AMENDMENTS TO THE PURE FOOD AND DRUGS ACT.

COMMITTEE ON AGRICULTURE,

HOUSE OF REPRESENTATIVES,
Thursday, October 30, 1919.

The committee met at 10.15 o'clock a. m., Hon. Gilbert N. Haugen (chairman) presiding.

The CHAIRMAN. The committee will come to order. Hearings on H. R. 8954 will be continued. Under the arrangements made Tuesday consideration will be given to certain amendments that have been suggested.

From the hearings so far it would appear that the bill under consideration would be acceptable to all who have been heard if amended in certain particulars.

In looking over the memorandum submitted in behalf of the National Grocers' Association of the United States I find the following conclusion:

In conclusion it is respectfully submitted that H. R. 8954 be amended in the following particulars:

First. By striking out the word "may" on page 2, line 9, of the bill, and substituting therefor the word "shall."

Second. By inserting in the bill a provision allowing reasonable time for the disposal of goods on hand which do not comply with the provisions of paragraph “fourth,' section 8.

Third. By inserting on page 2, line 7, after the word "filled" the words "so far as is consistent with good commercial practice."

This is signed by the National Wholesale Grocers' Association of the United States, Arjay Davies, president; Alfred R. Beckmann, secretary; Fred R. Drake, chairman pure food and legislation committee; Breed, Abbott & Morgan, counsel. It is dated October 27, 1919.

I suggest that anyone present wishing to oppose them be heard first. After that, or, if there is no one who wishes to be heard on the three amendments, the committee will hear those who desire to discuss the two amendments suggested by Mr. Lannen, which he will have an opportunity to submit later.

From the hearings so far it would appear that the only form of opposition offered are the amendments referred to. We have representatives of the Department of Agriculture present. Mr. Williams or Dr. Alsberg, do you care to be heard upon these amendments? Have you any objection to the amendments suggested?

Mr. WILLIAMS. I would like to say a few words.

Mr. ANDERSON. I would like to ask Mr. Williams a question upon the amendment upon page 3 of the bill before we start. That is the amendment which relates to the form of the package. It strikes me that the trouble with that provision is that it does not lay down any fixed rule, but requests an opinion as to whether or not the package

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is so formed or shaped as to deceive the public. In the case of the slack-filled package that is capable of ocular demonstration or measurement. The question whether a package is so formed or shaped as to deceive the public is a question of opinion, and it strikes me that unless you can lay down some definite rule by which the question is to be determined that this proposition is pretty broad for a criminal

statute.

STATEMENT OF MR. WILLIAM M. WILLIAMS, SOLICITOR, DEPARTMENT OF AGRICULTURE.

Mr. WILLIAMS. In a way it is a criminal statute, Mr. Anderson, but it is more of a corrective measure. I do not believe you could lay down any rule pursuant to which you could definitely determine whether or not it is deceptive, because the word "deceive" has its own meaning. The question would be whether or not the package deceives. That fact must be gathered from all the circumstances. I do not believe you could write into the law a definite measure by which the deception could be determined, because, as I have just stated, the word "deceive" has its own meaning. The question has been considered as to whether or not to meet that objection you might write in intent, but I do not believe that it would be practicable from an enforcible standpoint.

In order for this amendment to be a full measure and to give to the consumer full protection he should be protected against negligence of the manufacturer and mistakes on the part of the manufacturer, as well as from intentional misconduct. I could not find any plan that I thought was practicable pursuant to which we could name a measure for determining the deceit, but, as I have said, we did consider the question of intent.

That may answer your question so far as concerns the practicability of laying down a measure for deceit, and if you desire to hear me further I will go on to the question of intent, because I believe that is one of the troubles.

The CHAIRMAN. Do you care to make any comment on the amendments suggested? For instance, striking out the word "may" and inserting in lieu thereof the word "shall," on page 2, line 9.

Mr. WILLIAMS. That is with reference to striking out the word "may" as it appears in that part of the amendment relating to tolerances?

The CHAIRMAN. Yes.

