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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. 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.
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 or 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.