Mr. AMBRUSTER. All right, sir. My name is Howard W. Ambruster, 597 Highland Avenue, Westfield, N. J. Mr. CHAPMAN. Mr. Ambruster, will you state for the record- Mr. CHAPMAN. State it out so we can hear what your occupation is and your present business connections, and whom you represent here today. Mr. AMBRUSTER. I represent no one but myself and Mrs. Ambruster. Mr. CHAPMAN. Yes. Mr. AMBRUSTER. I am here as a fact witness, Mr. Chairman, to present to this committee facts bearing on this situation from an accumulation of over 10 years, of between fifteen and twenty thousand documents bearing on food and drug law enforcement. Mr. CHAPMAN. What is your business? Mr. AMBRUSTER. I am a chemical engineer, specializing in the arsenical and agricultural insecticide industry. I have been engaged in that for many years. Now, for many years I have conducted my own office as a chemical engineer specializing in the arsenical and agricultural insecticide industries, in which capacity I have been retained by various clents in this and foreign countres. Prior to this I was engaged in various branches of the chemical and textile industries, having been an executive of subsidiaries of two of the largest American corporations in their respective fieldsalso an executive of the first company manufacturing rayon in the United States. In 1927, as result of a survey of the primary sources of botanicals used in insect control, I engaged in the importation and sale of ergot and later in the production and sale of fluid extract of ergot, the medicinal made therefrom. My activities in this respect are set forth in detail in my testimony before the Senate Committee on Agriculture and Forestry in 1930 as printed in Public Document No. 23632, Hearings on the Administration of the Food and Drugs Act. For some time past my activities in connection with ergot have occupied very little of my time. During the last 30 years I have written numerous technical and other articles on arsenical and other industrial subjects, and I have taken out several patents relating to arsenical insecticide processes. In 1925 I first became actively interested in the enforcement of the Food and Drugs Act on account of what is known as the "spray residue" problem. Thereafter I made various demands that the Department of Agriculture enforce definite tolerances for arsenic and lead spray residues on foodstuffs so that the various groups involved, including the industries I was advising, would know what to expect in the enforcement of the Food and Drugs Act in this matter. I insisted that all uncertainty on this score should be removed despite my belief then, which I still hold, that proper enforcement of the Food and Drugs Act will ultimately end the use of arsenical and lead insecticides on foodstuffs which have reached maturity in development and growth. Since 1927, when I first intruded in the drug and pharmaceutical industries, I have made an intensive study of the entire subject of food and drug law enforcement and on the subject of false advertising in the lay and medical press. In this survey I have accumulated and assimilated between 15,000 and 20,000 official records and other documents bearing on these subjects. From these I have prepared a summary, with the collaboration of Mrs. Ambruster, published in March of this year, entitled "Why Not Enforce the Laws We Already Have" or "How and Why Industries' Outlaws Are Crucifying Harvey Wiley's Pure Food and Drug Law." This pamphlet concludes with a plea for investigation and how the present food and drug law is being enforced as the only logical course before considering any changes in this law. It also presents some of my objections to the Copeland bill and other legislation before the House of Representatives. I am appearing here solely as a fact witness to place before your committee such facts which I have collected as you may believe to be of assistance in considering this legislation. I do not represent any organization or group except Mrs. Ambruster and myself. With the committee's permission, I will present 1. A condensed picture of the present and past enforcement of the Wiley Food and Drugs Act. 2. Some aspects of the Copeland bill which are unconstitutional and objectionable on other grounds. 3. Several amendments to the present law which, I believe, will comply with all criticism made regarding it. I wish to discuss, first, such objective evidence as may bear on the meaning of the word "minor" in the bill before you, because it appears to me that that word "minor" is the controlling word in the entire bill. I have here one exhibit of evidence of what the present Food and Drugs Administration regards as a minor offense. It is a package of aspirin which I purchased in the District of Columbia 2 weeks ago bearing the statement, "Does not depress the heart ", which has been forbidden by the Federal Trade Commission in the Bayer Aspirin case and has also been libeled under the food and drugs law in the case of a small manufacturer in Tennessee last year, but this particular