Objection.-We register the most emphatic objection to this section. Practically all of the food, drug, and cosmetic manufacturers are possessed of large supplies of labels, cartons, and containers purchased during the past 2 years representing the outlay of large sums of money. It is therefore recommended that the effective date and repeal of the present Federal Food and Drug Act of 1906 become not effective for 2 years to permit manufacturers to work off and dispose of labels, cartons, and containers purchased for use under the provisions of the present law.

Section 25. Effective date and repeal.-S. 2000 and S. 2800 provide that this act shall take effect 6 months after date.

Objection. The same as above set forth under section 26, S. 1944. Giving all due credit to the gallant efforts of our President to revive American commerce, acknowledging the undoubted ability of the Secretary of Agriculture and other food officials long in the service to wisely enforce the provisions contained in this proposed act, it is yet our opinion that powers so broad and comprehensive should not be allotted to the determination of one individual, and we protest the theory of government that finds it necessary for the protection of the American consumers to ruthlessly confiscate and destroy the fruitful returns of the manufacturers. The proposed revision of the Federal Food and Drugs Act of 1906 not only places too much power in the hands of one individual but in the case of subordinates such power will undoubtedly lead to the opportunity and likelihood of its abuse.

The bills are objectionable further because no matter how well intended their enforcement may be they are still subject, because of their vague and uncertain language, to limitless interpretations, and they determine in large spheres and broad general terms, which are subject to rounding out and expanding many decisions which should be definite and detailed in character. And not the least of the objections is the fact that they deny the right of individuals and businesses to the protection of the constitutional guarantees of law and freedom which are inseparable from American tradition.

I also wish to call attention to the fact that every State in the Union has a State food and drug law. It has been customary in the enforcement of State food and drug laws for State officials to cooperate and follow the rules and regulations promulgated by the Food and Drug Administration of the United States Department of Agriculture. There is a serious question as to whether or not State food and drug officials, if granted the broad powers allocated to the Secretary of Agriculture, would continue such practice. It is certain that if any of the proposed bills are passed that every State will immediately introduce similar bills in their own State legislatures. From thence on no uniformity in the administration of the Federal and State food laws will exist. The entire food, drug, and cosmetic industry will be thrown into a chaotic turmoil from which it is questionable they shall ever survive.

Therefore it is our recommendation that this honorable committee weigh carefully the question of a complete revision and rewrite of the Federal Food and Drugs Act of 1906. We further recommend that the present Federal Food and Drugs Act of 1906 be amended to meet with the present trend of time. This can be accomplished by a careful consideration of the Stephens bill, S. 2355, and we urgently request the adoption of the Stephens bill in substitution of all bills pending proposing a complete revision and rewrite of the Federal Food and Drugs Act of 1906. Respectfully submitted.

FLAVORING EXTRACT MANUFACTURERS' ASSOCIATION
OF THE UNITED STATES,

By JOHN S. HALL, Executive Secretary.

PETITION OF THE NATIONAL ASSOCIATION OF MANUFACTURERS OF FRUIT AND FLAVORING SYRUPS AND NATIONAL MANUFACTURERS OF SODA WATER FLAVORS

Your petitioners, the National Association of Manufacturers of Fruit and Flavoring Syrups and the National Manufacturers of Sode Water Flavors, respectfully present to this honorable committee for its consideration the following objections to the passage of S. 1944, S. 2000, and S. 2800 proposed revision of the Federal Food and Drugs Act of 1906.

The National Association of Manufacturers of Fruit and Flavoring Syrups was organized in 1906, and its members consist of manufacturers engaged in the manufacture, production, preparation, packing, distribution, and sale of crushed fruits, finished or fountain sirups, concentrates and unfermented fruit juices intended for use in the dairy, ice cream, confectionery, soda-fountain, and stillbeverage industries for further manufacturing purposes.

The National Manufacturers of Soda Water Flavors was organized in 1905 and its members consist of manufacturers engaged in the manufacture, production, preparation, packing, distribution, and sale of soda-water flavors and concentrates intended for use in the still and carbonated beverage industries for further manufacturing purposes.

Our members wish to register their opposition to the passage of S. 1944, S. 2000, and 2800 (proposed revision of the Federal Food and Drug Act of 1906) now pending before this honorable committee. It is further the contention of our members that the aforesaid bills suggest that this great industry abandon the reasonable regulatory provisions under which the industry has thrived in this country and substitute in lieu thereof industrial control by political and bureaucratic officials.

