advertisement is supported by substantial medical opinion or scientific facts, and then rely on the statutory presumption created by "deemed to be false.” The defendant labeler or advertiser must prove that the label or advertisement is so supported or be guilty of a falsehood and forfeit his freedom and his business. Our Anglo-American system of law has always considered the defendant in a criminal suit to be innocent until proved guilty beyond every reasonable doubt.

The proposed Food and Drugs Act has inverted this cherished safeguard. Instead of saying that the labeler or advertiser is to be considered innocent as long as any reasonable doubt remains as to the falsity of the label or advertisement, the act deems the label or advertisement false (until proved to be true) and the labeler or advertiser guilty no matter how many reasonable doubts are present. Under our present criminal law the blackest felon, be he murderer, or kidnaper, can rest in court without putting in any evidence and secure acquittal if the Government does not prove its case beyond every reasonable doubt. Under the proposed act the Government can rest in court and still secure the conviction of an honest and good-intentioned business man if the latter does not affirmatively prove the truth of his statements. "SEC. 8. A drug shall be deemed to be misbranded

(a) If its labeling bears the name of any disease for which the drug is not a specific cure but is a palliative and fails to bear a plain and conspicuous statement, so placed as to be readily observable where such name occurs, indicating that the drug is a palliative and how the palliation is effected. "SEC. 9. (b) An advertisement of a drug shall also be deemed to be false if it contains the name of any disease for which the drug is not a specific but is a palliative and fails to contain a plain and conspicuous statement, so placed as to be readily observable where such name occurs, indicating that the drug is a palliative and how the palliation is effected.

Who is to decide whether a drug is a cure or only a palliative? Drugs cannot be placed in water-tight compartments marked "cure", and "palliative." Whether a drug is a cure or merely a palliative will often depend on the constitution of the individual using it, the manner of his use, the stage of the disease at the time treatment was started. Perhaps the general agreement of medical opinion is to be the norm. But frequently there is no general agreement of medical opinion. For example, as to the medical merits of common drugs like aspirin and alcohol there are both deniers and affirmers. Let us assume that the medical profession will band together and form general agreements. To make medical agreement the law's standard is like enacting that the employers' agreement shall be the standard in all wage disputes under the N.R.A. No judge will hear a case in which he has a personal interest. The medical profession should not be asked to judge a proprietary medicine because many doctors believe that the success of such medicines is contrary to the prosperity of their profession.

Mountain Valley Water has many friends in the medical profession. Thousands of physicians have prescribed the water to their patients. We are sincere believers in professional diagnosis and treatment; we also believe that the medical profession is not the best judge of its alleged competitors. And if the medical profession is not a competent judge, we see no reason for permitting a minor official in the Department of Agriculture to make the decision, or for permitting one of the Department's many chemists to pass on the subtle physiological differences between palliation and cure. Hairline distinctions of this sort should not be a basis for criminal liability.

"SEC. 9. (c) To discourage the public advertisement for sale in interstate commerce of drugs for diseases wherein self-medication may be especially dangerous, or patently contrary to the interests of public health, any advertisement of a drug representing it to have any effect in the treatment of any of the following diseases shall be deemed to be false: Albuminuria, appendicitis, arteriosclerosis, blood poison, bone diseases, cancer, carbuncle, cataract, cholecystitis, dental caries or erosion, diabetes, diphtheria, dropsy, encephalitis, epilepsy, erysipelas, gallstones, goiter, heart diseases, high blood pressure, mastoiditis, measles, meningitis, mumps, hephritis, otitis, media, paralysis, pericdantal diseases, pneumonia, poliomyelitis, prostate-gland disorders, pyelitis, scarlet fever, sexual impotence, sinus infections, smallpox, tuberculosis, tumors, typhoid, uremia, venereal diseases, and whooping cough; except that no advertisement not in violation of paragraph (a) or (b) of this section shall be deemed to be false under this paragraph if it is disseminated to members of the medical and pharmaceutical professions only or appears in the scientific periodicals

of these professions, or if it is disseminated for the purpose of public-health education by persons not commercially interested, directly or indirectly, in the sale of such drugs; provided, that whenever the Secretary determines that an advance in medical science has made any type of self-medication safe as to any of the diseases enumerated above, he shall promulgate regulations, as provided by section 22, exempting the advertisement of drugs having curative or therapeutic effect for such disease from the operation of this paragraph, subject to such conditions and restrictions as may be necessary in the interests of public health."

Herein the right to self-medication is explicitly denied. The proponents of S. 2800 have flattered the prohibition advocates by imitation. Because liquor was unsafe in the hands of some, it was forbidden to all. Because a few gullible people have subscribed to dangerous or preposterous remedies for these diseases, self-medication is forbidden to all. The patient must see a physician or do without medication.