brand of aspirin is still permitted to be sold. I have submitted a carton of it to the Food and Drug Administration through Under Secretary Tugwell, on the 25th of last month. So far as I know, no action has been taken and it is still on sale. I also submitted a carton of it to the Federal Trade Commission on the same day. I submit, gentlemen, that that exhibit, if we are to regard that as a minor violation in the use of the word "minor ", in S. 5, brings up the question, What is the purpose of Congress in passing S. 5 as to the definition of misbranding of drugs which are dangerous or which may be dangerous and which have been held under the present law to be dangerous, without warning on them? I have here another exhibit of a slightly different character. Mr. KENNEY. Well, do you want us to take out that word "minor"? Mr. AMBRUSTER. Well, Congressman, the word "minor" controls everything in the bill. Mr. CHAPMAN. What amendment would you suggest, Mr. Ambruster? Mr. AMBRUSTER. I can see no possible amendment to S. 5 as it stands with the wholly discretionary administrative power in the early part of that clause and the minor-offense clause in the last part. I would like to show you this exhibit also as another illustration as to what is now regarded as minor. That is a carton of caraway seed which Mrs. Ambruster had in our own kitchen some year and a half before when a newspaper man came to our house to discuss this question. I mentioned the name of an importer and packer of caraway seed which had received back a large quantity of caraway seed infested with rodent excretia. Mr. CHAPMAN. How did that get into the seed? Mr. AMBRUSTER. That I do not know, but if you examine the document perhaps you can ascertain. It is a photostat. It contained rodent excretia, and when I mentioned the name of the importer, Mrs. Ambruster exclaimed, "That is the kind we have in the kitchen." I said, "Bring me what you have." She brought that carton. It had not been opened, and I took out some of it, and there, gentlemen, in the top of the test tube is the percentage of rodent excreta which was in that carton of caraway seed in our own kitchen cabinet, which had been handed back under the present law to be reconditioned in a manner satisfactory to the Department. That evidently is regarded as a minor matter. Mr. Chairman, the use of the word "minor" in section 710 (2), lines 17 to 22, definitely permits the Secretary to refrain from any court action for any offense defined in the statute, when they are minor violations, which the Secretary believes that the purposes of the act can be accomplished by suitable written notice or warning. "Minor" is defined as lesser in extent or of secondary consideration. It is purely a relative term which even Professor Einstein's theory of relativity could not define as it is used here, without any basis of comparison. I cannot, although I have tried ever since I first saw that phrase in the original Copeland bill, figure out any way in which it might be considered as defining the purposes of Congress in passing this bill. In its use there with the word "believes" it gives the Secretary authority to wipe out every standard and every penalty in the law, because all he is required to do is send a letter of warning for anything which he believes to be a minor violation. Now, I believe you two gentlemen are lawyers, and possibly_can correct me if I am wrong in my belief and conclusion that when Congress passes a law of this kind, with that clause in it, it puts in the hands of the administrative officer the complete power to decide on every penalty and every standard in the act as it applies to every violation which he may go after. He can wipe all of them out, if he believes it is a minor offense. Can you look into his mind and see what he believes? And, if you do, can you define what is the meaning of the word "minor in the act when it has no basis for procedure from a lesser consideration? I submit, gentlemen, that that one clause in the act condemns S. 5 because it removes everything else, and if you will examine all of the other bills that have been submitted, with the exception of that of Congressman Sirovich, I think you will find a similar clause. The whole purpose of this attempt to repeal Dr. Wiley's law is to get rid of the mandate in Dr. Wiley's law which compels criminal prosecution and which would make it absolutely impossible for a product like this to remain on the market, no matter whether I had called the attention of it to the department or not, it would make it absolutely impossible for us to have found in this carton of caraway seed purchased and remaining unopened until I examined it that day, that quantity of rodent excretia, in the caraway seed shipped by the same importer, which importer had just received another large consignment. Mr. KENNEY. That might happen anyway, that latter thing, either by negligence or mistake. You do not think that they deliberately put it in there? Mr. AMBRUSTER. No, Congressman; I do not think anyone would do that. I