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W. R. C. Smith Publishing Co., 1021 Grant Building, Atlanta, Ga:
Southern Hardware and Implement Journal.
Automobile Trade Journal.
Yachting, 205 East Forty-second Street, New York, N.Y. Mr. PARLIN. This includes the names of practically all magazines with large advertising revenue.
The National Publishers Association voices the hearty approval of legislation to protect health and also voices its hearty approval of legislation, to prevent false advertising of foods, drugs, and cosmetics.
Leading magazines actively worked for the Food and Drugs Act of 1906. They would today, I believe, be actively working for this bill if it had been confined to phases needful to protect health and to stop false advertising.
Mr. Chairman, you have stated that you did not write the bill and that many amendments will be made to the bill.
The CHAIRMAN. As I said, if I had my way, they would be made. You must remember I have colleagues on the committee.
Mr. PARLIN. We will accept the amendment.
It is quite possible, Mr. Chairman, that after you have rewritten the bill, if your colleagues allow you to do so, we may be as strongly in favor of it as we are now opposed to it.
Since advertising for the first time faces the imposition of a Federal criminal statute, Ï beg leave before offering objections to particular clauses, very briefly to state a few facts concerning advertising which I think are essential to have in mind in interpreting the specific objections we offer to this bill.
Manifestly, selling and advertising and manufacturing have grown up in this country hand in hand. Advertising is not a mere adjunct to business, it is a vital part of business. It furnishes the forward look, the imagination, the enthusiasm. It expresses the hopes, the aspirations and the executive thinking of concerns, both great and small.
Advertising not only prepares the way for sales, it vitalizes every part of the business. Furthermore, advertising sets up for concern a high standard of quality from which the manufacturer dare not depart.
In these standards the manufacturer comes to take great pride, and out of this fact, more than any other, has come the marvelous evolution to better products which has been one of the outstanding features of our day and generation.
What got the cat out of the sugar barrel, converted bulk goods into packaged form, and changed unsanitary food shops into neat, attractive, and wholesome grocery stores? With all due deference to good work done by Federal and State Governments, I believe I am quite right in asserting that advertising was the largest factor in producing this transformation. When manufacturers attractively advertised the sanitary and appetizing qualities of their packaged foods, the public would no longer tolerate unsanitary and unappetizing sales methods.
What produced the finest food factories in the world? Again, with due credit to good work by Federal and State Governments in insisting that all factories live up to minimum standards, may I claim primary credit to advertising for producing exceptional factories including many of the finest food kitchens in the world?
So, I might go on from industry to industry, and in the end I would feel justified in declaring to you as my belief that the greatest single factor in making American economic life what it is today has been advertising
May I also say that as advertising has grown powerful, it has improved in character and tone? Forty years ago a large part of national advertising would not measure up to modern standards. Today only a small portion deserves elimination through criminal statute.
There is no popular demand to curb the great advertisers. They are not in the Chamber of Horrors. Their brand names are household words. Among all classes, advertised products are held in respect and their producers are looked upon as benefactors.
No person is compelled to buy advertised products. The great American public of its own free will and accord gladly and enthusiastically buys advertised products because advertised products give excellent value at reasonable prices.
Forty years ago the wise person read advertising with suspicion. He had sent a dollar and been buncoed. The wise person today reads advertising discriminately and believingly. He is not deceived by a bit of imagery; he does not readily fall for quackery; he quickly detects a false note, but fundamentally he reads product advertising with confidence. He has not been buncoed.
. He has not been buncoed. He has bought advertised products and found them satisfying.
May I tell you why advertising has improved and why the readers of advertising quite consistently obtain worthy products? It is not the result of policing. It has been brought about by the very simple fact that no manufacturer can afford to advertise a product for which he cannot win repeat customers and, at least in most lines of merchandise, no manufacturer can win repeat customers unless his product has merit and a reasonable
price. May I also say one other thing. For the span of more than a generation, a considerable number of publications have made a sincere effort to protect their readers against unworthy products and untruthful advertising. These publications will lose little if any
revenue by legislation that puts the Chamber of Horrors out of existence. If that was all that Senate bill 1944 was designed to do, these publications would not today appear in opposition to the measure.
It is because this bill has provisions which they believe will damage the whole structure of national advertising and will bring serious harm to customers, to manufacturers and to publishers and which they believe will throw thousands out of employment, that they join their voices with those of other publicity interests to express their most emphatic protestations against Senate bill 1944 as it is now drawn.
The two features of Senate bill 1944 to which above all others we emphatically object are:
(1) The definition of false advertising (Section 9 (a)-False Advertisement).
(2) The provision authorizing the establishment and promotion of grade A, grade B, and grade C on foods.
The authority for this is not explicitly stated in the bill but is to be found in a combination of_three sections, namely: Section 11 (Definitions and Standards for Food), section 22 (Voluntary Inspection), section 21 (Publicity).
May I first discuss the false advertisement? We refer to the definitions presented this morning by Mr. Dunn, which reads:
An advertisement of a food, drug, or cosmetic shall be false or incuriously misleading in any material particular relating to the purposes of the act.
The words in the bill "in any particular” appear to us dangerous. These words, so to speak, order a judge and jury to convict for any inaccuracy, however slight and however immaterial the error may be.
The words "by ambiguity or inference creates a misleading impression” are much too vague and sweeping for a criminal act.
Such phrases are particularly harmful when applied to advertising. It is almost impossible to write an advertisement which someone may not say gave him a misleading impression. Does the picture of a log cabin give an impression that Towle's maple sirup is made in or near a log cabin? Does the picture of a Dutch woman give an impression that Old Dutch Cleanser is made in Holland?
