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deaths per year, or one for each hundred cars manufactured, to say nothing of the million lesser casualties occurring.

Senator COPELAND. Wouldn't you have any brakes on your machine?

Dr. EVANS. Certainly.

Food unfit for use takes its annual quota and drugs must be paid for with lives. I believe that a very fair proportion of people injured by cosmetics are amply compensated for the temporary injury through claims for damages. Occupational disease in cosmetics is rare and easily controlled. Manufacturers try to be careful of the welfare of their customers. Their customers are their only real asset. They are constantly developing newer and better products and they deserve encouragement, for in this way only lies the greatest protection to the consumers' purse and the consumers' person. I am absolutely sincere in that position.

Mr. Chairman, my remarks are worded entirely from the technical aspect of the bill from the cosmetic point of view. Aside from Mr. Mock yesterday, I think I am the only speaker who has so far devoted this much attention to the third industry of the three to be controlled by this bill, and Judge C. N. Goodwin will discuss with you the legal aspect of the changes which have been suggested. Thank you.

The CHAIRMAN. I will make this announcement. It is now 12. We will take a recess until 2 o'clock. The order of appearance at that time, the first three, will be Judge Goodwin first, Mr. Kallet second and Mr. Dun third, and we will try to accommodate the other ladies and gentlemen as rapidly as we can.

(Whereupon, at 12 o'clock m., a recess was taken until 2 o'clock p.m.)

AFTER RECESS

The CHAIRMAN. Come to order, please. Judge Goodwin will be the next speaker.

STATEMENT OF HON. CLARENCE N. GOODWIN, COUNSEL FOR ALLIED MANUFACTURERS OF THE BEAUTY AND BARBER INDUSTRY

Judge GOODWIN. Mr. Chairman, and members of the committee; I think that Dr. Evans has covered the technical ground of some of the objections that I wish to urge, and in what I have to say about them, I wish to be very brief.

So far as the first objection is concerned, I think that the ground of it is very well stated. I just sum it up in this way. Section 4 deals with adulterated drugs and section 5 deals with adulterated cosmetics. There is no reason why the language used in section 4 should not be applied with equal force to section 5. In one case we have drugs which are taken internally, and used externally. In the other we have cosmetics, which are applied only externally. In the external application of drugs and the external application of cosmetics, the only difference is the purpose for which the application is made.

The language of section 4 (a) is that a drug shall be deemed to be adulterated

If it is dangerous to health under the conditions of use prescribed in the labeling thereof.

We have a rather involved provision in section 5, which is not altogether easy to construe, and it is:

A cosmetic shall be deemed to be adulterated if it bears or contains any poisonous or deleterious substance in such quantity as may render it 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.

Now, I spent a great deal of time I wasted a great deal of time discussing with Dr. Evans the question of whether, when you correctly interpret that language, it did not mean exactly what is said in section 4, and when I got through the suggestion was, Well, that may be so, but you have 60 or more different judges in different districts, interpreting that, and an equal number of district attorneys, and what assurance is there that that language or interpretation of the language would be adopted?"

You gentlemen of the committee must appreciate the fact that this is a criminal statute, and among other things not only regulatory but criminal. There are provisions also for the libeling of property and the seizing of property, and it is therefore exceedingly important, not only for the cosmetic industry, but for those interested in drugs and food, that the language shall be so clear that there cannot be any possible doubt about what it means. I see no reason why the cosmetic and the statement of what shall be deemed to be adulterated in cosmetics, should not be exactly the same as in the case of the drug. The danger from the use of an adulterated drug is patently greater than the danger to health from the cosmetic. The one, in the main, is taken internally, the other externally, and so, while other modifications might be made, such as the chairman suggests, with reference to section 5 (a), it seems infinitely simpler and in the interest of uniformity to adopt the definition of "adulteration" in connection with the drug. Then, we have uniformity between the two sections.

Now, so far as the discussion of subsection (b) of 5 is concerned, and the question of whether the Secretary should be given power to prohibit the use of a poisonous or deleterious ingredient, that seems to me to be purely academic and hardly worth discussing. In another day and under other constitutional conditions, you gentlemen, and those associated with you, were able to effect a very complete prohibition by the insertion in the bill of a tolerance of one half of 1 percent. Now, there is no practical difficulty in the way of absolutely prohibiting the use of any drug or deleterious ingredient, by fixing so low a percentage of tolerance that it could not be used with any practicability; and so I see no reason for arguing extensively for the elimination of words, where the elimination of the words would really mean nothing. So that disposes, so far as I am concerned, of section 10, as well as section 5.

