ÆäÀÌÁö À̹ÌÁö
PDF
ePub

BRIEF SUBMITTED BY JAMES L. DONNELLY, CHICAGO, ILL., EXECUTIVE VICE PRESIDENT OF THE ILLINOIS MANUFACTURERS' ASSOCIATION

On behalf of the Illinois Manufacturers' Association, and particularly on behalf of the several hundred industries in that State specifically affected by the revised Tugwell-Copeland bill (S. 2800), I submit the following objections to said measure:

Those specifically objecting to the bill include:

Food and kindred industries, including meat and other packing-house products, various food preparations, beverages, ice cream, canning, dairying, confectionery, flour, and tobacco.

Chemicals, drugs, and allied products, including soaps, pharmaceuticals, biologicals, botanicals, and insecticides, essential oils, flavoring extracts, cosmetics, perfumes, package and propriety medicines, toilet preparations, chemicals. vegetable and mineral oils, waxes, and gums.

Printing, publishing, and allied industries, paper and supply industry, and advertising.

Containers of various types, including bottles, tin and cardboard containers, cork products, closures, and paper products.

66

Clothing, shoes, false teeth, crutches, suspenders (originally termed "braces"), and all appliances affecting "the structure or any function of the body" or promoting the attractiveness of the person" might also be construed as subject to the Department of Agriculture, which will be the supreme power in enforcing the measure.

S. 2800 raises the question of whether we shall have legislation by Congress and enforcement by court as at present under the present Food and Drugs Act, enacted in 1906, or legislation and enforcement by a Government officer in the Department of Commerce. Under the present law, we are informed. the Government has instituted over 22,000 cases, and truthfulness of packages. labels, and circulars has in the main been achieved.

It is submitted that any measures that may be necessary in the interest of public health, in the case of medicine, or to remedy misleading advertising, or to regulate the use of face creams and other cosmetics, might properly be obtained by offering amendment to the existing law.

This new and revolutionary bill repeals the existing law and sets up a new and involved measure that would vest in the Secretary of Agriculture broad and almost unsupervised legislative, executive, and judiciary powers.

It is contended by our membership that it is not only unnecessary but also unwise to set up entirely new legislation, for the reason that this would discard the experience of 28 years in the administration of the present law. together with the valuable court and administrative interpretations of that law. Furthermore, it would necessitate the rewriting of all the State laws which have been enacted in conformity with the Federal law. Unless this background of experience is obtained, there will be confusion, uncertainty, and tremendous expense and waste of time in setting up the administration and court interpretation of a new law.

Any possible advantage to the consumer can be accomplished by amending the present law without raising the innumerable objections which have been advanced in connection with the various bills that have been proposed by the Department of Agriculture.

The principal objections to the bill which have been pointed out by our members include the following:

Bureaucratic domination of the food, drug, cosmetic, and innumerable related industries established through the Department of Agriculture. The regulations proposed are unsound, unprecedented, and dangerous. In spite of some modification in the latest revision, the authority of the Secretary of Agriculture in a number of controversial matters is increased.

The Department of Agriculture obtains control of advertising relating to food, drink, drugs, and cosmetics. This will have the effect of materially restricting the sales of those commodities, which it may be assumed, is one of the chief purposes of the proposed law. Advertising does not need such control. The advertising carried in the newspapers and magazines of this country is governed by a proper and strict desire on the part of the publishers to delete any matter which by description or implication misstates the truth. The laws now on the statute books provide sufficient protection against dishonest advertising through the Federal Trade Commission, the Post Office Department, and the criminal statutes.

The definition of "advertisement" covers "all representation of fact or opinion disseminated in any manner." This is so all-inclusive that it is absolutely impossible of enforcement.

The bill attempts to define "truth" with terms which are difficult if not impossible of practical application. Such a definition will cause a multiplicity of misinterpretations, misunderstandings, inconvenience, and persecution.

An unjustifiable new punishment is inflicted on radio advertising and the dealer, in the provision affecting dealers. Publishers, advertising agencies, and radio stations are forced to turn "state's evidence" to avoid being im plicated in the crime.

It is provided that any advertisement of any drug valuable to the public as a palliative for some disease must state how the palliation is effected. It is impossible in many instances to state in what manner the drug acts on the human system and even if the information were available it would mean the advertisement must be too long, with detailed and uninteresting information which would prevent any effective small advertisements.

Under the proposed measure self-medication for simple ailments which otherwise might become dangerous is prevented. This would materially increase the cost of medical treatment, imposing a heavy burden on persons in moderate circumstances. It also would work an irreparable injury if not destruction of many manufacturers, reducing employment and seriously curtailing the purchasing of raw materials from farm, mine, and other manufacturers, and the purchase of advertising and other service.

MULTIPLE SEIZURES

The proposed law gives the administration power to destroy a sound and honest business for an offense utterly trivial in itself. Manufacturers should have the opportunity to correct unimportant infractions of the law. The authority accorded bureaucratic administrators to make multiple seizures would place every business at the mercy of a capricious offer. Manufacturers should be permitted to defend themselves in court.

