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It is said that the phrase "ambiguity or inference” will make it impossible for the copywriter of the advertising agency to know just what to write. In the first place, this does not apply to the copywriter of the advertisement but to the label. In either event when one writes a label or advertising copy out of imagination, instead of the well-established facts from products, one would get into trouble. Business itself has long fought against this colorable infringement of private trade marks; for example, those who seek to crawl up behind the henhouse on a dark night instead of walking through the front door in open daylight to steal a chicken. All forms of fraud are generally attempted under all possible means for concealment. This is the reason Sherlock Holmes has been so long exceedingly popular among readers of detective stories.
No one who seeks to tell the truth and the full truth about a product in getting up a label need have any fear of this section. Those who attempt otherwise will run their label into trouble.
A study of a long line of decisions of the courts relating to trade marks show how the protection afforded against infringement has not so much been against the open adoption of one man's trade mark by another but rather through trying to make a new trade mark look as much like an established trade mark as can be done without getting into trouble under the trade mark law.
Years ago Chief Justice Hargis, of the Kentucky Court of Appeals, in giving protection to the Avery Plow trade mark said (Browne on Trade Marks, second edition, p. 25):
The trade-mark and the trade-reputation pirate always undertakes the difficult task of sailing between the Charybdis and Scylla of the law, but he should never be allowed a successful voyage. If on the one hand he escapes the rock by not infringing through the instrumentality of the trade mark itself, he will not, on the other, if courts of equity are true to the principles of their existence, be allowed a safe passage by the use of any means of deceit or false representation known to the inventive brain of man.
Is not the school-girl complexion, the growth of a mother's child, and the health of the mother and her husband entitled to the same protection in legislation which was given years ago to the manufacturer of plows?
Subsection B of section 6 is all right in fact, except that it introduces authority for the Secretary to follow such honest and trade practices in the canned-goods industry as now exist in the establishment of regulations under this section.
No one can object to subsection C which requires the labeling under the act to be plain and prominent.
Section 7 applies only to the misbranding of foods. This introduces the provision that a food for which a standard or definition has been adopted under the law and which in its labeling purports to be such a food, must comply with the standard of the food or tell where any different from the standard.
In cases where no standard for a food has been adopted, then the standard would be trade practice and consumers' understanding.
The last sentence in subsection E provides:
The secretary is hereby authorized to prescribe by regulations requirements for such further information on the label thereof as he may deem necessary to protect the public from deception.
If there is any objection on the part of anyone to the Secretary doing this, and if it is not considered that such regulations would come within the general provision of the act applying to regulations the words "in the manner provided for in section 11" can be added after the word “regulations.”
Section 8 applies only to drugs. Cosmetics and food industries, except as they may sell their products for medicinal use, are not concerned.
Northwest Daily Press Association adopted resolutions against the bill, and have sent a copy to those who advertise, or have advertised, in these journals. There are 34 members of this association whose names appear on the circular. One “whereas” in this circular states:
Whereas any movement that would prohibit and prevent normal self-medication, depriving persons of small means who cannot afford the high cost of medical care, any means of relief whatsoever, is contrary to public policy and is not for the general good.
No one who reads this bill can agree with the statement from the Northwest Daily Press Association. Instead of restricting the poor
. man in the purchase of medicines the bill seeks to protect the poor man in such purchases by having him told in the label and advertising the truth and the whole truth about the medicine, and further protecting him from the unknowing use of dangerous drugs and at all times from the unregulated use of narcotics.
In subsection 8 there appears,
If its labeling bears any representation, directly or by ambiguity or inference, concerning the effect of such drug which is contrary to the general agreement of medical opinion.
Here again the question is whether we shall restrict the law to only such crimes against human health as are practiced in the open daylight and through the open door, or whether also the law shall seek to get at those who break a window, jimmy a door in the nighttime, or dig secret tunnels under and to the vault of the treasury of human health.
