THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
             Statutes and Legislative History
                       Executive Orders
                          Regulations
                   Guidelines and Reports
%
                        SffiZJ

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THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                   Statutes and Legislative History
                                  Executive Orders
                                       Regulations
                           Guidelines and Reports
                                                 UJ
                                                 5?
                                 JANUARY  1973
                              WILLIAM D. RUCKELSHAUS
                                        Administrator

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For sale by the Superintendent of Documents, U.S. Government Printing Office
     Washington, D.C. 20402 - Price: $7.25 per 3 vol. set. Sold in sets only
                        Stock Number 5500-0069

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                         FOREWORD
  It has been said that America is like a gigantic boiler in that
once the fire is lighted, there are no limits to the power it can
generate. Environmentally, the fire has been lit!
  With a mandate from the President and an aroused public con-
cern over the environment, we are experiencing a new American
Revolution, a revolution in our way of life. The era which began
with the industrial revolution is over and things will never be
quite the same again. We are moving slowly, perhaps even grudg-
ingly at times, but inexorably into an age when social,  spiritual
and aesthetic values will be prized  more than production and
consumption.  We have reached  a point where we must balance
civilization and nature through our technology.
  The  U.S.  Environmental Protection Agency, formed by  Reor-
ganization  Plan No. 3 of 1970, was a major commitment to this
new ethic. It exists and acts in  the public's name to ensure that
due regard is given to the environmental consequences of actions
by public and private institutions.
  In a large measure, this is a  regulatory role, one that encom-
passes basic, applied, and effects research; setting and enforcing
standards; monitoring; and making delicate risk-benefit decisions
aimed at creating the kind of world the public desires.
  The  Agency was not created to harass industry or to  act as a
shield behind which man could wreak havoc on nature. The great-
est disservice the Environmental Protection Agency could  do to
American industry is to be  a poor regulator. The environment
would  suffer,  public trust  would diminish, and  instead  of free
enterprise, environmental anarchy would result.
  It was once sufficient that  the regulatory process produce wise
and well-founded  courses of action. The public, largely indifferent
to regulatory activities,  accepted agency actions as being for the
"public convenience and necessity." Credibility gaps and cynicism
make it essential not only that today's decisions be wise and
well-founded but that the public know this to be true. Certitude,
not faith, is de rigueur.
  In order to participate intelligently in regulatory proceedings,
the citizen should have access to the information available to the

                                                           iii

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IV

agency. EPA's policy is to make the fullest possible disclosure of
information, without unjustifiable expense or delay, to any inter-
ested party. With this in mind, the  EPA Compilation of Legal
Authority was produced not only for  internal operations of EPA,
but as a service to the public, as we strive together to lead the way,
through the law, to preserving the earth as a place both habitable
by and hospitable to man.

                      WILLIAM D. RUCKELSHAUS,
                       Administrator
                       U.S. Environmental Protection Agency

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                         PREFACE

  Reorganization Plan No. 3 of 1970 transferred 15 governmental
units with their functions and legal authority to create the U.S.
Environmental  Protection Agency.  Since only  the major laws
were cited in the Plan, the Administrator, William D. Ruckelshaus,
requested that a compilation of EPA legal authority be researched
and published.
  The publication has the primary function of providing a work-
ing document for the Agency itself. Secondarily, it will serve as a
research tool for the public.
  A permanent office  in the  Office of Legislation has been estab-
lished to keep the publication updated by supplements.
  It is the hope of the  EPA that this set will assist in the awesome
task of developing a better environment.

                     MARY LANE REED WARD GENTRY, J.D.
                       Assistant Director for Field Operations
                       Office of Legislation
                       U.S. Environmental Protection  Agency

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                  ACKNOWLEDGEMENT
  The idea of producing a compilation of the legal authority of
EPA was conceived and commissioned by William D. Ruckelshaus,
Administrator of EPA. The production  of this compilation in-
volved the cooperation and effort of numerous sources, both within
and outside the Agency. The departmental libraries at Justice and
Interior were used extensively; therefore we express our appreci-
ation to Marvin  P.  Hogan,  Librarian, Department of Justice;
Arley E. Long, Land & Natural Resources Division Librarian,
Department of Justice;  Frederic E. Murray, Assistant Director,
Library Services, Department of the Interior.
  For exceptional assistance and cooperation, my gratitude to:
Gary Baise, formerly Assistant to the Administrator, currently
Director, Office of Legislation, who first began with me on this
project; A. James Barnes, Assistant to the Administrator; K. Kirke
Harper, Jr.,  Special Assistant for Executive  Communications;
John Dezzutti, Administrative Assistant, Office of Executive Com-
munications; Roland O. Sorensen,  Chief, Printing Management
Branch, and Jacqueline Gouge and Thomas Green, Printing Man-
agement Staff; Ruth Simpkins, Janis Collier,  Wm. Lee Rawls,
Peter J. McKenna, James G. Chandler, Jeffrey D. Light, Randy
Mott, Thomas H. Rawls, John D. Whittaker, John M. Himmelberg,
Dana W. Smith, and Linda L.  Payne, and  a beautiful staff who
gave unlimited effort; and to many others behind the scenes who
rendered varied assistance.

                     MARY LANE REED WARD GENTRY, J.D.
                       Assistant Director for Field Operations
                       Office of Legislation
                       U.S. Environmental Protection Agency
VI

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                       INSTRUCTIONS
   The goal of this text is to create a useful compilation of the legal
authority under which the U.S. Environmental Protection Agency
operates. These documents are for the general use of personnel of
the EPA in assisting them in attaining the purposes set out by the
President in creating the Agency. This work is not intended and
should not be used  for legal citations or any  use other than as
reference of a general nature. The author disclaims all responsibil-
ity for liabilities growing out of the use of these materials contrary
to their  intended purpose. Moreover, it should  be  noted that por-
tions of  the  Congressional Record from the 92nd Congress  were
extracted from the  "unofficial" daily version and are  subject to
subsequent modification.
   EPA  Legal Compilation consists  of  the Statutes  with their
legislative history, Executive  Orders, Regulations, Guidelines and
Reports. To facilitate the usefulness of this composite, the Legal
Compilation  is divided into the eight following chapters:
     A. General                      E. Pesticides
     B.  Air                          F. Radiation
     C.  Water                       G. Noise
     D. Solid Waste                   H. International
PESTICIDES
   The chapter labeled "Pesticides" and color coded green contains
the legal authority of the Agency as it applies to pesticide pollution
abatement. It is well to note that any law which  is applicable to
more than one chapter of the Compilation will appear in each of
the chapters; however,  its legislative history will be cross-refer-
enced into the "General" chapter where it is printed in full.
SUBCHAPTERS
 Statutes and Legislative History
   For convenience, the Statutes  are  listed  throughout the Com-
pilation by a one-point system, i.e., 1.1,1.2,1.3, etc., and Legislative
History begins wherever  a letter follows the  one-point system.
Thusly, any  l.la, l.lb, 1.2a,  etc., denotes the public laws com-
prising the 1.1, 1.2  statute.  Each public law  is followed by its
legislative history. The legislative history in  each case consists of

                                                           vii

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viii                                             INSTRUCTIONS

the House Report, Senate  Report,  Conference  Report  (where
applicable), the Congressional Record beginning with the time the
bill was reported from committee.
  Example:
1.1  The Federal Insecticide, Fungicide, and Rodenticide Acts, as
     amended, 7 U.S.C. §§135-135k (1970).
     l.la   The Insecticide Act, April  26, 1910, P.L. 61-152,  36
           Stat. 331.
           (1) Senate Committee on  Agriculture and  Forestry,
               S. REP. No. 436, 61st Cong., 2d Sess. (1910).
           (2) House Committee on Interstate and Foreign Com-
               merce, H.R. REP. No. 990, 61st Cong., 2d Sess.
               (1910).
           (3) Congressional Record, Vol. 45 (1910):
               (a) April 4: Debated,  amended and passed Sen-
                   ate, pp. 4204-4206;
               (b) April  18:  Debated, amended  and  passed
                   House, pp. 4914-4920;
               (c) April 19:  Senate  agrees to  House  amend-
                   ments, p.4959.
This  example not only  demonstrates  the pattern followed  for
legislative history, but indicates the procedure where only  one
section of a public law appears. You will note that the Congression-
al Record cited pages are only those pages dealing with the discus-
sion and/or action taken pertinent to the section of law applicable
to EPA. In the event there is no discussion of the pertinent  section,
only action or passage, then the asterisk (*)  is used to so indicate,
and no text is reprinted in the Compilation. In regard to the situ-
ation where only one section of a public law is applicable, then
only the parts of the report dealing  with  same  are printed in
the Compilation.
  Secondary Statutes
   Many statutes make reference to other laws and rather than
have this manual serve only for major statutes, these secondary
statutes  have been  included  where practical.  These secondary
statutes are indicated in the table of contents to each chapter by
a bracketed cite to the particular section of the major act which
made the reference.
  Citations
   The United States  Code, being the  official  citation,  is used
throughout the Statute section of the Compilation.

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  INSTRUCTIONS
                                                                     IX
                TABLE  OF STATUTORY  SOURCE
               Statutes
                                                    Source
1.1  The  Federal Insecticide,  Fungi-
     cide, and Rodenticide Act, as
     amended,  7 U.S.C.  §§135-135k
     (1970).
1.2  Federal Food, Drug, and  Cos-
     metic Act, as amended, 21 U.S.C.
     §§346, 346a, 348 (1970).
1.3  Studies of the Effect in Use of
     Chemicals, as amended, 16 U.S.C.
     §§742d-l  (1968).
1.4  The Public Health Service  Act,
     as amended, 42 U.S.C. §241, 243,
     246,264 (1970).
1.5  Special Packaging  of Household
     Substances for the  Protection of
     Children, 15 U.S.C. §1471  et seq.
     (1970).
1.6  Hearings:  Presiding Employees:
     Powers and  Duties;  Burden  of
     Proof;  Evidence;  Records as a
     Basis  of  Decision, 5  U.S.C.
     §556 (c) (1966).
1.7  Record  on  Review and Enforce-
     ment of Agency Orders, as
     amended, 28 U.S.C. §2112 (1966).
1.8  Courts  of Appeals;  Certiorari,
     Appeal;  Certified  Questions, as
     amended, 28 U.S.C. §1254 (1948).
1.9   Adulterated  Food,  as amended,
     21 U.S.C. §432 (a) (1968).
1.10  Appointment and  Compensation
     of Advisory Committee, Color Ad-
     ditive  Amendments of 1960, as
     amended, 21  U.S.C. §§376 (b) (5)
     (D)  (1970).
1.11  Regulations and  Hearings—Au-
     thority to  Promulgate Regula-
     tions, 21 U.S.C. §371 (1960).
1.12  Penalties—Violation  of §331 of
     this Title, 21 U.S.C. §333(c)
     (1970).
 The Reorg. Plan No. 3 of 1970.
 Directly cited in Reorg. Plan No. 3 of
 1970.

 Directly cited in the Reorg. Plan No. 3
 of 1970.

 Reorg. Plan No. 3 of 1970.
 In first section of Act, direct reference
 is made to both FIFRA and  the Fed-
 eral Food, Drug, and Cosmetic  Act,
 section over which we were given au-
 thority through Reorg. Plan  No.  3  of
 1970.
 Referred to in the  FIFRA  at §135b
 and FD&C Act at §246a(d) (5).
Referred to in FIFRA  at  §135b(d),
and FD&C Act at §346a  (i) (2)  (3),
348 (g) (2), and Special Packaging of
Household  Substances  Act at §1474
(b)(l).
Referred to in FIFRA  at  §135b(d),
and  FD&C  Act at  §§346a(i) (5),
348 (g) (5), and Special Packaging of
Household  Substances Act at
§1474(b)(5).
Referred to in FD&C Act at §§346,
346a(a),348(a((2).
Referred to in FD&C Act at §346a(g).
Referred to in FD&C Act at §346a(k),
and Special Packaging of Household
Substances Act at §1474 (a).
Referred to in FD&C Act in §346a (n).

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 x                                                 INSTRUCTIONS

             Statutes                             Source
1.13 Research  and  Development Act,   Referred to in Public Health Service
    Contracts, as amended, 10 U.S.C.   Act at §241 (h).
    §§2353,2354 (1956).
1.14 Rule Making, Administrative   Special  Packaging of Household Sub-
    Procedure, as  revised, 5 U.S.C.   stances Act at §1474(a),(b).
    §553 (1966).
1.15 Judicial Review, Relief Pending   Special  Packaging of Household Sub-
    Review;  Scope, as revised,  5   stances Act at §1474(b) (3),(4).
    U.S.C.  §§705, 706(2) (A),(B),
    (C),(D) (1966).
1.16 Per Diem, Travel and Transpor-   Referred to in Special Packaging  of
    tation  Expenses;  Experts and   Household  Substances  Act  at
    Consultants; Individuals Serving   §1475(b).
    Without  Pay, as  amended,  5
    U.S.C. §5703 (1966).
  Executive  Orders
   The Executive Orders are  listed by a two-point  system  (2.1,
 2.2, etc.). Executive Orders found in General are ones applying to
 more than one area  of the pollution chapters.
  Regulations
   The Regulations  are noted by  a three-point system (3.1, 3.2,
 etc.). Included in the Regulations are those not only promulgated
 by the Environmental  Protection  Agency, but those under which
 the Agency has direct contact.
  Guidelines and reports
   This subchapter is noted by a four-point system (4.1, 4.2, etc.).
 In this subchapter  is  found  the  statutorily  required reports of
 EPA, published guidelines of EPA, selected  reports other than
 EPA's and  inter-departmental agreements of note.
 UPDATING
   Periodically, a supplement will be sent to the interagency distri-
 bution and made available through the U.S.  Government Print-
 ing Office in  order  to  provide an accurate working  set of  EPA
 Legal Compilation.

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                           CONTENTS




E.  PESTICIDES



                               Volume I


                                                                   Page
     1.  Statutes and Legislative History 	     1
         1.1   The Federal Insecticide, Fungicide, and Rodenticide Acts,
              as amended, 7 U.S.C. §§135-135k (1970)	     3
              l.la    The Insecticide Act, April 26, 1910, P.L. 61-152,
                     36 Stat.  331. 			    20
                     (1) Senate Committee on Agriculture and For-
                         estry, S. REP. No. 436, 61st Cong., 2d Sess.
                         (1910). 					    27
                     (2) House Committee on Interstate and Foreign
                         Commerce, H.R. REP. No. 990, 61st Cong.,
                         2d Sess. (1910)	    30
                     (3) Congressional Record, Vol. 45 (1910):
                         (a)  April 4: Debated, amended and passed
                             Senate, pp.  4204-4206; 	    37
                         (b)  April 18: Debated, amended and passed
                             House, pp. 4917-4918, 4920;	    43
                         (c)  April 19: Senate agrees to House amend-
                             ments, p. 4959		    48
              l.lb    Federal  Insecticide,  Fungicide, and  Rodenticide
                     Act, June 25, 1947, P.L. 80-104, 61 Stat. 163	    48
                     (1) House Committee on Agriculture, H.R. REP.
                         No.  313, 80th  Cong., 1st Sess. (1947)	    61
                     (2) Senate Committee on Agriculture and For-
                         estry, S. REP. No. 199, 80th Cong., 1st Sess.
                         (1947). 	    69
                     (3) Congressional Record, Vol. 93 (1947):
                         (a)  May 12: Passed House, pp. 5050-5055;    75
                         (b)  June  16: Passed Senate, pp.  7007-7008.    86
              l.lc   Reorganization Plan No.  2 of 1953, 67 Stat. 633.    87
              l.ld    Nematocide, Plant Regulator, Defoilant and Des-
                     iccant  Amendments of 1959, August 7, 1959, P.L.
                     86-139, 73 Stat. 286. 	    89
                     (1) House Committee on Agriculture, H.R. REP.
                        No.  552, 86th Cong.,  1st Sess.  (1959)	    93
                     (2) Senate Committee on Agriculture and For-
                        estry, S. REP. No. 519, 86th Cong., 1st Sess.
                         (1959). 	   104
                     (3) Congressional Record, Vol. 105 (1959):
                         (a)  July 6: Amended and passed House, pp.
                             12712-12713; 	   116

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xii                                                         CONTENTS

                                                                   Page
                         (b)  July 16:  Amended and  passed  Senate,
                             pp.  13588; 	   118
                         (c)  July 29: House concurs in Senate amend-
                             ment, p. 14629. 	   119
              Lie   Additional Time for Registration of Certain Nem-
                     atocides, Plant Regulators, Defoliants and Des-
                     iccants,  March 29, 1961, P.L. 87-10,  75 Stat. 18.   119
                     (1)  Senate Committee  on  Agriculture and For-
                         estry,  S. REP. No. 74, 87th Cong., 1st Sess.
                         (1961).  	   120
                     (2)  House Committee on Agriculture, H.R. REP.
                         No.  61, 87th Cong., 1st Sess. (1961).  	   125
                     (3)  Congressional Record, Vol. 107 (1961):
                         (a)  March 20: Amended and passed  Senate
                             pp.  4282-4283; 	   130
                         (b)  March 21: Passed House, p. 4399	   131
              l.lf   Food Additives Transitional Provision Amend-
                     ment of 1961, April 7, 1961, P.L. 87-19, 75 Stat.
                     42.  	   132
                     (1)  House Committee on Interstate and Foreign
                         Commerce,  H.R. REP. No. 53,  87th  Cong.,
                         1st  Sess. (1961). 	   134
                     (2)  Senate Committee on Labor and Public Wel-
                         fare, S. REP. No.  86, 87th Cong., 1st Sess.
                         (1961).  	   151
                     (3)  Congressional Record, Vol. 107 (1961):
                         (a)  March 14: Amended and passed  House,
                             pp.  3924-3926; 	   163
                         (b)  March 27: Passed Senate, pp. 4874-4875.   168
              l.lg   Amendments to the Federal Insecticide,  Fungi-
                     cide, and Rodenticide Act, May 12, 1964, P.L. 88-
                     305, 78 Stat. 190. 	   169
                     (1)  Senate Committee  on  Agriculture and For-
                         estry,  S. REP. No.  573, 88th Cong., 1st Sess.
                         (1963).  	   174
                     (2)  House Committee on Agriculture, H.R. REP.
                         No. 1125, 88th Cong., 2d Sess. (1964)	   208
                     (3)  Congressional Record:
                         (a)  Vol. 109 (1963), Oct. 22: Considered and
                             passed Senate, pp. 20077-20081;	   240
                         (b)  Vol. 110 (1964), Feb. 17: Considered and
                             passed House,  amended, pp. 2947-2950;   248
                         (c)  Vol. 110  (1964),  April  8: Senate  con-
                             curred  in  House  amendment with an
                             amendment, pp. 7188-7190; 	   253
                         (d)  Vol.  110  (1964),  April 29:  House  con-
                             curred in Senate amendment, pp.  9421. -   258
              l.lh   Food Additives Transitional Provisions Amend-
                     ment of 1964, October 3, 1964, P.L. 88-625, §3, 78
                     Stat. 1002. 	,	   259

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CONTENTS                                                         xiii

                                                                   Page
                     (1)  House Committee on Interstate and Foreign
                         Commerce, H.R. REP. No. 1770, 88th Cong.,
                         2d Sess. (1964).  	   260
                     (2)  Senate  Committee  on  Labor  and  Public
                         Works,  S.  REP.  No. 1593, 88th  Cong.,  2d
                         Sess. (1964).  	   269
                     (3)  Congressional Record, Vol. 110  (1964):
                         (a) Sept. 3: Passed House, pp. 21597-21599;   279
                         (b) Sept. 25:  Passed Senate, p. 22900.*1 _.„   281
              l.li    Organized Crime Control Act of 1969, October 15,
                     1970, P.L. 91-452,  Title II, §204, 84 Stat. 928	   281
                     (1)  Senate Committee on the Judiciary, S. REP.
                         No. 91-617, 91st Cong., 1st Sess. (1969)	   282
                     (2)  House  Committee on  the  Judiciary,  H.R.
                         REP. No.  91-1549,  91st Cong.,  2d.  Sess.
                         (1970).  			   294
                     (3)  Congressional Record, Vol. 116  (1970):
                         (a) Jan. 21, 22, 23: Debated in Senate, pp.
                             587-588,  601,  852-853, 952; 	   296
                         (b) Jan. 23:  Amended and  passed Senate,
                             pp.  971, 972;  	   300
                         (c) Oct. 6,  7:  Debated, amended, and passed
                             House, pp. 35196-35197,  35200, 35207-
                             35208,  35012-35013, 35291,  35303-35304,
                             35313, 35321,  35335, 36363-36364;  	   301
                         (d) Oct. 12:  Debated,  Senate  concurred  in
                             House  amendment,  pp.   36280-36283,
                             36293-36298, 36296. 	   310
              l.lj    Poison Prevention Packaging Act  of  1970, De-
                     cember 30, 1970, P.L. 91-601, 84 Stat. 1670.
                     [See Pesticides  1.6-1.60(4) (c) for text and  legis-
                     lative  history.]  	   314
        1.2   The Federal Food, Drug, and Cosmetic Act, as amended,
              21 U.S.C. §§346, 34Ga, 348 (1970)	  314
              1.2a   Food,  Drug, and  Cosmetic  Act, 1906,  June  30,
                     1906, P.L. 59-384,  34 Stat. 768.		  330
                     (1)  Senate  Committee on Manufacture, S. REP.
                         No. 8, 59th Cong.,  1st Sess. (1905)	  337
                     (2)  House Committee  on Interstate  and Foreign
                         Commerce,  H.R. REP. No. 2118 (parts 1 &
                         2), 59th  Cong., 1st Sess. (1906)	  338
                     (3)  Committee  of Conference, H.R. REP. No.
                         5056, 59th  Cong., 1st Sess. (1906).  	  348
                     (4)  Second Committee of Conference, H.R.  REP.
                         No. 5096, 59th Cong., 1st Sess. (1906). 	  349
                     (5)  Congressional Record, Vol. 40  (1906):
                         (a) Jan. 10, 16, 17, 18, 23, Feb. 2, 19, 20, 21:
                            Debated and passed Senate, pp. 894-898,
                            1129-1135, 1216-1221, 1414-1417, 2643-
                            2644, 2654-2658, 2662-2666, 2719-2722,

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xiv                                                          CONTENTS

                                                                   Page
                             2728-2729,  2747-2748, 2755-2758,  2761-
                             2763, 2766-2767, 2773;  	   359
                         (b) May 7, June 21, 22, 23: Debated, amend-
                             ed and passed  House, pp. 6464-6467,
                             8889-8915,  9005, 9048-9052, 9063-9070,
                             9075; 	   457
                         (c) June 27: First conference report sub-
                             mitted  to Senate, pp. 9379-9381;*  	   484
                         (d) June 27: First conference report submit-
                             ted to House, p. 9417;*		   489
                         (e) June 28: First conference report with-
                             drawn  in Senate, p. 9459;* 	   489
                         (f) June 28, 29: Second conference report
                             submitted and passed Senate,  pp. 9472,
                             9474, 9495-9596;	   489
                         (g) June 29: Second conference report sub-
                             mitted   and passed  House,  pp.  9735,
                             9737-9738,  9740. 	   490
              1.2b   Federal Food, Drug, and Cosmetic Act, June 25,
                     1938, P.L. 75-717, §406, 52 Stat. 1049. 	   492
                     (1) Senate Committee on  Commerce, S. REP.
                         No. 91, 75th Cong., 1st Sess.  (1937). 	   493
                     (2) Senate Committee on  Commerce,  S.  REP.
                         No. .152, 75th Cong., 1st Sess.  (1937)		   496
                     (3) House Committee on Interstate and Foreign
                         Commerce,  H.R. REP. No. 2139, 75th Cong.,
                         3rd Sess. (1938)		   498
                     (4) Committee  of  Conference, H.R.  REP.  No.
                         2716, 75th Cong., 3rd Sess. (1938). 	   506
                     (5) Congressional Record:
                         (a) Vol. 81 (1937), March 8, 9:  Debated,
                             amended and  passed  Senate,  pp. 1962,
                             2010, 2013-2014, 2016, 2018-2019; 	   513
                         (b) Vol. 83 (1938),  May  31:  Made Special
                             Order and debated, pp. 7771-7778, 7780-
                             7781; 			   515
                         (c) Vol.  83 (1938),  June 1:  Amended  and
                             passed House, pp. 7889, 7891, 7893-7894,
                             7897-7898,  7903; 	   523
                         (d) Vol. 83 (1938), June 2: Senate disagrees
                             to House amendments, p. 7955;*	   526
                         (e) Vol.  83 (1938), June 10:  Senate agrees
                             to conference report, pp.  8731-8738;*	   526
                         (f) Vol. 83 (1938), June 13: House agrees to
                             conference report, pp. 9095-9101		   527

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CONTENTS                                                         xv

                              Volume II

                                                                  Page
              1.2c    1940  Reorganization Plan No. IV, §12, 54  Stat.
                     1237. 	   529
              1.2d    1953  Reorganization Plan No. I, §§5, 8, 67  Stat.
                     632. 	   529
              1.2e    Food Additives Amendments of 1958, September
                     6, 1958, P.L.  85-929, §§3(c), 4,  6(a), 72  Stat.
                     1784. 	   529
                     (1) House Committee on Interstate and Foreign
                        Commerce, H.R. REP. No. 2284, 85th Cong.,
                        2d  Sess. (1958). 	   537
                     (2) Senate Committee on Labor and Public  Wel-
                        fare, S. REP. No. 2422, 85th Cong., 2d  Sess.
                         (1958). 	   565
                     (3) Congressional Record, Vol. 104 (1958):
                         (a)  Aug. 23: Amended and passed Senate,
                             pp. 19358-19359;* 	   588
                         (b)  Aug.  23:  House concurs in  Senate
                             amendments, p. 19641.*  	   588
              1.2f    Color Additives Amendments of  1960, July 12,
                     1960, P.L. 86-618,  Title  I,  Section 103(a)(l),
                     74 Stat. 398. 	   588
                     (1) Senate Committee on Labor and Public Wel-
                        fare, S. REP. No. 795, 86th Cong., 1st  Sess.
                         (1959). 	   589
                     (2) House Committee on Interstate and Foreign
                        Commerce, H.R. REP. No. 1761, 86th Cong.,
                        2d Sess. (1960)	   609
                     (3) Congressional Record:
                         (a)  Vol. 105 (1959), Aug. 24:  Amended and
                             passed Senate, pp. 16776-16780;* 	   651
                        (b)  Vol.  106  (1960), June  25:  Debated,
                             amended and passed House, pp.  14349-
                             14355,14357-14359,14361-14362,14378;*   652
                         (c)  Vol. 106 (1960),  June 30: Senate con-
                             curs in House amendments, pp.  15133—
                             15137.*		   664
              1.2g   Administrative Agency Proceedings Act, August
                    28,1958, P.L. 85-791, §20, 72 Stat. 947	   665
                     (1) House Committee on  the Judiciary,  H.R.
                        REP. No. 842, 85th Cong., 1st Sess. (1957). __   666
                     (2) Senate Committee on the Judiciary, S. REP.
                        No.  2129, 85th Cong., 2d Sess.  (1958)	   668
                     (3) Congressional Record:
                        (a)  Vol. 103 (1957), Aug. 5: Amended and
                             passed House, pp. 13617-13621;*	   671
                        (b)  Vol. 104 (1958), Aug. 14: Passed Senate,
                             p. 17537.*	   671

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xvi                                                          CONTENTS

                                                                   Page
              1.2h   Amendments  to  Food Additives, June 29, 1960,
                     P.L. 86-546, 74 Stat. 255	   671
                     (1) House  Committee on  the  Judiciary,  H.R.
                         REP. No. 1462, 86th  Cong., 2d Sess. (1960).   672
                     (2) Senate Committee on the Judiciary, S. REP.
                         No. 1566, 86th Cong., 2d Sess.  (I960).* 	   674
                     (3) Congressional Record, Vol. 106 (1960):
                         (a) April 19: Amended and passed House, p.
                             8190; *  	   674
                         (b) June 18: Passed  Senate, p. 13203.* 	   674
              1.2i    Drug Amendments of 1962, October 10,1962, P.L.
                     87-781, Title I, Section 104(f) (1), 76 Stat. 785	   674
                     (1) Senate Committee on the Judiciary, S. REP.
                         No. 1744  (part 1 & 2), 87th Cong., 2d Sess.
                         (1962). 	   675
                     (2) House Committee on Interstate and Foreign
                         Commerce,  H.R. REP. No. 2464, 87th Cong.,
                         Sess. (1962). 	   676
                     (3) Committee  of Conference,  H.R. REP.  No.
                         2526, 87th Cong., 2d Sess. (1962). 	   678
                     (4) Congressional Record, Vol. 108 (1962):
                         (a) Aug. 23: Debated,  amended,  and passed
                             Senate,  pp. 17364-17422;*  	   682
                         (b) Sept. 27: Amended and passed  House,
                             pp. 21092, 21096-21097, 21099-21100; ....   682
                         (c) Oct.  3: Senate agrees to conference re-
                             port, pp. 22037,  22039,  22091-22092,
                             22044-22045,  22047, 22050; 	   683
                         (d) Oct.  4:  House agrees to conference re-
                             port, pp. 22323, 22325	   691
              1.2 j    Heart Disease,  Cancer, Stroke and Kidney Dis-
                     ease Amendments of 1970,  October 30,  1970,
                     P.L. 91-515, Title VI,  Section 601(d)(l), 84 Stat.
                     1311.  	   691
                     (1) House  Committee on Interstate and  Foreign
                         Commerce,  H.R.  REP.  No.  91-1297, 91st
                         Cong.,  2d Sess. (1970).* 	   691
                     (2) Senate Committee on Labor and Public Wel-
                         fare, S.  REP. No. 91-1090, 91st Cong., 2d
                         Sess. (1970).* 	   691
                     (3) Committee  of Conference,  H.R. REP.  No.
                         91-1590,  91st Cong.,  2d Sess.  (1970).* 	   692
                     (4) Congressional Record, Vol. 116 (1970):
                         (a) Aug. 12: Amended and passed House, p.
                             28532 ;* 	   692
                         (b) Sept. 9:  Amended  and passed Senate, p.
                             31013; * 	   692
                         (c) Oct.  13:  House agrees to  conference re-
                             port, pp. 36589-36591;* 	   692

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CONTENTS                                                         xvii

                                                                    Page
                         (A) Oct. 14: Senate agrees to conference re-
                             port, pp. 36888-36892;* 	   692
              1.2k   Comprehensive  Health Manpower  Training Act
                     of 1971, November 18,  1971, P.L. 92-157, Title
                     III, §303(a), 85 Stat.  464	   692
                     (1) House Committee on Interstate and Foreign
                         Commerce,  H.R. REP. No. 92-258, 92d Cong.,
                         1st Sess. (1971).* 	   693
                     (2) Senate Committee on Labor and Public Wel-
                         fare, S. REP.  No. 92-251, 92d  Cong.,  1st
                         Sess. (1971).* 	   693
                     (3) Committee  of Conference, H.R.  REP. No.
                         92-578, 92d Cong., 1st Sess. (1971).* 	   693
                     (4) Congressional Record, Vol.  117  (1971):
                         (a) July 1:  Considered  and passed  House;*   693
                         (b) July 14:  Considered and passed Senate,
                             amended;*  	   693
                         (c) Oct. 19: Senate agreed to conference re-
                             port;*  	   693
                         (d) Nov. 9: House agreed to conference re-
                            port.*  	...   693
              1.21    Federal Environmental Pesticide Control Act of
                     1972, P.L. 92-516, §3(3), 86 Stat. 998. 	   693
                     (1) House Committee on Agriculture,  H.R. REP.
                         No. 92-511, 92d Cong., 1st Sess. (1971).* ......   694
                     (2) Senate Committee on Agriculture and For-
                         estry,  S. REP. No.  92-838,  92d Cong., 2d
                         Sess. (1972).* 	   694
                     (3) Senate  Committee on  Commerce, S. REP.
                         No. 92-970, 92d Cong., 2d Sess. (1972).* ....   694
                     (4) Committee  of Conference, H.R.  REP.  No.
                         92-1540, 92d Cong., 2d Sess. (1972).*	   694
                     (5) Congressional Record:
                         (a) Vol. 117  (1971), Nov. 8,  9: Considered
                            and passed House;*  	   694
                         (b) Vol. 118  (1972),  Sept. 26;  Considered
                            and passed Senate,  amended;*  	   694
                         (c) Vol. 118 (1972), Oct. 5: Senate agreed
                            to conference report;*  	   694
                         (d) Vol. 118  (1972), Oct. 12: House agreed
                            to conference  report.* 	   694
        1.3   Studies of Effects in Use of Chemicals, as amended, 16
              U.S.C.  §742d-l (1968)	   695
              1.3a    Pesticide Research Act, August 1, 1958, P.L. 85-
                     582, 72 Stat. 479.  	   695
                     (1) Senate Committee on Interstate and  Foreign
                         Commerce, S. REP. No. 1592, 85th Cong., 2d
                         Sess.  (1958).  	   696
                     (2)  House Committee on Merchant Marine  and
                         Fisheries, H.R. REP. No. 2181, 85th Cong.,
                         2d  Sess. (1958).  	   702

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xviii                                                        CONTENTS

                                                                   Page
                     (3)  Congressional Record, Vol. 104 (1958):
                         (a)  May 29: Passed  Senate, pp. 9797-9798;    703
                         (b)  July 21: Amended and passed House, p.
                             14439;* 	    705
                         (c)  July 23: Senate concurs in House amend-
                             ments, p. 14741.* 	    705
              1.3b   Fish and Wildlife Studies,  September 16, 1959,
                     P.L. 86-279, 73 Stat. 563. 	    705
                     (1)  Senate Committee on Interstate and Foreign
                         Commerce, S. REP. No. 708, 86th Cong., 1st
                         Sess. (1959). 	    705
                     (2)  House  Committee on Merchant Marine and
                         Fisheries, H.R. REP.  No. 975, 86th Cong., 1st
                         Sess. (1959). 	    710
                     (3)  Congressional Record, Vol. 105  (1959):
                         (a)  Aug. 19: Amended and passed Senate,
                             p.  16345;*  		    715
                         (b)  Sept. 2: Amended and passed House, pp.
                             17768-17769;* 	    716
                         (c)  Sept.  10:  Senate  concurs in  House
                             amendments, p.  18938		    716
              1.3c   Protection of Fish and Wildlife from Pesticides,
                     October  1, 1965, P.L. 89-232, 79 Stat. 902. 	    716
                     (1)  Senate Committee on Commerce, S. REP. No.
                         169, 89th Cong., 1st Sess. (1965)	    717
                     (2)  House  Committee on Merchant Marine and
                         Fisheries, H.R.  REP. No.  1002, 89th Cong.,
                         1st  Sess. (1965)		    719
                     (3)  Congressional Record, Vol. Ill  (1965):
                         (a)  April 29: Amended and passed Senate,
                             pp. 8967-8968;*  	    722
                         (b)  Sept. 20: Passed House, p.  24374	    722
              1.3d   Pesticide Research,  July 11,  1968,  P.L. 90-394,
                     82 Stat. 338		    723
                     (1)  House  Committee on Merchant Marine and
                         Fisheries, H.R.  REP. No. 1223, 90th Cong.,
                         2d Sess.  (1968). 	    724
                     (2)  Senate Committee on  Commerce,  S. REP.
                         No. 1236, 90th Cong., 2d Sess. (1968)	    738
                     (3)  Congressional Record, Vol. 114  (1968):
                         (a)  June  24:   Passed  Senate,  pp.  18356-
                             18357; 	    745
                         (b)  June 27: Passed House, p. 19095		    746
         1.4   Public Health Service Act,  as amended, 42 U.S.C. §§241,
              243,246,264 (1970).
              (See, "General 1.12a-1.12ae(3)(c)" for legislative his-
              tory)  	    747
         1.5   Environmental  Quality Branch  of the Plant Protection
              Division 	    766
              1.5a   The Organic Act of 1862, as amended, 7 U.S.C.
                     §§2201-2212  (1967). 	    766

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CONTENTS                                                          xix

                                                                   Page
              1.5b   The President's Science Advisory Committee Re-
                     port on Pesticides, May 14, 1963, p. 22. 	   768
              1.5c   Agricultural  Research Service,  Department of
                     Agriculture and Related Agencies Appropriation
                     Act of  1965,  September  2, 1965, P.L. 88-573,
                     Title I, 78 Stat. 862	   771
         1.6   Special Packaging of Household Substances for Protec-
              tion of Children, 15 U.S.C. §1471 et seq. (1972)	   774
              1.6a   Poison Prevention Packaging  Act of 1970, De-
                     cember 30, 1970, P.L. 91-601, 84 Stat. 1670. 	   780
                     (1) House Committee on Interstate and Foreign
                         Commerce, H.R.  REP. No.  91-1642, 91st
                         Cong., 2d Sess. (1970). 	   786
                     (2) Senate Committee on Commerce, S.  REP.
                         No. 91-845, 91st  Cong., 2d Sess.  (1970)	   802
                     (3) Committee of Conference, H.R.  REP.  No.
                         91-1755, 91st  Cong., 2d Sess.  (1970)	   807
                     (4) Congressional Record, Vol. 116 (1970):
                         (a)  May 11: Considered and passed Senate,
                             pp. 14796-14798;*	   816
                         (b)  Dec. 7: Considered and  passed House,
                             amended, pp. 40188-40193;*  	   816
                         (c)  Dec. 16: Senate and House agreed to con-
                             ference report, pp. 41729-41730, 41948.*   816
              1.6b   Federal  Environmental Pesticide Control Act of
                     1972,  October  21, 1972, P.L. 92-516, §3(3),  86
                     Stat. 998. 	   817
                     (1) House Committee on Agriculture, H.R. REP.
                         No.  92-511, 92d Cong., 1st Sess.  (1971).*....   817
                     (2) Senate Committee on Agriculture and For-
                         estry, S. REP. No.  92-838, 92d  Cong.,  2d
                         Sess. (1972).* 			   817
                     (3) Senate Committee on Commerce, S.  REP.
                         No.  92-970, 92d Cong., 2d Sess. 	   817
                     (4) Committee  of  Conference, H.R.  REP.  No.
                         92-1540, 92d Cong., 2d Sess. (1972).* 	   817
                     (5) Congressional Record:
                         (a)  Vol. 117 (1971), Nov. 8, 9:  Considered
                             and passed House;* 	   817
                         (b)  Vol.  118  (1972),  Sept.  26:  Considered
                             and passed Senate, amended;* 	   817
                         (c)  Vol. 118 (1972), Oct.  5: Senate agreed
                             to conference report;*	   818
                         (d)  Vol. 118 (1972),  Oct. 12: House agreed
                             to conference report,*	   818
        1.7   Hearings; Presiding Employees; Powers and  Duties;
              Burden of Proof; Evidence; Record as a Basis of  Deci-
              sion, as revised, 5 U.S.C. §556(c) (1966). [Referred to
              in 7 U.S.C. §135b(c), 21 U.S.C. §246a(d)(5)]  	   818
              1.7a   Administrative Procedure in Hearings Act, June
                    11, 1946, P.L. 79-104, §7, 60 Stat. 241.  	   819

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xx                                                          CONTENTS

