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McCall's, Ladies' Home Journal, Woman's Home Companion, Pictorial Review or Delineator that could qualify under the language of the proposed statute.
Most of these advertisements, in our opinion, are completely unobjectionable. Few, if any, of them are untruthful, either directly or by implication, as to any material fact. Few, if any, of them are misleading in such a way that they are, or could be, harmful to the health of the public. Most of them are guilty, if that be guilt, of "trade-puffing. And probably not one of them could have been published, if the Tugwell bill had been law, without the advertiser's having run a risk of prosecution for "false advertising.'
Let us cite a few examples of advertisements that are in fact "untrue in any particular", but of which it cannot reasonably be said that they should be made unlawful under a pure food and drugs law.
Pillsbury's Pancake Flour (McCall's, December): "Most of the grief in marriage starts at the breakfast table. Breakfast is the big sharp rock in the matrimonial seas. The best protection you can carry aboard your ship of romance is a large package of Pillsbury's Pancake Flour. * * * For there's nothing any man or woman likes better than pancakes-and no pancakes have quite the flavor you'll get with Pillsbury's Pancake Flour". "Pillsbury's Pancake Flour— the secret of happy homes."
Calumet Baking Powder (McCall's, December): "Cut a lice of that Calumet cake. Feel a bit between your finger and thumb. Soft as velvet! Then touch the cut surface. See how it springs back, tenderly moist and elastic. Now taste it. Velvet fine, velvet smooth! * * * creating cake as marvelously light and delicate as a cloud!" 66* * * How to make flaky biscuits, muffins without 'tunnels', perfect pie crust, never-fail frostings, and meringues.
Pet Milk (McCall's, December): "Experts unanimously agree that Pet Milk candies are the easiest to make, the finest textured and the least expensive. Follow the Pet Milk candy recipes, and you can't fail to make delicious candy. * * * as good and delicious as anybody ever made. * * * fudge that melts in your mouth."
Royal Baking Powder (McCall's, December): "In homes of good taste-you will almost invariably find Royal Baking Powder."
Quick Quaker Oats (McCall's, December): "Here's richer flavor." "So delicious that it is preferred above all others." "Just the finest, plumpest grains.' "A supremely delicious flavor." * distinguishes them from all other oatmeals." "There's no other oatmeal like Quaker. "None have succeeded in copying the rich savory flavor." "Then watch the whole family smile
Eatmor Cranberries (McCall's, December): "The clever woman will always serve fresh cranberry sauce." "* * * and increases the palate appeal of every food it accompanies."
Smithfield Ham (McCall's, December): "Once you taste Amber Brand Deviled Smithfield Ham you'll go 'um-m', it's so good." "This famous delicacy gets a tremendous hand wherever it's served." 66* * *sublime-* * * chantment."
Gold Medal Flour (McCall's, December): 66* * * the simplest, easiest and surest way to baking success.' "Gold Medal 'Kitchen-Tested' Flour banishes the cause of most baking disappointments " "For, it is tested in an oven just like yours, for uniformity of results, before it goes to you." "Thus, every sack acts the same way. Results are perfect every time!"
"Never in the history of America did women respond so enthusiastically as to the first contest to find a name for a new Betty Crocker cake to be featured in a national advertising campaign.'
Gold Medal Flour (Good Housekeeping, December): "Costing $25,000 to collect and publish * * *" 66* * * to put at the command of every woman all the wizardry, the sorcery, all the subtle art of cookery that genius employs to enchant men.'
"What your husband has to say about this Angel Food Waldorf will bring the roses to your cheeks."
Red and White Stores (Good Housekeeping, December): "Your Christmas Dinner an assured success when you buy at a Red & White Store."
Lea & Perrins (Good Housekeeping, December): "Sometimes a lamb chop is timid."
Log Cabin Syrup (Good Housekeeping, December): "It brings the North Woods to your breakfast table."
Clabber Girl Baking Powder (Good Housekeeping, December): "I save you money and give perfect baking results."
Pillsbury's Best (Ladies' Home Journal, December): "Nowadays many a girl knows more about fox-trots than oven temperatures. What of it? Inside every bag of Pillsbury's Best you'll find a baking combination that works perfectly for amateur or expert, for 'old hand' or newly wed."
Campbell's Tomato Soup (Ladies' Home Journal, December): "Its flavor has never been equaled."
Sun-Maid Raisins (Ladies' Home Journal, December): "No other raisins can equal Sun-Maid quality." "The fresh, rich flavor of Sun-Maid Raisins cannot be equalled. Their cleanliness and convenience of use cannot be duplicated.' Not one of the foregoing advertisements is in the slightest degree a menace to the public health. Not one of them can be said to be guilty of misrepresentation. Not one of them could reasonably be objected to. And yet every one of them violates the definition of "false advertising" in the Tugwell bill.
