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Now, secondly, we respectfully object to the definition of " food adulteration", in section 3 of S. 2800, as to its form and substance, to the extent I will now state.
Senator COPELAND. Mr. Dunn, before you get to that, in your definition of food, your idea is that on page 2, subsection (a), the term food “includes all substances and preparations intended for use as an ingredient in the composition of food ” ?
Mr. Dunn. Yes, sir. That is entirely true. I am now discussing section 3 of S. 2800, which defines the adulteration of food. I have stated that we object to the form of this definition. It is a formal objection that I am considering. This definition divides food adulteration into three basic classes : The first class contains adulteration because of danger or injury to health. The second class contains adulteration because of unfitness for consumption. The third class contains adulteration because of danger or injury to health or deception of the purchaser. Therefore the definition should be divided accordingly. This has been done with respect of the definition in section 4 of the McCarran-Jenckes bill.
3. Our objection to the substance of the definition of food adulteration in Senate 2800 is this. The first objection is that the definition does not confine the injunction of a poisonous or deleterious composition or contamination to that which actually renders, instead of that which may render, a food injurious to health. A positive injunction fully protects the consuming public; it confines the injunction to food which is actually injurious to health; and it does not enter the field of purely academic guess, opinion, and speculation. To this objection it will be replied that this injunction in the present act is likewise in a “may render” form. That is true. But the fact remains that a “ does render” form of injunction is sufficient from the public standpoint and fairer to the manufacturer. And the further fact remains that every other injunction against adulteration and misbranding in the present act is in a positive and not a conjectural form. That is also true as to the revised act proposed by Senate 2800. This injunction in the McCarran-Jenckes bill is positive in form.
4. The second objection is to that part of the definition which is effective to empower the Secretary of Agriculture to declare by regulation what ingredients may not be used in food. The objection is that this bill is so drawn as to make such a regulation practically proof against successful court challenge and to reverse the present rule of burden upon the Government to prove a violation of the act prescribed by the regulation. This objection we have considered in our discussion of the provision making the Secretary's findings of fact upon which such a regulation is based, conclusive against the manufacturer. And, as we have seen, it is not met by the committee plan prescribed by section 22. In our view the definition here should be that contained in section 4 of the McCarran-Jenckes bill which is similar, in policy, to that in the present act. It is that a food is adulterated if it bears or contains any added poisonous or deleterious substance which renders such food injurious to health. This is a generic definition fully protecting the consuming public; the Secretary is left with comprehensive power to administratively construe, apply, and enforce
it; and the burden is left upon him to prove the violation in court. Therefore the definition is equally fair to the public and to the manufacturer. Whereas the definition in Senate 2800 is unfair to the manufacturer, because it is practically effective to place the Secretary's regulation of condemnation beyond successful court attack and to reverse the present rule of burden of proof.
5. The third objection is to the failure of section 3 of Senate 2800 to separately define the adulteration of an ingredient in relation to its effect upon the food to which it is added. Such a separate definition is contained in section 4 of the McCarran-Jenckes bill. The definition is that an ingredient is adulterated if its use in the composition of a food renders such food injurious to health or unfit for consumption. Because it fails to contain this limitation Senate 2800 empowers the Secretary broadly to regulate the composition of a substance or preparation used as an ingredient of food, independently of that use.
6. The fourth objection is to that part of the definition in section 3 (b) of Senate 2800 which unqualifiedly enjoins composition, substitution, and abstraction and also certain composition additions. The objection is that the injunction is absolute and not expressly qualified to prohibit such a substitution, abstraction, or addition only if and to the extent that it renders the resulting food injurious to health or deceptive. This qualification must be implied because the general definition in the act must be construed in the light of the public purposes of the act, to safeguard the public health and to protect the purchasing public from injurious deception. This being so there can be no sound objection to such qualification. And its omission is open to the danger of misconstruction. This part of the definition is so qualified in section 4 (d) of the McCarranJenckes bill. Moreover that section contains the additional provision that if and to the extent an adulteration defined in paragraph (d) is subject to a label correction, consistent with the purposes of this act, such correction may be made accordingly. This provision is directed to make it clear that if an adulteration in the category under consideration, e.g., a composition substitution involves only purchaser deception and not also health injury and it is subject to information label correction consistent with the stated purposes of the act, then that correction may be made. Of course, any abuse of this provision is subject to administrative check and court prevention. But it has the value, which justifies it, of clarifying one of the most obscure definitions in the act, which has given rise to endless debate throughout 25 years of the existence of the act.
