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public health. I think they are too mild as a penalty. For minor misbranding they are much too severe.

I call your attention to this factor. The larger the company the more there is the mathematical certainty that at one time or another they will be guilty of some technical violation of the act. The number of grapefruit in a case may not be correctly stated. Bottles are now made by machine almost universally and they are not always uniform.

Senator COPELAND. Mr. Mock, if this suggestion made by the doctor this morning about minor offenses were adopted, the suggestions that you are making now would not need to be carried into effect, I assume?

Mr. Mock. I would withdraw them, Senator.

In conclusion I just want to say this: I came here with a great deal of fear and trepidation, because I think it is a problem of tremendous complexity to draw a bill for three separate industries. The association that I represent has no pride of opinion. It will cooperate with you in this bill or any other bill, or in the amendment of the present bill.

In conclusion I just want to say this: I see no reason under heaven why, if you are not permitted to lie on the label or a package, you should be permitted all the lying you want in your advertising or over the radio, and I do not care whether the restrictions are put in this act or with the Federal Trade Commission or in any other way. I think anything that makes for cleaner advertising will help an industry and also the public.

Senator COPELAND. The next witness will be Mr. John S. Hall, representing the Flavoring Extract Manufacturers Association, and others.

STATEMENT OF JOHN S. HALL, 1261 FIRST NATIONAL BANK

BUILDING, CHICAGO, REPRESENTING THE FLAVORING EXTRACT MANUFACTURERS ASSOCIATION OF THE UNITED STATES, THE NATIONAL ASSOCIATION OF MANUFACTURERS OF FRUIT AND FLAVORING SYRUPS, AND THE NATIONAL MANUFACTURERS OF SODA WATER FLAVORS

Mr. Hall. Mr. Chairman, the members of the Flavoring Extract Manufacturers Association of the United States consist of manufacturers engaged in the manufacture, production, preparation, packing, distribution, and sale of packaged food products, flavoring products, common household remedies, and patent and proprietary preparations for culinary purposes sold to the retail trade. The members of the National Association of Manufacturers of Fruit and Flavoring Syrups consist of manufacturers engaged in the manufacture, production, preparation, packing, distribution, and sale of crushed fruits, fruit, and flavoring syrups intended for use in the dairy, ice cream, confectionery, soda fountain, and stillbeverage industries for further manufacturing purposes.

The members of the National Manufacturers of Soda Water Flavors consist of manufacturers engaged in the manufacture, production, preparation, packing, distribution, and sale of soda water flavors and concentrates intended for use in the still and carbonated beverage industries for further manufacturing purposes.

In the opinion of our members the food, drug, and cosmetic industry of the United States is threatened with the most revolutionary and confiscatory legislation ever imposed upon such an important and essential industry. The proposed revision of the Federal Food and Drugs Act of 1906 now before this honorable committee suggests that the American people abandon the reasonable regulatory policies under which the industry has thrived in this country.

The Constitution of the United States and the constitutions of the various States have well defined the right of sovereignty as the basic or organic principle of law, and from this source is derived the authority to enact, construe, administer, and enforce laws. The theory of our Government, National and State, has always been opposed to the granting of unlimited power to any officials. The legislative, judicial, and executive branches of our Government are all of limited and welldefined power. The legislative branch is empowered to enact laws. The judicial branch is clothed with power to interpret and administer all laws and to outline methods of enforcement. The executive branch has the authority to supervise, enforce, and execute all such laws. In order to prevent a conflict of the various authorities the courts have time and time again held that legislatures cannot delegate to officials, boards, and commissions blanket power to enact a law or to declare what the law shall be or grant unrestricted discretion in applying a law. The intended law must be complete in itself and designed to accomplish a general public purpose, and must expressly authorize designated officials to provide rules and regulations for its enforcement within definite valid limitations specifically set forth in the law and in accordance with the Constitution.

A number of the speakers yesterday referred to arguments presented in 1906 when the present law was adopted. It is well to direct the attention of this committee and the American industry to the profound wisdom exemplified by the author of the Federal Food and Drugs Act of 1906, which was known as the Heyburn Bill in the Senate. I quote Senator Heyburn (Cong. Rec. vol. 40, pt. 3, p. 2721):

If there is anything that this bill, and especially that this section of it (sec. 4), does not provide, it is for the fixing of standards by anybody. If there is anything that is not provided for or permitted under this bill, it is that the Chief Chemist, or the Chief of the Bureau of Chemistry, shall have power to denounce anything under any circumstances or to place a ban upon anything, or, as I stated yesterday, to place the ban of disapproval upon anything. He is given no such power. He is simply the agent of the courts to gather testimony upon these questions for the purpose of being used at the trial in the court room and nowhere else.