Mr. WILLIAMS. I do not see much objection to changing the word "may" to "shall." We have put in the word "may" instead of the word "shall" because the department thought there would be some products that would not require tolerances. If the word "shall" is put in there, it would contemplate that we would have to establish tolerances and that tolerances would be needed. Substituting the word "may" is a practical measure.

Mr. MCLAUGHLIN of Michigan. If the word "shall" was there, would it mean in the first instance, at once, for the department to establish a tolerance in each case as to each product and practically as to each container?

Mr. WILLIAMS. I think possibly if the word "shall" is used we might give it an interpretation of may in certain circumstances. You

gentlemen know that the word "shall" is sometimes the same as the word "may."

Mr. MCLAUGHLIN of Michigan. If the word was deliberately changed from "may" to "shall," so as to give it that meaning?

Mr. WILLIAMS. Yes, sir; if we considered the legislative hisorty of the act, which we would have to consider, we would probably be confined to an absolute direction to establish the tolerance, and there may be cases where no tolerance would be desired.

Mr. JACOWAY. It has been some time since I looked that up, but I want to ask you in the judicial ascertainment of the meaning of words have not the courts, as a rule, construed that the word "may" and the word "shall" are synonymous and both practically mean the same thing in all statutes?

Mr. WILLIAMS. My recollection of the word is that in arriving at its meaning the courts usually consider the entire statute. Sometimes they hold that it is simply directory; at other times they hold that it is mandatory, the whole question depending upon the context. Now, as has just been suggested, in construing this statute, if it were shown to the court that this amendment as originally presented carried the word "may," and that after discussion it was stricken out and the word "shall" substituted, I have no doubt that the court would find that the word "shall" if it is put in, would mean an absolutely mandatory order and it could not be given the meaning of the word "may.

Mr. JACOWAY. Is it the understanding that the word "shall carries with it a command to do a certain thing and the word "may" carries with it an option?

Mr. WILLIAMS. I believe that if the word "shall" were put in here now it would be construed as a command.

Mr. JACOWAY. I have a different idea of it. I looked it up, and as I recall, my investigation was to this effect, that the two words were interchangeable and synonymous, and practically, in the construction of statutes, meant the same thing. In that I may be in error.

Mr. WILLIAMS. That was probably with reference to a particular statute that the court had under consideration. As I have said, they sometimes give it one meaning and then another. Depending upon the context and the history of the act, they sometimes give it an absolute meaning of command.

Mr. JACOWAY. That is, the word "may."

Mr. WILLIAMS. The word "may" or the word "shall."

Mr. ANDERSON. I understand that the courts ordinarily construed them as directory.

Mr. WILLIAMS. That is true.

Mr. ANDERSON. And it is directory, and more or less mandatory, unless it is used with qualifying words, such as "in his discretion." Mr. WILLIAMS. That might be done. I think if you will go through the decisions you will find it hard to determine a clear rule for a definition of "may" and "shall." It is a question of statutory construction, and you know that courts sometimes take different views depending upon how they feel when it is presented to them.

Mr. PURNELL. If this amendment is adopted, there will be no room for discussion as to what the intention is?

Mr. WILLIAMS. If the amendment is adopted in the present circumstances, I believe we would he held under the mandatory order. Mr. PURNELL. Absolutely, because that is clearly the intention of the word, to make it as mandatory as it is possible to make it.

Mr. CANDLER. The courts have attempted to carry out the intention of the legislative body Whenever it is demonstrated that the intention of the legislative body is mandatory, they will enforce that, and hence the suggestion that if after discussion the legislative body would strike out the word "may" and insert "shall," the plain intention is that it was mandatory and the court would so enforce it.

Mr. JACOWAY. If you were going to construe what the intention of Congress was, would you come back to these hearings and take into consideration this discussion ?

Mr. WILLIAMS. Yes, sir.

Mr. CANDLER. The courts frequently refer to discussions on the floor of Congress.

Mr. WILLIAMS. And they are doing that more and more every day. They are going back to the legislative history of the acts as they appear in the journals of the State legislatures and as they appear in your records, in construing statutes.

