Mr. OBEAR. I thought Senate 5 was before you, Mr. Cole. Mr. OBEAR. Yes, sir. Mr. COLE. That is the same language as the Mead bill. Mr. CHAPMAN. Mr. Obear, to clarify the situation, I will say this, that Senate 5, the so-called "Copeland bill", and the bill by Mr. Mead, the bill by Dr. Sirovich, and the bill by Mrs. Jenckes, of Indiana, are all before the committee. Mr. OBEAR. Yes. Mr. CHAPMAN. The committee is considering the general subject of food and drug legislation. Mr. OBEAR. Yes, sir. Mr. CHAPMAN. And that includes cosmetics, whether externally or internally used, as one witness said they are. Mr. OBEAR. Well, taking up the language of Senate 5, we think Mr. OBEAR. Speaking of section 708, sir, at the present moment, which creates the penalty for the dissemination of false advertising? We believe that the word "false" should be stricken out and the dissemination of any advertisement, whether true or false should be inserted, and that at the end of that sentence there should be inserted "that are imminently dangerous to life, health, or person." Mr. CHAPMAN. What would you think of an amendment adding the words "grossly deceptive" to "imminently dangerous "? Mr. OBEAR. Well, Mr. Chairman, there is a great deal to be said on the subject of using the words "grossly deceptive." If it is grossly deceptive and is limited to misbranding, I should think that it would be perfectly proper to leave that in the measure or if the words "grossly deceptive" are limited to cases in which it is imminently dangerous to health, I should think that would be perfectly proper and appropriate; but I believe that the courts have held that grossly deceptive" are in themselves too broad. 66 You have not got any standard there to show what you mean by grossly deceptive." The thing that might be deceptive to one man would not appear grossly deceptive to him, but might appear grossly deceptive to another and therefore you have a very difficult and very dangerous phrase in the use of "grossly deceptive." Courts very frequently have had occasion to pass on similar words, and it has been held many times that they did not furnish adequate standards or provision for criminal prosecution. Mr. CHAPMAN. Mr. Obear, what do you think, as is permitted under the present law, of the right of people, without any protection to the public, to sell a brew of horsetail weeds gathered from the railroad tracks around Pittsburgh for $12 for a half or a third of a pint of it, as a sure cure for diabetes? Do you think that is grossly deceptive or should be permitted? Mr. OBEAR. It is grossly deceptive, of course. Mr. CHAPMAN. Don't you think that the public ought to be safeguarded against products like that? Mr. OBEAR. Certainly I do. Mr. KENNEY. Mr. Obear, I understand that you have made public your formula to some extent; it has been read here out of a book from the Congressional Library. Do I take it from that, that you are not opposed to the labeling of this compound of yours, as would be required by this law? Mr. OBEAR. If it were required under the label provision, there would be no objection to it, sir. Mr. CHAPMAN. What proportion of the manufacturers of proprietary medicines or patent medicines, as they are commonly called, are opposed to this bill or seek its amendment in the way you advocate? Mr. OBEAR. Mr. Chairman, I cannot possibly tell you. I do not know anything about that subject. But, I do know that as this hearing demonstrates, it requires considerable courage for any patent medicine manufacturer to stand up and oppose a measure or any feature of the measure. Mr. KENNEY. That same thing would be true of newspapers, would it not? Mr. OBEAR. I think the same thing would be true of newspapers. In this instance, I am happy to say that my clients have the courage of their convictions and have come here before this committee to say what they have to say. They have no objection to any regulations you may make, no matter how drastic, but they do ask this committee not to put the control of pure commercial advertising, which has no reference to life or limb or health, which differs in no degree from a washing machine, or a refrigerator, or a suit of clothes, under the control of the Secretary of Agriculture; but rather to place that where it appropriately belongs, in the tribunal you have set up; place it in that tribunal on par with all other commercial advertising where there is nothing deleterious, nothing dangerous; use the facilities which you have, sir, and if your statute be not broad enough, your statute covering the Federal Trade Commission, be not broad enough, adopt any amendments you may wish, sir, to make them broad enough to cover every field of false advertising; but let us have a tribunal. Do not put us in the hands of the prosecutor, judge, and executor, all in the same person. Mr. CHAPMAN. You would not object then to proper labeling of this product for which you speak? Mr. OBEAR. No, sir. Mr. CHAPMAN. You do not mind telling how much unicorn root, and how much