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The objections to the bill are that:

It is altogether too sweeping, and the powers given the Assistant Secretary of Agriculture are dictatorial in that there is no recourse to the courts;

The “Secretary's” opinion is to be based upon medical opinion, and this means the American Medical Association, which in practice would discriminate against all other systems of healing;

The term "drug' as defined in sec. 2 (B) is so inclusive as to take in anything and everything that they might choose to include in their textbooks; thereby they would gain supreme power.

The bill should be indefinitely postponed, as it is a clever method whereby the American Medical Association can later sweep through the State legislatures, gaining similar State authority by which they could wipe out the new schools of healing. The amendment which we enclose with this letter should be included if it is likely to pass.

We wish to also call your attention to the enclosed printed matter, especially the brochure upon which the American flag is printed. The magazine, Sanipractic, tells of the medical freedom meeting spoken of in this letter. Respectfully yours,

NATIONAL SANIPRACTIC ASSOCIATION, Inc. By JOHN E. LYDON, President.

S. 1944 (OR TUGWELL BILL) Amend section 2, subdivision (B) in line 11, after the word "Animals”, insert: Provided, This Act, shall not affect the practice of sanipractic, or osteopathic physicians, or doctors of chiropractic, food science, mechano-therapy, psychotherapy, physcultopathy, or naturopathy: Provided, further, That the practitioners of these systems prescribe in accordance with the art, science, and philosophy of the curriculum of their respective systems.

BRIEF OF CLARENCE E. ELDRIDGE, VICE PRESIDENT, YOUNG & RUBICAM, INC

At the time of the public hearings, before the Senate subcommittee, on Senate bill 1944, Senator Copeland invited interested parties to submit their views and suggestions in written briefs for incorporation in the record of the hearings.

This brief is being submitted pursuant to that invitation.

Young & Rubicam, Inc., is an advertising agency, located in New York City. It places advertising in magazines, newspapers, on billboards, and on the radio to the extent of several million dollars annually. Prominent among its clients are several of the largest and best-known food manufacturers in the United States. However, the suggestions and views presented in this brief are our own and are not presented on behalf of, nor as representing, necessarily, the views of any of our clients.

Let us say at the outset that we are opposed to the abuses that have existed, and that now exist, in advertising; that we subscribe whole-heartedly to any intelligent attempt to promote “truth in advertising.”.

As has been pointed out by the sponsors of the pending bill—and as has been pointed out many times by people whose business is advertising—the falsity of some advertising tends to lessen the belief in, and, therefore, the effectiveness of all advertising. From a purely selfish standpoint, therefore—from the standpoint of self-preservation and of the perpetuation of our business—we are opposed to false and misleading advertising.

But that is not the only reason for our opposition. We believe the public is entitled to protection against the fraudulent and misleading representation of goods offered for sale, not only advertised but unadvertised products, and not only foods, drugs, and cosmetics, but all products offered to the general public.

No one, we believe, can advance any valid argument as to why the public should not be protected against the “misbranding” of foods, drugs, or cosmetics. And, again, we subscribe without reservation to the contention that false advertising of those products-no less than false branding of them--should be prohibited.

The point at which we diverge from the philosophy of the proposed bill as presently drafted, and from the reasoning which its sponsors, use in justifying its present provisions, is this:

We believe that such false advertising—both on the label and elsewhere-can be effectually prohibited without at the same time jeopardizing the business or the interests of any legitimate and honest manufacturer, publisher or advertiser.

That the proponents of the present bill do not agree with that belief is, we think, fairly obvious both from the language that they have used in drafting the “misbranding” and “false advertising” provisions, and from the arguments that they have used to support the language used. Their position is, quite evidently, that the public needs protection—that they are unable to devise language that will protect the public and at the same time protect the honest manufacturerand that since the interests of the public are paramount, the public must be protected at all events, even although in protecting the public, the interests of honest and legitimate individuals and businesses must suffer. Additionally, of course, they minimize the seriousness of the threat to honest advertising—because they say that the law will not be enforced as written, but will be enforced only in part, so that its penalties will seldom fall on those who do not merit them.

To restate our position: We agree that the public is entitled to, and needs, protection from false advertising of foods, drugs, and cosmetics; we agree that the public interest is paramount; we agree, therefore, that if both the public interest and legitimate business cannot be protected at one and the same time, the interests of such business must give way to the protection of the public generally. But we by no means concede that the one cannot be protected and the other adequately safeguarded at the same time. And we contend that the protection of the honest advertiser should be contained in the language of the statute itself, and not depend on anything so illusory and untrustworthy as a promise that the law will not be strictly enforced.