Of no consequence, in our opinion, is the assertion on the part of Mr. Tugwell and Dr. Campbell that it is not this kind of “trade-puffing" that the Tugwell bill is designed to prevent. The fact is that the Tugwell bill does declare statements of the sort just quoted, to be false and therefore unlawful. Of no consequence is the promise that the bill will not be so interpreted in its actual enforcement by the Department of Agriculture. No official can bind the Department irrevocably as to its enforcement policy or any other policy. The bill must be judged by what it says, and not by the assertion by some protagonists that some violations will not be punished-that the law will be enforced only in part.
We think the public is entitled to a definition of false advertising that will prohibit and will punish false statements that jeopardize the public health, or that by misrepresentation deceive the public as to any material fact about the product; and we think the manufacturer and advertiser is entitled to a definition that lets him know in advance exactly what is illegal and what is not a definition that means what it says-and a definition that is intended to be enforced as written.
Such a definition, we think, is the one that we have suggested on page 4. It outlaws any misrepresentation-direct or implied-as to ingredients; it makes unlawful any representation that a product is harmless if in fact it is not; and it definitely proscribes any claims-directly or by implication-that the advertised product is "good for" anything which it is not in fact "good for." Under this definition, a false statement or implication that a food has nutritional value that it does not have, can be punished and prevented; or that it helps to overcome constipation, or lack of energy, or nervousness, or sleeplessness, or any other physical ailment. These, if we correctly understand the purposes of extending the "false labelling" provisions to other forms of advertising, are the objectives of the advertising provisions.
Such a definition as we have suggested will give ample protection to the public and at the same time it will not, in our opinion, work any hardship on honest business. It is definite and unambiguous-and it does not include within its prohibitions such exaggerations as are harmless, immaterial and utterly unrelated to the purposes of the bill.
II. THE DECLARED PURPOSE OF A PURE FOOD AND DRUGS ACT IS TO PROTECT THE PUBLIC HEALTH. YET THERE IS SUBSTANTIAL EVIDENCE THAT THE SPONSORS OF THE TUGWELL BILL HOPE, BY MEANS OF THIS BILL, TO ACCOMPLISH ANOTHER AND RADICALLY DIFFERENT OBJECTIVE-NAMELY, THE CONTROL OF PRICES BY REDUCING EXPENDITURES FOR ADVERTISING. THEY ARE FRANKLY OPPOSED TO ADVERTISING AS BEING "SOCIALLY WASTEFUL." IT IS IMPERATIVE, THEREFORE, THAT THE LANGUAGE OF THE BILL BE SUCH THAT IT WILL ACCOMPLISH ITS OSTENSIBLE AND OPENLYAVOWED PURPOSE, AND THAT IT WILL NOT BE CAPABLE OF MISUSE IN A DIRECTION WHICH NEITHER THE CONGRESS NOR THE PUBLIC EVER INTENDED
Our argument, up to this point, has been predicated on the assumption (1) that the purpose of the bill is exactly what its sponsors avow, namely, to safeguard the public health and to protect the public against misrepresentation of material facts and nothing more; and (2) that the sponsors are sincere in their contention that if the bill is passed in its present form-with its broad and unprecedented grant of powers of law-making, of regulation, of enforcement and of judging violations it will be interpreted and enforced liberally and sympathetically, and in such a way as to cause no disturbance to honest business and honest advertisers.
And we have shown that even granting the correctness of those assumptions, the language of the bill is objectionable and should be revised.
Now, however, it is pertinent to consider an entirely different question: "What is the real purpose of the Tugwell bill?"
There has been an almost universal disclaimer on the part of manufacturers, publishers, advertisers and other opponents of the bill, as presently drawn, of any opposition to the "purposes of the bill." They all admit the paramount importance of the public health-and they agree as to the necessity for strengthening the pure food and drug laws so that the public health may be protected. The opposition has centered around method, not principle or purpose.
All of which makes the extent of the divergence of opinion between the sponsors of the bill, on the one hand, and its opponents on the other, quite incomprehensible. How can it be that two groups of people-agreeing as to the object to be accomplished-can disagree so widely, and sometimes so acrimoniously, as to the means to be employed?
This suggests an inquiry as to whether there is complete agreement as to purpose. What is the purpose of the bill? Is it merely to protect the public against deception and harmful misrepresentation, or is there some additional purpose, not declared, which its sponsors have in mind, and which furnishes the true explanation of language otherwise seemingly inexplicable?
In all frankness, we think there is at least some substantial evidence to justify the belief that the bill has a purpose, not declared and not in any way related to the protection of the public against false claims. We think there is evidence that an attempt is being made to utilize the Tugwell bill-ostensibly a pure foods and drugs bill to effect social and economic changes which (by the sponsors' own admission) could not be accomplished in the broad light of day.
