Liability and penalties.-Liability and penalties for false advertising are laid down in section 17 (p. 26, line 1, to p. 29, line 14). It is not necessary to discuss them at length. It seems desirable, however, to call attention to the extent to which liability is diminished, penalties mitigated or destroyed, and false advertising tolerated by certain authorized exceptions to the general rule.

Section 17, subsection (a), paragraph (4) (p. 26, lines 11-14), forbids the dissemination of any false advertisement by radio broadcasts, United States mails, and interstate commerce. Nevertheless, when we turn to subsection (e) of the same section (p. 28, lines 16-20) we find express provision permitting any retail dealer to disseminate in the United States mails and interstate commerce advertisements offering for sale at his place of business any product which is not distributed or sold in interstate commerce. Incidentally, the provisions of this exception do not indicate clearly whether the "product" which is not distributed or sold in interstate commerce signifies a category of foods, drugs, or cosmetics, or some one article coming within that category.

Not only does this section, as stated above, forbid the dissemination of false advertisements by radio broadcasts, in the United States mails, and in interstate commerce, without regard to whether the food, drug, or cosmetic advertised does or does not enter interstate commerce, but paragraph (5), subsection (a), of section 17 (p. 26, lines 15-17), specifically forbids the dissemination of a false advertisement by any means for the purpose of promoting interstate commerce in foods, drugs, or cosmetics. Notwithstanding these prohibitions, however, violation of which may entail on the offender imprisonment for 3 years and a fine of $10,000, paragraph (d), subsection (7), of section 17 (p. 27, lines 13-23), exempts publishers, advertising agencies, and radio broadcast licensees from all liability for the dissemination of false advertisements, except that they must furnish on reasonable request the name and post office address of the person who caused the dissemination of the advertisement. It matters not that the publisher, advertising agency, or radio broadcast licensee knew that the advertisement that he disseminated was false and wilfully disseminated it with a knowledge of its falsity; his conduct does not subject him to the penalties for the dissemination of false advertisements.

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Publisher" and advertising agency are not defined. Any person who publishes is obviously a "publisher", and any person who engages in the business of advertising as the agent of another is obviously an advertising agency." Without disparaging in any way the high principles of reputable publishers and advertising agencies, it must be recognized that the language of the bill opens the way for gross frauds.

There seems to be no reason why a publisher, advertising agency, or radio broadcast licensee should not be accountable for the dissemination of any false advertisement if he disseminated it with knowledge of its falsity or or when he might by reasonable diligence have acquired such knowledge. The opportunities for radio broadcast licensees, publishers, and advertising agencies to detect the falsity of advertisements before their dissemination probably varies, but each should be held accountable for the use of those opportunities that present themselves to him.

If it be desired to relieve publishers, advertising agencies, and radio-broadcast licensees from the penalties of the act, this might be done by requiring them to obtain from persons in the United States who offer advertisements for dissemination guarantees of the truthfulness of such advertisements, similar to the guarantees that dealers in foods, drugs, and cosmetics may obtain, to protect themselves against imposition, as provided in clause (2), subsection (e), section 17 (p. 28, lines 4-16). This would leave the publishers, advertising agency, or radio broadcast licensee liable for the falsity of advertisements disseminated by him on behalf of foreign advertisers, but protection against fraud of that character can probably be obtained by a publisher, advertising agency, or broadcast licensee only by requiring foreign advertisers to give bond to protect him from damage if called to account for the dissemination of false advertisements.

Whatever may be determined with respect to the liability of publishers, advertising agencies, and radio-broadcast licensees generally, for one class of advertisements, they should be held to strict accountability, without regard to any misrepresentations made by the advertiser himself. When a publisher, advertising agency, or radio-broadcast licensee represents to the public that he tests the products that he advertises, that the particular product advertised has been tested, and that it has been found acceptable according to

certain standards, then the publisher, advertising agency, or radio-broadcast licensee should be held to full accountability as the original advertiser.

The furnishing by a publisher, advertising agency, or radio-broadcast licensee of the name and post-office address of an advertiser may mean little or nothing. The post-office address of the advertiser may be in a foreign country, beyond the reach of prosecution, or the post-office address may fail to indicate the place of residence or of business of the advertiser. The plan of exoneration for the dissemination of false advertisements here laid down would certainly afford every advantage to advertisers of foods, drugs, and cosmetics, who reside in foreign countries.

