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FOOD, DRUGS, AND COSMETICS
purpose of it is to curb or restrict the license now enjoyed by manufacturers of such articles.
Section 9 is the one relating to advertising,
The CHAIRMAN. I dare say there is some dispute about this.
Mr. CAMPBELL. I do not know of any question that has raised such a storm, or of any other item in any other section of this bill about which there will be such dispute. I understand that there will be reflected in the statements made before this committee at these hearings the opposition that exists in certain groups. It reflects the possible and probable effect of the bill in limiting the exploitation of the public by the sale of harmful and worthless nostrums to those who would, perhaps, buy amulets just as readily. The degree of opposition that will becoine evident may perhaps exceed that which has manifested itself heretofore. Do not think for a moment that this section will not be objected to. 1 do not believe that any rostriction could be imposed upon the patent-medicine business without provoking the advancement of every kind of opposition. We do not have to go far to determine the reason. Even in a time of depression that has been a flourishing industry. Certainly, in normal times it was a very flourishing industry, and equally certainly it will continue to be, so long as its stock in trade is the exploitation of the public by appealing to their superstitions, fears, and emotions. Unquestionably, this proposal will be opposed by patent-medicine makers and people of that class. No provision that seeks to prohibit the patentmedicine manufacturer from deceiving and defrauding the public will be unopposed. No provision that seeks to compel the patentmedicine manufacturer to let the public know something of the truth about his product will be passed without the keenest opposition. When they take the public into their confidence, as they will to some oxtent through the elimination of false representations, the inherent worthlessness of many of their products will become known. This is the type of information that the publle will acquire.
May I say at the outset that the proposal to include, in this bill, provisions which would cover advertising of food and drug products did not contemplate and does not now contemplate censorship in the sense in which this term is ordinarily used. It contemplates setting up no bureaucrat in the Department, no single individual, not even the President of the United States, to determine with finality whether advertising is or is not true. What is does do is to enjoin the use of false advertising in the sale of food, drug, and cosmetic products. There is nothing vicious in that, or unnecessarily or unfairly restrictive. It makes no difference to what extent Congress may go to compel by law the use only of truthful statements on labels of such products, you will not have protected the public unless these provisions are extended to advertising. It was stated by Representative Sabath at the time the Shorley amendment was before Congress, that the value of that amendment would be slight to the public and that no amendment that contemplated the curtailment of unlimited fantastic deceptive declarations on labels would be of any practical value unless the same curtailment were extended to advertising. We have patent-medicine frauds with us now just as definitely us wo have ever had, the variation being only in degree. What has been done has been to transfer in large measure the field of activity for
FOOD, DRUGS, AND COSMETICS
making false claims. The label is no longer employed so effectively for that purpose. The labels of food products are frequently meaningless, utterly without any statement or information, of an informative or deceiving kind. The advertising is dictated by just what the manufacturers wish to have it say. There are no restrictions placed upon it. The proposal now is to extend to advertising some of the beneficient provisions, from the public standpoint of the present law. Whether the advertisement is or is not false will be determined in every instance by the court.
The claim has been repeatedly made that it will be utterly impossible for advertising activity to continue, that it will mean the loss of hundreds of employees; that products cannot be put on the market; that the harshness of the language now employed and the use of the words "ambiguity" and "inference" will make it impossible for the manufacturer to prepare an advertisement without putting himself in a position to be promptly sent to jail; that no manufacturer will advertise under such circumstances. It has been said that the combination of this particular section, the definition of misbranding and the definition of adulteration of drugs, is extreme, harsh, and so vague as to be utterly unreasonable; that together they are unsound both in principle and in policy.
Those are extravagant statements. The only thing that is required to meet the terms of this section is that the manufacturer, in having his advertisements prepared, take the same precautions to be consistent with the truth that is imposed upon him now in the preparation of his labels; nothing more. We know that there are advertising puff's, trade puffs. The Supreme Court recognizes that. That license cannot, however, be employed to the deception of the public. Trade puffs, to which the court has referred, do not deccive. They are those statements to which there has been built up a consumer resistence because they are recognized for what they are. The only representations that we are anxious to have eliminated from advertising, the only statements that we desire to have deleted, are those that result in the deception of the public. The protection of the public against deception is a proper part of this legislation. If it cannot be extended to advertising, the purpose of the bill, and certainly its practical effects, will fall to the ground.