alcohol, and sugar, and water and so forth are in it? Mr. OBEAR. No, sir. Mr. REECE. Mr. Obear. Mr. OBEAR. Yes, sir. Mr. REECE. A large percentage of medicines is derived from herbs, such as was read by the Chairman a moment ago. The reading of the name of an herb or vegetable does not convey in itself the medicinal qualities that might be extracted from that herb. The giving on the package of the vegetables, or the herbs, from which the medicinal qualities might be extracted would not convey a great deal of information to the average person. I recall that large quantities of herbs are gathered in my section of the country and sold, I presume for medicinal purposes. Some of it goes to the producers of proprietary medicine; some of it goes to the producers of medicines that are sold through professional channels. As one member of the committee, I should regret if the feeling should prevail that the producer of a proprietary medicine which has its medicinal qualities and which has been of benefit to the people for a long period of years should feel embarrassed to appear before the committee to discuss this legislation which vitally affects that industry. I do not have, so far as I am concerned, prejudices against a medicine because it is a patent medicine or a proprietary medicine. I feel in the first place that the proprietary medicine has rendered a great service to a great portion of our people and a service that was not available to them through any other channel, because physicians were not available to those people. I do not mean by making that statement that I am in any way condoning the false advertising or putting on to the market a so-called "medicine " that does not have any medicinal qualities, such as was referred to the medicine the concoction-derived from the horsetail weed and I am sure that your company does not, nor does any other legitimate proprietary medicine manufacture sanction it; but, the proprietary medicine field covers a very wide range of medicines, as I understand it, many of which are accepted products and while I am not familiar with the product produced by your clients, but it has been on the market for a long period of years and has been widely used. I assume that it has medicinal qualities. It at least gives favorable reaction from the psychological standpoint, and that is considerable, and one of the benefits that we derive from medicine, as well as from the practice of medicine, I assume. I should not want the hearings to indicate that this committee has any or is expressing any opinion with reference to the efficacy of the product produced by your clients. As to its efficacy, I do not know. But I know it has been widely used and a great many people have confidence in it, and if a bill were pending before the committee which your client felt was going to put them out of business, or greatly handicap them in their legitimate activities, I think your client would be justified in taking some measure to call these things to the attention of the committee. Mr. CHAPMAN. I concur in the statement of my distinguished colleague and friend from Tennessee [Mr. Reece]. Is it a fact, Mr. Obear, that a large proportion of the so-called proprietary medicines" are used by physicians themselves and that they frequently prescribe them and that, in addition to that, the manufacturers of pharmaceutical products "detail" druggists and doctors, as they express it, by giving them small quantities of such medicines in the form of sample packages, and that doctors frequently prescribe those products. Mr. OBEAR. Yes, sir; I think that is absolutely correct. I do not believe that you will find the doctors prescribing proprietary medicines generally advertised. I do not believe that is commonly done. Mr. CHAPMAN. Products like Sal Hepatica and things like that; they prescribe them for patients. Mr. OBEAR. I do not think that they give prescriptions. Mr. CHAPMAN. Well, I can testify. I have had them prescribe that for me. Mr. OBEAR. The patent, proprietary medicine, Mr. Chairman, is called a poor man's medicine, and I know that is so. 66 Mr. CHAPMAN. Well, but you embrace within the term proprietary medicine " a lot of standard medicines which doctors recognize. Mr. OBEAR. Undoubtedly. Mr. CHAPMAN. And, it is a fact, is it not, that pharmaceutical manufacturers, such as Sharpe & Dohme, of Baltimore, Parke-Davis, McKesson, Wyeth, Eli Lilly, and others putting out standard products, manufacture medicines that have resulted from proven prescriptions of reputable physicians? Mr. OBEAR. Yes, sir. Mr. CHAPMAN. And that those medicines are prescribed by doctors. Mr. OBEAR. Prescribed by a doctor by referring to the tablet or the pill or the formula? Mr. CHAPMAN. Yes. Mr. OBEAR. Yes, sir; that is perfectly true. Mr. CHAPMAN. And they are good standard products? Mr. OBEAR. They are good standard products; yes, sir. Mr. CHAPMAN. What portion of the proprietary medicines on the market belong in that category of good standard products? Mr. OBEAR. Mr. Chairman, I