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FOODS, DRUGS, AND COSMETICS

WEDNESDAY, FEBRUARY 28, 1934

UNITED STATES SENATE,
COMMITTEE ON COMMERCE,

Washington, D.C. The committee met at 10 a.m., pursuant to adjournment, in the caucus room, Senate Office Building, Senator Hubert D. Stephens presiding.

Present: Senators Stephens (chairman), Hattie W. Caraway, Clark, Murphy, Overton, McNary, Hebert, Nye, Vandenberg, Gibson, and Brown.

The CHAIRMAN. Come to order, please.

Hon. J. Harry Covington, of Washington, D.C., counsel for the National Canners Association, and for Campbell Soup Co., asks leave to file short briefs, to be included in the hearings, discussing the necessity for certain amendments to sections 7, 15, 21, and 25, relating to foods. He is given that permission.

(The briefs, subsequently supplied by Mr. Covington, are in the words and figures following :)

BRIEF OF JUDGE J. HARRY COVINGTON, OF COVINGTON, BURLING, RUBLEE, ACHESON

& SHORB, WASHINGTON, D.C., ON BEHALF OF THE CAMPBELL SOUP CO., OF CAMDEN, N.J.

Campbell Soup Co. calls to the attention of the committee the form of paragraph (f) of section 7 of the bill as now written, for the purpose of showing its objectionable and seriously injurious requirements as they affect manufacturers of certain classes of the very highest quality of food products.

The paragraph now reads as follows:

“(f) If it is not subject to paragraph (d) of this section and its label fails to bear (1) the common or usual name of the food, if any there be, and (2) the common or usual name of each ingredient such food bears or contains in order of predominance by weight; except that spices, flavors, and colorings, other than those sold as such, may be designated as spices, flavors, and colorings without naming each: Provided, That to the extent that compliance with the requirements of subdivision (2) of this paragraph is impracticable because of normal variations in ingredients or their quantities, usual to good manufacturing or packing practice, reasonable variations from the stated order of such ingredients shall be permitted, and exemptions as to packages of assorted food shall be established, by regulations promulgated by the Secretary."" [Italics ours.]

Under such a provision of law every manufacturer will be required to disclose to his competitors the full composition of his mixed foods in such fashion as to make reproduction or simulation easy. The proposed law contains in its other provisions relating to adulteration, misbranding, advertising, and factory inspection, full protection to the public, so as to assure the manufacture and sale of wholesome and nutritious foods. Those provisions are proper, and Campbell Soup Co. has not the slightest objection to them.

125

I

Campbell Soup Co. manufactures more than 20 varieties of soups. They are generally regarded as the highest grade of such foods on the American market. Each of these soups has an individual composition which is the result of a long series of experiments calculated to produce a commodity with a particular food value, taste, appearance, and consistency. The result of these experiments has been to arrive at certain culinary standards of preparation and content for each separate product. These standards require the use of a large range of ingredients. For example, there is a group of soups such as pea, tomato, and celery which are composed of a major vegetable base and a small number of minor ingredients calculated to give a peculiar characteristic to that type of soup, which the public through long use is accustomed to expect and demand. On the other hand, there are soups such as vegetable, vegetable beef, ox tail, and mock turtle, which are the result of a large combination of ingredients of major and minor importance. Their preparation is accomplished by a delicate blending of the ingredients according to a determined recipe. Such a manufacturer has a proprietary right in his own formula. That right is embraced in his essential trade knowledge, peculiar to himself, acquired by long years of expensive experimentation, and the application of intimate knowledge of the dietary values of the foods he sells.

Moreover, the provision now in the bill requiring the statement of each of the ingredients of the food in order of their predominance by weight would permit a competing manufacturer to market on a competitive basis a product of inferior quality to that developed by the manufacturer originating the formula by decreasing, without departing from the order of predominance, the percentages of the more expensive ingredients, and increasing the percentages of the less expensive ingredients. The provision as written will therefore give rise to a new method of “palming off” which will not only be a serious injury to the manufacturer who developed the formula, but will be definitely against the interest of the ultimate consumer.

II

To meet the objection to the provision as now written, and at the same time to preserve that control of the branding of food which is essential for the public an amendment to section 7, paragraph (f) is proposed which reads as follows:

“(f) If it is not subject to paragraph (d) of this section and its label fails to bear (1) the common or usual name, if any there be, or (2) the names of the major ingredients if it has no common or usual name as may be determined by the Secretary. Exemptions as to requirement (2) and as to packages of assorted foods may be established by regulations promulgated by the Secretary.”

It will be seen that, with the public fully protected under the other sections of the bill as to the wholesomeness and freedom from deleterious substances in a canned food product, the amended provisions as here suggested would, prior to the time when a definition and standard of identity has been pre scribed by regulations of the Secretary of Agriculture as provided for elsewhere in the bill, adequately accomplish the purpose of the legislation.