INJUNCTIONS, SEIZURES, AND PENALTIES

Factory inspection.-Section 13 proposes (p. 19, lines 9-22) to authorize officers or employees of the Department of Agriculture—

"(1) To enter any factory, warehouse, or establishment in which food, drugs, or cosmetics are manufactured, processed, packed, or held for shipment in interstate commerce or are held after such shipment, or to enter any vehicle being used to transport such food, drugs, or cosmetics, in interstate commerce; and "(2) To inspect such factory, warehouse, establishment, or vehicle and all equipment, finished and unfinished materials, containers, and labels there used or stored."

Since this bill relates only to interstate commerce, the extent of the inspection authorized in this section might well be limited to such inspection as is related to interstate commerce.

The word "vehicle", where it appears on page 19, lines 18 and 20, and on page 20, line 4, is possibly not broad enough to cover boats and aircraft. It might be well to avoid possible controversy as to its exact meaning by using the phrase vehicle, boat, and aircraft."

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Inspection such as is proposed may be difficult without the cooperation of the management of the factory, warehouse, establishment, or vehicle inspected. The bill can with advantage be amended so as to require the management, on request of the inspector, to cooperate in the inspection. At least, the bill should forbid interference with inspection.

The only penalty provided for refusal to permit inspection seems to be (p. 19, line 23 to p. 20, line 18) the issue of an injunction to prevent the shipment in interstate commerce, or delivery after receipt in interstate commerce, of any food, drug, or cosmetic from or by any factory, warehouse, establishment, or vehicle, to which access has been denied. Such an injunction may be dissolved as soon as permission to inspect is granted, and, if continued, can be continued subject only to conditions fixed by the court to govern inspection. Such a procedure by injunction is expensive alike to the Government and to the management of the factory, warehouse, establishment, or vehicle, and is time consuming. Before a petition for injunction may be filed, the management may have consented to an inspection, or it may consent to an inspection immediately after an injunction has been issued, and in either event the management will thus escape penalization of any kind.

Efficient enforcement of this act seems to call for the imposition of penalties through criminal prosecution on anyone who willfully or without just canse refuses to permit an inspection, or hinders an inspection that has been permitted, or fails to cooperate in the making of an inspection.

Permit factories.-Section 12 (p. 18, line 2 to p. 19, line 7) authorizes the Secretary of Agriculture to require manufacturers, processors, and packers of certain classes of food, drugs, and cosmetics to obtain and to hold licenses conditioned on compliance with such regulations as the Secretary may promulgate. These regulations may prescribe the period of time in which any particular class of license may be issued and the conditions governing the issue and the renewal of licenses. The Secretary is authorized to suspend "immediately upon notice any permit issued under authority of this section if it is found that any of the conditions of the permit have been violated." He is authorized to reinstate a license, even though adequate measures have been taken to bring it into compliance with the conditions of the original license, only "after hearing and an inspection of the establishment." Officers and emploees of the Department of Agriculture are entitled to access to such a licensed factory or establishment, and denial of access is to be ground for suspension of license until access is given.

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While strong protests have been voiced against these provisions of the bill,. they are sound in principle. If the present proposal goes too far, there is no reason why the underlying principle should not be followed. Certainly, for instance, if a safe food, drug, or cosmetic cannot be manufactured on insanitary premises without certain essential equipment, and if the dangerous character of the product thus manufactured under insanitary conditions cannot be discovered in the finished product otherwise than by trial and errorthe health, illness, or death of the user subsequent to use the licensing system or some similar system should be followed.

A minimum adherence to this principle is represented by simple registration. Under the registration system any person who desires to engage in the manufacture or the distribution or the sale of any class of food, drugs, or cosmetics simply registers his establishment on a blank furnished by the Government. The blank contains a statement of official requirements for such establishments as it is desired to license, and calls for an adequate description of the premises, equipment, and methods. A fee may or may not be charged. Reregistration may be required at stated periods. Proper penalties are provided for falsification of the application. The advantage of this system lies in its simplicity and in the fact that it gives everyone the right to begin business promptly and to carry it on, without waiting for the possible delay incident to Government inspection and certification. While it may not accomplish all that the licensing system accomplishes, it does put the Government on notice as to the existence and location of an establishment and thus facilitates inspection-not only by the Federal inspectors, but, if there be adequate cooperation, by State and local inspectors also.

The licensing system differs from the registration system because under the licensing system a business cannot be established until a license has been issued. Under the system proposed in this bill, too, wherein it is proposed to limit the time in which a license is operative and to authorize the suspension of a license without notice, the licensee has the burden of proving at each license-renewal period that his establishment is still in compliance with the regulations, and he may be called on to satisfy that burden of proof at any time whatever after the Secretary suspends the license.

