The procedure set up in the bill to restrain the Secretary, while in form only seeming to protect industry rights, in effect amounts to the placing of the control of enforcement in the hands of those whose interests are contrary to public welfare and who have created the need for legislation. It is true that the scope of the old law is broadened by the bill to include cosmetics, therapeutic devices, and certain drugs which are not now subject to regulation. It is true that in many instances the definitions of adulteration and misbranding have been expanded and strengthened, although even these improvements are studded with a notable number of exceptions. It is also true that the procedural provisions have been strengthened through authorization of injunction proceedings, although this, to some extent, is nullified by changes from the seizure section of the existing law, particularly that under which trial of seizure cases will in many instances occur in producing jurisdictions before juries whose sympathies would ordinarily be with local industries rather than in consuming jurisdictions where juries would be expected to display less bias. Weighing the advantages and disadvantages for the protection of consumer welfare presented by the terms of this bill, we are unable to escape the conclusion that because of the extraordinary provision for court review of regulations in section 701 (f), which would postpone indefinitely the consumer protection that can now be afforded in some degree by the present law in much of the field to be covered by these regulations, it would be better to continue the old law in effect than to enact S. 5 with this provision. If there is to be exploration into new methods of court review, such a radical departure from the well-established Federal procedure as is here proposed should be the subject of a separate bill, applicable to all Federal laws authorizing regulations, to be considered on its own merits. This important health legislation should not be made the sole medium for such experimentation. Under date of March 28, 1938, the undersigned [Chapman and Mapes] submitted the then latest draft of section 701, the court-review section, of the bill to the Secretary of Agriculture and asked for his views in regard to the same. The following is a copy of his reply: Hon. CARL E. MAPES, House of Representatives. MARCH 29, 1938. MY DEAR MR. MAPES: Receipt is acknowledged of your letter of March 28, 1938, with which you enclose a copy of chapter VII, General Administrative Provisions, section 701, from the latest edition of S. 5 as agreed upon by the Interstate and Foreign Commerce Committee of the House. You ask for an expression of my opinion of the effect of the provisions of this section upon the administration of the measure. I am of the opinion that if section 701 (f) remains in the bill its effect will be to hamstring its administration so as to amount to a practical nullification of the substantial provisions of the bill. The clear intent of S. 5 is to close the channels of interstate commerce to food, drugs, devices, and cosmetics that are adulterated or misbranded. Because of the complex and technical nature of the subject matter involved a number of the most important definitions of adulteration and misbranding are incomplete and must have their clearly stated outlines filled in with scientifically accurate details before they can be enforced. The bill delegates to the Secretary of Agriculture the quasi-legislative power to ascertain the necessary technical facts and supply the details that will complete these definitions, thus effectuating the legislative will. The Secretary is entrusted with these powers in connection with sections 401, 403 (j), 404 (a), 406 (a) and (b), 501 (b), 502 (d), 502 (f) exclusive of the proviso, 502 (h), 504, and 604. These sections are extremely important. They relate to the identity and quality of food, to requirements with respect to special dietary food, to contaminated food, to poisonous substances in food, to coal-tar colors in food, drugs, and cosmetics, to determining adequate tests for official drugs, to narcotics and habit-forming drugs, to probable misuse of dangerously potent drugs, and to labeling drugs liable to deterioration. Section 701 (f) permits any person who will be adversely affected by any order authorized by the sections listed above to file, any time within 90 days after the issuance of the order, a complaint in the district court for the district where such person resides or has his principal place of business, to enjoin the Secretary from placing the order in effect. This subsection contains the unique provision directing the courts to permit the complainant to supplement the evidence recorded in the Secretary's hearing upon which the order was based. This constitutes an invitation to those who would obstruct the enforcement of a regulation to withhold or conceal evidence that should