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reasons thereof. In the event such person shall fail to cease and desist from continuing the representations in such advertising complained of, the Secretary shall at once certify the facts as provided in section 4 of this act.
10c. The dissemination of any false advertisement as defined in the next preceding section by any means for the purpose of inducing directly or indirectly the sale of foods, drugs, or cosmetics in interstate commerce is prohibited, and any person who violates or causes to be violated any of the provisions of paragraph A of this section, and who shall fall or refuse to comply with the cease and desist order as provided for herein, shall be guilty of a misdemeanor and shall, on conviction thereof be subject to a fine of not less than $100 nor more than $1,000, or imprisonment for not more than 1 year, or both such fine and imprisonment, in the discretion of the court.
8727. SEC. 11. The Secretary of the Treasury shall deliver to the Secretary of Agriculture, upon his request from time to time, samples of foods (and), drugs, and cosmetics which are being imported into the United States or offered for import, giving notice thereof to the owner or consignee, who may appear before the Secretary of Agriculture, and have the right to introduce testimony, and if it appear from the examination of such samples that any article of food (or), drug or cosmetic offered to be imported into the United States is adulterated or misbranded within the meaning of this act, or is otherwise dangerous to the health of the people of the United States, or if of a kind forbidden entry into, or forbidden to be sold or restricted in sale in the country in which it is made or from which it is exported or is otherwise falsely labeled in any respect, the said article shall be refused admission, and the Secretary of the Treasury shall refuse delivery to the consignee and shall cause the destruction of any goods refused delivery which shall not be exported by the consignee within 3 months from the date of notice of such refusal under such regulations as the Secretary of the Treasury may prescribe: Provided, That the Secretary of the Treasury may deliver to the consignee such goods pending examination and decision in the matter on execution of a penal bond for the amount of the full invoice value of such goods, together with the duty thereon, and on refusal to return such goods for any cause to the custody of the Secretary of the Treasury, when demanded, for the purpose of excluding them from the country, or for any other purpose, said consignee shall forfeit the full amount of the bond: And provided further, That all charges for storage, cartage, and labor on goods which are refused admission or delivery shall be paid by the owner or consignee, and in default of such payment shall constitute a lien against any future importation made by such owner or consignee.
8727. SEC. 12. That the term “Territory” as used in this act shall include the insular possessions of the United States. The word “person” as used in this act shall be construed to import both the plural and the singular, as the case demands, and shall include corporations, companies, societies, and associations. When construing and enforcing the provisions of this act, the act, omission, or failure of any officer, agent, or other person acting for or employed by any corporation, company, society, or association, within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation, company, society, or association as well as that of the person.
Senator COPELAND. The statements of James W. Baldwin of the National Association of Broadcasters, and of Dr. D. Aitchison, president of the National Liberties Association, are presented for the record.
STATEMENT OF JAMES W. BALDWIN, ON BEHALF OF THE
NATIONAL ASSOCIATION OF BROADCASTERS
Mr. BALDWIN. My name is James W. Baldwin, of Washington, D.C. I appear on behalf of the National Association of Broadcasters, the only trade organization representing the radio broadcasting industry of the United States. The National Association of Broadcasters has at present 283 members, and its membership does approximately 83 percent of the commercial broadcasting business of the country. Full details regarding this association are on file with the National Recovery Administration, which certified on November 14, 1933, that this association "impose no inequitable restrictions on admissions to membership therein and is truly representative of the Radio Broadcasting Industry." For the record, I desire to file a list of the members of the National Association of Broadcasters, and also of its officers and directors, to form a part of this statement.
My appearance here is pursuant to a resolution unanimously adopted at the last annual meeting of the National Association of Broadcasters on October 11, 1933. This resolution reads as follows:
Resolved, That while the National Association of Broadcasters is eager to cooperate in protecting the public against exploitation through untrue or unscrupulous advertising, it believes that any legislation for this purpose must be reasonable and precise in definition, uniform in administration, and fair in application, and therefore this association must record itself as definitely opposed to the enactment, unless on the basis of many and far-reaching changes therein, of the bills to rewrite the Pure Food and Drug Law now pending in both Houses of the Federal Congress.
