484 FOODS, DRUGS, AND COSMETICS not be done are we not better off to do what we can do, and take only a half bite of the cherry? Mr. MARSH. No; because when you take a half a bite of the cherry, somebody else always grabs the other half away from you. When you want to eat a cherry, swallow it, be sure you do Senator COPELAND. We would break our teeth if we tried to bite at this cherry, no matter how desirable it is. Mr. MARSH. Well, that shows that your teeth and the Democratic Party's are not worth saving. Senator COPELAND. I can only speak for one Democrat. Mr. MARSH. Their record shows the rest of the story. Now, let me ask you about the rest of this bill. Perhaps you will want to ask Mr. Campbell in reference to it. I am reading now from a statement put out by the Food and Drug Administration, United States Department of Agriculture, August 28, 1933. It is no. 6, entitled "Patent Medicine Lies Cost Human Lives." It tells a story of how in 1922 a case was brought against what is called "B. & M.", and was finally decided, I believe, early in July 1932, after 10 years. It says: The nostrum in question I am quoting from a statement of the Food and Drug Administration was put out by the F. E. Rollins Co., of Boston, under the name of B. & M., composed essentially of ammonia, turpentine, water, aud eggs. B. & M. originated as a horse liniment, but graduated to the more lucrative position of a treatment for pneumonia and other things. A man died taking this. A case was brought. And the statement continues: To establish a case under this wording of the law it was necessary for the Government to prove not only that the manufacturer lied in his labels but that he knew he lied. To prove that a man knows he lies is an extraordinarily difficult thing, and I would like to have the drafter of this bill, or some member of the committee, state whether there is anything in this bill-I am not a lawyer and I may not have understood the provisions of it but I was unable to find anything in this bill, and I wish the committee would state if there is anything in this bill, which does not require the Government to do the impossible and to prove that a false advertiser knew that he was lying. Senator COPELAND. The record ought to show-and I am not dong this to interrupt you-that that was one of the notable cases where the Department tried to stop the sale of a horse liniment which was alleged to cure tuberculosis, and which took the Department 8 or 10 years of repeated actions to finally get proof sufficient to get a court to stand by the Department. If I understand this bill correctly, that cannot happen any more. Mr. MARSH. Under what provision of the bill? Senator COPELAND. You do not have to prove fraud. In this bill we absolutely prohibit the sale of a remedy alleged to be curative of tuberculosis. So right off the bat that cannot be sold. The Department made a good fight in that matter. Mr. MARSH. Quite admittedly. FOODS, DRUGS, AND COSMETICS 458 Senator COPELAND. And yet I believe that with this bill, if it is enacted into law, that that sort of fraudulent thing cannot go forward any more. I hope that that is so, and I believe it is. Mr. MARSH. Well, I was unable to see what provision of the bill provides that safeguard. Of course, I do not think it is adequate as it is, and I want the substitute we have suggested; but I still do not see what provision gives you the right to prevent it, a right to prosecute as to radio or printed advertisement and that assures a conviction, if you have to show that a man knew he lied, Why don't you definitely, then, put into the bill a stipulation merely that this medicine contains such-and-such drugs? Why don't you require every newspaper and every radio advertisement and every radio speaker to be subject to the same law! Senator COPELAND. About that particular matter that you speak of, if you will turn to page 16, we have a list of diseases and, among others, tuberculosis. I think it is one of the most outrageous things in the history of our country that we have permitted the sale of drugs or remedies for tuberculosis and cancer, and God only knows what, when every physician and the informed layman knows that they cannot be cured, but the Department was just helpless until after these years of effort they finally found a court willing to restrain this man from his fraudulent procedure. Mr. Marsh, in all seriousness, the very thing you brought out as an example of the weakness of the law, the failure of the Depart ment because of the inability to get a court to convict, that deal is done away with by the enactment of this law. Mr. MARSII. Can you prevent, under this law, an advertisement over the radio of one of these things! Senator COPELAND. Yes. Mr. MARSH. On printing! Senator COPELAND. Yes. Mr. MARSH. Under what penalty? Under the regular penalties for the label? Senator COPELAND. Yes. Mr. MARSH. They cannot state that they can be used in tuberculosis? Senator COPELAND. NO. Mr. MARSH. They can't state