During the testimony of W. G. Campbell, Chief of the Food and Drugs Administration of the Department of Agriculture before this committee on March 3 last, he said :

“Now in the ordinary course of the work of the Department undoubtedly there will be standards for different types of foods now known commonly under a certain name, not the product of only one concern, not a novelty, not something that is sold under a fancy name and thereafter called a proprietary product. I know that there is a concern on the part of some of the manufacturers of such products about the fact that prior to the date of the pro mulgation of such standards or definitions there would be a requirement for them to declare the ingredients on the labels of such packages."

And recognizing that the Department of Agriculture may not be able to promulgate the definitions of standard and identity within the 6 months prior to the date the law will go into effect, and that injury and financial loss may be the result to manufacturers of food products with a common or generic name during the temporary period that will intervene between the effective date of the proposed law and the effective date of promulgated standards of identity, he further said :

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Candidly, I think there should be some provision for just that hiatus between the effective date of the law and the time when the Department under stress of force gets out the standards which would exempt such products from section 7, paragraph (f).”

III

Finally, may it be said, the purpose of section 7, paragraph (f), as it now appears in the bill, is clearly to provide a method of labeling food products only during the period that will intervene between the effective date of the proposed law and the effective date of promulgated standards of identity as elsewhere in the bill provided for. The definitions and standards of identity will make possible both the requisite information for the public and the necessary protection to the manufacturer. Certainly it is difficult to see the logie of a requirement that the ingredients of a food with a common or generic name, the general ingredients of which are known to every housewife, shall be disclosed to competitors, when during the temporary period pending the promulgation of a definition and standard of identity as contemplated in the proposed bill the great value of a proprietary formula which gives a peculiar characteristic to such food with a common or generic name, developed by extensive experiments and large money outlay, may be destroyed by the action of competitors in simulating that formula. It is with that reasonable conception in mind that the amendment we have proposed is so drawn as to permit during the temporary period foods with a common or generic name, otherwise fully conforming to the law, to be sold under labels bearing their common or usual name.

BRIEF SUBMITTED BY JUDGE J. HARRY COVINGTON, OF COVINGTON, BURLING, RUBLEE,

ACHESON & SHORB, WASHINGTON, D.C., ON BEHALF OF THE NATIONAL CANNERS' ASSOCIATION

I

On February 19, 1934, Senator Copeland introduced a bill, S. 2800, which is to b? cited as the “Federal Food and Drugs Act.”

The National Canners' Association, as a trade association of manufacturers of certain foods which would be affected by this act, wishes to suggest amendments to the following provisions : Subsection (e) of section 7, section 11, section 21, and section 25.

II

Suggested amendments to subsection (e) of section 7 and section 11 are complementary, having as their purpose the elimination of such words as would authorize the Secretary to promulgate a standard of quality and fill of container, rather than a minimum standard of quality, and to insert such words as would authorize the food manufacturer to market substandard goods. provided that he states on the label that such goods are below the standard of quality prescribed by the Secretary.

Section 11, as it now stands, authorizes the Secretary to promulgate regulations, as provided by section 22, fixing and establishing for any food one objectively determinable minimum standard of quality and fill of container. The word “minimum necessarily implies that the manufacturer cannot market goods below the standard of quality set up by the Secretary. This implication is made positive by section 7, which provides that a food shall be deemed to be misbranded

" (e) If it purports to be, or is represented as a food for which a minimum standard of quality has been prescribed by regulations as provided by sections 11 and 22, and

(2) it falls below such standard." These provisions constitute a departure from existing legislation in regard to the standards for canned foods, in which the National Canners Association is particularly interested.

Under the so-called McNary-Mapes amendment of July 8, 1930, to section 8 of the present Federal Food and Drugs Act, there is the following regulation :

“Fifth. If it be canned goods and falls below the standard of quality, condition, and/or fill of container, promulgated by the Secretary of Agriculture for such canned food and its package or label does not bear a plain and conspicuous statement prescribed by the Secretary of Agriculture indicating that such canned food falls below such standard."

This section also provides that,

* Th Secretary of Agriculture is authorized to determine, establish, and promulgate, from time to time, a reasonable standard of quality, condition, and/or fill of container for each class of canned food as will in his judgment promote honesty and fair dealing in the interest of the consumer.”

The National Canners Association believes that the so-called McNary-Mapes amendment to the Federal Pure Food and Drugs Act goes to the desirable limits in protection of the consumer by the use of Government standards. The function of the Federal Government in its Food and Drug Administration heretofore has been to encourage commerce and protect the public by an exercise of a police power that will penalize the marketing of foods that are harmful to the health of the public or deceiving to the consumer as to their quality. Up to this time, Congress has deliberately permitted the marketing of foods which are wholesome, nutritious, and entirely free from any deleterious substance, even though they fall below a particular standard of quality. The reason for this is obvious. It may very well be that in texture, color, or certain other minor respects a food placed in sealed cans may not be within the standard defined by the Secretary of Agriculture, but if plainly labelled to indicate such fact and in consequence sold for a somewhat lower price, may be advantageous to both the manufacturer and large numbers of the consumers of the country.