Radio broadcasting in America has grown in about 10 years to a point where today it is serving, day and night, something like 18 million radio-equipped homes. This growth and this service have been made possible solely by the revenue derived from advertising, which is the only source of income for our broadcasting stations. Like the other agencies of public information and entertainment made possible by advertising, including the newspapers and magazines, broadcasting has suffered heavily from loss of revenue as the result of general business conditions, and its concern now is not so much for possible profits as for its very life. The belief that this proposed legislation, if enacted in its present form, would result in a reduction of appropriations for wholly legitimate radio advertising by many millions of dollars, and thereby seriously endanger the stability of our entire industry, is our reason for appearing here before you.
This association has at all times stood squarely and unequivocally for the full protection of the public against exploitation by untrue or misleading advertising. In this connection, permit me to read into the record the code of ethics of this association, adopted March 25, 1929, and accepted and subscribed to by every member of the association. The code is as follows:
CODE OF ETHICS 1. Recognizing that the radio audience includes persons of all ages and all types of political, social, and religious relief, every broadcaster will endeavor to prevent the broadcasting of any matter which would commonly be regarded as offensive.
2. When the facilities of a broadcaster are used by others than the owner, the broadcaster shall ascertain the financial responsibility and character of such client, that no dishonest, fraudulent, or dangerous person, firm, or organization may gain access to the radio audience.
3. Matter which is barred from the mails as fraudulent, deceptive, or obscene shall not be broadcast.
4. Every broadcaster shall exercise great caution in accepting any advertising matter regarding products or services which may be injurious to health.
5. No broadcaster shall permit the broadcasting of advertising statements or claims which he knows or believes to be false, deceptive, or grossly exaggerated.
6. Every broadcaster shall strictly follow the provisions of the Radio Act of 1927 regarding the clear identification of sponsored or paid-for material.
7. Care shall be taken to prevent the broadcasting of statements derogatory to other stations, to individuals, or to competing products or services, except where the law specifically provides that the station has no right of censorship.
8. Where charges of violation of any article of the Code of Ethics of the National Association of Broadcasters are filed in writing with the managing director, the board of directors shall investigate such charges and notify the station of its findings.
In view of the large number of witnesses appearing before your committee, and in order to save time, we have prepared a statement covering certain of our specific objections to the proposed legislation. If it is the desire of your Committee, I will now submit this statement in writing, to be included in the full report of these hearings. If, on the other hand, you prefer to have me read it into the record, I shall, of course, be glad to do so.
It should be understood, in any event, that this statement does not purport to cover every feature of the proposed legislation to which objection might be raised by the broadcasters. Other witnesses, representing interests even more vitally concerned than we are with many of the specific features of the bill, are presenting in detail their reasons for opposing these features. Our statement is, rather, a broad indication of the reasons which compelled the broadcasters, by resolution unanimously adopted, to oppose the passage of the pending legislation in its present form.
The statement is as follows:
SPECIFIC OBJECTIONS OF THE RADIO BROADCASTING INDUSTRY TO S. 1944
1. The definition of "advertisement” on page 3, lines 15–17, is so broad as to include "all representations of fact or opinion disseminated in any manner or by any means.”
Such a definition of advertising appears absolutely unworkable. An expression of “fact or opinion disseminated in any manner" covers practically every spoken, written or printed word. With such a definition, the prohibitions contained in section 17, subsections (3) and (4) (p. 23, lines 15–21) would apply even to the simplest oral statement.
Such a definition of advertising, if established by congressional enactment, would go far beyond the scope of the pending legislation. It would, in effect, place formidable barriers around the right of free speech. Within the field specifically covered by these bills, it would render any statement dangerous, unless such statement were based on an intimate and complete knowledge of scientific data.
Under so extraordinary broad a definition of advertising, and with the prohibitory provisions of this bill, there is hardly an advertisement of any food product, drug, or cosmetic appearing in our newspapers magazines, or broadcast from our radio stations, which is not at least open to attack. If such a definition is permitted to stand, there is scarcely a legitimate advertiser in this entire field who can feel himself reasonably secure from legal action, particularly since such action may and doubtless will be instigated in large measure by his competitors.
2. Section 9 (from p. 12, line 20, through p. 14, line 18) declares, in substance, that any advertisement of a food, drug, or cosmetic shall be deemed to be false if in any particular it is untrue, or by ambiguity or inference creates a misleading impression.
The broadcasters have no desire to enter into the argument concerning selfmedication, with which this section is extensively concerned. They do, however, desire to point out three things:
(a) The phrase "if in any particular it is untrue” involves the setting up of an absolute standard of truth which, in the ordinary affairs of human life, is utterly unattainable. One may, in this connection, aptly quote Pilate's “What is Truth?” There is no piece of advertising copy in existence, no newspaper report, no public document, which could wholly meet such a requirement as this. Of course it will be urged that this phrase is not to be taken too literally, but a law that cannot be taken literally is a dangerous and bad law.