have been given in the hearing and to employ such evidence merely for the purpose of upsetting the order and thus postponing indefinitely the enforcement of the regulation. In the event such order is upset there is nothing to prevent the same complainant from instituting new proceedings on a new order and thereby causing further delay. In fact, every amendinent of an order could be a ground for the institution of new proceedings. Even though a number of district courts might uphold an order, demanded alike by the public and by the overwhelming majority of the industry regulated, to terminate abusive practices, a single district court could enjoin permanently the enforcement of the regulation. Frankly, I regard this provision as unfair to the Department, to the public, and to the industries regulated, the majority of which unquestionably would support regulations, based on substantial evidence, which the Secretary of Agriculture would promulgate. It would constitute a serious impediment to orderly administrative operations. If a bill containing this provision were enacted it would not constitute any material contribution to the public protection that the Department cannot now extend under the existing law. In some respects it would afford even less protection than that afforded by the existing law, which is broad and general in its terms and is to some degree applicable and effective in the fields covered by the sections involved in this discussion. It is the Department's considered judgment that it would be better to continue the old law in effect than to enact S. 5 with this provision. If there is to be exploration into new fields of administrative law, may I urge that it not be in the field of vitally important public health legislation. There has not been sufficient time to Jerait the Department to ascertain the relation of the foregoing to the program of the President. Sincerely yours, H. A. WALLACE, Secretary. Attention is called especially to the following statements in the letter of the Secretary: I am of the opinion that if section 701 (f) remains in the bill its effect would be to hamstring its administration so as to amount to a practical nullification of the substantial provisions of the bill. It is the Department's considered judgment that it would be better to continue the old law in effect than to enact S. 5 with this provision. If there is to be exploration into new fields of administrative law, may I urge that it not be in the field of vitally important public health legislation. The section as submitted to the Secretary of Agriculture was the same as the section as reported by the majority of the committee, except in two particulars, one of which weakens the enforcement provision of the section, the other of which has no effect on it one way or the other, in our opinion. The committee amended the draft of the section as submitted to the Secretary, (1) by striking out of the committee substitute, page 82, line 19, after the word "shall", the words "if in his judgment sufficient reason appears for so doing"; and (2) by inserting, page 84, line 8, after the word "shall", the words "upon the showing that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence at the proceeding before the Secretary." As stated, the first amendment weakens the enforcement provision of the section. The second one requires nothing more than a court would ordinarily require without it. If this bill is enacted into law with section 701 (f), the court-review section, in it, as reported by a majority of the committee, what started out as an effort on the part of the advocates of a more adequate food and drug law to enlarge the scope of the existing law, to fill in the loopholes in it, and to put more teeth into it, will end with having accomplished the directly opposite result and years of earnest effort will have gone for worse than naught. VIRGIL CHAPMAN, JERRY J. O'CONNELL, 1938 CONGRESSIONAL RECORD-SENATE The VICE PRESIDENT. The bill will be passed over. The bill (S. 1760) to promote the safety of scheduled air transportation was announced as next in order. Mr. McKELLAR and Mr. WHITE. Let the bill go over. The VICE PRESIDENT. The bill will be passed over. The bill (S. 2) to amend the Interstate Commerce Act, as amended, by providing for the regulation of the transportation of passengers and property by aircraft in interstate commerce, and for other purposes, was announced as next in order. Mr. BARKLEY. Let the bill go over. The VICE PRESIDENT. The bill will be passed over. The bill (H. R. 6215) to repeal provisions of the income tax requiring lists of compensation paid to officers and employees of corporations was announced as next in order. Mr. KING. Let the bill go over. The VICE PRESIDENT. The bill will be passed over. The bill (S. 2410) to amend the Judicial Code, as amended, was announced as next in order. Mr. KING. Mr. President, the Senator from Montana [Mr. WHEELER], the chairman of the committee reporting the bill, is not here, and in his absence I feel that we ought not to take up the measure. Let the bill go over. The VICE PRESIDENT. The bill will be passed over. The joint resolution (S. J. Res. 144) proposing an amendment to the Constitution of the United States prohibiting child labor was announced as next in order. Mr. BARKLEY. Let the Joint resolution go over. The VICE PRESIDENT. The joint resolution will be passed over. The bill (H. R. 1507) to assure to persons within the jurisdiction of every State the equal protection of the laws and to punish the crime of lynching was announced as next in order. SEVERAL SENATORS. Let the bill go over. The VICE PRESIDENT. The bill will be passed over. The bill (S. 2482) to provide for the assignment of officers of the Navy for duty under the Department of Commerce and appointment to positions therein was announced as next in order. Mr. KING. Let the bill go over. The VICE PRESIDENT. The bill will be passed over. The resolution (S. Res. 140) authorizing an investigation of the delivery or nondelivery of mail to establishments where industrial strife is in progress was announced as next in order. The VICE PRESIDENT. This resolution is reported adversely, and, without objection, will be passed over. The bill (S. 2024) to amend the civil-service law to permit certain employees of the legislative branch of the Government to qualify for positions under the competitive classified civil service was announced as next in order. Mr. KING. Let the bill go over. The VICE PRESIDENT. The bill will be passed over. The joint resolution (S. J. Res. 178) consenting to an interstate compact relating to flood control in the Merrimack River Valley was announced as next in order. Mr. MINTON. Let the joint resolution go over. The VICE PRESIDENT. The joint resolution will be passed over. The bill (S. 1351) to amend the Packers and Stockyards Act, 1921, as amended, and for other purposes, was announced as next in order. Mr. GILLETTE. Let the bill go over. The VICE PRESIDENT. The bill will be passed over. The joint resolution (S. J. Res. 176) favoring employment by the Works Progress Administration of persons unable to find employment in private industry was announced as next in order. Mr. KING. Let the joint resolution go over. The VICE PRESIDENT. The joint resolution will be passed over. The bill (H. R. 6586) to regulate the transportation and sale of natural gas in interstate commerce, and for other purposes, was announced as next in order. 6263 Mr. BARKLEY. Let me say to the Senator from Indiana [Mr. MINTON] and to the Senate that I understand the Senator from Montana [Mr. WHEELER), the chairman of the Committee on Interstate Commerce, from which this bill is reported, is very anxious to have it considered and disposed of. Mr. AUSTIN. Mr. President, I object to the consideration of the bill. The PRESIDING OFFICER (Mr. THOMAS of Utah in the chair). Objection being made, the bill will be passed over. The bill (S. 1424) to repeal that provision in the act of March 2, 1917 (39 Stat. L. 976), directing the making of allotments to Indians of the Mission Indian Reservation, Calif was announced as next in order. Mr. FRAZIER. Let the bill go over. The PRESIDING OFFICER. The bill will be passed over. SEKIZO TAKAHASH The joint resoution (H. J. Res. 141) to authorize the issuance to Sekizo Takahashi of a permit to reenter the United States was considered, ordered to a third reading, read the third time, and passed. RESOLUTION AND BILL PASSED OVER The resolution (S. Res. 177) requesting recommendations from the Tariff Commission concerning rates of duty on textile imports was announced as next in order. Mr. MCCARRAN and Mr. BARKLEY. Let the resolution go over. The PRESIDING OFFICER. The resolution will be passed over. The bill (H. R. 5812) to amend section 243 of the Penal Code of the United States, as amended by the act of June 15, 1935 (49 Stat. 378), relating to the marking of packages containing wild animals and birds and parts thereof, was announced as next in order. Mr. GILLETTE. Let the bill go over. The PRESIDING OFFICER. The bill will be passed over. INVESTIGATION OF POLICIES EMPLOYED IN DISTRIBUTION OF MOTOR VEHICLES The joint resolution (S. J. Res. 229) directing the Federal Trade Commission to investigate the policies employed by manufacturers in distributing motor vehicles, and the policies of dealers in selling motor vehicles at retail, as these policies affect the public interest, was announced as next in order. Mr. MINTON. Mr. President, this joint resolution should be indefinitely postponed, as a similar measure was passed at the last call of the calendar. The PRESIDING OFFICER. Without objection, the joint resolution will be indefinitely postponed. BILL AND RESOLUTION PASSED OVER The bill (S. 1443) to designate the month of February in each year as the Month of American Music was announced as