subdivision of paragraph (e) of section 17. This provision, which states that no dealer shal be prosecuted if he establishes a guaranty from the person from whom he received the article, has been of untold value in fixing responsibility for infractions of the law where they belong, and has not led to unwarranted prosecutions of dealers. Administratively the Department, throughout the entire 27 years of the enforcement of the act, has directed its prosecutions at the manufacturer or other party responsible for the violation and prosecutions have been lodged against dealers only in case of collusion between them and manufacturers to foist adulterated or misbranded goods on the public.

However, if it is desired that additional protection be given dealers who receive goods in interstate commerce in good faith and distribute them, we suggest that this may be accomplished, without creating the loophole that now appears in the provision, by substituting for the first subdivision, beginning in line 25 on page 27 and ending in line 4 on page 28, the words:

for having received in interstate commerce an article and in good faith sold it at retail, unless he refuses to furnish 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 and all documents pertaining to the delivery of the article to him,

* *

This would effectively protect dealers who receive goods from interstate sources and distribute them at retail, even if they had not taken the precaution to protect themselves with a guaranty as provided by the second subdivision of this paragraph. Dealers who ship in interstate commerce goods received from a manufacturer located in the same State as the dealer, could always protect themselves by the procurement of guaranty and thus make it possible for the Government to fix responsibility upon the person actually responsible for the adulteration or misbranding.

The criticism has been offered that the labeling of adulterated or misbranded goods with the phrase "For export ", when they are to be shipped abroad, as provided by section 20, paragraph (d), lines 4 and 5 on page 33, may be interpreted as requiring this labeling to appear upon the individual containers. It has been our interpretation that this language would require the labeling only upon the outside of the shipping package. We therefore have no objection to the insertion of the word "shipping", making the phrase read "is labeled on the outside of the shipping package with the words For export.'

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I have one suggestion to make on section 21, dealing with publicity. The proviso beginning in line 17, page 33, states:

That no such information shall be so disseminated regarding any brand of food, drug, or cosmetic before rendition of final judgment and proceedings against it except in cases involving imminent danger to health or gross deception of the consumer.

I believe there is justification for the deletion of the word "imminent" and that the Department should be permitted to give out information concerning specific brands where it is in position to show definitely that there is danger to health even though the peril not be sufficient to justify its description as "imminent."

A great deal of criticism has been advanced against section 22, providing for expert advisory committees to the Secretary and

authorizing the promulgation of regulations having the force and effect of law. Listening to these criticisms, one would infer that this is a unique departure in American legislation. On the contrary, there is ample precedent in both Federal and State statutes of recent date for the delegation of this quasi-legislative power. Some of the Federal statutes are the Clayton Act, the Federal Trade Commission Act, the Longshoremen's and Harbor Workers' Compensation Act, the Packers and Stockyards Act, the Grain Futures Act, the United States Grain Standards Act, and the Tariff Act. Furthermore, authority to make findings and regulations having the force and effect of law are conferred upon the Secretary by the McNary-Mapes amendment to the existing food and drugs act. In those instances in this bill where regulation-making power has been delegated, the limits within which such power may be exercised have been definitely delineated. The questions involved are so complicated and so subject to change with scientific developments that it would be wholly impracticable to treat them by specific legislative formulae. They deal with matters of such moment to the public health and to the protection of consumer welfare generally that the statute would be woefully deficient unless it made some such provision as this for the curtailment of abuses that cannot otherwise be reached. In the Union Bridge Co. v. The United States (204 U.S. 387) the Supreme Court said:

Indeed, it is not too much to say that the denial to Congress of the right under the Constitution to delegate power to determine some fact or the state of things upon which the enforcement of its enactment depends would be to stop the wheels of the Government in the conduct of the public business.

I can conceive of no situation of comparable importance to public welfare where this observation by the Supreme Court more aptly applies.

I have undertaken to analyze the provisions of S. 2800 which have been the subject of the strongest criticism during the course of this hearing. While this bill in some respects is not as desirable from the standpoint of consumer protection as the bill S. 1944, which was prepared in the Department, it is nevertheless a desirable measure. Certainly the modifications of S. 1944 to meet the strenuous opposition lodged against it which have resulted by a process of evolution in the provisions embodied in S. 2800, leave this bill still far superior from the standpoint of protecting not only the consumer but honest manufacturers than those measures which have been introduced at the request of Mr. Dunn and Dr. Beal. The latter bill, S. 2355, is one advocated by the patent-medicine industry. A perusal of its provisions leads to the very obvious conclusion that the measure extends to that industry an extraordinarily solicitous consideration. While it purports to extend jurisdiction to cosmetics, therapeutic devices, and advertising, its implementing provisions are so restricted that the public could be given very much less protection than it now has under the act of 1906. Certainly the control of patent medicines would be practically impossible. It is in this class of products that the public receives least protection under the present law, and a still further emasculation of the present inadequate provisions is unthinkable.