Senator COPELAND. Well, Judge, if subsection (a) of section 5 were to be changed to read to give a way of taking it to the scientific committee.

Judge GOODWIN. You refer to section 3?

Senator COPELAND. No. You are finding fault with section 5, subsection (a), are you not?

Judge GOODWIN. You say "finding fault with it?"

Senator COPELAND. I mean, that is what you are discussing?

Judge GOODWIN. Well, I am trying to criticize it constructively.

Senator COPELAND. Well, I want to be helpful in the matter, Judge. I am trying to find out exactly what you want.

Judge GOODWIN. Well, I.think that in subsection (a)—that is, the language of subsection (a) of section 4, if it were adopted in 5, with the addition which was suggested this morning by Dr. Evans, we would have a complete unity between the definition of "adulterated drugs" and "adulterated cosmetics."

Senator COPELAND. That is what I tried to say. What you are wishing is that subsection (a) of section 5 be deleted and in place of: it the language of subsection (a), section 4, be substituted?

Judge GOODWIN. Yes, if you please, Senator Copeland; but there was an addition which, perhaps, for the protection of the public, should be added, because in the case of drugs we have labels, or we have directions for their use on the label, and so it was suggested that in addition there be added the words "or if no conditions of use are thus prescribed then under such conditions of use as are customary or usual."

Senator COPELAND. Well, would you not get the same thing that you had in mind, if you had, in place of this subsection (a) the subsection (a) under section 4?

Judge GOODWIN. Yes; but with that addition. Now, as I was saying in the case of drugs, you have a label ordinarily with conditions of use, so that our suggestion is that the language be "If it is dangerous to health, under the conditions of use prescribed in the labeling thereof, or if no conditions of use are thus prescribed, then under such conditions of use as are customary or usual ", retaining in the section the last phrase.

I think that that last phrase is in the interests of public protection, Senator, and that is the only reason for suggesting it. But much of this is too small to have any label with directions.

Senator COPELAND. Provision is made for that.

Judge GOODWIN. Pardon me?

Senator COPELAND. Provision is made for the small package.

Judge GOODWIN. Yes; but in this case we want to define the circumstances under which it is dangerous to public health. In the section as it now stands, Senator, it is said: "Under the conditions of use prescribed in the labeling thereof, or under such conditions of use as are customary or usual.

What we want to add to section 4 is practically that last phrase as it now appears in section 5-" or under such conditions of use as are customary or usual ", but limiting that to cases where the conditions of use are not expressed upon the label.

May I read it just once more? We suggest the use of the phrase "if it is dangerous to health under the conditions of use prescribed in the labeling thereof." That is 4 as it stands. And then we sug gest the addition, "or if no conditions of use are thus prescribed, then under such conditions of use as are customary or usual."

So that we have it either way. If you have conditions of use prescribed in the label, and it is not dangerous in accordance with those conditions, then we are in exactly the same situation as in the case of drugs. Do I make that clear, Mr. Chairman?

The CHAIRMAN. I think so; yes.

Judge GOODWIN. Very well. Now, in connection with section 22 (b), I would like to spend a moment on this, if I may.

Senator COPELAND. If you will pardon me just a moment-
Judge GOODWIN. Yes.

Senator COPELAND. The change you wish to have is that subsection (a) of section 5 read:

If it is dangerous to health under the conditions of use prescribed in the labeling thereof, or under such conditions of use as are customary or usual. Judge GOODWIN. No.

Senator OVERTON. That is not it.

Judge GOODWIN. No; there was another phrase in there" or in the absence" or "or if no conditions of use are thus prescribed, then under such conditions of use as are customary or usual."

The suggestion is made with reference to section 22. Section 22 provides for a committee on public health. It was suggested this morning, and I repeat the suggestion, that at the end of (b) there be added these words:

two members to be selected by the President from the food producing, processing, and manufacturing industry; 2 from the drug industry; and 2 from the cosmetic industry; all of whom shall be selected for their scientific attainments and training in their respective industries. The members thus chosen from an industry shall sit as members of the committee, only when regulations concerning their own industry are under consideration.