We submit that self-medication for some of the aforesaid diseases through the drinking of Mountain Valley water is not only not dangerous but is decidedly beneficial. Mountain Valley water has been used by sufferers from diseases of the kidneys, stomach, and bladder for 75 years. It has been prescribed by physicians as an aid in the treatment of albuminuria, arteriosclerosis, cholecysetitis, diabetes, dropsy, high blood pressure, nephritis, pyelitis, and uremia, for over 50 years. We have in our files the names and addresses of 1,112 physicians who are prescribing Mountain Valley water for these and other diseases.

The fifth amendment forbids depriving any person of property save by due process of law. The effect of section 9 (c) is to render valueless private property, viz, the Mountain Valley spring, not by judicial decree, but by fiat order from which there is no appeal.

SEC. 17. (b) Any person who violates or causes to be violated any of the provisions of paragraph (a) of this section shall be guilty of a misdemeanor and shall on conviction thereof be subject to imprisonment for not more than 1 year, or a fine of not less than $100 nor more than $1,000, or both such imprisonment and fine; and for a second or subsequent offense imprisonment for not more than 2 years, or a fine of not less than $100 nor more than $3,000, or both such imprisonment and fine.

We object to this section because it provides criminal punishment for acts which may have been done without criminal intent by reputable business men in the course of conducting legitimate businesses.

SEC. 16. (a) Any article of food, drug, or cosmetic in interstate commerce that is adulterated or misbranded or that has been manufactured, processed, or packed in a factory or establishment, the operator of which did not, at the time of manufacture, processing, or packing, hold a valid permit, if so required by regulations under section 12, shall be liable to be proceeded against while in interstate commerce or at any time thereafter on libel of information and condemned in any district court of the United States within the jurisdiction of which the article is found. The article shall be liable to seizure (1) by process pursuant to the libel, or (2) if a chief of station or other officer of the Food and Drug Administration, duly designated by the Secretary, has probable cause to believe that the article is so adulterated as to be imminently dangerous to health, then, and in such case only, by order of such officer, issued under his oath of office, particularly describing the article to be seized, the place where located, and the officer or employee to make the seizure. In case of seizure pursuant to any such order, the jurisdiction of the court shall attach upon such seizure. Any article seized pursuant to any such order shall thereupon be promptly placed in the custody of the court and a libel of information shall be promptly filed for condemnation thereof.

SEC. 21. The Secretary shall cause to be published periodically a report summarizing all judgments, decrees, and court orders which have been rendered, including the nature of the charge and the disposition thereof. The Secretary shall also cause to be disseminated such information regarding food, drugs, or cosmetics as may be necessary to protect against danger to public health or fraud upon the consumer: Provided, That no such information shall be so disseminated regarding any brand of food, drug, or cosmetic before rendition of final judgment in proceedings against it except in cases involving imminent danger to health or gross deception of the consumer.

We object to these sections because taken together they give the Secretary ample power to stop commerce in a drug without proceeding to judgment in

court. As detective the Secretary spys on the defendant labeler or advertiser, as sheriff the Secretary serves the defendant with notice to appear for a hearing (sec. 22 (h)), as prosecutor the Secretary pleads his case against the defendant's merchandise to seizure, Nation-wide adverse publicity, and presents evidence to the district attorney for the defendant's indictment.

To give a concrete illustration why section 21, even in its modified form gives its authors such full and final power over the very existence of the proprietary drug industry as to arouse widespread alarm and distrust, we call your attention to the fact that the authors of this proposed act have been enforcing the original section 21, as though it were already law. Last summer exhibits were placed by the Department of Agriculture in 12 key cities, and in the Federal building at the Century of Progress Exhibition, which had all the force of governmental condemnation. In this exhibit involving Mountain Valley Water the facts are, that 19 years ago the Department of Agriculture objected to the claims made on the bottle labels by an overzealous Philadelphia retailer. The labels were revised to the Department's satisfaction. There has been no subsequent violation of the law. But the impression given to the public was that Mountain Valley Water had recently been mislabelled and was today being falsely advertised.

Mountain Valley Water is a natural mineral water that flows from a spring located near Hot Springs, Ark., and has helped to make famous that nationally celebrated resort. Every chemist who has ever analyzed Mountain Valley Water has reported it to be pure and wholesome. Yet in these exhibits our product was pilloried alongside of Marmola, Banbar, Lash, Lure, and so forth. To the average visitor, his Government, the greatest Government in the world was sounding a warning. He did realize that the Department of Agriculture was only lobbying, that it was spending the taxpayers' money in propaganda for S. 2800.

