vegetable field and will discuss it further under section 11. Paragraph (a), (1), (2) are already primarily covered by present standardization laws. These present standardization laws prevent the use of misleading fresh fruit and vegetable containers. Standards of fill in the fresh fruit and vegetable field are already sufficiently established by standard package laws, Federal and State. Definitions of identity, standards of quality, and mandatory labeling, as provided in (d) and (e), should not be lodged with the Food and Drugs Administration, since they are already largely covered by the Bureau of Plant Industry in regard to variety identity, State statutes, and the Bureau of Agricultural Economics in regard to standards of quality, grades, labeling, and so forth.

Now, as to paragraphs (b) and (c)

Senator COPELAND. (b) and (c) of what section?

Mr. FRASER. (b) and (c) of page 9. It is inconceivable to us that you should have thought of fresh fruits and vegetables. I cannot see why you should have thought an apple would ever be offered as a peach or a pear, as a potato or a cabbage, or under any other name than what they are. Neither can they, nor will they be offered as an imitation. The same principle applies to all fresh fruits and vegetables. I cannot see how that could apply.

Paragraph (f) could not have been intended to apply to fresh fruits and vegetables in their natural state. It should be made clear, though, by taking them entirely out of section 7.

Fresh fruits and vegetables are already identified not by the Food and Drug Administration, but by long-term usage, such as apples, pears, peaches, prunes, potatoes, etc. Varieties have been, and are identified by the American Pomological Society, in the case of fruit, and the United States Bureau of Plant Industry. It should hardly be required that these names be stamped on packages merely because a definition of identity had not been established by regulation of Food and Drugs.

Second, it would be clearly impossible and prohibitive to analyze and label each package of apples, pears, peaches, etc., with the name of each ingredient thereof, "in order of predominance by weight." I cannot see how that can apply.

Section 6. paragraph (g) apparently is intended to apply to manufactured or processed foods. It should not be made applicable even by implication to fresh fruits and vegetables in their natural state. Section 10, "Tolerances." This deals with added poisons, and added deleterious substances, with no provision for constituent poisons and constituent deleterious substances. Section 10, as now written, goes beyond the present law. There is no provision in the present law for tolerances. The Secretary must prove the deleterious substance is detrimental to health.

The procedure for and effect of fixing these tolerances is provided in section 22, paragraph (a), (b), (d), (f), and (h), and are open to serious objection. It will be noted that under section 22 (b) and (d), the secretary is to be assisted by an advisory committee on public health of five members, and three members of the committee must approve any proposed regulation, which includes the fixing of tolerances. If three members agree with the secretary on a tolerance, the secretary promulgates it, and under paragraph (h).

the secretary's findings of fact in arriving at such a tolerance "shall be conclusive if in accordance with law." Our objection does not lie to the provisions for an advisory committee consisting of five members of "distinguished scientific attainment ", nor to the secretary, but it does lie to making the findings of fact of the secretary, and in effect the findings of fact of a majority of the committee conclusive, as provided in paragraph (h).

Senator COPELAND. Now, Mr. Fraser, when you come to section 10, you are entering a different field. These other matters are purely economic, but you are coming now to a point where an added poisonous or deleterious substance would impair the health.

Mr. FRASER. Right.

Senator COPELAND. So you will have to have some strong argument to make any change in this particular section.

Mr. FRASER. I cannot conceive how you could make findings of fact conclusive on a scientific question.

Senator COPELAND. Well, you are speaking about section 22.

Mr. FRASER. If you are going to prepare a tolerance on a finding of fact by the secretary and the committee, and it is penal

Senator COPELAND. No; I am speaking now of section 10, not 22section 10.

Mr. FRASER. Yes; all right. You are fixing a tolerance for the industry with which the industry must comply; and remember, as we said before, the problem of growing fruit is a bigger fight today than ever with the bugs; and there are certain things which are either going to spray or surrender.

Senator COPELAND. Well, the bill makes provision for that in line 10.

Mr. FRASER. Right.

Senator COPELAND. "Taking into account the extent to which the use of such substance is required in the production of such food."

