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because the average wage earner has very little money to spend and this bill, if enacted into law, will help him to keep from being misled into wasting that little upon products which are useless and are actually harmful.

The CHAIRMAN. Thank you very much, Mr. Elliott.

[Applause.]

The CHAIRMAN. We have another 5-minute speaker, John A. Benson, of New York, president of the American Association of Advertising Agencies.

Mr. BENSON:

STATEMENT OF JOHN A. BENSON, ON BEHALF OF THE AMERICAN ASSOCIATION OF ADVERTISING AGENCIES

Mr. BENSON. As president of the American Association of Advertising Agencies, I represent a substantial cross section of advertising agency opinion, in appearing at this hearing to protest against the so-called "Tugwell bill", in its present form, confining my objections to its advertising provisions.

May I say at the outset that the advertising agencies are heartily in favor of giving the consumer and the public all needful protection against false advertising, and against the promotion through advertising of any bad drugs, adulterated foods, or dangerous cosmetics. We are deeply concerned about the consumer. She is our customer; upon her confidence depends the permanent success of any advertising effort.

Many of us feel that the present Food and Drugs Act, and other legislation now in effect, inadequately protect the consumer in these respects, and that additional legislation is needed, which should take the form of an amendment to the present Food and Drugs Act, without repeal.

False advertising of food, drugs, and cosmetics might be even more harmful than false labeling, since people read advertisments more freely than they read labels and are more influenced thereby.

But a distinction should be made between the requirements of a label and the requirements of advertising, in any legislation which may be enacted. The former is a factual statement of ingredients and uses; the latter is a persuasive appeal to the consumer, a selling argument to induce him to purchase. Hence, in the latter much more leeway is needed in the way of emotional appeal and dramatic presentation. You can construe a label narrowly and literally; but you have to construe an advertisement broadly in the light of its only function, which is to sell. And as a further difference, it is impractical to censor advertising in advance, because of its newsy character. That would practically blockade it.

It thus becomes evident that in adopting the language of a Supreme Court decision regarding labels, in its definition of false advertising, the Tugwell bill is in error.

It is comparatively easy to judge a label. Advertising is something quite different. It cannot be a cold statement of facts only; it must make an appeal to the emotions which motivate common, everyday action of people, such as the love of health, of personal beauty, of children, of effective vigor in the battle for success. There must be room for honestly imaginative appeal in portraying, as the case may

be, personal beauty, pleasure, or relief, to arouse the consumer's interest in the product and its use.

Advertising is a special plea; it is not a judicial analysis; it is salesmanship in print. This does not preclude an honest presentation of the value and effectiveness of a product. No advertiser, of course, has any right to be deceptive or to make literal truth a vehicle of falsehood by distortion of details in themselves true. His statement must be essentially true in material respects which are capable of harm to the reader or user of a product.

If an advertiser is not enthusiastic about this product, full of confidence in its worth, he might as well save his money. He must reflect that feeling. Everybody is biased in favor of his own baby, and should be expected to praise his own product. That is mere trade puffery and has been recognized by the Supreme Court as in no sense a falsehood, even though it may idealize a commonplace or be overoptimistic. Should such questions be entrusted entirely to any bureaucrat, however honest, who is unfamiliar with the true needs of advertising, as well as with its service to the consumer, or not in sympathy with such needs?

I would like to call the committee's attention to some provisions in the proposed Tugwell bill about advertising, and protest against their present form.

In section 9, (b) (1): An advertisement of a drug shall be deemed to be false if it includes "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."

There is no better instance of how the bill works against the consumer's interest than provisions of this kind requiring a "No cure' headline or signboard to be inserted on the label and in the advertising.

This would inevitably cause mistrust of the drug itself. People do not casually distinguish between a cure and a palliative. If it is said to be no cure, it will be offhand regarded as no good. Faint praise will damn anything. An obtrusive headline of this sort would violate the most elementary principle of advertising in repelling the reader before he gets into the text.