The Constitution of the United States and the constitutions of the various States have well defined the right of sovereignty as the basic or organic principle of law, and from this source is derived the authority to enact, construe, administer, and enforce laws. The theory of our Government, National and State, has always been opposed to the granting of unlimited power to any officials. The legislative, judicial, and executive branches of our Government are all of limited and well-defined powers. Very wisely, in the enactment of the present Federal Food and Drugs Act of 1906 the Congress then considering the aforesaid law follows these principles. It is well to direct the attention of this honorable committee to the profound wisdom exemplified by the author of the Federal Food and Drugs Act of 1906, which was known as the Heyburn bill in the Senate. I quote Senator Heyburn (Cong. Rec., vol. 40, pt. 3, p. 2721): "This bill does not provide by anybody the courts to gather testimony upon these questions for the purpose of being used at the trial in the court room and nowhere else * * * this bill fixes no standards upon anything; it authorizes no officer to fix any standards. It provides that the courts, and the courts alone, may determine whether or not an article is contraband under the provisions of this act. * * * Inasmuch as standards vary, it would be impossible for an act of Congress, a general law, to avoid some conflict with some of those State laws if you should undertake to fix standards.

*

the chief chemist

for the fixing of standards * is simply the agent of

"Page 2723. * * I wish to have it understood that this bill does not permit the chief chemist of the Bureau of Chemistry to fix standards or to punish anybody or to brand his goods as fraudulent, under any circumstances. It does not permit the Secretary of Agriculture to do so. It does not permit anyone except the court, after a trial by a jury, if the party shall appeal to that right, to brand the goods as being fraudulent or obnoxious to the provisions of this bill."

For the past 27 years food, drug, and cosmetic manufacturers have cooperated with the officials of the United States Department of Agriculture and in cooperation with the Food and Drug Administration have by rules and regulations formulated definitions and standards for use of the food industry which have been effective in the enforcement of the Federal Food and Drugs Act of 1908.

It is now intended that the food industry be regimented under the direction of the Secretary of Agriculture and adopt legal definitions and standards such as may be promulgated by the Secretary of Agriculture.

Therefore we wish to register objections to the following provisions contained in the bills:

Section 2: Definition of terms.—(j) “The term 'advertisement' includes all representations of fact or opinion disseminated in any manner or by any means other than by the labeling."

We object to the inclusion of the words "or opinion." It is our recommendation the the words "or opinion be stricken from the bill.

Section 3: Adulterated food.-(b) (4) "If any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight in a deceptive appearance."

It is our recommendation that the words "or create a deceptive appearance be stricken from the bill, as under the aforesaid wording the Secretary would be clothed with power to determine what is a deceptive appearance.

Section 6: Misbranded food, drugs, and cosmetics-General.—(a) “If its labeling is false or misleading in any particular."

We object to this provision, as it grants to the Secretary of Agriculture authority to determine as to whether or not the labeling of a product is false or misleading in any particular.

(d) "If any word, statement, or other information required on the label to avoid adulteration or misbranding under any provision of this act is not prominently placed thereon in such a manner as to be easily seen and in such terms as to be readily intelligible to the purchasers and users of such articles under customary conditions of purchase and use."

We object to the power granted to the Secretary as sole arbiter to determine if any word, statement, or other information is prominently placed in such a manner as to be readily seen, and in such terms as to be readily intelligible.

SEC. 7. Misbranded food.-(a) (1): “If its container is so made, formed, or filled as to mislead the purchaser, or (2) if its contents fall below the minimum standard of fill prescribed by regulations as provided by sections 11 and 22."

We object to this provision in view of the fact that the Secretary allocates to himself the exclusive right to designate the manner in which all food products shall be packed for sale, including the size, shape, and form of the container.

(d), (e), and (f) provides that the Secretary shall have power to promulgate definitions and standards of identity, minimum standards of quality and complete form of disclosures on mixtures, compounds and fillers for which no standards of identity nor minimum standards of quality have been promulgated.

We object to the above provisions contained in this act due to the fact that the Secretary of Agriculture has authority by regulation to establish definition and standards of identity, minimum standards of quality and in cases where no definition and standard of identity nor minimum standards of quality are promulgated then a complete form of disclosure of all ingredients contained in food products. We further wish to call attention to this honorable committee that there are a number of finished beverages on the market sold under distinctive names. You will note that no provision is made for the sale of such products and we strenuously interpose an objection. This would tend to destroy the manufacture and sale of such products.

