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under the present act, but if we are to throw that statute into the wastebasket we must start all over again; we must lose the benefit of what these men have given us.
Now, I will repeat that I think some action may be called for, but let us take the old statute and plug out the holes that have been found in it and make the protection of the consuming public just as full and complete as is possible.
We certainly wish to cooperate with you to the best of our ability to do so.
The CHAIRMAN. Thank you very much, Mr. Robb.
Mr. ROBB. May I say—there are just one or two other things I have here. I will not be long, Senator. There are just one or two other things that I want to say.
Now, if you will turn to page 31 you will find there this statement, which I think to be a very dangerous provision:
The findings of fact by the Secretary shall be conclusive if in accordance with law.
The CHAIRMAN. You remember that that has been modified by the Department itself.
Mr. Robb. Yes, but even as modified I do not think it goes far enough.
You recall, Senator, that in the provision respecting the Interstate Commerce Commission and the Federal Trade Commission, these bodies are made fact-finding bodies and their findings of fact shall be conclusive-when? When supported by substantial evidence. That ought to be the provision here. All that this language requires of the secretary is that he should observe the formalities. Even though his decision may represent only 10 percent of the evidence, his findings would be absolutely conclusive, and under this language. If the secretary is to be made the fact-finding instrumentality then his decisions should be supported by substantial evidence.
The CHAIRMAN. If they were unreasonable would they not be subject to court review?
Mr. ROBB. Under this language, and I speak after thorough study of this section, it would be impossible for the court to upset the decision; whereas, if the provision is that the findings shall be supported by substantial evidence, then the court will have power to weigh.
I may say as a member of the National University Law School Faculty and as a lecturer on the jurisdiction and practice of the Federal Trade Commission for many years, I have had occasion to consider very carefully this very question and I feel that the findings of fact of the secretary are to be conclusive there should be a requirement that they be supported by at least substantial evidence.
Now, just a word in conclusion. I hope I may have the opportunity to supplement my statements with a brief. The CHAIRMAN. We will be glad to receive the brief.
Mr. Robs. I want to say that the industry, and I speak particularly of the efforts of my own organization, have been trying for years to standardize food and drugs products. We have made a lot of headway and I think Mr. Campbell will bear me out when I say that conditions are far better today than they were a little while ago.
Here is a final thought that I want to leave with the Committee. We are going to have a code now, and with this added instrumentality
if we are given the opportunity we will show you in a short time that the industry is not only on a par with all the others, but is a model.
I thank you.
The CHAIRMAN. Thank you, Mr. Robb.
BRIEF ON BEHALF OF THE UNITED MEDICINE MANUFACTURERS OF AMERICA
1. Unless the bill takes the form of an amendment to the existing Food and Drugs Act, following the general plan of the original statute, all the decisions of our Federal courts construing and applying that statute during the last 27 years will be set at naught, with complete sacrifice of benefit from the thoughts and ideas of some of the country's best legal minds respecting the problem of regulating the manufacture and sale of food and drug products. For example, such terms as “therapeutic” and “curative” should be preserved in the new statute because the courts have been at great pains to define them with exactness.
2. The bill should preserve the public's right to self-medication by relieving manufacturers of drug products of the necessity of showing that their claims are in accord with the general agreement of the medical profession. In enacting the Food and Drugs Act of 1906 the Congress carefully safeguarded that right, as observed by the Supreme Court speaking through Justice (now Chief Justice) Hughes:
Congress deliberately excluded the field where there are honest differences of opinion between schools and practitioners.” (Seven Cases vs. U.S., 239 U.S. 510, 517.)
3. Multiple seizures of drug products at widely scattered points, subjecting manufacturers with limited resources to prohibitive expense in making their defense to charges of misbranding, should be prohibited except in flagrant cases. Any provision in the bill for court review of administrative decisions, in cases of honest differences of opinion between a manufacturer and the Food and Drug Administration as to the therapeutic powers and uses of a product, will be an empty right to the average manufacturer unless the bill makes it possible for that manufacturer to preserve his business pending such court review. The creation by the Congress of some independent board, whose summary decisions on appeals from administrative rulings of the Food and Drug Administration would be binding upon both the Government and the manufacturer unless and until set aside or modified by a court, would protect all the parties in interest.