In support of our belief that a provision that can be drawn that will protect both the public and the honest advertiser, we suggest the following definition of false advertising" which we believe will prevent all the abuses which it is the avowed purpose of the so-called Tugwell bill to prevent; and which, at the same time, will make possible the honest exploitation of legitimate foods, drugs, and cosmetics.

"An advertisement of a food, drug, or cosmetic shall be deemed to be false if (1) it is in fact untrue as to the ingredients, the harmlessness, or the therapeutic, nutritional, dietetic, or health value of such food, drug, or cosmetic; or (2) if by inference fairly and reasonably drawn from the advertisement, it is misleading as to the ingredients, the harmlessness, or the therapeutic, nutritional, dietetic, or health value of such food, drug, or cosmetic; or (3) if either by its statements or its implications it materially misrepresents the product which is the subject of the advertisement.

“An advertisement of a food, drug, or cosmetic shall be deemed to be false if it unfairly or untruthfully disparages a competitor or the product of a competitor; and for the purposes of this section it is immaterial whether such disparagement be by direct statement or by inference reasonably drawn from the advertisement.

Nothing in this section shall be construed or interpreted to mean that any advertisement of a food, drug, or cosmetic shall be deemed to be false or misleading merely because such advertisement contains claims of the kind recognized at common law and by the court as 'trade-puffing'.

With your permission we should like to discuss:

1. Wherein the present language of the Tugwell bill, in its zeal to do the one thing-namely, protect the public against false and misleading advertising-fails inexcusably to do the other important thing-namely, protect the honest manufacturer and advertiser.

2. The adequacy of the substitute language we have suggested to accomplish the purposes of the bill without punishing the innocent as well as the guilty. I. THE OBJECTIONABLE FEATURES OF THE TUGWELL BILL IN ITS PRESENT FORM

It is not our purpose to discuss all of the respects in which we think substantial revision of the Tugwell bill is desirable. We prefer to confine our discussion, in the main, to those provisions which relate directly to advertising and branding.

In the first place, we think we can in this way help to conserve the time of the committee. Moreover, we are familiar with advertising, as we are not familiar with many of the other subjects covered by the bill. We can speak from experience, as specialists, on the effect of the proposed bill on advertising, whereas we could claim no such special knowledge with respect to the other subjects.

Nevertheless, before proceeding to amplify our position with respect to the definition of “misbranding” and of "false advertising”, we wish merely to

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enumerate a number of serious and fundamental faults which seem to run through the entire bill:

1. It seeks to confer upon the Secretary of Agriculture the power to make the law, to enforce the law, and then to judge the alleged violations of the law. It thus seeks to combine in a single administrative official, legislative, executive, and judicial powers.

2. In many respects the bill fails utterly to define an offense-merely conferring upon the Secretary of Agriculture (by virtue of his authority to make "regulations”) the power to define the offenses which the bill presumably is intended to prohibit.

3. Thus not only administrative but law-making power is clearly sought to be delegated by Congress to an officer of the executive arm of the Government.

4. It seeks to substitute a hearing before the Secretary of Agriculture for the judicial process by which alleged violators of the law are entitled to be tried. As to many acts prohibited by the bill, not only are the findings of fact by the Secretary of Agriculture “conclusive if in accordance with law" (whatever that may mean) but, seemingly, the only case in which the courts would have any authority to reverse the Secretary would be those in which the judgment of the Secretary was so palpably wrong that it could be said to be capricious and an arbitrary and flagrant abuse of his discretionary powers. No trial de novo is provided for. The Secretary's findings may be contrary to the preponderance of the evidence-yet if there is any evidence to support his findings, we understand the bill to mean that the finding cannot be disturbed by the courts.

5. It deprives the accused of a trial by jury for an alleged criminal offense. It deprives him of “due process of law.” It reverses the time-honored presumption that a man is innocent until he has been proved guilty. It reverses the equally time-honored tradition that where one is being tried for a criminal offense, the burden is on the Government to prove guilt; this bill seeks to shift to the defendant the burden of proving his innocence. This attempted shifting of the burden of proof is one of the more glaring iniquities of the entire bill.

6. The bill likewise seems designed to abolish another time-honored safeguard in our criminal jurisprudence: To wit, that it is better that 99 guilty persons go unpunished than that 1 innocent person should be punished.

Let us now return to the specific subject matter which this brief is intended to discuss, namely, the provisions with respect to “misbranding" and "false advertising.

