FOOD, DRUGS, AND COSMETICS

FRIDAY, DECEMBER 8, 1933

UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON COMMERCE, Washington, D.C. The subcommittee met, pursuant to adjournment, in room 335, Senate Office Building, at 10 a.m., Senator Royal S. Copeland presiding.

Present: Senators Copeland, McNary, and Caraway.

Senator COPELAND. The committee will be in order. We have a great many requests from members of the audience, persons who wish to be heard, and I would like to say a word or two about that before we begin. Bear in mind that this is a hearing. This subcommittee cannot settle anything. It can simply prepare a bill to be sent to the full committee, and then it goes to the Senate. We heard yesterday at great length an explanation of the bill. We heard at almost as great length a constructive criticism of the bill.

We have here five groups represented: Food, cosmetics, newspaper and advertising, including broadcasting, drugs and chemicals. Then we have the consumers, because bear in mind that the purpose of this bill, after all, is to protect the public. Let us not forget that in our debates. It is not alone what we can do to help the commercial industry, but what we can do to protect the public against foods and drugs of doubtful propriety.

A great many persons who desire to add to the value of the record wish to present briefs. We hope that desire will become contagious. Bear in mind, too, that if you have occasion in thinking over the hearings to recall things that you wish might have been added to the record, you may send forward to the committee any information in the form of briefs.

Now, I am going to ask those who wish to be recorded as present and to file briefs to submit their names.

(The following parties announced their desire to submit briefs:) W. A. Hines, of Marlow & Hines, attorneys, New York City, Harriet Hubbard Ayer, Inc.

Charles T. Stout, the Delson Chemical Co.

James W. Baldwin, National Association of Broadcasters.

Horace W. Bigelow, American Drug Manufacturers.

John H. Hayes, the Chesebrough Manufacturing Co.; also Stanco

Ink; Daggett & Ramsdell; and Jane Arden.

Bonnie L. Fisher, Coast to Coast Health School.

Hugo Mock, American Manufacturers of Toilet Articles.
Donald J. Burke, George H. Lee Co., of Omaha, Nebr.

Eugene C. Brokmeyer, general counsel, International Beauty and Barbers Supply Dealers Association.

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R. J. Everett, American Social Hygiene Association.

James W. Waldron, National Association of Druggists.

Dr. Kendall Emerson, National Tuberculosis Association and American Health Association.

Mr. Samuel Fraser, National Apples Association.

The Pacific Coast, California, and Oregon Fruit Growers Association.

Senator COPELAND. This does not preclude anybody else sending forward briefs or sending them later to the committee. They will be incorporated in the record.

Mr. Sebastain Mueller, vice president of H. J. Heinz Co., desires to have a few minutes to present the views of that company with respect to this bill.

STATEMENT OF SEBASTIAN MUELLER, VICE PRESIDENT, H. J. HEINZ CO., PITTSBURGH, PA.

Mr. MUELLER. Mr. Chairman, I am vice president in charge of the manufacturing operations of H. J. Heinz Co., Pittsburgh, Pa.

While in our opinion some minor changes in the bill as written are desirable, we wish to go on record as being in favor of some legislation of this nature. It is our feeling that the bill as drawn is not impracticable and unreasonable, because its enactment in its present form would not necessitate any changes in any of our present manufacturing practices.

However, as we view the situation, we would prefer to have a separate bill drawn to apply to food only as we feel it would be a distinct advantage to the food industry to do so. This industry is certainly large enough to deserve such special consideration, and many of its problems are quite foreign and distinct from those of the drug and cosmetic industries.

Our specific objections to the proposed bill are as follows:

First. Section 3, paragraph (d). We feel the use of any artificial coloring in ordinary food products is objectionable and should be prohibited. In it are the possibilities of the greatest deception. It would be a backward step. If custom and practice seem to require the use of such artificial coloring matter in confectionery or some other special line, where the public expects it, exception might be made to cover such usage.

Senator COPELAND. Would you absolutely exclude the coloring matter?

Mr. MUELLER. Only in food products that have no color. I have a suggested amendment here for that. That paragraph should read:

A food shall be deemed to be adulterated if it contains any artificial colors except those foods which have no distinctive color such as candies, confections, ices, delicacies, and desserts, and which are expected by the consumer to be artificially colored or tinted. In the case of these exceptions, only such colors should be used as are determined by acknowledged authority to be harmless.

Second, section 11, insofar as this section refers to standards of quality. We manufacture only prepared food products in which flavor is the most outstanding quality factor. Our products do not lend themselves to fixed standards of quality, so we are not in favor of such a provision.

Senator COPELAND. Would you favor the omission of the whole section?

Mr. MUELLER. I would suggest striking out the words "standards of quality."

Senator COPELAND. In section 11, lines 13 and 14, you would strike out "standards of quality"? Is that right?

Mr. MUELLER. Yes, sir.

Third. Section 13. Because the power granted is too broad. While we welcome any inspection of premises, finished or unfinished materials, containers or labels, we object strenuously to inspection of methods and processes unless there is a definite need for such inspection because of some unusual occurrence where the public welfare demands such action. To empower any Federal inspector, and any local or State health officer working under this proposed law free access to methods and processes at any and all times would be most unfair to the industry and would not serve any public interest.

Senator COPELAND. Your idea is that in an emergency where public health is involved that might be done, but in general you would not suggest that.

Mr. MUELLER. Exactly. I also suggest to strike out the words "methods, processes", and to add to line 24, "to inspect methods and processes if sufficient evidence is available to prove such inspection necessary to safeguard public health.”

Senator COPELAND. Thank you very much, Mr. Mueller. That will be incorporated into the record. I am going to ask the secretary to take a watch and at the end of 15 minutes to indicate by a stroke of the gavel that that amount of time has been exhausted.

I call now on Mr. Charles Wesley Dunn, general counsel for the Associated Grocery Manufacturers of America, and the American Pharmaceutical Manufacturers Association.

STATEMENT OF CHARLES WESLEY DUNN, GENERAL COUNSEL FOR THE ASSOCIATED GROCERY MANUFACTURERS OF AMERICA, INC., AND AMERICAN PHARMACEUTICAL MANUFACTURERS ASSOCIATION

Mr. DUNN. Mr. Chairman, the Associated Grocery Manufacturers of America, Inc., the leading food manufacturers, and also a representative group of the food manufacturers of this country, is the nearest thing we have in this country to being a national association of food manufacturers.

The American Pharmaceutical Manufacturers Association includes manufacturers of ethical pharmaceutical products which are sold for use under the physician's direction.

I also desire to appear at this time on my own behalf as one who has given specialized professional consideration to this law for approximately a quarter of a century.

Mr. Campbell is undoubtedly right in his major premise upon which this bill is based, that the Federal Food and Drugs Act requires revision to cure serious defects in it which are derogatory to the public interests.

The act when it was passed in 1906 was defective. Its defective form arose out of two facts. The first was that it was a compromise bill. The second was that it was new legislation, broadly speaking, from the Federal standpoint.

During the consideration of the Federal Food and Drugs Act in Congress and such legislation was considered beginning with 1879 and continuing to 1906-it was very controversial legislation; and then, aside from the controversy as to whether or not there should be such a law, there was a very great controversy as to what the terms of the law should be. This latter controversy involved an indefinite difference of opinion. So when the law was enacted in 1906 it was seriously defective in form, and the seriousness of its enforcement has amply demonstrated that the act contains other defects which require amendment.

So it is not unnatural that in the 27 years of the life of this act it has been amended five times, and numerous other amendments have been proposed to Congress and are now pending before Congress. Hence the legitimate food and drug manufacturing industry of this country must take the sound position that the act does require certain constructive revision, and that the only objection that can be properly offered to this bill is to the question of its form, where that form is objectionable. There can be no objection, as I say, to the major provisions against false advertising, filled containers, and so forth. The objection as to form falls into two classes-first, the objection against unduly broad or indefinite language; and, secondly, an objection against provisions which are unsound in principle and public policy as such.