they can well be used in tuberculosis, without saying it will cure it? Senator COPELAND. It says, "in the treatment of any of the following diseases." Mr. MARSH. And you think it would prevent anybody who sells it, then, from making any reference to any of these diseases! Senator COPELAND. Yes. Mr. MARSH. I do not see how you get that interpretation. Senator COPELAND. Then you should give us the language to make that specific, because the very thing that you are talking about is one of the things that makes me enthusiastic for the bill, because it is positively criminal and indecent for anybody to set up to cure by medicine out of a bottle albuminaria, appendicitis, arteriosclerosis, and so forth, including tuberculosis. Mr. MARSH. Your construction, then, is the statement, "Any advertisement of a drug ", would cover any of these tonics or anything else! 486 FOODS, DRUGS, AND COSMETICS Senator COPELAND. Yes. Mr. MARSH. All right. I did not so construe it. Of course, that makes it all the more apparent how the patent medicine people that sold $360,000,000 worth of this stuff are opposed to it, but that, of course, is a legal matter, then, as to whether the courts would hold that that word "drug" covers all the tonics and everything else, and have you had any decisions which would justify your conviction! Senator COPELAND. Well, we have not had any decisions yet, because we have not got the law. Mr. MARSH. Not of this bill, but any other bills, that held the word "drug" covers it. Senator COPELAND. You mean these statements of decisions as to the use of the word "drug"! Mr. MARSH. Yes. Senator COPELAND. Of course, we have a definition here of a drug, a very much more inclusive one than heretofore. It includes these devices. One of the most open violations of decency is the sale of this radium dish, which you belt around you, which is going to cure all your ailments-an absolutely fraudulent claim. Mr. MARSH. Then there are two or three other points on the bill. Instead of having general statements, I suggest, if you are going to enact this bill instead of the bill which we all agree should be enacted to protect the public, that you should have grades 1, 2, and 3, instead of having the names for different grades of foods, so as to protect the public specifically as to what they are buying. The statement was made here by a representative of the cosmetic trade. I understood him to say, a chemist from Columbia University, or trained at Columbia University, that the people were spending about--I think he said-two and a half billion dollars a year for cosmetics in the United States, and I was going to ask here, in order to bring out the reasons for the opposition to this very moderate bill, Mr. Chairman, I was going to ask this: Whether the committee would ask for a statement of the financial interests opposed to this legislation, as follows: The salaries and stockholdings of those who have appeared in opposition to even this very moderate effort to protect the public. would like to know, for instance, what salary Mr. Dunn got, who appeared before you twice, and what the capitalization and profits of these various proprietary medicines and drug manufacturers and others who appeared before you are; particularly what profits they made in the last year, for which reports are made. You know we cannot get them in detail. The latest Government figures have got to be statistics of income for 1931. But you can get that information, of course, very readily, from them, by asking them to submit it. The plea was made here by this chemist who spoke yesterday, I think, that the cosmetic trade provided much employment and paid a lot of taxes, and I simply point out that there is absolutely no necessity to get any taxes, any revenue for the Government from cosmetics which may be dangerous. Yesterday the question was raised as to why the Crazy Water Co. exhibit which was part of the pure-food exhibit down here in Washington was removed. Well, Hon. Thomas B. Love-they call him FOODS, DRUGS, AND COSMETICS 487 down there Crazy Crystals Love-is attorney for the Crazy Water Co. of Mineral Wells, Tex.-he, you know, was a former Assistant Secretary of the Treasury and Democratic committeeman from Texas. I don't know what connection he had with the removal of that exhibit from the Food and Drug Administration exhibit, but at the hearings on this similar bill he said in December, "No harm has ever resulted, or is likely to result, from the misrepresentation of the remedial or therapeutic effect of naturally produced mineral waters", which the writer of this article in The Nation, already, at the request of Mrs. Harvey Wiley, read into the record, which says, is a brazen falsification, that "two kinds of harm result from such misrepresentation, harm to the health of the victim who takes a dose of horse physic under the illusion that a dose of salts is good for what ails him; harm to the victim's pocketbook because he paid about five times as much for those salts as