Speaking about the effect of such legislation and what it would do in an industrial sense, I do not know anything better that I can do than to quote from an article propared and published by one of the leading authorities on advertising; one that is recognized more or less generally as a leader in that field.
Exactly 22 years ago, when this particular writer, whom I shall quote and who was, I believe, then editor of the publication in which his article appeared, was advocating legal measures to suppress false and misleading advertising, he took into account the very same thing that has been very recently expressed by Hotchkiss. Tho latter has said that:
There still remains a considerable proportion that is grossly exaggerated or on the border line of the unethical. It violates no statute and contains no untruths, but it nevertheless conveys false impressions. No outside authority that is now available seems capable of climinating this shady advertising. Unless a new statule can be formulated to cover it--which seems doubtful--improvement must come by voluntary restraint on the part of advertisers.
FOOD, DRUGS, AND COSMETICS
The author recognized 22 years ago that the same type of abuses in advertising about which Hotchkiss comments in the foregoing quotation prevailed then. The same condition of which he complained prevails today.
The CHAIRMAN. How long ago was that?
Mr. CAMPBELL. Twenty-two years ago. In the concluding portion of his article the author says:
I do not want to close this introductory paper without emphasizing the great importance of the goal. First, there are the ethical and moral considerations involved, and about those we are all agreed.
Second, there is the vast benefit to be conferred upon advertising itself. If we can eliminate the dishonest, the misleading, the indecent from advertising, we will double or triple or quadruple the confidence of the public in advertising. This means that more people will read and respond to advertising than at present. It means that advertisers will get better results from advertising than they are now getting. It means a reduced cost in distribution via the advertising road. It means that space in advertising mediums will command, and will be worth higher prices. It means that the rewards for the individual worker in the advertising field will be larger. In fact, it is a matter in which we can all make common cause advertisers, publishers, and advertising men generally, if not for ethical and moral reasons, then at least for motives of self-interest.
Advertisements are written to produce very definite effects. This is particularly emphasized in the food-and-drug line. I have heard it asserted and truly, I think, that advertisements of foods and drugs must move the products. They are written to create a very definite impression and effect in the mind of the reader. This talk about no manufacturer, under the terms of this bill, having the courage to prepare an advertisement through fear that some statement unwittingly made might inferentially deceive or mislead the reader is without merit.
Advertisements are studiously prepared to create an impression on the reader and a demand for a product. These advertisements should be prepared with a full sense of obligation on the part of the writer of them that he should be truthful in every statement, and should not ambiguously or inferentially make any statement of any character which will deceive or mislead.
I know of no great authority that I can cite to maintain that it is possible, that it is practicable, and, in fact, easy to prepare advertisements that will not mislead and deceive, than the Supreme Court of the United States. I refer to the case of the United States v. 95 Barrels, more or less, alleged apple cider vinegar, Douglas Packing Co., claimant, 265 U.S. 438, where it is said:
The statute is plain and direct. Its comprehensive terms condemn every statement, design, and device which may mislead or deceive. Deception may result from the use of statements not technically false or which may be literally true. The aim of the statute is to prevent that resulting from indirection and ambiguity, as well as from statements which are false. It is not difficult to choose statements, designs, and devices which will not deceive. Those which are ambiguous and liable to mislead should be read favorably to the accomplishment of the purpose of the act. The statute applies to food, and the ingredients and substances contained therein. It was enacted to enable purchasers to buy food for what it really is.
The CHAIRMAN. Did you give a citation of that?
Mr. CAMPBELL. Yes, sir; I gave it. Our purpose is to insist that in advertising there be an element of honesty, which has not extensively characterized a large proportion of this business in the past.
FOOD, DRUGS, AND COSMETICS
Senator MCNARY. If a newspaper should publish an advertisement from which an inference might flow that the contents do not have values therein stated, what would happen to the newspaper man?
Mr. CAMPBELL. Nothing, under the provisions of this bill. You will find in section 17 a list of penalties. If you will look on page 24, line 19, you will find the specific language exempting publications. Let me say as a prelude to the quotation of this language that the drafters of this measure fully realize that publishers cannot readily determine the truth about food and drug products. It is impracticable for them to maintain laboratories and a corps of experts to make analyses and decide with respect to a particular advertisement whether statements contained in it are true or false. There are some publications that attempt to do so in a measure, but to expect them to do it completely and exactly is out of the question. The responsibility in this matter ought to be put on the individual who has knowledge of the things he is advertising, and that is the manufacturer himself. That was contemplated in paragraph (d) of section 17, which reads:
No person acting in the capacity of publisher, advertising agency, or radio broadcast licensee shall be prosecuted under paragraphs (b) or (c) of this section for disseminating a false advertisement if, ou request of an officer or employee duly designated by the Secretary, he furnishes the name and post-office address of the person who contracted for or caused him to disseminate such advertisement.