There are two major respects as to which the definition of "false advertising" in the Tugwell bill is objectionable—when read in the light (1) of the abuses which the bill is designed to correct, and (2) of the avowed purpose of the spokesmen for the bill, in promoting it:

1. It makes no attempt to differentiate between misleading statements (or implications) as to things affecting the public health, on the one hand, and harmlessly misleading statements with respect to such things as color, appearance, convenience of preparation, flavor and the like. In other words, it seeks to outlaw not only harmful misstatements-misstatements that concern matters germane to a Pure Food and Drugs Act, but all other matters, however unrelated they may be to the protection of the public health, and however immaterial or harmless they may be.

(Let us make clear at this point that we are not defending the morality or the ethics of false statements in any advertising, on any subject matter. What we are saying is that the primary purpose of grouping foods, drugs, and cosmetics in a single bill is that they all affect the public health; that therefore the advertising claims (for a food product) that should be regulated in a pure food and drugs act are those that relate to health. This, as we understand it, is a bill to protect the public health-not a bill to regulate advertising: For obviously, if it were a bill designed primarily to regulate advertising, it should regulate all advertising, or at least the advertising of all of the necessities of life, such as clothing, fuel, transportation, electricity, building materials, real estate, and many other things. And since this is a bill primarily to protect the public health, each of its provisions, including the one pertaining to advertising, should be read with that purpose in mind; and each provision should be subjected to the two tests: Is this provision adequate to protect the public health, as to this particular matter; and, does it actually go further than the necessities of the case require, and prohibit acts which are not at all germane to the purpose of the law?)

2. It makes no attempt to differentiate between an inference justifiably drawn from the reading of an advertisement, and an inference that is utterly unreasonable.

In offering this criticism, we are assuming, of course, that the word "inference" is properly used in the bill and that it is not, as has been supposed by some of the commentators on the bill, inaccurately used as a synonym for “implication.” Since “inference" is what the reader understands an advertisement to mean, and has no necessary relationship to what the advertisement says or implies, it is obvious that the advertiser has no control whatever over what inferences any given reader may draw from his advertisement. And quite as obviously, therefore, he ought not to be in a position where he can be put in jail, and his business ruined, because of some utterly unwarranted inference that may be drawn from a perfectly fair and truthful advertisement. The only thing that he should be held responsible for is inferences that are reasonably drawn from his advertising. And he should be held responsible for those kind of inferences.

The first of these two points seems to us to be of tremendous importance. If we are right in assuming that the purpose of the bill is to safeguard the public health and to protect the public against misrepresentation, then the bill should be so drafted that it does that, and nothing more. If, on the other hand, it is the unavowed but actual purpose of the sponsors of the bill to go further than that, if it is their purpose, under the guise of protecting the public health, to attempt to exercise broad regulatory powers over all the advertising of food, drugs, and cosmetics—then that fact should be frankly admitted and universally known.

When we seek to ascertain just what is the purpose of the bill—at least as it relates to branding and advertising—we find seemingly conflicting evidence. On the one hand, we find the language of the bill itself, which seems to contradict the avowals of Mr. Tugwell, Dr. Campbell, and the others. It seems to say that this is a bill not only to protect the public health, but to bring all advertising (of food, drugs, and cosmetics) under the absolute power of the Secretary of Agriculture. It seems to say, and does say, by the inclusiveness of its language, that “tradepuffing" is to be illegal and criminal; it says that any misstatement, however irrelevant, however innocent, however unimportant, however unrelated to the public health, shall be a criminal offense.

The sponsors of the bill disavow any such intention. Their position, as we understand it, is this:

1. Horsetail-weed has been sold as a cure for diabetes; horse liniment has been advertised in such a way as to imply to the less sophisticated reader that it is a cure for tuberculosis. The present law does not provide adequate protection against such misrepresentation. Therefore, additional legislation is needed.

2. It is not possible to anticipate all the cases that may arise. On this point Mr. Tugwell has said recently (Editor & Publisher, Sept. 6, 1933): “If the language of a statute is carefully restricted to just those cases of wrong-doing which its drafters can anticipate, the discovery of loopholes in the law is inevitable, and the difficulties of its enforcement will be multiplied manyfold.”

3. Therefore, it is impossible to follow the well-recognized precedent of so drafting a criminal statute that it specifically and clearly and without ambiguity defines the offense to be prohibited. However, they say, this is unimportant. Even though the law itself is so worded as to condemn harmless and innocent, as well as wrongful, acts, and even though no manufacturer or advertiser can know in advance with any certainty what is permissible and what not-the honest advertiser will find his protection in the fairness with which the law will be enforced. The policy of the Department of Agriculture has always been fair and liberal in the past; there is no reason to suspect that it will be any different now. Therefore, there is no reason for alarm on the part of anyone except wrongdoers.