Senator COPELAND. Now, will you recite again your proposed set-up? Let us have it once more.

Judge GOODWIN. Just continuing, in order to give the sense:

A committee of public health is hereby provided, which shall consist of 11 members, 5 designated by the President, with a view to their distinguished scientific attainments and interest in public health, and without regard to their political affiliation, 2 members to be selected by the President from the food producing, processing, and manufacturing industry; 2 from the drug industry; and 2 from the cosmetic industry; all of whom shall be selected for their scientific attainments and training in their respective industries. The members thus chosen from an industry shall sit as members of the committee only when regulations concerning their own industry are under consideration.

Now public hearings are to be held. That is quite true. Public hearings, I take it, analogous to the ones that are being held now with reference to this bill; but it seems that when questions affecting drugs are concerned, and a committee of five is meeting, they will meet not only in public hearings but they will meet in private conference before and after the hearings; but in the hearings, as well as before and after, it will be exceedingly desirable if there are sitting with them two men from the industry, scientifically trained and familiar with the industry, who can make suggestions to the other members of the committee, in regard to the regulations that are to be adopted. Sometimes the regulations proposed would be ineffective without such counsel. Sometimes some of the mischief sought to, be remedied would be overlooked without such counsel.

I have in mind, Mr. Chairman and members of the committee, quite a number of years ago, when I was on the bench, while I was in London, through the grace of the ambassador, I met Sir Bargrave Dean, who was sitting in admiralty, and he embarrassed me very much by asking me to sit with him, but on his left sat one of the Trinity House brethren. I do not want to get too far away, but the question involved was a question of a right to salvage in the case of a ship in distress, and the amount involved was very considerable, about £250,000. Now, when any question of a technical character

came up, the judge would turn to the Trinity captain and ask him his advice and information in regard to that technical subject. Now, if this committee of five can have with them during the times that they are formulating regulations, two men who are expert in the particular industry, they may follow their advice or they may not, but it is bound to eliminate a lot of misunderstanding, and it is bound to go a long way toward making the regulations understandable, just, and effective.

Senator COPELAND. There would be seven men, then, acting whenever any given article was up for consideration, would there not? Judge GOODWIN. No, if you please.

Senator COPELAND. There would be the regular 5, and then, if there were a food matter, there would be 2 more? Judge GOODWIN. Yes.

Senator COPELAND. That would be seven.
Judge GOODWIN. Yes.

Senator COPELAND. Or, for a cosmetic matter, there would be two?
Judge GOODWIN. Yes.

Senator COPELAND. So you would have seven as the membership of the Board?

Judge GOODWIN. Seven members of the committee. I think they should, as members of the committee, be given a vote, because those representing the public are 5, and those of the industry are 2, and it is not fully certain that they will divide on those lines, but they should be there. What you could get out of a public hearing is not always so much, but what you can get sitting around a table with scientific men, and sitting with the Secretary is a great deal, and we find often, sitting in conference in that way, that things that we thought were matters of difference are very easily ironed out and remedied. I think, perhaps, I have taken too much time on that, but you understand what I am suggesting.

Now, with reference to section 22 (h) we have an objection which is an entirely different matter. The industry objects to the last sentence in section 22 (h) for the reason that it is unnecessary, unjust, and a denial and a reversal of the most fundamental principles of court and criminal procedure.

Senator COPELAND. Judge, are you considering that sentence now as it is written in the bill you have before you?

Judge GOODWIN. As it is written in the bill I have before me. Senator COPELAND. You are not aware of the change the subcommittee has in mind. This sentence was dragged over from the original bill.

Judge GOODWIN. Yes, sir.

Senator COPELAND. And it should now read: "In formulating regulations under paragraphs (b), (c), and (d) of this section." Judge GOODWIN. (d)? What is that?

Senator COPELAND. That is where there is to be the public hearing. Judge GOODWIN. Yes, yes.

Senator COPELAND. And then the words "of fact" are omitted. "Under paragraphs (b), (c), and (d) of this section, the findings by the Secretary shall be conclusive if in accordance with law."

Judge GOODWIN. Well, Senator Copeland, from our point of view, doesn't that make it worse?

Senator COPELAND. I don't think so.

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