Mr. FRASER. Right; but we feel that their findings should only be prima facie. They should be subject to review by a court of competent jurisdiction.

Senator COPELAND. Well, now this section 10, you wouldn't be so distressed about if section 22 omitted the last sentence of subsection (h)?

Mr. FRASER. That is paragraph (h)?

Senator COPELAND. Paragraph (h), page 37.

Mr. FRASER. If you put in there" in formulating regulations, findings shall be prima facie in court", which they are now. That is where we are all right, but I will have something more on section 23. I cannot see how you can propose to make a finding conclusive. I don't know whether I ought to take the time of the committee, but we have had eminent chemists who had to revise their opinions very quickly after they made a deduction on what they regarded as sound facts. The facts exist, but they suddenly had to move on their findings. We are moving today; we are not dead. We are not static. Senator COPELAND. Well, the whole argument, however, as regards section 23, from your standpoint, would disappear if section (h) were modified?

Mr. FRASER. Well, I want some changes in section 23. I will give you the proposal when I come to it.

Senator COPELAND. I think I ought to call your attention to a reference which has been to this finding of fact, where, in a recent case, Mr. Chief Justice Hughes said, and I quote, "An award not supported by evidence in the record is not in accordance with law." That is Cole v. The Benson, 285 United States 42, page 48.

Mr. FRASER. Can you carry it any further than that particular case? Most of those things are only applicable to the case under consideration. They are not of general application.

Senator COPELAND. I think we well understand your position as regards this section (h), and if it should be accepted by the committee we will then wish to know what you have to say about the court review.

Mr. FRASER. Section 23 does not give a right of review or appeal on the merits. I had one illustration in support of the danger of making a thing conclusive, which, if you will desire, I will pass over and leave in the record, since you are short of time, but I would like you to consider it.

The CHAIRMAN. Mr. Fraser, allow me to suggest that these legal questions have been gone into very thoroughly by others. I remember one argument by a very eminent lawyer on the question.

Mr. FRASER. I know they have been covered.

The CHAIRMAN. In order to save time, suppose you put what you have got to state in the record, to save time.

Mr. FRASER. I will just give you my suggestions as to changes. I will omit some of the material. I will file it so that you can add it in at the proper places.

There is just one point I want to develop before I leave it. Under the present law the Government is required to prove its case as to the quantity of adulteration or alleged poison found, which is or may be injurious to health. Under the proposed law no such proof is necessary.

Senator HEBERT. Where is that provision?

Mr. FRASER. I say under the present law the requirement is that they prove it. But in the case of a tolerance, in the fixing of a tolerance, it won't be necessary at all. For instance, if you fixed 0.014 grains of lead as the tolerance, all you have to do is to take a sample, make a finding that it is in excess of 0.014, the regulation which was proposed last April, and if it is in excess, you need not give the man a sample. The court may give him one, but there is no right, as there is in the present regulation. In the present law, you have a regulation requiring that a sample be given to him. In this proposed law, you may give him one, show that the amount of lead present is in excess of the tolerance, fine him, and the case is closed. Under the present law, he has a right to review all the facts before a jury, if he wishes, but under this act the findings are conclusive before he begins.

Senator HEBERT. It is such a simple matter to ascertain the fact. Why should there be any investigation of it?

Mr. FRASER. How?

Senator HEBERT. It is such a simple matter to ascertain the fact that there is or is not an excess.

Mr. FRASER. Not so simple.

Senator HEBERT. You mean if the one who produces the fruit continues that there is the excess?

Mr. FRASER. He should have access to the sample to see if that is so. Chemical analysts fail. They are men. Their work should be subject to review.

Senator HEBERT. There is no doubt he should have access to the sample.

Mr. FRASER. And they should be allowed to bring in competent witnesses to show whether there is or there is not an excess.

Senator HEBERT. Whether there is or is not an excess?

Mr. FRASER. To show whether there is or there is not an excess of tolerance. Surely, they wouldn't deny that.

Senator HEBERT. Isn't that done now?

Mr. FRAZER. Yes; that is allowed today, but it would not be under this.

Senator HEBERT. Under what provision?