This bill fixes no standard upon anything; it authorizes no officer to fix any standard. It provides that the courts, and the courts alone, may determine whether or not an article is contraband under the provisions of this act. The object in avoiding any possible construction that might be held to be fixing a standard was that the bill might never come to conflict with the pure food legislation of the various States. The States have established different standards, and they have a right to do so. Inasmuch as those standards vary, it would be impossible for an act of Congress, a general law, to avoid some conflict with some of those State laws if you should undertake to fix standards.

I again quote from page 2723 the following statement made by Senator Heyburn:

I wish to have it understood that this bill does not permit the Chief Chemist of the Bureau of Chemistry to fix standards or to punish anybody, or to brand his goods as fraudulent, under any circumstances. It does not permit the Secretary of Agriculture to do so. It does not permit anyone except the court, after a

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trial by a jury, if the party shall appeal to that right, to brand the goods as being fraudulent or obnoxious to the provisions of this bill.

A vivid contrast will be apparent from a study of the foregoing principle and the tenor of the drastic amendments now contained in the proposed revision of the Federal Food and Drugs Act of 1906. A condition no less than confiscatory is threatened in the food, drug, and cosmetic industry if the tenets of the above legislation are carried into the enforcement of this new bill.

I propose to direct your attention to definitive interpretations of the various sections of this bill, and the manner in which it will affect the industries I represent:

Section 2 in part provides that only the Secretary of Agriculture shall have authority to promulgate legal definitions and standards for the words "food, drug and cosmetic”, and the labeling and advertising thereof.

Sec. 3. Adulteration of food.- A food shall be deemed to be adulterated (a) (1). If it is or may be dangerous to health. (2). If it bears or contains any added poisonous or added deleterious substances prohibited or in excess of the limit of tolerance prescribed.

Objection to the proviso "if it is” or may be dangerous to health.” No reasonable interpretaion provided, and the Secretary of Agriculture is sole arbiter of fact.

SEC. 3. (b) (1). If any valuable constituent has been in whole or in part abstracted therefrom; or (2). If any substance has been mixed or packed therewith so as to increase its bulk, or weight, or reduce its quality or strength, or create a deceptive appearance.

Objection to language so broad and loose that it may be subject to harmful interpretation, especially the reference to "deceptive appearance."

SEC. 4. Adulteration of drugs.-A drug shall be deemed to be adulterated (a): If it is or may be dangerous to health under the conditions of use prescribed in the labeling thereof.

Objection to the proviso "if it is" or "may be dangerous to health." No reasonable interpretation provided, and the Secretary is sole arbiter of fact.

SEC. 4 (b) (1). If any valuable constituent has been in whole or in part abstracted therefrom (4) if any substance has been used or packed therewith so as to increase its bulk or weight, or reduce its quality or strength, or create a deceptive appearance.

Objection to the provision as set forth under section 3 (b) (1).

Sec. 5. Adulteration of cosmetics.--A cosmetic shall be deemed to be adulterated (a) if it is or may be injurious to the user under condition of use prescribed in the labeling thereof, or under such conditions of use as are customary or usual.

Objection to this provision as set forth under section 3 (a), and section 4 (a).

SEC. 6. Misbranding, general. A food, drug, or cosmetic shall be deemed to be misbranded (a) if its label is in any particular false, or by ambiguity or inference creates a misleading impression regarding any food, drug, or cosmetic.

Objection to the provisions contained herein that the Secretary of Agriculture is arbiter of "inferences, amibguous or misleading impressions."

SEC. 6 (b). If in package form it fails to bear a label containing (1) the name and place of business of the manufacturer, packer, seller, or distributor.

Objections to the place of business of the manufacturer” requirement. A strict enforcement of this provision would result in sectional distinction, and un-American disparities.

Sec. 6 (c). If any word, statement, or other information supplied on the label to avoid adulteration or misbranding under any provisions of this act, is not prominently placed thereon in such manner as to be easily seen and in such terms as to be readily intelligible to the purchaser and user of such articles under customary conditions of purchase and use.

Objection: The Secretary of Agriculture is given sole power to determine if any word, statement, or other information is prominently placed in such a manner as to be readily seen, and in such terms as to be readily intelligible.

Sec. 7. Misbranding of foods.-A food shall be deemed to be misbranded (a) if its container is so made, formed, or filled as to mislead the purchaser.

Objection: The Secretary allocates to himself the exclusive right to delegate the manner in which all food products shall be packaged for sale.