                                                                   Page
                     (1)  Senate Committee on the Judiciary, S. REP.
                         No. 752, 79th Cong., 1st Sess. (1945)	   821
                     (2)  House Committee on the Judiciary, H.R. REP.
                         No. 1980, 79th Cong., 2d Sess. (1946). 	   834
                     (3)  Congressional Record, Vol. 92 (1946):
                         (a) March 12: Debated and passed Senate,
                             pp. 2151, 2155-2159, 2162, 2165, 2167;....   845
                         (b) May 24: Debated, amended and  passed
                             House, pp. 5645, 5649,  5652-5653, 5655,
                             5665-5668; 	   851
                         (c) May 27: Senate concurs in House amend-
                             ment, pp. 5790. 	   855
              1.7b   Administrative Procedure in Hearings Amend-
                     ments, September 6, 1966, P.L.  89-554, §556, 80
                     Stat. 386.  			   856
                     (1)  House Committee on  the  Judiciary, H.R.
                         REP.  No.  901, 89th Cong., 1st Sess.  (1965).   858
                     (2)  Senate Committee on the Judiciary, S. REP.
                         No. 1380, 89th  Cong., 2d Sess.  (1966)	   859
                     (3)  Congressional Record:
                         (a) Vol. Ill (1965), Sept. 7: Considered  and
                             passed House, p. 22954;*  	   860
                         (b) Vol. 112 (1966), July 25: Amended  and
                             passed Senate, p. 17010;* 	   860
                         (c) Vol. 112 (1966), Aug. 11:  House concurs
                             in Senate  amendments, p. 19077;* 	   860
         1.8   Record on  Review and Enforcement of Agency Orders,
              as amended, 28 U.S.C. §2112  (1966).
               [Referred to in 7 U.S.C.  §135b(d), 21  U.S.C. §§346a(i)-
               (2)(3), 348(g)(2), 15 U.S.C.  §1474(b)(l)]  	   860
              1.8a   Uniform  Review,  Records  and  Enforcement
                     Orders Amendments, August 28,  1958, P.L.  85-
                     791, §2, 72 Stat. 941.  	   860
                     (1)  House Committee on  the Judiciary, H.R.
                         REP.  No. 842, 85th Cong.,  1st Sess.  (1957).   863
                     (2)  Senate Committee on the Judiciary, S. REP.
                         No. 2129,  85th Cong., 2d Sess.  (1958). 	   874
                     (3)  Congressional  Record:
                         (a) Vol. 103  (1957), Aug.  5: Amended  and
                             passed House, pp. 13617-13618;* 	   881
                         (b) Vol. 104 (1958), Aug. 14:  Passed  Senate,
                             p. 17537.  	   881
         1.9    Courts of Appeals; Certiorari; Appeal; Certified Ques-
               tions, as amended, 28 U.S.C.  §1254 (1948).
               [Referred to in 7 U.S.C.  §135b(d), 21 U.S.C. §§346a(i)-
               (5), 348(g)(5), 15 U.S.C. §1474(b)(5)] 	   882
               1.9a   Appeals to and/or from the Circuit Court of  Ap-
                     peals, March 3, 1911, P.L. 61-475, §§239,  240, 36
                     Stat.  1157. 	   883

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CONTENTS                                                         xxi

                                                                   Page
                     (1)  Senate Special Joint Committee on Revision
                         and Codification  of Laws, S.  REP. No. 388
                     (2)  House Committee on Revision of the Laws,
                         (parts 1 and 2), 61st Cong., 2d Sess. (1910).   884
                         H.R. Doc. No.  783, (part 1), 61st Cong., 2d
                         Sess. (1910)	   884
                     (3)  House Committee on Revision of the Laws,
                         H.R. REP.  No.  818,  61st  Cong.,  2d  Sess.
                         (1910). 	   885
                     (4)  Committee of Conference, S. DOC. No. 848,
                         61st Cong.,  3rd Sess. (1911).  	   886
                     (5)  Congressional Record,  Vol. 46 (1911):
                         (a)  Feb. 8: Amended  and passed Senate, p.
                             2140;* 	   887
                         (b)  Feb. 23: Amended and passed House, p.
                             3220; 			   887
                         (c)  March 2:  Senate  agreed to  conference
                             report, p. 3853; 	   887
                         (d)  March  2:  House  agreed  to  conference
                             report, pp. 3998; 4000; 4012.	   887
              1.9,b    Judicial Code Amendments of 1925, February 13,
                     1925, P.L. 68-415, §1, 43 Stat. 938. 	   887
                     (1)  House  Committee  on the  Judiciary,  H.R.
                         REP. No. 1075, 68th Cong., 2d Sess. (1925).   888
                     (2)  Congressional Record,  Vol. 66 (1925):
                         (a)  Feb. 2:  Amended and passed House, pp.
                            2877-2880; * 	   898
                         (b)  Feb. 3:  Amended and passed Senate,  p.
                            2928; * 	   898
                         (c)  Feb. 4:  House agreed to Senate amend-
                            ments, p. 3005. 	   898
              1.9c    Writs of Error Abolished Amendments, January
                     31, 1928, P.L. 70-10, §1, 45  Stat. 54. 	   899
                     (1)  House  Committee  on  the  Judiciary,  H.R.
                         REP. No. 370,  70th Cong., 1st Sess. (1928).   899
                     (2)  Congressional Record,  Vol. 69 (1928):
                         (a) Jan. 14: Discharged and passed Senate
                            without amendment, p. 1486; 	   900
                         (b) Jan. 25:  Passed House, without amend-
                            ment, p. 2040.* 	   900
              1.9d    District of Columbia Court of Appeals Act, June
                     7, 1934, P.L. 73-298, 48  Stat.  926. 	   900
                     (1)  Senate Committee on the Judiciary, S. REP.
                         No. 917, 73rd Cong., 2d Sess. (1934). 	   901
                     (2)  House Committee  on  the  Judiciary,  H.R.
                         REP. No.  1748, 73rd Cong., 2d Sess. (1934).   902
                     (3)  Congressional Record, Vol. 78 (1934):
                         (a) May 10:  Passed Senate, p. 8479; 	   904
                         (b) June 5:  Passed House, pp. 10536-10537.*   905
              1.9e    Court of  Appeals Review  Act, June  25,  1948,
                     P.L. 80-773, §1254,  62 Stat. 928. 	   905

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xxii                                                        CONTENTS

                                                                   Page
                     (1)  House  Committee  on the  Judiciary, H.R.
                         REP. No. 308, 80th Cong., 1st Sess. (1947).   906
                     (2)  Senate Committee on the Judiciary, S. REP.
                         No. 1559, 80th Cong., 2d Sess. (1948).	   908
                     (3)  Congressional Record:
                         (a) Vol. 93 (1947), July 7: Passed House, p.
                             8392; * 	   910
                         (b) Vol. 94 (1948), June 12: Amended and
                             passed Senate, p. 7927;*  		-	   911
                         (c) Vol. 94 (1948), June 16: House concurs
                             in  Senate amendments, p. 8501.* 	   911
         1.10  Adulterated Pood, as amended, 21 U.S.C. §342 (a) (1968).
              [Referred to in 21 U.S.C. §§346, 346a(a), 348(a)(2)].___   911
              l.lOa  Federal Food, Drug, and  Cosmetic Act, June 25,
                     1938, P.L. 75-717, §402, 52 Stat. 1046	   912
                     (1)  Senate Committee on Commerce,  S. REP.
                         No. 91, 75th Cong., 1st Sess. (1937)	   913
                     (2)  House  Committee on  Interstate and Foreign
                         Commerce, H.R. REP. No. 2139, 75th Cong.,
                         3rd Sess. (1938). 	   920
                     (3)  Committee of Conference,  H.R. REP. No.
                         2716, 75th Cong., 3rd Sess. (1938)		   921
                     (4)  Congressional Record:
                         (a) Vol. 81 (1937), March 9.: Amended and
                             passed Senate, p. 2009;  	   923
                         (b) Vol. 83  (1938),  June  1:  Amended and
                             passed House, p. 7903; 	   923
                         (c) Vol. 83 (1938), June 10:  Senate  agrees
                             to conference report, p. 8733; 	   924
                         (d) Vol. 83  (1938), June 13: House  agrees
                             to  conference report, pp. 9089-9090.*....   924
              l.lOb  Federal Adulterated Food Amendments, July 22,
                     1954, P.L. 83-518, §2, 68 Stat. 511		   924
                     (1)  House  Committee on  Interstate and Foreign
                         Commerce, H.R. REP. No. 1385, 83rd Cong.,
                         2d Sess. (1954). 	   925
                     (2)  Senate Committee on Labor and Public Wel-
                         fare, S. REP. No. 1635, 83rd Cong., 2d Sess.
                         (1954). 	   929
                     (3)  Congressional Record, Vol. 100 (1954):
                         (a) April  5: Amended and passed House, p.
                             4604; * 			   932
                         (b) July 6: Amended and passed  Senate, p.
                             9726;  	   932
                         (c) July 8: House concurs in Senate amend-
                             ment, p.  10095.*  	   934
              l.lOc  Food Additives Amendment of 1958, September
                     6, 1958, P.L. 85-929, §3(a), (b), 72 Stat. 1784.....   934
                     (1) House Committee on Interstate  and Foreign
                         Commerce, H.R. REP. No. 2284, 85th Cong.,
                         2d Sess. (1958). 	   935

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CONTENTS                                                       xxiii

                                                                  Page
                     (2)  Senate Committee on Labor and Public Wel-
                         fare, S. REP. No.  2422, 85th Cong., 2d Sess.
                         (1958). 			   938
                     (3)  Congressional Record, Vol. 104 (1958):
                         (a)  Aug. 13: Amended  and  passed House,
                             pp.  17412,  17414-17415,  17418, 17422-
                             17424; 	   941
                         (b)  Aug. 23: Amended and passed Senate,
                             pp. 19358-19359; 	   949
                         (c)  Aug. 23: House concurs in Senate amend-
                             ment, p. 19641.* 	   951
              l.lOd   Color  Additive  Amendments  of 1960,  July  12,
                     1960,  P.L. 86-618, Title  I,  §§102(a)  (1),  (2),
                     105(c), 74 Stat.  397, 404	   951
                     (1)  Senate Committee on Labor and Public Wel-
                         fare, S. REP. No.  795, 86th Cong., 1st Sess.
                         (1959). 		   952
                     (2)  House Committee  on Interstate and Foreign
                         Commerce, H.P. REP. No. 1761, 86th Cong.,
                         2d Sess.  (1960). 	   957
                     (3)  Congressional Record:
                         (a)  Vol. 105 (1959), Aug. 24:  Amended and
                             passed Senate, pp.  16780;* 	   966
                         (b)  Vol. 106  (1960), June 25:  Discharged,
                             amended, and passed House, pp. 14353,
                             14355-14358, 14373, 14377; 	   966
                         (c)  Vol. 106 (1960), June 30: Senate concurs
                             in House amendment, p. 15133.* 	   972
              l.lOe   Animal  Drugs in Feeds  Amendments  of  1968,
                     July 13,  1968, P.L. 90-399, §104, 82 Stat. 352. _...   972
                     (1)  House Committee  on Interstate and Foreign
                         Commerce, H.R. REP. No. 875, 90th Cong.,
                         1st  Sess.  (1967). 		.._   973
                     (2)  Senate Committee on Labor and Public Wel-
                         fare, S. REP. No.  1308, 90th Cong., 2d Sess.
                         (1968). 	   976
                     (3)  Congressional Record:
                         (a)  Vol. 113 (1967),  Nov. 6: Amended and
                             passed House, p.  31291; 	   982
                         (b)  Vol. 114 (1968), June 24:  Amended and
                             passed Senate, p. 18424;* 	   983
                         (c)  Vol. 114 (1968), July 2: House concurs
                             in Senate amendments, pp. 19713-19714.   983
        1.11  Listings and Certification of Color Additives for Foods,
              Drugs  and  Cosmetics—Unsafe  Color  Additives,  as
              amended, 21 U.S.C. §376(b) (5)(D)  (1970).
              [Referred to  in 21 U.S.C. §346a(g)] 	   985
              l.lla   Federal  Food, Drug, and  Cosmetic  Act Amend-
                     ments  of 1962, October  10,1962, P.L. 87-781, Title
                     I,  §104(f)(2), 76 Stat.  785			   985

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xxiv                                                        CONTENTS

                                                                   Page
                     (1)  Senate Committee on the Judiciary, S. REP.
                         No. 1744, 87th Cong., 2d Sess. (1962)	   986
                     (2)  House Committee on Interstate and Foreign
                         Commerce, H.R. REP. No. 2464, 87th Cong.,
                         2d Sess. (1962). 	   988
                     (3)  Committee of Conference,  H.R. REP. No.
                         2526, 87th Cong., 2d Sess. (1962)	   993
                     (4)  Congressional Record, Vol. 108 (1962):
                         (a) Aug. 23: Amended and passed Senate, p.
                             17422; * 	   997
                         (b) Sept.   27:  Discharged,  amended and
                             passed House, pp. 21052, 21083,  21097;   997
                         (c) Oct.  3: Senate concurred in conference
                             report, pp. 22039, 22053; 	   998
                         (d) Oct.  4: House  concurs in  conference
                             report, p. 22321. 	.'.	   999
              l.llb  National Advisory Council Amendments, October
                     30,  1970, P.L. 91-515, Title VI,  §601 (d) (2), 84
                     Stat. 1311.  	   1000
                     (1)  House Committee on Interstate and Foreign
                         Commerce, H.R.  REP. No. 91-1297, 91st
                         Cong., 2d Sess. (1970). 	   1001
                     (2)  Senate Committee on Labor and Public Wel-
                         fare, S. REP. No. 91-1090,  91st Cong., 2d
                         Sess. (1970).  	   1002
                     (3)  Committee of Conference,  H.R. REP. No.
                         91-1590, 91st Cong., 2d Sess.  (1970)	   1003
                     (4)  Congressional  Record, Vol.  116  (1970):
                         (a) Aug.  12:  Considered and passed  House,
                             p. 28532;  	   1006
                         (b) Sept. 9: Considered and passed Senate,
                             p. 31019;  	   1006
                         (c) Oct.  13:  House  agrees to  conference
                             report, pp. 36589, 36591;* 		   1007
                         (d) Oct.  14:  Senate  agrees to  conference
                             report, pp. 36888-36892.* 	   1007
         1.12  Regulations  and  Hearings—Authority  to  Promulgate
              Regulations, 21 U.S.C. §371  (1960).
               [Referred to in 21 U.S.C. §346a(k), 15 U.S.C. §1474(a)]   1007
              1.12a  Federal Food, Drug, and Cosmetic Act—Regula-
                     tions and Hearings, June 25, 1938, P.L. 75-717,
                     §701, 52 Stat.  1055. 	   1010
                     (1)  Senate Committee on Commerce, S. REP.
                         No. 91, 75th Cong.,  1st Sess. (1937). 	   1012
                     (2)  Senate Committee on Commerce, S. REP.
                         No. 152, 75th Cong., 1st Sess. (1937). 	   1015
                     (3)  House Committee on Interstate and Foreign
                         Commerce, H.R. REP. No. 2139,  75th  Cong.,
                         3rd Sess.  (1938)		   1018
                     (4)  Committee of Conference,  H.R.  REP. No.
                         2716, 75th Cong., 3rd Sess. (1938). 	   1028

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CONTENTS                                                        xxv

                                                                   Page
                     (5)  Congressional Record:
                         (a)  Vol. 81 (1937), March 9:  Amended and
                             passed Senate, p. 2019;* 	  1031
                         (b)  Vol. 83  (1938), June  1: Amended and
                             passed House, pp. 7891-7899; 	  1031
                         (c)  Vol. 83 (1938), June 10: Senate agrees
                             to conference report, pp. 8731-8738;*--  1040
                         (d)  Vol. 83  (1938), June 13:  House agrees
                             to conference report, pp.  9095-9100.*—  1040
              1.12b  1940 Reorganization Plan IV, Section 12, 54 Stat.
                     1237. 	  1040
              1.12c  Judicial  Code, Definition, Amendments, June 25,
                     1948, P.L. 80-773, §32, 62 Stat. 991	  1041
                     (1)  House Committee  on the  Judiciary,  H.R.
                         REP. No. 308, 80th Cong., 1st Sess.  (1947).  1041
                     (2)  Senate Committee on the Judiciary, S.  REP.
                         No.  1559, 80th Cong., 2d Sess. (1948). 	  1042
                              Volume III
                     (3)  Congressional Record:
                         (a)  Vol. 93  (1947), July 7: Amended and
                             passed House, p. 8392;* 	  1043
                         (b)  Vol. 94 (1948),  June 21: Amended and
                             passed Senate, p. 7927;* 	  1043
                         (c)  Vol. 94 (1948), June 16: House concurs
                             in Senate amendment, p. 8499.* 	  1043
              1.12d  1953 Reorganization Plan I, §§5, 8, 67 Stat. 631:  1043
              1.12e  Federal  Food, Drug, and Cosmetic  Act Amend-
                     ments of 1954, April 15, 1954, P.L. 83-335,  §2,
                     68 Stat.  55. 	  1044
                     (1)  House Committee on Interstate and Foreign
                         Commerce, H.R. REP. No. 934,  83rd  Cong.,
                         1st Sess. (1953)	  1044
                     (2)  Senate Committee on Labor and Public Wel-
                         fare, S. REP.  No. 1060, 83rd Cong., 2d Sess.
                         (1954).  	  1046
                     (3)  Congressional Record:
                         (a)  Vol. 991  (1953), July 30: Passed House,
                             p. 10527;*	  1049
                         (b)  Vol. 100  (1954), April 5: Passed Senate,
                             pp. 4556-4557	......  1049
              1.12f  1956 Federal Food, Drug, and Cosmetic Amend-
                     ments, August 1, 1956, P.L. 84-905,  §2, 70 Stat.
                     919		  1051
                     (1)  House Committee on Interstate and Foreign
                         Commerce, H.R. REP. No. 2623, 84th  Cong.,
                         2d Sess. (1956)	  1053

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xxvi                                                       CONTENTS

                                                                   Page
                     (2)  Senate Committee on Labor and Public Wel-
                         fare, S. REP. No. 2752, 84th Cong., 2d Sess.
                         (1956). 	  1061
                     (3)  Congressional Record, Vol.  102  (1956):
                         (a)  July 16: Passed  House,  pp.  12911-
                             12912; *  	  1066
                         (b)  July  23: Passed Senate, p. 13923.* 	  1066
              1.12g  Abbreviated Records on Review Act, August 28,
                     1958, P.L. 85-791, §21, 72 Stat. 948	  1066
                     (1)  House  Committee on  the  Judiciary, H.R.
                         REP. No. 842, 85th Cong., 1st .Sess. (1957).  1066
                     (2)  Senate Committee on the Judiciary, S. REP.
                         No. 2129, 85th Cong., 2d Sess. (1958)	  1069
                     (3)  Congressional Record:
                         (a)  Vol.  103  (1957), Aug. 5: Amended and
                             passed House, p. 13620;*	  1075
                         (b)  Vol. 104 (1958), Aug. 14: Passed Senate,
                             p. 17537		  1075
              1.12h  1960 Amendments to Federal  Food, Drug, and
                     Cosmetic Act, July 12, 1960, P.L. 86-618, Title I,
                     §103(a) (4), 74 Stat. 398	  1076
                     (1)  Senate Committee on Labor and Public Wel-
                         fare, S. REP. No. 795, 86th Cong., 1st Sess.
                         (1959). 	  1076
                     (2)  House Committee on Interstate  and Foreign
                         Commerce, H.R. REP. No. 1761, 86th Cong.,
                         2d Sess.  (1960). 	  1080
                     (3)  Congressional Record:
                         (a)  Vol.  105 (1959), Aug. 24: Amended and
                             passed Senate, p. 16777;*	  1085
                         (b)  Vol.  106 (1960), June 25: Amended and
                             passed House, pp. 14334, 14373, 14376;*  1085
                         (c)  Vol. 106 (1960), June 30: Senate concurs
                             in House amendments, p. 15133.*	  1085
         1.13  Penalties—Violation of  Section 331 of this Title, 21
              U.S.C. §333(c)  (1970).
              [Referred to  in 21 U.S.C. §346a(n)] 	  1085
              1.13a  Federal Food, Drug, and Cosmetic Act Penalties,
                     June 25, 1938, P.L. 75-717, §303, 52 Stat. 1043	  1086
                     (1)  Senate Committee on  Commerce,  S. REP.
                         No. 91, 75th Cong., 1st Sess. (1937). 	  1088
                     (2)  Senate Committee on  Commerce,  S. REP.
                         No. 152, 75th Cong., 1st Sess. (1937)	  1089
                     (3)  House Committee on Interstate and Foreign
                         Commerce, H.R. REP. No. 2139, 75th Cong.,
                         3rd Sess. (1938). 	  1091
                     (4)  Committee  of  Conference, H.R. REP.  No.
                         2716, 75th Cong., 3rd Sess.  (1938).  	  1092
                     (5)  Congressional Record:
                         (a) Vol.  81  (1937), March  9: Amended  and
                             passed Senate, p. 2005;	  1094

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CONTENTS                                                       xxvii

                                                                   Page
                         (b)  Vol. 83  (1938), June  1: Amended and
                             passed House, p. 7903;*	  1094
                         (c)  Vol. 83 (1938), June 10: Senate agrees
                             to conference report, p. 8732;* 	  1094
                         (d)  Vol. 83 (1938), June 13: House agrees to
                             conference report, pp. 9088-9089.*	  1094
              1.13b   1940 Reorganization Plan IV, §12, 54 Stat. 1237.  1094
              1.13c   1951 Amendments  to Federal  Pood,  Drug, and
                     Cosmetic Act, October 26, 1951, P.L. 82-215, §2,
                     65  Stat. 649. 			  1094
                     (1)  House Committee on Interstate and Foreign
                         Commerce, H.R. REP. No. 700, 82nd  Cong.,
                         1st Sess. (1951)		  1095
                     (2)  Senate Committee on Labor and Public Wel-
                         fare, S. REP. No. 946, 82nd Cong., 1st Sess.
                         (1951). 			  1103
                     (3)  Congressional Record, Vol. 97 (1951):
                         (a)  Aug. 1: Amended and passed House, pp.
                             9333, 9334;*	  1118
                         (b)  Oct. 15: Amended and  passed Senate,
                             pp. 13126; 13128;  13131; 	  1118
                         (c)  Oct. 17: House concurs in Senate amend-
                             ments, p. 13378. 	  1119
              1.13d   1953 Reorganization Plan I, §§5, 8, 67 Stat. 632. _.  1119
              1.13e   Food Coloring  Amendments of  1960, July  12,
                     1960, P.L. 86-618, Title I, §105(b), 74 Stat. 403-  1120
                     (1)  Senate Committee on Labor and Public Wel-
                         fare, S. REP. No. 795, 86th Cong., 1st Sess.
                         (1959). 	  1121
                     (2)  House Committee on Interstate and Foreign
                         Commerce, H.R. REP. No.  1761,  86th  Cong.,
                         2d Sess. (1960). 	  1124
                     (3)  Congressional Record:
                         (a)  Vol. 105  (1959), Aug. 24: Amended and
                             passed Senate, p. 16778;*	  1133
                         (b)  Vol. 106  (1960), June 25: Amended and
                             passed House, pp. 14373,  14377;*	  1133
                         (c)  Vol. 106  (1960), June 30:  Senate concurs
                             in House amendments, p. 15135.* 	  1133
              1.13f   Drug Abuse  Control Amendments of 1965, July
                     15, 1965, P.L. 89-74, §§7, 9(d), 79 Stat. 233, 235.  1133
                     (1)  House Committee on Interstate and Foreign
                         Commerce, H.R. REP. No. 130,, 89th  Cong.,
                         1st Sess. (1965)	  1134
                     (2)  Senate Committee on Labor and Public Wel-
                        fare, S. REP. No. 337, 89th Cong., 1st Sess.
                         (1965). 	  1136
                     (3)  Congressional Record, Vol. Ill (1965):
                         (a)  March 10:  Amended and passed House,
                            pp. 4702-4703;*  	  1138

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xxviii                                                       CONTENTS

                                                                   Page
                         (b) June 23: Amended and passed Senate,
                             p. 14609;*	   1138
                         (c) July 8: House concurs in Senate amend-
                             ments, pp. 15977-15978.* 	   1138
              1.13g  Federal Food,  Drug, and Cosmetic  Act LSD
                     Amendments, October 24,  1968, P.L. 90-639, §3,
                     82 Stat. 1361.  		   1138
                     (1) House Committee on Interstate and Foreign
                         Commerce, H.R. REP. No. 1546, 90th Cong.,
                         2d Sess. (1968)	   1139
                     (2) Senate Committee on Labor and Public Wel-
                         fare, S. REP. No. 1609, 90th Cong., 2d Sess.
                         (1968).  	   1149
                     (3) Committee of Conference, H.R.  REP. No.
                         1958, 90th Cong., 2d Sess.  (1968)	   1156
                     (4) Congressional Record, Vol. 114  (1968):
                         (a) July 12: Amended  and passed  House,
                             pp. 21032-21040;  	   1158
                         (b) Oct. 4: Amended and passed Senate, pp.
                             29633, 29634; 	   1163
                         (c) Oct. 11: House agrees to conference re-
                             port, pp. 30761, 30762; 	   1165
                         (d) Oct. 11: Senate agrees to conference re-
                             port, pp. 30963,  30965	   1167
              1.13h  Comprehensive Drug Abuse Prevention and Con-
                     trol Act, October 27, 1970, P.L. 91-513, Title II,
                     §701(b), 84  Stat. 1281	   1170
                     (1) Senate Committee on the Judiciary, S. REP.
                         No. 91-613, 91st Cong., 1st Sess. (1969)	   1171
                     (2) House  Committee on Interstate  and Foreign
                         Commerce, H.R. REP. No. 91-1444, (Parts 1
                         and 2), 91st Cong., 2d Sess. (1970). 	   1174
                     (3) Committee of Conference, H.R.  REP.  No.
                         91-1603, 91st Cong., 2d Sess. (1970). 	   1176
                     (4) Congressional Record, Vol. 116  (1970):
                         (a) Jan. 28: Considered and passed  Senate,
                             p.  1690;*	   1177
                         (b) Sept. 24: Considered and passed House,
                             p.  33667;*	   1177
                         (c) Oct. 7: Amended and passed Senate, pp.
                             35496-35497;* 	   1177
                         (d) Oct. 14:  House  agrees to conference re-
                             port, p. 36655;*	   1177
                         (e) Oct. 14: Senate  agrees to  conference
                             report, p. 36885.* 	   1177
         1.14 Research and Development Act, Contracts, as amended,
              10 U.S.C. §§2353, 2354 (1956).
               [Referred to in 42 U.S.C. §241 (h)] 	   1178
              1.14a  Armed Forces Research and  Development Act,
                     July 16, 1952, P.L. 82-557, §§4, 5, 66 Stat. 725. _   1179

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CONTENTS                                                       xxix

                                                                  Page
                     (1)  House Committee on Armed Services, H.R.
                         REP. No. 548, 82nd Cong., 1st Sess.  (1951).  1181
                     (2)  Senate  Committee on Armed  Services, S.
                         REP. No. 936, 82nd Cong., 1st Sess.  (1951).  1194
                     (3)  Congressional Record:
                         (a)  Vol. 97 (1951), Aug. 2:  Passed  House,
                             pp. 9431-9433; 	  1204
                         (b)  Vol. 98  (1952), July 3: Amended and
                             passed Senate, pp. 9053-9054; 	  1210
                         (c)  Vol. 98 (1952), July 4:  House concurs
                             in Senate amendments, pp. 9374-9375. _.  1212
              1.14b   Armed Forces Procurement Amendments of 1956,
                     August  10, 1956, P.L. 84-1028, §§2353,  2354,
                     70A Stat. 134	  1213
                     (1)  House  Committee on the  Judiciary, H.R.
                         REP. No. 970, 84th Cong., 1st Sess.  (1955).  1214
                     (2)  Senate Committee on the Judiciary, S. REP.
                         No.  2484, 84th Cong.,  2d  Sess. (1956). 	  1217
                     (3)  Congressional Record:
                         (a)  Vol. 101 (1955),  Aug. 1: Amended and
                             passed House, pp. 12718-12719; 	  1218
                         (b)  Vol. 102 (1956), July 23: Amended and
                             passed Senate, p. 13953;*	  1219
                         (c)  Vol. 102  (1956), July 25: House concurs
                             in Senate amendment, p. 14455.*	  1219
         1.15  Rule Making, Administrative Procedure, as revised, 5
              U.S.C. §553 (1966).
              [Referred to  in 15 U.S.C. §1474(a),  (b)] 	  1219
              1.15s.   Rule Making, June 11, 1946,  P.L. 97-404, §4, 60
                     Stat. 238. .._	  1220
                     (1)  Senate Committee on the Judiciary, S. REP.
                         No.  752, 79th Cong., 1st  Sess. (1945). 	  1221
                     (2)  House Committee  on the Judiciary, H.R.
                         REP. No. 1980, 79th Cong., 2d Sess.  (1946).  1230
                     (3)  Congressional Record, Vol. 92 (1946):
                         (a)  March 12: Debated, amended and passed
                             Senate, pp. 2151-2152, 2155, 2157, 2161-
                             2162, 2165; 	  1241
                         (b)  May 24: Debated, amended and passed
                             House, pp. 5645,  5649; 5650-5652, 5656,
                             5660-5661; 	  1244
                         (c)  May 27: Senate  concurs in the  House
                             amendments, p. 5788.* 	  1248
              1.15b   Administrative  Procedure and  Rule Making,
                     September 6,  1966, P.L. 89-554,  §553, 80 Stat.
                     383. 	  1248
                     (1)  House Committee  on the Judiciary, H.R.
                         REP. No. 901, 89th Cong., 1st Sess.  (1965).  1249
                     (2)  Senate Committee on  the Judiciary, S. REP.
                         No.  1380, 89th Cong., 2d Sess. (1966)	  1251

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xxx                                                         CONTENTS

                                                                   Page
                     (3)  Congressional Record:
                         (a)  Vol. Ill (1965), Sept. 7: Passed House,
                             p. 22954;*	   1251
                         (b)  Vol. 112 (1966), July 25: Amended and
                             passed Senate, p.  17010;*  	   1252
                         (c)  Vol. 112 (1966), Aug. 11: House concurs
                             in Senate amendments, p.  19077.	   1252
         1.16  Judicial Review; Relief Pending Review;  Scope, as re-
              vised, 5 U.S.C. §§705, 706(2) (A),  (B),  (C), (D) (1966).
              [Referred to in 15 U.S.C. §1474(b) (3) (4)] 	   1252
              1.16a  Judicial  Interim Relief and Review of  Agencies
                     Acts, June 11,  1946, P.L. 79-404, §10(d), (e),  60
                     Stat. 243. 	   1253
                     (1)  Senate Committee on the Judiciary, S. REP.
                         No.  752, 79th Cong., 1st Sess. (1945). ....	   1255
                     (2)  House  Committee  on the  Judiciary, H.R.
                         REP. No. 1980, 79th Cong., 2d Sess. (1946).   1261
                     (3)  Congressional Record, Vol. 92  (1946):
                         (a)  March 12: Amended and passed Senate,
                             pp. 2151, 2153, 2158, 2163, 2166; 	   1267
                         (b)  May 24: Debated, amended and passed
                             House, pp. 5454-5457,  5660, 5666;  	   1270
                         (c)  May 27: Senate concurs in House amend-
                             ments, p. 5790.* 	   1276
              1.16b  Judicial  Interim Relief and  Review  of Agency
                     Amendments, September 6,  1966,  P.L. 89-554,
                     §§705, 706, 80 Stat. 393	   1276
                     (1)  House  Committee  on the  Judiciary, H.R.
                         REP. No. 901, 89th Cong., 1st Sess. (1965).   1277
                     (2)  Senate Committee on the Judiciary, S. REP.
                         No.  1380, 89th Cong., 2d Sess.  (1966).  	   1279
                     (3)  Congressional Record:
                         (a)  Vol. Ill (1965), Sept. 7: Passed House,
                             p. 22954;*	   1279
                         (b)  Vol. 112 (1966), July 25: Amended and
                             passed Senate, pp. 17010, 17011;*  	   1279
                         (c)  Vol. 112 (1966), Aug. 11: House concurs
                             in Senate amendments, p.  19077.*  	   1280
         1.17  Per Diem, Travel and Transportation Expenses; Experts
              and Consultants; Individuals Serving Without Pay,  as
              amended, 5 U.S.C. §5703 (1966).
              [Referred to in 15 U.S.C. §1475(b)]
              (See, "General 1.15a-1.15d(3) (c)"  for legislative his-
              tory) 	   1280
         1.18  Federal Water Pollution Control Act, as amended,  33
              U.S.C. §1155(1) (1), (2) (1970)	   1281
              1.18a  The Water Quality Improvement  Act  of  1970,
                     April 3,  1970, P.L. 91-224,  §105(L), 84 Stat. 111.   1281
                     (1)  House  Committee  on Public  Works, H.R.
                         REP.  No.  91-127, 91st  Cong.,  1st  Sess.
                         (1969).  ....	   1283

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CONTENTS                                                        xxxi

                                                                   Page
                     (2) Senate Committee on Public Works, S. REP.
                         No. 91-351, 91st Cong., 1st Sess.  (1969). ....  1284
                     (3) Committee  of Conference, H.R.  REP.  No.
                         91-940, 91st Cong., 2d Sess. (1970). 	  1285
                     (4) Congressional Record:
                         (a) Vol. 115 (1969), April 16: Amended and
                             passed  House, p. 9293;* 	  1286
                         (b) Vol. 115  (1969),  Oct. 7: Senate debated
                             and amended,  pp.  28923-28924, 28987-
                             29008;  	  1286
                         (c) Vol. 115 (1969),  Oct. 8: Passed Senate,
                             p. 29099;*	  1338
                         (d) Vol.  116  (1970),  March  24:  Senate
                             agrees to conference report; 	  1338
                         (e) Vol. 116 (1970), March 25: House agrees
                             to conference report, p. 9334.* 	  1338
              1.18b  Federal Water  Pollution  Control  Act  Amend-
                     ments  of 1972,  October  18, 1972, P.L. 92-500,
                     §104(1), 86 Stat. 822. 	  1338
                     (1) Senate Committee on Public Works, S. REP.
                         No. 92-414, 92d Cong., 1st  Sess.  (1971)	  1339
                     (2) House  Committee  on Public Works,  H.R.
                         REP. No. 92-911, 92d Cong., 2d Sess. (1972).  1344
                     (3) Committee  of Conference, H.R.  REP.  92-
                         1465, 92d Cong., 2d Sess. (1972)	  1345
                     (4) Congressional Record:
                         (a) Vol. 117 (1971), Nov. 2: Considered and
                             passed  Senate;*  	  1345
                         (b) Vol. 118 (1972), Mar. 27-29: Considered
                             and passed House, amended;* 	  1345
                         (c) Vol. 118 (1972), Oct. 4:  House  and
                             Senate  agreed to conference report;* ....  1345
                         (d) Vol. 118 (1972),  Oct. 18:  Senate  and
                             House overrode veto.* 	  1345
        1.19  Interest on Certain Government Obligations, as amend-
              ed, 26 U.S.C. §103  (1969).
              (See, "General 1.9a-1.9d(4) (d)" for legislative history)  1346
        1.20  Amortization of Pollution Control Facilities, as amend-
              ed, 26 U.S.C. §169 (1969).
              (See "General 1.4a-1.4a(5)(c)" for legislative history)  1347
     2.  Executive  Orders  	  1351
        2.1   E.O. 11643,  Environmental Safeguards  on  Activities
              for  Animal  Damage Control on  Federal  Lands;  Feb-
              ruary 9, 1972, 37 Fed. Reg. 2875 (1972)	  1353
     3.  Regulations 	  1355
        3.1   Regulations for the Enforcement of the Federal Insec-
              ticide,  Fungicide, and  Rodenticide Act, U.S.  Environ-
              mental  Protection  Agency, 40  C.F.R.  §162.1-162.36
              (1970)	  1357
        3.2   Interpretations,  Regulations for the  Enforcement of
              FIFRA,  U.S. Environmental  Protection  Agency,  40

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xxxii                                                        CONTENTS

                                                                   Page
              C.P.R. §§162.100-162.125 (1970). ....	   1357
         3.3   Certification of Usefulness of Pesticide Chemicals, U.S.
              Environmental Protection  Agency, 40  C.F.R.  §163.1-
              163.12 (1959). 	   1357
         3.4   Rules Governing the Appointment, Compensation, and
              Proceedings of an Advisory Committee; and Rules  of
              Practice Governing  Hearings Under the  Federal In-
              secticide, Fungicide, and Rodenticide Act, U.S. Environ-
              mental  Protection  Agency, 40  C.F.R. §164.1-164.44
              (1972)	   1357
         3.5   FAA Certification of Private  Agricultural Operations,
              Federal  Aviation Administration, 14  C.F.R.  §137.1-
              137.77 (1968). 	   1357
         3.6   Tolerances and Exemptions from Tolerances for Pesti-
              cide Chemicals in or  on Raw Agricultural Commodities,
              U.S.  Environmental   Protection  Agency,  40   C.F.R.
              §180.1-180.1023  (1972). 	   1357
     4.  Guidelines and Reports			   1359
         4.1   Interdepartmental Agreements.  	   1361
              4.1a   Interdepartmental Agreement for Protection  of
                     Public  Health and Quality of  Environment be-
                     tween Departments of Agriculture, Interior, and
                     Health, Education and  Welfare concerning eco-
                     nomic poisons, March 3, 1970, 35 Fed. Reg. 4014
                     (1970). 	   1361
              4.1b   Agreement Between Department of Health, Edu-
                     cation,  and Welfare  and  Environmental  Protec-
                     tion Agency,  December 22, 1971, 36 Fed  Reg.
                     24234.  ....	   1364
              4.1c   Interagency   Agreement  Between  the  Departs
                     ment of Health, Education and Welfare and the
                     Environmental Protection Agency for Joint Par-
                     ticipation  in the National  Center  for  Toxico-
                     logical  Research, April  1, 1971. 	   1367
              4.1d   Memorandum of Agreement Between the United
                     States Environmental Protection Agency and the
                     United States Department of Agriculture, June
                     14, 1972. 	   1370
              4.1e   Interagency  Agreement  Between  the  Depart-
                     ment of Agriculture and the Environmental Pro-
                     tection Agency, Jan. 23, 1973		   1372
              4.2    Selected Reports	   1376
              4.2a   The President's Science Advisory Committee Re-
                     port on Pesticides, May 14, 1963.	   1376
              4.2b   Deficiencies in Administration of Federal Insec-
                     ticide,  Fungicide, and  Rodenticide  Act,  House
                     Committee on  Government  Operations,   H.R.
                     REP. No. 91-637, 91st Cong., 1st Sess. (1969).-.   1402
              4.2c   Report on 2,  4, 5-T, A Report of the Panel  on
                     Herbicides of  the President's Science Advisory
                     Committee, March 1971	   1495

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   Statutes
       and
Legislative
   History

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STATUTES AND LEGISLATIVE HISTORY                           3

   1.1  THE FEDERAL  INSECTICIDE, FUNGICIDE, AND
            RODENTICIDE  ACTS,  AS  AMENDED
                    7 U.S.C. §§135-135k (1970)
§ 135.  Definitions
  For the purposes of sections 135 to 135k of this title—
  (a) The term "economic poison" means (1)  any substance or
mixture of substances intended for preventing,  destroying, repel-
ling, or mitigating any insects, rodents, nematodes, fungi, weeds,
and other forms of plant or animal life or viruses, except viruses on
or in living man or other  animals, which the Administrator shall
declare  to be a pest, and  (2)  any substance or mixture of sub-
stances intended for use as a plant regulator, defoliant or desiccant.
  (b) The term "device" means any instrument or contrivance
intended for trapping, destroying, repelling, or mitigating insects
or rodents or destroying, repelling,  or mitigating  fungi, nema-
todes, or such other pests as may be designated by the Administra-
tor,  but not including  equipment  used for the application of
economic poisons when sold separately therefrom.
  (c) The term "insecticide" means  any substance or mixture of
substances intended for preventing, destroying,  repelling or miti-
gating any insects which may be present in any environment what-
soever.
  (d) The term "fungicide" means any substance or  mixture of
substances intended for preventing, destroying, repelling, or miti-
gating any fungi.
  (e) The term "rodenticide"  means any substance or mixture of
substances intended for preventing, destroying, repelling, or miti-
gating rodents or any other vertebrate animal which the Admini-
strator shall declare to be a pest.
  (f) The term "herbicide" means any substance or  mixture of
substances intended for preventing, destroying, repelling, or miti-
gating any weed.
  (g) The term "nematocide"  means any substance or mixture of
substances intended for preventing, destroying, repelling, or miti-
gating nematodes.
  (h) The term "plant  regulator" means any substance or mix-
ture of substances,  intended  through physiological action, for
accelerating or retarding the rate of growth or rate of maturation,
or for otherwise altering the behavior of ornamental or crop plants
or the produce thereof, but shall not  include substances to the
extent that they are intended  as plant nutrients,  trace elements,
nutritional chemicals, plant inoculants, and soil  amendments.

