Section 16 (Seizure) (c): Line 22, page 21, strike "may" and substitute "shall."

It seems obvious that either party to a condemnation proceeding should have the right to obtain a representative sample of the article seized for purposes of prosecution or defense.

Section 17 (Penalties): There should be incorporated in this section a provision providing for remedial action by conference between parties in technical violation and the Secretary without penalties being imposed. Many cases of violation are involuntary and are excusable on the grounds of being only slightly in variance with some highly technical provisions which are subject to various chemical or bacteriological analytical tests. Such unintentional, and in fact, harmless violations of the law should be settled by conference and not subject the honest and conscientious shipper or manufacturer to court action and the harsh penalties of the law. These harsh penalties should be imposed on willful and unscrupulous violators which the law is primarily designed to apprehend.

Paragraph (2) of section 17 should be changed to read:

The receipt in interstate commerce of any food, drug, or cosmetic with knowledge or information that it is adulterated or misbranded.

And so forth.

It is manifestly unreasonable and would cripple industry and obstruct the normal flow of business to make a buyer of a food subject to severe penalties for merely receiving goods which were adulterated or misbranded without his prior knowledge or information.

Section 22 (Voluntary inspection service): The provisions of this section are highly objectionable on the grounds that it virtually compels every food manufacturer or processor or grower to install a Government inspector in his factory or packing house and then advertise to the world that his product bears the Government stamp of inspection. It saddles industry with a bureaucracy of inspectors, the cost of which must be borne by the individual manufacturer, processor, or grower, which in the aggregate is an added burden to the industry involved. If, however, such inspection of fruits and vegetables is made at point of origin and the commodity passed as meeting the regulations, then such certification at point of origin should be final. Growers and packers should not be subjected to loss of the product at destination after the heavy cost of transportation has been added, except, of course, in case of fraud.

Section 23 (c) (General administrative provisions): The findings of fact by the Secretary should not be conclusive as provided in the proposed act, page 31, lines 2, 3, and 4, for the reasons advanced under discussion of section 10. The charges of the Secretary in cases of seizure should be subject to proof in each case that the food so seized is or may be deleterious to health. Under section 10 the Secretary is authorized to fix official tolerances and under section 11 he is authorized "to fix, establish, and promulgate definitions of identity and standards of quality and fill of container" of any food. Section 23 (c) provides the findings of fact by the Secretary shall be final, thus the Secretary or his appointees become legislator, administrator, prosecutor, and judge. The findings of fact by the Secretary might be made prima facie evidence but should not be conclusive. The present law in case of seizure requires the Government to prove in each case that

food so seized is or may be deleterious to health, whereas under the proposed act all the Government would be required to do would be to prove the commodity seized exceeded the tolerance established by the Secretary who in turn determines the facts. We submit that the procedure under the present law is the correct one and is in keeping with American principles of Government. It is Government by law and not be edict.

Section 24 (Liability for personal injuries):

A right of action for damages shall accrue to any person for injury or death proximately caused by a violation of the act.

This is perhaps the most unwarranted and objectionable provision of the proposed act. The cases at law dealing with the subject of "proximate cause" are in the shadowland of legal precedent. To write into statutory law a recognition of "proximate cause" would be to throw open the doors of courts to a flood of fraudulent cases and encourage the racket of "ambulance chasing", a practice condemned by the American Bar Association and all reputable members of the legal profession. The party injured now has every reasonable protection under the law and a right of action for damages without deliberately prostituting the proper conduct of legal practice by such an unwise and unnecessary act. If the effect would be to bring only the willful, unconscientious, and vicious violator to the bar of justice it would be warranted, perhaps, but there would be no such discrimination practiced, and the honest and conscientious manufacturer and processor would be subjected to persecution virtually sanctioned by statutory law.

STATEMENT OF R. M. ALLEN, PRESIDENT OF THE ASSOCIATED COMPANIES VITAMIN FOOD CO., INC., AND VEGEX INCORPORATED, NEW YORK CITY

My companies and I can say all of the 4,000 stockholders support Senate bill 1944, the Tugwell bill under consideration. In addition to our support as good citizens and consumers of foods, drugs, and cosmetics, we earnestly wish the enactment of the bill to give confidence to advertising.