Turning to the Dunn bill, S. 2858, I am not unmindful that this would regulate, after a fashion, cosmetics, therapeutic devices, and

false advertising, and that it contains an injunction provision to supplement seizure and criminal prosecution. But the administrative procedure under this bill is so circumscribed and amplified and the definitions of offenses are so befogged by a multiplication of adverbs and adjectives that the passage of this measure would very definitely weaken the public protection now afforded by the act of 1906.

S. 2800 does not have this fault. In no respects does it weaken the existing law. In comparison with the present act it

(1) Prohibits false advertising of food, drugs, and cosmetics. (2) Extends the law to cover cosmetics, outlawing those dangerous to health and requiring all to be sold truthfully.

(3) Prohibits traffic in food dangerous to health, whether the dangerous ingredients be normal or added. For purposes of effective administration of this requirement it authorizes the establishment of tolerances for or the total prohibition of added poisons.

(4) Proscribes the use of poisonous containers.

(5) Compels the observance of reasonable standards of cleanliness in the preparation and handling of food.

(6) Forbids traffic in confectionery containing metallic trinkets which have been found to be a serious menace to the health of children.

(7) Forbids the use in food of uncertified and impure coal-tar colors.

(8) Forbids slack-filling and the use of deceptive containers.

(9) Provides for the promulgation of standards of identity and a standard of quality for food.

(10) Requires disclosure of ingredients, except coloring and flavoring, for unstandardized foods.

(11) Provides for appropriate information to the consumer of special dietary foods.

(12) Prohibits traffic in drugs which are dangerous to health under the conditions of use prescribed on the label.

(13) Requires that official drug products comply not only with the standard of strength, quality, and purity announced in the Pharmacopoeias and National Formulary, but with the definition, formula, and description set forth therein.

(14) Requires further that such products be packaged and labeled as required by those standard authorities.

(15) Provides for regulation of deteriorating drugs.

(16) Declares nonofficial drugs in violation if the standard of strength varies from rather than falls below the standard claimed. (17) Contributes to the safety of self-medication by preventing medicines from being sold as cures unless they are cures, and requires affirmative information in the sale of drugs which produce no more than palliative effects.

(18) Makes sheer ignorance no longer a defense for false claims of curative effect for drugs.

(19) Requires habit-forming drugs to bear warning labels. (20) Requires label declaration of a list of potent drugs when used as ingredients in medicines.

(21) Requires plain and explicit directions for use and appropriate warnings against the consumption of drugs which in certain pathological conditions are contraindicated.

(22) Requires that antiseptics, disinfectants and the like possess a definite germicidal power and fulfill their promises under the indicated conditions of use.

(23) Authorizes control by licensing when public health cannot be protected otherwise. Provides for factory inspection and the procurement of records needed to prove interstate transportation. (24) Authorizes executive seizure of imminently dangerous products.

(25) Increases the penalties and exempts publishers from a charge of false advertising when they supply information identifying the advertiser.

(26) Authorizes the courts to restrain repetitious offenses by injunction.

S. 2800 affords immeasurably more protection to the public than can be given now. So it is inevitable, it seems to me personally, that the Department and all others who are interested in greater public protection should support this bill. There can be no justifiable fear or concern by honest manufacturers that through zealous administration it will result in the creation of burdensome restrictions on legitimate enterprise, since it vests the district courts with jurisdiction to restrain officials from the enforcement of unreasonable, arbitrary, or capricious regulations and penalizes officials for the disclosure of trade secrets.

The CHAIRMAN. All those who have requested a hearing have been heard. So far as I know, there is no one else present who desires to be heard. If this be so, I shall declare the hearings closed. Any one desiring to do so may file a brief for the printed record provided it is received by us within a few days.

I offer for the record a letter from Mr. Robert Muldrow of San Antonio, Tex., and a brief prepared by Mr. J. F. Schalafly of St. Louis, Mo.

(The letter and brief are as follows):

Hon. HUBERT D. STEPHENS,

MOUNTAIN VALLEY WATER Co.,
San Antonio, Tex., February 26, 1934.

United States Senate, Washington, D.C. DEAR SENATOR STEPHENS: I am writing you to vigorously protest against Senate bill 2000, known as the Copeland-Tugwell bill.

This proposed law seems to give entirely too much bureaucratic power to the Agriculture Department, and also seems to restrict the power of the law and the courts. It restricts also the right to decide for yourself what remedy you may buy. There is ample power now in several governmental departments to protect the public against willful violators of the Pure Food and Drugs Act.

