Senator COPELAND. What would be the method of determining the tolerance?

Mr. CAMPBELL. We would determine the tolerances under the provisions of this section exactly as we do the tolerances under the provisions of the existing law.

The Secretary convened in Washington the oustanding toxicologists of the country. There was no disposition to rely exclusively upon the conclusions of the scientific men in the Department able to speak intelligently about toxicological questions. It was an attempt by the Secretary to get an expression of the best scientific viewpoint from all sources. The people brought to Washington to give consideration to this question, realizing at the time its tremendous importance, both to the consumer and to the agriculturists of the country, were men who could speak with authority on it.

Senator COPELAND. Then it would not be merely an arbitrary establishment on the part of the Bureau of the degree of the tolerance? Mr. CAMPBELL. Indeed no. Furthermore, the growers and others commercially interested would be heard.

Senator COPELAND. It would be done by scientific study and research?

Mr. CAMPBELL. Quite right, and I would like to say that if there were to be an arbitrary determination which was capricious, quite naturally it could be overturned by an appeal to the court.

Senator COPELAND Is such provision made in the bill? Is it clearly stated in the bill that there would be a possibility of such an appeal?

Mr. CAMPBELL. That nas not been definitely stated. That is not necessary. Such a court review can always be had, Senator. There is no question whatever but what the courts have the right to review every section of this law and every regulation promulgated by the Secretary under the law. It is expected that that will be done; and if the action of the administrative agency has been found to be arbitrary, unreasonable, capricious, and not predicated upon evidence and upon facts, there is no question but what the courts will not sustain it.

Turning again to this section for a moment, and illustrating the need for it, let me tell you that, in our experience in the enforcement of the law, we encounter frequently proposals by manufacturers to use harmful ingredients merely to improve the appearance of products. One proposal, to speak concretely, that came to us very recently, is the use of ethylene glycol, an antifreeze, in frozen eggs to give them that velvety texture characteristic of superior quality.

Another proposal was the use of antioxidizing agents for chewing gums to prevent it from aging, as occurs with automobile tires or other rubber products.

While there has been prevention by administrative discouragement, let me point out to you that, under the terms of this bill, there can be no prohibition of such practices unless it can be shown after the product enters interstate commerce that through such added deleterious ingredients the article may be dangerous to health. The Government is required to show that affirmatively in every case. It is difficult to present technical testimony to a jury of laymen. To deal with it adequately, this same technical testimony must be presented in every case where a contest develops.

We have been called upon to try one case after another at short intervals, where, in each, it was necessary to have an array of scientific witnesses. It is an extremely expensive procedure. Although the argument is weak, that this particular provision should be adopted in order to make possible more convenient and less expensive administration, I merely wish to point out to you that it is much more scientific and just, offers greater protection to the consumer, and more uniform control, to reach a determination on the basis of scientific opinion of what, generally, should be the limits of tolerance, and let that be the law applicable to these various products rather than to have the issue determined, as now, in each individual prosecution

Senator MCNARY. Mr. Campbell, you mean you want to change the rules now in force in the trial of cases, the taking of jurors from the body of the country and have a jury of scientific men; scientists, economists, and professors?

Mr. CAMPBELL. Not at all, Senator. We are proposing here, in this, and other sections of the act, to have authority conferred upon administrative officers to make certain findings of fact. That is true not only with this section but with the section that authorizes standards for food products. The regulations based on these findings of fact will carry the force and effect of law unless there shall have been shown an arbitrary or capricious or unreasonable attitude in determining them. When promulgated, they would be standards precisely like those we now have for the regulation of traffic in drugs.

There is a legislative standard for butter. It requires that butter contain not less than 80 percent of butter fat. To prosecute for violation of this standard the only requirement is to show by our witnesses that there is less than 80 percent of butter fat.

If this section of the bill were to be enacted there could be by executive action the establishment of legal tolerances for added deleterious ingredients.

The only appearance at court would be that of witnesses to show that the deleterious ingredient was present in an amount greater than permitted by the tolerance.

The CHAIRMAN. Is that other difference that the butterfat is actually established by the law?