4. Inasmuch as the interest of the medical profession necessarily conflict in some degree with those of manufacturers of prepared medicines, and since the profession under the leadership of the American Medical Association is publicly committed to the theory that all self-treatment is inherently dangerous unless under the supervision of some physician, the average physician naturally and unconsciously is more or less prejudiced against the sale of prepared medicines to laymen. Therefore, and as the Secretary of Agriculture would depend upon the medical advisers of the Food and Drug Administration in his decisions regarding the permissible scope of self-treatment in general and of some drug or medicine in particular, the decision of questions of therapeutic worth or medicinal value should be committed by the Congress to some board or body independent of medical influence. The courts, mindful of the fact that physicians are interested parties and subject to unconscious prejudice in questions involving self-medication, have consistently declined to hold that self-medication is dangerous unless practiced under conditions which give rise to reasonable apprehension as to contagion and the spread of disease.
5. As to advertising independently of the package, as in newspapers and magazines, both the Federal Trade Commission and Post Office Department are now actively censoring false and misleading claims respecting foods, drugs, and cosmetics; and in deciding questions of medicinal value those two Federal agencies are not governed entirely by medical opinion, as is the Food and Drug Administration, but weigh all considerations in a judicial manner. Existing laws curb and punish willful violators.
Since the Federal Trade Commission was created it has had occasion to pass upon about 1,800 cases involving false and misleading advertising. The fact that more than 80 percent of those cases involved commodities other than foods, drugs or cosmetics indicates that the prepared medicine industry is less given to extravagant advertising than are some other industries. Certainly the experience of the Federal Trade Commission reveals no necessity or occasion for singling out manufacturers of drug products for the imposition of additional or special handicaps with respect to advertising.
The prepared medicine industry neither asks nor expects special favors from Congress, but it respectfully protests against unnecessary discrimination. If and when Congress in its wisdom concludes that all advertising should be under Federal censorship, manufacturers of packaged medicines will be fully prepared to observe both the letter and the spirit of such general requirements as may be imposed. All that the industry asks is that it receive like treatment with other industries.
6. Some manufacturers already voluntarily disclose their active ingredient formulas but there is strong objection in the trade to such a requirement in the new bill.
It is felt that to require public disclosure of the quantities of ingredients and the publication of working formulas, thereby inviting trade piracy and jeopardizing valuable and honestly acquired good will, would impose an unnecessary handicap that would be to the ultimate disadvantage of the purchasing public.
7. No valid objection is seen to a requirement in the new bill that each manufacturer of foods, drugs, and cosmetics file with the Food and Drug Administration information as to his experience and responsibility, as well as to the nature of such products as he is selling or expects to sell to the public. But no necessity or sound reason is apparent for a permit system that, in effect, would give to the Secretary of Agriculture power to compel every manufacturer to agree to any terms the Secretary might impose, regardless of what might be their arbitrary or unduly harsh nature, upon penalty of the destruction of his good will pending judicial relief if he resisted.
The United Medicine Manufacturers of America, Inc., a trade association composed of representative manufacturers throughout the United States, hereby pledges its full and unconditional support to any measure that will add in any degree to the protection of the public health and the advancement of the public interest. All that the industry asks of the Congress of the United States is that due consideration be given to its rights and that the good will of honest manufacturers be not subjected to danger of complete destruction merely because of the propensities of a few willful violators. Respectfully submitted.
CLINTON ROBB, Counsel. The next witness is Mr. C. C. Parlin, of Philadelphia, representing the National Periodical Publishers. Mr. Parlin.
STATEMENT OF C. C. PARLIN ON BEHALF OF THE NATIONAL
Mr. PARLIN. Mr. Chairman, I am Charles Coolidge Parlin, manager of the Division of Research of the Curtis Publishing Co., representing the National Publishers' Association, which is composed of about 150 publications with an aggregate circulation of 50 million. I submit herewith a list of the members.
The CHAIRMAN. It will be included in the record.
AVENUE, NEW YORK, N.Y., OCTOBER 3, 1933
Architectural Record, 119 West Fortieth Street, New York, N.Y.
House and Garden
Woman's Home Companion
Saturday Evening Post
seventh Street, New York, N.Y.
Millinery Trade Review
McGraw-Hill Publishing Co., 330 West Forty-second Street, New York
National Provisioner, 407 South Dearborn Street, Chicago, Ill.
National Underwriter, A-1946 Insurance Exchange South, Chicago, Ill.
Furniture Record and Journal
Advertising and Selling.