do know that botanical seeds frequently have it in them, and it is a violation of the law, and in this case here you have a court record which proves exactly what happens. The action involved a quantity of caraway seed which was found to contain rodent excreta. Mr. KENNEY. I understand that; but the other exhibit you referred to was a complaint of a clean case of misrepresentation. Mr. ARMBRUSTER. You mean the aspirin? Mr. KENNEY. Yes. Mr. ARMBRUSTER. Yes, sir; there is no question about it, and what the attitude of the Department is I have nothing to offer other than the fact that they have not seized it, though they have known it for a long time. It is in over 10,000 drug stores in the country today, because it is a Rexall product and its sale is continued. The Bayer Co. was stopped from using that phrase in their advertising, and a little manufacturer down in Tennessee had his aspirin libeled under the food and drugs law, but this company continues. Now, why is it? I want to show you another illustration of the laxity which also involves the problem which is before you of the control of false advertising. You have there [exhibiting documents] a libel action, and on this side is the complaint. There is a libel action covering a considerable quantity of Van Camp's sea food brand tuna fish, condemned as putrid. That shipment was libeled. The packer appeared in court, admitted that it was decomposed, put up a bond of $11,000 and got it back to be reconditioned. Three years later the clerk of the court in Portland, Oreg., wrote me that there was nothing in the record showing that Van Camp had complied with and released the bond. In other words, the Department turned it over to the company, and nothing was done about it, according to the records on file in the court at this time. That is one of a considerable number of libel actions against the same company without prosecution until 1934, when there was one prosecution. The rest of them were all libel actions, and the decom posed fish either restored, returned to them, or in some cases destroyed, and then they go out to Chicago and arrange for the seal of the American Medical Association committee on foods as having the only tuna fish so pure and so wholesome, and it is advertised that it is entitled to bear that seal. I might add, gentlemen, that it is that kind of thing that has caused the medical profession, or its members who have looked into this thing, to be so indignant with regard to the present laxity of the enforcement of the so-called "Wiley law." Mr. KENNEY. I understand you to be opposed to the return of any substance that has been seized under any conditions? Mr. AMBRUSTER. Not at all, Congressman. I, however, question the legality of returning decomposed fish to be reconditioned. Mr. CHAPMAN. Mr. Ambruster, let me ask you for information: Does that mean they take a can of food that is decomposed and attempt to recondition it, or does it mean that there is a large quantity of it and they return that and then they open it up and some cans will be in bad condition and some perfectly good, pure, wholesome food, and they are being permitted to retain the good food, but dispose of the other so that the public will never get it? Is that correct? Mr. AMBRUSTER. Congressman Mr. CHAPMAN. Does that not mean that maybe a large quantity of that part which is opened up will be good and a large part bad, which is thrown away or destroyed, and the part that is good will not be wasted but reprocessed, recanned, and put back on the market. Is that corect as to the practice in these cases? Mr. AMBRUSTER. I cannot exactly understand how, as a commercially feasible proposition, it would pay to open cans of fish, test them to see whether they were decomposed, as the original libel had stated, and then repack them. It would not be commercially feasible. Mr. CHAPMAN. Suppose there are thousands of cans and only a few of them contain decomposed fish or fruit. Would it not be commercially feasible for them to sort it and recan the wholesome part of it and throw away the bad? I understand that is the practice and prevents wholesale waste of good, pure food. Would it not be possible for you to do that if you were in the business? Mr. AMBRUSTER. The point that I am making, Congressman, is the feasibility of doing that in the case of shipments involving millions of cans of putrid fish. I can show you one Mr. CHAPMAN. Do you mean to say that they canned millions of cans of putrid fish? Mr. AMBRUSTER. No. I can show you one instance where there was a Government bulletin of court actions in which over 2,000,000 cans of fish libeled as putrid were restored to be salvaged in some way, reconditioned, or sorted and fixed up according to the language of the libels. I can also Mr. CHAPMAN. They were not authorized to recan and resell any of that putrid fish, were they? Mr. AMBRUSTER. I have made an effort in some of these cases to see the evidence of compliance with the bond, and those records are impounded, if you please, although they are court records. |