Mr. CAMPBELL. Yes, sir.

The CHAIRMAN. Here the quantity of harmful substances would be left to regulation by the department?

Mr. CAMPBELL. That is right.

The CHAIRMAN. What would be the distinction other than that? Mr. CAMPBELL. The point I am trying to make, Senator, is this: Congress has conferred upon administrative agencies repeatedly authority to make findings of fact to achieve a definite legislative intent. It has been repeatedly held by the courts that this was not an unconstitutional delegation of legislative power. A similar proposal is made in this case. I have no brief to hold for that procedure in lieu of a determination of specific tolerances by the Congress, and the very definite incorporation of them in the law, if Congress wishes to do it.

The CHAIRMAN. I assume that you desire, as pictured in this bill, that the department, through some methods they shall work out, shalĺ establish these various tolerances and then if you have them disputed in court, there would be one determination that a certain amount of arsenic would be the limit that can be used in a foodstuff. And, then,

by that one decision, you would then establish that that was the lega' limit of the use of arsenic; is that right?

Mr. CAMPBELL. That decision, if it supported the view of the Department, would be of value. It would not preclude the opportunity of any person to question the soundness, the sufficiency of evidence, or the arbitrary nature of the administrative determination at any subsequent time. There would be available always the opportunity to a defendant; first, to attack these tolerances as such, on the ground that they were not justified, that they were arbitrary and unreasonable; there would be that opportunity, then, in the second place, to make a defense at the time of the trial of any case that might be brought up.

The CHAIRMAN. I was quite clear about the example you gave about the butterfat. I got the impression in mind there would be some establishment of a standard as regards tolerances in reference to various poisons.

You could not establish that by act of Congress to really fix the tolerances that would be permitted?

Mr. CAMPBELL. Perhaps, but would it be practicable?

It would take an act of Congress of the sort that we are asking in this particular section to provide satisfactory control.

The CHAIRMAN. Then, where tolerances would be fixed by your scientific committee, they would also always be subject to attack in the courts?

Mr. CAMPBELL. Senator, we have tolerances now; merely administrative tolerances.

The soundness of those tolerances must be shown, the evidence on which they are predicated must be introduced in ample volume in connection with every trial that develops upon any product where this charge is involved.

What we are undertaking to do, for the benefit of the public generally, and, of course, to make the regulation of traffic containing added deleterious ingredients more effective for the protection of the public, is to establish definitely, upon scientific bases, what the amount of poisons safe for human consumption will be.

The Congress, itself, could pass a measure establishing such tol

erances.

Repeatedly, in this law, we have gone on the assumption that the questions arising in the regulation of food and drug products and traffic therein are so complex and so shifting that they do not lend themselves effectively to rigid legislative expression.

Further, we have assumed that it would be in the interest of the public and in the interest of honest manufacturers, to make some provision, similar to that made in this section, for an administrative agency to be empowered on a fact finding basis to give expression to a legislative intent, rather than have Congress attempt to legislate in such detail.

The principle upon which that conclusion is based can be found in innumerable legislative acts.

Senator MCNARY. Mr. Campbell, in plain orchard English, you mean that anyone who is charged with disobedience of this section is a defendant, and must come in court and establish his innocence beyond a reasonable doubt?

In other words, he is presumed to be guilty, and must defend himself, beyond a reasonable doubt, upon that presumption, and contrary to the usual course of law?

Mr. CAMPBELL. Unquestionably, Senator, if it were to be shown in the case of a particular defendant that his product contains in excess of the tolerance, action would be brought in the nature of a violation, but he would have an opportunity to defend himself against it.

Senator MCNARY. If you have a roomful of experts and professors, that come to examine a certain product that is manufactured by a certain process, or in a certain way, and your professors agree that there has been a tolerance there that has not been satisfactory, the defendant, in order to come outside of the provisions of this bill must come in and plead his case and establish his innocence.

Mr. CAMPBELL. The defendant will be required to show that the opinion of this group of experts was unreasonable.

In the first place, the law itself proscribes the interstate shipment of any food product dangerous to health.