Those in the proprietary-medicine industry who have fought so hard to prevent infringement of existing trade marks, and who have relied on the rule of law laid down by Chief Justice Hargis, should not complain if consumers wish the same rule of law applied in relation to the descriptive terms and phrases used through which the consumer purchases medicine. In short if this rule of law already applies at the earnest insistence of able counsel who have protected trade marks of proprietary remedies from infringement, why should it not apply to the other words and phrases which describe what is in the trade-marked product and what it will do?
If there is any objection to the authority conferred upon the Secretary in subsection D of section 8, which provides,
That the Secretary may by regulation exempt any drug from any requirement of this paragraph if he deems such requirement unnecessary for the protection of public health. then insert after the word "regulation” the words "in the manner provided in section 11.". This would give all concerned opportunity to be heard; in this particular case would give the consumers' organizations opportunity to be heard.
Subsection E of section 8 again provides:
The Secretary is hereby authorized to prescribe by regulations requirements for such further information on the label of such drug as he may deem necessary to protect the public health.
Here, again, after the word "regulations”, if there is any question in anyone's mind about conferring too much authority insert the words "in the manner provided in section 11."
Section 9 applies to advertising. In this section is the real reason for the opposition to the bill. The director of the advertising agency and the copy writer are afraid of the words “ambiguity and inference.” But the fraud which the law seeks to break up is not open-front-door fraud else it could be quickly gotten, as far as newspapers and periodicals are concerned, under the fraud sections of the postal laws.
When in charge of the food and drug control work in Kentucky, I recommended, and the legislature of 1910 passed, a provision relating to the misbranding of medicinal preparations as follows:
If it be labeled or branded, or in any manner represented as so, so as to deceive or mislead the purchaser or consumer with respect to the purity, quality, or medicinal value;
I drew up that section following a year and a half as a special assistant to the United States Attorney General in cases arising under the Federal Food and Drugs Act of June 30, 1906. I considered each and every word with care at the time. In drawing it up practically all of the decisions of the courts relating to adulteration and misbranding of foods and drugs were reviewed; trade marks and patent decisions were reviewed. Each word was chosen with the relationship to some decision previously handed down by the courts in such matters or related matters.
Whether the word “misleading" can bring behind it more of judicial interpretation than the words "ambiguity and inference.” I have not looked into. But where the word “misleading” and the word
ambiguity” and the word "inference” or any other word is used there should be no doubt in the mind of any man or woman that the law plainly intends to provide against any form of deception in the labeling and advertising of foods, drugs, and cosmetics. And he or she who seeks to tell the whole truth and nothing but the truth will be surprised to find so much truth in connection with foods, drugs, and cosmetics, and so much need for this truth in the great selling field of human life that they will wonder why they ever turned to, or depended upon, in the past their imaginations, and their seeking to attach a colorable untruth to a product when, if there is any merit in the product, there is so much real truth to be told.
Subsection B of section 9, which provides:
An advertisement of a drug shall also be deemed to be false if it includes (1) 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 and in immediate connection with such name that the drug is not a cure for such disease; or (2) any representation, directly or by ambiguity or inference, concerning the effect of such drug which is contrary to the general agreement of medical opinion.
In recommending a drug as a palliative for disease, the consumer, let us say, a poor man, the unforgotten man, will be informed that it is not a cure, so that the poor man will be put on notice and not led to trust the all important machine to inadequate relief and mending and false security.
The list of diseases given in subsection C of section 9 are dangerous diseases. They represent that army of as yet uncontrolled diseases which are constantly warring against the health and life of children and grown-ups every day and everywhere. Earnest and able, welltrained men and women with utmost devotion in work and purpose in medical, biological, and bacteriological centers are constantly day and night working and working comparing, discussing, and confirming results, to lessen the volume of diseases and the toll in human lives which this army of diseases constantly takes. There can be no honest objection from anyone who understands this provision of the enactment into the law.