SEC. 9. False advertisement.-Under this section false advertisement is defined to mean any advertisement of a food, drug, or cosmetic, which shall be deemed to be false if it is false or misleading in any particular relevant to the purposes of this act. We offer the most serious objections to the above wording in view of the fact that the burden is placed upon the food manufacturer to prove that such advertisement is not false or misleading in any particular. The burden is shifted from the Government to the manufacturer to sustain his position.

SEC. 11. Definitions and standards for food. We interpose an objection to this section in view of the fact that it grants power to the Secretary of Agriculture to establish for any food (1) legal definitions and standards of identity of foods, (2) minimum standards of quality of foods, and (3) fill of containers. SEC. 12. Permit factories.—Under the provisions of this section the Secretary of Agriculture is authorized to license manufacturers and processors of food in such cases where the manufacture of foods, drugs, or cosmetics may, in his opinion, be "injurious to health, and such injurious nature cannot be adequately determined after such articles have entered interstate shipment." Comment will be found after section 13.

Section 13: Factory inspection.-Under the provisions of this section the Secretary of Agriculture is granted authority (1) to enter any factory, warehouse, or establishment in which foods, drugs, or cosmetics are manufactured, processed, packed, or held for shipment in interstate commerce, and (2) to inspect such factory, warehouse, establishment, or vehicles and all equipment, finished and unfinished materials, containers, and labels there used or stored. Our objections to sections 12 and 13.-In reading section 12 relating to permit factories and the above section, factory inspection, it would appear to me that the above section 13, "Factory inspection ", would provide all the investigation authority to the Secretary of Agriculture to insure sanitary conditions in manufacturing establishments of foods, drugs, and cosmetics if the public

interest was the sole consideration. Therefore, the section regarding permit factories would seem to be unnecessary as a regulatory provision unless it is the intention of the Secretary of Agriculture to license every food, drug, and cosmetic manufacturer.

Section 15: Investigations and institution of proceedings.-Under the aforesaid section no provision is provided for a preliminary hearing when investigation warrants that prosecution be filed. The only notice defendant receives is upon notice of information being filed and the necessity of answering criminal proceedings. We offer our most serious objection to this procedure.

Section 16: Seizure.—Under the terms of this section the Secretary of Agriculture is authorized to seize and condemn articles of food, drug, or cosmetic shipped in interstate commerce which are adulterated or misbranded under the provisions of this act, or which are not produced in a factory or establishment possessed of a permit when so required by the regulation. We interpose our objections to the power granted to the Secretary to make multiple seizures when in his opinion or the opinion of any minor food official such food, drug, or cosmetic is adulterated or misbranded under the provisions of the act. In this case the burden would be shifted from the Government to the defendant to offer proof that the articles in question are not contraband and in viola tion of the act. No criminal responsibility nor personal responsibility accrues to food officials acting in an illegal manner.

Section 17: Penalties.-Under the provisions contained in this section exemp tions are made regarding publishers, advertising agencies, or radio broadcasters, who shall, upon request of the Secretary, furnish such information requested by the Secretary of Agriculture. We wish to interpose our objections to this exemption insofar as the usual and customary trade practices can be charged to the publisher, advertising agent, or radio station. We also wish to call specific attention to the unusual provision contained in this section which relates to penalties imposed upon agents or employees of the Secretary of Agriculture who disseminate information outside of the scope of his (or their) office concerning "patentable methods " or "process" not protected by letters of patent. It may be readily appreciated the limits regarding the patentable process insofar as few foods are concerned. There are but few patentable formulas. It is common knowledge that practically all food products are predicated wholly upon secret processes and the reference to patentable processes affords very little protection, if any, to the property rights of food manufacturers.

SEC. 19. Injunction proceedings.-Under the provisions contained in this section the repetitious introduction into interstate commerce of (1) adulterated or misbranded food, drugs, or cosmetics; (2) repetitious dissemination of any false advertisements, including radio broadcasts, etc., for the purpose of inducing directly or indirectly the purchase of food, drugs, or cosmetics in interstate commerce shall be considered prima facie evidence of the violation of the provisions of this act and subject to restraint by injunction temporary or permanent. Again I wish to call attention to the fact that the burden is shifted from the Government to the manufacturer to prove that any of the acts of his agents or the products themselves are not in violation of the various provisions of this act.