Senator MCNARY. Why do you change the general order of proof that has come down to us from the ages in the common law of the English, and in our statutes, that a man charged must defend himself, but first, it must be shown to the jury, by the system that you propose, that he shall be deemed guilty by the opinion as presented by an organization such as you describe, of experts and economists and professors, and against which he will have to defend himself?

Why do you not go along in the ordinary, common way, of first proving him guilty, and then letting him prove himself innocent? Mr. CAMPBELL. One reason, which I tried to point out beforeSenator MCNARY. You tried to point it out, but I am just not converted on that particular point to that particular plan of changing the established way of handling court procedure and giving the individual an opportunity, under this bill, not to have the protection of the law.

Mr. CAMPBELL. I do not think that he is denied that, Senator. Senator MCNARY. You just said he was.

Mr. CAMPBELL. I said that he had the right to come in and defend himself.

Senator MCNARY. If it were shown by these experts and talented men, in their opinoin, that this individual had violated this law, and they seize him, he must come in court and establish his innocence; is that not so?

Mr. CAMPBELL. I do not know of any place where we can find a clear knowledge of what the physiological effect of these deleterious ingredients will be, except the scientific experts, and that does not mean a cloistered group of individuals who do not know anything about marketing operations of food products, necessarily; but we must turn to the medical fraternity, the pharmacologists, and the toxicologists, for information on this.

Let me say that we are proceeding here, in this instance on the broad assumption that there will be a sympathetic consideration of any proposal that we advance to make foods safe for consumption. We think, at the same time, that there should be a recognition of the amount of added deleterious ingredients that come from all

sources.

Senator MCNARY. I am not disagreeing with that proposal. For the years that I was Secretary of Agriculture, I had jurisdiction over this Food and Drug Act. We always went along with this. I have always supported the legislation of the committee.

I am speaking of the humiliation and embarrassment you are placing on the man charged by your experts with a violation, because you say that he must come in and not receive the protection of the law that is accorded to every other individual, charged with a violation of our criminal laws.

The CHAIRMAN. Is there not another element? We have two bottles; one giving a false impression, and not containing the food element which it is represented to contain. If these contents will not do any harm, that is one situation. Here, as I understand the testimony, they are seeking, beyond peradventure of a doubt, to safeguard the public health, where the lives and welfare of the people, the physical welfare of the people, is directly associated with the product.

Senator McNARY. This is no different from any other changes offered in our criminal procedure. That illustration used, I believe, proves that. For illustration, let us say that there will be some deception practiced by reason of a small amount of ingredient in one jar of fruit juices.

If these talented men should capture some of the fruit in this can of preserves on the store counter or shelf, they will then charge this individual with having violated the provisions of the law, and then he will have to take the stand and prove to the satisfaction of the jury that he is without the provisions of the Act. He wants to reverse the order of proof. I do not want to go into that any further now. We will discuss that at length in executive session.

The CHAIRMAN. Go ahead.

Mr. CAMPBELL. May I just present this thought, Senator McNary? We can deal, in every individual case, under the language of the present law, with the particular product and prevent its being marketed if it contains any added deleterious ingredients which may be likely to injure health. We can take care of that situation in each individual case; fruit in one instance, eggs in another, and any other article of food.

What I am concerned about is the general intake from all sources. If we can only prevent any one food commodity from containing added deleterious ingredients in excess of the amount that will be detrimental to health, and if the same condition is true with respect to every other commodity, you, then, can see what the total intake of deleterious ingredients will be from all sources.

If there could be a legislative expression of safe tolerances and of other matters where it has been proposed to designate the Secretary of Agriculture as a fact-finding agency for that purpose, as I said a moment ago, it will be quite satisfactory to every one in the Department of Agriculture, and to the public, too.

But, I am not aware of any plan by which a concrete legislative expression could be made that would undertake to establish limits for added dangerous ingredients in some commodities and to prohibit them altogether in others where it is recognized that there is no reason or justification for their appearance.

The CHAIRMAN. Would it not be possible to establish those tolerances as regards arsenic and lead, which are the main substances used; are they not?

Mr. CAMPBELL. Yes, sir.