next in order. Mr. KING. Let the bill go over. The PRESIDING OFFICER. The bill will be passed over. The resolution (S. Res. 216) favoring governmental adjustment of the purchasing power of the dollar so as to attain 1926 wholesale commodity price levels was announced as next in order. Mr. VANDENBERG. Let the resolution go over. The PRESIDING OFFICER. The resolution will be passed over. SAFEGUARDING OF THE PUBLIC HEALTH The Senate proceeded to consider the bill (S. 3073) to safeguard the public health, which was read, as follows: Be it cnacted, etc., That (a) in order to safeguard the publie health against the distribution of drugs which have not become generally recognized as safe for use, no person shall introduce or deliver for introduction into interstate commerce any drug composed, in whole or in part, of any substance or combination of 6264 CONGRESSIONAL RECORD-SENATE substances, which substance or combination is not generally recognized as safe for use in the dosage and with the frequency and duration prescribed, recommended, or suggested in the labeling thereof. unless the packer of such drug holds a notice of a finding by the Secretary that such drug is not unsafe for use. (b) To enable the Secretary to make a finding on any such drug the packer thereof shall submit to the Secretary (1) full reports of investigations which have been made to show whether or not such drug is safe for use; (2) a full list of the articles used as components of such drug; (3) a full description of the methods used in, and the facilities and controls used for, the manufacture. processing, and packing of such drug; (4) a full statement of the composition of such drug; (5) such samples of such drug and of the articles used as components thereof as the Secretary may require; and (6) specimens of all proposed labeling for such drug. (c) To aid and advise him in making such finding the Secretary is hereby authorized to create a board consisting of one representative from each of the following organizations: The Public Health Service of the United States Treasury Department, the American Institute of Homeopathy, the American Medical Association, the United States Pharmacopoeial Convention, the American Pharmaceutical Association, and the Food and Drug Administration of the Department. No person who has a financial interest in the manufacture or distribution of any drug shall serve on such board. The Secretary is authorized to pay to each member of the board who is not a representative of a Federal department $25 per day for each day he is engaged in the work of the board. The appropriation for the enforcement of the Food and Drugs Act is hereby specifically made available for such purpose, and for travel and other expenses of all members of the board in accordance with the fiscal regulations of the Department. (d) If the Secretary, after having received the aid and advice of such board, finds that (1) such investigations include tests by all existing methods reasonably applicable to such drug; (2) the results of such tests do not show that such drug is unsafe for use as prescribed, recommended, or suggested in the labeling thereof; (3) the methods used in, and the facilities and controls used for, the manufacture, processing, and packing of such drug are adequate to preserve the identify, strength, quality, and purity thereof; and (4) that such drug otherwise complies with the other provisions of the Food and Drugs Act, he shall issue to such packer a notice of finding that such drig is not unsafe for use. In case the Secretary refuses to issue such notice he shall notify the packer of his reasons for such refusal. (e) The Secretary shall promulgate regulations for exempting from the operation of this section drugs intended solely for investigational use by persons qualified by scientific training and experience to make investigations as contemplated by this section. (1) This section shall not be construed to apply to drugs subject to the Virus, Serum, and Toxin Act of July 1, 1902 (U. S. C., 1934 ed., title 26, ch. 4). Mr. KING. Mr. President, I should like to have an explanation of this bill. Mr. COPELAND. Mr. President, the bill is intended to guard the public against such deaths as occurred from the sale of Elixir Sulfanilamide. I myself have been objecting to the bill in the hope that a general food and drug bill might be passed. There is one now on the House Calendar, but it has been so long delayed that I think we ought to pass this bill. Mr. VANDENBERG. Mr. President, will the Senator yield? Mr. COPELAND. I yield. Mr. VANDENBERG. Are there not objections to the bill which have developed since it was reported? Mr. COPELAND. There are objections, and there will be objections from now to the end of time, but, so far as I can Judge, the bill is in such form that it is safe to pass it. Mr. VANDENBERG. The Senator can see no value to the objections which have been made? Mr. COPELAND. I