7. These are our objections to section 3 of Senate 2800, defining food adulteration. We respectfully submit the substitute section 4 of the McCarran-Jenckes bill for consideration by the committee. And we direct attention to the fact that it contains a new and broad definition of food adulteration not in Senate 2800. It is that a food is adulterated if it is dangerous to public health. It is the first definition stated in section 4. And it is a basic definition of food adulteration in an act of this kind, for first statement.
8. We next come to the provisions in Senate 2800, defining food misbranding. They are contained in sections 2, 6, and 7, and so forth.
Senator OVERTON. Mr. Dunn, before you leave that part, the Copeland bill, in defining the term " food" declares it includes all substances used for drink, and section 3 of the bill declares that a food shall be deemed to be adulterated if it bears or contains any poisonous or deleterious substance which may render it dangerous to health. What power will that give to the Secretary of Agriculture to regulate the manufacture and sale of alcoholic beverages?
Mr. DUNN. It will give the same power that he now has under the existing act.
Senator OVERTON. It does not increase it?
Mr. Dunn. It increases it to this extent, that under the existing act the definition is properly that no drink, in this instance, can contain any added ingredient which may render the food injurious to health. Then, the Secretary is empowered under that provision, under his general power of regulation, to construe that provision in practice, and to enforce it, but when he goes into the court, the burden of proof is upon him to establish a violation of that section.
Now, under this new bill the situation is entirely changed, and there, in effect, the Secretary is given the power to determine by regulation what is an injurious ingredient in a drink, or in a food, and under that provision of conclusiveness all fact upon which the regulation is based the regulation is placed practically beyond successful challenge in the courts by the manufacturer or by the maker of that drink. That is the fundamental distinction.
Senator OVERTOX. Then, is it your view that it would add to his power to regulate the manufacture and sale of alcoholic beverages?
Mr. Dunn. He should have the power. He now has it under the present act. In other words, you cannot properly exclude drinks or beverages from a pure food law, and there has never been any suggestion of that. The power should be there. All that we can suggest is that the expression of that power should be formally stated in a bill of this kind, and our objection simply goes to the form of definition.
9. The basic definition of food misbranding is in section 6. It is this: A food is misbranded if its labeling is false or misleading in any particular. Whereas the corresponding definition in section 5 of the McCarran-Jenckes bill is this: A food is misbranded if its label is false in any material particular relative to the purposes of this act; or if its label, while not false, is actually and injuriously misleading to the purchasing public in any such particular. The purposes of the act are specifically defined in the title of this bill as follows—that is, in the McCarran-Jenckes bill
To safeguard the public health and to protect the purchasing public from injurious deception.
Then section 5 of the McCarran-Jenckes bill goes on to provide that no food shall be deemed to be misbranded because of any representation regarding its value or effect, if such representation is supported by substantial scientific opinion or by demonstrable scientific facts, as the case may be. This provision is omitted from Senate 2800. As to this provision it is clearly one of interpretation, which has great practical value. And it is clearly sound in principle and public policy. For no representation upon the label of a food regarding its value or effect ought to be defined as misbranding if it is in fact supported by substantial scientific opinion or by demonstrable scientific facts. Moreover, the proponents of Senate 2800 cannot well object to this provision, because that bill in section 6 contains an essentially parallel provision as to drugs. It is: Any representation concerning any effect of a drug shall be deemed false if that representation is not supported by substantial medical opinion or by demonstrable scientific facts. This provision as to drugs is properly negative in form, whereas that as to food is properly affirmative in form. The reason for the former provision is precisely the reason for the latter provision. It is to clarify the general definition of misbranding by writing into the act a sound, just, and practical standard of compliance with it. A standard fair alike to the public and the manufacturer. A standard effective to promote a better understanding of the act and a better state of its protective observance. This standard has the additional practical value of promoting scientific industrial research directed to secure better and new foods labeled and advertised upon the basis of that research. In short, it is a wholly constructive provision from every standpoint of the act, one that finds a constructive place in the act and is effective to make it a stronger instrument of public service.