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4                             LEGAL COMPILATION—PESTICIDES

  (i)  The term "defoliant" means any substance or mixture of
substances intended for causing the leaves or foliage to drop from
a plant, with or without causing abscission.
  (j)  The term "desiccant" means any substance or mixture of
substances intended for artificially accelerating the drying of plant
tissue.
  (k)  The term "nematode" means invertebrate animals of the
phylum nemathelminthes and class nematoda, that is, unsegmented
round worms with elongated, fusiform, or saclike bodies covered
with cuticle, and inhabiting soil, water, plants or plant parts; may
also be called nemas or ellworms.
  (1)  The term "weed" means any plant which grows where not
wanted.
  (m) The term "insect" means any of the numerous small inver-
tebrate animals generally having the body more or less  obviously
segmented, for the most part belonging to the class insecta, com-
prising six-legged, usually winged forms, as, for example, beetles,
bugs, bees, flies, and to other allied classes of arthropods  whose
members are wingless and usually have more than six legs, as, for
example, spiders, mites, ticks, centipedes, and wood lice.
  (n) The term "fungi" means all non-chlorophyll-bearing thal-
lophytes (that is, all non-chlorophyll-bearing plants of a lower
order than mosses and liverworts)  as, for example, rusts, smuts,
mildews, molds, yeasts, and bacteria, except those on or in living
man or other animals.
  (o) The term "ingredient statement" means either—
       (1)  a statement of the name and percentage of each active
    ingredient, together with the  total percentage of  the inert
    ingredients, in the economic poison; or
       (2)  a statement  of  the name  of  each active ingredient,
    together with the name of  each and total percentage  of the
    inert ingredients, if any there be, in the economic  poison
      (except option 1 shall apply if the preparation is highly toxic
    to man, determined as provided in section 135d of this title);
and,  in addition to (1) or (2) in case the economic poison contains
arsenic in any form, a statement of the percentages of total and
water soluble arsenic,  each  calculated  as elemental arsenic.
   (p) The term "active ingredient" means—
       (1) in the case of an economic poison other than a plant
     regulator, defoliant or desiccant, an ingredient which will
     prevent, destroy, repel, or mitigate insects, nematodes, fungi,
     rodents, weeds, or other pests;

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STATUTES AND LEGISLATIVE HISTORY                           5

       (2)  in the case of a plant regulator, an ingredient which,
    through physiological action, will accelerate or retard the rate
    of growth or rate of maturation or otherwise alter the behav-
    ior of ornamental or crop plants or the produce thereof;
       (3)  in  the case  of a  defoliant, an  ingredient which will
    cause the leaves or foliage to drop from a plant;
       (4)  in the  case  of a  desiccant, an  ingredient which will
    artificially accelerate the  drying of plant tissue.
   (q) The term "inert  ingredient" means an ingredient which is
not active.
   (r) The term "antidote" means a practical immediate treatment
in case of poisoning and  includes first-aid treatment.
   (s) The term "person" means any individual, partnership, asso-
ciation,  corporation, or any organized group of persons whether
incorporated or not.
   (t) The term "Territory" means any Territory or possession of
the United States, excluding the Canal Zone.
   (u) The term "Administrator" means the Administrator of the
Environmental Protection Agency.
   (v) The term  "registrant" means the person registering any
economic poison pursuant to the provisions of sections 135-135k of
this title.
   (w)  The  term "label" means the written, printed, or graphic
matter on, or attached  to, the economic  poison or device or  the
immediate container thereof,  and the outside container or wrapper
of the retail package, if any  there be, of the economic poison or
device.
   (x) The term  "labeling"  means all labels and other written,
printed, or graphic matter—
      (1)  upon the  economic  poison or  device or  any  of its
    containers or wrappers;
      (2)  accompanying the economic poison or device at any
    time;
      (3)  to which reference is made on the label or in literature
    accompanying the economic poison or device, except to current
    official publications of the Environmental Protection Agency,
    the  United  States  Department  of the Interior,  the  United
    States Public Health Service, State experiment stations,  State
    agricultural  colleges, and  other similar  Federal or  State
    institutions or agencies authorized by law to conduct research
    in the field of economic poisons.
   (y) The term "adulterated" shall apply to any economic poison

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6                              LEGAL COMPILATION—PESTICIDES

if its strength or purity falls below the professed standard or qual-
ity as expressed on its labeling or under which it is sold, or if any
substance has been substituted wholly or in part for the article,
or if any valuable constituent of the article has been wholly or in
part abstracted.
   (z) The term "misbranded" shall apply—
       (1)  to any economic poison or device if its labeling bears
    any statement,  design,  or graphic  representation relative
    thereto or to its ingredients which is false or misleading in
    any particular;
       (2)  to any economic poison—
           (a) if it is an imitation of or is offered for sale under
         the name of another economic poison;
           (b) if its labeling bears any reference to registration
         under sections 135 to 135k of this title other than the
         registration number assigned to the economic poison;
           (c)  if the labeling accompanying it does  not contain
         directions for use which are  necessary and  if complied
         with adequate for the protection of the public;
           (d) if the label does not contain a warning or caution
         statement which may be necessary and if complied with
         adequate to prevent injury to living man and  other verte-
         brate animals, vegetation, and useful invertebrate animals;
           (e)  if the label does not bear an ingredient statement
         on that part of the immediate container and on the outside
         container or wrapper, if there be one, through which the
         ingredient statement on the immediate container cannot
         be clearly read, of the retail package which is presented
         or displayed under customary conditions of purchase:
         Provided, That the Administrator may permit the ingre-
         dient  statement  to appear  prominently on  some. other
         part of the container, if the size or form of the container
         makes it impracticable to place it on the part of the retail
         package which is presented or displayed under customary
         conditions of purchase;
           (f) if any word, statement, or other information re-
         quired by or under authority of sections 135-135k of this
         title to appear on the label or labeling is not prominently
         placed thereon with such conspicuousness (as  compared
         with other words, statements, designs, or graphic matter
         in the labeling) and in such terms as to render it likely to
         be read and understood by the ordinary individual under
         customary conditions of purchase and use; or

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STATUTES AND LEGISLATIVE HISTORY                           7

           (g) if in the case of an insecticide, nematocide, fungi-
         cide, or herbicide when used as directed or in accordance
         with commonly recognized practice it shall be injurious
         to living man or other vertebrate animals, or vegetation,
         except weeds, to which it is  applied, or to  the person
         applying such economic poison; or
           (h) if in the case of a plant regulator, defoliant, or
         desiccant when used as directed it shall be  injurious to
         living man or other vertebrate animals, or vegetation to
         which it is applied, or to the  person  applying such eco-
         nomic poison: Provided, That physical or physiological
         effects on plants or parts thereof shall not be deemed to
         be injury, when this is the purpose for which the plant
         regulator,  defoliant, or desiccant was applied, in accord-
         ance with  the label claims and recommendations; or
           (i)  if its packaging or labeling is in violation of  an
         applicable regulation issued pursuant to section 1472 or
         1473 of Title 15.
(June 25, 1947, c. 125, § 2, 61 Stat. 163; Aug. 7, 1959,  Pub:L. 86-
139, § 2, 73 Stat. 286; May 12, 1964, Pub.L. 88-305, § 1,  78 Stat.
190; 1970 Reorg.Plan No. 3. §  2(a) (8) (i), eff. Dec.  2, 1970, 35
F.R. 15623, 84 Stat.— ; Dec. 30, 1970,  Pub.L.  91-601, § 7(b),  84
Stat. 1673.)
§ 135a.  Prohibited acts
  (a) It shall be unlawful for any person to distribute, sell,  or
offer for sale in any Territory or in the District of Columbia, or to
ship or deliver for shipment from any State, Territory, or  the Dis-
trict of Columbia, to any other State, Territory, or the District of
Columbia, or to any foreign  country, or to receive in any  State,
Territory, or the District of Columbia from any other State, Terri-
tory or the District  of Columbia, or foreign country, and having
so received, deliver  or offer  to  deliver in the original unbroken
package to any other person, any of the following:
  (1) Any economic poison which is not registered pursuant to
the provisions of  section 135b of this title, or any economic poison
if any of the claims made for it or any of the directions for its use
differ in substance  from the representations made in connection
with its registration, or if the composition of an economic poison
differs from its composition as represented in connection  with its
registration: Provided, That in the discretion of the Administra-
tor, a change in the labeling or formula of an economic  poison may
be made within a registration period without requiring reregistra-
tion of the product.

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8                              LEGAL COMPILATION—PESTICIDES

   (2)  Any economic poison unless it is in the registrant's or the
manufacturer's unbroken immediate container, and there is affixed
to such container, and to the outside container or wrapper of the
retail package, if there be one through which the required infor-
mation on the  immediate container  cannot be clearly  read,  a
label bearing—
       (a)  the name and address of the manufacturer, registrant,
    or person for whom manufactured;
       (b)  the name, brand, or trade-mark under which said arti-
    cle is sold;
       (c)  the net weight or measure of the content: Provided,
    That the Administrator may  permit  reasonable  variations;
    and
       (d)  when required by regulation of the  Administrator to
    effectuate the purposes of sections 135 to 135k of this title, the
    registration number assigned to the article under such sections.
   (3)  Any economic poison which  contains any  substance or sub-
stances in quantities highly toxic to man, determined as provided
in section 135d of this title, unless the label shall bear, in addition
to any other matter required by sections 135-135k of this title—
     (a)  the skull and crossbones;
     (b)  the word "poison"  prominently (IN RED)  on a back-
   ground of distinctly contrasting color; and
     (c)  a statement of an antidote for the economic poison.
   (4)  The economic poisons commonly known as standard lead ar-
senate, basic lead arsenate, calcium arsenate, magnesium arsenate,
zinc arsenate, zinc arsenite,  sodium  fluoride, sodium  fluosilicate,
and barium fluosilicate unless they have been distinctly colored or
discolored  as provided by regulations issued in accordance with
sections  135 to 135k of this title, or any other white powder eco-
nomic poison which  the Administrator, after investigation of and
after public hearing on the necessity for such action for the pro-
tection of the public health and the feasibility of such coloration
or discoloration, shall, by regulation,  require to be distinctly col-
ored  or  discolored,  unless it has  been so colored  or discolored:
Provided, That the Administrator may exempt any economic poison
to the extent that it is intended for a particular use or uses from
the coloring or discoloring required or authorized  by  this section
if he determines that such coloring or discoloring for such use or
uses is not necessary for the protection of the public health.
   (5) Any economic poison which is adulterated  or  misbranded
or any device which is misbranded.
   (b) Notwithstanding any other  provision of  sections 135-135k

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 STATUTES AND LEGISLATIVE HISTORY                           9

 of this title, no article shall be deemed in violation of said sections
 when intended solely for export to any foreign country and  pre-
 pared or packed according to the specifications or directions of
 the foreign purchaser.
   (c) It shall be unlawful—
       (1)  for any person to detach, alter, deface, or destroy, in
     whole or in part, any label or labeling provided for in sections
     135-135k of this title or the rules and regulations promulgated
     hereunder, or to add any substance to, or take any substance
     from, an economic poison in a manner that may defeat the
     purpose of said sections;
       (2)  for any manufacturer, distributor, dealer, carrier, or
     other person to refuse, upon a request in writing specifying
     the  nature or kind of economic poison or device to which such
     request relates, to furnish to or permit any person designated
     by the Administrator to have access to and to copy such  rec-
     ords as authorized by section 135c of this title;
       (3)  for any person to give a guaranty or undertaking pro-
     vided for in section 135e of this title which is false in any par-
     ticular, except that a person who receives and  relies upon a
     guaranty authorized under section  135e of this title may give
     a guaranty to the same effect, which guaranty shall contain
     in addition to his own name and address the name and address
     of the  person residing in the United  States  from whom he
     received the guaranty or undertaking; and
       (4) for any person  to use for  his own advantage  or to
     reveal, other than to the Administrator, or  officials or  em-
     ployees of the Environmental Protection Agency, or  other
     Federal agencies, or to the courts  in response to a subpena,
     or to physicians, and in emergencies to pharmacists and other
     qualified persons,  for use in the preparation of antidotes, in
     accordance with such directions as the  Administrator may
     prescribe, any information relative to formulas of products
     acquired by authority of section 135b of this title.
 (June 25, 1947, c. 125, §  3, 61 Stat. 166;  May 12,  1964, Pub.L.
88-305, §§ 2, 6, 78 Stat. 190, 193; 1970 Reorg.Plan No. 3, § 2 (a)
 (8) (i), eff.  Dec. 2, 1970, 35 F.R. 15623, 84 Stat. —.
§ 135b.   Registration of economic poisons—General requirements;
    single economic poisons;  supplement statements; filing and
    contents of statements
  (a)  Every economic poison which is distributed, sold, or offered
for sale in any Territory or the District of Columbia, or which is
shipped or delivered for shipment from any State, Territory, or the

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10                             LEGAL COMPILATION—PESTICIDES

District of Columbia to any other State, Territory, or the District
of Columbia, or which is received from  any foreign country shall
be registered with the Administrator:  Provided, That  products
which have  the  same formula,  are manufactured by  the same
person, the labeling of which contains the same claims, and the
labels of which bear a designation identifying the product as the
same economic  poison  may be registered as a  single economic
poison; and additional names and labels shall be added by supple-
ment statements; the applicant for registration shall file with the
Administrator a statement including—
       (1) the name and address of the applicant for registration
     and  the name and  address  of the person whose name will
     appear on the label, if other than the applicant for regis-
     tration ;
       (2) the name of the economic poison;
       (3) a  complete  copy of  the labeling  accompanying  the
     economic poison and a statement of all claims to be made for
     it, including the directions for use; and
       (4) if requested by the Administrator, a full description of
     the tests made and the results thereof upon which the claims
     are based.
        Submission of formula; registration by Administrator upon
                   compliance with requirements
   (b)  The Administrator, whenever he deems it necessary for the
effective administration of sections 135 to 135k of this title, may
require the submission of the complete formula of the economic
poison. If it appears to the Administrator that the composition of
the article is such as to warrant the proposed claims for it and if
the  article and its labeling and other material required to  be
submitted comply with the requirements  of section 135a of this
title, he shall register it.
Notification of noncompliance with requirements;  corrections; refusal, suspen-
    sion or cancellation of registration by Administrator; effective date of can-
    cellation; advisory committees and procedures; objections; public hearings;
    Administrator's orders; consultation with other agencies;  confidential
    information; public  hazard suspension;  orders reviewable; defense of
    registration
   (c)  If it does not appear to the Administrator that the article
is such as to warrant the  proposed claims for  it or if the article
and its labeling and other material required to be submitted do not
comply with the provisions of sections 135 to 135k of this title, he
shall notify the applicant for registration  of the manner in which
the article, labeling, or other material required to be submitted fail
to comply with said sections  so as to afford  the applicant for

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STATUTES AND LEGISLATIVE HISTORY                          11

registration an opportunity to make the corrections necessary. If,
upon receipt of such notice, the applicant for registration does not
make the corrections, the Administrator shall refuse to register
the article. The Administrator, in accordance with the procedures
specified  herein,  may suspend  or  cancel  the  registration of
an  economic  poison  whenever  it  does  not  appear  that the
article  or  its   labeling  or  other  material   required  to  be
submitted complies with the provisions of sections 135  to 135k of
this title. Whenever the Administrator refuses registration of an
economic poison  or  determines that  registration of an economic
poison should be  canceled, he shall notify the applicant for regis-
tration  or the registrant  of  his action and the reasons therefor.
Whenever an application for registration is refused, the applicant,
within thirty days after service of notice  of  such refusal, may
file a  petition requesting that  the matter be  referred  to an
advisory committee or file objections and request a public hearing
in accordance with  this  section.  A cancellation of registration
shall be effective thirty days after service of the foregoing notice
unless within such time the registrant  (1)  makes the necessary
corrections;  (2)  files  a petition requesting that  the  matter be
referred to an advisory  committee; or (3) files  objections and
requests a  public  hearing.  Each  advisory committee shall be
composed of experts, qualified in  the subject matter and of ade-
quately diversified professional background selected by the National
Academy of Sciences and shall include one or more representatives
from land-grant colleges.  The size of the committee shall be deter-
mined by the Administrator.  Members of an advisory  committee
shall  receive as compensation for their services  a reasonable per
diem, which the Administrator shall by rules and regulations pre-
scribe, for time actually spent in the work of the committee, and
shall in addition  be reimbursed for their necessary traveling and
subsistence expenses while so serving away  from their places of
residence, all of which costs may be assessed against the petitioner,
unless the committee shall recommend in favor of the petitioner or
unless the matter was referred to the advisory committee by the
Administrator. The members shall not be  subject to any other
provisions of law regarding the appointment and compensation of
employees of the  United States. The Administrator shall furnish
the committee with adequate clerical and other assistance,  and
shall by rules and regulations prescribe the procedures to be fol-
lowed by the committee. The Administrator shall forthwith submit
to such committee the application  for registration of the article
and all relevant data before him. The petitioner,  as well as repre-

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12                             LEGAL COMPILATION—PESTICIDES

sentatives of the Environmental Protection Agency, shall have the
right to consult, with the advisory committee. As soon as prac-
ticable after any such submission, but not later  than sixty days
thereafter, unless extended by  the  Administrator for  an addi-
tional sixty days, the committee shall, after independent study of
the data submitted by the Administrator and all other pertinent
information available to it, submit a report and recommendation
to the Administrator as to the registration of the  article, together
with all underlying data and  a statement of the reasons or basis
for the recommendations. After due consideration of the views of
the committee and all other data before him, the Administrator
shall, within ninety days after receipt of the report and recom-
mendations of  the advisory  committee,  make his determination
and issue an order, with findings of fact,  with respect to registra-
tion of  the article and notify the  applicant  for  registration or
registrant. The applicant for registration,  or registrant, may,
within sixty days  from  the date of the order of  the Administra-
tor, file objections thereto and request a public hearing thereon.
In the event a hearing is requested, the Administrator shall, after
due notice, hold such public hearing for  the purpose of receiving
evidence relevant and material to the issues raised by such objec-
tions. Any report,  recommendations, underlying data, and reasons
certified to the  Administrator by an advisory committee shall be
made a part of  the record of the hearing, if relevant and material,
subject to the provisions of section 1006 (c) of Title 5. The National
Academy  of Sciences shall designate a  member  of the advisory
committee to appear and testify at any such hearing with respect
to the report and recommendations of such committee upon request
of the Administrator, the petitioner, or the officer conducting the
hearing: Provided, That this shall not preclude any other member
of the advisory committee from  appearing and testifying at such
hearing. As soon as  practicable  after completion  of the hearing,
but not later than ninety days, the Administrator shall evaluate
the data and reports before him, act upon  such objections  and
issue an order granting, denying, or canceling the registration or
requiring modification of the claims  or  the labeling. Such order
shall be based only on substantial evidence of record at such hear-
ing, including any report, recommendations, underlying data, and
reason certified to the Administrator by an advisory committee,
and shall  set forth detailed findings of fact upon  which the order
is based. In connection  with  consideration of any registration or
application for registration under this section, the Administrator
may consult with  any other  Federal  agency or with an advisory

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STATUTES AND LEGISLATIVE HISTORY                           13

committee appointed as herein provided. Notwithstanding the pro-
visions of section 135a(c)  (4) of this title, information relative to
formulas of products acquired by authority of this section may be
revealed, when necessary under this section, to an advisory com-
mittee, or to any Federal agency consulted, or at a public hearing,
or in findings of fact issued by the Administrator. All data sub-
mitted to an advisory committee in support of a petition under this
section shall be  considered  confidential by  such advisory com-
mittee: Provided, That this provision shall  not  be construed  as
prohibiting the use  of such data by the committee in connection
with its consultation with  the petitioner or representatives of the
Environmental Protection  Agency, as provided for herein, and in
connection with its  report and recommendations to the Adminis-
trator. Notwithstanding any  other  provision of this  section,  the
Administrator may, when  he finds that such action is necessary to
prevent an imminent hazard to the public, by order, suspend  the
registration of an economic poison immediately. In such case,  he
shall give the registrant prompt notice of such action and afford
the registrant the opportunity to have the matter submitted to  an
advisory  committee  and  for  an expedited  hearing under this
section. Final orders of the Administrator under this section shall
be subject to judicial review, in accordance with the provisions of
subsection (d) of this section. In no event shall registration of  an
article be construed as a defense for the commission of any offense
prohibited under section 135a of this title.
Judicial review; court of appeals; persons entitled to appeal, petition, record,
    jurisdiction, conclusiveness of findings, additional evidence, modification
    of findings and orders; Supreme Court; stay of administrative orders;
    calendar
   (d)  In case of actual controversy as to the validity of any order
under this section,  any person who will be adversely affected  by
such order may obtain judicial review by filing in the United States
court of appeals for  the circuit wherein such person resides or has
his principal place  of business, or  in the United States  Court of
Appeals for the District of  Columbia  Circuit,  within sixty days
after the entry of such order, a petition praying that the order be
set aside in whole or in part. A copy of the petition shall be forth-
with transmitted by the clerk of the court to the Administrator, or
any officer designated by him for that purpose,  and thereupon the
Administrator shall file in  the court the record of the  proceedings
on which he based his order, as provided in section 2112 of Title 28.
Upon the filing of  such petition the court shall have exclusive
jurisdiction to affirm or set aside the order complained of in whole
or in part. The findings of the Administrator with respect to ques-

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14                             LEGAL COMPILATION—PESTICIDES

tions of fact shall be sustained if supported by substantial evidence
when considered on the record as a whole, including any report and
recommendation of an advisory committee. If application is made
to the court for leave to adduce additional evidence, the court may
order such additional evidence to be taken before the  Administra-
tor, and to be adduced upon the hearing in such manner and upon
such terms and conditions as to the court may seem proper, if such
evidence is material and there were reasonable grounds for failure
to adduce such evidence in the proceedings below.  The Administra-
tor may modify his findings as to the facts and order by reason of
the additional evidence so taken, and shall file with the court such
modified findings and order. The judgment of the court affirming
or setting aside, in whole or in part, any  order under this section
shall be final, subject to review by the Supreme Court of the United
States upon certiorari or certification as provided in  section  1254
of Title 18. The commencement of proceedings under  this section
shall not, unless specifically ordered by the court to the contrary,
operate as a stay of an order. The court shall advance on the docket
and expedite the disposition of all causes filed therein pursuant to
this section.
              Shipments between single-ownership plants
  (e)  Notwithstanding  any other provision of sections 135 to
135k of this title, registration is not required  in the case of an eco-
nomic poison shipped from, one plant to another plant operated by
the same person and used solely at such plant as a constituent part
to make an economic poison which is registered under said  sections.

           Time of cancellation and continuance of  registration
   (f)  The Administrator is authorized to cancel the  registration
of any economic poison at the end of a period of five years follow-
ing the registration of such economic poison or at the end of any
five-year period  thereafter, unless the registrant, prior to the
expiration of each such five-year period, requests in accordance
with regulations issued by the Administrator that such registra-
tion be continued in effect. (June 25,1947, c.  125,  § 4, 61 Stat. 167;
May  12,  1964, Pub.L.  88-305, §§  3, 4, 78  Stat. 190, 192;  1970
Reorg. Plan No. 3, § 2(a) (8) (i), eff.  Dec. 2, 1970, 35 F.R. 15623,
84 Stat.—.)
§ 135c.   Books and records; access and inspection; use in criminal
    prosecution
  For the purposes of enforcing the provisions of sections 135 to
135k of  this title, any manufacturer,  distributor, carrier, dealer,
or any other person who sells or offers for sale, delivers  or offers
for delivery, or  who receives or holds any economic poison or

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STATUTES AND LEGISLATIVE HISTORY                          15

device subject to said sections, shall, upon request of any employee
of the Environmental Protection Agency or any employee of any
State, Territory, or political subdivision, duly designated by the
Administrator, furnish or permit such person at all  reasonable
times to have access to, and to copy all records showing the deliv-
ery, movement, or holding of such economic poison or device, in-
cluding the quantity, the date of shipment and receipt, and the
name of the consignor and  consignee; and in the event of the
inability of any person to produce records  containing such infor-
mation, all other records and information relating to such delivery,
movement, or  holding of the economic poison or device. Notwith-
standing this  provision, however, the specific evidence obtained
under this section, or any evidence which is directly or indirectly
derived from such evidence, shall not be used in a criminal prose-
cution of the person from whom obtained.  (June 25, 1947, c. 125,
§4,61stat. 167;
  Amend. Oct. 15,1970, Pub.L. 91-452, Title II, § 204, 84 Stat. 928;
1970 Reorg. Plan No. 3, § 2(a) (8) (i), Dec. 2, 1970, 35 F.R. 15623,
84 Stat. —.)
§ 135d.  Rules and regulations; examination of  economic poisons
    or devices; notification  to violators;  certification to United
    States attorney; duty of attorney; publication of judgments
   (a) The Administrator  (except as otherwise  provided in this
section)  is authorized to make rules  and regulations for carrying
out the provisions of sections 135 to 135k  of this title, including
the collection and examination of samples of economic poisons and
devices  subject to said sections and  the determination  and estab-
lishment of suitable names to be used in the ingredient statement.
The Administrator is, in addition, authorized after opportunity
for hearing—
       (1)  to  declare a pest any  form of plant or animal life or
    virus which is injurious to  plants, man, domestic animals,
    articles, or substances;
       (2)  to  determine economic poisons,  and quantities of sub-
    stances contained in economic poisons, which are highly toxic
    to man; and
       (3)  to  determine standards of coloring or discoloring for
    economic  poisons, and to subject economic poisons to the re-
    quirements of section 135a (a)  (4) of this title.
   (b) The Secretary of the Treasury and the Administrator shall
jointly prescribe regulations for the enforcement of section 135h
of this title.
   (c) The examination of economic poisons or devices  shall be

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16                             LEGAL COMPILATION—PESTICIDES

made in the Environmental Protection Agency or elsewhere as the
Administrator may designate for the purpose of determining from
such examination whether they  comply with the requirements of
sections 135 to  135k of this  title, and if it shall  appear from any
such examination that they  fail to comply with  the requirements
of said sections, the  Administrator shall cause notice to be given
to the person  against whom criminal proceedings are contem-
plated. Any person so notified shall be given an  opportunity to
present his views, either orally or in writing, with regard to such
contemplated proceedings, and if in the opinion of the Adminis-
trator it appears that the provisions of said sections have been
violated by such person, then the Administrator shall certify  the
facts to the proper  United  States  attorney, with a  copy of  the
results of the analysis or the  examination of such  article: Provided,
That nothing in said sections shall be construed as requiring the
Administrator  to report for prosecution or  for  the institution of
libel proceedings minor violations  of said  sections whenever  he
believes that the public  interest will be adequately served by a
suitable written notice of warning.
   (d) It shall be the duty of each United States attorney, to whom
the Administrator or his agents shall report any violation of sec-
tions 135 to 135k of this title, to cause appropriate proceedings to
be commenced  and prosecuted in the proper courts of the United
States without delay.
   (e) The Administrator shall, by publication in such manner as
he may prescribe, give notice of all judgments entered  in actions
instituted under the authority of sections 135 to  135k of this title.
(June 25, 1947, ch. 125, § 6, 61 Stat. 168; 1970 Reorg. Plan No. 3,
§ 2(a) (8) (i), eff. Dec. 2,1970, 35 F.R. 15623,  84 Stat. —.)
§ 135e.  Exemption from penalties
   (a) The penalties provided for a violation of section 135a  (a)
of this title shall not apply to—
       (1)  any person who  establishes a guaranty signed by, and
     containing the name and address of, the registrant or person
     residing in the  United  States from whom he purchased and
     received in good faith the article in the same unbroken pack-
     age, to the effect that the article was  lawfully registered at
     the time of sale and delivery to him, and that it complies with
     the other  requirements of sections 135 to 135k of this title,
     designating said sections. In such case  the guarantor shall be
     subject to  the penalties which would otherwise attach to the
     person holding the guaranty  under the provisions of said
     sections;

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STATUTES AND LEGISLATIVE HISTORY                          17

       (2)  any carrier while lawfully engaged in transporting an
    economic poison or device if such carrier upon request by a
    person duly designated by the Administrator shall permit such
    person to copy air records showing the  transactions in  and
    movement of the articles;
       (3)  to public officials while engaged in the performance of
    their official duties;
       (4)  to the manufacturer or shipper of an economic poison
    for experimental use only by or under the supervision of any
    Federal or State agency authorized by law to conduct research
    in the field of economic poisons; or by others if a permit has
    been obtained before shipment in accordance with regulations
    promulgated by the Administrator.
(June 25, 1947, ch. 125, § 7, 61 Stat. 169; 1970 Reorg. Plan No. 3,
§ 2(a) (8) (i), eff. Dec. 2, 1970,  35 F.R. 15623, 84 Stat. —.)
§ 135f.  Penalties
   (a)  Any person violating section 135a (a)  (1) of this title shall
be guilty of a misdemeanor and shall on conviction be fined not
more than $1,000.
   (b)  Any person violating any provision other than section 135a
(a) (1) of this title shall be guilty of a misdemeanor and shall upon
conviction be fined not more than $500 for the first offense, and on
conviction  for each  subsequent  offense be fined not more than
$1,000 or imprisoned for not more than one year, or both such fine
and imprisonment: Provided, That an offense committed more than
five years after the last previous  conviction shall be considered a
first offense. An article the registration of which has been termi-
nated may  not again be registered unless the article, its labeling,
and other material required to be submitted appear to the Admin-
istrator to comply with all the requirements of sections 135 to 135k
of this title.
   (c)   Notwithstanding any other provision of this section, in case
any person, with intent to  defraud,  uses or  reveals information
relative to  formulas of products acquired under the authority of
section 135b  of this title, he shall be fined  not more than $10,000
or imprisoned for not more than three years,  or both such  fine
and imprisonment.
   (d)  When construing and enforcing the provisions of sections
135 to 135k of this title, the act, omission, or failure, of any officer,
agent, or other person  acting for or employed by any person shall
in every  case be also deemed to be the act,  omission, or  failure of
such person as well as that of the person employed.  (June 25,1947,
ch. 125, § 8, 61 Stat. 170; May 12,1964, Pub. L. 88-305, § 5, 78 Stat.

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18                             LEGAL COMPILATION—PESTICIDES

193; 1970 Reorg. Plan No. 3, §2 (a) (8) (i), eff. Dec. 2, 1970, 35 F.R.
15623, 84 Stat. —.)

§ 135g.  Seizures; disposition; costs against claimant
  (a) Any economic poison or  device that is being transported
from one State, Territory, or District  to another,  or, having been
transported, remains unsold or in original unbroken packages, or
that is sold or offered for sale in the District  of Columbia or any
Territory, or that is imported from a foreign country, shall be
liable to be proceeded against in any district  court of the United
States in the district where it is found and seized for confiscation
by a process of libel for condemnation—
     (1)  in the case of an economic poison—
       (a) if it is adulterated or misbranded;
       (b)  if it is not  registered pursuant to the  provisions of
     section 135b of this title;
       (c)  if it fails to bear on  its label the information required
     by sections 135 to 135k of this title; or
       (d)  if  it is  a white  powder economic poison and is not
     colored as required under said sections; or
     (2)  in the case of a device if it is misbranded.
   (b) If the article is condemned it shall,  after entry of the
decree, be disposed of by destruction or sale as  the court may direct
and the proceeds, if  sold, less the legal costs, shall be paid into the
Treasury of the United States, but the article shall  not  be sold
contrary to the provisions of sections 135 to 135k of this title or of
the laws of the jurisdiction in which it is sold: Provided, That upon
the payment of the costs of  the libel proceedings and the execution
and delivery of a good and sufficient bond conditioned that the arti-
cle shall not be sold or  otherwise disposed of  contrary to the pro-
visions of said sections or the  laws of any  State, Territory, or
District in which sold,  the  court may direct that such articles be
delivered to the owner thereof. The proceedings of such libel cases
shall conform, as near as may be, to the  proceedings in admiralty,
except that either party may demand trial by jury of any  issue of
fact joined  in any case, and all such  proceedings shall be at the
suit of and in the name of the United States.
   (c) When a  decree  of  condemnation  is entered  against the
article, court costs  and fees, storage, and other  proper expenses
shall be awarded against the person, if any, intervening as claim-
ant of the article. (June 25,1947, ch. 125, § 9, 61 Stat. 170;  May 12,
1964, Pub. L. 88-305, § 6, 78 Stat. 193.)

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STATUTES AND LEGISLATIVE HISTORY                          19

§ 135h.  Imports; prohibition against delivery; penal bonds; impo-
    sition of costs; liens
  The Secretary of the Treasury shall notify the Administrator of
the arrival of economic poisons and devices offered for importation
and shall deliver to the Administrator, upon his request, samples
of  economic poisons or devices which  are being imported or
offered  for  import into the  United  States, giving notice to  the
owner or consignee, who may appear before the Administrator
and have the right to introduce testimony.  If it appears from the
examination of a sample that it is adulterated, or misbranded or
otherwise violates the prohibitions set forth in sections 135 to 135k
of this title,  or is otherwise dangerous to the health of the people of
the United States, or is of a kind forbidden entry into or forbidden
to be sold or restricted in sale in the country in which it is made
or  from which  it is exported, the  said article may be refused
admission, and the Secretary of the Treasury shall refuse delivery
to the consignee and  shall cause the  destruction of  any goods
refused delivery which shall not be exported by the consignee
within three months from the date of notice of such refusal under
such regulations as the Secretary of  the Treasury may prescribe:
Provided, That the Secretary of the  Treasury may deliver to the
consignee such  goods  pending examination and  decision in  the
matter  on execution of a penal bond for the amount  of the full
invoice value of such goods, together with the duty thereon, and on
refusal  to return such goods for any cause to the custody  of the
Secretary of the Treasury, when demanded, for the purpose of
excluding them  from the country, or for any other purpose,  said
consignee shall forfeit the full amount of the bond: And provided
further, That all charges for storage, cartage, and labor on goods
which are refused admission or delivery shall be paid by the owner
or consignee, and in default of such payment shall constitute a lien
against any future importation made by such owner or consignee.
(June 25, 1947, ch. 125, § 10, 61 Stat. 171; 1970 Reorg. Plan No. 3,
§ 2(a) (8) (i), eff. Dec. 2,1970,35 F.R. 15623, 84 Stat. —.)

§ 135i.   Delegation of duties
  All authority vested in the Administrator by virtue of the  pro-
visions  of sections 135 to 135k of this title may with like force
and effect be executed by such employees of the  Environmental
Protection Service as  the Administrator may  designate for  the
purpose. (June 25, 1947, ch.  125, § 11, 61 Stat. 171; 1970 Reorg.
Plan No. 3, § 2(a)(8)(i), eff. Dec. 2,  1970,  35 F.R. 15623, 84
Stat. —.)

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20                             LEGAL COMPILATION—PESTICIDES

§ 135j.  Appropriations; expenditures
  (a)  There is hereby authorized to be appropriated, out of any
moneys in the Treasury not otherwise appropriated, such sums
as may be necessary for the purposes and administration of sec-
tions 135 to 135k of this title.
  (b)  The Administrator is authorized from the funds appropri-
ated for sections 135 to 135k of this title to make such expenditures
as he  deems necessary,  including rents, travel, supplies, books,
samples, testing  devices, furniture,  equipment, and  such other
expenses as may be necessary  to  the administration of said  sec-
tions. (June 25, 1947, ch. 125, § 12, 61 Stat. 172; 1970 Reorg. Plan
No. 3, § 2 (a)  (8) (i), eff. Dec. 2, 1970, 35  F.R. 15623, 84 Stat. —.)
§ 135k.  Cooperation between departments and agencies
  The Administrator is  authorized  to  cooperate with any other
department or agency of the Federal  Government  and with the
official agricultural or other regulatory agency of any State, or any
State,  Territory,  District, possession, or any political subdivision
thereof, in carrying out the provisions  of sections 135 to 135k of
this title, and in securing  uniformity  of  regulations. (June 25,
1947, ch. 125, § 13, 61 Stat. 172;  1970  Reorg. Plan  No. 3, § 2 (a)
(8) (i), eff. Dec. 2,1970, 35 F.R. 15623, 84 Stat. —.)

                l.la  THE INSECTICIDE ACT
                April 26,1910, P.L. 61-152, 36 Stat. 331
                           AN ACT
  CHAP. 191.—An  Act For preventing the manufacture, sale, or transporta-
tion of adulterated  or misbranded Paris greens, lead arsenates, and other
insecticides,  and also fungicides, and for regulating traffic therein, and for
other purposes.
  Be it enacted by the Senate and  House of Representatives of the
United States of  America in Congress assembled, That it shall be
unlawful for any person to manufacture within any Territory or
the District of Columbia any insecticide, Paris green, lead arsenate,
or fungicide which is adulterated or misbranded within the mean-
ing of this Act; and any person who shall violate any of the  pro-
visions of this section shall be guilty of a misdemeanor, and shall,
upon conviction thereof, be fined not to exceed two hundred dollars
for the first offense, and,  upon conviction  for each subsequent
offense be fined not to exceed three hundred dollars, or sentenced
to imprisonment  for not to exceed one year, or both such fine and
imprisonment, in the discretion of the court.

