Well, yes: but it might not carry an expressed

intent.

The CHAIRMAN. In the enforcement of the act it would be difficult to prove the intent?

Mr. WILLIAMS. Yes.

The CHAIRMAN. And as a practical matter, it would make the law inoperative?

Mr. WILLIAMS. Ineffective, there is no doubt about it.

The CHAIRMAN. Is there anything more, Mr. Williams?

Mr. WILLIAMS, Nothing, unless the gentlemen desire to ask some questions.

The CHAIRMAN, Do you care to discuss any of these other amendments that Dr. Alsberg went over?

Mr. WILLIAMS. Do you mean as to the--

The CHAIRMAN, As to "shall" and "may," and others proposed on on Monday and Tuesday. There are three.

Mr. WILLIAMS, I believe I did discuss "shall" and "may,"
The CHAIRMAN. You were cut off.

Mr. WILLIAMS. I will leave this thought with you, gentlemen. I would prefer the word "may" in there, for this reason: It develops from what Dr. Alsberg says, that the tolerances for particular kinds of articles may have to be changed from time to time. If it is mandatory on the department to make a tolerance, and we have not made a tolerance that fits that particular article-it may be an article that has just come in on the market -and the attorney for the manufacturer may well go into court and say, "You can not bother me yet. The department has not declared a tolerance. The law as contemplated by Congress has not been carried out by the department, and until you declare your tolerance you can not get me." That might happen, no matter how big a fraud it might be.

The CHAIRMAN. One contention is that the Federal Trade Commission has the power to regulate what is proposed to correct in this bill. Mr. WILLIAMS. Yes; I believe that objection is made in opposition to the whole amendment, The Federal Trade Commission has jurisdiction of unfair competition methods. I believe that is the language of the statute. The Federal Trade Commission act looks at the whole situation from the standpoint of the trade, unfair competition within the trade. The law which you have under consideration contemplates the situation from the viewpoint of the consumer. What might be fair to the trade might not be fair to the consumer, as I illustrated to you a while ago, where I mentioned the case in which it was stated to me that all of a certain branch of the trade had agreed to slack fill-where this man told me it was a standard in the trade. The Federal Trade Commission act I do not believe would reach that situation. This is from the consumers' standpoint. The Federal Trade Commission handles the matter from the trade standpoint, and, furthermore, while the illustration that I have given you is apt, we might find an agreement between them that they would do so and so, and we know we have a lot of agreements these days among the trade as to different things. Then, too, this procedure under this food and drug amendment would allow us to stop these

bullets before they reached their marks. It gives a rehod whi be quick, but with this procedure if the manufacturer is not sata de with the action of the department he can get a jury trai

the procedure pursuant to the Federal Trade Commissier, @"i commission first flies a complaint, and they cite him, te & bearing to show cause: the commission then makes à finding. 1. the commission finds the alleged practice to be unfair competition ther ordet the manufacturer to desist. If he does not desist, they, th, commission may file the record in the circuit court of anness and annly for an injunction. If the court grants the injunction, if the mangfacturer obeys it, it is all right; but if he does not, ther thủy here gọt to catch him, and, furthermore, in order to make it eflbet te after the first order of the Trade Commission à made, they bere go: to find out that he is not obeying that order ir order to go to the circuit court of appeals.

Mr. LANNEN. You are making an argument there that the Federal Trade Commission can not settle these things, and you wAN" AR autocratic power to do it.

Mr. WILLIAMS, No, sir; not exactly that. I will say this, that so far as this particular kind of case in concerned this food and drugs procedure is more effective than the Federal Trade Commissior igw, Furthermore, the Federal Trade Commission law can be evaded by agreement between the parties in the trade as to what shall be a fair practice or an unfair practice, so far as trade competition goes, That is the point. This is quicker action, and a man can get a jugy 1AL if he wants it. This procedure is more effective, and is absolutely fair to the manufacturer. The honest manufacturer has no cause to complain.

The CHAIRMAN. Have you any knowledge of the Federal Trade Commission taking any action in this matter?

Mr. WILLIAMS. No, sir,

The CHAIRMAN. If they follow the practice of the trade, then they would have no jurisdiction?

Mr. WILLIAMS, I do not think so.

Mr. JACOWAY. When you speak of the trade, do you mean the retail trade or the manufacturing trade?

Mr. WILLIAMS. Of course, that would be determined under the Federal Trade Commission act. The wording of the act, I believe, is "unfair competition methods." I think there was some question as to what that meant. There was some question as to the definitene-8 of that, and as to whether it meant simply unfair trade competition. I do not know just how it was decided, or whether it was finally decided, but I remember there was some discussion as to what it meant. But under this proposed procedure, which I think is simple and fair, there would be a proper adjudication of the question, and we would get around any combination, and it may be that the Federal Trade Commission can not get around a combination with reference to trade practice.

Of course, if the combination went so far as to be a restraint of trade the Department of Justice might have jurisdiction under the antitrust laws, but I doubt the efficiency of the Federal Trade Commission act, if the trade should agree among themselves what is fair competition. However, that is merely an expression of my opinion and I do not know that it has been adjudicated. The proposed pre cedure would be the safe way.