It is beside the point to say that “in any particular” and “by ambiguity or inference creates a misleading impression” are to be found in a Supreme Court interpretation, first because the court interpretation applied to labels, and advertising presents very different problems than labels.
Second, because the courts started with misleading and got to ambiguity and influence. If the court starts again with ambiguity and influence where would they get to next time?
It is not enough to say that loose phrases have been in previous laws. We are likely now to be
confronted with an attempt to enforce some of these loose phrases. Copy service, as every publisher knows, is a difficult problem—there are many border-line decisions. Matured experience is needed to apply even a definite regulation an there is, we believe, no possibility that substantial justice will be done under so vague a clause as “by ambiguity or inference creates a misleading impression.”
Out of years of experience with copy service and with a sincere desire to cooperate in clearing up advertising abuses, we urge you to
limit this statute for the present, at least, to a simple statement that "false" means "false or injuriously misleading in any material particular relating to the purposes of this act."
The question of whether a statement is true or false is a question of fact which can be accurately determined in a court.
Let us try this definition for at least 2 years until advertisers get used to the idea of Government regulation of advertising copy and until experience proves that definition to be inadequate.
Some directors are easily frightened into voting against advertising appropriations. We ask you to do nothing which may unduly alarm them.
If the clause be adopted as it now reads, we are certain to have numerous advertising appropriations negatived because of uncertainty.
All this is serious, for when sound advertising is canceled manufacturers are deprived of their right to expand their markets, publishers are deprived of advertising revenue, farmers have their markets for raw materials curtailed, workers are thrown out of employment, consụmers fail to have their appetites whetted for wholesome and tasty products, and no one is benefited.
The present Food and Drugs Act deals only with labels. Let us remember that labels and advertising are two very different products.
Labels give information for use after purchase. They are, except for an occasional trade mark or an advertising slogan, cold, factual, informative, unimaginative. On the other hand, advertising is warm, it appeals to appetite, to imagination. It creates desire and impels to action.
The reduction of advertising to cold, factual statements which would pass the rigid censorship of literal minded chemists and physicists would kill advertising; For advertising would be too dull to read and manufacturers would not pay to run it.
May we suggest in all sincerity as our belief of what is really in the best interest of the Nation at this time that you pass legislation which adequately protects public health, and that you let legislation on advertising stop there.
Thereby advertisers will be relieved of a serious threat and legitimate advertising can begin again to do its powerful bit toward promoting business, rescuing people from unemployment, and restoring national prosperity,
Again I would like to speak of the establishment of grade A, grade B, and grade C.
SECTION 11. We recommend that "minimum" be inserted before “standards” (line 13-14) and before “standard” (lines 16, 17, 21, 22, and 25). In order that you may see clearly just what our objections to these sections are, may we first describe to you just what, as we understand it, the Department of Agriculture plans to do under these sections and then state our six objections to the plan.
The bill, as we understand it, makes it possible to establish for canned fruits, canned vegetables, and other food products, grades above substandard, and we understand that it is the intent of the Department of Agriculture, if this bill passes, to establish grade A, grade B, grade C, and requires every manufacturer to mark his grade on every can and package.
We wish to include the word "minimum" wherever the word "standard” occurs in the bill. As a matter of fact, we are not finicky on the word, but anything that will change this from the range of standards to a single standard is quite satisfactory to us.
The words of the McNary-Mapes amendment would be quite satisfactory in that respect to us.
To understand its full significance, this provision must be considered in connection with section 22 on Voluntary Inspection and section 21 on Publicity. In connection with these two sections, the grading provision plans an amazing invasion into the food, drug, and cosmetic industries.
Under a previous act, the Department of Agriculture established A, B, and Č grades for several lines of food products and then attempted to set up a system of optional grading in the canning industry. Under this system, at the request and expense of the packer, inspectors were placed in a few canneries throughout the period of the pack, and the owners of these canneries were authorized to label these products “U.S. Grade A” (U.S. Grade B or U.S. Grade C, as the case might be) instead of merely Grade A (Grade B or Grade C). We are informed that the Department offered, if a certain small percent of the pack would agree to this optional grading, to provide Government publicity to popularize the U.S. grades used by these packersin other words, through Government-sponsored advertising to exhort. the public to select merchandise on the basis of U.S. Grade A (U.S. Grade B or U.S. Grade C) instead of by manufacturers' labels or advertised brands.
This plan, as we understand it, was blocked by the fact that according to law, the packers' payments were covered into the Treasury and so were not available to defray the continuing expense of the service, and Congress refused to vote further appropriations for this inspection service except on the condition that the packer should no longer be entitled to place the U.S. Grade on his label.
It seems to us obvious that the intent of the “Voluntary Inspection Service" section of this bill is to reauthorize the discarded “Optional Grading” plan, this time no longer hampered by, the necessity for applying to Congress for appropriations to maintain it. The money is to be obtained from canners and manufacturers, receipts from inspection "fees" in this bill now being made available to the Secretary without further appropriation by Congress.
The CHAIRMAN. You may be interested to know that I was opposed to that bill.
Mr. PARLIN. In its outcome that is fine. Do you want me to go on?
The CHAIRMAN. Surely.
Mr. PARLIN. That is fine, Senator. We are in hearty accord with you in getting that one out.
The CHAIRMAN. I was referring to the previous legislation. Mr. PARLIN. Yes. Thank you. We think you did a real service. We were asleep at the switch and did not do anything about it.
The CHAIRMAN. I held up the bill for 2 years and if I had had your support I might have been more successful.
Mr. PARLIN. You will have it from now on, from the magazines.
The CHAIRMAN. That is the trouble with you men, you are always awake on occasions.