4. Mr. Tugwell and Dr. Campbell have both stated repeatedly that the bill if passed, will not prohibit "trade-puffing." The Department of Agriculture

“ does not consider trade-puffing illegal; neither, they say, does the Supreme Court of the United States. And therefore, in spite of the fact that the bill as drawn does without a doubt make trade-puffing illegal, no concern need be felt on this point-because the Department of Agriculture will not enforce the law so as to punish or prohibit “the prideful boasting' that has always gone by the designation 'trade-puffing."

5. And, finally, they contend that “the weight of a strict statute, intelligently enforced, will seldom fall on others than those who merit penalties." (Tugwell, Editor and Publisher, Sept. 13, 1933.)

If we accept at their face value all of these protestations, as of course we should, if we give to the authors of the bill credit for complete ingenuousness and sincerity,

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their arguments in support of the present language still fail utterly to be convincing. In fact, some of their contentions are so opposed to the whole philosophy of our criminal procedure as to be utterly amazing.

Let us discuss their contentions seriatim:

1. We agree whole-heartedly that if horse-tail weed is being sold on the representation that it is a cure for diabetes—whereas in fact it is not-such misrepresentations should be prohibited and punished.

2. We agree that it is impossible to anticipate the specific cases that may arise; but it is not impossible to define the offense in general language that will give adequate notice to everyone as to what is and what is not illegal-and that will provide no loopholes for the wrongdoer. We grant that the enforcement of any law would always be easier if we were to confer blanket powers upon the enforcer to decide, first, what the law shall be, and second, what parts of the law he will and what parts he will not, enforce. But we think that mere ease of enforcement is not the ultimate desideratum in the framing of criminal statutes.

3. We can think of no doctrine more subversive of law observance than the one implied in this contention. It says in so many words that the law will not be enforced—but that only such parts of the law as happen to conform to the current views of the Secretary of Agriculture will be enforced. We have seen the extent to which the nonobservance and nonenforcement of certain laws have contributed to a serious disrespect for all law. Care should be taken to draft laws in such a way that they prohibit only those things that are intended to be prohibited —and in such a way that they can be observed and enforced as written. And the fact that the officers to be charged with their enforcement may be very paragons of intelligence, rectitude and impartiality does not alter this fundamental truth.

4. The argument that neither the Department of Agriculture nor the Supreme Court of the United States sees anything illegal or harmful in the “prideful boasting” that has gone under the name “trade-puffing”—and that therefore the proposed bill is not intended to affect “trade-puffing -seems to us a little less than wholly sincere. It is very true that the Supreme Court has recognized “trade-puffing” and has found nothing in it that is illegal either under the common law or existing statutes. But since “trade-puffing” usually is not strictly and literally true “in every particular-since to that extent it is false and potentially misleading—it does come within the scope of the condemnation of the language of the Tugwell bill. And does Mr. Tugwell or Professor Campbell mean to imply that because the Supreme Court has held trade-puffing to be unobjectionable in the absence of any law making it illegal, that Court would hold similarly in construing a statute that does by its very inclusiveness make it illegal?

5. Here, it seems to us, is where the utterly untenable philosophy of the sponsors of the bill finds it most significant expression. Read this amazing argument: “the weight of a strict statute, intelligently enforced, will seldom fall on others than those who merit its penalties.

Waive the requirement of “intelligent enforcement.Assume, if you will, that its enforcement will be beyond reproach. TH still admit, by clearest implication, that sometimes—if only “seldom—its weight will fall on those who do not merit its penalties. Better that the innocent should sometimes suffer, than that a wrong-doer should ever escape. This, indeed, is a new concept in American criminal jurisprudence.

We do not believe the American people are ready for any such philosophy as the sponsors of the bill are contending for. And we do not believe that the adoption of any such philosophy is necessary in order to end the abuses that we all want to see eliminated.

The contention has been advanced, by the sponsors of the Tugwell bill, that honest advertisers have nothing to fear; and it has been implied, quite unmistakably, that any manufacturer or advertiser who opposes the bill-or any of its provisions is thereby lining up with those who are willing to sacrifice the public health to private profits.

Let us see whether this contention will stand up under rigid scrutiny.

We have compiled an exhibit of food advertisements taken from the December issues of the leading women's service publications, the most reputable and ethical of all publications, to see what effect, in actual practice, a strict enforcement of the proposed terms of the Tugwell Bill would have. And we are of the opinion that there is scarcely a food advertisement in the December Good Housekeeping,

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