Images de page

tions imposing positive requirements are those listed above. Their formulation and promulgation are under the control of the Committee on Public Health and the Committee on Food Standards, for the appointment and functioning of which this section provides.

The Committee on Public Health is to be appointed by the President. The members are to be chosen with a view to their distinguished scientific attainment and interest in those phases of public health covered by the provisions of the bill. They are to be selected without regard to political affiliation. They are to aid and advise the Secretary in the promulgation of all regulations listed above with the exception of those providing for definitions and standards of food. No regulation can be issued by the Secretary without the approval of the majority of this committee.

The Committee on Food Standards is to be composed of 7 members, 3 of whom are to be selected by the President from the public and 2 from the food industries. They are to be appointed without regard to political affiliation. The remaining 2 members are to be designated by the Secretary from the Food and Drug Administration. This committee is to function on food standards in the same manner as is provided for the functioning of the Public Health Committee on the regulations in that field. Approval of the majority of the Food Standards Committee is required before a standard can be promulgated.

The procedure laid down calls for public hearings, for which ample notice must be given, and an adequate lapse of time between the promulgation of the regulation and its effective date. Provision is made for the amendment or repeal of regulations in the same manner as is provided for their adoption.

By the character of the membership prescribed for the committees and by the method of functioning here set up, it is insured that regulations will be based upon all available facts, that due deliberation and full consideration will be given to those facts in the formulation of the regulation, that changes can be made without undue delay upon the development of the new facts, and that the interests of the public can be effectively safeguarded without the imposition of burdens upon the honest manufacturers.

Delegation of power to make regulations to the extent here authorized is in nowise unusual in Federal and State legislation. In each instance the subject matter here dealt with is so complex and involves such ramifications in the constantly varying production and traffic in food, drugs, and cosmetics that it is impossible for the Congress to undertake the detailed consideration necessary to the formulation of each needed provision. If the public is to be protected the Congress must express its legislative intent in each instance in definite terms and leave to the administrative agency the authority to put that intent into effect through the medium of regulations.

This procedure is well established in American legislation. In the recent Panama Refining Co. (" hot oil) case the United States Supreme Court said:

Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the National Legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving

[ocr errors]

to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility.

In no instance does any one of the various authorizations in the bill confer upon the Secretary a degree of authority which transcends that conferred by the existing law. The power under the McNary-Mapes amendment to the present Food and Drugs Act to formulate standards of quality and fill of container for canned food is, in the degree of power exercised with finality by the Secretary, greater than that conferred by any of the provisions of this bill.


In order that the Department may have the benefit of competent consultants in formulating general administrative policies for enforcement of the act, authorization is given for appointment of advi. sory committees from the regulated industries, from advertising, and from the general public. These committees are to function solely in an advisory capacity and cannot restrict the power and responsibilities of the Department in its enforcement operations.

Advertising and other industries concerned in this act have, over a period of years, exerted commendable efforts toward the improvement of their own standards. Organizations have been formed for the purpose of the promotion of fair practices. This section would authorize the Secretary to accept the plans of these organizations in the use of such machinery as will aid in securing compliance with the law. This would not displace the remedial provisions of the law, however, nor would it relegate them to a position of secondary



The Food and Drugs Act has been administered in the Department of Agriculture ever since its enactment. During this period an efficient organization of trained personnel has been developed, which should be readily adaptable to the enforcement duties contemplated by this bill. Accordingly, section 705 would impose the duties of administration upon the Department of Agriculture.

An amendment has been urged to this section which would require the Department to furnish to the manufacturer a portion of any sample collected for analysis and investigation under this act. The amendment would also require a disclosure of the methods of the examination employed by the Government for such sample. While this amendment seems fair on its face, it must be remembered that in many instances, particularly mail-order shipments, the amount of sample that can be collected is no more than enough for the Government's analysis. Furthermore, in the case of dishonest manufacturers, the Government should not be required to reveal any special methods it may find it necessary to devise to detect the violation, and thus to reveal its case before trial in court. Since this amendment would in many instances guarantee the defeat of the Government in proceeding against thoroughly reprehensible frauds, the commit

tee has rejected it. The regulations for the enforcement of the present Food and Drugs Act, but not the text of that law, make provision for the furnishing of samples and the publication of methods of analysis and other proper information when it is practicable to do so. It is the committee's conclusion that these questions should continue to be handled by administrative regulations after the enactment of this bill.


Section 706 would authorize officers and employees duly designated by the Secretary of Agriculture to inspect and copy the records of shippers, dealers, and interstate carriers, pertaining to the shipment or sale of food, drugs, or cosmetics in interstate commerce. This is an implementing provision necessary for effective enforcement since proof of interstate shipment without such records is frequently impossible. In order that it may not be construed as authority for general “ fishing” expeditions into the records of these concerns, the shipper, dealer, or carrier may require that the request for such inspection be made in writing, designating the food, drugs, or cosmetics under investigation. Denial of such a request would constitute a misdemeanor punishable as provided by section 708. The right to inspect and copy records is readily granted by most shippers, dealers, and carriers, but authority to compel it through penal exactions is necessary for the recalcitrant few who regard law enforcement as an evil to be tolerated only when no other course

is open.


Paragraph (a) of section 707 authorizes inspectors of the Department, after making reasonable request and obtaining permission of the owner, to enter and inspect establishments manufacturing goods for interstate commerce or holding such goods after receipt in interstate commerce. It also authorizes the inspection of vehicles in which goods are being transported in interstate commerce.