FACTORY INSPECTION

This provision, although appearing to be voluntary in reality, is mandatory. It enables the building up of a vast inspection bureaucracy to be fastened upon and maintained at the expense of industry. Inspectors can oppress management without restraint as no liability is imposed upon them for any action. Business would suffer the hazard of disclosures by dishonest inspectors of secret processes and formulas, which are important assets developed at great expense and constituting a great element of the property rights of the business.

RIGHT OF COURT REVIEW

This provision fails to guarantee the individual the freedom of review to which he is entitled. On the contrary, it apparently has been drawn for the obvious purpose of preventing such assurance. It makes the right of review dependent upon the suffering by the manufacturer of substantial damage and thus affords no relief to him from arbitrary abuse by the administrative officers of their powers and discretion.

Provisions relating to labeling are impractical and unreasonably burdensome, calling for the statement of many facts of no practical value to the consumer. The vindicate a prejudiced opinion against self-medication, the prevention of which will place the burden of heavy expense upon those in moderate circumstances. This is particularly apparent in the requirement that the preparation must be labeled as a palliative if it is not a specific cure. There must be a plain and conspicuous statement under the bill that a preparation is a palliative, and "how the palliation is effected." How could physicians answer such a question? Practically every prescription is a palliative, inasmuch as there are probably less than half a dozen specific cures in the whole field of remedies.

DISINFECTANTS, GERMICIDES, AND ANTISEPTICS

The bill proposes to set up bacteriological tests showing the action of such preparations, which are impractical and which would give no valuable facts.

It is questionable whether the proposed tests are in agreement with the present state of the science of bacteriology. An attempt is made to give the administrative staff powers which it would be impossible for them to use effectively or fairly to the manufacturers of such preparations, which in reality are drugs and should come under the provisions for drugs.

STANDARDIZATION OF ALL PRODUCTS

This would put superior foods, drugs, and similar merchandise on a level with the lower-grade products by establishing minimum grade requirements. Foods that cannot be standardized must be labeled with the names of ingredients in their predominating order. This will encourage substitution of inferior products. Impractical requirements of dietary foods are made.

Members of the Illinois Manufacturers' Association who object to this bill are not opposed to sound and proper regulation that may constitute a protection to consumers and honest manufacturers. No fault is found with the individuals now in the Agricultural Department who are administering the present act, but it must not be overlooked that bureau staff members often are changed, and any rigid legislation affecting industries which in the country do an annual business of over $1,000,000,000 must be drawn with the utmost care, without prejudice to the industries affected, and with due regard to its farreaching possibilities. On this account our association reiterates its position that the rights of manufacturers, business men, and consumers can best be protected under amendments to the present Federal foods and drugs law, rather than this widely criticised adventure into the realms of new, untried, unsound, and destructive legislation.

BRIEF OF BERNARD LICHTENBERG, NEW YORK CITY, ON BEHALF OF THE ASSOCIATION OF NATIONAL ADVERTISERS, INC.

This statement is filed in behalf of the Association of National Advertisers, Inc., in opposition to certain features of S. 2800, introduced in the Senate of the United States on February 6, 1934, by Mr. Copeland, of New York.

The Association of National Advertisers, Inc., is a nonprofit membership corporation of the type usually known as "a trade association." Its membership includes 271 firms, corporations, and individuals known as "national advertisers", who employ advertising to sell or to assist in selling their goods, wares, merchandise, or services. A list of such advertisers is hereto annexed, marked "Exhibit A."

The authority to file objections to S. 2800 is contained in a resolution adopted at a special meeting of the Association of National Advertisers, Inc., on February 23, 1934, a copy of which resolution is hereto annexed, marked "Exhibit B."

I

Section 7 (b) provides that a food shall be deemed to be misbranded "if it is offered for sale under the name of another food." This provision, apparently innocuous on its face, requires close scrutiny. It is to be seriously doubted whether any official compendium could be produced which could define foods accurately, such as bread, cake, or a breakfast food. Likewise, new foods are coming in constantly from various parts of the world and names vary in different parts of the country for the same food.

Cream of Wheat will serve as a good example of what is meant. Technically. Cream of Wheat is described as wheat middlings; yet in all probability the majority of people viewing wheat middlings in a bin would describe the commodity as Cream of Wheat, because that name has acquired a secondary meaning that is well known to the public. It might be added that Cream of Wheat is a product recommended by physicians in the feeding of infants and invalids and long has been considered as a household staple.

We recommend the elimination of section 7 (b).

II

Section 7 (f) contains the provision that a food shall be deemed to be misbranded (provided it is not subject to section 7 (d)) unless its label contains "the common or usual name of each ingredient such food bears or contains in order of predominance by weight."

We object to this provision because it has no reasonable relation to the protection of the public health, and therefore, would seem to have no place in pure food and drugs legislation. We object to this provision also for the reason that it requires formula disclosure to the great detriment of wellknown manufacturers of proprietary foods in tht United States. It is our belief that the consumer is concerned with the beneficial or harmful effect of the commodities which he buys, and that he is not concerned with a list of ingredients of a particular commodity. We feel that he would merely become confused with a list of ingredients and gain no understandable information. Other sections in the bill give him adequate protection from fraud and adulterated goods.