People would thus be discouraged from using a palliative which might be very beneficial to them, in relieving pain, in arresting disease, in removing irritation, or in making the sufferer more comfortable. This would be a distinct injury to him.

When you consider that there are only very few specifics recognized by the Government as having a curative effect, it is apparent that the great bulk of effective and meritorious drugs would have to be labeled "No cure", under the Tugwell bill as now written, and their advertising be emasculated.

In section 9 (b) (2): An advertisement of a drug shall be deemed false if there is "any representation, directly or by ambiguity or inference, concerning the effect of such drug which is contrary to the general agreement of medical opinion."

How often is there any general agreement of medical opinion as to the effect of a drug, and who shall determine when it exists? Doctors differ widely in their treatment of disease and in their estimate of drugs as curative agents. There are even opposing schools of thought.

Basing such a determination on any general agreement, as interpreted by the Secretary, would leave a wide-open field for error and one-sided opinion. It might also handicap Government in obtaining convictions.

If any criterion is needed, it should be something more definite and concrete, such as an accepted scientific and clinical test. But why should there be any criterion set up in advance? The courts have always been able to judge of expert testimony offered by either side, in medical as well as other fields.

In this connection it should be remembered that the infraction is a criminal offense, entailing severe punishment, and should conviction depend upon anything as vague and variable as general agreement of medical opinion?

In section 9 (c): To discourage self-medication, the bill prohibits claiming in an advertisement that a drug has any effect upon a list of mentioned diseases, many of them common and commonly treated by physicians, with the same or similar products.

Again the sufferer is deprived of having suggested to him, through advertising, palliatives used by physicians themselves.

If any effect were changed to read "any curative effect", it would give the consumer all the protection needed and not deprive him of suggested palliatives of substantial benefit to him.

Such claims are not prohibited if made in a scientific journal, appealing to doctors and pharmacists. Why should the sufferer himself be barred?

The Secretary is authorized to add to or subtract from that list of diseases, as he may see fit. That seems like unwarranted authority which should be exercised only on recommendation of a scientific body, with appeal to the courts.

In section 21, the Secretary is himself directed to do a form of advertising which might easily be false and very harmful to legitimate business, in the following paragraph:

The Secretary shall cause to be disseminated such (adverse) information regarding any food, drug, or cosmetic as he deems necessary in the interests of public health and for the protection of the consumer against fraud.

It seems to us this should be permitted only in case of imminent danger to public health, and then after a hearing, and in all other cases should not be permitted until after fraud or violation of the act has been admitted by the offender or established in a court of law.

This is one of the most despotic features of an autocratic law; it would put into the hands of the Secretary a coercive power to undermine or ruin a business. Subsequent correction or reparation might be helpless to undo the harm. No man is wise enough to be entrusted with such power.

And the Secretary is not only empowered to do this; he is directed to do so.

In section 23, (c): It is provided that in hearings authorized or required by the act, the findings of fact by the Secretary shall be conclusive if in accordance with the law. This, we understand, will be changed by the sponsors of the bill-but it suggests a question as to how the Secretary will arrive at advertising judgment.

We feel that all advertising questions not involving fraud or the promotion of dangerous products, should be referred to responsible

channels of experienced opinion in the advertising industry itself. If the Secretary is given power to make such decisions, they should be based upon the findings of such a judicial-minded body, just as physiological and therapeutic questions should be referred to a scientific

group.

This is a form of that self-regulation which the Government is fostering through the N.R.A., and should be contemplated or provided for in any legislation enacted regarding advertising. The advertising and publishing industry has already built such a body of opinion now ready to function.

In its definition of a false advertisement, the bill is altogether too vague and unsafe. It states in section 9 (a):

An advertisement of a food, drug, or cosmetic shall be deemed to be false if in any particular it is untrue, or by ambiguity or inference creates a misleading impression regarding such food, drug, or cosmetic.

According to this provision any harmless "puffing" or slight or inconsequent or fanciful variation from literal truth would constitute a false advertisement, as would also be true if a statement seemed ambiguous to any reader however unintelligent or prejudiced, or should deceive him by making a wrong impression upon his mind.

