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the enforcing agency to follow this course. It is not intended that this procedure should apply where the violation is more than merely technical and becomes one of substance rather than form. In no event is the conventional legal procedure denied if such action is necessary to effect compliance.
SECTION 711. SEIZURE
Section 10 of the Food and Drugs Act provides for the seizure by a process of libel for condemnation of adulterated or misbranded food and drugs found in the channels of interstate commerce. Paragraph (a) of section 711 would continue in effect this form of remedial action against adulterated or misbranded food, drugs, or cosmetics. The false advertising of such goods would not render them subject to seizure but the advertiser would be subject to criminal prosecution under the provisions of section 708. Because of their potentially dangerous character, goods shipped from a factory not holding a permit, when so required under section 305, would be subject to seizure in the same manner as those found upon objective examination to be adulterated or misbranded.
In addition to providing for seizure by the conventional process pursuant to libel which frequently consumes considerable time, paragraph (a) would also provide for seizure in cases where the enforcement officials have probable cause to believe that the article under investigation is so adulterated as to be imminently dangerous to health; that is to say, certain officials of the Department of Agriculture specifically designated by the Secretary would be authorized to effect seizure of such goods before the filing of a libel in court. The facts must then be promptly reported to the United States Attorney for the filing of a libel. Similar authority, but of much broader scope, is generally conferred upon State and municipal health officers and in some instances there is no provision for a court review of their action. Under this bill seizure by the designated enforcement officials would be followed by full court review before the goods would be liable to destruction. Occasions for the use of such seizure procedure would be rare, but the need for such authority is imperative where conditions of serious danger to health arise.
Paragraph (b) of this section is a complement of the executive seizure provision of paragraph (a) and provides that when a judgment is entered against the seizing officer because the goods were mistakenly seized the amount of the judgment will be paid from appropriations for the administration of this act if the officer had probable cause to make the seizure. Without such provision it is possible that officers having ample probable cause would hesitate to take the action necessary to protect the public against imminent danger, because any judgment obtained on civil suit would have to be borne entirely by himself. Should a seizure be made without probable cause, the officer would have to pay the amount of the judgment out of his own pocket. This would serve as an effective deterrent against improper use of the authority conferred by this section.
Paragraph (c) directs the courts to allow any party to a seizure proceeding to obtain representative samples of the goods seized. No such provision is in the present law.
Paragraph (d) sets forth substantially the provision of the present law concerning the condemnation of goods seized and authorization for the release of such goods under bond for reconditioning after entry of a decree of condemnation and forfeiture, where such reconditioning appears equitable and feasible to the court.
Paragraph (e) specifies, as does the present law, that seizure proceedings shall conform as nearly as may be to proceedings in admiralty except that either party may demand trial by jury. This paragraph contains an additional provision not found in the present law whereby when several seizures are pending in different jurisdictions all can be removed for trial to any one of such jurisdictions upon application by the claimant. This should be of distinct advantage to the claimant over what is provided by the present law.
Paragraph (f) provides for the award of costs against claimants of seized goods after such goods have been condemned by the courts. The present law is silent on this point.
Paragraph (g) authorizes the courts, upon application of the manufacturer, to enjoin the enforcing agency against any multiplicity of seizure actions for cause shown satisfactory to the court and consistent with the purpose of the act. This provision is not contained in the present law.
SECTION 712. INJUNCTION PROCEEDINGS
Section 708 authorizes criminal prosecution of shippers of adulterated or misbranded food, drugs, and cosmetics, and the disseminators of false advertising. Section 711 authorizes the seizure of adulterated or misbranded goods. These remedies are inadequate for consumer protection where a manufacturer indulges in frequent and repeated violations. The institution of criminal and libel proceedings as a measure to prevent further violations and thus effect protection of the public might result in an inordinate multiplicity of actions. In order to prevent such a multiplicity of suits, section 712 confers jurisdiction on several District Courts of the United States to restrain by injunction, temporary or permanent, any person from repetitious violation of the law.
Violation of such an injunction is punishable by contempt proceedings. Under the language of this section, however, contempt proceedings cannot be instituted by reason of the dissemination, after the injunction was issued, of the false advertisement which was the basis of the injunction if such dissemination was beyond the control of the person enjoined. This provision is considered necessary because advertisements are locked in the forms of some magazines long before the publication actually is distributed. In the meantime, an injunction might issue against an advertiser for some previous dissemination of an advertisement included in the forthcoming issue of the magazine. It would be unfair to authorize contempt proceedings in such circumstances.