We feel that the manufacturer who has discovered the secret of a popular or beneficial food should have the right to reap the profits of his invention. That principle is firmly imbedded in the Constitution of the United States. Unquestionably, many proprietary foods representing the investment of millions of dollars could be, and would be, imitated by unscrupulous competitors if the formulae of ethical manufacturers were published to the world on the labels of containers.

The Association of National Advertisers, Inc. has no objection to the filing of proprietary formulae with the Department of Agriculture. It is unalterably opposed to the formula disclosure.

We recommend the elimination of section 7 (f), subdivision 2, in its entirety.

III

Section 8 (a), dealing with the misbranding of drugs, contains the requirement that the labeling indicate that the drug is a palliative "and how the palliation is effected." We are informed by what we consider to be substantial medical opinion that there are many honest compounds on the market which actually alleviate suffering without danger and without great cost, the palliative effect of which is unknown.

It is our view that what the consumer wants to know is whether a product is good and whether it is safe. We do not believe that the Department should be given discretion to determine whether the labeling of a product properly describes the mechanics of palliation when that information cannot be procured from the medical profession.

It is our recommendation that the words "and how the palliation is effected" appearing in section 8 (a), page 10, line 23, be stricken out. It is also our recommendation that the words "and how the palliation is effected" be stricken out of section 9 (b), page 15, line 20.

IV

Section 14 of the bill, relating to "records of interstate shipment" gives to the agent of the Department the right to visit public carriers and customers of manufacturers, and to examine their books. As a practical matter we, as manufacturers, are not directly concerned with carriers, but we are considerably concerned with the inspection of our customers' books by departmental agents whether or not a crime is suspected.

Attention respectfully is directed to a decision of the Supreme Court of the United States (F.T.C. v. American Tobacco Co., 1924) in which Mr. Justice Holmes, speaking for the court, had the following to say:

"Anyone who respects the spirit as well as the letter of the fourth amendment would be loathe to believe that Congress intended to authorize one of its subordinate agencies to sweep all our traditions into the fire and to direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime. * * It is contrary to the first principles of justice to allow a search through all the respondent's records, relevant or irrelevant, in the hope that something will turn up **

Our paramount objection to this section is that it will make our customers (wholesalers and retailers) suspicious of every product investigated, whether or not an illegal act may have been committed.

It is our recommendation that the language in section 14, line 2, 3, and 4, be stricken out, and that the following language be inserted in lieu thereof: "All records relating to complaints filed with the Secretary showing the movement in interstate commerce of any food, drug, or cosmetic complained of, and the quantity shipped ", etc. The new language suggested would limit the right of investigations by departmental agents to good faith undertaking where reasonable cause exists to believe that a violation of the act is taking place.

V

Section 16 of the bill is the controversial section relating to seizures. As we interpret debates that preceded the enactment of the 1906 pure food and drugs law, it is our view that the Congress intended that seizures should be employed to arrest the circulation in interstate commerce of filthy, poisonous, putrid, and adulterated foods. The Department of Agriculture, however, has, in our opinion, far exceeded the intent of the Congress under the present law. It is our recommendation that seizures be limited to adulterated, poisonous, filthy, or putrid foods, and that misbranding be punished by indictment and prosecution. Adulteration is simple to determine. It is different with misbranding where opinions honestly may differ. Because of that fact, the administrative officer should not be given the extraordinary authority to seize misbranded goods,

VI

Section 22 (h) reads as follows:

Hearings authorized or required by this act shall be conducted by the Secretary or such officer or employee as he may designate for the purpose. In formulating regulations under paragraphs (b) and (c) of this section, the findings of fact by the Secretary shall be conclusive if in accordance with law." The final section of that sentence contains, in our opinion, delegation of power which is wrong in principle. It makes the prosecutor and the judge one and the same person. It would usurp, or attempt to usurp, the function of the courts, and is an improper and unnecessary delegation of judicial authority. The findings of fact of the Secretary, as is the case with the Federal Trade Commission, should be conclusive only if such findings accord with the evidence before him, and such findings should be subject to court review.

VII

Generally speaking, it is our view that there is a need for proper legislation designed to eliminate fraud in the manufacture, sale, labeling, and advertising of foods, drugs, and cosmetics. It is likewise our view that additional legislation is necessary to protect the consumer against poisonous, filthy, putrid, or adulterated foods. Federal legislation, in our opinion, should go no further than to consummate those two basic purposes.

EXHIBIT A. ASSOCIATION OF NATIONAL ADVERTISERS, INC., MEMBERSHIP LIST, 1931, CORRECTED 1934

THE ASSOCIATION OF NATIONAL ADVERTISERS

The association is a nonprofit-making membership organization composed of leading buyers of advertising in the United States.

ITS FOUR PRIMARY FUNCTIONS

To provide a clearing house for the exchange of facts, opinions, and experiences on sales and advertising subjects.

To engage in distribution research work of value to a majority or all of the membership.

To protect the interests of the buyer of advertising.

To hold meetings, at which buyers of advertising can become better acquainted with each other and thus advantageously work together to solve common and individual problems.

« ÀÌÀü°è¼Ó »