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Now, let us suppose that the physician had stuck to his diagnosis, and the inspector had not been familiar enough with matters to call in the diagnostician. There is no need to show what might have happened. Even though the manufacturer had gone scot free the unwarranted publicity would have ruined his business. Is it necessary to give unlimited power on publicity of products which may be adulterated rather than those which are definite? With that statement, I will be glad to leave the other sample.
STATEMENT OF ALFRED T. FALK, DIRECTOR OF RESEARCH AND
EDUCATION OF THE ADVERTISING FEDERATION OF AMERICA, NEW YORK CITY
Mr. FALK. The Advertising Federation of America, which I represent, is a national organization consisting of about one hundred local advertising clubs in all parts of the country, 15 national advertising associations interested in special phases and branches of advertising, and about 400 individual companies which are sustaining members of the Federation and which include owners of advertising media, advertising agencies, and large national advertisers.
The Advertising Federation wholeheartedly approves the objectives of Senate bill 1944 as stated in its title. It is recognized that these objectives, if they are effectively attained, will bring not only greater protection for the public health but will also strengthen and increase the usefulness of advertising as a means for selling goods.
The Advertising Federation of America has for more than 20 years been an aggressive proponent of the “truth in advertising?' movement and welcomes any constructive practical legislation which will help to increase the believability of advertising.
The degree of progress which has been made in advertising ethics during the past 30 or 40 years is amazing, despite the fact there still are some bad practices here and there. Not much more than a generation ago almost every advertisement could safely be assumed to be false or at least greatly exaggerated and many a business man refrained from advertising in order to safeguard his reputation. With the passage of years all this has been completely changed and advertising is now used as one of the best means of establishing a manufacturer's reputation for integrity and the quality of his goods. Much of the credit for this tremendous improvement is due to the organized efforts of advertising men in policing their own industry, largely through educational means.
Senate bill 1944 aims to correct some of the advertising abuses which still exist and we can but applaud its stated intent.
Speaking only of such portions of this bill as affect advertising, we see a number of flaws in drafting the individual provisions. These defects are so serious that we are inclined to question whether the bill in its present form does not contain greater possibilities for harm than for good. But rather than oppose the passage of a bill under this title, we submit that a number of modifications are necessary. Because of its wide general membership, including persons in all phases of business, the Advertising Federation is in a position to approach the matter from the angle of the consumer and small retailer, as well as that of the publisher and the national manufacturer.
Referring specifically to section 9 of the bill, covering false advertising, we find that the provisions are so vague and sweeping that hardly any advertiser may know positively whether his advertising is within the law. Besides being extremely indefinite, this section of the bill provides that an advertiser may be severely punished for honestly and frankly stating a complete truth, a situation which should never be possible in an intelligently drafted law.
I shall take up the individual paragraphs. Paragraph (a) contains the exceedingly vague långuage which makes an advertisement false if in any particular whatsoever it, by ambiguity or inference, creates a misleading impression. The objectionable nature of this language is so obvious that I hardly need to point out what is wrong with it. For the sake of brevity in this presentation I merely offer a substitute. I recommend that paragraph (a) of section 9 be revised to read as follows:
An advertisement of a food, drug, or cosmetic shall be deemed to be false if in any material particular it is untrue or deceptive.
To my mind this seems to cover the matter entirely. However, any other language equally definite would be satisfactory.
În paragraph (b), clause (1) contains a provision which will require that the advertisements of many well-known and beneficial remedies must carry the words "not a cure" with equal prominence and in immediate connection with the name of the disease for which it is a palliative for. Though the drug itself be generally recommended by physicians everywhere for use in connection with such disease, the manufacturer of this remedy is by law required to frighten possible purchasers from buying it.
Clause (a) of paragraph (b) provides that an advertisement shall be deemed to be false if it includes any representation concerning the effect of a drug which is contrary to the general agreement of medical opinion. The volume of argument against the phrase "general agreement of medical opinion” has already grown to such proportions I need not add to it. To sum it all up, the phrase may be characterized as ridiculous. My suggestion for a substitute for clause (a) is as follows:
Any representation concerning such drug which is not supported by scientific or medical test.
In paragraph (c) which is designed to protect the public against dangerous self-medication, it seems that the restriction on advertising is too severe.
As it now reads, the paragraph prohibits any advertisement of a drug representing it to have any effect in the treatment of a list of diseases. It should be adequate if the word "curative" be inserted before the word “effect" which would permit the advertiser to mention the name of a disease, but would prohibit him from making any representation that the drug has a curative effect upon it. There are many
other defects in this bill as now written, but because I represent officially only the Advertising Federation of America, I have confined my specific criticism to the advertising section of the bill. Many of the criticisms which were voiced at this hearing pertain to features of the bill which would work great harm upon members of our organization in their individual businesses but these matters have already been so ably presented that in order to conserve time, I shall not refer to them specifically. In a general way, however, we wish
to enter a protest against the excessive use of the third person singular pronoun in connection with the enforcement provisions. It appears that we have seldom had the privilege of studying such an ambitious outline for granting autocratic power to an executive officer of the United States Government. This feature, I feel sure, need not be further criticized in this brief for it does not seem possible that a Senate committee would refer a bill to Congress without greatly changing it. There are many places in the bill where the language can just as well be made specific as to what Congress intends to prohibit rather than leaving the matter to the discretion of an official.
Our greatest immediate concern in the whole matter is the possible effect on economic recovery in this country. There is not the least doubt that the passage of this bill without modifications would so greatly discourage manufacturers and sellers of foods, drugs, and cosmetics from attempting to advertise their wares that the volume of their advertising would be reduced tremendously. This in turn could not help but radically shrink the volume of business in this field which would naturally result in substantial lessening of employment and profits.
We respectfully urge, Mr. Chairman, that your committee give favorable consideration to the specific points referred to above as well as the many excellent constructive suggestions which have been made by others during the course of this hearing.
Senator COPELAND. We will now hear Mr. L. B. Thompson, general counsel for the Proprietary Association.
STATEMENT OF H. B. THOMPSON, GENERAL COUNSEL FOR THE
Mr. THOMPSON. Mr. Chairman, my name is H. B. Thompson, and I am general counsel for the Proprietary Association. That association has among its membership those who manufacture the greatest portion of the so-called patent or proprietary medicines sold and distributed in the United States.
I was delighted yesterday, Mr. Chairman, when you disclaimed the authorship of this bill and lack of knowledge of its author. I have had experience with you, Mr. Chairman, and I have found you to be uniformly fair—when you were health officer of the city of New York, having due regard not only for the public service but for people who might be engaged in industry.
Senator COPELAND. I want the record to show that I have not given a retainer to Mr. Thompson.
Mr. THOMPSON. No; I am the only one that has a retainer in this particular matter.
Let me say at the outset that I heartily concur in the statement of Professor Beale, who suggested that, in his opinion, the only manner in which the present bill could be properly amended was to strike out all after the enacting clause.
I have been for a good many years interested in legislative matters. I have been seeking, if possible, to find the pathogenesis—or etiology, perhaps I had better say—in this bill. I have examined the authorities. I read some of the law, but I never have in my life read a bill or heard of a bill so grotesque in its terms, evil in its purposes, and vicious in its possible consequences as this bill would be if enacted.
Senator COPELAND. Outside of that it is a good bill?
It was not until yesterday, Mr. Chairman, that I was able to find where the idea may have originated from any report of judicial legislative proceedings, anywhere, that would warrant the writing of a bill of this character. But after listening to Mr. Campbell I think I have discovered where they have found the judicial precedent. That is in the delightful story of Lewis Carroll concerning the trial of the Knave--under the chapter “Who stole the tarts.' Probably the proximity of the Sylvian Theater to the Department of Agriculture where they played Alice in Wonderland brought the thought for the preparation and introduction of this bill. You will recall that in that case the king announced for the twentieth time that they should proceed with the trial, and the Queen interposed with the suggestion that the verdict should come first and the trial afterward.
Now, I am not going to discuss many facts here. (Laughter.)
I think you misunderstood. If you had permitted me to finish my statement you would not have laughed. I mean I am not going to discuss the question of fact but rather to discuss the bill from the standpoint of the law.
