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Senator Murphy. Will you kindly proceed with the list of those
think should be Dr. BEAL. Well, now, this is a subject-I concur entirely in what Dr. Copeland has said—in which the opinion of qualified medical men is much more valuable than mine. I would not, if I were running a pharmacy, accept for sale any substance which was advertised or held out to the public as being suitable for the treatment of albumenuria, appendicitis, arteriosclerosis; blood poisoning, however, is a very objectionable form.
Senator COPELAND. Septicemia ?
Dr. BEAL. Bone disease is another. I might accept-I think I would accept for sale a package of Haliver oil, with Viosterol, as suitable for certain kinds of defective bone growth in children.
Senator COPELAND. Rickets?
Senator MURPHY. You would set up some exceptions in the case of bone diseases ?
Dr. BEAL. Yes, some exceptions. The term is general, and before, when we came down to the tuberculosis, I question whether any harm would be done by advertising that your preparation of cod liver oil or Haliver oil with Viosterol was calculated to serve in connection with the treatment of tuberculosis.
Senator COPELAND. But, Doctor, think how cruel it would be to advertise, as some of these rascals do, that that preparation is so useful in tuberculosis that it would avoid going to a sanitarium or doing these other things.
Dr. BEAL. Well, that should not be permitted, I do not want to stand in the way of anything of that kind. I would suggest that qualified medical men be considered. I would also call attention to the fact that practically all of these diseases are constantly becoming less all the time, especially tuberculosis. The mortality tables are continually improving in regard to tuberculosis.
Senator COPELAND. That is not because of any medicines that they take. That is because of the better living that they have, and that they have been told about.
Dr. BEAL. Shall I continue the general discussion?
Dr. BEAL. I think I will discontinue, with your permission, for the present.
Senator COPELAND. Now, Mr. Chairman, I want to pass out a responsibility to the American Medical Association.
The CHAIRMAN. Make your statement.
Senator COPELAND. They haven't done much in formulating this bill, although they have been good enough not to kick about it, but they certainly have got a job to correct that list; that is fair, isn't it?
The CHAIRMAN. I hope they will do so; yes, sir.
Dr. Beal. On page 18, line 9, this relates to permitting factories, or the granting of permits or licenses and regulations, are to be promulgated, governing the conditions of manufacture, of processing, or packing, necessary to protect the publíc health, and requiring manufacturers, and so forth. Now, that is no doubt all right as it applies to manufacturers, processors, and packers of goods, but just put in the word drugs” here and see what it means. You are going to provide, by means of this Committee on Public Health, composed as I referred to a while ago, of men who have no technical knowledge of the subject. They are to lay down the conditions under which such firms as Parke-Davis, Lilley & Co., Sharp & Dome, and a dozen others that I might name, that have a world-wide celebrity, to direct the equipment which they shall use, the processes that they shall use, to see that they observe standards. Why, it is these institutions that I
. speak of that created these standards, which made the discoveries on which the standards are based, which were more responsible than any other factor we have in America, for the discovery of these improved remedies, and if they are to be subjected to inspection or to regulation, it should certainly be by those who are qualified.
Senator COPELAND. Well, Doctor, your specific criticism here is that this should not apply to drugs or to cosmetics, that it should apply to foods?
Dr. BEAL. I would not say that it should not apply. For example, there are rascals who put up fraudulent drugs. My objection here is to an apparent attempt to get around the fourth article in the Bill of Rights of the Constitution, which prohibits unlawful searches and seizures.
Senator COPELAND. No; I will tell you what it was put in here for. It was put in here particularly to cover crab meat and lobster.
Dr. BEAL. Yes, sir; that should be covered. They should have daily inspection. I agree with that, but we should separate those classes of occupations in which the constant inspection is necessary from the ones, the manufactories, where inspection would be ridiculous rather than necessary.