If those officials in the Department of Agriculture who drafted this proposed act in its original form had the effrontery to enforce a part of the bill (the publicity clause) before its enactment, can we safely assume that the same men will be fair and careful in their exercise of these great powers after its passage, We cannot believe that the men who arbitrarily assumed these powers and capriciously enforced them will become just and cautious once these vast powers are legally theirs.

It is true that as section 21 now stands the Secretary cannot disseminate adverse publicity before final judgment is had against a product or concern, except in cases involving imminent danger to health or gross deception of the consumer. On its face this section appears fair and unobjectionable. The catch is that the Secretary (in practice a subordinate official) is to be the judge of what constitutes gross deception of the consumer. Section 23, which gives the courts power to review the Secretary's regulations, if "unreasonable, arbitrary, capricious ", does not apply to section 21. The Secretary may stay within the ordinary understanding of " gross deception." But if he does not, the drugs vender has no effective recourse. He cannot compete for public goodwill against the millions of taxpayers' dollars that will be at the disposal of the Secretary.

We respectfully submit that the proposed Food and Drugs Act is discriminatory, deprives the people of the right to self-medication, and concentrates an arbitrary and excessive power in the Secretary of Agriculture, a power that is not necessary for the correction of current evils, and which is foreign to our democratic form of Government.

We therefore earnestly petition this committee that this proposed act be withdrawn or that the herein cited passages be stricken out.

BRIEF SUBMITTED BY HENRY A. BELLOWS, CHAIRMAN OF THE LEGISLATIVE COMMITTEE OF THE NATIONAL ASSOCIATION OF BROADCASTERS, NATIONAL PRESS BUILDING, WASHINGTON, D.C.

To the Committee on Commerce of the United States Senate:

GENTLEMEN: The National Association of Broadcasters on Thursday, December 7, 1933, filed with your committee a statement regarding S. 1944. That statement, together with the lists of members and officers of this association, appears on pages 120-132 of the printed report of the hearings on S. 1944, and consequently the lists are not here repeated.

While S. 2800 represents, from the standpoint of the radio broadcasting industry, a material improvement over S. 1944, there remain certain specific

objections which this association desires to point out to your committee. In so doing, this association wishes to make it clear that there are many other features of S. 2800 which appear to be open to criticism, but which, because they do not immediately and directly affect the broadcasting industry, are not specified in this memorandum.

1. Page 3, lines 15-17. This paragraph defines advertising as "all representations of fact or opinion disseminated in any manner or by any means other than by the labeling."

Such a definition, if taken literally, is manifestly absurd. It is not an advertisement if A tells B that he thinks X Remedy cured his headache, yet such a statement falls absolutely within this definition. Further, under the terms of section 9, paragraph (b), it is, or may be, a false advertisement, in that it refers to X Remedy as a cure and not a palliative, and therefore, under the terms of section 17, paragraph (b), the speaker is technically "subject to imprisonment for not more than 1 year, or a fine of not less than $100 nor more than $1,000, or both such imprisonment and fine."

Nor is it an advertisement if a scientific speaker or writer, discussing matters relating to health, happens to refer to a particular food or drug, when his object is manifestly not to promote the sale of such food or drug.

It is therefore, urged that this paragraph be amended by the addition of a phrase borrowed from the copyright laws, so that the paragraph as amended shall read as follows:

"(j) The term advertisement includes all representations of fact or opinion disseminated publicly and for profit in any manner or by any means other than by the labeling."

2. Page 15, lines 15-20: This paragraph provides that "An advertisement of a drug shall also be deemed to be false if it contains the name of any disease for which the drug is not a specific cure but is a palliative and fails to contain a plain and conspicuous statement, so placed as to be readily observable where such name occurs, indicating that the drug is a palliative and how the palliation is effected."

Regarding this paragraph three specific points should be considered:

(a) The paragraph apparently includes oral or broadcast advertising, and yet it is absolutely impossible to apply to such advertising the provision contained in the clause "so placed as to be readily observable where such name occurs." This difficulty can be obviated by striking out, in line 18, the words "and conspicuous", and in lines 18 and 19 the phrase so placed as to be readily observable."

(b) It should be pointed out that both popular and scientific opinions vary widely as to what is actually a "cure" and what is a "palliative". For instance, do certain familiar remedies "cure" headaches or are they merely "palliatives"? In view of the apparent impossibility of securing any adequate and accurate definitions of "cure" and "palliative", it appears that this paragraph should be stricken out.