There is a material difference between discussion of facts and a discussion of the law of the subject. This bill, as stated by more than one of the speakers, has departed in principle from everything which may be found anywhere in legislative procedure or judicial announcement, except, as I have already stated, as it may have been found in Alice in Wonderland.
It is proposed to grant such extraordinary power to the Secretary of Agriculture, which, in turn, means to the Drug Administration, that it may be well, Mr. Chairman, that we find out just about how far we should go. I take it that in approaching this bill the legislators, the Members of the Congress, will first inquire as to the necessity for the legislation; that, secondly, they will inquire, in the event they shall conclude there is necessity for legislation, as to the form in which the legislation shall take place; and, third, they will then very carefully investigate the powers which they may exercise, and, again, investigate how far those powers may be extended.
I think, Mr. Chairman, that I can well state the line of demarkation in the language of Judge Ranney of the State of Ohio, the outstanding figure of all time in that State as a jurist. In the case of C. W. & 7.
7 Railroad Co. v. The Commissioners of Clinton County, 1, O.S. 77, Judge Ranney said:
It is always legitimate to insist that any legislative enactment drawn in question is void, either because it does not fall within the general grant of power to that body, or because it is expressly prohibited by some provision of the Constitution.
Judge Ranney further said:
The pure distinction, therefore, as between a delegation of power to make the law, which necessarily involves an authority or a discretion and as to its execution to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.
And that question, Mr. Chairman, confronts this committee and the Congress of the United States squarely in determining what is to be their attitude in respect to the extraordinary grants of power that
are read into this skeleton bill all the way from the beginning to the end; whether the Department is to be permitted to exercise a discretion as to what the law is to be. Without taking time to go into details, this grant of power can be found in a dozen places in the bill.
Now, it may be worth while to find out what the courts have said in this respect. You have been told a number of times when the present Food and Drugs Act was enacted, 1906; and the amendment, so-called, was enacted in 1912.
For months Congress gave attention to a bill which was prepared then, as now, by the Department of Agriculture, in which there was submitted then, as now, a so-called "chamber of horrors.” After almost a year of consideration of that bill, in August 1912, the committee, upon the suggestion of Mr. Swagar Sherley, a former Member of the House of Representatives, reported an amendment dealing with the subject of therapeutic value.
Since the enactment of this law, as shown in the last notices of judgment issued in November 1932, 20,350 cases have been concluded in which I would say at least 99 percent of them were in favor of the Government. And I understand that before this series of more than 20,000 notices of judgment there was another series that preceded it in which there was an equal number-someone says there was not. Then, I withdraw that statement. Anyway, nearly a thousand notices of judgment in a year have been announced by this Department under the terms of the old act, which they say now is full of defects.
As against that there have been exhibited a few isolated instances, and if one reads this bill understandingly and with full possession of the facts, they will find what they have written in this bill the particular matters that have been covered in the few lawsuits which they lost.
They come here with a statement regarding "Bred Spred”, after they had failed to prove it as an unwholesome article of food. They say "he did not exactly say it was a jam. He did not exactly say it
“ was a preserve.” The manufacturer did not sell it as a preserve or a jam. He sold it as “Bred Spred”, and the verdict was for the respondent.
Why did they not call the attention of this committee to the fact that what they are aiming at is not merely “Bred Spred”, but such substances as Kaffee Hag, Lee & Perrins Sauce, and Postum, and such preparations of that kind? It might well be said of Kaffee Hag that it looks like coffee and that it tastes like coffee. Still, they do not propose that the manufacturers of such products may not sell them under a distinctive name without disclosing the method or process by which they are made.
Senator COPELAND. Mr. Thompson, in that particular matter, Kaffee Hag is sold, is it not, openly as a substitute for coffee?
Mr. THOMPSON. Oh, granted. But, look, at the bill, where, if not sold under a recognized name, then the ingredients must be declared and the process may be required. The Secretary is empowered to demand additional information by regulations that may be imposed.
The CHAIRMAN. Is there any distinction between the mistaken impression bread spread would make to a housewife, where she thought that it was jam, and the sale of a substitute coffee which particularly put out as something which is a substitute?
Mr. THOMPSON. No.