would not hazard a guess on that. I do not know. Mr. COLE. There is nothing in this legislation that would drive your product off the market, is there? Mr. OBEAR. No, sir. Mr. COLE. I so understand. Mr. OBEAR. We do not believe it would drive us off the market, but we believe that the control of advertising should not be placed under the Department of Agriculture. Let me call the committee's attention just a moment to the colloquy which occurred between Senator Bailey and Senator Copeland in the Senate to show you just an illustration. I do not mean to criticise the officials of the Department at all, but just to show you the tendency or trend of the bureaucratic or the tendency in turning over to the Department the control of labels and matters of that sort. This is reported in volume 7971, page 5415, Congressional Record: Mr. COPELAND. The meaning is the Department now exercises authority which the Department has very serious doubt about really possessing. The Department has, by violence, assumed authority, you may say. You must change that practice, but it does not have the power to do so under the law. Mr. BAILEY. Did the Senator say that the Department of Agriculture had seized the occasion to which he has been referring violently, without authority of law? Mr. COPELAND. Forced the manufacturer of this article to change his label. Mr. COPELAND. Arbitrarily, without authority of law. Mr. COPELAND. I think so. We Mr. BAILEY. If that is the case, if the Department has that power in the United States, I do not see any reason for passing any measure at all. might as well turn the whole thing over to them. Now, I do not mean in that statement to imply-in the first place, I do not know it to be a fact that the Department did that. I am merely quoting that colloquy. Nor do I criticize especially the administrators of the Department if they believed some particular brand or label ought to be changed and did not have the power to do it and forced somebody to do it. That is the natural thing. They are jealous. They are crusaders. They have got to be. I am glad to believe they have helped you, me, and everybody else. But the natural tendency of any bureaucratic or departmental official is to seize more and more power. The natural tendency is to force his views, whatever they may be, and they are bound to be extreme views. We know that. They are extremists who handle things of this kind and who put these measures through. Mr. CHAPMAN. Mr. Obear, would that same observation apply to the Federal Trade Commission? Mr. OBEAR. Mr. Chairman, the Federal Trade Commission is a tribunal. Its prestige has been vastly enlarged by a recent decision of the Supreme Court of the United States which says that it is a quasi judicial tribunal. Mr. Chairman, the Federal Trade Commission had before it the National Recovery Administration. They came before the Federal Trade Commission to attempt to get the Federal Trade Commission to pass a cease and desist order against a little manufacturer who had started his plant down in Florida to manufacture ice without having gotten a certificate of public necessity and convenience. The Federal Trade Commission heard that case. The Federal Trade Commission, not being an administrative arm of the Government, not being an agency of the United States, but a tribunal sat and heard that case and decided it adversely to the contentions of the National Recovery Administration. Where could you find that sort of thing in the Department of Agriculture? If you put it in the hands of one man, as I say, who is judge and jury. Not only that, but the Federal Trade Commission, gentlemen, have had the experience, and I respectfully submit, that it is more sound legislation to utilize the facilities you have which have been built up, strengthened, and enlarge them to any extent you may think necessary, but to use that, rather than to place this matter in the Department of Agriculture that have not had the experience; that has not got the staff; that has not a judicial approach to any question that may be raised on it, and I think it is sound, and we do not hestitate to come before you and ask you to do that, and that is all we ask you to do. Mr. CHAPMAN. Do you think it is more sound to divide authority and have one branch of the Government attempt to enforce one part of the law and another attempt to enforce another? Mr. KENNEY. That is what we did when we drew the Constitution. Mr. OBEAR. Oh well, sometimes it is inevitable. Mr. CHAPMAN. Both the Department of Agriculture and the Federal Trade Commission are in the executive branch, however. Mr. OBEAR. Mr. Chairman, the amendments which we suggest to accomplish what we think should be accomplished, here, I have already indicated one, and that is on page 30, line 7, to strike out the word "false" after the word "advertisement" and insert the words "whether true or false "; in line 11, after the word "cos'metics", strike out the period, and add "that are eminently dangerous to life, health, or person." |