In other words, it seems to me just offhand that while I do not like this wording any better than the witness does, because I do not like these bills that say "recognized practice" any more than I like the OPA's interpretations of recognized business practices because they are rather new to me-many of their recognized practices-I really do think that the question is, to my mind, not about this section we are talking about now. The question is about the interpretation by the Department of the existing sections of the act.

If I buy an insecticide or an economic poison of some kind and the manufacturer has stated on the label what it is, and I choose, as the gentleman from Minnesota said, to make the solution four times as strong as the directions said, or I choose to apply it to a type of plant that is too sensitive to use that type of insecticide or economic poison on, I do not see how the manufacturer is to blame because the plant dies.

Section (g)

The CHAIRMAN. Let me see if I understand this. reads

if in the case of an insecticide or fungicide it shall be injurious to living man or other vertebrate animals, or vegetation to which it is applied, or to the person applying such economic poison when used as directed or in accordance with commonly recognized practice.

"When used as directed"-that is all right, but when you go ahead and also provide "or in accordance with commonly recognized practice" you are making the manufacturer, in my opinion, liable for something over which he has no control whatsoever. He had nothing to do with recognized practice down in my section.

Mr. PHILLIPS. Suppose we agree momentarily with the chairman, that he is correct. Now, Mr. Chairman, will you compare that paragraph you just read with the paragraph Dr. Griffin read, which gives him no recognition of commonly recognized practices at all, but is apparently interpreted by the Department to say that if you use the economic poison and the vegetation dies, the manufacturer, without defense, is responsible? Am I right?

The CHAIRMAN. That is what this says.

Mr. PHILLIPS. It might be the custom in southern California to apply certain solutions to certain types of trees, and it might be a very different custom in Virginia or Massachusetts in the spraying process.

The CHAIRMAN. But here is a manufacturer putting on his label what it will do. He makes certain claims for it. If you use that as directed and you are injured, the manufacturer should be liable.

Mr. PHILLIPS. Certainly.

The CHAIRMAN. But if you disregard the directions on his label and use your own judgment, or follow some local practice, and you suffer an injury, it looks to me that you are the one that is responsible, and not the manufacturer.

1

Mr. PHILLIPS. But Dr. Griffiin says that under those cases the manufacturer is responsible.

Mr. GRANGER. Is there any great variation in the practices in the use of these poisons?

The CHAIRMAN. I do not know.

Mr. HITCHNER. Yes; substantial variations according to different parts of the country, different climatic conditions, different crops, and different pests.

86152-46-ser. j- -6

Mr. GRANGER. Then, if you were to be safe you would have to have a formula which would conform to every one of these different practices.

Mr. HITCHNER. The materials are directed for use according to the pest or condition, and the industry is very careful in following the results of the State experimental station work and the Federal Government work in the various sections of the country.

Mr. GRANGER. But I say, if you were to be absolutely safe and not get yourself into trouble you would have to have a formula that would conform to all these different variations.

Mr. HITCHNER. Or modify the directions for use according to conditions, which we do.

Mr. HOPE. I would like to ask Dr. Griffin another question on the interpretation of the present law. Do I understand, Dr. Griffin, that although this product, we will say, whatever its use, if used in a certain way so as to burn vegetation and destroy it or damage it, under the existing law it is no defense for the manufacturer to say that this man made it too strong or used it at the wrong season or in a way which was contrary to directions?

Dr. GRIFFIN. We have never brought cases except where we have made our own tests in the Department, and in making those tests we follow the directions or, where directions are not available, we use the ordinary commercial practice of use, and if it causes injury under being used as directed or when used as a man following good commercial practices would use it, then we consider it adulterated. We have never considered a thing adulterated if a man goes and uses it according to some entirely unrecognized manner.

Mr. HOPE. It seems to me that this might be all right the way it is in the present draft if you had some definition for what "commonly recognized practice" is. It seems to me that that is a pretty broadly used term. If you even said "commonly recognized practices in the area or in the community where used" it would be better, but as it stands now, this is going to make for complaints, although I certainly agree that the language is less sweeping and less stringent than the present law. I do not know how you could make it much stronger than the present law.