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STATUTES AND LEGISLATIVE HISTORY                          21

  SEC. 2. That the introduction into any State or Territory or the
District  of Columbia from any other State or Territory or the
District of Columbia, or from any foreign country, or shipment to
any foreign country, of any insecticide, or Paris green, or lead
arsenate, or fungicide which is adulterated or misbranded within
the meaning of this Act is hereby prohibited; and any person who
shall ship or deliver for shipment from any State or Territory or
the District of Columbia to any other State or Territory or the
District of Columbia, or to a foreign country, or who shall receive
in any State or Territory  or the District of Columbia from any
other State or Territory or the District of Columbia, or foreign
country,  and having so received, shall deliver, in original unbroken
packages, for pay or otherwise, or offer to deliver, to any other
person, any such article so adulterated or misbranded within the
meaning of this Act, or any person who shall sell or offer for sale
in the District of Columbia or any Territory of the United States
any such adulterated or misbranded insecticide, or Paris green, or
lead arsenate, or fungicide, or export or offer to export the same
to any foreign country, shall be guilty of a misdemeanor, and for
such offense be fined not exceeding two hundred dollars for the first
offense, and upon conviction for each subsequent offense not ex-
ceeding two hundred dollars for the  first offense, and upon con-
viction for each subsequent offense not  exceeding three hundred
dollars, or be  imprisoned not exceeding one year, or both, in the
discretion of the court: Provided, That no article shall be deemed
misbranded or adulterated  within the provisions of this Act when
intended for export to any foreign country and prepared or packed
according to  the specifications or directions of the foreign pur-
chaser ; but if said articles shall be in fact sold or offered for sale
for domestic  use or consumption, then this  proviso shall  not
exempt said article  from the operation of any of the other pro-
visions of this Act.
  SEC. 3. That the Secretary of the  Treasury, the  Secretary of
Agriculture, and the Secretary of Commerce and Labor shall make
uniform  rules and regulations for carrying out the provisions of
this Act, including the collection and examination of specimens of
insecticides, Paris greens, lead arsenates, and fungicides manufac-
tured or offered  for sale in the District of Columbia or in any
                                                       [p. 331]
Territory of the United States, or which shall be offered  for sale
in unbroken packages in any State  other than that  in  which they
shall have been respectively manufactured  or produced, or which
shall be received from any foreign  country or  intended for ship-

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22                             LEGAL COMPILATION—PESTICIDES

ment to any foreign country, or which may be submitted for exam-
ination by the  director of the experiment station of any State,
Territory, or the District of Columbia (acting under the direction
of the Secretary of Agriculture),  or at any domestic or  foreign
port through which such product is offered for interstate com-
merce, or for export or import between the United States and any
foreign port or country.
  SEC. 4. That the examination of specimens of insecticides, Paris
greens, lead arsenates, and fungicides shall be made in the Depart-
ment of Agriculture, by such existing bureau or bureaus as may be
directed  by the Secretary,  for the purpose  of  determining from
such examination  whether such articles  are adulterated or mis-
branded  within the meaning of this Act; and  if it  shall appear
from any such examination that any of such specimens are adul-
terated or misbranded within the meaning of this Act, the Secre-
tary of Agriculture shall cause notice thereof to be  given to the
party from whom such sample was obtained. Any party so notified
shall be given an opportunity to be  heard, under such rules and
regulations as may be prescribed as aforesaid, and if  it appears
that any of the provisions of this Act have been violated by such
party, then the Secretary of Agriculture shall at once certify the
facts to the proper United States district attorney, with a copy of
the results of the analysis or the examination of such article duly
authenticated by the analyst or officer  making  such examination,
under the oath of such officer. After judgment of the court, notice
shall be given by publication in such manner as  may be prescribed
by the rules and regulations aforesaid.
  SEC. 5. That it shall be the duty of each district attorney to
whom the Secretary of Agriculture  shall report any violation of
this Act, or to whom any director  of experiment station or agent
of any State, Territory, or the  District of Columbia,  under au-
thority of the Secretary of Agriculture, shall present satisfactory
evidences of any such violation,  to cause appropriate proceedings
to be commenced and prosecuted in the proper courts of the United
States, without delay, for the enforcement of  the penalties as in
such case herein provided.
  SEC. 6. That the term "insecticide" as used  in this  Act shall
include any substance or mixture of substances intended to be used
for preventing, destroying, repelling,  or mitigating any insects
which may infest vegetation, man or other animals, or households,
or be present in any environment whatsover. The  term  "Paris
green" as used in this Act shall include the product sold  in com-
merce as Paris green and chemically known as the aceto-arsenite

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STATUTES AND LEGISLATIVE HISTORY                          23

of copper. The term "lead arsenate" as used in this Act shall in-
clude the product or products sold in  commerce as lead  arsenate
and  consisting chemically of products sold in commerce as  lead
arsenate  and  consisting chemically  of  products derived from
arsenic acid  (II3As04) by replacing one or more hydrogen  atoms
by lead. That the term "fungicide" as used in this Act shall include
any  substance  or  mixture of substances intended to be  used for
preventing, destroying, repelling, or mitigating any and  all fungi
that may infest vegetation  or be present in  any environment
whatsoever.
  SEC.  7. That for the  purpose of this  Act an  article  shall be
deemed to be adulterated—
  In the case of Paris green: First, if it does not contain at least
fifty per centum of arsenious oxide; second, if it contains arsenic
in water-soluble forms equivalent to more than three and one-half
per centum of  arsenious  oxide; third, if  any substance has been
mixed and packed with it so as to reduce or lower or injuriously
affect its quality or strength.                             [p. 332]
  In the case of lead arsenate: First, if it contains more than fifty
per centum of water; second, if it contains total arsenic equivalent
to less than twelve  and one-half per  centum  of arsenic oxid
(As205) ; third, if it contains arsenic in water-soluble forms  equiv-
alent to more than seventy-five one-hundredths per centum  of ar-
senic oxid (As205) ; fourth, if any substances have been  mixed
and  packed with it so as to reduce, lower, or injuriously affect its
quality or strength: Provided, hoivever, That extra water may be
added to lead arsenate (as described in this paragraph) if the re-
sulting mixtures is labeled lead arsenate and water, the percentage
of extra water being plainly and correctly  stated on the  label.
  In the case of insecticides or  fungicides, other than Paris green
and  lead arsenate: First, if its strength or purity fall below the
professed standard or quality under which it is sold; second,  if any
substance has been substituted wholly or in part for the article;
third, if any valuable constituent of the article has been wholly or
in part for the article third,  if any valuable  constituent of the
article has been wholly or in part abstracted; fourth,  if it is in-
tended for use  on vegetation and  shall contain any substance or
substances which, although preventing, destroying, repelling, or
mitigating insects, shall be injurious to such vegetation when used.
  SEC. 8. That  the term "misbranded" as used herein shall apply
to all insecticides, Paris greens, lead arsenates, or fungicides, or
articles which enter into the composition of insecticides or fungi-
cides, the package or  label of which shall bear any  statement,

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24                             LEGAL COMPILATION—PESTICIDES

design,  or device regarding such  article  or the ingredients  or
substances contained therein which shall be false or misleading in
any particular, and to all insecticides, Paris greens, lead arsenates,
or fungicides which are falsely branded as to the State, Territory,
or country in which they are manufactured or produced.
  That for the purpose of this Act an article shall be deemed to
be misbranded—
  In the  case of insecticides, Paris greens, lead arsenates, and
fungicides: First, if it be an imitation or  offered for sale under
the name  of another article; second, if it be labeled or branded so
as to deceive or mislead the purchaser, or if the contents of the
package as originally  put up shall have been removed in whole or
in part and other contents shall have been placed in such  package;
third, if in package form, and the contents are stated in terms of
weight or measure, they are not plainly and correctly stated on the
outside of the package.
  In the  case of insecticides (other than  Paris  greens  and lead
arsenates) and fungicides:  First, if it contains arsenic in any of
its combinations or in the elemental form and the total amount of
arsenic present (expresed as per centum of metallic arsenic) is not
stated on the label; second, if it contains arsenic in any of its com-
binations  or in the elemental form and the amount  of arsenic in
water-soluble forms (expressed as per centum of metallic arsenic)
is not stated on the label; third, if it consists partially or com-
pletely of an inert substance or substances which do not prevent,
destroy, repel, or mitigate insects or fungi and does not have the
names and percentage amounts of each and every  one of such
inert ingredients plainly and correctly stated  on the label: Pro-
vided, however, That  in lieu of naming and stating the percentage
amount of each and every inert ingredient the producer may at his
discretion state plainly  upon  the  label the correct names and
percentage amounts of each  and every ingredient of the insecticide
or fungicide having insecticidal or fungicidal properties, and make
no mention of the inert  ingredients, except in so far as to state
the total percentage of inert ingredients present.          [p. 333]
  SEC. 9.  That no dealer shall be prosecuted  under the provisions
of this Act when he can establish a guaranty signed by the whole-
saler,  jobber,  manufacturer,  or  other party  residing  in  the
United States, from whom he purchased such articles, to  the effect
that the same is not adulterated or misbranded within the mean-
ing of this Act, designating it. Said guaranty, to afford protection,
shall contain the name and address  of the party or parties making
the sale of such articles to such dealer, and  in such case said party

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STATUTES AND LEGISLATIVE HISTORY                          25

or parties shall be amenable to the prosecutions, fines, and other
penalties  which would attach in due course to the dealer  under
the provisions of this Act.
  SEC.  10. That  any insecticide, Paris green, lead arsenate, or
fungicide that is adulterated or misbranded within the meaning
of this Act and is being transported from one State, Territory, or
District, to another for sale, or, having been transported, remains
unloaded, unsold, or in original unbroken packages, or if it be sold
or offered for sale in the District of Columbia or any Territory of
the United States, or if it be imported from a foreign country for
sale, shall be liable to be proceeded against in any district court of
the United States within the district wherein the  same is  found
and seized for confiscation by a process of libel for condemnation.
  And if such article is  condemned as being  adulterated or mis-
branded,  within the meaning of  this Act, the same shall be  dis-
posed of by destruction or sale as the said court may  direct,  and
the proceeds thereof, if sold, less the legal costs and charges, shall
be paid into the Treasury of the United States, but such goods shall
not be sold in any jurisdiction contrary to the provisions of this
Act or the laws of that jurisdiction: Provided,  however, That upon
the payment of the costs of such libel proceedings and the execu-
tion and delivery of a good and sufficient bond to the effect that
such articles shall not be sold or otherwise disposed of contrary to
the provisions of this Act or the laws of any  State, Territory, or
District, the  court may by order direct that such articles be deliv-
ered to the owner thereof. The proceedings of such libel cases shall
conform, as near as may be, to the proceedings  in admiralty, except
that either party may demand trial by jury of any issue of fact
joined in  any such case,  and all such proceedings shall be at the
suit of and in the name of the United States.
  SEC. 11. That the Secretary of the Treasury shall deliver to the
Secretary of Agriculture, upon  his request,  from time to time,
samples of insecticides, Paris greens, lead arsenates,  and fungi-
cides which are being imported into the United States or offered
for import, giving notice thereof to the owner or consignee, who
may appear before the Secretary of Agriculture and have the right
to introduce testimony; and if it appear from the examination of
such samples that any insecticide, or Paris green, or lead  arsenate,
or fungicide offered to be imported into the United States is adul-
terated or misbranded within the meaning of this Act, or is other-
wise dangerous to the health of the people of the United States, or
is of a kind  forbidden entry into or  forbidden to be sold or re-
stricted in sale in the country in which it is made or from which

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26                             LEGAL COMPILATION—PESTICIDES

it is exported, or is otherwise falsely labeled in any respect, the
said article shall be refused admission, and the Secretary of the
Treasury shall refuse delivery to the consignee and shall cause the
destruction  of any goods  refused  delivery which shall  not  be
exported by the consignee within three months from the date of
notice of such refusal under such regulations as the Secretary of
the Treasury may prescribe:  Provided, That the Secretary of the
Treasury may deliver to the consignee such goods pending exam-
ination  and  decision in the matter on execution of a  penal  bond
for the  amount of the full invoice value of such goods, together
with the duty thereon, and on refusal to return such goods for any
cause to the custody of the Secretary of the Treasury,  when de-
                                                      [p. 334]
manded, for the purpose of excluding them from the country, or
for any other purpose,  said consignee shall forfeit the full amount
of the bond:  And provided further, That all charges for storage,
cartage, and labor on  goods  which  are refused admission or de-
livery shall be paid by the owner or consignee, and in default of
such payment shall constitute a lien against any future importa-
tion made by such owner or consignee.
  SEC. 12. That the term "Territory," as used in this  Act,  shall
include  the District of Alaska and the insular possessions of the
United  States.  The word "person," as used in  this Act, shall be
construed to  import both the plural and the singular, as the case
demands, and shall include corporations, companies, societies, and
associations. When construing and enforcing the provisions of this
Act, the act, omission or failure of any officer, agent, or other person
acting for or employed by any corporation, company, society, or
association,  within the scope of his employment or office, shall in
every case be also deemed to be the  act, omission, or  failure of
such corporation, company, society, or association, as well as that
of the other person.
  SEC. 13. This Act shall be known and referred to as "The insec-
ticide Act of 1910."
  SEC. 14. That this Act shall be in force and effect from and after
the first day of January, nineteen hundred and eleven.
  Approved, April 26,1910.                             [p. 335]

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STATUTES AND LEGISLATIVE HISTORY                          27

l.la  (1)   SENATE COMMITTEE  ON AGRICULTURE  AND
                         FORESTRY
              S. REP. No. 436, 61st Cong., 2d Sess. (1910)
ADULTERATED OR MISBRANDED FUNGICIDES, INSECTI-
                         CIDES, ETC.
               MARCH 23,1910.—Ordered to be printed.
MR. GUGGENHEIM, from the Committee on Agriculture and For-
                 estry, submitted the following
                          REPORT
                      [To accompany S. 6131.]
  The Committee on Agriculture and  Forestry,  to whom  was
referred the bill  (S. 6131) for preventing the manufacture, sale,
or  transportation of  adulterated  or misbranded Paris  greens,
lead arsenates, and other insecticides, and also  fungicides,  and
for regulating traffic therein, and for other purposes, having had
the same under consideration beg leave to report it  with  amend-
ments and recommend  that the bill as amended be passed.
  The suggested  amendments  are  as follows:
  Strike out after the word  "misdemeanor," on page 1, line 8, of
the bill all of the remaining  words on page 1, to wit:
and for each offense shall, upon conviction thereof, be fined not to exceed five
hundred dollars, and for each subsequent offense and conviction thereof  shall
be fined not less than five hundred dollars, or sentenced to one year's imprison-
ment, or both such fine and imprisonment, in the discretion of the court.
  And insert in lieu thereof  the following:
and shall, upon conviction thereof, be fined not to exceed two hundred dollars
for the first offense, and upon conviction for each subsequent offense be  fined
not to exceed three hundred dollars or sentenced to imprisonment for not to ex-
ceed one year, or both such fine and imprisonment, in the discretion of the court.
  On page 5,  line 11, after  the words "Sec. 6," insert the word
"That."
  On page 6, line 19, after the  word "water," strike out the word
"can," and insert in lieu thereof the word  "may."
  On page 6, line 23, after the words  "In the case of insecticides,"
insert the words  "or fungicides."
  On page 6, line 24, strike out the words "or fungicides."
  On page 7, line  7, after the  words "vegetation when  used," strike
out the words "as recommended by the manufacturer."     [p. 1]
  The bill was referred to the Secretary of Agriculture  with a
request for his views thereon, and  the measure as  amended  is
exactly in line with his recommendation.

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28                                 LEGAL COMPILATION—PESTICIDES

  The changes suggested above, except as to the words "when used
as recommended by the manufacturer," bring the  bill in entire
accord with House  bill No. 20989, which was  transmitted to the
Agricultural  Department, and in regard to which the Secretary
of Agriculture reports as follows:

  The  department is familiar with the proposed legislation *  * * and believes
that  such legislation is urgently needed. Senate bill No, 6131 is an excellent
bill, but it is the opinion of this department that H. R.  20989, which is a very
slightly modified form of the  Senate bill, is better. There is only one phrase
which in the opinion of the experts of this department should be removed from
H. R. 20989, and that occurs in line 10, page 7, and reads,  "when used as rec-
ommended by the manufacturer."

  The following is the Secretary's report in full:
                                  DEPARTMENT OF AGRICULTURE,
                                         OFFICE OF THE SECRETARY,
                                      Washington, D. C., March U, 1910.

  SIR:  I am in  receipt  of your letter of March 11, accompanied by a copy of
Senate bill No.  6131, asking the attitude of the department with regard to the
bill.
  The  department is familiar with the proposed legislation to  restrict the sale
of inferior or adulterated  or misbranded insecticides and  fungicides, and be-
lieves that such legislation is urgently needed. Senate bill No. 6131 is an excel-
lent bill, but it  is the opinion  of this department that H.R. 20989, which is a
very slightly modified form of  the Senate bill, is better. There is only  one
phrase which, in the opinion of the experts of this department, should be re-
moved  from H.  R. 20989, and that occurs in line 10, page 7, and reads, "when
used as recommended by the manufacturer."
  It goes without saying that those enforcing this law would not bring a case
under this fourth count unless the insecticide, as recommended to be used by
the manufacturer, was injurious to vegetation, hence the phrase "when used as
recommended by the manufacturer" is useless. With the fourth count standing
as it does now it makes it  impossible for those enforcing the law to carry out
this particular  provision until the  insecticide has been tested exactly as pre-
scribed by the manufacturer. It may be a matter of common knowledge among
entomologists that a particular insecticide would seriously injure foliage, and
we would get any number  of entomologists to go on the stand and say exactly
similar insecticides had injured vegetation, and yet under this count as  it
stands, we could not prosecute the manufacturer until we had tried his par-
ticular insecticide exactly as he had said try it.
  For  example, everyone knows that white arsenic is very injurious to trees
and will kill the trees as well as the insects. A man might put out white arsenic
(and this has been done) and call  it by some fancy name—say "Bug Buster."
Under provision 4 as it now stands we could not prosecute this man, knowing
that his insecticide would seriously injure trees, until we had tried the insecti-
cide  just as  he  had said. If he had said  it was good for the  codling moth on
apples and gave directions for applying it to an apple  tree, we would have to
wait, if it was in the middle of the winter, till the next summer and try it on
apple trees, knowing all the time that it would burn.
  In the standard for lead arsenate given on page 6, lines 11 to 22, Senate bill

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STATUTES AND LEGISLATIVE HISTORY                           29

6131, the third item in the standard should read just as in the bill, ie., "third,
if it contains arsenic in water-soluble forms equivalent to more than seventy-
five one-hundredths per centum (0.75 per cent) of arsenic oxid (As20s)."
      Very respectfully,
  Hon. S. GUGGENHEIM,                     JAMES WILSON, Secretary.
           United States Senate.
  The legislation  has the unanimous indorsement of practically
all the organizations of fruit  growers in the country,  and prac-
tically all of the leading manufacturers are  heartily in favor of
the measure.
  The following are some of the leading organizations which have
indorsed this legislation: National  Grange (Patrons of Husban-
                                                          [p.2]
dry), National Horticultural Congress, American Apple Growers'
Congress,  American Pomological Society,  American Association
of Economic Entomologists, Association of  Official Agricultural
Chemists, Association of Horticultural Inspectors, Western New
York Horticultural Society, Maryland Horticultural Society, Mis-
souri State Horticultural Society, Ozark Fruit Growers' Associa-
tion,  Georgia  State Horticultural Society,  Maine  Pomological
Society, New Hampshire  Horticultural Society,  Vermont Horti-
cultural Society, Connecticut  Pomological  Society, Illinois State
Horticultural Society, Peninsula Horticultural Society (Delaware
and  Maryland), Florida Horticultural Society, Indiana  Horticul-
tural Society, Pennsylvania Horticultural Society, Michigan Hor-
ticultural Society, Missouri State Board of Agriculture, Nebraska
State Horticultural Society, St. Paul Market Gardeners' Associa-
tion,  New York State Fruit Growers' Association, Illinois Com-
mercial Apple  Growers' Association,  and numerous state boards
of agriculture,  commissioners of  agriculture,   state  and  local
granges, local fruit growers' associations, and farmers'  clubs.
  Your committee considers the legislation  of vital interest to the
fruit and truck growers of the country and  recommends its enact-
ment into law.                                             [p. 3]

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30                            LEGAL COMPILATION—PESTICIDES

l.la (2)   HOUSE COMMITTEE  ON  INTERSTATE AND FOR-
                     EIGN  COMMERCE
             H.R. REP. No. 990, 61st Cong., 2d Sess. (1910)

     ADULTERATED OR MISBRANDED FUNGICIDES,
                   INSECTICIDES, ETC.
APRIL 12, 1910.-—Committed to the Committee of the Whole House on the state
                of the Union and ordered to be printed.
 Mr. KNOWLAND, from the Committee on Interstate and Foreign
               Commerce, submitted the following

                         REPORT
                     [To accompany S. 6131.]
  The Committee on Interstate and Foreign Commerce, to whom
was referred the bill  (S. 6131) for preventing the manufacture,
sale, or transportation of adulterated or misbranded Paris greens,
lead arsenates, and other insecticides, and also fungicides, and for
regulating traffic therein, and  for other purposes, beg leave to
report the bill back with certain amendments with a recommenda-
tion that the amendments be agreed to and the bill  as amended be
passed.
  Amend the bill as follows:
  Page 2, lines 19 and 20, strike out the words "the territories" and
insert in lieu therof the words "any territory."
  Page 4, line 7, strike out the words "or under the direction and
supervision of such bureau" and insert in lieu thereof the words
"by such existing bureau or  bureaus  as may be directed by the
Secretary."
  Page 7, lines 20 and 21, strike out the following: "(other than
Paris greens and lead arsenates)."
  Page 9, line 16,. insert before the word "District" the word "or"
and strike out the words  "or insular possession."
  Page 9, lines 19 and 20, strike out the words "the Territories or
insular possession" and insert in lieu thereof the words "any Terri-
tory."
  Page 10, line 13, insert before the word "District" the word "or"
and strike out the words "or insular possession."
  Page 12, line 6, insert after the word "include" the words "the
District  of Alaska and."
  Page 12, line 6, strike out  the word "possession" and insert in
lieu thereof the word "possessions."                       [p. 1]
  Page 12, insert after line 17, as a new section, the following:

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STATUTES AND LEGISLATIVE HISTORY                          31

  SEC. 13. This act shall be known and referred to as "The insecticide act of
1910."
  Page 12, line  18, strike out the figures "13"  and insert in lieu
thereof the figures "14."
  Page 12, line  19, strike out the words "July, nineteen hundred
and ten" and insert in lieu thereof the words "January, nineteen
hundred and eleven."
  The bill is intended to prevent the transportation in  interstate
and foreign commerce of adulterated and misbranded insecticides
and fungicides. On March 23,  1909, Mr. Lowden introduced a bill
(H.R. 3658) relating to this subject-matter, which bill was referred
by your committee to the Department of Agriculture for informa-
tion  and suggestions. A few amendments were  suggested by that
department to the form  and language of the bill, which amend-
ments were incorporated in the bill (H.R. 20989) introduced by
Mr. Lowden on  February 15 last, and that bill was taken up for
consideration by your committee and hearings at some length were
given on the subject-matter. Senate bill 6131, which is reported,
was  referred to  your committee on April 5,  1910, and is substan-
tially the same as House bill 20989.
  No one has appeared before your committee in opposition to the
bill, and so far as your committee is informed no one is opposed  to
its passage.
  Insecticides and fungicides are not classed as either foods  or
drugs, and consequently are not covered by the so-called  pure food
and drugs law, the language of which act this bill in form follows.
The bill has the active and earnest indorsement of the Department
of Agriculture, and especially the bureaus of Chemistry and Ento-
mology in that department. It likewise has the indorsement of the
leading manufactures of insecticides and fungicides, of horticul-
tural societies, and of persons interested in the growing of horti-
cultural, agricultural, and market garden crops.
  The use of insecticides and fungicides in the  raising of certain
classes of crops has become a necessity throughout the country. The
value of crops in the United  States last year aggregated  nearly
$8,000,000,000, and experts  in  the Department  of Agriculture,
after the most careful investigation,  estimate  that  fully 10 per
cent of our crops are lost through insect pests and  another  10 per
cent from fungous  diseases.  These  figures convey the somewhat
startling information that as a result of insects and fungous dis-
eases one-fifth of our crops are lost, representing a money value,  in
round numbers, of over one billion and a  half dollars.
  It is authoritatively estimated that one-third  of the insects and
plant diseases can be successfully combated by  the use of insecti-

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32                              LEGAL COMPILATION—PESTICIDES

tides and fungicides. It developed in the hearings that between
$20,000,000 and $25,000,000 were paid out annually by fruit grow-
ers and farmers for insecticides, which conveys some idea as to the
importance of the bill. In a single State of the  Union, California,
the annual value of the fruit crop is over $60,000,000,  and increas-
ing at the rate of $2,00,000 yearly. Last year this State shipped
over 32,500 carloads of citrus fruits alone, representing an  invest-
ment of over $127,000,000.
  The Department of Agriculture is engaged  constantly  in the
study of the use and proper application of insecticides and fungi-
cides and publishes formulas for their  use and  these  formulas
                                                         [p. 2]
depend for their value upon the strength and purity of the chem-
icals so used. Under existing conditions, with the strength and
purity of the chemicals frequently varying, their use as insecticides
and fungicides is often worse than useless. For proper application
the chemicals must not be too strong or too weak. If too strong they
will probably destroy or injure the vegetation and if too weak they
will not affect the insects or fungi. One instance was  cited  during
the hearings where an  orchard in Maryland  containing  30,000
peach trees had been practically wiped out as a result of the owner
spraying with  a solution recommended  for San Jose scale, by a
certain firm, which contained ingredients highly  injurious to the
trees.
  Insect powders sold for household use frequently contain poison.
For instance, the statement was made to the committee by the chief
of the insecticide and fungicide laboratory of the Bureau of Chem-
istry that of 105 samples of pyrethrum powder  sold for the exter-
mination of flies and other insects, 19 contained lead chromate,
which is deleterious to human beings when breathed, these powders
being promiscuously sprinkled about  dwellings and  endangering
the health of occupants.
  Indorsements of the bill have been filed with your committee by,
among others, the following:
  Executive committee,  Manufacturers,  Entomologists,  and Agricultural
Chemists, Durham, N. H.
  Massachusetts Agricultural Experiment Station, Amherst, Mass.
  Ohio Agricultural Experiment Station, Wooster, Ohio.
  Nursery and Orchard Inspection, Michigan State Board of Agriculture,
East Lansing, Mich.
  Nursery and Orchard Division, Department of Agriculture, Columbus.
  The Growers' Association of Minnesota, St. Paul, Minn.
  Purdue University Agricultural Experiment Station, La Fayette, Ind.
  New York State College of Agriculture at Cornell University,  Ithaca, N. Y.

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STATUTES AND LEGISLATIVE HISTORY                              33

  University of Idaho, College of Agriculture and Experiment Station, Mos-
cow, Idaho.
  Missouri State Fruit Experiment Station, Mountain Grove, Mo.
  Pennsylvania Department of Agriculture, Harrisburg, Pa.
  Florida Citrus Exchange.
  Agricultural Experiment Station of the North Carolina College of Agricul-
ture and Mechanic Arts, West Raleigh, N. C.
  Minnesota State Horticultural Society, Faribault, Minn.
  Iowa State Horticultural Society, Des Moines, Iowa.
  Boston Market Gardeners' Association, Brighton, Mass.
  Agricultural Experiment Station of the Rhode Island State College, King-
ston, R. I.
  The Ohio State University, Columbus, Ohio.
  University of Minnesota Agricultural Experiment Station, St. Paul, Minn.
  Ohio Department of Agriculture, Division of Farmers' Institutes, New Rich-
mond, Ohio.
  Georgia Fruit Exchange, Marshallville, Ga.
  Maryland Agricultural College and Experiment Station, State Horticultural
Department, College Park, Md.
  National Grange (Patrons of Husbandry).
  National Horticultural Congress.
  American Apple Growers' Congress.
  American Pomological Society.
  American Association of Economic Entomologists.
  Association of Official Agricultural Chemists.
  Association of Horticultural Inspectors.
  Western New York Horticultural Society.
  Maryland Horticultural Society.
  Missouri State Horticultural Society.
  Ozark Fruit Growers' Association.
  Georgia State Horticultural Society.                               [p. 3]
  Maine Pomological Society.
  New Hampshire Horticultural Society.
  Vermont Horticultural Society.
  Connecticut Pomological Society.
  Illinois State Horticultural Society.
  Peninsula  Horticultural Society (Delaware and Maryland).
  Florida Horticultural Society.
  Indiana Horticultural Society.
  Pennsylvania Horticultural Society.
  Michigan Horticultural Society.
  Missouri State Board of Agriculture.
  Nebraska State Horticultural Society.
  St. Paul Market Gardeners' Association.
  New York State Fruit Growers' Association.
  Illinois Commercial Apple Growers' Association.
  W. R. Wilkinson, St. Louis, Mo.
  H. Platt & Sons, Como, Mont.
  Andrews Nursery, Faribault, Minn.
  E. E. Rudy, Rudy, Ark.
  I. C. Hammond, Onset, Mass.
  M. B. Greensfelder, Clayton, Mo.

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34                                 LEGAL COMPILATION—PESTICIDES

  W. F. Allen, Salisbury, Md.
  C. Louis Allen, Aberdeen, S. Dak.
  Orlando Harrison, Berlin, Md.
  W. W. Farnsworth, Waterville, Ohio.
  H. W. Miller, Paw Paw, W. Va.
  Eugene Weston, Canon City, Colo.
  L. C. Marston, Smithburg, Md.
  H. W. Schmitkons, Lorain, Ohio.
  I. F. Murph, Marshallville, Ga.
  C. F. Dixon, Cleveland, Ohio.
  H. A. Squires, Inza, Mo.

  Also numerous state boards of agriculture, commissioners of agri-
culture, state  and local granges, local fruit growers' associations,
and farmers' clubs.
  The following letters from the  Department of Agriculture are
attached as a part of this report :
              DEPARTMENT OF AGRICULTURE, OFFICE OF THE SECRETARY,
                                     Washington, D.C., February §, 1910.
  DEAR MR. MANN:  I  beg to transmit herewith Doctor Wiley's report with
accompaniments on the bill, H.R. 3658, to prevent  the manufacture, sale, or
transportation of  adulterated or  misbranded insecticides, etc.  Doctor Wiley
thinks it not only  a good bill as drawn, but one that  is badly needed. In this
opinion I concur.
      Very truly, yours,
                                              JAMES WILSON, Secretary.
  Hon. JAMES R. MANN,
           House of Representatives.
                    UNITED STATES DEPARTMENT OF AGRICULTURE,
                                            BUREAU OF CHEMISTRY,
                                     Washington, D.C., February 1,1910.
   Relative to H.R. bill No. 3658, entitled "A bill for preventing the manufac-
 ture, sale, or transportation of adulterated or misbranded fungicides, Paris
 greens, lead arsenates, and other insecticides, and for regulating traffic therein,
 and for other purposes;" I have carefully gone over the provisions of the bill
 and am of the  opinion that it is not only a good bill  as drawn, but that it is
 badly needed by reason of (1) the many misbranded and adulterated insecti-
 cides and fungicides sold on the American market; (2) also because it will tend
 to unify state legislation on this subject, which is not now uniform, and (3)
 because it will  protect one State against another, and will protect the inhabi-
 tants of the Territories and the District of Columbia.
   A slightly modified form of this bill is now advocated by entomologists, agri-
 cultural chemists, and manufacturers of insecticides. The modification, in my
 opinion, is an improvement over the old bill. I am inclosing a copy of the mod-
 ified bill.                                                          [p. 4]
   As  to specific cases where we have found insecticides adulterated, I would
 respectfully call Mr. Mann's attention to Bulletins 68, 76, and 82 of this bu-
 reau, copies of which are inclosed, and to a bulletin on lead arsenate, which is

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STATUTES AND LEGISLATIVE HISTORY                              35

now in press. We may sum up certain facts brought out in these bulletins un-
der the following heads:
  (1) Of 45 samples of Paris green bought on the open market 19 contained
more  sodium sulphate  (a  soluble  impurity) than should  be allowable, and 7
contained objectionable quantities of soluble arsenic,  which would scorch the
foliage.
  (2) A sample of London purple contained an objectionable amount of sand,
for  which the consumer was paying at the same rate as for London purple.
  (3) A large number of insecticides, containing arsenic, contained so much
soluble arsenic that they would seriously injure trees.
  (4) Some of the insecticides contain as large amounts as 98 per cent of inert
material that would have no effect on insects.
  (5) The so-called whale-oil soaps are not really made from whale oil.
  (6) Many insect destroyers are really worth only about  3 or 4 cents, and are
sold under some fancy name for from 10 to 25 times what they are worth.
  (7) Some insecticides contain as much as 80 per cent road dust.
  (8) Samples of potassium cyanid, said to be pure, contain as little as 28 per
cent of potassium cyanid.
  (9) Nineteen  of 105 samples of pyrethrum (Persian insect powder)  con-
tained a poisonous  substance which would be injurious  to people  using the
above insecticide in their homes to kill flies.
  (10)  One sample of Paris  green was found by one of the States that con-
tained no Paris  green, one was found that contained only 50 per cent Paris
green, and 31 out of  650 samples contained less than 50 per cent total arsenious
oxid.
  (11)  Examinations of all  the common brands of  lead arsenate paste ob-
tainable on the open market  were made by the Bureau of Chemistry. It was
found that the moisture in these samples varied from less than 1 per cent to 61
per cent, the total arsenic oxid from 6 to 44 per  cent, and the total lead oxid
from 23 to 72.5 per cent. Six out of 50 samples showed more than 1 per cent
soluble arsenic oxid, 3 showed more than 2 per cent soluble arsenic oxid, and 1
showed more than 5 per cent soluble arsenic oxid. The above figures show that
samples of lead arsenate sold on the open market vary in  composition to  such
an extent that it is impossible to tell the farmer how much  of this insecticide to
use  to a certain quantity of water. If he used an average amount of 4 pounds
of lead  arsenate to  100 gallons of water, some  of the above lead  arsenates
would not kill the insects and some would be injurious to  the tree, because of
the  excessive amount of lead arsenate applied. At least 6 of the samples would
scorch the foliage, because of an excessive amount of soluble arsenic oxid.
      Respectfully,
                                                   H. W. WILEY, Chief.

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36                                  LEGAL COMPILATION—PESTICIDES

   The SECRETARY OF AGRICULTURE.
                                   DEPARTMENT OF AGRICULTURE,
                                          OFFICE OF THE SECRETARY,
                                    Washington, D. C., February 4,1910.
   DEAR MR. MANN : Referring tf> the bill H. R. 3658, to prevent adulteration of
 insecticides and fungicides, I inclose herewith a memorandum from Dr. L. 0.
 Howard, Entomologist, which is self-explanatory. I forwarded to you yesterday
 Doctor Wiley's views regarding this bill.
        Very truly yours,
                                              JAMES WILSON, Secretary.
   Hon. JAMES R. MANN,
            House of Representatives.
                      MEMORANDUM FOR THE SECRETARY
                     UNITED STATES DEPARTMENT OF AGRICULTURE,
                                            BUREAU OF ENTOMOLOGY,
                                     Washington, D. C., February 3,1910.
   Referring to your request of the 27th ultimo and accompanying letter from
  Hon. James R. Mann and copy of H. R. 3658, would advise that I am familiar
  with the provisions of this bill, and believe it to be a very good one. If enacted
  into law, it would be a great advantage to fruit growers, gardeners, and others
                                                                  [p. 5]
  as insuring honest insecticides and fungicides. It should also tend to harmonize
  the present laws in various States on this  subject and would protect  one State
  from another. The merits of the  present bill have been carefully gone over
  between representatives of this bureau and the Bureau of Chemistry,  and we
  heartily indorse it. A slightly modified bill,  however, is now advocated by
  entomologists  and agricultural chemists and also by manufacturers of  insecti-
  cides which, in my opinion, is a desirable change over the bill as submitted—
  over H. R. 3658. A copy of this modified bill has already been submitted to you
  from the Bureau of Chemistry.
        Respectfully,
                                          L. O. HOWARD, Chief of Bureau.
                                                                  [p. 6]

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STATUTES AND LEGISLATIVE HISTORY
                                                                      37
                CONGRESSIONAL RECORD, VOL. 45 (1910)
                April 4:  Debated, amended and passed  Senate,  pp.
                                      ence which has been suggested by the
                                      Senator from Idaho.
                                        This bill comes to the Senate on the
                                      recommendation of the Department of
                                      Agriculture,  as  the result  of a  wide
                                      cooperation of  agricultural interests,
                                      especially the fruit interests  of the
                                      West and of the South, and is regarded
                                      by the fruit people as very essential to
                                      the successful progress of their indus-
                                      try.  They have  suffered, because the
                                      insecticides which are sold by the drug
                                      trade to them for the purpose of spray-
                                      ing their trees  have been diluted and
                                      made according to  bad  formulas, so
                                      that they are ineffective. It is the judg-
                                      ment of the Department of Agriculture
                                      that unless some standardization of
                                      these insecticides can be made the fruit
                                      industry stands to suffer a very serious
                                      loss and damage every year.
                                        I hope the  Senator from  Idaho will
                                      not make any objection either to the
                                      previous reference of the bill or to its
                                      present consideration. It  is a  most
                                      pressing matter.
                                        Mr.  HEYBURN. No one could be
                                      more thoroughly in sympathy with the
                                      purpose of the  legislation than I, but
                                      it is clearly within  the class of ques-
                                      tions that have heretofore gone exclu-
                                      sively to the  Committee on Manufac-
                                      tures. No such bill as this has gone to
                                      the Committee on Agriculture.
                                        Mr.  DOLLIVER. Bills relating to
                                      oleomargarine have always been con-
                                      sidered by  the Committee on Agricul-
                                      ture. Bills for preventing the adultera-
                                      tion  of lard and of  flour  and all that
                                      variety of  subjects  have  always  been
                                      considered  by the Committee on Agri-
                                      culture and Forestry. While the pure-
                                      food bill had the jurisdiction—and  I
                                      think fortunately the jurisdiction—of
                                      the committee of which  the Senator
                                      from Idaho was chairman, it was an
                                      exception to all  previous  dealing and
                                      all subsequent dealing by Congress in
     l.la (3)
l.la  (3) (a)
4204-4206
     ADULTERATED OR MISBRANDED
          INSECTICIDES, ETC.
  The bill (S.  6131)  for  preventing
the manufacture,  sale, or transpor-
tation of adulterated  or  misbranded
Paris greens, lead arsenates, and other
insecticides, and also fungicides, and
for regulating traffic therein, and for
other purposes, was considered  as in
Committee of the Whole.
  Mr. HEYBURN.  I  should  like to
inquire how  the bill conies from the
Committee on Agriculture and For-
estry. It is a pure-food bill.
  Mr. BURTON. It is reported from
the  Committee  on  Agriculture  and
Forestry.
  Mr. HEYBURN. It should  have
gone  to  the  Committee on Manufac-
tures.
  Mr. BURTON. It  relates to insecti-
cides, Paris green,  and other articles
used for the destruction of pests that
injure fruit. It was  advocated and
supported by the fruit interests and
the agricultural interests of the  coun-
try.
  Mr. HEYBURN. Section 6 of the bill
deals with "man or  other animals, or
households." It is very clear that the
bill should have gone to the Committee
on Manufactures. The mere fact that
the articles are used by farmers in ag-
ricultural matters would not send a bill
of that kind to the Committee on Agri-
culture and Forestry. It is not consis-
tent with the pure-food law.
  Mr. DOLLIVER. Mr. President—
  The PRESIDING OFFICER. Does
the Senator from  Idaho yield to the
Senator from Iowa?
  Mr. HEYBURN. I do.
  Mr.  DOLLIVER. Similar bills have
been pending here from year to  year,
having been reported year  after year.
They have always been referred to the
Committee on Agriculture and  For-
estry, and never have taken the refer-

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38
LEGAL COMPILATION—PESTICIDES
detail with questions affecting the pur-
ity of articles used in commerce.
  Mr. HEYBURN. The pure-food bill
clearly established the jurisdiction of
the Committee on Manufactures over
this  class of measures. This bill pro-
vides, in section  6, for the  investiga-
tion  and control  of this article  with
reference to its uses by households and
with reference to animals, and the clas-
sification here and the method are not
consistent with the pure-food law. That
is what I am talking about.
  Mr. DOLLIVER. The use  of insecti-
cides, of course, has more application
to plants and to animals than it has to
anything else, as  the Senator will
perceive.
  Mr. HEYBURN.  The bill specifies
men in  section 6. I am anxious,  Mr.
President, that there should  be uni-
formity. I have always considered that
one of the strong  features of the pure-
food legislation was that it established
a uniform  practice  and a uniform
method, which are of the very greatest
importance.
  Now, here comes an innovation, pro-
viding a different method of determi-
nation, and  a  different method of the
exercise of  jurisdiction. It  might be
equally  good. I have not taken time as
yet to consider that. I know the Sena-
tor from Iowa will agree with me that
the more nearly uniform we can have,
not only the law but the manner of its
application and execution on any given
class of subjects the better.
   Mr. DOLLIVER. If the Senator will
permit me, the pure-food law, I think,
did not  attempt to standardize articles
of food.
   Mr. HEYBURN. That was its great
purpose.
   Mr. DOLLIVER.  The object of the
pure-food law was  to require a state-
ment of the contents of an article so
that people might judge of it. The diffi-
culty with the acids from copper and
various  other insecticides  was  that
they were impure; not that  they were
adulterated, but  that their chemical
properties were so  adjusted as not to
 be effective. The Department of Agri-
 culture  recommended  spraying  with
 certain  chemicals, and when people
 bought the chemicals, instead of  help-
 ing the trees, they killed the leaves on
 them. Whole orchards of peaches in
 Georgia were destroyed, not because
 the insecticide was impure, not because
 it was adulterated, but because it had
 not the chemical adjustment of its con-
 stituents to kill the bugs without kill-
 ing the trees. This proposition is the
 result of the studies  of economic en-
 tomologists, who are organized for the
 purpose of studying this subject and
 who have  determined what should be
 the proportion of these  deadly  mix-
 tures in the insecticides in order to
 make them efficient. It is the object of
 the bill to require the people who are
 making these insecticides to sell  them
 to the constituents of my honorable
 friend in such chemical proportions as
 will kill the insects without destroying
 the trees.
   Mr. HEYBURN. The Senator from
 Iowa has  struck the keynote of the
 proposition  to which  I object and to
 which my objection applies, and that
 is  the standardizing  of these articles.
 For many years Congress  has  been
 attempting to pass pure-food legisla-
 tion upon  standardization—if I may
 use such a  word—and it has always
 resulted in failure. The House of Rep-
 resentatives reported the measure on
 the basis  of standardization, but the
 Senate  stood  firm  for the measure,
 based upon the facts of  each case.  It
 was conceded in conference—and I al-
 ways regarded that as the prime ele-
 ment of the victory, if I may use such
 a term—of the Senate's policy in re-
 gard to it, and it has worked out splen-
 didly. The establishment of the  stan-
 dard to-day may prove to-morrow to be
 a mistake. They have had to change
 their standards innumerable times. The
 Senate, after a thorough presentation
 of that question, realized that fact and
 stood firm for the principle upon which
 each case  stands, upon  the facts  of
 that case.                   [P. 4204]

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STATUTES AND LEGISLATIVE HISTORY
                                39
  I think the Senator from Iowa [Mr.
DOLLIVER] will agree with me, and I
think he agreed with me at that time,
that it was a dangerous rule to attempt
to establish a standard of uniform ap-
plication by a bureau, no matter how
skilled or how learned, because experi-
ence had  shown  or the  record had
shown at that time that standards es-
tablished this year had to be modified
and changed next.  What we  wanted
was stability in the law.
  I know something of the use of Paris
green. It is a question that ought not
to be and can not be controlled through
a bureau  in  Washington. Thousands
and  thousands—I was going to say
hundreds of thousands—of individuals,
fruit  growers with  patches  of fruit
trees from a  quarter of an acre up to
100 or more acres, buy the ingredients
and  mix  their spraying  materials.
Those of us who have had the oppor-
tunity of observation know that to be
the fact. They are going, however, very
far away from the Government, and
they should  have a right of action
against  a local dealer, or any other
dealer, on their own responsibility in
the event that they are deceived  by
being imposed upon by the dealer sell-
ing  them something that  is  either
harmful or useless.  Now, you propose
to circumscribe this jurisdiction very
much. I  should like to have this bill go
to our committee, so that we could take
it up and compare it with the rule that
we  laid down and legislated into the
law. That would eliminate  the stan-
dardizing features of this bill and put
it on the basis of fact, so that the party
might go  into  court to  establish the
facts and enforce the law.
  Under a mistaken idea as to the pro-
vision of the pure-food law I have seen
newspaper articles  in great numbers
and have received letters in great num-
bers based upon the supposition that
standards were established. In them
they had copies of the House bill, and
they took it for granted that that was
the law. I have had to correct that im-
pression; I have had  to correct  some
of the journals of most importance in
this  country  dealing with that  ques-
tion. They would print some statement
based upon the idea of the establish-
ment of standards, and they would see
a newspaper article that said that Doc-
tor Wiley, a very eminent and respect-
able gentleman, the Secretary of Agri-
culture, and others had  determined
that this and that was so and consti-
tuted adulteration of the standard, but
it does nothing of  the kind. It does it
for the  purposes of inspection so far
as the Government is concerned; but as
to the establishment of the rights of
the parties in controversy, the  stan-
dards that they fix have no binding
force whatever.
  Only  recently a court took an en-
tirely different position and submitted
the question to a jury as to whether or
not the  article^ presented with all the
facts concerning it constituted a viola-
tion  of  the law. The  jury found the
facts; they found them in disregard of
the standard, and they found them as
they should have found them. Now, at
this  hour,  when  we  have succeeded
after many, many years of effort in
establishing a proper basis by which
to determine the purity of all articles
entering into commerce,  I  think it
should be uniform.
  Mr. DOLLIVER. Mr. President, will
the  Senator permit me  to interrupt
him?
  The PRESIDING OFFICER.  Does
the Senator from  Idaho yield to the
Senator from Iowa?
  Mr. HEYBURN. Certainly, I yield.
  Mr. DOLLIVER. Mr.  President,  I
think few men of  our time have ren-
dered a larger public service than has
the  Senator from Idaho  [Mr.  KEY-
BURN]  in pressing,  oftentimes  with
very poor moral support anywhere in
the Senate or in the Government, that
measure for the regulation of the sale
of foods and drinks and medicines in
the interstate commerce of the United
States. The more  I have  studied the

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40
LEGAL COMPILATION—PESTICIDES
law the more certain my conviction has
become that it will be regarded by stu-
dents of the progress of society here
as a veritable waymark of the moral
advancement  of the business of  the
United States;  but the  Senator is
aware that the scheme of that law was
simply to require these people, where
articles entering  into  food  were  not
harmful and poisonous, to put on  the
package what the article contained, so
that people  would  know what they
were buying,  and in case the articles
were deleterious to health it was alto-
gether  forbidden  to put them in.  No
effort was made to standardize foods.
  Mr.  HEYBURN.  Not in this  body,
but the House bill provided for that.
  Mr. DOLLIVER. But the law makes
no effort to standardize foods or drinks
or medicines.
  Mr. HEYBURN. No.
  Mr.   DOLLIVER.  Now,  then,  the
Senator will perceive that the theory
of the  pure-food law is not applicable
here, for the reason that nobody com-
plains  that he does not know what he
is buying. People are buying  Paris
green or arsenate  of lead, or whatever
insecticides they  may  desire, but in
point of fact they are getting an arti-
cle which is so proportioned chemically,
so diluted, so  complicated with strong
acids, it may be, as either to be worth-
less or to be harmful, so that the bugs
escape or else the bugs and the trees
perish  together. It is not the complaint
of the  people asking this legislation
that there are poisonous things in this
plant medicine;  not at all; the mixture
is itself a poison; but their complaint
is that the  chemists manufacturing
arsenate of lead or  other insecticides
for use in spraying trees, or for use in
the dipping of cattle, sheep, and  other
animals — their  complaint  is not so
much  that they are adulterating it,
but that they do not know how to make
it. Let me read from a report of  the
Secretary of  Agriculture. In his  an-
nual report for 1905—and these bills
have been pending before the Commit-
 tee on Agriculture for many years, and
 have been reported more than once—
 the Secretary of Agriculture said:
  These investigations have shown that many of
 the insecticides  offered to our  farmers are of
 little value and that the price demanded and the
 value of the goods are not always proportionate.
 These studies have tended to protect the farmers
 of  the  country  and secure for them a much
 better quality of insecticide for the money ex-
 pended. (Yearbook, 1905, p. 61.)

   In the very last report of the Bureau
 of  Chemistry of  the  Department  of
 Agriculture Doctor Wiley says:
  An investigation important to fruit growers
 and orchardists was that in regard to the com-
 position and burning qualities of lead arsenate
 on the market for spraying purposes. Two of the
 samples examined proved to be composed entirely
 of white arsenic, a compound which would either
 kill the trees or seriously injure them. (Year-
 book, 1908, p. 561.)

   That is in the last  report. So that
 our problem  here is not to get pure
 insecticides; is not to  get insecticides
 the contents of which are known to the
 people who buy them; it  is not to get
 insecticides free from matter injurious
 to  health, because their being fatal  to
 pests is the very essence of the value of
 these chemicals; but it is to create such
 a standard in the  preparation of arti-
 cles sold for the  protection of cattle
 and sheep and fruit trees  as will effec-
 tually accomplish  what the orchardist
 or  the cattleman has in view when he
 dips  the  animal or  sprays the trees.
 If we had nothing except the pure-food
 law to govern it, it would be absolutely
 worthless for this  purpose.
   Now, I call the attention of the Sen-
 ator from Idaho to the fact that this
 bill in this exact form has been peti-
 tioned for by practically  all the  agri-
 cultural and  horticultural societies  of
 the country; by all the state colleges  of
 agriculture; by the Purdue University
 agricultural experiment station, in In-
 diana; by various  fruit exchanges; by
 the executive committee of the manu-
 facturers, entomologists,  and  agricul-
 tural chemists; by the Michigan state
 board of agriculture, the Pennsylvania
 State College, the  Massachusetts agri-

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STATUTES AND LEGISLATIVE HISTORY
                                 41
cultural  experiment station,  the  Mis-
souri fruit experiment station,  the
Ohio agricultural experiment station,
and many others; and those bodies are
now pressing for this exact measure.
  Mr.  HEYBURN.  Mr. President,  I
would sign my name to that list.
  Mr. DOLLIVER. I trust my friend,
then, on the mere question of parlia-
mentary expediency will not delay the
passage of the bill.
  Mr. HEYBURN. Mr. President, of
course I am not speaking under  Rule
VIII. I am not speaking to this bill.  I
am speaking to my suggestion that it
be referred to the appropriate commit-
tee. I am thoroughly in favor of pro-
tecting the  public against bogus  arti-
cles—and they would be bogus articles
in  this case and  not  deleterious to
health, because nobody eats them.
  Mr. DOLLIVER. No; they are not
bogus.  These men are doing the best
they can.  The agricultural  chemists
themselves have asked  us  to  set this
standard.
  Mr. HEYBURN. I am speaking of
that class to whom the Senator refers,
who impose an article on the market
which is  not what it is branded to be.
  Mr. DOLLIVER.  The manufactur-
ing chemists impose no article on the
market. They brand it exactly what it
is, and they could state the contents of
it and still not do any good, so far as
this situation is concerned.
  Mr.  HEYBURN.  Mr. President,  I
think the Senator will  find that there
are bogus articles on the market, and
in many instances there are advertised
a great many cure-alls, even for the
worms on the trees, as there are for
the human system. I would carry this
legislation so far as to prevent the sale
of something that was a pretense for
a meritorious article. I am not claim-
ing that this  is a  food and that it
should  be classed among the  foods at
all in any way. Of course, the  Senator
knows that. I am merely speaking for
conformity to the rule that every bill
of this kind, undertaking in any way
to control the manufacture of articles,
should go to the Committee on  Manu-
factures. I think that must be obvious,
because many  things that  go  before
that committee are used only, for in-
stance, in the foundry or on the farm
or in the mine, but they are manufac-
tures,                     [p. 4205]
  Mr. DOLLIVER. The custom of the
Senate has been to send such bills to
the  Committee on Agriculture. That
committee has reported this bill two or
three times, I think.
  Mr. HEYBURN.  Mr. President, I
think the Senate  established  a  new
rule when it sent the pure-food bill to
the Committee  on  Manufactures; and
I think that rule should be observed.
The Committee on Agriculture is  not
short of business at all, and the Com-
mittee on Manufactures has now under
consideration  the  paint bill.  It has
taken a good deal  of testimony in re-
gard to it, and the subcommittee will in
a very few days report to  the whole
committee, and the whole committee to
the Senate upon that measure. If we
are  going to  have  a  Committee on
Manufactures,  let us send measures
involving  the manufacture of products
to that committee,  or else  let us abol-
ish it.
  Mr. DOLLIVER. If the Senator will
pardon me, I think he ought to be  so
thankful that  the  pure-food bill  was
not sent to the Committee on Interstate
Commerce as to look with more charity
and forbearance upon the reference of
this  bill in several Congresses  to the
Committee on Agriculture.
  Mr. HEYBURN.  Mr. President, I
have  a very vivid  recollection  of the
pure-food  bill, and  I think I know why
it was sent to the Committee on  Manu-
factures. I have read its history, and
I saw it displaced on this floor for the
purpose of taking up a bill to reinstate
a couple  of bad boys  over here at
Annapolis. I learned some parliamen-
tary  procedure  and law  during the
consideration of the pure-food  bill. I
found it necessary  to acquire some of

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42
LEGAL COMPILATION—PESTICIDES
that knowledge in order to get that
bill through.
  This measure deals with exactly the
same kind of a question, and while I
am not hunting work and am not short
of work, still I have some pride in the
committee over which I have the honor
to preside, and I naturally keep an eye
over its jurisdiction. I do not know how
this ever escaped me,  or probably the
Senator would  have heard from me
before.
  Mr. DOLLIVER. Mr. President	
  The PRESIDING OFFICER. Does
the Senator  from Idaho yield to the
Senator from Iowa?
  Mr. HEYBURN. Yes.
  Mr. DOLLIVER. While the Senator
is not short of work,  I think I heard
him express on this floor the other day
a  very  great  prejudice against the
duplication of work; that is to say, the
charging of two different people with
the solemn responsibility for doing the
same work.
  Mr.  HEYBURN.  I  think  we  all
agree on that.
  Mr. DOLLIVER. This work has been
done  with a  good deal of  care and a
good  deal of skill, and hearings have
been  taken at  great  expense to the
Government, in which every interest
was represented and all, including the
manufacturing interests, were heard.
  Mr. HEYBURN. I have  no doubt of
that.
  Mr. DOLLIVER. Here  is a bill of
undoubted public service, with nobody
opposed to it.
  Mr. HEYBURN. Mr. President, I
will not take the responsibility of de-
laying  this measure further than to
call the attention of the Senate to the
fact that it went to the wrong commit-
tee. I am not anxious to take the bill
from the Committee  on Agriculture
and Forestry. The only proper way to
call it to the attention of the Senate
was to  move that  it be referred to
another committee.  Mr. President,  it
may be that this is a very good bill. If
it is not we can cure any defects in it
 or make any additions to  it that the
 wisdom of the Senate may seem to dic-
 tate; but hereafter I shall insist that
 all measures of this kind  go to the
 Committee on Manufactures or I shall
 insist that that committee has no func-
 tion and leave it. That is the idea.
   ThePRESIDINGOFFICER.Thebill
 will be read by the Secretary.
   The  Secretary  read the bill, which
 had been reported from the Committee
 on  Agriculture and  Forestry  with
 amendments.
   The first amendment was, in section
 1, page 1, line 8, after the  word "mis-
 demeanor," to strike out "and for each
 offense shall, upon conviction  thereof,
 be fined not  to exceed $500,  and for
 each subsequent offense and conviction
 thereof shall be  fined not less  than
 $500, or sentenced to one year's im-
 prisonment, or both  such fine  and im-
 prisonment, in the  discretion of the
 court"  and insert "and shall, upon con-
 viction thereof, be fined not to exceed
 $200 for the first offense, and upon con-
 viction for each subsequent offense be
 fined not to exceed $300, or sentenced
 to imprisonment for not to exceed one
 year, or both such fine and imprison-
 ment, in the discretion of  the court,"
 so as to make the section read:
  That it shall be unlawful  for any  person to
 manufacture  within any  Territory or the Dis-
 trict of Columbia any insecticide, Paris  green,
 lead arsenate, or fungicide which is adulterated
 or misbranded within the meaning of this act;
 and any person who shall violate any of the pro-
 visions of this section shall be guilty of a mis-
 demeanor, and shall, upon conviction thereof, be
 fined not to exceed $200 for the first offense, and
 upon conviction for each subsequent  offense be
 fined not to  exceed $300, or sentenced to im-
 prisonment for not to exceed one year, or both
 such fine and imprisonment, in the discretion of
 the court.
   The amendment was agreed to.
   The next amendment was, in section
 6,  page  5, line 18,  before the  word
 "term," to  strike out "The" and insert
 "That the," so as to read:
  That the term "insecticide" as used in this
 act, etc.
   The amendment was agreed to.

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STATUTES AND LEGISLATIVE HISTORY
                                                                        43
  The next amendment was, in section
7, on page  7, line  1,  after the word
"water," to strike out "can" and insert
"may," so as to read:
  That extra water may be added to lead arsenate.
  The amendment was  agreed to.
  The next amendment was, in  the
same section,  on page 7, line 5, after
the word "insecticides"  to insert  "or
fungicides;" in line 6, after the word
"arsenate,"  to strike  out  "or fungi-
cides;" and  in line  14, after the word
"used," to strike out "as  recommended
by the manufacturer," so as  to make
the paragraph read:
  In the case of insecticides  or fungicides, other
than Paris green  and lead arsenate: First, if its
                                       strength  or purity fall below  the professed
                                       standard  or quality under which  it is sold;
                                       second, if any substance has been substituted
                                       wholly or in part for the article; third, if any
                                       valuable  constituent of the article has been
                                       wholly or in part abstracted ; fourth, if it is
                                       intended for use on vegetation and shall contain
                                       any substance or  substances which, although
                                       preventing, destroying, repelling, or mitigating
                                       insects, shall be injurious  to such vegetation
                                       when used.

                                         The amendment was agreed to.
                                         The bill was reported to the Senate
                                       as amended and the amendments were
                                       concurred in.
                                         The bill was ordered to be engrossed
                                       for  a third  reading,  read the third
                                       time, and passed.
                                                                   [p. 4206]
l.la  (3)  (b)   April 18:  Debated, amended and passed House,  pp.
4917-4918;4920
  Mr. KNOWLAND.  Mr.  Speaker,
this bill, the report upon which I sub-
mitted to the House from the Commit-
tee on Interstate and  Foreign Com-
merce, is intended to prevent the trans-
portation in  interstate and  foreign
commerce  of  adulterated  and mis-
branded insecticides and fungicides. On
March 23,  1909, Mr.  LOWDEN  intro-
duced a  bill (H. R. 3658)  relating to
this subject-matter, which bill was re-
ferred by the Committee on Interstate
and Foreign Commerce to the Depart-
ment of  Agriculture  for information
and suggestions. A few amendments
were suggested by that department in
the  form and language of the bill,
which amendments were incorporated
in the bill (H. R. 20989), and that bill
was taken up  for consideration,  and
hearings at  some length were given on
the subject-matter. Senate bill 6131,
which is  reported, was referred to the
committee on April 5,1910, and is sub-
stantially the same as House bill 20989.
  No one has appeared in opposition
to the bill, and, so far as I am informed,
no one is  opposed to its passage.
  Insecticides and fungicides  are not
classed as either foods or  drugs,  and
consequently are not covered by the so-
                                       called pure  food and drugs law, the
                                       language of which act this bill in form
                                       follows. The bill has the  active and
                                       earnest indorsement  of the  Depart-
                                       ment of Agriculture, and especially the
                                       bureaus of Chemistry and Entomology
                                       in that department. It likewise has the
                                       indorsement of the leading manufac-
                                       turers  of  insecticides and  fungicides,
                                       of horticultural  societies, and of per-
                                       sons interested in the growing of horti-
                                       cultural, agricultural, and market gar-
                                       den crops.
                                         The  use of insecticides  and fungi-
                                       cides in the raising of certain classes
                                       of  crops  has  become  a   necessity
                                       throughout the  country. The value of
                                       crops  in the United States last  year
                                       aggregated nearly $8,000,000,000, and
                                       experts in the Department of Agricul-
                                       ture, after the most careful investiga-
                                       tion, estimate that fully 10  per cent of
                                       our crops are lost through insect pests
                                       and another 10 per cent from fungous
                                       diseases.   These figures convey  the
                                       somewhat startling information  that
                                       as a result of insects and fungous dis-
                                       eases  one-fifth of  our crops are  lost,
                                       representing a money value, in round
                                       numbers, of over one billion and a half
                                       dollars.

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44
LEGAL COMPILATION—PESTICIDES
  It is authoritatively estimated that
one-third of the insects and plant dis-
eases can be successfully combated  by
the use of insecticides and fungicides.
It developed in the hearings  that be-
tween $20,000,000 and $25,000,000 were
paid out annually by fruit growers and
farmers for  insecticides, which con-
veys some idea as to the importance of
the bill. In a single State of the Union,
California, the annual value of  the
fruit crop is over $60,000,000, and in-
creasing at the rate of $2,000,000 year-
ly.  Last year  this  State shipped over
32,500 carloads of  citrus fruits alone,
representing  an investment  of  over
$127,000,000.
  The  Department of Agriculture is
engaged constantly in the study of the
use and proper application  of insecti-
cides  and  fungicides and  publishes
formulas for their use, and these for-
mulas depend  for their value upon the
strength  and  purity of the chemicals
so  used.  Under existing  conditions,
with  the strength  and purity of the
chemicals frequently  varying,  their
use  as insecticides and  fungicides is
often  worse than useless. For proper
application the chemicals must  not be
too strong or  too weak.  If too strong
they  will  probably destroy or  injure
the vegetation, and if too weak they
will not  affect the  insects or  fungi.
One  instance  was cited during  the
hearings where an orchard  in  Mary-
land containing 30,000 peach trees had
been practically wiped out as a  result
of the owner spraying with a solution
recommended for San Jose scale, by a
certain firm, which contained ingredi-
ents highly injurious  to the trees.
   Insect powders  sold for household
use frequently contain poison. For  in-
stance, the statement was made  to the
committee by the chief of the insecti-
cide  and fungicide laboratory  of the
Bureau of Chemistry that of  105 sam-
ples of pyrethrum  powder sold for the
extermination of  flies and  other  in-
sects,  19  contained  lead  chromate,
which  is deleterious to human  beings
 when  breathed, these  powders being
 promiscuously  sprinkled about dwell-
 ings and  endangering  the health  of
 occupants.

   Indorsements of the bill  have been
 filed with your committee by, among
 others, the following:
   Executive committee,  Manufacturers, Ento-
 mologists, and Agricultural Chemists, Durham,
 N. H.
   Massachusetts Agricultural Experiment  Sta-
 tion, Amherst, Mass.
   Ohio Agricultural Experiment Station, Woos-
 ter, Ohio.
   Nursery  and  Orchard Inspection,  Michigan
 State Board of Agriculture, East Lansing, Mich.
   Nursery  and  Orchard Division, Department
 of Agriculture, Columbus.
   The Growers' Association of Minnesota,  St.
 Paul, Minn.
   Purdue  University Agricultural Experiment
 Station, La Fayette, Ind.
   New  York  State College  of Agriculture at
 Cornell  University, Ithaca, N. Y.
   University  of Idaho, College of Agriculture
 and Experiment Station, Moscow, Idaho.
   Missouri State  Fruit Experiment  Station,
 Mountain  Grove, Mo.
   Pennsylvania  Department  of  Agriculture,
 Harrisburg, Pa.
   Florida Citrus Exchange.
   Agricultural Experiment Station of the North
 Carolina College of Agriculture and  Mechanic
 Arts, West Raleigh, N. C.
   Minnesota State Horticultural Society, Fair-
 bault, Minn.
   Iowa  State  Horticultural Society, Des Moines,
 Iowa.
   Boston Market Gardeners' Association, Brigh-
 ton, Mass.
   Agricultural Experiment Station of the Rhode
 Island State College. Kingston, R. I.
   The Ohio State University, Columbus, Ohio.
   University  of Minnesota Agricultural Experi-
 ment Station, St. Paul, Minn.
   Ohio  Department of Agriculture, Division of
 Farmers' Institutes, New Richmond, Ohio.
   Georgia Fruit Exchanre, Marshallville, Ga.
   Maryland Agricultural College and Experi-
 ment Station, State Horticultural Department,
 College Park, Md.
   National Grange (Patrons of Husbandry).
   National Horticultural Congress.
   American Apple Growers' Congress.
   American Pomological Society.
   American Association of Economic Entomolo-
 gists.
   Association of Official Agricultural Chemists.
   Association of Horticultural Inspectors,
   Western New York Horticultural Society.
   Maryland Horticultural Society.
   Missouri State Horticultural Society.
   Ozark Fruit Growers' Association.

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STATUTES AND LEGISLATIVE HISTORY
                                   45
  Georgia State Horticultural Society.
  Maine Pomological Society.
  New Hampshire Horticultural Society.
  Vermont Horticultural Society.
  Connecticut Pomological Society.
  Illinois State Horticultural Society.
  Peninsula Horticultural  Society (Delaware
and Maryland).
  Florida Horticultural Society.
  Indiana Horticultural Society.
  Pennsylvania Horticultural Society.
  Michigan Horticultural Society.
  Missouri State Board of Agriculture.
  Nebraska State Horticultural Society.
  St. Paul Market Gardeners' Association.
  New York State Fruit Growers' Association.
  Illinois  Commercial Apple Growers' Associa-
tion.
  W. R. Wilkinson, St. Louis, Mo.
  H. Platt & Sons, Como, Mont.
  Andrews Nursery, Fairbault, Minn.
  E. E. Rudy, Rudy, Ark.
  I. C. Hammond, Onset, Mass.
  M. B. Greensfelder, Clayton, Mo.
  W. F. Allen, Salisbury, Md.
  C. Louis Allen, Aberdeen, S. Dak.
  Orlando Harrison, Berlin, Md.
  W. W. Farnsworth, Waterville, Ohio.
  H. W. Miller, Paw Paw, W. Va.
  Eugene Weston, Canon City, Colo.
  L. C. Marston, Smithburg, Md.
  H. W. Schmitkons, Lorain, Ohio.
  I. F. Murph, Marshallville, Ga.
  C. F. Dixon, Cleveland, Ohio.
  H. A. Squires, Inza, Mo.

   Also numerous state boards of agri-
culture, commissioners of agriculture,
state  and  local  granges, local fruit
growers'  associations, and  farmers'
clubs.
   I am hopeful that the Members of the
House will appreciate the merits of the
pending  bill by giving  it their over-
whelming approval.
   Mr. LOWDEN.  Mr.  Speaker,  this
bill is intended  to prevent the trans-
portation in  interstate  and  foreign
commerce of adulterated or  misbrand-
ed insecticides  and fungicides.  Our
crops  last year had a money value of
almost $8,000,000,000. Experts in the
Department of Agriculture estimated
—and these estimates are checked up
                             [p. 4917]
by those thoroughly competent to do
it —  that fully 10 per  cent of  this
$8,000,000,000 is  lost through  insect
pests, and  another  10 percent is  lost
through  fungous diseases.  In  round
numbers, the annual loss on the prod-
ucts of the soil would amount to some-
thing  more  than $1,500,000,000. The
testimony at the hearing revealed the
fact that one-third of  this  enormous
loss could be combated profitably  by
the use of insecticides and fungicides.
This would  result in an annual sav-
ing to  the agricultural interests of the
country  of $500,000,000. Prof. E.  D.
Sanderson, of the agricultural experi-
ment station in New Hampshire, and
president of the National Association
of  Entomologists, who  has probably
given  more consideration to this sub-
ject than any other one man, is author-
ity for this statement.
  Arsenate  of lead  is  probably used
more  extensively than anything else
for spraying fruit trees.  In the last
report of the Department of Agricul-
ture, the Bureau of Chemistry says:
  An investigation important to fruit growers
and orchardists was that in regard to the com-
position and burning  qualities of lead  arsenate
on the  market for spraying purposes. Two of
the  samples examined proved to be  composed
entirely of white arsenic, a compound which
would either kill the trees or seriously injure
them. (Yearbook, 1908, p. 561.)
  Doctor Smith, state entomologist of
New Jersey,  collected numerous sam-
ples of arsenate of lead which were for
sale in that State, and he found in 1908
that goods which should have had from
12  to  15 per cent of arsenic, which is
the killing ingredient, in them, ranged
all  the way from 4V2 per cent up to 20
per cent of arsenic. In nearly all cases
of insecticides the disparity is equally
great,  and in some cases much greater.
  One of the most serious injuries sus-
tained is in  the  use of Paris green,
which  contains soluble arsenic. If you
use arsenic  which  will  dissolve  in
water, it will burn the  foliage. It was
shown that in Maine  out of  four sam-
ples three were found with a percent-
age of soluble arsenic way beyond the
safety point.
  The same thing is true of fungicides.
In the Northwest one of the most ser-
ious pests in regard to the grain is the

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46
LEGAL COMPILATION—PESTICIDES
smut of oats, and that is largely con-
trolled by dipping the oats in a for-
maldehyde solution. Professor Bolley,
of North Dakota, who is one of the best
authorities on this subject, wrote Pro-
fessor Sanderson a letter which he pre-
sented at  the hearing,  and which dis-
closed  that there was  a  very serious
difficulty in  recommending this treat-
ment, because the formaldehyde, which
should be of a 40 per cent strength,
ran all the way from 10 per cent to 40
per cent. It can be readily seen that if
the recommendation of the scientists
is based upon a 40 per cent solution
and only a 10 per cent solution is used,
the result will be wholly unsatisfac-
tory. Therefore this bill seems a neces-
sity, not only to prevent adulteration
and fraud in insecticides and  fungi-
cides, but also to provide a standard-
ization of these remedies.
  Another fungicide which presents a
good many difficulties is the Bordeaux
mixtures; that is, the prepared  Bor-
deaux mixtures that are manufactured
and come in a paste  form.  A  great
many of these are not fraudulent in a
strict  sense, but they are manufac-
tured in such a way and sold at such
unreasonable  prices in  view of the
value  received from  them that  they
are practically fraudulent. They are
so low in strength in  some instances
that a man pays from four to eight
times the  value of the ingredients con-
tained.  If this  bill becomes a law, it
would  compel the  manufacturers  of
these fungicides to put  on the  label
what  is in  the  mixture,  and then a
prospective  purchaser could judge for
himself what it was worth.
   Those who have read the very excel-
lent report upon this bill submitted by
the gentleman from California  [Mr.
KNOWLAND], together  with the hear-
ings before the committee, have doubt-
less  noted that there are  numerous
instances of adulterated and  mis-
branded insecticides and  fungicides as
serious as the  few that I have  men-
tioned above. No unprejudiced  man
 can doubt, from all the evidence taken,
 that there is an imperative need for
 this law.
   The Department of Agriculture, the
 experiment stations, and the agricul-
 tural colleges can not successfully meet
 their duties if the users of insecticides
 and fungicides have no means of know-
 ing what the ingredients of the reme-
 dies  prescribed by the  entomologists
 and  plant pathologists  are. It is as
 though the  physician in  prescribing
 for his patients had no pharmacopoeia
 which insured the standardization of
 the drugs.
   The  Department of Agriculture is
 spending a  great deal  of money in
 working  out controls  for these pests,
 and  if, after they  are all worked out,
 we have not the remedies to recommend
 to the  people,  of  course  we are at a
 great disadvantage. One of the unfor-
 tunate consequences  of  the  present
 lack of system is that the farmer and
 gardener and orchardist, not  getting
 results by following the prescriptions
 of the scientists, lose all  confidence in
 scientific agriculture and thus  greatly
 reduce the yield of the products of the
 farm.
   We hear much these days about the
 increased cost of the  products of the
 soil. This is not confined to America
 alone, but is true in a measure through-
 out the world. The experience of the
 older nations has shown that intensive
 agriculture alone can  meet this condi-
 tion. At the close of the Franco-Prus-
 sian war Prance was almost bankrupt.
 It is now stated by eminent statistici-
 ans that Prance is the richest  country
 of Europe. All economists, so far as I
 know, attribute this largely to the in-
 tensive  system of agriculture  there
 maintained.
   Many eminent authorities in our own
 country  insist with much  force  that
 under our present methods of  agricul-
 ture in a short time we will be unable
 to feed our own people. If  we would
 avoid this appalling condition,  we, too,
 must practice a more intensive agricul-

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STATUTES AND LEGISLATIVE HISTORY
                                 47
ture.  But intensive agriculture is im-
possible without pure and standardized
insecticides and fungicides.
  A startling development of the times
is the constantly increasing percentage
of our people who live in cities. One of
the causes of this sinister tendency is
that life is found  more attractive by
the majority in the cities than upon
the farm. Intensive agriculture, involv-
ing as it does small farms, makes pos-
sible  small communities scattered all
over the land, where the near proxim-
ity of neighbors drives loneliness away
and makes for a more attractive farm
life. But the  orchard  and the truck
garden and the small farm will  not
prosper without scientific agriculture.
  We hear much of abandoned farms;
it is said that though once productive
they are now worn-out.  I saw fields in
Europe last autumn which were never
more  productive than now, and which
furnished food for the legions of Rome
in the early days of the Cassars.  It is
a shameful confession for us to make
that  American  lands,  once fruitful,
have  been worn out in the compara-
tively  brief  time in which they have
been cultivated. Such a  confession is
eloquent of the ignorance we have dis-
played in the past in the most ancient
of all  occupations.  If the methods of
farming which we  have hitherto em-
ployed be followed for another  half
century, the  Mississippi  Valley,  the
greatest granary  of  the world,  will
also be dotted with abandoned farms.
If this bill be passed, it will be a long
step toward the conservation of  the
soil, the greatest  of  all conservation
projects.
  Mr.   STEPHENS  of  Texas.  Mr.
Speaker, I hope that the gentleman
from Illinois  [Mr. MANN] will not in-
sist upon his point of order, but with-
draw it and permit my amendment to
become a part of this bill. This bill is
entitled "An act  for  preventing  the
manufacture,  sale, or transportation
of  adulterated  or  misbranded  Paris
greens, and so forth,  and for regulat-
ing traffic therein, and for other pur-
poses." Mr. Speaker, if you will strike
out the words "Paris green" and insert
in lieu thereof  "oleomargarine," you
would see that the titles and provisions
of the bills are almost identical. There-
fore I think that the amendment is
germane. Mr. Speaker, I desire to say
a few  words in favor of the repeal of
the iniquitous oleomargarine law now
on the statute books.
        *****
                           [p. 4918]
  Mr.  Chairman, this appeal, by one
of the plain people, should be sufficient
to convince this House and the country
that this oleomargarine law should be
repealed.
  The bill as amended was ordered to
a third reading, and  was accordingly
read the third time and passed.
  On motion of Mr. MANN, a motion to
reconsider the votes by which the vari-
ous bills reported from the Committee
on Interstate and Foreign Commerce
were passed to-day was ordered to lie
on the table.
                           [p. 4920]

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 48                             LEGAL COMPILATION—PESTICIDES

 Lla
4959
l.la (3) (c)  April 19: Senate agrees to House amendments, p.
4959
          [No Relevant Discussion on Pertinent Section]
 Lib  FEDERAL INSECTICIDE, FUNGICIDE, AND RODEN-
                         TICIDE ACT
                 June 25,1947, P.L. 80-104, 61 Stat. 163
 [Chapter 125]
                           AN ACT
 To regulate  the marketing of economic poisons and  devices, and for other
                            purposes.
   Be it enacted by the Senate and House of Representatives of the
 United  States of America in  Congress assembled,
                             TITLE
   SECTION 1. This Act may be cited as the "Federal Insecticide,
 Fungicide, and Rodenticide Act."
                          DEFINITIONS
   SEC. 2. For the purposes of this Act—
   a. The term "economic poison" means any substance  or mixture
 of substances intended for preventing, destroying,  repelling, or
 mitigating any insects, rodents, fungi, weeds,  and other forms of
                                                       [p. 163]
 plant or animal life or viruses, except viruses  on or in  living man
 or other animals, which the Secretary shall declare to be a pest.
   b. The term "device" means any instrument or contrivance in-
 tended for trapping, destroying, repelling, or mitigating insects or
 rodents or destroying,  repelling, or mitigating fungi or such other
 pests as may be designated by the Secretary, but not including
 equipment used for the application of economic poisons when sold
 separately therefrom.
   c. The term "insecticide" means any  substance or  mixture of
 substances intended for preventing, destroying, repelling, or miti-
 gating any insects which may be present in any environment what-
 soever.
   d. The term  "fungicide" means any substance or  mixture of
 substances  intended for  preventing, destroying,  repelling, or
 mitigating any fungi.
   e. The term "rodenticide" means any substance or  mixture of
 substances  intended for  preventing, destroying,  repelling, or
 mitigating-  rodents  or any other  vertebrate animal  which the
 Secretary shall declare to be a pest.
   f. The term  "herbicide" means any substance or  mixture of

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STATUTES AND LEGISLATIVE HISTORY                          49

substances  intended  for  preventing, destroying,  repelling, or
mitigating any weed.
  g. The term "weed" means any plant which grows where not
wanted.
  h. The term "insect" means any of the numerous small inverte-
brate animals generally  having the  body more or less obviously
segmented, for the most  part belonging to the class insecta, com-
prising six-legged, usually winged forms, as, for example, beetles,
bugs, bees, flies, and to other allied  classes of arthropods whose
members are wingless and usually have more than six legs, as, for
example, spiders, mites, ticks, centipedes, and wood lice.
  i.  The term "fungi" means all non-chlorophyll-bearing thallo-
phytes (that is, all non-chlorophyll-bearing plants of a lower order
than mosses and liverworts) as, for example,  rusts, smuts,  mil-
dews, molds, yeasts, and bacteria, except those on or in living man
or other animals.
  j.  The term "ingredient statement" means either—
       (1)  a statement of the name and percentage of each active
     ingredient,  together with  the total  percentage  of the inert
     ingredients, in the economic poison; or
       (2)  a statement of the name of each  active  ingredient,
     together with the name of each and total percentage of the
     inert ingredients, if any there  be,  in  the economic poison
     (except option 1 shall apply if the preparation is highly toxic
     to man, determined as provided in section 6 of this Act);
and, in addition to (1) or (2) in case  the economic poison contains
arsenic in any form, a statement of  the percentages of total and
water soluble arsenic, each calculated  as elemental arsenic.
  k. The term "active ingredient" means an ingredient which will
prevent,  destroy, repel, or mitigate insects, fungi, rodents, weeds
or other pests.
  1.  The term "inert ingredient" means an ingredient which  is
not active.
  m. The term  "antidote"  means a practical immediate treat-
ment in case of poisoning and includes first-aid treatment.
  n. The term "person"  means any individual, partnership, asso-
ciation, corporation,  or any organized group of persons whether
incorporated or not.
  o.  The term "Territory" means any Territory or possession of
the United States, excluding the Canal Zone.
  p. The term "Secretary" means the Secretary of Agriculture.
  q.  The term "registrant" means  the  person registering  any
economic poison pursuant to the provisions of this Act.     [p. 164]

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50                             LEGAL COMPILATION—PESTICIDES

  r. The term "label"  means the written,  printed,  or  graphic
matter on, or attached  to, the economic poison or device or the
immediate container thereof, and the outside container  or wrapper
of the retail package, if any there be, of the economic poison or
device.
  s. The term "labeling" means  all labels and  other written,
printed, or graphic matter—
       (1)  upon the economic poison or device or any of its con-
    tainers or wrappers;
       (2)  accompanying the economic poison or device at any
    time;
       (3)  to which reference is made on the label or in literature
    accompanying the economic poison or device, except to current
    official  publications of the United States Departments  of
    Agriculture and Interior, the United States Public Health
    Service, State experiment stations, State agricultural colleges,
    and other similar Federal or  State institutions  or agencies
    authorized by  law to conduct research in the field of eco-
    nomic poisons;
  t. The term "adulterated" shall apply to any economic poison if
its strength or purity falls below the professed standard or quality
as expressed on its labeling or under which it is sold, or if any
substance has been substituted wholly or in part for  the article,
or if any valuable constituent of the article has been wholly or in
part abstracted.
  u. The term "misbranded" shall apply—
       (1)  to any economic poison or device if its labeling bears
    any statement, design, or graphic  representation  relative
    thereto or to its ingredients which is false or misleading in
    any particular;
       (2)  to any economic poison—
            (a) if it is an imitation of or is offered for sale under
         the name of another economic poison;
            (b) if its labeling bears any reference to registration
         under this Act;
            (c) if the labeling accompanying it does not contain
         directions for use which are necessary and  if complied
         with adequate for the protection of the public;
            (d) if the label does not contain a warning or caution
         statement which may be  necessary  and if complied with
         adequate to prevent injury to living man and other verte-
         brate  animals,  vegetation,  and   useful  invertebrate
         animals;

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STATUTES AND LEGISLATIVE HISTORY                          51

           (e)  If the label does not bear an ingredient statement
         on that part of the immediate container and on the out-
         side container or wrapper, if there be one, through which
         the ingredient  statement on the  immediate  container
         cannot be clearly read, of  the  retail package which is
         presented  or displayed under customary conditions of
         purchase:  Provided, That the Secretary may permit the
         ingredient statement to appear prominently on some other
         part of the container, if the size or form of the container
         makes  it impracticable to  place it on the  part of  the
         retail  package which is presented  or displayed under
         customary conditions of purchase.
           f. if  any  word,  statement,  or  other   information
         required by or under authority of this Act to appear on
         the label or  labeling is not  prominently placed  thereon
         with such  conspicuousness  (as compared  with  other
         words, statements, designs,  or graphic matter in  the
         labeling) and in such terms as  to render it  likely  to be
         read and understood by the ordinary individual under
         customary conditions of purchase-and use; or
           (g) If in the case of an insecticide, fungicide, or herbi-
         cide when used as directed or in accordance with com-
         monly recognized practice it shall be injurious to living
         man or other vertebrate animals, or vegetation, except
         weeds, to which  it is applied, or to  the person applying
         such economic poison.
                                                       [p. 165]
                       PROHIBITED ACTS
  SEC. 3. (a) It shall be unlawful for any person to distribute, sell,
or offer for sale in any Territory or in the District of Columbia, or
to ship or deliver for shipment from any State, Territory, or the
District of Columbia to any other State, Territory, or  the District
of Columbia, or to any foreign country, or to receive in any State,
Territory, or the District of Columbia from any other State, Terri-
tory, or the District of Columbia, or foreign country, and having
so received, deliver or offer to  deliver in the original unbroken
package to any other person, any of the following:
  (1) Any economic poison which has not  been registered pur-
suant to the provisions of section 4 of this Act, or any economic
poison if any of the claims made for it or any of the directions for
its use differ in substance from the representations made in con-
nection with its registration, or if the composition of an economic
poison differs from its composition as represented in connection

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52                             LEGAL COMPILATION—PESTICIDES

with its registration: Provided, That  in the discretion  of  the
Secretary,  a change in the labeling or formula of an economic
poison may be made within a registration period without requiring
reregistration of the product,
  (2) Any economic poison unless it is in the registrant's or the
manufacturer's unbroken immediate container, and there is affixed
to such  container, and to the outside container or wrapper of the
retail package, if there be one through which the required informa-
tion on  the immediate container cannot be clearly read, a label
bearing—
       (a)  the name and address of the manufacturer, registrant,
    or person for whom manufactured;
       (b)  the name, brand, or trade-mark under  which  said
    article is sold; and
       (c)  the net weight or measure of the content: Provided,
    That the Secretary may permit reasonable variations.
  (3) Any economic poison which contains any  substance or sub-
stances  in  quantities highly toxic to man,  determined as provided
in section 6 of this Act, unless the label shall bear, in addition to
any other matter required by this Act—
       (a)  the skull and crossbones;
       (b)  the word "poison" prominently  (IN  RED) on a back-
    ground of distinctly contrasting color; and
       (c)  a statement of an antidote for the economic poison.
  (4) The economic  poisons commonly known  as  standard lead
arsenate, basic lead arsenate, calcium arsenate,  magnesium arse-
nate, zinc arsenate, zinc arsenite, sodium fluoride, sodium fluosili-
cate,  and  barium fluosilicate unless they have been distinctly
colored  or  discolored as provided by regulations issued in accord-
ance with  this Act, or any other white powder economic poison
which the  Secretary, after investigation of and  after public hear-
ing on the  necessity for such action for the protection  of the public
health and the feasibility of such coloration or discoloration, shall,
by  regulation, require to be distinctly colored or discolored, unless
it has been so colored or discolored: Provided, That the Secretary
may exempt any economic poison to the extent that it is intended
for a particular use  or  uses from the  coloring or discoloring
required or authorized by this section if he determines that such
coloring or discoloring for such use or uses is not necessary for the
protection of the public health.
   (5)  Any economic poison which is adulterated or misbranded
or any device which is misbranded.
                                                       [p. 166]

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STATUTES AND LEGISLATIVE HISTORY                          53

  b. Notwithstanding any other provision of this Act, no article
shall be deemed in violation of this Act when intended solely for
export to any foreign country and prepared  or packed according
to the specifications or directions of the foreign purchaser.
  c. It shall be unlawful—
       (1)  for any person to detach,  alter, deface, or destroy, in
    whole or in part, any label or labeling provided for in this Act
    or the rules and  regulations promulgated hereunder, or to add
    any substance to or take any substance from, an economic
    poison in a manner that may defeat the purpose of this Act;
       (2)  for any manufacturer, distributor, dealer, carrier, or
    other person to  refuse, upon a request in writing specifying
    the nature or kind of economic poison or device to which such
    request relates, to furnish to or permit any person designated
    by the Secretary to have access to and to copy such records as
    authorized by section 5 of this Act;
       (3)  for any person to give a guaranty or undertaking pro-
    vided for in section  7 which is false in any particular, except
    that a person  who receives and relies upon a guaranty autho-
    rized under section 7 may give a  guaranty to the same effect,
    which guaranty shall contain in addition to his own name and
    address the name and address of the person residing in the
    United  States from whom he received the guaranty or under-
    taking ; and
       (4)  for any  person to use for his own advantage  or to
    reveal, other than to the Secretary, or officials or employees of
    the United States Department of Agriculture, or other Fed-
    eral agencies, or to the courts in  response to a subpena, or to
    physicians,  and in  emergencies to  pharmacists  and  other
    qualified persons, for use in the  preparation of antidotes, in
    accordance  with such directions as the Secretary may pre-
    scribe,  any information  relative to  formulas of products
    acquired by authority of section 4  of this Act.
                         REGISTRATION
  SEC. 4. a. Every economic poison which is distributed,  sold, or
offered for sale in any Territory or the District of  Columbia, or
which is shipped or delivered for shipment from any State, Terri-
tory, or the  District  of Columbia to any other State, Territory, or
the District of Columbia, or which is received from any  foreign
country shall be registered with the Secretary: Provided, That
products which have the same formula, are manufactured by the
same person, the labeling of which contains the  same claims, and
the labels of which bear  a designation identifying the product as

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54                             LEGAL COMPILATION—PESTICIDES

the same economic poison may be registered as a single economic
poison; and additional names and labels shall be added by supple-
ment statements; the registrant shall file with the Secretary a
statement including—
       (1)  the name and address of the registrant and the name
     and address of the person  whose name will appear on  the
     label, if other than the registrant;
       (2)  the name of the economic poison;
       (3)  a complete copy of the labeling accompanying the eco-
     nomic poison and a statement of all claims to be made for it,
     including the directions for use; and
       (4)  if requested by the Secretary, a full description of the
     tests made and the results thereof upon which the claims are
     based.
  b. The Secretary, whenever he deems it necessary for the effec-
tive administration of this Act, may require the submission of the
complete formula  of  the  economic poison. If it  appears  to  the
                                                      [p. 167]
Secretary that the composition of the article is such as to warrant
the proposed claims for it and if the article and its labeling and
other material required to be submitted comply with the require-
ments of section 3 of this Act, he shall register it.
  c. If it does not appear to the Secretary that the article is such
as to warrant the proposed claims for it or if the article and its
labeling and other material required to be submitted do not comply
with the provisions of this Act, he shall notify the registrant of the
manner in which the article, labeling, or other material required to
be submitted fail to comply with the Act so as to afford the regis-
trant an opportunity to make the corrections necessary. If, upon
receipt of such notice, the registrant insists that such corrections
are not necessary and requests in writing that it be registered, the
Secretary shall register the article, under  protest,  and such regis-
tration shall be accompanied by a warning, in writing, to the regis-
trant of the apparent failure of the article to  comply with  the
provisions of this Act. In order to protect the public, the Secretary,
on his own motion,  may at any time, cancel the registration of an
economic poison and in lieu thereof issue a registration under pro-
test in accordance with the foregoing procedure. In no event shall
registration of an article, whether or not protested, be construed
as a defense for the commission of any offense  prohibited under
section 3 of this Act.
  d. Notwithstanding any other provision of this Act, registration
is not required in the case of an economic poison  shipped from one
plant to another plant operated by the same person and used solely

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STATUTES AND LEGISLATIVE HISTORY                          55

at such plant as a constituent part to make an economic poison
which is registered under this Act.
  e. The Secretary is authorized to cancel the registration of any
economic poison at the end of a period of five years following the
registration of such economic poison or at the end of any five-year
period thereafter, unless the registrant, prior to the expiration of
each such five-year period, requests in accordance with regulations
issued by the Secretary that such  registration be continued in
effect.
                      BOOKS AND RECORDS
  SEC. 5. For the purposes of enforcing the provisions of this Act,
any manufacturer, distributor, carrier, dealer, or any other person
who sells or offers for sale, delivers or offers for delivery, or who
receives or holds any economic poison or device subject to this Act,
shall, upon request of any employee of the United States Depart-
ment of Agriculture or any employee of any State, Territory, or
political subdivision, duly designated by the Secretary, furnish or
permit such person at all reasonable times to have access to, and to
copy all records showing the delivery, movement, or holding of such
economic poison or device, including the quantity, the date of ship-
ment and receipt, and the name of the consignor  and consignee;
and in the event of the inability of any person to produce records
containing such information, all  other records and  information
relating to such delivery, movement, or holding of the  economic
poison or device. Notwithstanding  this provision, however,  the
specific evidence obtained under this section shall not  be  used in a
criminal prosecution of the person from whom obtained.

                        ENFORCEMENT
  SEC. 6. a. The Secretary (except as otherwise provided in this
section) is authorized to make rules and regulations for carrying
out the provisions of this Act, including the collection and examina-
tion of samples of economic poisons and devices subject to this Act
                                                       [p.168]
and the determination and establishment of suitable  names to be
used in the ingredient  statement. The  Secretary  is,  in  addition,
authorized after opportunity for hearing—
       (1)  to declare a pest any form of plant or animal life or
    virus which  is injurious to plants, man,  domestic  animals,
    articles, or substances;
       (2)  to determine economic poisons,  and quantities of sub-
    stances contained in economic poisons,  which are  highly toxic
    to man; and
       (3)  to determine standards of coloring or  discoloring for

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56                             LEGAL COMPILATION—PESTICIDES

    economic poisons, and to subject  economic poisons to the
    requirements of section 3a (4) of this Act.
  b. The Secretary of the Treasury and the Secretary of Agricul-
ture shall jointly  prescribe regulations for the enforcement  of
section 10 of this Act.
  c. The examination of economic poisons or devices shall be made
in the United States Department of Agriculture or elsewhere as the
Secretary may designate for the purpose of determining from such
examination  whether they comply with the requirements of this
Act, and if it shall appear from  any such examination  that they
fail to comply with the requirements of this Act, the  Secretary
shall cause notice to be given to the person against whom criminal
proceedings are contemplated. Any person so notified shall be given
an opportunity to  present his views, either orally or in writing,
with  regard  to such  contemplated proceedings, and  if in the
opinion of the Secretary it appears that the  provisions of this Act
have been violated by such person, then the Secretary shall certify
the facts to the proper United States attorney, with a copy of the
results of the analysis or the examination of such article: Provided,
That nothing in this  Act shall be construed  as requiring the
Secretary to  report for prosecution or for the institution of libel
proceedings minor violations  of this Act whenever he believes
that the public interest will be adequately served  by a suitable
written notice of warning.
  d. It shall  be the duty of each United States attorney, to whom
the Secretary or his agents shall report any violation of this Act, to
cause appropriate proceedings to be commenced and prosecuted in
the proper courts of the United States without delay.
  e. The Secretary shall, by publication in such manner as he may
prescribe, give notice of all judgments entered in actions instituted
under the authority of this Act.
                          EXEMPTIONS
  SEC. 7. a. The penalties  provided for a violation of section 3a of
this Act shall not apply to—
       (1)  any person who establishes a guaranty signed by, and
     containing the name  and address of, the registrant or person
     residing in the United States from whom he purchased and
     received in good faith the article in the same unbroken pack-
     age, to the effect that the article was lawfully registered at
     the time of sale and delivery to him, and  that it complies
     with the other requirements of this Act, designating this Act.
     In such  case the guarantor  shall be subject to the penalties
     which would otherwise attach to the person holding the guar-

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STATUTES AND LEGISLATIVE HISTORY                          57

    anty under the provisions of this Act;
       (2)  any carrier while lawfully engaged in transporting an
    economic poison or device  if such carrier upon request by a
    person duly designated by the Secretary shall permit such per-
    son to copy all records showing the transactions in and move-
    ment of the articles;
                                                      [p. 169]
       (3)  to public officials while engaged in the performance of
    their official duties;
       (4)  to the manufacturer or shipper of an economic poison
    for experimental use only by or under the supervision of any
    Federal or State agency authorized by law to conduct research
    in the field of economic poisons; or by others if a permit has
    been obtained before shipment in accordance with regulations
    promulgated by the Secretary.
                          PENALTIES
  SEC. 8. a. Any person violating section 3a (1) of this Act shall
be guilty of a misdemeanor and shall on conviction be fined not
more than $1,000.
  b. Any person violating any provision other than section 3a (1)
of this Act shall be guilty of a misdemeanor and shall upon convic-
tion be fined not more than $500 for  the first offense, and on con-
viction for each subsequent offense be fined not more than $1,000
or imprisoned for not more than one year, or both such fine and
imprisonment: Provided,  That an offense committed more than
five years after the last previous conviction shall be considered a
first offense: And provided further, That in any case where a
registrant was issued a warning by the Secretary pursuant to the
provisions of section 4c of this Act, he shall in each instance upon
conviction for an offense concerning which he had been so warned,
be fined not more than $1,000 or imprisoned for not more than one
year, or both such fine and imprisonment; and the  registration of
the article with reference  to which  the  violation  occurred shall
terminate automatically. An article the registration of which has
been terminated may not again  be registered unless the article, its
labeling, and other material required to be submitted appear to the
Secretary to comply with all the requirements of this Act.
  c. Notwithstanding any other provision of this section,  in case
any person, with intent to defraud,  uses or reveals information
relative to formulas of products acquired under the  authority of
section 4 of this Act, he shall be fined not more than $10,000 or
imprisoned for not  more than three  years, or  both such fine and
imprisonment.

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58                             LEGAL COMPILATION—PESTICIDES

  d. When construing and enforcing the provisions of this Act, the
act, omission, or failure, of any officer, agent, or other person acting
for or employed by any person shall in every case be also deemed to
be the act, omission, or failure of such person as well as that of
the person employed.
                           SEIZURES
  SEC. 9. a. Any economic poison or device that is being transport-
ed from one State, Territory, or District to another, or, having been
transported, remains  unsold or in original  unbroken packages, or
that is sold or offered for sale in the District of Columbia or any
Territory, or that is  imported from a foreign country, shall  be
liable to be proceeded against in  any district court of  the United
States in this district  where it is found and seized for confiscation
by a process of libel for condemnation—
     (1)  in the case of an economic poison—
           (a)  if it is adulterated or misbranded;
           (b)  if it has not been registered pursuant  to the pro-
         visions of section 4 of this Act;
           (c)  if it  fails  to  bear on its  label  the information
         required by this Act; or
           (d)  if it is a white powder economic poison and  is not
         colored as required under this Act; or
     (2)  in the case of a device if it is misbranded.
                                                      [p-170]
  b. If the article is condemned it shall, after entry  of the decree,
be disposed of by destruction or sale as the court may direct and
the proceeds, if sold, less  the legal costs,  shall be paid into the
Treasury of the United States, but the article shall not be sold
contrary to the provisions  of this Act or of the laws of the  juris-
diction in which it is sold: Provided, That upon the payment  of the
costs of the libel proceedings and the execution and delivery of a
good and sufficient bond conditioned that the article shall not be
sold or otherwise disposed of contrary to the provisions of this Act
or the laws of any State, Territory,  or District in which sold, the
court may direct that  such articles be delivered  to the owner  there-
of. The proceedings of such libel cases shall conform, as near as
may be, to the proceedings in admiralty, except that either party
may demand trial by  jury of any issue of fact  joined in any case,
and all such proceedings shall be  at the suit of  and in the name of
the United States.
  c. When a decree of condemnation is entered against the article,
court costs and fees,  storage, and other proper expenses shall be
awarded against the person, if any, intervening as claimant  of the
article.

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STATUTES AND LEGISLATIVE HISTORY                          59

                           IMPORTS
  SEC. 10. The Secretary of the Treasury shall notify the Secretary
of Agriculture of the arrival of  economic poisons and devices
offered for importation and shall deliver to the Secretary of Agri-
culture, upon his request, samples  of economic poisons or devices
which are being  imported or offered for import into the  United
States, giving notice to the owner  or consignee, who may  appear
before the Secretary of Agriculture and  have the  right to intro-
duce testimony.  If it appears  from the examination of a  sample
that it is adulterated, or misbranded or otherwise violates the pro-
hibitions set forth in this Act, or is otherwise dangerous to the
health of the people of the United States, or is of a  kind forbidden
entry into or forbidden to be sold or restricted  in  sale  in the
country in which it is made or from which  it is exported, the said
article may be refused admission, and the Secretary of the Treas-
ury shall refuse  delivery to the consignee and shall cause the
destruction  of any goods refused delivery which shall  not  be
exported by the  consignee within three months from  the date of
notice of such refusal under such regulations as the Secretary of
the Treasury may prescribe: Provided, That the Secretary of the
Treasury may deliver to the consignee such goods pending examin-
ation  and decision in the matter  on execution of a  penal bond for
the amount of the full invoice value of such goods, together with
the duty thereon, and on refusal  to return such  goods for any
cause to the  custody of  the  Secretary  of the  Treasury, when
demanded, for the purpose of excluding them from  the country, or
for any other purpose, said consignee shall forfeit the full amount
of the bond: And provided further, That all charges for storage,
cartage, and labor on goods which  are refused admission or deliv-
ery shall be paid by the owner or consignee, and in default of such
payment shall constitute  a lien  against  any future importation
made by such owner or consignee.
                    DELEGATION OF DUTIES
  SEC. 11.  All authority vested in the  Secretary by virtue of the
provisions of this Act may with like force and effect be executed by
such employees of the United States Department of  Agriculture as
the Secretary may designate for the purpose.
                                                     [p. 171]
      AUTHORIZATION FOR APPROPRIATIONS AND EXPENDITURES
  SEC. 12.  a.  There is hereby authorized to be appropriated, out
of any moneys in the Treasury not otherwise appropriated,  such
sums as may be necessary for the purposes and administration of
this Act. In order to carry out the provisions of this  Act, which

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60                             LEGAL COMPILATION—PESTICIDES

take effect prior to the repeal of the Insecticide Act of 1910, appro-
priations available for the enforcement of such Act are authorized
to be made available.
  b. The Secretary is authorized from the funds appropriated for
this Act to make such expenditures as he deems necessary, includ-
ing rents, travel, supplies, books, samples, testing devices, furni-
ture, equipment, and such other expenses as may be necessary to
the administration of this Act.
                         COOPERATION
  SEC. 13. The Secretary is authorized to cooperate with any other
department  or agency of the Federal Government and  with the
official agricultural or other regulatory agency of any State, or any
State, Territory,  District, possession, or any political  subdivision
thereof, in carrying out the provisions of this Act,  and  in securing
uniformity of regulations.
                         SEPARABILITY
  SEC. 14. If any provision of this Act is declared unconstitutional,
or the applicability thereof to any person or circumstance is held
invalid, the constitutionality of the remainder of this Act and the
applicability thereof to  other persons and circumstances shall not
be affected thereby.
                        EFFECTIVE DATE
  SEC. 15. All  provisions  of  this Act,  except section  3, "Pro-
hibited Acts"; section 8,  "Penalties"; section 9,  "Seizures"; and
section 10, "Imports", shall take effect upon enactment,  and sec-
tions 3, 8, 9, and 10 of this Act shall take effect as follows: (1) As
to devices, upon enactment; (2) as to rodenticides and herbicides,
six months after enactment; and (3) as to insecticides, fungicides,
and all other economic poisons, one year after enactment: Pro-
vided, That the Secretary, upon application, may at any time within
one year after sections 3, 8, 9, and 10 of this Act become applicable
to devices, rodenticides and herbicides, and insecticides, fungicides,
and other economic poisons,  respectively, if he determines  that
such action will not be unduly detrimental to the public interest,
and is necessary to avoid hardship, exempt, under such terms and
conditions as he may  prescribe, any economic poison  from  the
provisions of this Act if such economic poison was labeled, shipped,
and delivered by the manufacturer thereof prior to the  time the
sections of this Act referred to above become applicable to such
economic poison  and in case the economic poison is an insecticide
or fungicide if its sale, delivery, or shipment has not been and will
not be in violation of the provisions of the Insecticide Act of 1910.

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STATUTES AND LEGISLATIVE HISTORY                          61

                           REPEALS
  SEC. 16. The Insecticide Act of 1910, approved April 26, 1910
(36 Stat. 331, 7 U.S.C. 121-134), is hereby repealed one year after
the date of the enactment of this Act: Provided, That, with respect
to violations, liabilities incurred, or appeals taken  prior to said
date, and with  respect to sales, shipments, or deliveries of insecti-
cides and fungicides under an exemption granted by the Secretary
under section 15, all provisions of the Insecticide Act of 1910 shall
be deemed to remain in full force  for  the purpose  of sustaining
                                                       [p. 172]
any proper suit, action, or other proceeding with respect to any
such violations, liabilities, appeals, or to such sales,  shipments, or
deliveries of insecticides and fungicides  exempted by the Secretary
under section 15.
  Approved June 25,1947.
                                                       [P. 173]
     Lib  (1)  HOUSE COMMITTEE  ON  AGRICULTURE
             H.R. REP. No. 313, 80th Cong.,  1st Sess. (1947)
    RELATING TO THE MARKETING  OF  ECONOMIC
                  POISONS  AND  DEVICES
APRIL 25,1947.—Committed to the Committee of the Whole House on the State
                of the Union and ordered to be printed
   Mr. HOPE, from the Committee on Agriculture, submitted the
                           following

                          REPORT
                     [To accompany H. R. 1237]
  The Committee on Agriculture, to whom was referred the bill
 (H. R. 1237) to regulate the marketing of economic poisons and
devices, and for other purposes, having considered the same, report
thereon with a  recommendation that it do pass, with the following
amendments:
  Page 2, line 6, strike out the words "or weeds".
  Page 6, line 11, strike out the word "instructions" and insert in
lieu thereof the word "directions".
  Page 7, line 2, strike out the semicolon and insert in lieu thereof
a colon and add the following :
  Provided, That the Secretary may permit the ingredient statement to appear
prominently on some other part of the container, if the size or form of the con-
tainer makes it impracticable to place it on the part of the retail package which
is presented or displayed under customary conditions of purchase.

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62                             LEGAL COMPILATION—PESTICIDES

  Page 8, line 4, insert after the phrase "deliver or offer to deliver"
the following:  "in the original unbroken package"; and insert a
comma after the word ' 'person''.  •
  Page 9, line 16, strike out the article "a".
  Page 14, line 14, insert a new subsection e. as follows:
  e. The Secretary is authorized to cancel the registration  of any economic
poison at the end of a period of five years following the registration of such
economic poison or at the end of any  five-year period thereafter, unless the
registrant, prior to the expiration of each such five-year  period,  requests in
accordance with regulations issued by the Secretary that such registration be
continued in effect.
  Page 15, line 15, strike out the period after the  word "Act" and
insert the following: "and the determination and establishment of
suitable names to be used in the ingredient statement."
  Page 18, line 22, strike out the word "of"  and insert in lieu there-
of the word "for".
                                                          [p.l]
  Page 18, line 23,  insert after  the figures "$1,000" and  before
the colon the following: "or imprisoned for  not more than one year,
or both such fine and imprisonment".
  Page 24, line 4, insert after the word "official" the following:
"agricultural or other".
                          STATEMENT
  The accompanying bill is intended  to replace  and  expand  the
protection  afforded by the present Insecticide Act  of 1910. That
law was enacted at a time when insecticides and  fungicides were
comparatively simple, consisting largely of  paris green, pyrethrum,
bordeaux mixture, and similar materials. Rodenticides and herbi-
cides were not then marketed to any great extent.
  Since 1910 great changes have occurred  in the field of economic
poisons, and the present law is now inadequate. New plant materials
and synthetic chemicals developed through research by both private
industry and the Government  have greatly increased the number
of economic poisons and the scope of their usefulness. An  important
example at the present  time is  DDT  (dichlorodiphenyltrichloro-
ethane), which is revolutionizing many phases of the insecticide
industry. Herbicides are becoming increasingly important in the
control and eradication of weeds as the result of the recent devel-
opment of 2-4-dichloro-phenoxy-acetic acid and  other synthetic
materials.
  This bill embraces,  in addition to insecticides and fungicides,
rodenticides, herbicides,  devices and preparations intended to con-
trol other forms of pests  which are not subject to the present Insec-

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STATUTES AND LEGISLATIVE HISTORY                          63

ticide  Act of 1910. Rodenticides are being marketed in  large
quantities and many of them are weak and ineffective and have
tended to imperil various rodent-control programs. The importance
of rodenticides can readily be appreciated when it is realized that
the  estimated  damage by rats alone  has  amounted to  some
$200,000,000 annually.
   Other important improvements and changes over the present
law which would be provided by this bill are as follows:
   (1)  A provision requiring the registration of economic poisons
prior to their sale or introduction  into  interstate or foreign
commerce.
   (2)  The  inclusion of provisions for protection  of  the  public
against poisoning by requiring prominently displayed poison warn-
ings on the labels of highly toxic economic poisons.
   (3)  A provision requiring the coloring or discoloring of dan-
gerous white powdered economic poisons to  prevent their being
mistaken for flour, sugar, salt,  baking powder  or  other  similar
articles commonly used in the preparation of foodstuffs.
   (4)  A requirement that warning or caution statements be con-
tained on the label of the economic poison to prevent injury to
living man, other vertebrate animals, vegetation, and useful inver-
tebrate animals.
   (5)  A provision requiring instructions for use to provide ade-
quate protection for the public.
   (6)  A provision declaring economic poisons to be  misbranded if
they are injurious to man, vertebrate animals, or vegetation, except
weeds, when properly used.
   (7)  A provision requiring information  to  be furnished with
respect to the delivery, movement, or holding of economic poisons
and devices.
   One of the principal provisions of the bill is the one providing for
the registration of economic poisons prior to their being marketed.
                                                        [p. 2]
It is believed that this provision  will provide additional protection
for the public, assist manufacturers in complying with the provi-
sions of the bill, and at the same time hold administrative costs to
a  minimum. Under the existing law,  the Administrator  has no
means of ascertaining or knowing  what  economic poisons are
being marketed, except by having a force of inspectors circulating
through the country picking up samples here and there, wherever
they may be found. Frequently, serious damage is suffered by
agricultural producers and other users of economic poisons through
the use of misbranded or adulterated economic poisons before the

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64                             LEGAL COMPILATION—PESTICIDES

enforcement officials have any knowledge of the existence of such
articles, or of their being offered to the public. Under this bill, any
economic poison subject to the provisions thereof will be brought
to the attention of  the  enforcement officials who will  have an
opportunity to become familiar with the formula, label, and claims
made with respect to any such economic poison before it is offered
to the public. It should be possible, therefore, in a great majority
of instances, to prevent false and misleading claims, and to prevent
worthless articles from being marketed, and to provide a means of
obtaining speedy remedial action if any such articles are marketed.
Thus, a  great measure  of protection can  be accorded directly
through  the prevention of injury, rather than having to  resort
solely to the imposition of sanctions for violations after damage or
injury has been done. Registration will also  afford manufacturers
an opportunity to eliminate many objectionable features from their
labels prior to placing an economic poison on the market.
   The bill in most of its provisions is in accord with and supple-
ments the provisions of  the proposed uniform State Insecticide,
Fungicide, and Rodenticide Act which has been recommended for
adoption by the Council of State Governments. It is believed that
the enactment of this bill will greatly facilitate the coordination of
work in this field among the States and with the Federal Govern-
ment. It is highly desirable that laws governing economic poisons
be as nearly uniform as  possible consistent with  the need for the
protection of the public,  so that manufacturers may have Nation-
wide distribution with a  minimum of conflict between the labeling
requirements of the various laws.
                     ANALYSIS OF THE BILL
   Section 1: The act may be cited as the "Federal Insecticide, Fun-
gicide, and Rodenticide Act."
   Section 2:  This section contains definitions. Included under the
term "economic poison" are preparations intended for use against
insects, rodents, fungi, weeds, and other forms of plant or animal
life or viruses which the Secretary of Agriculture may declare to
be a pest. The term "device" means any instrument or contrivance
intended for use against insects, rodents, or fungi, or other pests
which may be designated as such by the Secretary but does not
include equipment  used  for the application of economic poisons
when sold separately therefrom.
   The term "rodenticides" would include not only preparations for
the control of animals ordinarily known as rodents, but also those
suitable for the control of any vertebrate animal which the Secre-
tary might declare to be a pest.

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STATUTES AND LEGISLATIVE HISTORY                         65

  The term "ingredient statement" includes either a statement of
the name and percentage of each active ingredient, together with
                                                         [p. 3]
the total percentage of the inert ingredients, or a statement of the
name of each active ingredient, together with the name of each and
the total percentage of the inert ingredients, except that when the
product contains a material which is highly toxic to man the first
alternative must be used.
  The term "label" as used in the bill refers not only to the printed
matter on the immediate container of the economic poison or device,
but also on the outside container or wrapper of the retail package
in which it may be packed.
  The term "labeling" includes the label, as well as any printed
matter  accompanying the  economic poison at any time. It also
includes any written matter to which reference is made on  the
label, or literature accompanying the economic poison or device,
except  references to current official publications of the United
States Departments of Agriculture and Interior, the United States
Public Health Service, State experiment stations, State agricultural
colleges, and other similar Federal or State institutions or  agen-
cies authorized by law to conduct research in the field of economic
poisons.
  "Misbranding" as used in this bill includes essentially the same
elements as are included  under the present Insecticide Act of 1910,
but in addition thereto an economic poison is misbranded if it bears
any reference to registration  under the act,  if the label does not
contain instructions for use which are necessary and adequate for
the protection of the public, or if it does not bear an adequate warn-
ing or caution statement. Any reference to registration is required
to be omitted from the label, because such reference might be
construed as an endorsement of the article by the Department of
Agriculture and the bill specifically provides that registration may
not be construed as a defense for the commission of any offense
prohibited by the act. Under the provisions of the bill an article is
misbranded if the label does not bear an ingredient statement on
that part of the retail package which  is presented or displayed
under customary conditions  of  purchase, but the Secretary is
authorized to permit ingredient statements to appear prominently
on some other part of the container if he deems it impracticable to
have such statement placed on the part of the  container which is
presented or displayed under customary conditions of purchase.
  An economic poison which causes injury to plants is now declared
to be misbranded instead of adulterated, and  this provision  has

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66                             LEGAL COMPILATION—PESTICIDES

been broadened to include  injuries to living man or other verte-
brate animals.
  Section 3: The prohibited acts include the marketing of any eco-
nomic poison which is not registered, or which contains any claim
or claims made for it or any directions for its use which differ in
substance from the representations made to the Secretary of Agri-
culture at the time of the product's registration, or if the product's
composition differs from the composition represented for it to the
Secretary of Agriculture at the time of registration, or  the label of
which does  not bear the name and address of  the  manufacturer,
registrant, or person for whom manufactured, the name, brand or
trade-mark  under which the article is sold and the net weight or
measure of the content. In addition, labels on certain highly toxic
substances must bear the skull and crossbones, the word "poison",
and an antidote statement; and certain white powdered economic
poisons are required to be colored or discolored to avoid their being
                                                         [p. 4]
mistaken for food products.  Provisions similar to those of the
present act prohibiting the shipment of adulterated  or misbranded
economic poisons  are  continued in effect.  Devices must not  be
misbranded.
   Detaching, altering, destroying  or defacing labels in a manner
that may defeat the purpose of the act, or the refusal to give certain
information relative to interstate shipment of economic poisons, or
the giving of false guaranties are prohibited. The disclosure of
certain information furnished confidentially by  a  manufacturer,
except to certain authorized persons, is also prohibited.
   The committee  amendment adding the  words "in  the  original
unbroken package" after the phrase "deliver or offer to deliver" on
page 8, line 4, in section 3  (a)  is intended to eliminate any question
as to the constitutionality of that  section. As the language read it
would prohibit the resale of any economic poison which has been
received in interstate commerce unless it is sold in the manufactur-
er's unbroken immediate container. The effect of the change will be
to make unlawful the resale in the  original unbroken package of an
economic poison received in interstate commerce unless the provi-
sions of the section are complied with, but to exclude from the
requirements of such section resales of such economic poisons after
repackaging.
   Section 4: Registration is required for every economic poison. If
the labeling or the article does not  appear to comply with the provi-
sions of the act, the person seeking to register the  article is to be
notified to that effect and given an opportunity to make necessary

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STATUTES AND LEGISLATIVE HISTORY                          67

modifications. This will probably result in immediate correction in
the majority of instances. However, if the registrant insists that no
modifications  are necessary, the article  may be registered under
protest, in which case the registrant will be subject to additional
penalties if found guilty of violating provisions of the Act. In no
event, however, is registration  intended to give immunity for a
violation, since registration is essentially a device to bring to the
attention  of the  Secretary  of  Agriculture the economic  poisons
which are being marketed, their composition, and the claims made
therefor.  It is not  intended that registration should  relieve a
manufacturer from the responsibility of  seeing that his product is
all that he represents it to be. The Secretary is authorized to cancel
the registration of any economic poison at the end of a period of 5
years following the registration thereof, or at the end of any 5-year
period thereafter, unless the registrant prior to the expiration of
each such  5-year period requests  in  accordance with regulations
issued by the Secretary that the registration be continued in effect.
This provision will have the effect of keeping  registrations up to
date.
  Section 5: This section authorizes limited examination of books
and records. It is similar to a provision  contained in the Federal
Food, Drug, and Cosmetic Act.
  Section 6: This section authorizes the Secretary of Agriculture to
make such rules and regulations as may be necessary for the effec-
tive administration  and enforcement of  the  act, including the
determination and establishment of suitable names to be  used in
ingredient statements. In addition thereto, it authorizes the Secre-
tary, after opportunity for hearing, to include as pests any form of
plant,  animal life or  virus which  is injurious to  plants,  man,
domestic animals, articles, or substances in addition to those spe-
cifically included under the definition of economic poison; to deter-
                                                         [p.5]
mine the substances which are highly toxic to man when contained
in economic poisons; and to determine  standards of coloring or
discoloring for economic poisons. Other  provisions of this section
are similar to those contained in the Insecticide Act of 1910.
  Section 7: This section makes provision for exemption for any
person who establishes a guaranty to the effect that the economic
poison complies with the provisions of the act. It also exempts from
penalties  carriers who  comply with provisions of the act, public
officials in the performance of their official duties, and shippers of
economic poisons for experimental use by or under the supervision
of certain Federal or  State agencies, or by  others who  obtain
permits for such shipments.

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68                             LEGAL COMPILATION—PESTICIDES

  Section 8: This section provides penalties for violations of the act.
  Section 9: The provisions providing for seizures are substantially
similar to the provisions of the Insecticide Act of 1910.
  Section 10: This section relates to imports and is substantially
the same as the provisions contained in the present law.
  Section 11: This section authorizes the Secretary of Agriculture
to delegate his authority under this bill to any employee of the
Department of Agriculture.
  Section 12: This section contains an authorization for appropria-
tions and expenditures for the administration and enforcement of
the act.
  Section 13: This section authorizes the Secretary of Agriculture
to cooperate with other Federal governmental  agencies,  and with
official agricultural or other regulatory agencies of States or Terri-
tories, or other political subdivisions, in carrying out the provisions
of the act, and in securing, as far as possible, uniformity of regula-
tions among all such agencies.
  Section 14: This section contains the usual separability clause.
  Section 15: This section sets forth the  date upon which the vari-
ous sections become effective. The sections take effect at different
times in order to permit the holding of hearings, the preparation
of regulations, and such other  administrative action as may be
necessary.  Under certain circumstances, the Secretary is author-
ized to exempt  for a limited period particular economic poisons
from the provisions of the act.
  Section 16: This section provides for the repeal of the Insecticide
Act of 1910, but contains a saving clause for the purpose of sustain-
ing any proper suit,  action or  other proceeding with  respect to
violations of that act.
                          CONCLUSION
  In conclusion it should be stated that the record before this com-
mittee demonstrates remarkable unanimity of opinion among farm
organizations, industrial groups, entomologists,  and Government
officials, showing the need for legislation of this character. This bill
has been considered by representatives of the Agricultural Insecti-
cide and Fungicide Association; the National Association of Insec-
ticide  and Disinfectant  Manufacturers,  Inc.; the  American
Association of Economic Entomologists; the National Association
of Commissioners, Secretaries, and Directors of Agriculture; the
American Farm Bureau Federation; the  National Grange; the
National Council of Farmer Cooperatives; the International Apple
Association; the Inter-State Manufacturers Association; the Pacific
                                                         [p. 6]

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STATUTES AND LEGISLATIVE HISTORY                           69

Insecticide  Institute; the  Farmers  Education  and  Cooperative
Union of America; the  Department of Agriculture;  the Depart-
ment of  the  Interior, and by others. These  organizations are
strongly in favor of new legislation  in this field and  in the main
are in accord with the bill as written.
   In compliance with clause 2a of rule XIII of the House of Repre-
sentatives, there is set forth below in black brackets the entire text
of the Insecticide Act of 1910  (36 Stat. 331, 7  U.S.C.  121-134),
which this bill would repeal:
     *******
                                                          [p. 7]

Lib  (2)    SENATE COMMITTEE  ON  AGRICULTURE AND
                          FORESTRY
              S. REP. No. 199, 80th Cong., 1st Sess. (1947)
     REGULATING THE MARKETING OF  ECONOMIC
                   POISONS AND DEVICES
      MAY 26 (legislative day, APRIL 21), 1947.—Ordered to be printed
Mr. CAPPER, from the Committee on Agriculture and Forestry, sub-
                      mitted the following
                          REPORT
                     [To accompany H.K. 1237]
  The Committee  on Agriculture and Forestry, to whom was
referred the bill (H. R. 1237) to regulate the marketing of econom-
ic poisons and devices, and for other purposes, having considered
same, report thereon with  a recommendation that it do pass with-
out amendment.
  The report of the House of Representatives  (H. Rept.  No. 313)
on the bill is attached hereto and made a part of said report.
                [H Rept. No. 313, 80th Cong., 1st Sess.]
  The Committee on Agriculture, to whom was referred the bill (H.R. 1237)
to regulate the marketing of  economic poisons and devices, and for other
purposes, having considered the same, report thereon with a recommendation
that it do pass, with the following amendments:
  Page 2, line 6, strike out the words "or weeds".
  Page 6, line 11, strike out the word "instructions" and insert in lieu thereof
the word "directions".
  Page 7, line 2, strike out the semicolon and insert in lieu thereof a colon and
add the following: "Provided, That the Secretary may permit the ingredient
statement to appear prominently on some other part of the container, if the

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70                                  LEGAL COMPILATION—PESTICIDES

size or form of the container makes it impracticable to place it on the part of
the retail package which is presented or displayed under customary conditions
of purchase."
  Page 8, line 4, insert after the phrase "deliver or offer to deliver" the follow-
ing:  "in the original unbroken package"; and insert a comma after the word
"person".
  Page 9, line 16, strike out the article "a".
  Page 14, line 14, insert a new subsection e, as follows:
  "e. The Secretary is authorized to cancel the registration of any economic
poison at the  end of a period of five years following the registration of such
economic poison or at the end of any five-year period thereafter unless  the
registrant, prior to the expiration of each such five-year period, requests in
accordance with regulations issued by the Secretary that such registration be
continued in effect."
  Page 15, line 15,  strike  out the period after the word "Act" and insert the
following: "and the determination and establishment of suitable names to be
used in the ingredient  statement."
                                                                   [P-I]
  Page 18, line 22, strike out the word "of" and insert in lieu thereof the word
"for".
  Page 18, line 23, insert after the figures "$1,000" and before  the colon the
following: "or imprisoned for not more than one year, or both such fine and
imprisonment".
  Page 24, line 4, insert after the word "official" the following:  "agricultural
or other".
                               STATEMENT
  The accompanying bill is intended  to replace and expand the protection
afforded by the present Insecticide Act of 1910. That law was enacted at a time
when insecticides and fungicides were comparatively simple, consisting largely
of paris green, pyrethrum, bordeau mixture, and similar materials.  Rodenti-
cides and herbicides were not then marketed to any great extent.
  Since 1910 great changes have occurred in the field of economic poisons, and
the present law is now inadequate. New plant materials and synthetic chem-
icals developed through research by both private industry and the Government
have greatly increased the number of economic poisons and the scope of their
usefulness. An important example at  the  present time is DDT (dichlorodi-
phenyltrichloroethane), which  is revolutionizing many phases of the insecti-
cide  industry. Herbicides  are becoming increasingly important  in the control
and  eradication  of weeds as the result of  the recent development of 2-4-
dichloro-phenoxy-acetic acid and other synthetic materials.
  This bill embraces, in addition to insecticides and  fungicides, rodenticides,
herbicides, devices and preparations intended to control other forms of pests
which are not subject to the present Insecticide Act of 1910. Rodenticides are
being marketed in large quantities and many of them  are weak and ineffective
and  have tended to imperil various rodent-control programs. The importance
of rodenticides can readily be appreciated when it is realized that the estimated
damage by rats alone  has amounted to some $200,000,000 annually.
  Other  important improvements and  changes over the present law  which
would be provided by  this bill are as follows :
   (1)  A provision requiring the registration of economic poisons prior to their
sale  or introduction into interstate or foreign commerce.

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STATUTES AND LEGISLATIVE HISTORY                              71

   (2)  The inclusion of provisions for protection of the public against poison-
ing by requiring prominently displayed poison warnings on the labels of highly
toxic economic poisons.
   (3)  A provision requiring the  coloring or discoloring of dangerous white
powdered economic poisons to prevent their being mistaken for flour, sugar,
salt, baking powder or other similar articles commonly used in  the preparation
of foodstuffs.
   (4)  A requirement that warning or caution statements be contained on the
label of the economic poison to prevent injury to living man,  other vertebrate
animals, vegetation, and useful invertebrate animals.
   (5)  A provision requiring instructions for use to provide adequate protec-
tion for the public.
   (6)  A provision declaring economic poisons to  be misbranded if they are
injurious to man, vertebrate animals, or vegetation, except weeds, when prop-
erly used.
   (7)  A provision requiring information to be furnished with respect to the
delivery, movement, or holding of economic poisons and devices.
   One of the principal provisions of the bill is the one providing for the regis-
tration of  economic poisons prior  to their being marketed. It  is believed that
this provision will provide additional protection for the public, assist manu-
facturers in complying  with the provisions of the bill, and at the same time
hold administrative costs to a minimum. Under the existing law, the Adminis-
trator has  no means of ascertaining or  knowing what economic poisons are
being marketed, except by having a force of inspectors circulating through the
country picking up  samples here and there, wherever they  may  be found.
Frequently, serious damage  is suffered by agricultural producers  and other
users  of economic poisons through the  use of  misbranded  or adulterated
economic poisons before the enforcement officials have any knowledge of the
existence of such articles, or of their being offered to the public. Under this bill,
any economic poison subject to  the provisions thereof will be brought to the
attention of the enforcement officials who will have an opportunity to become
familiar with the formula, label, and  claims made with respect to  any  such
economic poison before  it is offered to the public. It should be possible, there-
fore, in a great majority of instances, to prevent false and misleading claims,
                                                                   [p. 2]
and to prevent worthless articles from being marketed, and to provide a means
of obtaining speedy remedial action if any such articles are marketed. Thus, a
great measure of protection can be accorded directly through the prevention of
injury, rather than having to resort solely to the imposition  of sanctions for
violations after damage or injury has been done. Registration will also afford
manufacturers an opportunity to eliminate many objectionable features from
their labels prior to placing an economic poison on the market.
  The  bill  in most of its provisions is in accord  with and supplements the
provisions  of the proposed uniform State Insecticide,  Fungicide, and Rodenti-
cide Act which has been recommended for  adoption by the Council of State
Governments. It is believed that the enactment of this bill will greatly facilitate
the coordination of work in this field among the States and with the Federal
Government. It is highly desirable that laws governing economic poisons be as
nearly uniform as possible consistent with the need  for the protection of the
public, so that manufacturers may have Nation-wide distribution with a mini-
mum of conflict between  the labeling requirements of the various laws.

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72                                  LEGAL COMPILATION—PESTICIDES

                          ANALYSIS OF THE BILL
  Section 1: The act may be cited as the "Federal Insecticide, Fungicide, and
Rodenticide Act."
  Section 2:  This  section contains definitions. Included under the term "eco-
nomic poison" are preparations intended for use against insects, rodents, fungi,
weeds, and other forms of plant or animal life or viruses which the Secretary
of Agriculture may declare to be a pest. The term "device" means any instru-
ment or contrivance intended for use against insects, rodents, or fungi, or other
pests which may be designated as such by the Secretary but does not include
equipment used  for the application of  economic  poisons when sold separately
therefrom.
  The  term "rodenticides" would include not only preparations for the control
of animals ordinarily known as rodents, but also those suitable for the control
of any vertebrate animal which the Secretary might declare to be a pest.
  The  term "ingredient  statement" includes either a statement of the name
and percentage of  each active ingredient, together wi'th the total percentage of
the inert ingredients, or a statement of the name of each active ingredient,
together with the  name of each and the total percentage of the inert ingredi-
ents, except that when the product contains a material which  is highly toxic to
man the first alternative must be used.
  The  term "label" as used in the bill refers not only to the printed matter on
the  immediate  container of  the economic  poison or  device, but also on the
outside container or wrapper of the retail package in  which it may be packed.
  The term "labeling" includes the label, as well as any printed matter accom-
panying the economic poison at any time. It also includes any written matter
to which reference is made on the label, or literature accompanying the eco-
nomic  poison or device, except references to current official publications of the
United States  Departments  of Agriculture and Interior, the United States
Public Health Service, State experiment stations, State agricultural colleges,
and other similar  Federal or State institutions or agencies authorized by law
to conduct research in the field of economic poisons.
   "Misbranding"  as used in this bill includes essentially the  same elements as
are included under the present Insecticide Act of 1910, but in addition thereto
an economic poison is misbranded if it bears any reference to registration
under  the  act,  if  the label does not contain  instructions for use  which are
necesssary and  adequate for the protection of the public, or if it does not bear
an adequate warning or caution statement. Any reference to registration  is
required to be omitted from the label, because  such  reference might be con-
strued as an endorsement of the article by the Department of Agriculture and
the bill specifically provides that registration  may  not be construed as a
defense for the commission  of any offense prohibited  by the act.  Under the
provisions of the  bill, an article is misbranded if the label  does not bear an
ingredient statement on that part of the retail package which is presented  or
displayed under customary conditions of purchase, but the Secretary is author-
ized to permit ingredient statements to appear prominently on some other part
 of the container if he deems  it impracticable to have such statement placed on
 the part of  the container which is presented or displayed  under customary
 conditions of purchase.
   An  economic  poison which causes injury to plants is now declared to be mis-
 branded instead  of  adulterated, and this  provision  has been broadened  to
 include injuries to living man or other vertebrate animals.
                                                                    [p. 3]

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STATUTES AND LEGISLATIVE HISTORY                               73

  Section 3:  The prohibited acts include the marketing of any economic poison
which is not  registered, or which contains any claim or claims made for it or
any directions for its use which differ in substance from the representations
made to the Secretary of Agriculture at the time of the product's registration,
or if the product's composition differs from the composition represented for it
to the Secretary of Agriculture at the time of registration, or the label of
which does not bear the name and address of the manufacturer, registrant, or
person for whom manufactured, the name, brand, or trade-mark under which
the article is sold and the net weight or measure of the content. In addition,
labels on certain highly toxic substances must bear the skull and crossbones,
the word "poison," and an antidote  statement;  and certain  white powdered
economic poisons are required to be colored or discolored to avoid their being
mistaken  for food products.  Provisions similar to  those  of  the  present  act
prohibiting the  shipment  of  adulterated or misbranded  economic poisons  are
continued in effect. Devices must not be misbranded.
  Detaching, altering, destroying,  or defacing labels in a manner that may
defeat the purpose of the act, or the refusal to give certain information relative
to interstate shipment of economic poisons, or the giving  of false  guaranties
are prohibited. The disclosure of certain information furnished confidentially
by a manufacturer, except to certain authorized persons, is also prohibited.
  The committee  amendment adding the words "in the  original unbroken
package" after  the phrase "deliver or offer  to  deliver" on page 8, line 4, in
section 3 (a) is intended to eliminate any question as to the constitutionality of
that section. As  the language read it would prohibit the resale of any economic
poison which has been received in interstate commerce unless it is  sold in  the
manufacturer's  unbroken immediate  container. The  effect of the change will
be  to make  unlawful the resale  in  the  original unbroken package  of an
economic poison received  in interstate commerce unless the provisions of  the
section are complied with, but to exclude from the requirements of such section
resales of such economic poisons after repackaging.
  Section 4: Registration is required  for every economic poison. If the labeling
or the article does not  appear  to comply with the provisions of the act,  the
person seeking to register the article is to be notified to that effect and given an
opportunity to  make necessary modifications.  This will  probably result in
immediate correction in the majority of instances. However, if the  registrant
insists that no modifications are necessary, the article may be registered under
protest, in which case the registrant will be subject  to additional penalties if
found guilty of violating provisions of the Act. In no event, however, is regis-
tration  intended to give immunity  for a violation, since registration is essen-
tially a device to bring to the attention of the Secretary of Agriculture  the
economic poisons which are being marketed,  their composition, and the claims
made therefor. It is not intended that registration should relieve a manufac-
turer from the responsibility of seeing that his product is all that he represents
it to be. The Secretary is authorized to cancel the registration of any economic
poison at the end of a period  of 5 years following the registration  thereof, or
at the end of any 5-year period thereafter, unless the registrant prior to  the
expiration of each such 5-year period requests in accordance with regulations
issued by the Secretary  that the registration be continued  in effect. This
provision will have the effect of keeping registrations up to date.
  Section 5:  This section authorizes limited examination of books and records.
It is similar to a provision contained  in the Federal Food, Drug, and Cosmetic
Act.

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74                                  LEGAL COMPILATION—PESTICIDES

  Section 6: This section authorizes the Secretary of Agriculture to make such
rules and regulations as may be necessary for the effective administration and
enforcement of the act, including the  determination  and establishment of
suitable  names to be used in  ingredient statements. In addition thereto, it
authorizes the Secretary, after opportunity for hearing, to include as pests any
form of plant, animal life or virus which is injurious to plants, man, domestic
animals, articles, or substances in addition to those specifically included under
the definition of economic poison; to determine the substances which are highly
toxic to man when contained in economic poisons; and to determine standards
of coloring or discoloring for economic poisons. Other provisions of this section
are similar to those contained in the Insecticide Act of 1910.
  Section 7:  This section makes provision for exemption for any person who
establishes a guaranty to the effect that the economic poison complies with the
provisions of the act. It also exempts from penalties carriers who comply with
provisions of the act, public officials in the performance of their  official duties,
and shippers of economic poisons for  experimental  use  by or under the super-
vision of certain Federal or State agencies, or by others  who obtain permits for
such shipments.
                                                                   [p. 4]
  Section 8: This section provides penalties for violations of the act.
  Section 9:  The provisions providing for seizures are substantially similar to
the provisions of the Insecticide Act of 1910.
  Section 10:  This section relates to  imports  and is substantially the same as
the provisions contained in the present law.
  Section 11:  This section authorizes the Secretary of Agriculture to delegate
his authority under this bill to any employee of the Department of Agriculture.
  Section 12: This section contains an  authorization for appropriations and
expenditures for the administration and  enforcement of the act.
  Section 13:  This section authorizes the Secretary of Agriculture to cooper-
ate with other Federal governmental agencies, and with official agricultural or
other regulatory agencies of States or Territories, or  other political subdivi-
sions, in carrying out the provisions of the  act, and  in securing, as far as
possible, uniformity of regulations among all such agencies.
   Section 14: This section contains the usual separability clause.
   Section 15:  This section sets forth the date upon which the various sections
become effective. The sections take effect at different times in order to permit
the holding  of hearings,  the preparation  of regulations,  and  such  other
administrative action as may be necessary. Under certain circumstances, the
Secretary is authorized to  exempt for  a  limited period particular economic
poisons from the provisions of  the act.
   Section 16: This section provides for the repeal of the  Insecticide Act of
1910, but contains a saving  clause for the purpose of sustaining any proper
suit, action or other proceeding with respect to violations of that act.

                                CONCLUSION
   In  conclusion it should be  stated that the record  before this committee
demonstrates  remarkable  unanimity of opinion among farm  organizations,
industrial groups, entomologists, and Government officials, showing the need
for legislation  of this character. This bill has been considered by representa-
tives of the Agricultural Insecticide and Fungicide Association; the National
Association of Insecticide and Disinfectant Manufacturers, Inc.;  the American
Association of  Economic Entomologists;  the National Association of Com-

-------
 STATUTES AND LEGISLATIVE HISTORY
                                75
 missioners, Secretaries, and Directors  of  Agriculture; the American Farm
 Bureau Federation; the National Grange; the National  Council of Farmer
 Cooperatives; the International Apple Association; the Inter-State  Manufac-
 turers Association; the Pacific Insecticide  Institute; the Farmers Education
 and  Cooperative  Union of  America; the Department of Agriculture; the
 Department of the Interior, and by others. These organizations are strongly in
 favor of new legislation in this field and in the main are in accord with the bill
 as written.
    In compliance with clause 2a of rule XIII of the House of Representatives,
 there is set forth below in black brackets the entire text of the Insecticide Act
 of 1910 (36 Stat. 331, 7 U. S. C. 121-134), which this bill would repeal:
     Lib (3)  CONGRESSIONAL
Lib (3) (a) May 12: Passed House,
   MARKETING OF ECONOMIC
     POISONS AND DEVICES
  The Clerk called the bill (H. R. 1237)
to regulate the marketing of economic
poisons and devices, and for other pur-
poses.
  The SPEAKER. Is there objection to
the present consideration of the bill?
  Mr. COLE of New York. Mr. Speak-
er, reserving the right to object, when
I first saw this bill  it was my judg-
ment that it was of such a nature and
volume that it should be obliged to lie
over for a while so that the Members
could have an  opportunity to study it
and  the public generally understand
its  provisions.  The  gentleman from
Minnesota  [Mr. ANDRESEN]  assures
me that the bill is very important, and
although there are several  other bills
still  on  the  Consent  Calendar  to be
called, some of which are deserving of
further explanation,  I will  not ask to
have it passed over at this time if the
gentleman from Minnesota can give
us any assuring explanation.
  Mr. AUGUST H. ANDRESEN. Mr.
Speaker, this is an important bill. It is
a highly technical bill, and for the pro-
tection of the public.  The bill proposes
to replace and expand the Insecticide
Act of 1910; in other words, to bring
the  present  insecticide law down to
date so that the Federal Government
can have some jurisdiction over many
                             [p. 5]
 RECORD VOL. 93 (1947)
pp.5050-5055
new insecticides that have been perfec-
ted during the past few years.
  I will make a brief  explanation of
the bill. The Insecticide Act of 1910
was enacted at a time when insecticides
and  fungicides  were  comparatively
simple,  consisting  largely  of paris
green, pyretKrum, bordeaux mixture,
and  similar  materials. Rodenticides
and herbicides were not then marketed
to any great extent.
  Since 1910 great changes have oc-
curred in the field of economic poisons,
and the present law is now inadequate.
New  plant  materials  and  synthetic
chemicals  developed through research
by both private industry and the Gov-
ernment  have greatly increased the
number of economic poisons and the
scope of  their usefulness. An impor-
tant example  at  the present  time is
DDT   (dichlorodiphenyltrichloroe-
thane), which  is revolutionizing many
phases of the insecticide industry. Herb-
icides are becoming increasingly im-
portant in the control  and eradication
of weeds  as the result of the recent
development of 2-4-dichloro-phenoxy-
acetic  acid and  other synthetic ma-
terials.
  This bill embraces, in addition to in-
secticides  and fungicides, rodenticides,
herbicides, devices  and preparations
intended   to control other forms  of
pests  which are  not   subject to the

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76
LEGAL COMPILATION—PESTICIDES
present Insecticide  Act of 1910. Eo-
denticides are being marketed in large
quantities and many of them are weak
and ineffective and have tended to im-
peril various rodent-control programs.
The  importance  of  rodenticides  can
readily be appreciated when it is real-
ized that the estimated damage by rats
alone has amounted to some $200,000,-
000 annually.
  Other  important improvements and
changes  over  the present  law which
would  be provided by this  bill  are as
follows:
  First. A provision requiring the reg-
istration of economic poisons prior to
their  sale or introduction  into inter-
state or foreign commerce.
  Second. The inclusion of provisions
for protection of the  public  against
poisoning by  requiring  prominently
displayed poison  warnings on the la-
bels of highly toxic economic poisons.
  Third.  A provision requiring the
coloring  or  discoloring of dangerous
white  powdered  economic  poisons to
prevent their being mistaken for flour,
sugar, salt, baking powder, or other
similar articles commonly used in the
preparation of foodstuffs.
  Fourth. A requirement that warning
or caution statements be contained on
the label of the economic poison to pre-
vent injury to living man, other verte-
brate animals, vegetation,  and useful
invertebrate animals.
  Fifth.  A provision requiring instruc-
tions for use to provide adequate pro-
tection for the public.
  Sixth. A provision  declaring  eco-
nomic poisons to be misbranded if they
are injurious  to  man,  vertebrate ani-
mals,  or vegetation,  except  weeds,
when properly used.
  Seventh. A provision requiring in-
formation to be furnished with respect
to the delivery, movement, or holding
of economic poisons and devices.
  Mr. KEEFE. Mr. Speaker,  will the
gentleman yield?
  Mr. COLE of  New York. I  yield to
the gentleman from Wisconsin.
   Mr. KEEFE. Who administers this
 law?
   Mr. AUGUST H. ANDRESEN. Un-
 der the act of 1910, the Insecticide Act
 is being administered by the Depart-
 ment of Agriculture, because it relates
 primarily  to the use of these insecti-
 cides in the production of food. I may
 say to the gentleman that the insecti-
 cide industry, the Department of Agri-
 culture, the distributors, and the orga-
 nizations representing the producers of
 this country are all in accord on the
 need for this bill. Some of the manu-
 facturers  do not like the registration
 proposition, but it was deemed advis-
 able  that  they  should be  required to
 register their product with the De-
 partment  of Agriculture so that the
 public could be protected.
   Mr. KEEFE. Why is it that the  ac-
 tual work is not handled by the  Pure
 Food and  Drug Administration?
   Mr.  AUGUST  H.  ANDRESEN.
 They  deal with food, and this  deals
 with insecticides, and under the act of
 1910 the  Department of Agriculture
 has handled it.
   Mr. KEEFE. They are dealing with
 a large number of drugs. They handle
 the Cosmetic Act, for example.
  Mr. AUGUST H. ANDRESEN. That
 is true.
                            [p. 5050]
   Mr. KEEFE. I am just wondering
 why you  should have two laboratories
 set up.
   Mr. AUGUST H. ANDRESEN. This
 does not set up additional laboratories.
   Mr. KEEFE.  They deal with  all
 sorts  of insecticides;  for  example, in
 the spraying of fruit trees and all that
 sort of thing.  Why should you  have
 two  organizations set  up,  one in  the
 Department of Agriculture and one in
 the Federal Security Agency, to han-
 dle this proposition? Why cannot  one
 do the job?
   Mr. AUGUST H. ANDRESEN. Per-
 haps  one  agency can do the job,  but
 this is already in the  Department of
 Agriculture. This does not give the  De-

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STATUTES AND LEGISLATIVE HISTORY
                                77
partment of Agriculture any new du-
ties, except as are provided in the bill.
  Mr. KEEFE. They are required un-
der the terms of the act, are they not,
to make  examinations of insecticides
and rodenticides and what not?
  Mr.  AUGUST   H.   ANDRESEN.
They already have that laboratory.
  Mr.  KEEFE. That  is  exactly the
point I am making. You have such a
laboratory  over in Agriculture. You
have another great big laboratory do-
ing the same type of work, exactly the
same type  of work, except a larger
amount of work, in the Pure Food and
Drug Administration. Now we are try-
ing to simplify government and do
away with overlapping bureaus  and
that sort of thing.  I am asking what
appears to me to be a perfectly decent
and reasonable question: Why cannot
this  work of examination of new in-
secticides and rodenticides and what
have you be done by the Pure Food and
Drug Administration, that is already
doing that in that field?
  Mr.  AUGUST   H.   ANDRESEN.
They are not doing that, I may say to
the gentleman.
  Mr.  FLANNAGAN.  Mr. Speaker,
will the gentleman yield?
  Mr.  COLE of New York. I yield to
the gentleman from Virginia.
  Mr.  FLANNAGAN. This  act  at
present is being administered by the
Department of  Agriculture. It  pri-
marily affects  the  farmers.  It is to
control the use  of  these  insecticides,
some of them very dangerous, that are
being brought on the market or have
been brought on the market during the
past 2 or 3 years. It only amends the
old act. It is not new legislation. It only
brings the legislation up to date in or-
der to give  the farming  interests of
America  protection against the use of
these dangerous insecticides that are
now being brought on the market.
  Mr.  KEEFE. If the  gentleman  will
yield further, may I say I have no ob-
jection to the spirit and purpose of this
act. I think  it is a  perfectly  laudable
one. But the Pure Food and Drug Ad-
ministration is presently  engaged in
the business of examining insecticides
for spray material for the treatment
of fruit trees, for example, and that
sort of thing.  They have a great big
laboratory established, and they have
their agencies  throughout the country
doing that sort of work.
  What I would like to know is: Why
cannot this  work of  examining  and
passing upon the  potency of proposed
rodent control material  and insecti-
cide material be done by them?
  Mr. FLANNAGAN. May I say to
the gentleman that undoubtedly there
is considerable merit in his statement
that this  activity should  be consoli-
dated, but that question has not been
gone into. The only thing we are doing
in this  legislation is  amending the
present  act.  The present act provides
that this work shall be done in the De-
partment  of Agriculture and it is left
there. Hereafter  if it is  thought fit
that these activities should be consoli-
dated, then proper consideration should
be given to that question.
  Mr. AUGUST H. ANDRESEN. May
I say to the gentleman from Wiscon-
sin  I feel  a thorough investigation of
the Department  of Agriculture  and
other  agencies of  the  Government
should and would disclose matters that
we  could  eliminate to  avoid duplica-
tion. This may be one of them.  But I
think  that should be the subject of
separate legislation because of the vi-
tal  need of this legislation to protect
the growers of food so that they can
know what they are buying when they
purchase these insecticides.
  Mr. KEEFE. The gentleman is  a
member of the Committee on Agricul-
ture, as well as the distinguished gen-
tleman from Virginia.  [Mr. FLANNA-
GAN], who apparently are interested
in this bill. I  do  not happen to be  a
member of any legislative committee,
but I do happen to be a member  of the
Committee on  Appropriations,  which
handles  the  appropriations for  the

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78
LEGAL COMPILATION—PESTICIDES
Pure Food and Drug Administration,
and by reason of that fact, I am some-
what familiar  with the operations of
the Administration.
  We are obliged  to  the  people  of
America to economize in government
and wherever the opportunity presents
itself to wipe out duplicating  agencies
of government. Here is a flagrant case
where in the Department of  Agricul-
ture  there are a number of scientists
who  are  set up for the purpose  of
examining insecticides  and not  per-
mitting the misbranding of fungicides,
rodenticides, and a  few other things
of  that character,  the  exact  type of
work that is being done by the Pure
Food and Drug  Administration. Why
not start in now and economize a little
bit?
   Mr. FLANNAGAN.  I am  not say-
ing that the gentleman is not right—
that  there should be consolidation, but
the defeat of this  legislation will not
bring about that  consolidation.  This
legislation is for the purpose of bring-
ing about an  efficient administration
with reference to these dangerous  in-
secticides that are being sold to the
farmers today so as to protect the peo-
ple of America who are producing the
food.
   Mr.  AUGUST H. ANDRESEN. I
can assure the gentleman  from  Wis-
consin that  I  am  in thorough accord
with his proposal to do  away with du-
plication  of  activities  on the part of
many bureaus. This duplication should
be eliminated, even though  it might
require the  transfer of the enforce-
ment of the insecticide law by the Pure
Food and Drug Administration, or the
transfer of  the  Pure Food and Drug
over to  the Department of  Agricul-
ture. Several hundred million dollars
can  be  saved  by eliminating  duplica-
tions in Federal activities, and  I will
go along with the gentlemen and other
Members of the House to  accomplish
this result.
   In view of  the  emergency for the
measure before the House, I hope that
 there will not be any objection at this
 time.
   Mr. COLE of New York. Mr. Speak-
 er,  I  withdraw my reservation  of ob-
 jection.
   The SPEAKER. Is there objection
 to the present consideration of the bill?
   There being no objection, the  Clerk
 read  the bill, as follows:
   Be it enacted, etc.—
                  TITLE
   SECTION 1. This  act may be cited  as the
 "Federal Insecticide, Fungicide, and Rodenti-
 cide Act."
                DEFINITIONS
   SEC. 2. For the purposes of this act—
   a. The term "economic poison" means any
 substance or mixture of substances intended for
 preventing, destroying, repelling, or mitigating
 any insects, rodents, fungi, weeds,  and other
 forms  of plant or animal life or viruses, except
 viruses on or in  living man or other animals,
 which the Secretary shall declare to be  a pest.
   b. The term "device" means any instrument
 or contrivance intended for trapping, destroy-
 ing, repelling, or mitigating insects or rodents
 or destroying, repelling, or mitigating fungi or
 weeds, or such other pests as may be designated
 by the Secretary, but not including equipment
 used for the application of economic  poisons
 when sold separately therefrom.
   c. The term  "insecticide" means any sub-
 stance or mixture  of substances intended for
 preventing, destroying, repelling, or mitigating
 any insects which may be present in any envi-
 ronment whatsoever.
   d.  The  term "fungicide" means any sub-
 stance or mixture  of substances intended for
 preventing, destroying, repelling, or mitigating
 any fungi.
   e. The term  "rodenticide" means any sub-
 stance or mixture  of substances intended for
 preventing, destroying, repelling, or mitigating
 rodents or  any  other vertebrate animal' which
 the Secretary shall declare to be a pest.
   f. The term "herbicide" means any substance
 or mixture of substances intended for prevent-
 ing, destroying,  repelling,  or  mitigating any
 weed.
   g. The term "weed" means any plant which
 grows where not wanted.
   h. The term "insect" means  any of the nu-
 merous small invertebrate animals generally
 having the body more or less obviously  segmen-
 ted, for the most part belonging to the class
 insecta. comprising six-legged,  usually  winged
 forms, as for example, beetles, bugs, bees, flies,
 and to other allied  classes of arthropods whose
 members are wingless and usually have more
 than six legs, as, for  example,  spiders, mites,
 ticks, centipedes, and wood lice.

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STATUTES AND LEGISLATIVE HISTORY
                                          79
  i.  The  term "fungi" means all non-chloro-
phyll-bearing thallophytes  (that  is, all non-
chlorophyll-bearing plants of a lower order than
mosses  and liverworts)  as, for example,  rusts,
smuts, mildews, molds, yeasts, and bacteria,  ex-
cept those on or in living man or other animals.
  j.  The  term  "ingredient statement"  means
either—
   (1) a statement of the name and  percentage
of each active  ingredient,  together with  the
total percentage of the inert ingredients, in  the
economic poison ; or
                                   [p. 5051]
   (2) a statement of  the name of each active
ingredient, together with the name of each and
total percentage of the inert ingredients, if any
there be, in the economic poison (except option
1 shall apply if the preparation is  hightly toxic
to man, determined as provided in section 6 of
this  act) ;
and,  in addition to  (1)  or  (2) in  case the eco-
nomic poison contains arsenic  in  any form, a
statement of the percentages of total and water
soluble  arsenic, each  calculated   as elemental
arsenic.
  k. The term "active  ingredient"  means an in-
gredient which will prevent, destroy, repel,  or
mitigate insects, fungi, rodents, weeds, or other
pests.
  1.  The term "inert ingredient"  means  an  in-
gredient which is not active.
  m. The  term "antidote"  means a practical
immediate treatment in case of poisoning and
includes first-aid treatment.
  n. The term "person" means any  individual,
partnership,  association,  corporation, or any
organized group of persons whether incorpora-
ted or not.
  o.  The term "Territory" means  any Territory
or possession of  the  United States, excluding
the Canal Zone.
  p. The term "Secretary" means the Secretary
of Agriculture.
  q.  The  term "registrant" means  the person
registering  any economic  poison  pursuant  to
the provisions of this act.
  r.   The  term  "label"  means   the  written,
printed, or graphic matter on, or attached to,
the economic poison or device or the  immedi-
ate  container  thereof,  and  the   outside con-
tainer or wrapper of the retail package,  if any
there be, of the economic poison or device.
  s.  The term "labeling" means all  labels and
other written, printed, or graphic matter—
   (1) upon  the economic poison  or device  or
any of its containers or wrappers ;
  (2)  accompanying  the  economic  poison   or
device at any time;
   (3) to which  reference is made on the label
or in literature  accompanying the  economic
poison  or device, except  to  current  official
publications  of the United States  Departments
of Agriculture and Interior,  the United  States
Public Health  Service,  State experiment sta-
tions,  State  agricultural  colleges,  and  other
similar Federal or State institutions or agen-
cies  authorized by law to conduct  research  in
the field of economic poisons ;
  t.  The term "adulterated" shall apply to any
economic poison  if its strength or  purity falls
below  the professed standard or quality  as  ex-
pressed on its labeling or under which it is sold,
or if any substance has been substituted wholly
or in  part for the article, or if any valuable
constituent of the article has been wholly or in
part abstracted.
  u. The term "misbranded" shall apply—
  (1)  to any economic poison or device if its
labeling bears any statement, design, or graphic
representation relative thereto or to its ingredi-
ents which  is false or misleading in any par-
ticular :
  (2) to any economic poison-
  fa)  if it is an imitation of or  is offered  for
sale under the name of another economic poison ;
  (b)  if  its labeling  bears  any reference  to
registration under this act;
  (c)  if the labeling accompanying it does not
contain instructions for use which  are  neces-
sary and if complied  with  adequate for the
protection of the public ;
  (d) if the label does  not contain a warning or
caution statement which may be necessary and
if complied  with  adequate to prevent injury  to
living  man and other vertebrate animals, vege-
tation, and useful invertebrate animals ;
  (e)  if the  label does not bear an ingredient
statement on  that part of  the immediate con-
tainer and on the outside container or wrapper,
if there be  one,  through  which the ingredient
statement on the immediate container cannot
be clearly read, of the retail package which is
presented or displayed under customary  condi-
tions of purchase ;
  (f) if any word, statement, or other informa-
tion  required by  or under  authority of this  act
to appear on the label or labeling is not promi-
nently placed thereon with such conspicuousness
(as compared with other words, statements,  de-
signs,  or graphic matter in the labeling) and in
such terms as to  render it  likely to be read and
understood by the ordinary individual  under
customary conditions of purchase and use;  or
  (g)  if in the  case of an insecticide,  fungi-
cide, or  herbicide when used as  directed or  in
accordance with  commonly recognized practice
it shall be injurious to living man or other ver-
tebrate animals, or vegetation, except weeds,  to
which  it is  applied, or to  the person applying
such economic poison.

               PROHIBITED ACTS
  SEC.  3. a. It shall be unlawful for  any person
to distribute, sell, or offer for sale in any Terri-
tory or in the District of Columbia, or to ship
or deliver for shipment from any State,  Terri-
tory, or  the District of Columbia to any other
State,  Territory,  or the District  of Columbia,
or to any foreign country, or to receive in any

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80
LEGAL COMPILATION—PESTICIDES
State,  Territory, or  the District of  Columbia
from any other State, Territory, or the District
of Columbia, or foreign  country, and- having so
received, deliver or offer to deliver to any other
person, any of the following:
  (1) Any economic poison which has not been
registered pursuant to the provisions of section
4 of this act, or any  economic poison if any of
the claims made for it or any of the directions
for its use differ in substance from the repre-
sentations made in connection with its registra-
tion, or if the composition of an economic poison
differs from  its composition  as  represented in
connection with its registration:  Provided, That
in the discretion  of  the  Secretary, a  change
in the labeling or formula of an economic poi-
son may be made within  a registration period
without requiring reregistration of the product,
  (2) Any economic  poison unless  it is in  the
registrant's or  the  manufacturer's  unbroken
immediate container, and there is affixed to
such container,  and to the outside container or
wrapper of the  retail package, if there be  one
through  which the reauired information on the
immediate container  cannot  be  clearly  read, a
label bearing—
  (a)  the  name and  address of the manufac-
turer,  registrant, or person  for whom  manu-
factured ;
  (b)  the  name,  brand, or  trade-mark  under
which said article is sold ; and
  (c)  the  net  weight or  measure  of the con-
tent: Provided,  That the Secretary  may permit
reasonable variations.
   (3) Any economic poison which contains  any
substance  or  substances  in  quantities  highly
toxic to man,  determined as provided in section
6 of this act, unless the label  shall bear,  in addi-
tion to any other matter required by this act-
  la) the skull and crossbones ;
   (b)  the word "poison"  prominently (in red)
on a background of distinctly contrasting  color;
and
   (c)  a  statement of an  antidote for the  eco-
nomic poison.
   (4)  The economic  poisons commonly  known
as a standard lead arsenate, basic lead arsenate,
calcium  arsenate, magnesium  arsenate,  zinc
arsenate, zinc arsenite,  sodium fluoride, sodium
ftuosilicate, and barium fluosilicate unless they
have been distinctly colored or discolored as  pro-
vided by regulations issued in accordance with
this act,  or  any other  white powder economic
poison which the Secretary,  after investigation
of and after public hearing on the necessity for
such action for  the  protection of the  public
health and the  feasibility of such coloration or
discoloration, shall, by regulation, require to be
distinctly  colored  or discolored, unless  it has
been so colored or discolored:  Provided, That the
Secretary may  exempt  any economic poison to
the extent that it is  intended for  a  particular
use or uses from the coloring or discoloring re-
quired or authorized by this  section if he deter-
mines that such coloring or discoloring  for such
 use or nses is not necessary for the protection of
 the pubJic health.
   (B) Any economic poison which is adulterated
 or  misbranded  or any device  which is mis-
 branded.
   b. Notwithstanding  any other provision  of
 this act, no article shall be deemed  in violation
 of this  act when  intended solely for export to
 any foreign  country  and prepared or packed
 according to the specifications  or directions of
 the foreign purchaser.
   c. It shall be unlawful—
   (1) for any person to detach, alter, deface, or
 destroy, in whole or in part, any label or label-
 ing  provided for  in  this  act or  the rules and
 regulations  promulgated  hereunder, or to add
 any substance to, or take any  substance from,
 an economic poison in a manner that may defeat
 the purpose of this act;
   (2) for any manufacturer, distributor, dealer,
 carrier, or other  person  to refuse,  upon a re-
 quest in writing specifying the nature or kind
 of economic poison or  device to which such re-
 quest relates, to furnish  to or permit  any per-
 son  designated by the  Secretary to  have access
 to and  to copy such  records as  authorized  by
 section 5 of this act;
   (3) for any person to give a  guaranty  or  un-
 dertaking provided  for in section  7 which is
 false in any particular,  except that a  person
 who receives and relies  upon  a guaranty  au-
 thorized under section 7 may give a  guaranty to
 the same effect,  which guaranty shall contain in
 addition to his own name  and address the name
 and address of the person residing in the United
 States from whom he received  the  guaranty or
 undertaking ; and
   (4) for any person to use for his  own  advan-
 tage or to reveal, other than to  the Secretary,
 or  officials or employees  of the  United  States
 Department  of  Agriculture,  or  other Federal
 agencies,  or to the courts in response to a sub-
 pena, or  to physicians, and in  emergencies to
 pharmacists and other qualified persons, for use
 in  the preparation  of  antidotes, in accordance
 with such directions as the Secretary may pre-
 scribe, any information relative to  formulas of
 products  acquired by authority of  section 4 of
 this act.
                  REGISTRATION
   SEC. 4. a. Every economic  poison which is
 distributed, sold, or offered for sale in any Ter-
 ritory or the District of  Columbia,  or which is
 shipped  or delivered  for shipment  from  any
 State, Territory, or the District of  Columbia to
 any other State, Territory, or  the District of
 Columbia, or which is received from any foreign
 country shall be registered with  the Secretary:
 Provided, That products  which have the same
 formula,  are manufactured by the same person,
 the labeling  of which contains  the  same  claims,
 and the labels of which bear a designation iden-
 tifying the product as the same economic  poi-
 son may be  registered  as  a  single  economic

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STATUTES AND LEGISLATIVE HISTORY
                                          81
poison ; and additional names  and labels shall
be added  by supplement  statements ;  the regis-
trant shall file with the  Secretary a  statement
including—
  (1)  the name  and address of the  registrant
and  the name and address  of the person whose
name will appear on the  label, if other than the
registrant;
  (2) the name of the economic poison ;
  (3)  a  complete copy of  the  labeling  accom-
panying the economic  poison  and a  statement
of all  claims to  be made for  it,  including  the
directions for use ; and
                                   [p.  5052]
  (4)  if requested by the Secretary,  a full de-
scription  of the tests made  and the  results
thereof upon which the claims are based.
  b. The  Secretary, whenever  he deems  it nec-
essary for the effective  administration  of this
act,  may  require the submission of the complete
formula of the economic poison.  If  it appears
to the Secretary that  the composition  of  the
article is such as to warrant the proposed claims
for  it  and if the article and  its  labeling and
other material required to be submitted comply
with the  requirements  of section  3 of this act,
he shall register it.
  c.  If it does not appear to the Secretary that
the  article is such as to  warrant  the proposeJ
claims for it or  if  the article  and its labeling
and  other material required to  be  submitted  do
not  comply with  the provisions of this act,  he
shall notify the  registrant of the manner  in
which  the article, labeling, or other material
required to be submitted fail to comply with the
act so  as to afford the registrant an opportunity
to make the corrections necessary. If, upon re-
ceipt of such notice, the  registrant insists that
such corrections  are not  necessary and requests
in writing that it be registered,  the  Secretary
shall register  the article,  under  protest, and
such registration shall  be accompanied by  a
warning,  in writing, to  the registrant  of  the
apparent  failure of the article to comply with
the  provisions of this act. In order  to protect
the  public, the  Secretary,  on  his  own motion,
may at any time, cancel  the registration of  an
economic  poison  and in lieu  thereof  issue  a
registration  under protest in  accordance with
the foregoing procedure.  In no event  shall reg-
istration of an article, whether or not protested,
be construed as a defense for the commission of
any  offense prohibited  under section  3  of this
act.
  d. Notwithstanding  any other  provision  of
this  act, registration is not required in the case
of an  economic poison  shipped from  one plant
to another plant  operated  by  the same  person
and  used  solely at such  plant as a constituent
part to make an economic poison which is reg-
istered under this act.
              BOOKS AND RECORDS
  SEC. 5.  For the  purposes  of enforcing the
provisions of this act,  any manufacturer, dis-
tributor,  carrier,  dealer, or any other  person
who sells or offers for sale, delivers or offers for
delivery, or who receives or holds any economic
poison or device subject to this act, shall, upon
request of any employee of the United States
Department of Agriculture or any employee of
any  State,  Territory,  or political subdivision,
duly designated  by the Secretary, furnish  or
permit  such person at all reasonable  times  to
have access to, and to copy all records showing
the delivery, movement,  or holding of such eco-
nomic  poison  or device,  including the quantity,
the date of shipment and receipt, and the name
of the consignor and consignee; and in the event
of the inability of any person  to produce rec-
ords containing such information, all other rec-
ords and information relating to such  delivery,
movement,  or holding  of  the economic  poison
or device. Notwithstanding this provision, how-
ever, the  specific  evidence obtained under this
section shall not  be used in a criminal prosecu-
tion of the person from whom obtained.
                ENFORCEMENT
  SEC.  6. a.  The Secretary  (except as otherwise
provided in this section) is authorized to make
rules and regulations for carrying out the pro-
visions  of this act, including the collection and
examination of samples of economic poisons and
devices subject to this act. The Secretary is,  in
addition,  authorized  after  opportunity  for
hearing- -
  (1) to declare  a pest any form of  plant  or
animal life or virus which is injurious to plants,
man, domestic animals, articles, or substances ;
  (2) to determine economic poisons, and quan-
tities of substances  contained in economic poi-
sons, which are highly toxic to man ; and
  (3)  to  determine standards  of coloring  or
discoloring1  for economic poisons, and  to sub-
ject  economic poisons  to  the requirements  of
section 3a (4)  of this act.
  b.  The  Secretary of  the  Treasury  and the
Secretary of Agriculture shall jointly prescribe
regulations  for  the enforcement of  section  10
of this  act.
  c.  The  examination of economic poisons  or
devices shall be made  in the United  States De-
partment of Agriculture or elsewhere  as the
Secretary ma,y designate for the purpose of de-
termining from such examination whether they
comply with the  requirements of this  act, and
if it shall appear from any  such examination
that they fail to  comply with the requirements
of this  act,  the  Secretary shall cause notice  to
be given to the person against whom  criminal
proceedings are  contemplated.  Any person  so
notified shall be given an opportunity to present
his  views, either orally or in writing,  with re-
gard to such  contemplated  proceedings,  and if
in the  opinion of  the Secretary it appears that
the provisions of this act have been violated  by
such person,  then the Secretary  shall  certify
the facts to the proper United States attorney,
with a copy of the results of the analysis or the
examination of such  article: Provided,  That
nothing in  this act shall  be construed  as  re-

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82
LEGAL COMPILATION—PESTICIDES
quiring the Secretary to report for prosecution
or for the institution of Jibel proceedings minor
violations of this act whenever he believes that
the public  interest will be adequately served by
a suitable written notice of warning.
  d. It shall be the  duty  of each  United States
attorney, to whom the Secretary  or his  agents
shall report any violation of this Act, to cause
appropriate proceedings to be  commenced and
prosecuted  in the proper  courts  of the United
States without delay.
  e. The Secretary shall, by publication in such
manner  as  he may prescribe, give notice of all
judgments  entered  in  action  instituted  under
the authority of this  act.