The CHAIRMAN. What have you to say as to the suggestion that the operation of the act be suspended until a certain specified time? Mr. WILLIAMS. Mr. Chairman, we all want to be fair. We do not want to confiscate anybody's property. We do not want them to lose any investments that they may have made. It does seem unfortunate that in order to take care of the fellow who has not intended to do wrong we may have to let the other fellow get away.

The CHAIRMAN. What language would you suggest? Have you given it any thought?

Mr. WILLIAMS. I have not given that any thought, but I will prepare the proper language if you decide on just what you want.

The CHAIRMAN. The committee will be pleased to have your suggestions.

Mr. WILLIAMS. I think this would be sufficient:

This act shall not become effective until after the expiration of the date of its approval.

- months from

I think that would be sufficient. Mr. Horrigan has just made a suggestion, and I will give that language a little more thought.

Mr. LANNEN. Mr. Chairman and gentlemen of the committee, it seems to me that there has been a lot of inconsistent argument here this morning about the use of the word "shall" and about the operation of this law, that it could not take effect for a long time, until tolerances are established, etc., and things of that kind. If that is true, there are a whole lot of manufacturers in this country who have been fined without warrant of any law. In 1913 the food and drug act was amended so as to define an article of food to be misbranded

If in package form, the quantity of contents be not plainly and conspicuously marked on the outside of the package in terms of weight, measure, or numerical count: Provided, however, That reasonable variations shall be permitted, and tolerances and also exemptions as to small packages shall be established by rules and regulations made in accordance with the provisions of section 3 of this act.

In both of those cases the word "shall" is used.

Now, then, the plea was made to you to follow the language of the old law, by Mr. Williams, because the court might look at the change and think that Congress evidenced an intent to place a different interpretation on the law, and that is the reason why he objected to the word "may." That argument is inconsistent because the word "shall" is now in the old law, and if you are going to follow the old law with respect to the establishment of tolerances, and not mix the courts up, you should use the word "shall" because there is identically the same provision in the old law as in the proposed law you are dealing with.

Mr. WILLIAMS. I did not say the courts had construed the use of the word "shall" in reference to tolerances, but it has construed the other language. If you want a decision on that, I shall be glad to furnish it.

Mr. LANNEN. I am not speaking about any decision; I am speaking about the law itself.

Mr. WILLIAMS. You were speaking about the reasons that I gave for that.

Mr. LANNEN. You said that if the committee uses the word "may" now in establishing tolerances as to these packages, that the courts will think that Congress intended a different meaning from what it intended in using the word "shall" in the old law. That is the point

you made, if I understood yon. And so, to be consistent with that proposition, you should use the word "shall" here now

At one time in the argument of Mr. Williams he stated that he wanted definite language in order to prevent any misconception in the law, and in order to prevent many trials, issties of fact, in many different courts. Gentlemen, this old food law is a general food law, It involves general issues of facts. Here is one evidence in the dofinition of adulteration of food: “If it be mixed, colored, powdered. coated, or stained in a manner whereby damage or inferiority is concealed." _That is a provision that raises an issue of fact,

I have a case of that kind pending right now that I am going to defend over in Grand Rapids, Mich., where the very proposition is urged by the department that the product is colored so as to conceal damage or inferiority or something of that kind. I have forgotten the language. But it raises an issue of fact. Let me tell you how an issue of fact of that kind would come up. Suppose you are putting out, we will say, a strawberry extract, and it is very highly concen trated, and it has more flavor in it, more real flavor that the housewife wants than is in an ordinary extract, but it is colored. Now, the question arises, does that color, the depth of color, indicate to the housewife that the extract contains more strawberry flavor than it really contains? There is your issue of fact, and so you bring in your chemists and they say, "No; this product has exactly as much flavor, or more flavor, than the color indicates," and the Government comes in and says, "No; it does not," and the issue goes to the jury. There is your issue of fact.

This whole existing law is written in general language, with one or two exceptions, where the language is specific.

That very situation, gentlemen, has led to this situation that was referred to about the courts looking to the action of Congress and the State legislatures. The tendency of the times has been to pass food laws and criminal acts in such broad and general language that it is almost impossible to understand what they mean. No lawyer can tell in advance exactly what a certain law may mean, and the court is often forced to the necessity of going into the history of the net to find out what the act itself means.

Now, I say to you, as Congressmen, that that is a bad form of criminal law, and it is the kind of law that we are fighting against here. I am asking you to make this law so specific that a reasonable, any honest, man can tell what it means. So that his conscience will guide him, if nothing else. I know, sitting in my office as an attor ney, and all you gentlemen know, that when a man comes in to you with a case that has no merit in it, you know it; and you know whether he is trying to deceive or not, and you can tell him that; but when he submits two packages to you and he wants to know whether one is an infringement of the other, or whether one would make a person believe that he is getting a thing that is in the other one, I want to tell you gentlemen that it is a mighty hard proposition for an attorney to pass on. The best trade mark attorneys and patent attorneys of the country will hold that one package is an in fringement of another one, and another attorney just se good will hold that it is not, and do so in good faith; and that is the situation which would be created by this law unes you can frame it in some language that will involve the question of good faith on the pot of the manufacturer.