I am not going to undertake to analyze the act at this time extensively because, Mr. Chairman, you have stated that you desire to conclude this hearing today and you prefer to have specific amendments and specific objections filed in written form. Therefore, I will cite two illustrations at this time of the objections that we have in mind. First, as to an objection against the form of this bill upon the ground that it is unduly broad.

I will cite as my illustration section 9 (a) on page 12. That section relates to false advertising and defines it as a duplicate of section 6 (a) in respect to the label. This section and section 6 (a) provide, in effect, that a food or a drug or a cosmetic is misbranded or falsely advertised if its label or advertisement or ambiguity or inference creates a misleading impression regarding the product.

My objection, and the objections of the industries that I represent, center around that word "impression." An impression is a state of mind, or a reaction, or a feeling, on the part of the purchaser which may be wholly apart from the facts of the advertisement or the label; any purchaser may have an impression, a misleading impression, regarding a product which arises solely out of his own ignorance or his own stupidity or his own misunderstanding or his own misreading, or whatever the situation may be, wholly apart from the fact as to whether or not the label or advertisement is false in fact. So that as a result of this bill in its present form, the Government would be empowered to condemn a food label, or a food advertisement, or a drug label, or a drug advertisement, upon the ground that it created a misleading impression in the mind of the consumer and regardless of the fact that the label or the advertisement might be wholly true in fact.

Let me give an illustration. You may get the impression for some reason that I am a thief. Whatever the reason for that impression may be, let us assume that it is an entirely erroneous impression.

Upon the theory of this bill I could be put in jail because of your impression. Now, it is perfectly obvious that I should not be condemned for violating a law against thieving unless it is proven in fact that I have stolen. That little illustration goes to the point of our objection against this bill.

We believe the provision here as to both the label and the advertisement should be written in somewhat this form: That a label or an advertisement is false if it is false or injuriously misleading in fact in any material particular relating to the purposes of the act. That is a sound public policy and a sound declaration which is entirely equitable, so far as the industry is concerned, and amply answers the public need against false advertising and false labeling.

Senator COPELAND. Turn to section 6 (a), page 6, for a moment, Mr. Dunn. Suppose that line 24 were changed so that the whole subsection (a) would read: "If its labeling is in any particular false, or no unsupported claims are advanced."

Mr. DUNN. I feel, Mr. Chairman, that that is not, perhaps, the best form of a statement of public policy for this law. The present law provides against a false or misleading label in any particular. That law has been in force for some 27 years with satisfaction in that respect.

Senator COPELAND. Then you would be satisfied to use the language of the present act in the light of the decision that the court made regarding it?

Mr. DUNN. I believe, Senator Copeland, that so far as false advertising is concerned, the amendment should run somewhat in this fashion; should condemn an advertisement as false where it is false or injuriously misleading in a material particular relating to the purposes of the act.

Of course, if this is a material particular it should not be considered. If it is not related to the purposes of the act it should not be considered. But if this touches in fact the consuming public of this country it should be condemned.

Those are sound principles of food and drug law control which have been laid down for years in this country.

Now, I go to the second broad objection against this bill, namely, the insertion of provisions which are unsound in principle and public policy in our view, and I will cite an as illustration of our objection the provision which runs throughout this bill from start to finish giving the Secretary of Agriculture practically unlimited administrative power which has the full force and effect of law.

Now, that provision reverses completely the public policy of the present act and, broadly speaking, reverses the public policy of the food and drugs law of this country as it has existed down to this time. It also is directly contrary to the public policy expressed by the British Food and Drugs Act and the Canadian Food and Drugs Act. For example, the public policy of the present act is substantially this: To set up a general requirement in the act with which the manufacturer must comply; and, on the other hand, to give the Secretary of Agriculture administrative power to enforce that requirement; but when he comes into court the burden of proof is upon the Government to establish that the law has been violated. That is the present public policy of the present act and it is the public policy that has existed