We are simply asking for the same interpretative provision as to food, and also as to cosmetics, as has been written in as to drugs. As to the definitions of false advertising in these two bills, to which this provision is a supplement, they differ only to the extent that the McCarran-Jenckes definition is more exact and fairer to the manufacturer without being less fair to the consuming public. Both definitions prohibit label representations which are false in fact. Both definitions prohibit label representations which, while not false, are misleading to the purchaser. The limitations in the McCarranJenckes definition are these: The representation must be false or misleading in a particular relevant to the purposes of the act, which purposes alone the act is intended to effectuate; the representation must be actually and injuriously misleading to the purchaser, wherefore the definition is not extended into the field of purely academic guess, conjecture, or hypothesis. These limitations are all manifestly reasonable. And they do not operate to prevent the act from reaching and stopping any false or deceptive label representation involving injury to health or injurious deception of the consumer, which is precisely what the act undertakes to prevent. It follows that our objection to the basic definition of food misbranding in section 6 of Senate 2800 is its failure to include the limitations and interpretive provision contained in the similar definition in section 5 of the McCarran-Jenckes bill. And consequently we respectfully recommend the substitution of the latter definition.
10. Our next objection is to the provision in section 6 (c) of Senate 2800, authorizing the Secretary to exempt from the labeling requirements of this act foods put up at one establishment and labeled at another, while in transit from the former to the latter establishment. The objection is that this exemption is by discretionary regulation, whereas we believe it should be absolute. "An absolute exemption is fairer to the manufacturer and dealer and it cannot be prejudicial to the public because it is strictly limited to the inter
establishment transit. Such an exemption is contained in section 5 (c) of the McCarran-Jenckes bill.
Senator COPELAND. How would you change subsection (c)?
Mr. Dunn. Simply by making it absolute in form, rather than dependent upon the power of regulation.
Senator COPELAND. Have you the bill before you?
Mr. Dunn. I can best suggest it by reading the provision in the McCarran-Jenckes bill.
Senator COPELAND. That may be a pet bill. I suppose you would change it to say “shall promulgate regulations", instead of “having it authorized.'
Mr. Dunn. We object to the inclusion of the regulatory power in this field, because we are simply dealing here with a case like this, where, we will say, the Beechnut Packing Co. puts up some canned goods for a wholesale grocery, which are to be sold under the wholesale grocer's own label, and during the period of transit from the manufacturer's factory to the wholesaler's establishment, of course, there is no label on that can.
Now, unless there is some provision of this kind in the bill, to take care of that situation, the law is immediately violated, and that is a common practice. Now, our point is this, that, instead of making this situation dependent upon regulations which we do not know what they will be, with respect to that situation, that there should be an absolute right of exemption during that immediate period of transit from the factory to the wholesaler's establishment, because if there is any deviation of that product, or if there is any misuse of that provision, the law immediately applies, and a violation becomes effective, so that there is no resulting want of protection to the public at all, under an absolute exception provision.
Senator COPELAND. Mr. Dunn, it would be helpful if you would tell us how to change the language on page 8. I assume that you mean “ The Secretary shall promulgate regulations exempting”, and so forth.
Mr. Dunn. I believe that the provision should read as follows, that is to say, paragraph (c) on page 8 should read as follows:
A food put up at one establishment and labeled at another shall be exempt from the labeling requirements of this act, while in transit from the former to the latter establishment.
Senator COPELAND. Where is that, in your bill?
Mr. Dunn. That is on pages 6 and 7, at the bottom of page 6 and the top of page 7.
Senator MURPHY. Mr. Dunn, will you kindly revert to your other subject that you just left, reciting labels? I think you used the language“ representation injuriously misrepresenting” or “injuriously misrepresenting."
Mr. Dunn. A representation which is actually and injuriously misleading to the purchasing public.
Senator MURPHY. Will you kindly illustrate what you have in mind?
Mr. Dunn. Well, you are confronted with this situation with respect to either a label or an advertisement. You may have one