Senator COPELAND. Well, see the language. It is not badly chosen: Whenever the Secretary finds that the distribution in interstate commerce of any class of food, drugs, or cosmetics may, by reason of conditions surrounding the manufacture, processing, or packing thereof, be injurious to health, and such injurious nature cannot be adequately determined after such articles have entered interstate commerce, and in such case only, he is authorized to promulgate regulations
That was the language I asked to be put in-
Now, as you say, in connection with canning crab meat and lobster, there ought to be daily inspection. Then, you have also said that there are some rascals who ought to be watched.
Dr. BEAL. Yes, sir.
Dr. BEAL. But even in the case of the rascal, they should have the benefit of the Bill of Rights. I would say permit any of these establishments to be searched from a warrant showing probable cause, describing the place to be searched, and the things to be seized.
Senator COPELAND. Doctor, you know the Bill of Rights went into the ash cans when they established boards of health.
Dr. BEAL. Well, I think that is a mistake I mean, that opinion.
Senator COPELAND. Well, as a matter of fact, if we talked about the Bill of Rights, and when the public health is involved, you could not do anything until you had taken certain legal steps preceding it. This is all founded in lines 10 and 11,“ necessary to protect the public health.” That is the foundation of it. If it is necessary to go into a factory in order to find out what is going on there, in order to protect the public health, I am not much worried about the Bill of Rights.
Dr. BEAL. He could do it in perfect conformity with the Bill of Rights. All he has got to do is to swear out a warrant and present it at the door of the establishment and walk right in. There is nothing to prevent him.
In factory inspection there is the liability of the giving away of valuable trade secrets. Here is a concern which has spent $100,000 or $200,000 in manufacturing an improved ether still or Catlett machine. The value of it is so great that they are afraid to trust it even to the Patent Office for fear a rival manufacturer—I am a rival manufacturer, and I say to an inspector, “Now, here, Bill, you are getting $2,500 a year as an inspector under the Food and Drug Act. You slip into Parke Davis over here and you find out the particular point of that machine which makes it a success. Here, I will show you what we have done; but there is something we cannot get a hold of. You bring that back to me and I will pay you $10,000 cash.”
Senator COPELAND. What is that matter where it must be kept secret, Mr. Crawford ?
Mr. CRAWFORD. That-
The inspector says, "Yes; I would like to do it, but here is a section in the Food and Drugs Act which would make me pay a fine of $5,000 and send me to the penitentiary.”
But I say to him, “You and I are the only two people in the secret, and you need not confess unless you want to go to the penitentiary. I won't confess, because, if I confess, then I am guilty of the crime of conspiracy. I would be enjoined from using the process. It is a lead-pipe cinch. All you have got to do is get that information and turn it over to me, and here is the money.
That is comparatively minor to some other things.
Senator COPELAND. But you know, Doctor, we struck out of this bill—it had in it here that the process must be studied, and so forth, but somewhere here it says that this knowledge that is gained by reason of the inspection—where is it?
Dr. BEAL. Page 29, beginning line 5. I will admit that the use of this knowledge is prohibited, but I do not see how
Senator COPELAND. It says here: Any person who uses to his own advantage or reveals, other than to the Secretary or his officers or employees, or to the courts when relevant in the trial of any case under this act, any information acquired under authority of sections 12 or 13 concerning any method or process which is entitled to protection in equity as a trade secret, shall be guilty of a felony, and shall on conviction thereof be subject to imprisonment for not more than 2 years or a fine of not more than $5,000, or both such imprisonment and fine.
A man is not likely to go and take $10,000 when he is liable to go to jail for it.
Dr. BEAL. The point I am making is this, that there is no possibility of presenting evidence to convict him unless he chooses to confess.
Then I would like to pass to page 23 in the matter of seizures. This permits the seizure of articles which are adulterated or misbranded. That is perfectly appropriate or proper also. It reads:
Any article of food, drug, or cosmetic in interstate commerce that is adulterated or misbranded or that has been manufactured, processed, or packed in a factory or establishment, the operator of which did not, at the time of manufacture, processing, or packing, hold a valid permit, if so required by regulations under section 12, shall be liable
And so forth.