Mr. HITCHNER. We are only asing that the word "or" come out. We are not asking that you wipe out "in accordance with commonly recognized practice," so that the bill will read "when used as directed in accordance with commonly recognized practice." We, as manufacturers, in writing our directions for use, are going to consider the recommendations of the local experiment stations, so that we take the responsibility of furnishing a label which will have our directions on and which will meet the area where we are selling which requires certain common recommendations. But here they put the "or" in and then we are left with my original argument, "in accordance with commonly recognized practices," not tied in any way to what we claim or what we put on our label.

Mr. HOPE. I do not think you would help it much if you took the "or" out.

Mr. HITCHNER. "When used as directed in accordance with commonly recognized practice." We would there have to take into consideration the climatic conditions, soil conditions, and various State recommendations.

Mr. HOPE. I do not think it would mean much to take the "or" out. Th CHAIRMAN. I think the committee has your point. Suppose we go to the next objection.

Mr. HITCHNER. The next item is item 12 on our memorandum, page 8, lines 21 and 22. That was mentioned yesterday, that the toxicity should be determined on the finished product. I believe we have already had some discussions with counsel and with the members of the committee in bringing that into the current thinking.

The CHAIRMAN. Yesterday, I think, the Department and the trade agreed to get together on that. We had a pretty full session on that. Mr. HITCHNER. Yes. We do not need to discuss that at all.

Our item 13 is again an explanation from the Production and Marketing Administration which is entirely satisfactory. It clarifies the points at issue.

The CHAIRMAN. Mr. Hitchner, you say that those explanations are entirely satisfactory. That is, assuming that the language of the bill remains as it is.

Mr. HITCHNER. That is right.

The CHAIRMAN. Of course, if the language is changed that would not be applicable.

Mr. HOPE. And assuming that the committee interprets it in the same way as the Department.

The CHAIRMAN. If we cover that in the report, will that not show the legislative intent?

Mr. HOPE. Yes.

Mr. HITCHNER. That is what we would like to have included. It is a highly technical question, and we have all the members of the industry saying "What does this mean?" and "What does that mean?"

The CHAIRMAN. What you mean is, if we change the text of the present act, those comments would not be applicable.

Mr. HOPE. What I want to make clear is that it would not amount to so much in my opinion to have this understanding unless it is covered by the report or in something said on the floor. Of course, if you had it in the hearings yesterday, that is all right. The CHAIRMAN. We had it in the hearings yesterday.

Mr. HOPE. You should have something in black and white.
The CHAIRMAN. Yes; it is.

Mr. HITCHNER. No. 14, page 9, line 6. We have made a suggestion to delete the words "and the poison or poisons contained therein." The antidote, we believe, should be on the finished product which reaches the hands of the buyers, and not based on the ingredients in the material. We have presented these same arguments under item 12, and we believe that that is really the intent of the bill.

Mr. GRANGER. Where is that?

Mr. HITCHNER. Page 9, line 6.

Mr. PHILLIPS. I do not understand, Mr. Chairman, how that could operate. You supply the material in bulk, and somebody dilutes it or remixes it. Am I right?

Mr. HITCHNER. We ship it. It goes to the consumer in the manufacturer's package or container.

Mr. PHILLIPS. Why could this not be on that package?

Mr. HITCHNER. It is. Every one of our packages contains that on the label.

Mr. PHILLIPS. I thought you said it should be on the package that reaches the final user.

Mr. HITCHNER. An antidote should be determined on the compound as sold, which may be a combination of poisons, rather than on the ingredients.

Mr. PHILLIPS. You are not objecting to the location of the statement, you are objecting to the fact that it applies to only one of several ingredients before the mixture is completed?

Mr. HITCHNER. We have no objection, and we do cover it on all our labeling, but the antidote should be on the finished product as it arrives in the hands of the user. It might contain nicotine and arsenic and copper and a variety of materials. The antidote should be the best known antidote for that combination that the farmer or the user gets, not on the ingredients contained therein.

The CHAIRMAN. Is there any objection to that?