it was worth." Also, I would like to read this statement about Mr. Blackett, who has been rather prominent in some of these hearings. Mr. Blackett is president of Blackett-Sample-Hummert, a Chicago advertising agency. His pet account is Ovaltine, that mysterious "Swiss" drink which puts you to "sleep without drugs" and performs such miracles with underweight children, nursing mothers, busy workers, and old people. "Food and drug advertising ", Mr. Blackett writes to magazine and newspaper publishers, "is different from other classifications. It must actually sell the product. It must put up a strong selling story-strong enough to actually move the goods off the dealers' shelves." More briefly, Mr. Blackett believes it would be impossible to sell a "chocolate-flavored, dried malt extract containing a small quantity of dried milk and egg" for what it really isat least for a dollar a can. Now, Senator Copeland. I would like to ask this question: Under this act, what would be your status in advertising Nujol and Fleischmann's yeast over the radio? Senator COPELAND. Well, I would have to determine that by submitting it to the Department. Mr. MARSH. Well, could you be held accountable for any statement you made? Senator COPELAND. If I make any misstatements I will be held accountable, and if I do it repetitiously I can be restrained by injunction if they are misstatements. Mr. MARSH. Well, what can you say about either of them that you can prove? Senator COPELAND. I would not want to make any speech now. Senator COPELAND. No. I would be willing to submit to any fair tribunal anything that I have ever said over the radio on the matter of health or the treatment of disease. My story is to prevent disease, and that is my advice to you, to keep from getting sick; then you won't have to take any of this vile stuff and add to the profits of the manufacturers. Mr. MARSH. I assure you I do not, Senator. I still know that statement about an apple a day will keep the doctor away, but it won't if he is on the radio-you can't. Senator COPELAND. You can turn him off. 488 FOODS, DRUGS, AND COSMETICS Mr. MARSH. I do not take any doctor's advice over the radio, or any other way, but that does not change the situation, that a lot of people need medical help, and they are entitled to get it. I trust that this committee in connection with this hearing will read the very constructive suggestions of that committee on medical care, in which they advocate practically the nationalization of health, and that would be a very constructive effort, which would do away with a lot of the stock in trade of the proprietary medicine people. Senator COPELAND. If you could preach to the people how to keep well, they would not need any medicine. Mr. MARSH. I will now read a statement that Senator Copeland will not agree with me on, but a statement from the Washington Daily News of Monday, February 26: Consumers Board Opposes Copeland as Food Bill Author. He is entitled to see it [handing to Senator Copeland]. Mr. MARSH. You heard the whole statement! Senator COPELAND. Yes. Mr. MARSH. Well, not this one, because this one was just released Senator COPELAND. Well, let me look at it. Mr. MARSH. I want to read the names of those who signed it. They were Professor John Dewey, George Soule, Harry W. Laidler, Professor Colston Warne, Amherst College; Robert Morse Lovett, University of Chicago; Miss Elizabeth Gilman, secretary of the Christian Social Justice Fund; Professor Kirtley F. Mather, Harvard University; Miss Freda Kirchwey, The Nation; and LeRoy Bowman, Child Study Association. Here is the full statement, which I would like to have go into the record. Senator COPELAND. Yes; I read this statement. I will assume full responsibility for my acts in the face of the new bill, and I am in favor of the new bill, even if it should put out anybody that I am interested in, if it is going to protect the public. Mr. MARSH. But even more significant is the statement, if I have understood you correctly-and I don't want to misquote you that the only effective way to meet the situation is not the bill you have, which is a negative bill at best-but a positive measure Senator COPELAND. I have not seen this statement. It is a matter of no concern to me, Mr. Chairman. The CHAIRMAN. You can offer the statement, but it will not be printed in the record. I am following what I think to be the rule in a matter of this kind. (At this point Senator Copeland asked a question, off the record.) Mr. MARSH. It is rather difficult to answer a question which does not appear, but I will do the best I can in my answer. The CHAIRMAN. Just a minute. I believe Senator Copeland said, "I want to ask this off the record." Was that the language! Senator COPELAND. That is what I said. Mr. MARSH. May I make an additional statement, then, which will not involve Senator Copeland's question? The CHAIRMAN. You have the right, of course, to make any statement that you choose to make, but you have no right to make a per |