Then you turn over to page 25, line 12 to 15. In the lines preceding these that I have cited, you find that if a preparation has been adulterated or misbranded, it can be redelivered to the claimant upon his giving sufficient bond that it will not be sold contrary to law. But in these lines 12 to 15 on page 25 it is provided that if it were shipped in interstate commerce without a permit, it must be destroyed, so that the penalty for shipping in interstate commerce a preparation which is 100 percent pure, and which is truthfully labeled, the penalty is greater if he ships it without the Secretary's license than if it had been adulterated and misbranded. If it was adulterated and misbranded, no matter how badly, it would be returned to him for reconditioning by giving a sufficient bond. Here if it is perfectly pure, properly labeled, it must, notwithstanding that fact, be destroyed. Why not redeliver that to him upon condi·tion that it is not to be shipped in interstate commerce unless he has the necessary license?
Senator COPELAND. I wish the Department would take note of this objection, because, as far as penalties are concerned, I gave it no study myself.
Dr. BEAL. Just one more point and I am through. There are many things I might say. I do not want to deal with things which are trivial.
On page 24, lines 16 to 18, it reads:
The court may, by order at any time before trial, allow any party to a condemnation proceeding to obtain a representative sample of the article seized.
We believe that when an article is seized as misbranded or adulterated that the claimant or owner of that article should be entitled to a representative sample as a matter of right. That is highly important.
Senator COPELAND. Where is that–because I agree with you. .
Senator COPELAND. Excuse me. I will tell you why it was left this way. You see, it is the court that does this, and these lawyers that have talked with us are very jealous as to the rights of the courts. They felt that it would be impertinent to place upon the
. court the necessity of furnishing that sample.
I take the same view that you do about it. But that was the argument that was made to me. It seems to me, as you say, just as a matter of right, that man should have that sample.
You can go
Dr. BEAL. I think he should have it as a matter of right.
Senator COPELAND. What do the lawyers say about that? Is that an insult to the courts, that they have to do that?
Senator OVERTON. No.
The CHAIRMAN. I think he should have the right to obtain samples.
Senator OVERTON. You can reach the courts on the application of any party.
Dr. BEAL. The present law does give the right. There is a change in this proposed law, or the present regulations.
Senator COPELAND. I do not object to that. I just submitted to it because I do not pretend to know anything about legal procedure or law procedure.
Dr. BEAL. Here is a case in point
Senator COPELAND. I think you have won your case. I don't think you need to filibuster on your bill. Excuse me.
ahead with the argument, if you like to, but I think you have made a good
I Dr. BEAL. If there are any questions to be asked, I do not want to detain you. I know the hour is late, but the subject is very entertaining
Senator COPELAND. I want to express my thanks to Dr. Beal, not alone for what he has done here but the advice and help he has given to me as a member of the committee in the past in connection with this bill.
The CHAIRMAN. I am very glad to have heard him, myself.
Dr. Beal. Under Senate bill 1944 all you need to do is aim in the general direction and fetch something every time, but in this case, Senate bill 2800, you have to pick your target. [Laughter.]
Senator COPELAND. You have certainly called your shots.
The CHAIRMAN. Dr. Joseph W. E. Harrisson, of Philadelphia, would like to occupy 5 minutes.
Senator COPELAND. I would like to ask, Mr. Chairman, if I may, how many more want to be heard.
The CHAIRMAN. How many here want to be heard on this proposition ? Mr. WILEY. Mr. Chairman, may I file my statement?
? The CHAIRMAN. Yes; you can file the statement.
Mr. WILEY. I would like to ask time for Mr. Robert Allen, of New York, who has come down to represent the American Pure Food Dealers, of which I am also a member.
Senator COPELAND. Mr. Chairman, I want to express my apology to you and those in interest here. I am going to Cleveland tonight and if I am to catch my train, I must go very shortly.
The CHAIRMAN. I understand there are several here who have come from a distance. I would much prefer to have you here. If you cannot be here and do not want to proceed with the hearing, of course, we will not do so in your absence.
Senator COPELAND. You will do as you wish in the matter. Let us find out how many there are here. Suppose you stand up.
The CHAIRMAN. Stand up.