Section 7 (a, f, and g) in part provides that food is to be deemed misbranded if such food is not defined in such terms as the regulations specify, or if it is represented as a food for sale for which no definition or identity has been prescribed by regulations, and if the label fails to bear among other things the name of each ingredient thereof in the order predominant by weight. Objection to the provisions contained herein that the Secretary of Agriculture has authority by regulation to require a complete formula disclosure of all food products. No provision is made for the manufacture and sale of food products under a distinctive name. It also excludes the right of manufacturers to sell food products under a distinctive name. This practice has been in effect for the past 25 years, and no serious objection nor harm has come to the consumers of such products by the privilege of establishing distinctive name products; on the contrary it has acted to their complete protection.

Sec. 9. False advertising: (a) An advertisement of a food, drug or cosmetic shall be deemed to be false if in any particular it is untrue or by ambiguity or inference creates a misleading impression regarding such food, drug or cosmetic. (b) An advertisement of a drug shall also be deemed to be false if it included the name of any disease for which the drug is not a specific cure, but is a palliative, and fails to state with equal prominence an immediate connection with such name that the drug is not a cure for such disease; or any representation directly or by ambiguity or inference concerning the effect of such drug.

Objection to the fact language used in the proposed provision is so ambiguous and provides such gross criminal sentences for even misleading impressions” and the construction of what is proper advertising, labeling, etc., and what is not, all written in such a loose and broad fashion that it is completely confusing in view of the present American standards.

Sec. 10 (a). If the Secretary finds that the presence of an added poisonous or added deleterious substance in or on food or cosmetics is or may be injurious to health, taking into account other ways in which the consumer or user may partake of or be exposed to the same or other poisonous or deleterious substances, then the Secretary shall by regulations promulgated after notice and hearing prohibit such added substances in or on food or cosmetics, or establish tolerances limiting the amount therein or thereon, to such extent as he may deem necessary to prevent such injury to health.

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Objection: The Secretary of Agriculture is solely authorized to determine what ingredients contained in food products shall be considered deleterious to health. A question of such broad nature and of such paramount importance to the public at large should hardly be left to one individual.

Sec. 11. The Secretary is hereby authorized to fix, establish, and promulgate definitions of identity and standards of quality and fill of container for any food. Whenever the Secretary deems that for the purposes of this act any such definition or standard should be established for any food, he shall give notice of a proposed definition or standard and of the time and place of a public hearing to be held thereon not less than 30 days after the date of such notice. After such public hearing the Secretary may fix, establish, and promulgate a definition or standard for such food. The definition or standard so promulgated shall become effective on a date fixed by the Secretary, which date shall not be prior to 90 days after its promulgation. Any such definition or standard may be amended or repealed after notice and hearing as hereinbefore provided, and if amended or repealed the amendment or repeal shall become effective in the manner and at the time hereinbefore provided.

Objection: The Secretary of Agriculture is not required under this provision to follow the recommendation of America's largest industrial bodies as given in public hearings with reference to legal definitions and standards for food. Again sole discretionary power is allotted the Secretary of Agriculture to interpret as he sees fit.

Sec. 12 (a). Whenever the Secretary finds that the distribution in interstate commerce of any class of food, drugs, or cosmetics may, by reason of conditions surrounding the manufacture, processing, or packing thereof, be injurious to health”,

“to hold a permit conditioned on compliance with such regulations."

(c) Any officer or employee duly designated by the Secretary shall have access to any factory or establishment, * * and denial of access for such inspection shall be ground for suspension of the permit until such access is freely given by the operator.

Objection: Notwithstanding the admitted high standards now maintained by American food, drug, and cosmetic manufacturers it is proposed to saddle upon American industry a yoke in the form of a permit system, which is probably the most dominant and all-inclusive yoke ever aimed at American commerce. SEC. 13 (a). *

officers or employees duly designated by the Secretary,

are authorized (1) to enter any factory, warehouse, or establishment in which food, drugs, or cosmetics are manufactured, processed, packed, and (2) to inspect

methods, processes, finished and unfinished materials, containers, and labels there used or stored.

Objection: Regardless of the financial hazards involved, manufacturers of food, drugs, and cosmetics will be compelled at the arbitrary discretion of the Secretary of Agriculture to submit to inspection at any time and disclose perfected methods and processes. Section 12 (6) (1) the wildest injunction power ever invoked under any statute will empower the Secretary of Agriculture to deal out to American manufacturers summary trial and punishment in immediate court procedure.

Sec. 15. Investigation and institution of proceedings:

Objection: Permits any minor employee of the Department of Agriculture as well as any health, food, or drug official of any State or Territory to bring proceedings against any manufacturer, and further does not require the Secretary of Agriculture to give notice before institution of any seizure or injunction except in criminal cases.

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