(c) The clause "and how the palliation is effected" appears to present a condition with which it would be impossible to comply. Such a statement would, in effect, require every advertisement of a "palliative" to include an essay or technical treatise on the manner in which the drug in question affects the system. Such a treatise may be possible on a label, though even there it seems difficult, but how is it to be included on a signboard or in a radio announcement? It seems clear that this clause should be stricken out.

3. Page 15, line 25. Paragraph (c) of section 9 is "to discourage the public advertisement-of drugs for diseases wherein self-medication may be especially dangerous." To this end, the section provides that "any advertisement of a drug representing it to have any effect in the treatment of any of the following diseases shall be deemed to be false." Then follows a long list of diseases, including diphtheria, measles, mumps, pneumonia, scarlet fever, and whooping cough.

There is plenty of medical opinion to support the contention that certain drugs do have at least a palliative effect in the treatment of these and other specified diseases, if only to the extent of relieving pain or discomfort. reducing fever, or inducing restful sleep. The phrase "have any effect in the treatment of ", therefore, seems altogether too broad, and it is suggested that this phrase be stricken out, and replaced by the word " cure."

4. Page 22, lines 12-15: Section 15 provides for examinations and investigations of alleged violations of the provisions of this act. Paragraph (a) authorizes the Secretary of Agriculture to conduct such examinations. Paragraph

(c) provides that the Secretary, before reporting any violation of this act to a United States attorney for institution of criminal proceedings thereunder, shall provide for hearings for all interested persons.

Paragraph (b) of this section conforms to paragraphs (a) and (c) so far as the Secretary's activities are concerned, but in lines 12-15 it adds a mandatory provision that proceedings shall be instituted by each United States attorney to whom any health, food, or drug officer of any State or Territory, or political subdivision thereof, presents evidence satisfactory to the United States attorney of any such violations."

The Secretary of Agriculture cannot report a violation of the act until after a hearing, but any local health, food, or drug officer may do so without giving anyone a chance to be heard. They do not even have to report such alleged violations to the Secretary of Agriculture.

The result would inevitably be flagrant injustice and a complete overturning of the orderly and rational procedure set up in the rest of section 15. It is, therefore, strongly urged that the entire clause just quoted be stricken out. In view of the fact that the greater part of the advertising coming under this act is national or at least interstate in scope, it would manifestly be impossible to provide that any local officer shall hold hearings, as is provided in the case of the Secretary of Agriculture.

5. Page 27, line 15: This paragraph provides that certain persons shall not be "deemed in violation of paragraphs (b) or (c) of this section." The prohibited acts, however, are all listed in paragraph (a), while paragraphs (b) and (c) set forth the penalties for violation of any of the provisions of paragraph (a). It is obvious, therefore, that line 15 should be amended to read "deemed in violation of paragraph (a) or subject to any of the penalties set forth in paragraphs (b) or (c) of this section.'

6. Page 28. lines 16-20: The following new and extraordinary provision, not included in any of the previous drafts of this bill, has been added to section 17, paragraph (e):

“No retail dealer shall be prosecuted under this section for the dissemination, other than by radio broadcast, of any advertisement offering for sale at his place of business any product which is not distributed or sold in interstate commerce."

Apparently the sole purpose of this sentence is to discriminate among advertising media, and to say to the retail dealer that he may safely use the United States mails or any other medium with the single exception of radio broadcasting.

If the commodity offered for sale is actually not " distributed or sold in interstate commerce", why should the retail dealer be warned by act of Congress against the use of radio broadcasting whereas the United States mails are left open to him?

If the commodity is distributed or sold in interstate commerce, the provisions of section 17, paragraph (a) (5) immediately apply. Otherwise the situation is fully covered by the provisions of section 17, paragraph (a) (4). This deliberate and, in view of the language of the two subparagraphs just cited, absolutely uncalled-for attempt to discriminate against radio broadcasting as an advertising medium marks a new departure in the field of Federal legislation. The Congress might with equal logic declare an advertiser criminally liable for false advertising in a periodical but guiltless if he inserts the same copy in a newspaper. The principle underlying such discrimination. which is in effect a deliberate effort to dictate to advertisers what media they shall use, is so utterly foreign to all established legislation that it is not surprising that this sentence was not introduced in time to be subject to scrutiny at the hearings on the earlier draft of this bill.

In common fairness, and still more in maintenance of the principle that it is not a function of Federal legislation to tell advertisers what media they shall or shall not use. it is urgently requested that this recently added sentence be stricken out.

As has already been stated, the National Association of Broadcasters, in setting forth these specific suggestions for amendment of S. 2800, does not thereby imply that with these amendments the bill will be satisfactory to the broadcasting industry. The points herein covered are those which seem to the broadcasters the most obvious and self-evident defects in the measure as now drafted, and it is urged that your committee give careful attention to the suggestions here set forth.

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