SEC. 21. Publicity.-Under this section the Secretary of Agriculture shall have authority to cause to be disseminated information regarding food, drugs, or cosmetics as may be necessary to protect against danger to public health or fraud upon the consumer. We wish to interpose an objection to the power granted to the Secretary to disseminate information to the public that he deems shall be a fraud upon the consumer.

SEC. 22. General administrative provisions.-Under this provision the Secretary is granted dictatorial and arbitrary power over the entire food, drugs, and cosmetic industry. Provision is made wherein the Secretary shall, if he deems it necessary to ask the aid of (1) a committee on public health consisting of five members of (2) a committee on food consisting of seven members, to assist in holding meetings and promulgate legal definitions and standards for the manufacture and sale of foods. There is no provision contained in this section that would require that the Secretary follow the recommendation made by the trade. By this section the Secretary will assume the duties of the legislator, the duties of the Executive to administer the law and the juriciary in passing upon the acts of all food, drug, and cosmetic manufacturers.

SEC. 25. Effective date and repeals.-The proposed revisions of the Federal Food and Drug Act of 1906 are to become effective within 6 months after date

of passage. We most strenuously interpose an objection to any bill passed becoming effective within a 6-month period. A great number of food manufacturers are possessed of labels, cartons, bottles, etc., that were purchased predicated upon a continuance of the present Federal Food and Drug Act of 1906 remaining in force and effect. It is our recommendation that any bill passed become not effective for at least a 2-year period.

The members of our association wish to further present to this honorable committee for its consideration the fact that each State has enacted a State food and drug act. That each State is enforcing the provisions contained in the State food and drug act. That for the past 25 years the various food manufacturers have attempted to bring about uniformity in the enforcement of the Federal Food and Drug Act of 1906 and the various food and drug acts. That up until the present time practically all of the States recognize the rules and regulations promulgated by the Secretary of Agriculture under authority of the Federal Food and Drug Act of 1906.

It is our contention that if any of these bills under consideration of this honorable committee are passed and the Secretary of Agriculture is clothed with power and authority to assume dictatorial power over the food, drug, and cosmetic industry, that immediately thereafter each State will introduce a similar bill wherein the State law enforcing agency will also seek the same discretionary power granted to the Secretary of Agriculture. Therefore we are of the opinion that all the efforts on the part of manufacturers to bring about uniformity in the enforcement of the food and drug laws will be discarded, and the industries again thrown into an unheaval. We also wish to direct this honorable committee's attention to the fact that the Supreme Court of the United States, likewise the supreme courts of the various States. has from time to time passed upon legal questions raised regarding the enforcement of the various food and drug laws, that various established principles of law applicable to the food, drug, and cosmetic industry are in force and in effect, and at this time it would create an unwarranted precedent to revise the usual and customary trade practices now existing in these great industries.

Therefore it is our recommendation that if this honorable committee feels that certain revisions be made that this can be accomplished by amending the present Federal Food and Drugs Act of 1906. We therefore recommend that amendments be made to the Federal Food and Drugs Act of 1906 covering the various objectionable features that have been raised by the United States Department of Agriculture or the consuming public. Respectfully submitted.

THE NATIONAL ASSOCIATION OF MANUFACTURERS OF
FRUIT AND FLAVORING SYRUPS.
THE NATIONAL ASSOCIATION OF MANUFACTURERS OF
SODA WATER FLAVORS.

By JOHN S. HALL, Attorney.

PETITION OF THE NATIONAL ASSOCIATION OF BAKERS' AND CONFECTIONERS' SUPPLY HOUSES

Your petitioners, the National Association of Bakers' and Confectioners' Supply Houses, respectfully submit to this honorable committee for its consideration the following objections to the passage of S. 1944, S. 2000, and S. 2800 (proposed revision of the Federal Food and Drugs Act of 1906). It is our contention that the above bills will have a harmful effect upon this industry.

The National Association of Bakers' and Confectioners' Supply Houses was founded some 30 years ago and its members consist of manufacturers, wholesalers, and jobbers, specialized in the manufacture, production, preparation, packing, and distribution of food products and equipment to bakers, confectioners, restaurants, institutions, et cetera, intended for further manufacturing purposes.

It is the consensus of opinion of our members that this particular branch of the food industry will be unjustly discriminated against if the labeling provisions regarding misbranded foods are enforced.

Section 7 of S. 1944 (d), (e), and (f) provides as follows:

"SEC. 7. A food shall be deemed to be misbranded: