vertised, or some other grade, because as between three brands on the shelf, the brand I have seen advertised is the one I have the least resistance to, isn't it? And then, in the last analysis, would your statement mean this, that I may get the inferior brand of goods at the higher price because I am not familiar with that brand from advertising? Mr. KALLET. That is right now; what you get may not be an inferior brand; it may possibly be the best brand, but you have no way of knowing that. Senator MURPHY. I am trying to get what is in your mind. Isn't it probably that that is the only place that that could be put over on me is as the result of an advertising of an inferior brand and make me like it, because if you give me an unknown brand I am not likely to accept it at the highest price. Mr. KALLET. May I ask you a question? Supposing all the brands were unadvertised, and there was a range of different prices, would you be any better off then? Senator MURPHY. Except that I would not have the nonresistance that I would have to the advertised products. Mr. KALLET. That is right. Senator MURPHY. I am now nonresistant to the advertised product. It is easiest to accept. Advertising makes the difference, you think? Mr. KALLET. It makes a difference in what you buy. Senator MURPHY. That is very hard for me. Mr. KALLET. It certainly is. If I may cover just one more point, I would like to do so, and that relates to the advertising section, and I am concerned there chiefly with this proviso that any representation concerning any effect Senator COPELAND. Where is that? Mr. KALLET. That is Senate 2800, page 15, section 9. It reads: Any representation concerning any effect of a drug shall be deemed to be false under this paragraph if that representation is not supported by substantial medical opinion or by demonstrable scientific facts. As one of the witnesses yesterday said, the obverse of that would also be true, that is that a representation would not be false if supported by substantial medical opinion or demonstrable scientific facts. I feel that that proviso would very effectively nullify the obvious intent of the first part of the advertising section and go a long way to make the advertising control under this bill meaningless, and for the reason that both substantial medical opinion and demonstrable scientific facts which would be extremely persuasive to both courts and juries can be purchased. Senator HEBERT. Did you hear this suggestion made by the representative of one of the boards here, the Federal Trade Commission, this morning, on that one provision? He suggested this substitution for section 9-9 (a). That an advertisement of a food, drug, or cosmetic shall be deemed to be false if it is untrue or misleading in any material particular, and has the capacity and tendency by concealment, claim, representation, portrait, or graph to deceive or mislead the average person, and induce them to purchase when he would not do so if truthful. Mr. KALLET. That is the most terrible provision anybody could possibly write. It is a mess of verbiage that could be taken ad vantage of by lawyers and any court, and would certainly effectively nullify the intent of this proviso. Senator HEBERT. You like the provision in this bill? Mr. KALLET. I like the provision in S. 1944. Misleading is much more important than falsification in advertising, because the advertisers gain their ends chiefly by misleading, and the ambiguity or inference clause in the original bill was to my mind exceedingly important and should go back. Senator COPELAND. That is by ambiguity or inference? Mr. KALLET. Yes. The CHAIRMAN. Is that all? Mr. KALLET. Yes. The CHAIRMAN. I would like Mr. Campbell to take the stand for a minute. STATEMENT OF W. G. CAMPBELL The CHAIRMAN. Mr. Campbell, did you hear Mr. Kallet, the last gentleman who addressed the committee, refer to "Crazy Crystals " and the "Chamber of Horrors ", and so forth? Mr. CAMPBELL. Yes, sir. The CHAIRMAN. Do you have any knowledge of a "Chamber of Horror "? Mr. CAMPBELL. Yes, sir. The CHAIRMAN. You heard the suggestion that Vice President John N. Garner, because Crazy Crystals came from Texas was instrumental in having Crazy Crystals removed from the "Chamber of Horrors"? Mr. CAMPBELL. I heard it. The CHAIRMAN. State whether Vice President Garner had anything to do with that matter whatever. Mr. CAMPBELL. He did not, not to my knowledge, and if he had done it I think I would have had knowledge of it. The CHAIRMAN. Was this under you, this "Chamber of Horrors"? Mr. CAMPBELL. It was prepared by the Food and Drug Administration in the Department of Agriculture, and of course protests about the exhibits that were employed were made frequently to me, the Secretary, the Assistant Secretary, and others. There were a great many protests made about the exhibit of Crazy Crystals, I will say, Mr. Chairman. The CHAIRMAN. Was there any protest made by Vice President Garner? Mr. CAMPBELL. Not to my knowledge, and I think I would have known it had he made one. Senator HEBERT. The exhibit was removed? Mr. CAMPBELL. The exhibit was. Senator HEBERT. Can you state why? Mr. CAMPBELL. The manufacturers modified their advertising, they made the declaration to the Department that they intended to remove all misleading advertising, and on the basis of that declaration the exhibit was removed because it could not longer serve the purpose, at least so far as current products were concerned, to illustrate the disparity between statements on the label and statements of an advertising character other than on the label. The CHAIRMAN. Now I will call Miss Florence Wall. 43076-34-21 vertised, or some other grade, because as between three brands on the shelf, the brand I have seen advertised is the one I have the least resistance to, isn't it? And then, in the last analysis, would your statement mean this, that I may get the inferior brand of goods at the higher price because I am not familiar with that brand from advertising? Mr. KALLET. That is right now; what you get may not be an inferior brand; it may possibly be the best brand, but you have no way of knowing that. Senator MURPHY. I am trying to get what is in your mind. Isn't it probably that that is the only place that that could be put over on me is as the result of an advertising of an inferior brand and make me like it, because if you give me an unknown brand I am not likely to accept it at the highest price. Mr. KALLET. May I ask you a question? Supposing all the brands were unadvertised, and there was a range of different prices, would you be any better off then? Senator MURPHY. Except that I would not have the nonresistance that I would have to the advertised products. Mr. KALLET. That is right. Senator MURPHY. I am now nonresistant to the advertised product. It is easiest to accept. Advertising makes the difference, you think? Mr. KALLET. It makes a difference in what you buy. Senator MURPHY. That is very hard for me. Mr. KALLET. It certainly is. If I may cover just one more point, I would like to do so, and that relates to the advertising section, and I am concerned there chiefly with this proviso that any representation concerning any effect Senator COPELAND. Where is that? Mr. KALLET. That is Senate 2800, page 15, section 9. It reads: Any representation concerning any effect of a drug shall be deemed to be false under this paragraph if that representation is not supported by substantial medical opinion or by demonstrable scientific facts. As one of the witnesses yesterday said, the obverse of that would also be true, that is that a representation would not be false if supported by substantial medical opinion or demonstrable scientific facts. I feel that that proviso would very effectively nullify the obvious intent of the first part of the advertising section and go a long way to make the advertising control under this bill meaningless, and for the reason that both substantial medical opinion and demonstrable scientific facts which would be extremely persuasive to both courts and juries can be purchased. Senator HEBERT. Did you hear this suggestion made by the representative of one of the boards here, the Federal Trade Commission, this morning, on that one provision? He suggested this substitution for section 9-9 (a). That an advertisement of a food, drug, or cosmetic shall be deemed to be false if it is untrue or misleading in any material particular, and has the capacity and tendency by concealment, claim, representation, portrait, or graph to deceive or mislead the average person, and induce them to purchase when he would not do so if truthful. Mr. KALLET. That is the most terrible provision anybody could possibly write. It is a mess of verbiage that could be taken ad vantage of by lawyers and any court, and would certainly effectively nullify the intent of this proviso. Senator HEBERT. You like the provision in this bill? Mr. KALLET. I like the provision in S. 1944. Misleading is much more important than falsification in advertising, because the advertisers gain their ends chiefly by misleading, and the ambiguity or inference clause in the original bill was to my mind exceedingly important and should go back. Senator COPELAND. That is by ambiguity or inference? Mr. KALLET. Yes. The CHAIRMAN. Is that all? Mr. KALLET. Yes. The CHAIRMAN. I would like Mr. Campbell to take the stand for a minute. STATEMENT OF W. G. CAMPBELL The CHAIRMAN. Mr. Campbell, did you hear Mr. Kallet, the last gentleman who addressed the committee, refer to "Crazy Crystals and the "Chamber of Horrors ", and so forth? Mr. CAMPBELL. Yes, sir. The CHAIRMAN. Do you have any knowledge of a "Chamber of Horror "? Mr. CAMPBELL. Yes, sir. The CHAIRMAN. You heard the suggestion that Vice President John N. Garner, because Crazy Crystals came from Texas was instrumental in having Crazy Crystals removed from the "Chamber of Horrors"? Mr. CAMPBELL. I heard it. The CHAIRMAN. State whether Vice President Garner had anything to do with that matter whatever. Mr. CAMPBELL. He did not, not to my knowledge, and if he had done it I think I would have had knowledge of it. The CHAIRMAN. Was this under you, this "Chamber of Horrors"? Mr. CAMPBELL. It was prepared by the Food and Drug Administration in the Department of Agriculture, and of course protests about the exhibits that were employed were made frequently to me, the Secretary, the Assistant Secretary, and others. There were a great many protests made about the exhibit of Crazy Crystals, I will say, Mr. Chairman. The CHAIRMAN. Was there any protest made by Vice President Garner? Mr. CAMPBELL. Not to my knowledge, and I think I would have known it had he made one. Senator HEBERT. The exhibit was removed? Mr. CAMPBELL. The exhibit was. Senator HEBERT. Can you state why? Mr. CAMPBELL. The manufacturers modified their advertising, they made the declaration to the Department that they intended to remove all misleading advertising, and on the basis of that declaration the exhibit was removed because it could not longer serve the purpose, at least so far as current products were concerned, to illustrate the disparity between statements on the label and statements of an advertising character other than on the label. The CHAIRMAN. Now I will call Miss Florence Wall. 43076-34-21 STATEMENT OF MISS FLORENCE E. WALL, CONSULTANT IN COSMETIC CHEMISTRY, NEW YORK CITY Miss WALL. Mr. Chairman and members of the committee, it is very late. I have been here for 3 days waiting to give what information I could, and I ask you to bear with me. I will have to be very brief. We are here for the purpose of discussing Senate bill 2800. I find that I must jerk myself back, and perhaps I must jerk you back roughly from the Utopia in which we have been wandering for a while. Senator HEBERT. For the record, will you state whom you represent? Miss WALL. Again I have the privilege of appearing before you as the representative of no interest, but just as a consulting chemist. I know cosmetics from factory to face, as they say, and I can speak impartially about this bill, Senate 2800, as it will affect the cosmetic industry. Senator HEBERT. Are you engaged in furnishing information for any cosmetic manufacturer? Miss WALL. I work as a consultant entirely. Senator HEBERT. In other words, your services are sought out by manufacturers of cosmetics? Miss WALL. I work for manufacturers, I work for advertising agencies, and I work generally on technical matters as applied to cosmetics and the cosmetic industry. Senator HEBERT. You maintain a laboratory? Miss WALL. No. For years I have supported the idea of some form of regulation of the great cosmetic industry, but I strongly opposed Senate 1944, because, while it purported to protect the public, it did not put the emphasis where it belongs, on the protection of the consumer, by means of protecting the legitimate manufacturer and the eliminating of the "fly-by-nighter" who competes with him. S. 1944, in my opinion, insofar as it related to cosmetics, was entirely punitive in its measures and not protective. The inference seems to be that the cosmetic business never gets a lick amiss, and practically all the propaganda for a bill to control cosmetics is based on the assumption that the cosmetic manufacturer is a crook or a malefactor who deliberately uses harmful and deadly chemicals that threaten the beauty, health and happiness of our fair country I might interpolate here that somebody made a facetious remark that the cosmetic bill for a certain year had been something like $347,000,000, and with service counted in it would be somewhat over a billion dollars; but that all you had to do would be to stand somewhere at the intersection of the principal streets of America and you would see that whatever was spent was not enough. If it were in fact so that everybody engaged in the business is a crook or a malefactor it would not be reasonable to think that the cosmetic business would jump from the negligible position that those preparations occupied in 1906. What were they? They were just odds and ends on the shelves of the department stores and drug stores. As I say they would not have jumped to the enviably high |