Mr. NEWELL. I think it should be the antidote for the "poisons." An antidote could be an antidote for anything. I think we are thinking about pretty much the same thing. It should be an antidote for the caustic poisons.

Mr. PHILLIPS. I am not entirely agreed with the witness on that. Are you from the Department of Agriculture?

Mr. NEWELL. Yes, sir.

Mr. HOPE. I want to ask the witness, if you change that to "poisons" does that meet your objection, to just say "poisons"?

Mr. HITCHNER. If you just say "antidote" and refer back to your definition of poisons in the definition, it seems to me you have already given a very good definition of antidote.

Mr. HOPE. What you are getting at, you want to state an antidote for the collective poisons.

Mr. HITCHNER. For the finished product.

Mr. HOPE. You are assuming that you use a different antidote. when you get these various combinations of poisons. You have a situation that would require a different antidote than the antidote for any particular poison that might be in it.

Mr. HITCHNER. You are absolutely right. We may have a small percentage of arsenic, a small percentage of nicotine, a small percentage of copper, all of which in themselves would not require an antidote, but here you are getting a finished product and so far as possible the antidote put on the package should be the one that would give the user the first-aid remedy on the product he is buying. It is just a change of wording there to accomplish that, which could be very easily worked out.

The CHAIRMAN. Mr. Hitchner, Mr. Parker has suggested a change which would make section c read, "A statement of an antidote for the economic poison."

Mr. HITCHNER. That would be all right.

Mr. NEWELL. That is all right.

The CHAIRMAN. We will go to the next one.

Mr. HITCHNER. The next one is under "Registration," on page 11. We have no objection to the registration provision as written in the bill, and I had not expected to say anything about this, but I would like to raise, with your permission, one or two points. This is one of the argumentative subjects, and yesterday, in the discussion, the

question came up in reference to the requirement that registration had to be accepted.

Several questions were asked by the members of the committee on this, and in approving this registration provision we have approved it as written. We want very much to see maintained in there the provision that registration is compulsory, and I would like to take a minute, if there is interest in this, to give you the reasons and our .thinking on it.

The CHAIRMAN. We would like to have that.

Mr. HITCHNER. In the first place, this thing has been discussed in a great number of conferences with the Department, with various agencies in the Department of Agriculture, with a lot of State enforcement officials, with the plant pathologists and the entomologists. A tremendous amount of time and effort has been given to discussing this problem.

First, if we register a product, we place in the hands of one man the complete right to decide what is sold in this country. If he has the right to refuse registration, he has life and death power over every product that is sold. We do not believe that any one person or any one bureau has all of that accumulated knowledge to be able to pass on the merits of all of these products which are developed. In developing our chemicals and insecticides for use on farms, there is a great responsibility on the industry. The value of the crops and the orchards depends on their use, and in developing these new materials we first go through a chemical process, then we have our entomological tests either with the companies or with the various State colleges or agricultural institutions. Then we have to have pathological tests; then we have toxicological tests done at Johns Hopkins or other competent laboratories, and before we can put a product on the market in a responsible manner we have to have a background for all of these materials.

After that is done, a company developing and producing all of these things is best equipped, we feel, to make representations to the public. That is fundamental.

Now, if the Government can refuse registration, it is entirely subject to the whim, the caprice, dishonesty, or a hundred and one powers of one man. He can make or break any company; he can make or break any product. He can hold up production and introduction of new materials.

From the Government point of view, the right to refuse endorsement means acceptance and endorsement of a product. In other words, if I submit a product and a label to a Government agency and they pass on it and say, "You can sell it," immediately that becomes Government endorsement. Whether we want it or not, the fact remains that everybody is going to say, "This product has the endorsement of the Government and is satisfactory."

I have checked with several of the departments in the Department of Agriculture, and not one of them has indicated that they want to take the responsibility of passing on whether this material is good for use. The manufacturer has to assume that responsibility. That is a commercial hazard. He is liable both financially and otherwise in case he makes false claims.

Another point. It would certainly curtail introduction of new products. Furthermore, it is not needed. We submit our label, we