Mr. JACOWAY. Formerly, when you construed a statute, you just construed that from the statute itself; that was the hidebound rule? Mr. WILLIAMS. That came about from the fact that you did not have good records in the old days, but with the growth of the stenographic art you get it all, a complete history, and that is considered. The CHAIRMAN. Can you approximate the time required to establish these tolerances?

Mr. WILLIAMS. Dr. Alsberg could inform you more definitely with reference to that.

Dr. ALSBERG. How long it would take to establish tolerances? The CHAIRMAN. Yes.

Dr. ALSBERG. It would take quite a long time to cover all things. We have been at work on the subject for about three years in connection with the Gould amendment. We have not published any tolerances. We have established for ourselves in the enforcement of the Gould amendment as a guide certain tolerances, but have not published them because we do not want to give the manufacturer a formula to shave closer to the line than he otherwise might dare to do. It is a matter of several years, but I do not think that would interfere with the enforcement of the act because the bulk of the violations with which we would have to deal would be so patently beyond the pale of any tolerance that I should not think our failure to announce a specific tolerance would interfere with the enforcement of the act in flagrant cases. It would probably be several years before we would be able to deal with the border line cases, but flagrant cases could be handled promptly; we have enough information at the present moment to handle them.

Mr. MCLAUGHLIN of Michigan. I have not a copy of the bill before me now, but I would like to ask, if the word "shall" is put in there in place of the word "may," might it not require you, before you started to enforce the law at all, to publish and let it be clearly known to the trade just what the tolerance in each trade is?

Mr. WILLIAMS. That is what I had in mind.

Dr. ALSBERG. If that is the case, it would take a long time.

Mr. MCLAUGHLIN of Michigan. Your regulations as to tolerance would become a part of the law, and the manufacturer would have a right to know just what the tolerance is at the same time he learns the other parts of the law.

Dr. ALSBERG. If that is the interpretation of the law, then, of course, it will take us some time to cover the whole field.

Mr. PURNELL. And in the absence of a published tolerance it would constitute an offense.

Dr. ALSBERG. If that is the way the law would work.

Mr. PURNELL. That is a serious thing about the whole proposition, that if you have not the machinery to publish these tolerances within a reasonable length of time, every concern for whom tolerances have not been published, touching his business might have created for him under this very act a defense.

Dr. ALSBERG. If that is the interpretation of the law, we will go ahead and get the tolerances in shape in less time. It would simply mean that we would have to readjust our operations. If that is the interpretation of the law, we would take a lot of our force off of other work.

The CHAIRMAN. How much time would be required?

Dr. ALSBERG. If we found it necessary to detail all the men needed to do it, while I can not say when we would get through every conceivable type of package, I think we could probably cover the important types of packages in a year or so.

The CHAIRMAN. Can you state it more definitely than that. Could you do it in a year?

Dr. ALSBERG. We could cover the main types, ordinary bottles, cartons, and cans, in about a year, taking advantage of the three years' work that we have already done. There would be special types of packages which we could not cover, and, of course, there will be new types of packages coming in all the time for which tolerances will have to be established. The main articles, however, we would cover in a year.

Mr. WILLIAMS. Suppose the word "shall" were written into the law and the Bureau of Chemistry attempted to establish tolerances, and suppose that the Bureau of Chemistry in the exercise of due diligence did not establish a tolerance for a particular article. If the manufacturer of that particular article were haled into court, he could make a strong defense on the theory that the law required a tolerance to be established for him, that the Bureau of Chemistry had never done so, that the law was still in an imperfect condition, not having been supplemented by a tolerance for his particular product, and therefore he should be acquitted.

The CHAIRMAN. In order then to properly and successfully enforce the law, it would be necessary to establish tolerances?

Mr. WILLIAMS. I am afraid so. It is a debatable question but I feel that in passing legislation we should be careful not to leave loopholes. The honest man is going to be all right; it is only for the dishonest.

Mr. PURNELL. Following that a little further, it necessarily follows that the dishonest man will be the very first man to take advantage of this situation and weakness of the law.

Mr. WILLIAMS. Precisely.

The CHAIRMAN. After all, if the amendment is made, we will allow ample time to dispose of stock on hand before the penalties go into effect. That would give time to establish tolerances. Can you state definitely what time would be required?