There is possibly some ground for objection to a procedure of this kind, for under the procedure proposed by the bill licenses may be limited to brief periods and the licensee's capital investment may be jeopardized at each license-renewal period by changes in the regulations promulgated since his license was issued or last renewed or by arbitrary action on the part of officers and employees of the Secretary of Agriculture.

Nevertheless, occasions may arise calling for the summary suspension of ⚫a license, as when the product covered by the license is discovered to be imminently dangerous to the public health; for instance, when ripe olives being distributed from a given plant are found to be infected by bacillus botulinus or when there is good reason to believe that the water supply of a creamery carries the typhoid bacillus. Some situations may be met without Federal statutory authority by proper cooperation between the Secretary of Agriculture and the health authorities of the jurisdiction in which the dangerous establishment is located, but possibly not all of them. In the exceptional case, therefore, it might be well to leave it to the Secretary of Agriculture to determine whether the establishment shall be summarily closed. In these days of rapid communication the delay incident to obtaining authorization from the Secretary need not be great.

It seems to me that the objections that have been raised to this section may be met without material loss of effectiveness by authorizing the Secretary to promulgate regulations requiring the registration of some types of food,. drug, and cosmetic establishments and requiring licenses for others, registration or licensing to be renewable at stated intervals as a matter of right, on a showing of conformity of the registered or licensed establishment with law and regulations.

Proper penalties should be provided for the incorporation of false or misleading statements in an application for registration or for license, and for false or misleading statements in any correspondence or investigation relating to the establishment.

Penalties should be provided for refusal of access for purposes of inspection, for hindering inspection, and for failure to cooperate in making an inspection. Seizure. Section 16 (p. 23, line 9 to p. 25, line 24) proposes to authorize seizures of food, drugs, and cosmetics that are adulterated or misbranded or

that have been 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.

Seizure is to be effected (p. 23, line 16 to p. 24, line 2):

(1) By process pursuant to the libel (by court process), or

(2) If a chief or station or other officer of the Food and Drug Administration, duly designated by the Secretary, has probable cause to believe that the article is so adulterated as to be imminently dangerous to health, then, and in such case only, by order of such officer, issued under his oath of office, particularly describing the article to be seized, the place where located, and the officer or employee to make the seizure."

After seizure by administrative order, jurisdiction passes to the United States district court. The court may (p. 20, lines 16-18), by order, at any time before trial allow any person to a condemnation proceeding to obtain a representative sample of the article seized. Provision is made in this section (p. 24, line 19 to p. 25, line 16) for the reconditioning of the article seized, its destruction, or its sale. but it is provided that:

"Any article condemned by reason of the manufacturer, processor, or packer not holding a valid permit when so required by regulations under section 12 shall be disposed of by destruction."

Objection has been raised to the proposed vesting in "a chief of station or other officer of the Food and Drug Administration, duly designated by the Secretary," of authority summarily to seize food, drugs, and cosmetics. The objection derives some force from the fact (p. 24, lines 8-15) that, if such a seizure is found by the court to have been without warrant in law, and judgment is returned for the claimant:

"It appears to the court that there was reasonable cause for the seizure, the court shall cause a proper certificate thereof to be entered, and no officer or employee of the United States shall be liable to suit or judgment by reason of the seizure of the goods or the institution of such proceedings."

Under such a plan, it is pointed out, the owner of the goods seized by administrative order is without redress.

Obviously, the effective enforcement of the proposed law calls for some such right of summary seizure as is outlined above. In the absence of such a right, food, drugs, and cosmetics that it is proposed to seize by court order may be spirited away before the order can be procured. If the law is to be effectively administered too, it is essential that the officers charged with the duty of administering it be not subjected to personal liability on account of acts done in good faith. Finally, it is equally important that no avoidable injustice be done the owners of goods seized.

The way out, it seems to me, is to make the Government, which is undertaking to enforce the law, liable for the acts of its own agents, and to authorize the court that gives judgment for the claimant to hear evidence as to the damage done and to enter judgment against the United States to recompense the claimant, subject to appropriations by Congress. Such a provision for redress would probably go a long way toward reconciling the opponents to the present legislation to necessary provisions for summary seizures.