Paragraph (b) of this section imposes the penalty of a small fine for the interstate shipment of goods or their delivery thereafter from establishments or vehicles where permission to inspect has been denied. Liability for such shipments terminates when permission is granted to make inspection.

Authority for such inspection is an indispensable implement for the enforcement of any statute intended to protect public health. Many of the provisions of this bill, particularly those dealing with filth and insanitary conditions, could not be otherwise effectively applied.

While one of the great weaknesses of the present Food and Drugs Act is the absence of any provision of this kind, it has been found that most manufacturers welcome inspection by Federal officials. Experience has shown that the relatively small minority who refuse permission for inspection in almost every instance are undertaking to hide some reprehensible condition.

Paragraphs (a) (9) and (g) of section 708 are complementary to this section and to section 305, and should be read in connection

with each. They safeguard the property rights of the manufacturer by making the unauthorized use or disclosure of any trade secret obtained under authority of these sections a felony punishable by fine or imprisonment or both.


The penalties provided under the present Food and Drugs Act have proved wholly inadequate to bring about substantial compliance with the law on the part of those manufacturers who regard an occasional small fine as an inexpensive license to carry on their illicit operations. The bill would provide for increased fines and for possible jail sentences for first offenses. The courts may, of course, be relied upon to adjust the penalties to the degree of seriousness of the respective offenses.

Under the existing law the willful violator stands on the same plane with the person who inadvertently violates the law through the negligence of his employees. Paragraph (c) will place willful violators in a special category subject to heavier penalties than those who violate the law inadvertently.

Publishers, radio broadcast licensees, and other media for the dissemination of advertising are not in many instances in a position to know the nature of the goods they advertise nor can they be expected to maintain the necessary laboratory equipment and staff of technicians to determine the facts. Accordingly, paragraph (c) will exempt such persons from liability under the law and place the responsibility where it rightly belongs, on the manufacturer or dealer of the advertised product who is in a position to know, and should know, whether the representations concerning his goods are true or false. However, if a publisher or other advertising medium should willfully refuse to furnish the name and post-office address of an advertiser, he would be held guilty of a misdemeanor and subject to penalty.

The existing law provides for a guaranty whereby a dealer who buys on faith may be protected from liability under the law. This provision has sa feguarded innocent dealers and has been extremely useful in fixing responsibility on guilty shippers. It would be continued in effect by paragraph (e). The bill affords in this paragraph further protection to the innocent dealer who distributes goods he has received from interstate sources. If he has failed to secure a guarantee he can escape penalties by furnishing the records of interstate shipment, thus allowing the prosecution to lie solely against the guilty shipper. Provision is also made in this paragraph to protect the dealer who disseminates advertising guaranteed to him by the manufacturer.

Retail dealers who sell only at their own establishments frequently advertise articles of local manufacture in small newspapers which are delivered through the mails or which may to some extent be carried across State lines. Since such advertisements are primarily local and not interstate, exemption from prosecution has been extended to retail dealers for such advertising which would otherwise be subject to Federal jurisdiction.

Section 305 contemplates the possible use of stamps, tags, or other identification devices on goods manufactured in plants operating

under permit, in order to aid enforcement officials in inspecting such articles found in the channels of interstate commerce. Paragraph (f) provides penalties for the forging, counterfeiting, or simulating of such identification devices. This provision is similar to one contained in the sea-food amendment to the present law. It is not intended that the manufacturer operating under permit should be authorized to use these identification devices for advertising purposes.

As a safeguard to manufacturers, paragraph (g) provides penalties for improper use or disclosure of any information obtained by Government inspectors under authority of sections 305 or 707 concerning any secret method or process in use in any plant.


In order that the law may be adequate to reach in every instance the person primarily responsible for its violation, section 709 (a) would make persons, firms, and corporations responsible for the acts of their employees or agents within the scope of authority conferred. A similar provision in section 12 of the existing law has proved satisfactory.

Paragraph (b) is designed to provide the additional scope necessary to prevent the use of the corporate form as a shield to individual wrongdoers. It is not, however, the purpose of this paragraph to subject to liability those directors, officers, and employees, who merely authorize their subordinates to perform lawful duties and such subordinates, on their own initiative, perform those duties in a manner which violates the provisions of the law. However, if a director or officer personally orders his subordinate to do an act in violation of the law, there is no reason why he should be shielded from personal responsibility merely because the act was done by another and on behalf of a corporation.

[merged small][merged small][ocr errors][merged small][merged small]


Section 710 would require the Secretary of Agriculture to afford notice and hearing to all parties interested before instituting criminal proceedings under the law. Thus a wholesaler who holds a guaranty from the manufacturer, as provided in paragraph (e) of section 708, would have an opportunity to make that fact known and thereby avoid criminal prosecution. It would also provide a safeguard against errors in findings of the administrative agency.

This section requires also that before a case is referred for criminal prosecution the Secretary, after reaching a decision to prosecute, shall afford the prospective defendant an opportunity for further hearing, upon cause shown satisfactory to the Secretary. The Secretary is not required, however, to grant this further hearing unless the prospective defendant shows some fact or condition which, in the Secretary's opinion, warrants a further hearing.

Violations of the law sometimes occur which are of technical or formal nature only and which do not result in deception or other imposition on public welfare. Usually such violations are inadvertent and their correction can be promptly effected by calling them to the attention of the manufacturer. This section would authorize


« PrécédentContinuer »