A tack in a biscuit is promptly followed with a demand for damages and a civil suit if damages are not paid. Foods, medicines, and cosmetics containing harmful ingredients which people cannot taste or see, or labeled and advertised with false claims, would run against the same drastic damage suits if the facts were as equally plain as the tack in a biscuit.
It is very easy in the technical and obtuse things connected with science and finance to fool enough people all of the time to make it very profitable.
State and Federal inspection laws are the only protection consumers have unless a professional firm made up of chemists, lawyers, and physicians should be organized to investigate and bring suits for damages where the medicine did not cure and could not cure, where the cosmetic harmed the complexion, or where the food did not have the growth-promoting properties for the child claimed in the labeladvertisement, or over the radio.
Damage suits because of the more obscure harms contained in a food or drug, or which may be occasioned by following any untruth in its advertising, have not been had because of difficulty in getting and proving the facts.
More and more the people are having fact-finding facilities and the newspaper, magazine, radio, and advertising agency managements should already begin to givé consideration to the matter of contributory negligence.
If I defended such a case I would be glad to have the guarantee provision which exempts liability on the part of such managements to plead collaterally in defense.
Some of the makers of proprietary medicines always cry out, when attempt is made to confine them to the truth, that physicians are trying to get the monopoly of the practice of medicine in their own hands and prevent poor people from getting cheap medicine. There is nothing in this bill which does this, but it would be a long step.
One of the most needed and effective things which could be done for the public health would be in the establishment of some organized system whereby each and every little and big human machine could be accurately examined to find out what is the matter with it before self-treatment or any other kind of treatment is attempted.
You take your watch to the jeweler, your automobile to the garage, not only for repair but to find out what is needed to be repaired. The missing link for those who label and advertise does not supply this accurate diagnosis. Among even everyday household remedies aspirin temporarily relieves headache, a laxative temporarily relieves constipation.
The time has come when we ought to be getting in a proper way, and I cannot say without socialized medicines, at the prevailing causes of headache and constipation, and remedy these causes. The human machine is the most important and the most vital of all machines.
If those who are fighting continue to do the things to the human machine which they are doing should make the same fight to repair watches, automobiles, motors, railroad engines, and similar things, they would be laughed out of court.
While the physician is in no way given any advantage—as a matter of fact compelling the truth in all labeling and advertising may lead to the wider use of reliable remedies—he is entitled to fair trade just as I as a manufacturer am entitled to be protected from unfair competition. Had physicians not worked as earnestly and unselfishly as they have worked to find the cause of human diseases and end them, this country would need many times more physicians than we have and they would all be very busy. Working with the bacteriologist they have brought infectious and contagious diseases under control. Think of the typhoid cases doctors used to have and which they do not have now.
One of the old diseases which has been most recently attacked in an organized way is pellagra. My company is supplying a product used in the treatment of pellagra throughout the South. I am working not only with the health departments but with the doctors themselves. They are working hard and unselfishly to end pellagra, although pellagra has been year after year the source of a substantial part of their practice; a practice out of which some of them make but a bare living
The physicians established certified milk for children. The very ones who had their large practice in the treatment of children worked the hardest to get certified and pasteurized clean milk, which put an end to what was formerly a very profitable practice.
Those who are loudest and most persistent in urging that a bill like this will turn medicine over to the doctor- as a matter of fact it really belongs to the physician and pharmacist and we would have far better health if such were the case are also loudest in proclaiming that their remedy is used by thousands of physicians and in many hospitals.
In endowed medical centers and in private practice throughout this country and abroad, physicians are working with human clinics to find the cause and cure of such diseases as cancer. And when the cause and cure is found it will take away a large part of the practice which surgeons and others have in the application of the at present known means for relief. And while these medical centers are doing this and until they have found a cure for cancer, let the Government stop that fraud on human health which holds out this or that product for the relief or cure of cancer, and which has little or nothing which will do it.
During the fight for the passage and enforcement of the act of 1906 there was a senate of conference, so to speak, among the representa