The sponsors of the bill admit that its language is broader than its enforcement will be. However, they say, honest advertisers need not fear for the policy of the Department of Agriculture in the past has been fair, and it will continue to be so in the future. Therefore, they say, you can safely entrust the enforcement of the law to us-and we will enforce only those parts of the law that are needed in the protection of the public interest.
Since they are asking for so broad discretionary powers, it is important to know more about their attitude toward business-honest business-and toward advertising. It is important to know whether they have any "ax to grind" that is being kept under cover. For the acceptability of Mr. Tugwell as a dictator of what the manufacturer can and cannot say in his advertising depends to a much greater extent on what Mr. Tugwell's views are, generally, thân on what Mr. Tugwell says in pleading for the delegation of broad powers.
And a careful reading of Mr. Tugwell's The Industrial Discipline justifies the feeling, we believe, that we should not want to entrust him with autocratic power over advertising. Such a reading seems to us to justify the following conclusions with respect to Mr. Tugwell's social theories and the extent to which he seeks to use the Tugwell bill for the advancement of those theories:
1. Mr. Tugwell thinks that three things are necessary to sound economy: Higher prices to producers of raw materials, higher wages to labor, and lower prices to consumers. He thinks that only in this way can consumption be stimulated and markets expanded.
2. These things, taken together, seem somewhat paradoxical-for they imply a narrowing of the spread between the price received by the producer and the price paid by the consumer. But Mr. Tugwell favors accomplishing this seeming paradox by (a) reducing the profits of the processor, the manufacturer and of other middlemen, and (b) reducing the cost of advertising and other sales and distribution effort.
3. His advocacy of the reduction in advertising and selling expense is perfectly consistent, of course, with his opinion.of the place of advertising in the economic scheme. Honest market expansion, he thinks, can come only through decreased prices; and advertising is all "more or less, an attempt to escape the necessity of honest market expansion through decreased prices. And again: "It is doubtful whether nine tenths of our sales effort and expense serves any good social purpose.
4. He believes, therefore, that low prices are economically necessary; and that one way to bring down prices is to eliminate a substantial part of the advertising and selling expense. He believes, furthermore, that in the "plan for a national economy control of prices will be an important plank.
5. He recognizes, however, that because of the Constitution there is no way in which the Federal Government can now legally control prices; he admits frankly
that it would be impossible to get the necessary public support for an amendment to the Constitution permitting such control; and he therefore admits the necessity for "exploring" to see whether there are available some "half-recognized and feebly-used means" by which his purpose can be effectuated.
6. And because of the constitutional limitations, and because of the "spasmodic and unpersistent" social will—“if”, indeed, "there is a social will in the matter" he admits frankly his willingness to resort to "subterfuges", to "devious approaches", to "stretching" available instrumentalities beyond their recognized uses.
7. The Federal police power may be such an instrumentality, he thinks. The Federal Pure Food and Drugs Act, he says, is a monument to what can be done with "the extension of this idea"-that is, of a Federal police power. Theoretically, of course, the Federal Government has no police power but actually, under the guise of regulating interstate commerce, it has acquired-in the Federal Food and Drugs Act-actual police power. Under this act, he says, the public is protected against adulterated goods-which is one important bit of needed protection; but not yet has the Federal Government done anything to protect the public against exorbitant prices. And this injury to the consumer's pocketbook, he thinks, is just as serious an injury as the threat to its health.
Now the pattern of his thinking becomes complete and clearly comprehensible. He wants lower prices. Competition, which theoretically keeps prices down, actually does not. Therefore, prices must be controlled. The Federal Government has no constitutional power to control prices. Amending the Constitution, to grant the necessary power, seems far off indeed"-first of all because it is always difficult to amend the Constitution, and second because there is no "social will" for such price control. Nevertheless, although there is no power to control prices, and no recognition by the public of the need or desire for controlled prices, he still thinks that such control must be effected if possible. If the power to regulate interstate commerce can be stretched to include power to protect the public health, why cannot it also be stretched to include the power to protect what is just as important-the consumer's pocketbook? It can—and in the same act. Not directly, to be sure. Not openly-but covertly, insidiously, resorting to subterfuge to obtain acceptance of what would not be accepted under its true colors-resorting to "devious approaches to what seems a simple problem."
In this philosophy, we think, may be found the explanation of some of the extraordinary language of the proposed Tugwell bill. It explains, as no other explanation has yet done, the tenacity with which the sponsors of the bill hold out for language far more drastic than seems to be necessary to accomplish the admitted purposes of the bill. The right to control the kind of advertising, Mr. Tugwell presumably thinks, will quickly become the right to control the amount of advertising. And we believe that here, at least, he is right. We believe that a strict and literal enforcement of the language of the Tugwell bill as to false advertising would surely result in a drastic curtailment in the amount of advertising. We do not believe as Mr. Tugwell does that such a reduction would be in the public interest. We do not mean to argue, at this time, the social and economic value of advertising-we wish only to say that advertising can and does reduce prices (by making possible mass production, with all its known advantages).