Senator, the suggestion has been made that this exemption is a joker; that the department, if it wished to institute prosecution against a publisher, could do it very simply. In other words, if it were the purpose of the Department to institute a prosecution against a publisher, it could do so by resorting to the expedient of not having a representative request the name and address of the responsible party. The Assistant Secretary of Agriculture and others have disavowed that intent, and have stated that they are perfectly willing to see this language made more certain so that there can be no possibility of it operating in that way. I am suggesting, in line 20, on page 24, that the word "if" be eliminated and that the word "unless" substituted, and on line 21, the word "furnishes" be deleted, and that the words "refuses to furnish" be substituted so that that sentence will read:
No person acting in the capacity of publisher, advertising agency, or radio broadcast licensee shall be prosecuted under paragraphs (b) or (c) of this section for disseminating a false advertisement unless, on request of an officer or employee duly designated by the Secretary, he refuses to furnish the name and post-office address of the person who contracted for cr caused him to disseminate such advertisement.
Senator MCNARY. Doctor, I just want to get your view regarding the interpretation of section 9. If the newspaper publisher should advertise certain values involved in a certain patent medicine and one individual who bought a bottle of it felt they had created a misleading impression, would that individual have a separate action against the newspaper?
Mr. CAMPBELL. No.
Senator MCNARY. What does that mean, then? Is that an individual or a group?
FOOD, DRUGS, AND COSMETICS
Mr. CAMPBELL. Perhaps by careful investigation you could find an individual who would be unable to understand a statement written in the plainest and most specific torms. I cannot conceive that any misleading impression which would be reached by a person so incapable of interpreting the English language would constitute a basis upon which court action could be inaugurated. This section, like the present misbranding section of the food and drugs act, would be enforced by undertaking to determine what would be the inference or conclusion to be reached by a reasonably intelligent person or people from that language. I think that was the attitude the Supreme Court had in mind in rendoring the opinion to which I referred. Administrative officers must first reach a conclusion on the question. We would consider totally unreliable the testimony of an individual who definitely misinterpreted a specific and accurate statement.
Senator MCNARY. Would your department attempt to decide whether the ad appeared to be taisunderstood?
Mr. CAMPBELL. It would be required to do so in the first instance. Quite naturally it must reach a conclusion that the ad is false and misleading before it could take the steps indicated in this bill to refer the matter to the courts on a charge that it is false and misleading.
Senator MCNARY. Does the Department decide whether there is any misleading language or not?
Mr. CAMPBELL. The Department decides it, but the Department must assume in every case to sustain by adequate evidence that its findings in that respect are correct.
Senator MONARY. By evidence tending to prove that that had been misleading and false?
Mr. CAMPBELL. Yes, a number of witnesses. It would not be possible to try it on one isolated instance.
Senator MCNARY. The point is if it is inferred. This is a thing that is not easy to understand. Why do you say "by ambiguity or inferenco create a misleading impression"? What is the reason you go beyond untruth? You must first establish the untruth of the article.
Mr. CAMPBELL. Yes.
Sonator MCNARY. Why do you use the words "ambiguity" or "inference creating a misleading impression"?
Mr. CAMPBELL. That is indeed a portinent question, Senator, and I hope to explain it by referring to the advertisement I showed you a moment ago, with the word "tuberculosis" across the top of the page. I said when presenting it that I did not think there was perLaps a single sentence in it that could be considered positively untrue -speaking of the individual sentences.
However, I think that the inference to be drawn from the entire advertisement is so obvious that few would hesitate to consider it false, That is the sort of misleading advertisement covered by this language.
The CHAIRMAN. I think you can use language which would be better if you had it read "or is capable of creating a misleading impression."
Mr. CAMPBELL. If I may explain briefly, Senator, our purpose in using that language was to employ the most explicit terms possible in writing the definition. That is made possible by using the langunge of the Supreme Court in interpreting the existing terms of the