Mr. FRASER. Under the whole provision of the bill, because the findings are conclusive and the Secretary of Agriculture issues a tolerance, and then if the case was found in excess of the tolerance, they are guilty.

Senator HEBERT. Have you in mind paragraph (h) now of section 22?

Mr. FRASER. I was taking the whole procedure of the bill in regard to the way you act in one of our own cases. That is just what you provided for in this bill. We do not regard that as sound law.

Senator HEBERT. I know. I do not read that paragraph (h) as others have read it. I thought I made myself quite clear yesterday on it. Paragraph (h) merely goes to the extent of formulating regulations.

Mr. FRASER. Right.

Senator HEBERT. And once the regulations are formulated who else is going to pass upon the facts? The Secretary must ascertain the facts before he can formulate regulations. Now, in the application of those regulations, that is something else. When he tries to apply the regulations which he formulates, if under this bill they be found to be unreasonable or arbitrary, or capricious or not in accordance with law, then the petitioner is entitled to the injunction. That is full relief.

Mr. FRASER. Why limit it? Why not leave it all open? Why not let the whole case be open to review? Then we would be feeling better. Why limit it with those words?

Senator HEBERT. Limit what?

Mr. FRASER. The functions of the district court.

Senator HEBERT. Mr. Frazer, you have got full remedy.

Mr. FRASER. We don't so regard it.

Senator HEBERT. I can't understand that you view this different from what I do, but that is my view of it, and yet I see no objection to eliminating section (h), as I have heard it discussed here, as far as that goes, but I am not convinced that it interferes with the right of anyone.

Mr. FRASER. We do not think under 23, you would be allowed to go to the merits of the case again.

Senator HEBERT. I do not know how you can say it any broader than that it is not in accordance with law. I do not know how much broader you can make it. If the regulation is not in accordance with law, that opens up the whole field, and it is still broader, it has other contingencies, if it is unreasonable. Unreasonable how? Unreasonable under the particular circumstances of the case that is being considered, of course. If it is arbitrary, if it is done under conditions where a man cannot comply with it in reason, then that is arbitrary and would not be permitted to be enforced.

Mr. FRASER. Let me give you my understanding of what that applies to. If the committee had held a hearing, if the Secretary has gone through the proper process of law in the preparatory work to his regulations, that is final, that is all that means.

Senator HEBERT. Mr. Frazer, you do not read that the way I do. Let me repeat once again, that is merely in the formulation of the regulations.

Mr. FRASER. Right.

Senator HEBERT. Not in the enforcement of them, because the enforcement of them is open to review by the courts. If that were not so, then you would negative the effect of the provision in section 23, because section 23, in line 15 provides: “If it is shown that the regulation is unreasonable."

And, another thing, if it is shown, how can it be shown? How can the court find that a regulation is unreasonable, that it is arbitrary, unless it have the facts before it?

Of course, the court will want all the facts before it will render a decision, and that must be so.

Mr. FRASER. I hope your interpretation stands, Senator. If we can be sure that that would stand, we would feel a lot better.

Senator HEBERT. I may be wrong about that, but I am trying to give effect to all of the verbiage that is there, in my interpretation. I repeat, it may be the part of wisdom to eliminate that paragraph (h), then there will be no question.

Senator OVERTON. You want the court vested with jurisdiction to inquire into the fact whether or not there has been a violation of the regulation, is that what you would wish?

Mr. FRASER. We feel that the Government should be required to prove its case, and prove it by competent evidence, that in the case of tolerance, the amount of alleged to be found is or may be injurious to health. We would like that. The defendant should then be allowed to have his day in court and prove, if he can, by competent evidence, that the Government's case is not well founded.

We furthermore feel that a right of appeal on the merits should be preserved because that is axiomatic; it is an axiomatic principle of legal procedure.

Senator COPELAND. I will agree with you to this extent, that section 23 gives the court jurisdiction to inquire only as to whether the regulation itself is unreasonable, arbitrary, capricious, and not in accordance with law, but not whether or not there has been a violation of the regulation.

Mr. FRASER. Well, I hope that might be.

(The following brief submitted by R. G. Phillips and Samuel Fraser :)