In connection with our interest in this matter, will say for your information that we are handling Mountain Valley mineral water from Hot Springs, Ark., and are the sole distributors for this well-known and valuable mineral water in South Texas. You may perhaps know something of the merits and value of the waters of Hot Springs, Ark., and no doubt may have used some of these waters with benefit to yourself and family.

I am informed that if this bill passes and becomes a law as proposed, distributors of Mountain Valley Water throughout the United States would be forced out of business, for we would be prohibited advertising benefits in cases of nephritis, high blood pressure, diabetes, and even arthritis and would be prohibited. On the other hand, it is well known and has been clearly estab lished for more than 50 years that the Mountain Valley Water from Hot Springs, Ark., is clearly and unmistakably of great benefit to those suffering from these diseases. There is nothing added to or taken from the Mountain Valley mineral water. It is bottled and sealed at the springs and delivered to the patient absolutely as nature made it.

Yours very truly,

ROBERT MULDROW.

The Banking Act of 1933, the Securities, the National Recovery Act, the Agricultural Adjustment Act, have applied equally to all subjects within their respective fields. Objections to them have been raised, but not the objection of arbitrary discrimination. The proposed Food and Drug Act is discriminatory. Arbitrary discrimination, which is forbidden by the fifth amendment, may be pro or con. It is both pro and con when it does not directly aid a special group but by crippling a competitive group accomplishes the same result. The proposed act discriminates against those who sell medical preparations by printed or radio advertising and in favor of those who sell medical preparations orally, viz, physicians, peddlers, and door-to-door canvassers.

In listing our specific objections to S. 2800 we confine ourselves to those sections of the act that affect us in our business of wholesaling and retailing mineral water.

"SEC. 6. A food, drug, or cosmetic shall be deemed to be misbranded

"(a) If its labeling is false or misleading in any particular. Any representation concerning any effect of a drug shall be deemed to be false under this paragraph if that representation is not supported by substantial medical opinion or by demonstrable scientific facts.

"SEC. 9. (a) An advertisement of a food, drug, or cosmetic shall be deemed to be false if it is false or misleading in any particular relevant to the purposes of this act regarding such food, drug, or cosmetic. Any representation concerning any effect of a drug shall be deemed to be false under this paragraph if that representation is not supported by substantial medical opinion or by demonstrable scientific facts."

BRIEF SUBMITTED BY J. F. SCHLAFLY, 3673 OLIVE STREET, ST. LOUIS, PRESIDENT OF THE MOUNTAIN VALLEY SPRINGS Co.

The Department of Agriculture has been using a horsetail weed compound which was sold as a cure for diabetes and a depilatory which contained more barium sulphide than is found in most rat poisons to call attention to the deficiencies in the present food and drugs law and the need for a new law. These samples of the holes in present Pure Food and Drugs Act are useful in pointing out where that act should be amended, but they are only a pretext and not a reason for an entirely new act. All the patent medicine evils pictured in the Chamber of Horrors could be prevented by amending the present law so as to include cosmetics and the advertising of dangerous drugs. Nevertheless Drs. Tugwell and Campbell introduced Senate bill 1944 as the necessary solution of these evils.

This measure was the only "new deal" bill that sought to make one department of the Government the absolute and permanent master of business in its sphere. Under the admirable N.R.A. each industry was asked to write its own code and then these codes and not the Department of Commerce were for 2 years to be the rule of conduct. S. 1944 abounded in grants of arbitrary power-" as he (the Secretary) may deem (deems) necessary occurred seven times. Other general and irresponsive powers were conferred on the Secretary: Whenever the Secretary determines" (present twice), “As the Secretary may find" (present five times).

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In redrafting S. 1944 and its successor, S. 2000, Senator Copeland and his committee have eliminated some of the objectionable features, but after all, S. 2800 is only a redraft and not a new bill. It is not what the subcommittee did that we object to, it is what the subcommittee did not do.

No standards of truth and falsity are available. Medicine is not an exact science and the Department of Agriculture has no uniform accepted standards as has the Bureau of Standards. The elements of a drug can be accurately determined and weighed. The medical properties cannot. The proverb: One man's meat is another man's poison" has withstood the test of time. A distinction between chemical constituents and medical properties is plain. As to the truth or falsity of the former there can never be a dispute, as to the truth or falsity of the latter there can seldom be absolute certainty.

Thus, the advertiser or labeler is made to act at his peril. If his statement does not coincide with the Secretary's notion of the true medical properties, he has violated the proposed act. It is not answer to state that he must first be convicted in the courts. Because the Secretary may destroy his business and good will by seizure (sec. 16), or adverse publicity (sec. 21) before securing a conviction.

The effect of the second sentence in each clause is to shift the burden of proof. The prosecution can state that there is no evidence that the label or