No statement, it seems to me, should be held responsible for inferences drawn from it by any state of mind of the reader. He might be a moron or biased, full of morbid fears or fixed ideas. What he might make out of a perfectly sound and true statement, nobody can control.

A statement is either true or it is false in itself; that is a question of fact; it is not a question of what anybody might think or infer.

Of course the details of a statement may be literally true and still make a misleading impression by arranging such details in false perspective. That should be included as deceptive advertising.

Would the following statement not be equally effective in protecting the reader without bandicapping honest advertising?

An advertisement of a food, drug, or cosmetic shall be deemed to be false if in any material respect it is essentially untrue or inherently deceptive.

I believe the advertising agency group which I represent would also endorse the definition of false advertising made by Mr. Charles Wesley Dunn this morning in his address on behalf of the Grocery Manufacturers, as follows:

An advertisement of a food, drug, or cosmetic shall be deemed false if it is false or injuriously deceptive in any material particular related to the purposes of this act.

Section 17 (6) (d): Does not clearly exempt media owners and advertising agencies from liability for infraction and hold the advertiser solely responsible, as should be done and is intended to be done. Paragraph (d) of section 17, exempts the media owner and advertising agency "if, on request of an officer or employee duly designated by the Secretary, he furnishes the name and post-office address" of the advertiser. In event the Secretary did not choose to request this information, there would be no exemption. The provision should be so written that exemption should always apply unless the media owner or the advertising agency declined to furnish such information, if known, and on request.

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The advertiser himself should be solely liable for false advertising, because he alone is always in possession of the facts and can authorize publication of the advertisement. The responsibility is his.

The responsibility of the advertised product, by a reputable firm in a responsible magazine, is the consumer's best safeguard against inferior products or false claims about them; and any unnecessary handicapping of sound advertising by rigid methods of interpretation, in order to catch a small minority of offenders, would work an injury to the consumer.

It is vital to the best interests of advertising and to its ability to serve the consumer that no legal restriction of advertising be so worded as to obstruct or emasculate legitimate and honest appeal. There should be no vague borderland of ambiguity or inference which might or might not be regarded by someone as untruth. Only essential truth or falsity should be in question-inherent in the statement itself.

Otherwise there is bound to be a widespread discouragement advertising by honest concerns afraid to venture into an undertaking which would expose them to failure through ineffective appeal, on the one hand, or lawbreaking, on the other.

A serious slump in advertising would inevitably slow down business at a time when stimulation is critically needed, and might inflict disastrous harm upon the publishing and advertising interest. Especially would this be felt among the thousands of small-town newspapers now already in distress, so dependent for volume upon food and drug advertising, constituting over 50 percent of all advertising volume. It might bankrupt the weak and weaken the strong to a degree which might easily undermine the editorial and news independence of this major arm of the country's press.

The Department of Agriculture, in our opinion, is interested in protecting the public health. It is not interested in regulating advertising per se or the ethics of advertising, beyond the underlying purpose of the act; to protect public health.

It might do more harm than good, to carry out this major purpose in any way which discourages or obstructs the honest advertising of a worthy product.

The great bulk of advertising of food, drugs, or cosmetics, falls within that designation. It is helpful to consumers in bringing to their attention wholesome food values and their economical or appetizing use; safe home remedies and their beneficial application; cosmetics skillfully designed and compounded to improve appearance without deleterious effect.

These products and their advertising should not be handicapped by restrictions applicable only to a few violators of good faith or public health. Any legal effort to catch them should be so safeguarded by clear definitions of dishonesty and dangerous effect as to sift out the guilty in advance and exempt all others.

There is something else behind this question, fundamental to public welfare, and that is distribution.

The propelling force behind that is advertising. You cannot check the one without slowing down the other. Advertising is commercial news, as potent in its field as the daily press. There is no substitute for it. Just as news, to be influential, must be interesting and written to at once arouse interest and then satisfy it so advertising must

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