have not been impressed by them. Mr. COPELAND. The bill was introduced at the time when a large number of deaths occurred throughout the country from the sale of the elixir of which I have spoken. It developed that there was no means of protection, through the Public Health Service or the Bureau of Food and Drugs, to make certain that new preparations were given proper examination in order to insure that they were safe for human consumption. That is the purpose of the bill. Objections have been raised to it from various sources, but as objections have been withdrawn new ones have been made. It is the old history of any attempt to provide control in the matter of drugs. My conviction is-and, of course, I leave the matter to the Benate that the bill ought to be passed. MAY 5 The PRESIDING OFFICER. The question is on the engrossment and third reading of the bill. The bill was ordered to be engrossed for a third reading, read the third time, and passed. BILL PASSED OVER The bill (H. R. 6410) granting a pension to Mary Lord Harrison was announced as next in order. Mr. WALSH. Let that bill go over. The PRESIDING OFFICER. The bill will be passed over. MARKING OF PACKAGES CONTAINING WILD ANIMALS OR BIRDS Mr. HATCH. Mr. President, I was called out of the Chamber, and I ask unanimous consent to return to Calendar No. 1350, being House bill 5812, a measure in which the Senator from Iowa [Mr. GILLETTE) is very much interested, and to which he desires to offer an amendment. The PRESIDING OFFICER. Is there objection to returning to crder of business 1350? There being no objection, the Senate proceeded to consider the bill (H. R. 5812) to amend section 243 of the Penal Code of the United States, as amended by the act of June 15, 1935 (49 Stat. 378), relating to the marking of packages containing wild animals and birds and parts thereof. Mr. GILLETTE. I propose an amendment, which I ask to have stated. The PRESIDING OFFICER. The clerk will state the amendment. The CHIEF CLERK. It is proposed to strike out all of the section, beginning on page 1, line 8, down to and including line 12, on page 2, and in lieu thereof to insert the following: SEC. 243. All packages or containers in which wild animals or birds, or the dead bodies or parts thereof (except furs, hides, or skins of such animals, for which provision is hereinafter made), or the eggs of such birds are shipped, transported, carried, brought, or conveyed, by any means whatever from one State, Territory, or the District of Columbia to, into, or through another State, Territory, or the District of Columbia, or to or from a foreign country, shall be plainly and clearly marked, labeled, or tagged on the outside thereof with the names and addresses of the shipper and consignee and with an accurate statement showing by number and kind the contents thereof: Provided, That packages or containers in which migratory birds included in any convention to which the United States is a party, or the dead bodies or parts thereaf or eggs of such birds, are shipped, transported, carried, brought, or conveyed, as aforesaid, shall be marked, labeled, or tagged as prescribed in any such convention or law or regulation thereunder. All packages or containers in which the furs, hides, or skins of fur-bearing wild animals are shipped, transported, carried, brought, or conveyed, by any means whatever, from one State, Territory, or the District of Columbia to, into, or through another State, Territory, or the District of Columbia, or to or from a foreign country shall be plainly and clearly marked, labeled, or tagged on the outside thereof with the names and addresses of the shipper and consignee. Mr. BORAH. the amendment? Mr. GILLETTE. Mr. President, this bill is intended to amend what was known as the Hepburn Act, which was put on the statute books through the outstanding efforts of two former Iowans, Representative Hepburn and Representative Lacey. It prohibits the shipping of the bodies or parts of dead animals or birds in interstate commerce unless there is on the outside of the container the names of the consignor and the consignee, and a statement of the contents. That is the original act. Mr. President, will not the Senator explain The pending bill was intended to change the provision about marking the container, so as to require nothing on the outside but the names of the consignor and the consignee. The bill was urged by those engaged in commerce in furs. They felt that the law was subjecting them to unfair conditions because possible highjackers would be apprised of the valuable contents of a container, and it was an invitation to break in and highjack the contents. The amendment I have offered has been drafted by the Blological Survey. It will protect those engaged in the commercial transfer of and traffic in furs, and at the same time save the valuable conservation features of the act. Mr. WHITE. Mr. President, will the Senator yield? |