(b) The phrase "by ambiguity or inference creates a misleading impression" is just as dangerous as the phrase commented on in the preceding paragraph. How is the “impression” created by any given piece of advertising copy to be determined? What is meant by “misleading''? Even the most accurate and careful statement of facts, whether contained in an advertisement or in any other form of communication to the public, is subject to misinterpretation. A court has trouble enough in determining the correctness of a statement of facts; no one can even guess what would happen if it were called upon to determiné legally the “impressions'' created by “inference.” Such a provision is a direct blow at all legitimate advertising. It would, if applied literally, threaten virtually every piece of advertising copy in the food, drug, and cosmetic field. If not applied literally, it would create a complete chaos of uncertainty.
(c) The provision that an advertisement of a drug shall be deemed to be false “if it includes the name of any disease for which the drug is not a specific cure but is a palliative" involves what appears to the layman to be a perfectly hopeless confusion of opinion. The “cure” of today is the "palliative" of tomorrow. Most people believe, for example, that aspirin “cures" headaches because it frequently stops them, but the headache itself may be merely the symptom of an ailment which the drug cannot affect. The use of such words as "cure” and “palliative" in legislation is certain to create endless confusion, because the words themselves are of such variable meaning.
3. Section 15 (from p. 19, line 11, through p. 20, line 11) directs each United States attorney “to cause appropriate proceedings to be instituted in the proper courts of the United States.” This throws the initial determination of what constitutes unlawful advertising into a multiplicity of courts of presumably equal authority, resulting inevitably in hopeless confusion. An advertisement might and doubtless would be held truthful, and hence legal, in one court, and untruthful, and hence illegal, in another of like authority. It seems utterly impossible to avoid disastrous confusion unless the determination of what is and what is not permissible under the law is handled by a single judicial tribunal. This applies particularly to advertising which is interstate in character, and therefore is of special significance to the broadcaster.
4. Section 9 (p. 26, lines 11-25) gives to the district courts of the United States power to restrain by injunction the “repetitious dissemination by radio broadcasting—of false advertising." Here again, as in section 15, confusion is inevitable as a result of action by a multiplicity of courts. An advertisement may be found to be illegal in one court, legal in another, and summarily shut off by injunction in a third where the case has never actually been heard at all. Even the successful defense in court of an advertising statement will not afford full protection, because some other court may rule differently, thereby furnishing the basis for injunctions throughout the country. Unless there is set up a single tribunal with full authority for the entire Nation, subject only to the usual rights of appeal, this provision regarding injunctions is bound to give rise to vast confusion and manifold injustices.
Conclusion: It will be noted that the foregoing four specific criticisms of the bill fall into two groups. One-points 1 and 2-concerns what seems to be the impossibility of defining accurately enough for legal purposes what is meant by "truth” in advertising. It may be said that the broadcasters regard this defect in the proposed bill as fundamental, and that they can see no practicable way of extending the scope of such a bill beyond the deliberate misstatement of specific facts. Manifestly, an advertisement should not be permitted to state that the ingredients of a certain drug are so-and-so, when the manufacturer knows that in fact they are something else. When, however, legislation seeks to control the expression of opinion, or to set up a standard of absolute truth that is quite beyond the reach of the human mind, it is making the violation of its provisions inevitable and universal. A strict interpretation of the bill as it stands would destroy the entire advertising business of the United States; a liberal, i.e. lax, interpretation would lead to hopeless confusion.
The second group of criticisms (points 3 and 4) concerns the proposed administration of the bill. The primary object of any such legislation should be the protection of the public by making clear to advertisers what they may and may not legally do. The method of administration here set up appears completely to defeat this purpose.
Although reference has here been made to specific sections of the proposed bill, the objections raised to these sections apply likewise, though less directly, to other features of it, and therefore it is on the broad, general groups herein outlined that the broadcasting industry has recorded itself as protesting against the enactment of the legislation "unless on the basis of many and far-reaching changes therein."
LIST OF ACTIVE MEMBERS OF THE NATIONAL AssocIATION OF BROADCASTERS
(AS OF Nov. 16, 1933) Station WAAB, 500 watts, regional; Roy L. Harlow, assistant to president, Bay State Broadcasting Corporation, Boston, Mass.
Štation WAAF, 500 watts, regional; W. E. Hutchinson, general manager, Drovers Journal Publishing Co., Chicago, Ill.
Station WAAT, 300 watts, regional; Paul H. La Stayo, general manager, Bremer Broadcasting Corporation, Jersey City, N.J.
Station WAAW, 500 watts, clear; F. P. Manchester, secretary, Omaha Grain Exchange, Omaha, Nebr.
Station WABC, 50 kilowatts, clear; Atlantic Broadcasting Corporation, 485 Madison Avenue, New York, N.Y.
Station WABI, 100 watts, local; F. B. Simpson, manager, first Universalist Society of Bangor, Bangor, Maine.
Station WAĎC, 1 kilowatt, regional; Allen T. Simmons, president, Box 29, Akron, Ohio.
Station WAIU, 500 watts, clear; Eric S. Howlett, station manager, Associated Radiocasting Corporation, Columbus, Ohio.
Station WAPI, 5 kilowatts, clear; B. H. Hopson, president, WAPI Broadcasting Corporation, Birmingham, Ala.
Station WBBM, 25 kilowatts, clear; H. Leslie Atlass, WBBM Broadcasting Corporation, 410 North Michigan Avenue, Chicago, Ill.
Station WBBZ, 100 watts, local; C. L. Carrell, manager, Ponca City, Okla.
Station WBCM, 500 watts, regional; Stanley F. Northcott, general manager; James E. Davidson, owner; Hotel Wenonah, Bay City, Mich.
Station WBEN, 1 kilowatt, regional; Edgar H. Twamley, director; WBEN, Inc., Buffalo, N.Y.
Station WBEO, 100 watts, local; Leo G. Brett, manager, Lake Superior Broadcasting Co., Marquette, Mich.'
Station WBNX, 250 watts, regional; W. C. Alcorn, vice president, Standard Canill Co., New York, N.Y.
Station WBOW, 110 watts, local; W. K. Behrman, vice president, Banks of Wabash, Inc., Terre Haute, Ind.
Station WBRE, 100 watts, local; Louis G. Baltimore, president, 16 North Main Street, Wilkes-Barre, Pa.
Station WBT, 25 kilowatts, clear; W. A. Schudt, Jr., general manager, WBT, Inc., Charlotte, N.C.
Station WBTM, 100 watts, local; S. C. Ondarcho, general manager, Piedmont Broadcasting Corporation, Danville, Va.
Station WCAE, 1 kilowatt, regional; WCAE, Inc., P.O. Box 1133, Pittsburgh, Pa.
Station WCAH, 500 watts, regional; Fred A. Palmer, general manager, Commercial Radio Service Co., 33 West Spring Street, Columbus, Ohio.
Station ACAO, 250 watts, regional; J. Thomas Lyons, executive vice president, Monumental Radio Co., Baltimore, Md.
Station WCAU, 50 kilowatts, clear; Dr. Leon Levy, president, WCAU Broadcasting Co., Philadelphia, Pa.
Station WCAX, 100 watts, local; H. Nelson Jackson, president, Burlington Daily News, Inc., Burlington, Vt.
Station WCBA, 250 watts, regional; B. Bryan Musselman, owner, Allentown, Pa.
Station WCBM, 100 watts, 250 watts local sunset, local; John Elmer, president, Baltimore Broadcasting Corporation, Baltimore, Md.
Station WCCO, 50 kilowatts, clear; E. H. Gammons, vice president, Northwestern Broadcasting Incorporated, Minneapolis, Minn.
Station WCKY, 5 kilowatts, regional; L. B. Wilson, president, L. B. Wilson, Inc., WCKY Building, Covington, Ky.
Station WCLO, 100 watts, local; H. H. Bliss, president, WCLO Radio Corporation, Janesville, Wis.
Station WCŃW, 100 watts, local; L. W. Berne, manager, Arthur Faske, owner, 1525 Pitkin Avenue, Brooklyn, N.Y.
Station WCRW, 100 watts, local; Clinton R. White, owner, 2756 Pine Grove Avenue, Chicago, Ill.
Station WCSH, 1 kilowatt, 242 kilowatts local sunset, regional; Henry P. Rines, president, Congress Square Hotel Co., Portland, Maine.
Station WDAF, 1 kilowatt, regional; H. Dean Fitzer, director, Kansas City Star Co., Kansas City, Mo.