Objection was made to the provisions of this bill (p. 25, lines 12-16) making it mandatory that food, drugs, and cosmetics “condemned by reason of the manufacturer, processor, or packer not holding a valid permit" be disposed of only by destruction. The answer to these objections lies in the fact that the bill authorizes the license system (p. 18, lines 2-8) only when "by reason of conditions surrounding the manufacture, processing, or packing thereof (any class of food, drugs, or cosmetics may), be injurious to health, and such injurious nature cannot be adequately determined after such articles have entered interstate commerce, and in such case only." It may be that notwithstanding the conditions under which the seized articles were manufactured, processed, or packed, and notwithstanding that their harmlessness or harmfulness cannot be demonstrated in the finished product, the seized food, drugs, or cosmetics might be reconditioned or converted into some harmless and useful product. Because of this, there seems to be no good reason why the manner of the disposal of food, drugs, and cosmetics in this class should not be left to the discretion of the court.

The provisions of this section might well be extended so as to authorize the seizure, condemnation, and destruction of printed and graphic advertisements of all kinds that are in violation of the terms of this act.

Imports and exports.-Section 20 (p. 31, line 15, to p. 32, line 18) proposes to provide a method for the examination of food, drugs, and cosmetics which are being imported or offered for import into the United States. It provides that the Secretary of the Treasury shall refuse delivery to the consignee of any food, drug, or cosmetic

"If it appears from the examination of such samples (of food, drugs, and cosmetics) or otherwise that

(1) any false advertisement of such food, drug, or cosmetic has been disseminated in the United States by the importer or exporter thereof, or any person in privity with him, within 3 months prior to the date such article is offered for import, or

(2) such article has been manufactured, processed, or packed under insanitary conditions, or

(3) such article is forbidden or restricted in sale in the country in which it was produced or from which it was exported, or

(4) such article is adulterated or misbranded within the meaning of this act, then such article shall be refused admission."

There seems to be no good reason why a food, drug, or cosmetic that is being imported or offered for import should be excluded from the United States solely because (p. 31, lines 23-24) "such article is forbidden or restricted in sale in the country in which it was produced or from which it was exported." Such a principle would obviously exclude from the United States-if it were not for other legislation permitting importations-such articles as opium and coca leaves. Moreover, the principle of exclusion is contrary to the principle laid down in the bill with reference to exports (p. 32, line 24, to p. 33, line 8), which provides that a food, drug, or cosmetic intended for export, unless adulterated within the meaning of certain named sections of the bill, shall not be deemed to be adulterated or misbranded if it—

"(1) accords to the specifications of the foreign purchaser,

"(2) complies with the laws of the country to which it is intended for export, and

"(3) is labeled on the outside of the package with the words 'For Export.'" The portion of this section which makes mandatory the exclusion of food, drugs, and cosmetics which are being offered for import or export is not consistent with the provisions of the bill that permit (p. 25, lines 2-12) food, drugs, and cosmetics of domestic origin that are adulterated and misbranded to be reconditioned for purposes of sale.

The provisions of this bill with reference to imports and exports should be made applicable to printed and graphic advertising matter imported or offered for export.

Penalties.-Penalties are provided by section 17 (p. 26, line 1, to p. 29, line 14). Generally, they need no comment. Comment may not be out of place, however, with respect to the manner in which, after what seem to be adequate penalties have been prescribed, they are attenuated by modifications and exceptions.

For instance, subsection (e) (p. 27, line 24, to p. 28, line 4) provides: "(e) No dealer shall be prosecuted under paragraph (b) of this section (1) because of commerce in any article he has purchased or received in good faith if he furnishes on request of an officer or employee duly designated by the Secretary the name and address of the person from whom he purchased or received such article,

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Paragraph (b), referred to in the above excerpt from the bill, is the paragraph (p. 26, line 24, to p. 27, line 7) that lays down penalties for violations of the act that are not willful in character.

Under the exceptions stated above, any dealer, wholesale or retail, need only give the name and address of the person from whom he, in good faith, purchased or received an article, to be entirely free from all liability. The article may have deteriorated while in his possession, but that makes no difference. The person whose name and address he gives may be located in the remotest corner of the earth. Or the person whose name and address he gives may be another dealer, who simply gives the name and address of some third person, and so the process may be indefinitely repeated. What the need is for such tender solicitude regarding dealers is not apparent, and is particularly obscure when it is borne in mind that any dealer can protect himself by establishing a guarantee of the lawfulness of any food, drug, or cosmetic that he handles, except only that the guarantor must reside in the United States, where the penalties of the law can be enforced against him.