We sell vitamin products. Vitamins can neither be seen, felt, tasted, nor weighed on a scale. The selling must be on confidence. Advertising is the main sales method. Everything must be believed to get the consumer to purchase these new products.

The vitamins can, let us say, be compared to the spark plugs on the automobile. All must be present. It takes all to do the job. Now, my company advertises that one of its products will furnish the vitamin B, and the vitamin B2 (G) spark plugs. We place this advertising, let us say, in one of the leading women's journals. Now, in another column or on another page someone else with the vitamin A, vitamin D, vitamin E, or vitamin C spark plug advertises in a way to induce consumers to feel that their spark plug will supply all of the other spark plugs.

We advertise in the Journal of the American Medical Association. In order to do it we must not only confine ourselves to the truth and the whole truth in that advertising, but in all other advertising. So

that in doing this we want to see a Federal law which will confine everybody's advertising to the truth and the whole truth. Otherwise, fair competition and fair trade cannot be had.

Newspaper, magazine, and radio advertising are matters which the Federal Government should control. This whole activity extends throughout interstate commerce and the mails. A multiplicity of State laws on the subject, if differing in their provisions, will almost put a stop to all forms of food, drug, and cosmetic advertising.

Advertising which tells the truth is the cheapest selling for any product which has merit, but in order to be effective, confidence must attach to it. Purchasers must find that the advertised word is made good in the product.

My companies have spent a million and a half dollars in advertising. We were the pioneers in vitamin advertising. Out of this experience I am of the opinion that a Federal law which will attach confidence to advertising will, not substantially but enormously, increase particularly newspaper and magazine advertising and will in the same ratio increase the income of the advertising agencies.

It is impossible to appear without also appearing out of the experience which was had in 15 years of food and drug control work in Kentucky, a year as special assistant to the United States Attorney General, Mr. Bonaparte, and having served as secretary of the Association of State Food and Drug Control Departments from 1902 to 1910, which included the period when we worked with Dr. Wiley, with Senators McCumber and Hayburn and with Congressman Hepburn and Mann to secure the passage of the Federal Foods and Drugs Act June 30, 1906.

I feel sure that, if living, Dr. Wiley would be in strong support of this bill. He, like the rest of us, might suggest changes in this or that verbiage of the act. But, not only in general principle but in the way the provisions of the Tugwell bill are brought together, and brought together out of the experience of 30 years to accomplish the present-day job, this bill would have the support of those who worked with him for the enactment and enforcement of the present Federal law.

Among the objections to the bill is that it will confer undue power upon the Secretary of Agriculture.

As a matter of fact, the provisions of the act markedly restrict the powers which are already conferred under the act of June 30, 1906.

Under the existing act, the Bureau of Chemistry is given power to examine and determine what may be adulteration or misbranding. Under the proposed act the definitions of that which will be misbranding are extended. Then before the Secretary of Agriculture can charge that a new practice is adulteration or misbranding, regulations must be adopted, public hearings are had on these regulations, they do not go into effect for 90 days.

Before criminal prosecution is had under them the defendant must be given an administrative hearing, and every lawyer knows that when the regulation comes before the court it must be backed up by the facts or it will not stand.

Now, as it is today, the Bureau of Chemistry or the Food and Drug Administration may decide that this or that practice constitutes adulteration. They do not have to get out regulations about it.

They can bring criminal prosecution or seizure proceedings on the basis of their interpretations.

The power of the Secretary to adopt standards should be not only proposed but insisted upon by all engaged in the manufacture of foods, drugs, and cosmetics. There must be standard methods for analyses, otherwise we would be at the mercy of what the individual inspector or chemist thought to be adulteration or misbranding.

Further, there is no similar law of this character on either the Federal or State statutes which does not provide for administrative legislation. In fact the minimum railroad rate enacted by the State of Illinois was held unconstitutional because it did not provide machinery to find out what constitutes fair rates, thus placing the business of the railroads in the jeopardy of what the juries in this or that county might decide to be a fair rate.