The National Canners Association can see no justification from a standpoint of public policy for a provision that would authorize administrative prohibition of the marketing of canned foods which are healthful, nutritious, and not dangerous to public health. The association has always encouraged and fostered the marketing of foods of superior quality. Furthermore, it believes that the consumer has a right to know whether or not a food conforms to a single prescribed standard of quality, but it opposes the extension of governmental regulation through standards and misbranding provisions to the full extent now proposed in sections 7 and 11. The only minimum beyond which foods cannot be sold to the public should be the point at which such foods become either unhealthful or lacking in food values. Accordingly, the association suggests that section 11 be amended by the omission of the word “minimum in line 24 on page 17 and the insertion of the word “reasonable" in its place. Also that subsection (e) of section 7 be amended to read as follows:

"If it purports to be or is represented as a food for which a standard of quality has been prescribed by regulations as provided by sections 11 and 22, and it falls below such standard of quality for such food, and its package or label does not bear, if so required by regulation, a plain and conspicuous statement prescribed by the Secretary of Agriculture, that such food falls below such standard."

III

An amendment is suggested for section 21, regarding publicity. The section should be stricken out as it is written and in its place a provision inserted, as follows:

“ The Secretary may cause to be published periodically a report summarizing all judgments, decrees, and court orders which have been rendered, including the nature of the charge and the disposition thereof. The Secretary may also cause to be disseminated for public information the substance of all legal proceedings instituted because of alleged violations of this act, provided that no such information shall be so disseminated regarding any brand of food, drug, or cosmetic before rendition of final judgment in proceedings against it, except in cases involving imminent danger to health."

The National Canners Association believes that the Secretary should have a full discretion to inform the public of the judgments of courts resulting from charges involving the production or sale of foods in violation of the provisions of the Food and Drugs Act. And for the protection of the public health it is proper to permit the Secretary in his discretion to give to the public the substance of legal proceedings instituted because of alleged violations of the act. In some instances it is conceivable that public information of the charge before final judgment may be essential. But section 21 as it now appears in the bill gives the Secretary that discretion not subject to restraint by the courts, and places no limitation upon the information to be disseminated at a preliminary stage of a legal proceeding or even before such proceeding is instituted. It is in the Secretary's discretion to determine when there is imminent danger to public health or deception of the consumer because of the production or sale of a particular food, and an unlimited statutory authority for public comment by him would make it possible to conduct å publicity campaign of disparagement of the products of any manufacturer before they are legally determined to be produced or sold in violation of the law.

The association does not mean by its opposition to the section as now drawn to criticize the existing fairness and discretion of those composing the Food and Drugs Administration, but no statute ought to make possible the public and unrestrained disparagement of the products of a manufacturer through passion, prejudice, ill will, or even mistaken judgment.

The amendment to section 21 the association has suggested is calculated simply to place desirable limits on such publicity. It would permit the publication of a report summarizing all judicial pronouncements which have been rendered. It would, in addition, permit the dissemination of information in the form of the substance of legal proceedings instituted before such proceedings were acted upon by the courts in cases where the dissemination of such information seemed necessary to the protection of public health. That is all the information which in fairness should be made public.

NEWBURYPORT, Mass., February 24, 1934. SENATE COMMERCE COMMITTEE,

Washington, D.C. GENTLEMEN : I understand public hearing begins February 27 on the new draft of the Copeland bill, or so-called “Tugwell bill.”

I would like to express the approval of myself and this company of that bill as it stands, with regret that some of the earlier provisions have had to be weakened and washed out.

We have been advertisers for years and believe that there ought to be a great deal more truth and honesty in advertising than there is today and regret that the advertising industry itself seems unable to do anything constructive to establish standards which are surely badly needed.

We are members of the Association of National Advertisers and believe that the official stand of that association against the bill does not represent the opinion of a very large number of its members. Faithfully yours,

TOWLE MANUFACTURING CO.,
By CLAUDIUS G. PENDILL,
Vice President and Sales Manager.

PORTLAND, MAINE, February 27, 1934. Hon. HUBERT D. STEPHENS,

Senate Office Building, Washington, D.C. DEAR SIB: Although we realize that the hearing on the proposed food and drug bill takes place this morning, Tuesday, we nevertheless wish to put ourselves on record to the effect that we are opposed to the original Tugwell bill, S. 1944, and to S. 2000, which, as we understand it, is a revision of the Tugwell bill, and also to S. 2800, which we understand is the last revision to bill S. 2000.

These bills are all based on a complete revision of the present Food and Drug Act of 1906 and grant bureaucratic power to the Secretary of Agriculture. They also establish minimum standards of identity and quality for all food products and, in case no standards are fixed, require full formula disclosure. They also require all drugs to bear a label indicating that the drug is palliative and how this result is effected. These bills restrict the right of self-medication and require all manufacturers to secure a factory permit and submit to factory inspection. They would control the advertising of foods, drugs, and cosmetics ; create committees on health and food to assist the Secretary of Agriculture, but nothing contained in the law would require the Secretary to follow the recommendations of such committees.

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