We have no quarrel with Mr. Tugwell's desire for high wages, high prices to farmers, and low prices to consumers. We share his desire. But if we correctly interpret the extent to which he is trying to use" the Tugwell bill for the accomplishment of that purpose, we do there differ with him most sharply.
If the only way in which his three major objectives can be obtained is by conferring upon the Government the power to control prices; and if, in the exercise of that price-control, advertising must be controlled curtailed-eliminated: then let him state the issue squarely and frankly and let the people decide. We are still a democracy. The people ought to be premitted to say, in the last analysis, what powers they wish the Government to have. We very much fear that the medicine which Mr. Tugwell seeks to administer by means of the Tugwell bill comes dangerously near to being "misbranded." We do not believe the public needs a guardian-yet; nor that it needs its medicine sugar-coated, or otherwise disguised.
Furthermore, we think Mr. Tugwell is wrong in seeking to control prices by so indirect and roundabout a method as by controlling the advertising of foods, drugs, and cosmetics. Why, if prices are to be controlled, should food, drugs, and cosmetics be selected-and other necessaries of life (real necessaries, such as many foods, many drugs, and most cosmetics are not!) be ignored? To protect the
consumers' pocket-book by controlling or eliminating—the advertising of food, drugs, and cosmetics, would (even if Mr. Tugwell's low opinion of the usefulness of advertising were entirely justified) be a mere drop in the bucket.
Other means are at hand for accomplishing the desired objectives-means that are suited to the end to be attained--means that are honest and aboveboard: The National Recovery Administration, for example, is proceeding intelligently and effectively in the direction of higher wages-more money for consumers; the Agricultural Adjustment Administration is moving simultaneously in the direction of higher prices to farmers for their products more money for this large group of consumers; the monetary program is designed to make more equitable the burden on debtors-another big segment of the consumer-group. But all of these forces are proceeding openly and honestly in the direction that they are supposed to go.
To the extent that social or economic changes are desirable, by all means let us have them. But let us get them honestly. Let us know what we are doingand let us vote intelligently and with our eyes open on the extent to which the existing order is to be modified.
Let us not "back into" a new social order-let us not adopt it without knowing that we are doing so.
It may be of interest to examine the "record" to see whether our reading into the language of the Tugwell bill, Mr. Tugwell's philosphy of social planning, is justified. Accordingly, we are presenting, in an appendix to this brief, relevant quotations from this "The Industrial Discipline."
1. The definition of "false advertising" and similarly of "misbranding" should be so worded that they will effectually stop the abuses and the dangers that they are designed to stop; but that they will not go beyond the avowed purpose of the bill in an attempt to promote by indirection a new social theory which if appearing in its own clothing would be acceptable neither to Congress nor to the public.
In this appendix we have attempted to paraphrase the pertinent facts of Mr. Tugwell's philosophy (as revealed in "The Industrial Discipline'), and in each case have quoted directly from the book in supporting the paraphrase.
I. Competition can no longer be relied upon to keep prices at the necessary low levels; therefore, the control of prices is "the protection of consumers in their most vulnerable interest."
Thus (p. 178 et seq):
* * *
"We still hear echoes in many places of the old belief that fair or just prices can only be established by the processes of a free competition But there is a new attitude growing up concerning markets and prices which has a different end in view. It stresses the results desired rather than the mechanism by which they are attained; it has to do with the consequences of the pricing process. Since all goods and services are priced, incomes and standards of living are determined in the process. We are not so certain any more that so vital a concern for society ought to be left to the vagaries of the market. There seems to be no chance that even "justice", which might be done if competition were free, will-as things are result from this process. The market is controlled, but the control is exercised by interested parties in a haphazard way. The idea grows that the national income and its apportionment is a matter which ought not to be left without some social supervision.'
II. Moreover, it is necessary to limit profits.
For (p. 183):
* * *
* * *
"A nation of well-paid workers, consuming most of the goods it produces, will be as near Utopia as we humans are ever likely to get. It is necessary to this result that too much income shall not go to profits; for, if it does, this will either be spent for wasteful luxuries or will be distributed by bankers to enterprises who will over-expand their productive facilities." III. Since low prices are good policy, and since there seems no way of assuring low prices without Governmental control, Government control will be a part of the program of social planning.
(See pp. 185 et seq.:)
"A number of problems concerning social policy are raised by these considerations * * * There are conflicts which enter into price relationships and