The same applies to adulteration. Under this Tugwell bill we can all go down to Washington, discuss it with the chief of the Food and Drug Administration and his staff, discuss it, if we wish, with the Secretary of Agriculture, go back, file our briefs and, after the Secretary announces his regulation, we have 90 days in which to institute mandamus or other proceedings. Then if we are prosecuted with the regulation being the basis for the facts, we have a hearing and, finally, when at last we get to court, the regulation must, of course, be based on the facts or it will not stand.

For after all, conviction under a criminal law must be based upon the violation of some one of its provisions. The regulation must come within such provisions and must have to do with a set of facts which in the end must constitute a violation of the provision.

Giving some consideration to some of the sections of the bill in detail:

SENATE BILL 1944

It should be unnecessary to discuss sections 1 and 2. These give definitions of terms used in the bill.

Section 3 contains nothing with which any honest food manufacturer cannot comply and with all of which he should seek to comply in assuming the responsibility of preparing things for human consumption. Certainly no one would sell a food which is "dangerous to health" or "if it bears or contains any added poisonous or added deleterious substance prohibited, or in excess of the limits of tolerance prescribed by regulations.

The sanitary provisions in this section provide as follows:

If it consists in whole or in part of any filthy, putrid, or decomposed substance; or if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth.

A neighbor, president of a high-class firm engaged in the production and sale of salted and cured fish, and a graduate of one of the national universities, told me that he was very much concerned about the Tugwell bill because the sanitary provisions were impractical and could not be carried out even if the best care were taken in the handling of the fish from the catch boat to the final curing. I invited him into my office, read him this paragraph on sanitation, and we agreed together that it was not strict enough, except as regulations might and undoubtedly would make the paragraph protective.

The section is not as strict as the sanitary provisions written into the amendment of the Kentucky Food and Drugs Act of 1910. This provides that an article of food is adulterated—

If it be produced, manufactured, or stored or exposed in a manner which may render the article contaminated, diseased, or unfit for food.

My friend then told me that those who were engaged in the fish business had received a letter from an association asking them to vigorously oppose the bill because it would make it very difficult for them to remain in business.

The rest of section 3 follows in the main the definitions of adulteration which are already included in not only the State laws but in most of the municipal ordinances throughout this country. These provisions have received interpretation by courts. Administrative regulations adopted under them have been perfected, sustained, and are in every-day observance. There is added the prohibition of such container as is deceptive in appearance as to weight and measure. Many of the States and cities already have such laws. There can be no honest objection to them. Administrative regulations adopted after opportunity for full hearing will give everybody a chance to know what may be expected under the law.

Section 4 introduces the new provision that the drug is adulterated

If it is or may be dangerous to health under the conditions of use prescribed in the labeling thereof.

This is a very important section. I would suggest introducing after the word "labeling" the words "or any other representations for the use.

Subsection B of section 4 continues the United States Pharmacopeia as the standard for drugs. This work is compiled and periodically revised by chosen leaders from the medical and chemical professions.

There is nothing else in section 4 but what both the pharmaceutical profession and the consumer need for their joint protections. Section 5 introduces cosmetics. Let us read it. A cosmetic is adulterated

(a) If it is or may be injurious to the user under the conditions of use prescribed in the labeling thereof, or under such conditions of use as are customary or usual.

(b) If is bears or contains any poisonous or deleterious ingredient prohibited, or in excess of the limits of tolerance prescribed, by regulations as hereinafter provided.

Can there be one in that industry with any honest objection to the giving of this protection by the law to those who use cosmetics. In fact is there one among we men who would not be stirred to the depths and fight to the utmost if necessary to give this protection to the "school-girl complexion," facial beauty and charm of our mothers, wives, sisters, sweethearts?

There is nothing in this as has been pointed out by those in the cosmetic business who have led to oppose it which requires the disclosure of valuable formulas.

Section 6 under misbranding introduces in subsection A as a definition of misbranding

If its labeling is in any particular false or by ambiguity or inference creates a misleading impression regarding any food, drug, or cosmetic.