SECTION 713. DUTIES OF THE UNITED STATES ATTORNEYS
Section 5 of the existing law requires United States attorneys to accept the results of investigations by the Secretary of Agriculture and to commence appropriate proceedings in the proper courts of the United States for the enforcement of the law. It also authorizes United States attorneys to institute proceedings upon the presentation of satisfactory evidence by State health, food, or drug officials. This procedure has proved both effective and satisfactory. This section of the bill would continue the same procedure in all civil actions and in criminal actions where the proceeding is upon a misdemeanor. Felonies would necessarily have to be investigated by a grand jury before a proper indictment could be returned.
SECTION 714. IMPORTS AND EXPORTS
Section 11 of the Food and Drugs Act confers authority on the Secretary of the Treasury and the Secretary of Agriculture to apply jointly the provisions of the law to articles of food and drugs offered for import into the United States, and to effect the exclusion of such food and drugs where they are found to be in violation of the law. This provision has worked satisfactorily and hence it would be continued in effect by paragraphs (a), (b), and (c) of section 714 of this bill.
Section 2 of the existing law contains a proviso setting up exemptions fo articles offered for export to foreign countries. Substantially the effect of this provision would be continued by paragraph (d) of this section. It should be noted that this paragraph would require only those goods to be marked “For export” which did not conform with the requirements of the law applicable to domestic trade.
SECTION 715. PUBLICATION
Section 4 of the present law directs the Secretary of Agriculture, after judgment in each case, to give notice of such judgment by publication. This provision has proved satisfactory within the limits of its scope, and hence will be continued in effect by the provisions of section 715 of this bill. Further specific authority would be conferred upon the Secretary to disseminate information regarding food, drugs, or cosmetics which are imminently dangerous to public health or grossly deceptive. When a product is inimical to public health or a fraud on the consumer, it is highly important that such knowledge be immediately disseminated to the public. The bill would continue the authority the Department of Agriculture has had for 30 years or more to collect, illustrate, and report the results of its investigations.
SECTION 716. SEPARABILITY CLAUSE
In the event any provision of the bill should be held unconstitutional, or its applicability to certain persons or circumstances held invalid, section 716 would serve to preserve the remainder of the act insofar as it might continue to be applicable.
SECTION 717. EFFECTIVE DATE AND REPEALS
The bill would become effective 1 year after its approval. The existing law would remain in force and effect until that date and would then be repealed. Violations of the existing law occurring prior to its repeal would be subject to its provisions after repeal so long as they are not barred by limitation statutes. The repealing provision would except from its operation the act of March 4, 1923, defining butter and providing a standard therefor; the act of July 24, 1919, defining wrapped meats as in package form; and the act of June 22, 1934, authorizing the inspection of establishments packing sea food upon application of the packers. These acts have similar application to this bill and should be preserved.
The committee suggests the amendment of the title of the act, to be found at the end of the bill, with a view to stating its purpose more accurately and comprehensively.
FOODS, DRUGS, AND COSMETICS
MARCH 13 (calendar day, APRIL 4), 1935.-Ordered to be printed
Mr. BAILEY, from the Committee on Commerce, submitted the
[To accompany S. 5]
The undersigned members of the Committee on Commerce submit a minority report on the subject of S. 5.
In submitting this report, each of the subscribers desires to say that he is in full accord with every proper effort to protect the American public against injurious and fraudulent practices in respect to foods, drugs, and cosmetics, and further that he is in sympathy with the principles laid down by the President in his message to the Congress. There is no disposition to prevent the passage of proper and well-considered legislation. On the other hand, we are submitting this report with the view to constructive improvement of the bill, with the view to preventing undue hardships upon the innocent and at the same time providing a proper law to restrain wrongdoers and protect all consumers. Notwithstanding that the legislation has been before the Congress a considerable period, we feel that a careful review of the bill now before the Senate is necessary and that it should be extensively revised and amended. The bill expands the existing law so as to include not only cosmetics, but also the broad field of advertising drugs, foods, and cosmetics.
When the original act, known as the “Wiley Act”, was adopted in 1906, the administration of it was committed to the Department of Agriculture for the reason that it dealt with foods principally, but now that it is proposed to deal not only with foods and drugs, but also with cosmetics and advertising, we suggest that it might be well to consider that we now have a Department of Commerce and a Trade Commission to which matters relating to commerce and trade might well be committed.
The undersigned call attention to the fact that a great deal is involved in the way of commerce. We are informed that the value of manufactured food and kindred products in the year 1931, accord