                 EXEMPTIONS
  SEC. 7. a.  The penalties provided for  a vio-
lation of section 3a of this act shall  not apply
to—
   (1)  any  person who establishes a guaranty
signed by,  and containing the name and address
of, the  registrant  or person  residing  in  the
United  States from whom  he purchased and
received in good faith the article in the same
unbroken package, to the effect that the article
was lawfully registered at the time of sale and
delivery to him, and that it complies with the
other requirements  of this act, designating this
act. In such case the guarantor shall  be subject
to the penalties which would  otherwise attach
to the person holding the guaranty  under the
provisions  of this act;
   (2)  any carrier  while  lawfully engaged  in
transporting an economic poison or device if
such carrier upon request by a person duly des-
ignated  by  the Secretary  shall permit such
person  to  copy all  records showing  the  trans-
actions in and movement of the articles ;
   (3)  to public officials  while engaged in the
performance of their official duties ;
   {4)  to the manufacturer  or  shipper  of  an
economic poison for experimental use only  by
or under the supervision of any Federal or State
agency  authorized by law to  conduct research
in the field of economic poisons ;  or by others if
a permit has been obtained before shipment in
accordance with regulations promulgated by the
Secretary.
                  PENALTIES
   SEC.  8.  a.  Any  person violating section  3a
 (1) of this act shall be guilty of  a misdemeanor
and shall  on conviction be fined  not  more than
$1,000.
   b.  Any  person violating any provision other
than section 3a (1) of this act  shall be guilty
of a misdemeanor and shall upon conviction be
fined not  more than $500 for  the first offense,
and on conviction of each subsequent offense be
fined not  more than $1,000: Provided, That an
 offense  committed more  than  5 years after  the
last  previous conviction shall be  considered a
first offense: And provided further, That in any
 case where a registrant was  issued  a warning
 by the Secretary pursuant to the provisions of
 section  4c of this act, he shall in each instance
 upon conviction for an offense concerning which
 he had  been so warned, be fined not more than
 $1,000  or imprisoned for not more than 1 year,
 or both such  fine and imprisonment; and  the
 registration  of the  article with  reference to
 which   the violation occurred  shall  terminate
 automatically.  An article the registration  of
 which  has been terminated may not again  be
 registered  unless  the article,  its labeling, and
 other material required to be submitted appear
 to the Secretary to comply with all the require-
 ments of this act.
   c. Notwithstanding  any  other  provision  of
 this section, in case any person, with intent to
 defraud, uses or reveals information relative to
 formulas of  products  acquired under the  au-
 thority  of section 4 of this act,  he shall be fined
 not  more than $10,000 or imprisoned for  not
 more than 3 years, or both such  fine and  im-
 prisonment.
   d. When construing and  enforcing the  pro-
 visions  of this  act, the act, omission, or failure,
 of any  officer, agent, or other person  acting for
 or employed  by any person shall in every case
 be also  deemed to be the act, omission, or failure
 of such person as well  as  that of  the person
 employed.
                    SEIZURES
   SEC.  9. a. Any economic poison or device that
 is being transported from one  State, Territory,
 or  District to  another, or,  having been trans-
 ported,  remains unsold or in original unbroken
 packages, or that is sold or offered for sale in
 the  District  of Columbia or any  Territory, or
 that is  imported from a foreign country, shall
 be liable to be proceeded against in any district
 court of the United States in the district where
 it is found  and  seized  for confiscation by a
 process of libel for condemnation—
    (1) in the case of an economic poison—
    (a) if it is adulterated or misbranded ;
    (b)  if it has not been registered pursuant to
 the provisions of section 4 of this act;
    (c) if it fails to bear on its label the informa-
 tion required by this act; or
    (d)  if it is  a white powder economic poison
 and is  not colored as required under this act; or
    (2) in the case of a device if it is misbranded.
    b. If the article is condemned it shall, after
  entry  of the decree, be disposed of by  destruc-
 tion or sale as the court may direct  and the
  proceeds, if sold, less the legal costs,  shall be
 paid into  the Treasury of the United  States,
  but the article shall not be sold contrary to the
  provisions of this act or of the laws of the juris-
  diction in which it is sold: Provided, That upon
  the payment of the costs of the libel proceedings
  and the execution  and delivery of a good and
  sufficient bond conditioned that the article shall
  not be sold  or otherwise disposed of contrary
  to  the  provisions  of this act or the laws of any
  State,  Territory,  or District in which sold, the
  court may direct that such articles be delivered

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STATUTES AND LEGISLATIVE HISTORY
                                           83
to the owner thereof. The proceedings of  such
libel cases shall conform, as near as may be, to
the proceedings in admiralty, except that either
party may demand trial by jury of any issue of
fact joined in any case, and all such proceedings
shall be at the suit of and in the name of the
United  States.
                                   [p. 5053]
  c. When a decree of condemnation  is entered
against the article, court costs and fees, storage,
and other proper expenses  shall  be awarded
against the person, if any, intervening as claim-
ant of the article.
                   IMPORTS
  SEC. 10. The Secretary of the Treasury shall
notify the Secretary of Agriculture of the ar-
rival of economic poisons and devices offered for
importation  and shall deliver to the Secretary
of  Agriculture, upon his  request, samples  of
economic poisons or  devices which  are being
imported or  offered for  import into the United
States,  giving  notice to the owner or consignee,
who may appear before the Secretary of Agri-
culture and  have the right to introduce testi-
mony. If it appears from the examination  of a
sample  that  it is  adulterated or misbranded  or
otherwise violates the prohibitions  set forth  in
this act, or is otherwise  dangerous to the health
of the people  of the United  States, or is  of a
kind forbidden entry into or forbidden to be sold
or restricted in sale in the country in which  it
is made or from which  it is  exported, the said
article may be refused admission, and the  Sec-
retary of the Treasury shall  refuse delivery  to
the consignee and shall cause the destruction of
any goods refused delivery which shall not  be
exported by the consignee within 3 months from
the date of notice of such refusal under  such
regulations  as the  Secretary  of the  Treasury
may prescribe: Provided, That the Secretary  of
the Treasury may deliver to the consignee  such
goods pending examination and  decision in the
matter  on execution of a  penal bond for the
amount of the full invoice value of such goods,
together with the duty thereon,  and on refusal
to return such goods for any cause to the  cus-
tody of  the  Secretary  of  the Treasury, when
demanded, for the purpose of  excluding them
from the country,  or for any other purpose, said
consignee shall forfeit the full  amount of the
bond: And provided further. That all charges
for storage, cartage, and labor on goods which
are refused admission or delivery shall be  paid
by the owner or consignee, and in default of such
payment  shall constitute  a  lien  against  any
future importation made by such owner or  con-
signee.
             DELEGATION OF DUTIES
  SEC. 11. All authority  vested in the  Secretary
by virtue of the provisions of  this act may with
like  force and effect be executed  by  such  em-
ployees  of the United  States  Department  of
Agriculture as the Secretary may designate for
the purpose.
       AUTHORIZATION FOR APPROPRIATIONS
               AND EXPENDITURES
   SEC. 12. a. There is hereby authorized  to  be
appropriated, out of any moneys in the Treasury
not otherwise  appropriated, such sums as may
be necessary for the purposes  and administra-
tion of this act.  In order  to  carry out the pro-
visions of this  act,  which take effect prior  to the
repeal of the Insecticide Act of 1910, appropria-
tions available for the enforcement of such act
are authorized  to be made available.
   b. The Secretary is authorized from the  funds
appropriated for this act  to  make such expen-
ditures as  he deems necessary, including  rents,
travel, supplies, books, samples, testing devices,
furniture,  equipment, and  such other expenses
as may be necessary to the  administration  of
this act.

                 COOPERATION
   SEC. 13. The Secretary  is  authorized to  co-
operate with any other department or agency of
the Federal  Government and with the official
regulatory agency  of any State, or  any  State,
Territory,  District, possession,  or any political
subdivision thereof,  in  carrying out the pro-
visions of  this  act, and  in  securing uniformity
of regulations.

                 SEPARABILITY
   SEC. 14. If any  provision  of  this  act is  de-
clared unconstitutional, or  the  applicability
thereof to any person or  circumstance is held
invalid, the constitutionality  of the  remainder
of this act and  the  applicability thereof to  other
persons and circumstances shall not be affected
thereby.
                EFFECTIVE DATE
   SEC. 15. All provisions  of this act, except
section 3,  "Prohibited Acts"  ; section 8,  "Pen-
alties" ; section 9,  "Seizures" ; and section 10,
"Imports," shall take  effect upon enactment,
and sections 3,  8, 9, and  10 of this act  shall take
effect as follows:  (1) As  to  devices,  upon  en-
actment; (2) as  to rodenticides  and  herbicides,
6 months after  enactment; and (3) as  to insecti-
cides,  fungicides,  and all  other economic poi-
sons,  1 year after enactment:  Provided,  That
the Secretary,  upon application may  at any
time  within 1 year  after  sections  3,  8,  9,
and 10 of this  act become applicable to devices,
rodenticides  and  herbicides,  and insecticides,
fungicides, and other economic poisons, respec-
tively, if he determines that such action will not
be unduly detrimental to the public interest, and
is necessary  to avoid hardship,  exempt, under
such terms and conditions  as  he may  prescribe,
any economic poison from the provisions of this
act if such  economic poison was labeled, shipped,
and delivered by the manufacturer thereof  prior
to the time the sections  of this  act referred  to
above become applicable to such economic poi-
son and  in case the economic poison  is an  in-
secticide  or fungicide if its  sale, delivery,  or
shipment haa not been and will not be in  viola-

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84
LEGAL COMPILATION—PESTICIDES
tion of the provisions of the Insecticide Act of
1910.
                 REPEALS
  SEC. 16. The Insecticide Act of 1910, approved
April 26, 1910 (36 Stat. 331, 7 U. S. C. 121-134),
is hereby repealed 1 year after the date of  the
enactment of this act: Provided, That, with re-
spect to violations,  liabilities incurred,  or  ap-
peals taken prior to said date, and with respect
to sales, shipments, or deliveries of insecticides
and fungicides under an exemption granted by
the Secretary under section IB, all provisions of
the Insecticide Act of 1910 shall be deemed to
remain in full force for the purpose of sustain-
ing  any proper  suit, action, or other proceed-
ing with respect to any such violations, liabili-
ties, appeals,  or to such sales, shipments, or
deliveries  of  insecticides and  fungicides  ex-
empted by the Secretary under section 15.
  With the following committee amend-
ments :
  Page 2, line  6, strike out the words  "or
weeds."
  Page 6, line 11, strike out the word "instruc-
tions"  and  insert in lieu  thereof  the word
"directions."
  Page 7, line 2, strike out the semicolon  and
insert  in  lieu thereof  a colon  and add  the
following:
  ''Provided, That the  Secretary may permit
the ingredient statement to appear prominently
on some other part of the container, if the  size
or form of the container makes it impracticable
to place it  on the part of  the retail package
which is presented or displayed under custom-
ary conditions of purchase."
  Page 8, line 4, insert after the phrase "deliver
or offer  to  deliver" the following:  "in  the
original  unbroken  package";  and  insert a
comma after the word "person."
  Page 9, line 16, strike out the article "a."
  Page 14,  line  14, insert a new subsection e,
as follows:
  "e. The Secretary is authorized to cancel the
registration of any economic poison  at the  end
of a period of 5 years following the registration
of such economic poison or at the end  of  any
5-year  period thereafter, unless the  registrant,
prior to the expiration of each such 5-year pe-
riod, requests in accordance with regulations
issued  by the Secretary  that such  registration
be continued in effect."
  Page IB,  line  15, strike out the period after
the word  "act" and insert the following: "and
the determination and establishment of suitable
names  to  be used in the ingredient statement."
  Page 18,  line 22, strike out the  word "of"
and insert in lieu thereof the word "for."
  Page 18,  line 23, insert after  th?  figures
"$1,000"  and before the  colon the  following:
"or imprisoned  for not  more than  1 year, or
both such fine and imprisonment."
  Page 24, line 4, insert after the word "official"
the following: "agricultural or other,"
   The  committee  amendments  were
 agreed to.
   The bill was ordered to be engrossed
 and read  a third time,  was read  the
 third time, and passed,  and a motion
 to reconsider was laid on the table.
  PROPOSED SITE OF THE UNITED STATES
   COURT OF APPEALS FOR THE DISTRICT
              OF COLUMBIA
   The Clerk called the bill (H. R. 3029)
 providing for the acquisition of a site
 and for preparation of plans and speci-
 fications for a courthouse to accommo-
 date  the United States  Court of Ap-
 peals for the District of Columbia and
 the District Court of the United States
 for the District of Columbia.
   The SPEAKER. Is there objection to
 the present consideration of the bill?
   Mr. COLE of New York.  Mr. Speak-
 er,  reserving the right to object, this
 bill,  as I understand it,  is designed
 primarily to authorize the expenditure
 of $400,000 to prepare architect's plans
 for a new courthouse. But in the bill a
 commitment is made to the  effect that
 the price of the site on which the court-
 house is to be erected will be $2,400,000.
 I should like to inquire  of  the gentle-
 man  from Michigan, the chairman of
 the Committee on Public Works,  the
 basis for that appraisal.
   Mr. DONDERO. Mr. Speaker, if the
 gentleman  will  yield,  the  question
 asked  by the  gentleman  from  New
 York is a fair one.  The site involved
 for the erection of a new  courthouse
 for the United States  District Court
 of Appeals is located on Independence
 Avenue at Marshall  Place.
   The  District of Columbia acquired
 that site nearly 20 years ago. The price
 that was paid for it was approximately
 $1,800,000. The Commissioners of  the
 District of Columbia had an appraisal
 made, and Mr. Robert Reynolds, United
 States  Director of  Public  Buildings
 and Grounds, also appraised the prop-
 erty  on  behalf of  the  United States
 Government.  The  appraisals were so
 nearly alike that there was no dispute

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STATUTES AND LEGISLATIVE HISTORY
                                     85
about it,  and that  price  was  fixed.
Ninety-nine  and  one-half  percent  of
the title to the site is in the District of
Columbia.  This  whole project is on a
50-50 basis. The District of Columbia
pays half and the United  States Gov-
ernment the other half. I may say that
the  present courthouse now occupied
by the United States District Court of
Appeals was erected in 1823. Those on
the Public  Works Committee who visi-
ted the court  in action, and especially
those members  who are lawyers  and
practice law themselves,  saw  a great
need for a new  courthouse in the Dis-
trict of Columbia.
   The  price about which the gentle-
man inquires, $2,400,000, while it is
                              [p. 5054]
somewhat in excess of the amount paid
by the District of Columbia, neverthe-
less we must  realize they have held it
nearly  20  years  for  the purpose  for
which we now desire it, a courthouse
site. Inasmuch as the representatives
of the District of Columbia and  of the
United  States believe that is  a fair
price, it does not seem that the amount
is excessive or open to objection.
   Mr. COLE  of New  York. Would the
gentleman advise us the date on  which
this appraisal was made by Mr.  Reyn-
olds?
   Mr.  DONDERO.  Within  the last
year.
   Mr. COLE  of New York. And the
gentleman is  satisfied that this parcel
of ground, which  is now and for some
years past has been used as a parking
space, is reasonably worth $2,400,000?
   Mr. DONDERO. I am satisfied and
no member of the committee has found
himself  in  disagreement with it. I  be-
lieve it is a fair price.
   Mr. COLE of  New York. I withdraw
my reservation of objection.
   Mr. CUNNINGHAM. Mr. Speaker,
further  reserving  the  right to  object,
that additional $600,000, since the Dis-
trict of Columbia pays half of the cost,
one-half of that would be paid anyway
by the  District  of Columbia. So it is
only an increase of $300,000 over the
appraisal agreed upon and that covers
that period of 20 years. Is that correct?
   Mr. DONDERO. That is correct.
   Mr. CUNNINGHAM. I withdraw my
reservation of  objection, Mr. Speaker.
   The  SPEAKER.  Is there  objection
to the present consideration of the bill?
   There  being no objection, the Clerk
read the bill, as follows:

  Be it enacted, etc.. That the Architect of the
Capitol is  hereby authorized and  directed  to
prepare drawings  and specifications, and do all
work incidental  thereto, for a building (in-
cluding  equipment,  approaches,  architectural
landscape treatment of the grounds and connec-
tions with  public utilities,  and  the Federal
heating system) for the use of the United States
Court of Appeals  for the District  of Columbia
and the District Court of the United States for
the District of Columbia, to be located on that
part of  reservation 10  which is  bounded by
Constitution Avenue on  the south, C Street on
the north,  John  Marshall Place  on the west,
and  Third  Street on  the   east,  containing
245,266 square feet, title to  which is  in  the
District of  Columbia with the execption of two
pieces of land having a  combined total area of
1,238 square feet, title to which said two pieces
of land is in the United States.
  SEC. 2. (a) The plans for the building shall be
prepared under the direction  of,  and shall be
approved by, a committee of six members to be
composed of the  chief  justice of the  United
States Court of Appeals for the District of Co-
lumbia, the chief  justice of the District Court
of the United States for the District of  Colum-
bia, an associate justice of the District Court of
the United  States  for the District of Columbia
to be designated  by the chief justice  of  the
United States Court of Appeals for the District
of Columbia, a member of the Board of Com-
missioners  of  the District of Columbia to be
designated by said Board, the Commissioner of
Public  Buildings,  and  the  Architect  of  the
Capitol.
  (b) The  said committee  shall  estimate  the
cost of such building and report its findings to
the Congress.
  SEC. 3. The exact location of the building on
the site shall be approved  by the National
Capital Park and Planning Commission, and
the design shall be approved by the Commission
of Fine Arts.
  SEC. 4. The Commissioners of the District
of Columbia are  hereby  authorized and  di-
rected to convey to the United States title to
that part of reservation 10 which is owned by
the District of Columbia within  the area  de-
scribed  in section 1 of  this  title,  excepting a
strip 5  feet wide  immediately adjacent to  the
south line of C Street and running parallel with

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86
LEGAL COMPILATION—PESTICIDES
said south  line of C Street from Third Street
to John  Marshall Place, said strip to be re-
served for the widening of C Street: Provided,
That the said Commissioners are hereby author-
ized to continue to lease such land for parking
purposes and to  receive and use for expenses
of the District of Columbia any income derived
therefrom, until such time as the use of the land
is  required by the Federal Government for the
new court building.  The compensation for the
site, which is herein fixed at $2,420,000, shall
constitute a credit to the District of Columbia
for its share of the cost of the entire project as
hereafter established by the Congress.
  SEC. 5. The Architect of the Capitol is hereby
 authorized to employ the necessary personal
 and other services, to enter into the necessary
 contracts, and to make such other expenditures
 as may be necessary to carry out the provisions
 of sections 1 and 2 of this title, and there is
 hereby authorized to be appropriated a sum not
 in excess of $400,000 for such purposes, which
 shall include all architectural fees.

   The bill was ordered to be engrossed
 and read a  third time, was read the
 third time, and passed, and a motion
 to reconsider was laid on the table.
                               [p. 5055]
l.lb (3) (b)   June 16: Passed Senate, pp. 7007-7008
   MARKETING OF ECONOMIC
      POISONS AND DEVICES
  The Senate proceeded to consider the
bill  (H. R. 1237) to regulate the mar-
keting of economic poisons and devices,
and for other purposes.
  Mr. REVERCOMB. Mr. President,
may we  have  an explanation  of  the
bill?
  Mr.  ELLENDER. Mr.  President,
this bill  was  considered  by, and re-
ceived the unanimous approval, of the
Committee on  Agriculture and  For-
estry. The bill passed  the House of
Representatives without objection  and
with little discussion. The bill is in-
tended to replace and expand the pro-
tection afforded by the present Insec-
ticide Act of 1910. Such a bill is neces-
sary because of the vast progress made
in recent years pertaining to the de-
velopment of  many  new  insecticide
poisons.  The measure protects those
who use  such  poisons, and  also  the
public in general, by  compelling those
who handle them for sale and distri-
bution to follow  certain  rules  and
regulations.
  If the Senator will look at page 2 of
the  report, he will  see  the  reasons
advanced for  broadening the  act of
1910.
  It is primarily due to the fact that
today many more poisons are used by
farmers and others. When the present
law on the subject was enacted insec-
ticides and fungicides were compara-
 tively simple,  consisting  largely  of
 paris green, pyrethrum, bordeaux mix-
 ture, and similar  materials.  We have
 added many new poisons,  including
 DDT which  is one of the more impor-
 tant additions. As I have  just  stated
 one of the main considerations for the
 enactment of the measure is  to  insure
 that poisons shall be labeled so as to
 show what  they  are  and how they
 should be  used. In recent months  the
 use  of some of the new  poisons has
 caused a good deal of damage to live-
 stock as well as growing crops  in  the
 locality where used. Permit me  to  say
 that  other  important  improvements
 over the  present laws are as follows:
   1. A provision  requiring the  registration of
 economic poisons prior to their sale or intro-
 duction into interstate or foreign commerce.
   2. The inclusion of  provisions for protection
 of the public against poisoning by requiring
 prominently  displayed poison warnings on the
 labels of highly toxic economic poisons.
   3. A provision requiring the coloring or dis-
 coloring of dangerous white powdered economic
 poisons to prevent their being mistaken for flour,
 sugar, salt, baking powder, or other similar arti-
 cles commonly used in the preparation  of food-
 stuffs.
   4.  A requirement that warning  or  caution
 statements be  contained on the label of the
 economic poison to prevent injury to living man,
                               [p. 7007]
 other vertebrate animals, vegetation, and useful
 invertebrate animals.
   5. A provision requiring instructions for use
 to provide adequate protection for the public.
   6. A provision declaring economic poisons to
 be misbranded if they are injurious to man, ver-
 tebrate animals,  or  vegetation,  except weeds,
 when properly used.

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STATUTES AND LEGISLATIVE HISTORY
                                                                              87
  7. A provision requiring information  to be
furnished with  respect to the delivery, move-
ment,  or holding  of  economic  poisons  and
devices.
  One of the principal provisions of the bill is
the one  providing for the registration of eco-
nomic poisons prior to their being marketed.
It is believed that  this provision will provide
additional  protection for  the  public, assist
manufacturers in complying with the provisions
of the bill, and  at the same time hold adminis-
trative costs to a minimum. Under the existing
law, the Administrator has no means of ascer-
taining or knowing what  economic poisons are
being  marketed, except by having a force of
inspectors circulating through the country pick-
ing up samples  here and  there, wherever they
may be  found.  Frequently, serious damage  is
suffered  by  agricultural  producers and  other
users of economic poisons through the use of
misbranded  or  adulterated economic  poisons
before the enforcement officials have any knowl-
edge of  the existence of  such  articles, or of
their being  offered  to  the public. Under this
bill, any economic poison  subject to the provi-
sions thereof will be brought to the attention
of the enforcement officials who will have an
opportunity to become familiar with the formu-
la, label, and claims made with respect to any
such economic poison before it is offered to the
public. It should be possible,  therefore,  in  a
great majority  of instances, to  prevent  false
and misleading claims, and to prevent worthless
articles from being  marketed, and to provide a
means of obtaining speedy remedial action  if
any such articles are marketed.  Thus,  a great
measure  of protection can be accorded  directly
through  the prevention of injury rather than
having to resort solely to the  imposition of
sanctions for violations after damage or injury
has been done.  Registration will  also afford
manufacturers  an  opportunity  to  eliminate
                                          many objectionable features  from their labels
                                          prior to placing an economic poison on the
                                          market.
                                            The bill in most of its provisions is in accord
                                          with and supplements the provisions of the
                                          proposed uniform State Insecticide,  Fungicide,
                                          and Dodenticide  Act which  has been recom-
                                          mended for adoption by the Council of State
                                          Governments.  It is believed that the  enactment
                                          of this bill will greatly facilitate the coordina-
                                          tion of work in this field among the  States and
                                          with the Federal Government. It is  highly de-
                                          sirable that laws governing  economic poisons
                                          be as nearly uniform as possible consistent with
                                          the need for the protection of the public, so that
                                          manufacturers may have Nation-wide distribu-
                                          tion with a minimum of  conflict between the
                                          labeling requirements of the various  laws.
                                             Mr.  REVERCOMB. Mr. President,
                                          since  the bill deals  with the use  of
                                          poisons  for agricultural purposes,  I
                                          have no objection.
                                             The PRESIDENT pro tempore. The
                                          question is  on the third reading of the
                                          bill.
                                             The bill was ordered to a third read-
                                          ing, read the third time, and passed.

                                            CONSTRUCTION OF RURAL POST ROADS
                                            The  bill  (IL R. 1874) to amend the
                                          act entitled "An Act to provide that
                                          the United  States shall  aid the States
                                          in the construction of rural post roads
                                          and for other purposes," was consid-
                                          ered, ordered to a third reading, read
                                          the third time, and passed.
                                                                       [p. 7008]
         l.lc  REORGANIZATION  PLAN  NO.  2  OF  1953
                                  67 Stat. 633
 Prepared by the President and transmitted to the  Senate and the House of
     Representatives in Congress assembled, March 25,  1953, pursuant to the
     provisions of the Reorganization Act of 1949, approved June 20,  1949, as
     amended.
                      DEPARTMENT OP AGRICULTURE
   SEC. 1. Transfer of functions to  the Secretary.— (a)  Subject to
 the exceptions specified in subsection (b) of this section, there are
 hereby transferred to the Secretary of Agriculture all functions not
 now  vested in  him of all  other officers, and  of  all agencies  and
 employees, of the Department of Agriculture.
    (b)  This section shall not apply to the functions  vested by the
 Administrative  Procedure  Act (5 U.S.C. 1001 et seq.) in hearing
 examiners  employed by the Department of Agriculture  nor to the

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88                              LEGAL COMPILATION—PESTICIDES

 functions of  (1) the corporations of the Department of Agricul-
 ture, (2) the boards of directors and officers of such corporations,
 (3) the Advisory Board of the Commodity Credit Corporation, or
 (4) the  Farm Credit  Administration  or any agency, officer, or
 entity of, under, or subject to the supervision of the said Admin-
 istration.
   SEC. 2. Assistant Secretaries of  Agriculture.—Two additional
 Assistant Secretaries of Agriculture shall  be appointed by the
 President, by and with the advice and consent of the Senate. Each
 such assistant secretary shall perform such functions as the'Secre-
 tary of Agriculture shall, from time to time, prescribe and each
 shall  receive  compensation at  the rate  prescribed by law for
 Assistant Secretaries of executive departments.
   SEC. 3. Administrative Assistant Secretary.—An Administra-
 tive Assistant Secretary of Agriculture  shall be appointed, with
 the approval of the President,  by  the  Secretary of Agriculture
 under the classified civil service, and shall perform such functions
 as the Secretary of Agriculture  shall, from time to time, prescribe.
 The provisions of the item numbered (1) of the third proviso under
 the heading "General Provisions" appearing in Chapter XI of the
 Third  Supplemental Appropriation Act, 1952, approved June  5,
 1952, 66 Stat. 121, are hereby made applicable to the position of
 Administrative Assistant Secretary  of Agriculture.
   SEC. 4. Delegation of functions.— (a) The Secretary of  Agri-
 culture may  from time to time  make such provisions as he shall
 deem appropriate authorizing the performance by any other officer,
 or by any agency  or employee,  of the Department of Agriculture
 of any function of the Secretary,  including any function trans-
 ferred to the Secretary by the  provisions of this reorganization
 plan.
    (b)  To the extent that the carrying out of subsection (a)  of this
 section involves the assignment  of major functions or major groups
 of  functions  to major constituent organizational units of the
 Department  of Agriculture, now or hereafter existing, or to the
 heads or other officers thereof,  and to the extent deemed practic-
 able by  the Secretary,  he  shall give appropriate advance public
 notice of delegations of functions  proposed to  be  made by him
                                                       [p. 633]
 and shall afford  appropriate opportunity for interested persons
 and groups to place before the Department of Agriculture their
 views with respect to such proposed  delegations.
    (c)  In carrying out subsection (a) of this section the Secretary
 shall  seek to simplify and make  efficient  the  operation  of the

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STATUTES AND LEGISLATIVE HISTORY                          89

Department of Agriculture, to place the administration of farm
programs close  to  the  state and local levels, and to adapt the
administration of the programs of the Department to regional,
state, and local conditions.
  SEC. 5. Incidental transfers.—The Secretary of Agriculture may
from time to time effect such transfers within the Department of
Agriculture of any of the records, property and personnel affected
by this reorganization  plan and such  transfers  of unexpended
balances (available or to be made available for use in connection
with  any affected function or agency)  of appropriations, alloca-
tions, and other funds of such  Department, as he deems  necessary
to carry out the provisions of this reorganization plan; but such
unexpended balances so transferred shall be used only for the
purposes for which  such appropriation was originally made.
                                                      [p. 634]

l.ld   NEMATOCIDE, PLANT REGULATOR, DEFOLIANT AND
            DESICCANT AMENDMENTS OF 1959
               August 7,1959, P. L. 86-139, 73 Stat. 286
                           AN ACT
To amend the Federal Insecticide,  Fungicide, and Rodenticide Act so as to
   include nematocides, plant regulators, defoliants, and desiccants, and for
   other purposes.
  Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may
be cited as the "Nematocide, Plant Regulator, Defoliant, and Desic-
cant Amendment of 1959".
  SEC.  2. (A) The Federal Insecticide,  Fungicide, and Rodenticide
Act (61 Stat. 163; 7 U.S.C. 135-135k) is amended so that sections
2a and 2b read as follows:
  "a. The term 'economic poison' means  (1) any substance or
mixture of substances intended for preventing, destroying, repell-
ing, or mitigating any insects, rodents, nematodes, fungi, weeds,
and other forms of plant or animal life or viruses, except viruses on
or in living man or other animals, which the Secretary shall declare
to be a pest,  and (2) any  substance  or mixture of substances
intended for use as a plant regulator, defoliant or  desiccant.
  "b. The term  'device' means any instrument  or contrivance
intended for trapping, destroying, repelling, or mitigating insects
or rodents or destroying, repelling, or mitigating fungi, nematodes,
or such other pests as may be designated by the Secretary, but not
including equipment used for the application of economic poisons
when sold separately therefrom."

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90                             LEGAL COMPILATION—PESTICIDES

  (B)  Section 2 of such Act is further amended by redesignating
subsections g through u to be subsections 1 through z respectively;
and by adding new subsections g, h, i, j, and k, and amending new
subsections p and z, to read respectively as follows:
  "g. The term  'nematocide' means any substance or mixture  of
substances intended for preventing, destroying, repelling, or miti-
gating nematodes.
  "h. The term 'plant regulator' means any substance or mixture
of substances, intended through physiological action, for acceler-
ating or retarding the rate of growth or rate of maturation, or for
otherwise altering the behavior of ornamental or crop plants or the
produce thereof, but shall not include substances to the extent that
they are intended as  plant nutrients, trace elements, nutritional
chemicals, plant inoculants, and soil amendments.
  "i. The term 'defoliant' means any substance or mixture of sub-
stances intended for causing the leaves or foliage to drop from a
plant, with or without causing abscission.
  "j.  The term  'desiccant' means  any substance  or mixture  of
substances intended  for artificially  accelerating  the  drying  of
plant tissue.
  "k. The  term 'nematode' means  invertebrate animals of the
phylum nemathelminthes and class nematoda, that is, unsegmented
round worms with elongated, fusiform, or saclike bodies covered
with cuticle, and inhabiting soil, water, plants or plant parts; may
also be called nemas or eelworms.
  "p. The term 'active ingredient' means—
      "(1)  in the case of an economic poison other than a plant
    regulator, defoliant or desiccant, an  ingredient which will
    prevent, destroy, repel, or mitigate insects, nematodes, fungi,
    rodents, weeds, or other pests;
      "(2)  in the case of a plant regulator, an ingredient which,
    through physiological action, will accelerate or retard the rate
    of growth or rate of maturation or otherwise alter the behav-
    ior of ornamental or crop plants or the produce thereof;
                                                      [p. 286]
      "(3)  in the  case of a defoliant, an ingredient which will
    cause the leaves or foliage to drop from a plant;
      "(4)  in the  case of a desiccant, an ingredient which will
    artificially accelerate the drying of plant tissue.
  "z.  The term 'misbranded' shall apply—
      "(1)  to any economic poison or device if its labeling bears
    any  statement, design,  or graphic representation relative

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STATUTES AND LEGISLATIVE HISTORY                          91

    thereto or to its ingredients which is false or misleading in
    any particular;
       " (2) to any economic poison—
           " (a) if it is an imitation of or is offered for sale under
         the name of another economic poison;
           " (b) if its labeling bears any reference to registration
         under this Act;
           "(c)  if the labeling accompanying it does not contain
         directions for use which are  necessary and  if complied
         with adequate for the protection of the public;
           " (d) if the label does not contain a warning or caution
         statement which may be necessary and if complied with
         adequate  to prevent injury  to living man  and other
         vertebrate animals, vegetation, and useful  invertebrate
         animals;
           " (e)  if the label does not bear an ingredient statement
         on that part of the immediate container and on the  out-
         side  container or  wrapper,  if there be one,  through
         which the ingredient statement on  the immediate  con-
         tainer cannot be clearly read, of the retail package which
         is presented or displayed under customary conditions of
         purchase: Provided, That the Secretary may permit the
         ingredient statement to appear prominently on some other
         part of the container, if the size or form of the container
         makes it impracticable to place it on the part of the retail
         package which is presented or displayed under customary
         conditions of purchase;
           "(f)  if any word,  statement, or  other  information
         required by or under authority of this Act to appear on
         the label or labeling is not prominently placed thereon
         with such conspicuousness (as compared with other words,
         statements,  designs, or graphic matter in the labeling)
         and in  such terms  as to render it likely to be read  and
         understood by the ordinary individual under  customary
         conditions of purchase and use; or
           " (g) if in the case of an insecticide, nematocide,  fungi-
         cide, or herbicide when  used as directed or in accordance
         with commonly recognized practice it shall be injurious
         to living man  or other vertebrate animals, or vegetation,
         except  weeds, to which it is  applied, or to  the person
         applying such economic  poison; or
           "(h) if in the case of a plant regulator, defoliant, or
         desiccant when used as directed it shall be  injurious to

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92                             LEGAL COMPILATION—PESTICIDES

        living man or other vertebrate animals, or vegetation to
        which it is  applied,  or  to the person  applying such
        economic poison: Provided, That physical or physiological
        effects on plants or parts thereof shall not be deemed to
        be injury, when this is the purpose for which the plant
        regulator, defoliant, or desiccant was applied, in accord-
        ance with the label claims and recommendations."
  SEC. 3.  This Act shall take effect on the date of its enactment,
except that—
       (a)  with respect to any nematocide, plant regulator, defoli-
    ant, or desiccant which was marketed commercially prior to
    the date of enactment and whose use does not result in resi-
    dues of same remaining in or on a food, and  with respect to
    any nematocide, plant regulator, defoliant, or desiccant whose
    use does result in residue remaining in or on a food at  the
    time of introduction into interstate commerce and which  use
    had commercial application prior to January  1,  1958, section
    3, "Prohibited Acts"; section 8, "Penalties"; section 9, "Seiz-
    ures" ; and section  10, "Imports", of the Federal Insecticide,
    Fungicide, and Rodenticide Act, which this Act amends, shall
    not be applicable until—
           (1) March  5, 1960, or  such  later date, not beyond
        March 5, 1961, as the Secretary of Agriculture may pre-
        scribe on the basis of a determination that such action
        will not  be unduly detrimental to the public interest and
        is necessary to avoid hardships, or
           (2) that date on which a registration for such  use is
        issued under  the  Federal Insecticide,   Fungicide, and
        Rodenticide Act,
    whichever date first occurs; and
       (b) with  respect to any particular  commercial  use of a
    nematocide, plant regulator, defoliant, or desiccant in or on a
    raw agricultural commodity,  if such use was made of such
    substance  before January 1, 1958, section 406 (a) and clause
    (2) of section 402 (a) of the Federal Food, Drug, and Cosmetic
    Act as in force prior to the date of the enactment of the Act
    of July 22, 1954  (68 Stat. 511) (relating to pesticide chemi-
    cals on raw agricultural commodities) shall apply until—
           (1) March  5,  1960, or the end of  such additional
         period,  not beyond  March 5, 1961, as the Secretary of
         Health,  Education,  and Welfare may  prescribe  on the
        basis  of a finding that such extension involves no  undue
         risk to the public health and that conditions exist  which

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STATUTES AND LEGISLATIVE HISTORY                         93

         necessitate the prescribing of such an additional period,
         or
           (2) the date on which  an order with respect to such
         use under section  408 of  the Federal Food, Drug,  and
         Cosmetic  Act  (21 U.S.C. 346a) becomes  effective,
    whichever date first occurs.
  Approved August 7,1959.
                                                     [p. 288]

     Lid (1)   HOUSE COMMITTEE ON AGRICULTURE
            H. R. REP. No. 552, 86th Cong., 1st Sess. (1959)
 AMENDING THE FEDERAL INSECTICIDE, FUNGICIDE,
 AND RODENTICIDE ACT TO INCLUDE NEMATOCIDES,
 PLANT REGULATORS, DEFOLIANTS, AND  DESICCANTS
JUNE 16,1959.—Committed to the Committee of the Whole House on the State
                of the Union and ordered to be printed
Mr. COOLEY, from the Committee on Agriculture, submitted the
                          following
                         REPORT
                    [To accompany H. R. 6436]
  The Committee on Agriculture, to whom was referred the bill
 (H.R. 6436) to amend the Federal Insecticide, Fungicide, and Ro-
denticide Act so as to include nematocides, plant regulators, defoli-
ants,  and desiccants, and  for other purposes, having considered
the same,  report  favorably  thereon with  an  amendment  and
recommend that the bill as amended do pass.
  The amendment is as follows:
  Strike put entire section 3 (b),  page 7, line 21, through page 8,
line 14, and substitute therefor the following:
       (b)  with  respect to any  particular commercial  use of  a
    nematocide, plant regulator,  defoliant, or desiccant in or on a
    raw agricultural commodity, if such use was made of such sub-
    stance before January 1, 1958, section 406(a) and clause (2)
    of section 402 (a) of the  Federal Food, Drug, and  Cosmetic
    Act as in  force prior to the  date of enactment of the Act of
    July 22, 1954, 68 Stat. 511  (relating to pesticide chemicals
    on raw agricultural commodities) shall apply until—
           (1) March 5,1960 or the end of such additional period,
        not beyond March 5, 1961, as the Secretary of Health,
        Education, and Welfare  may prescribe on the basis of a

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94                             LEGAL COMPILATION—PESTICIDES

        finding that such extension involves no undue risk to the
        public health and that conditions exist which necessitate
        the prescribing of such an additional period, or
           (2) the date on which an order with respect to such
        use under section 408 of the Federal Food, Drug, and Cos-
        metic Act (21 U.S.C. 348) becomes effective,
        whichever date first occurs.

                     PURPOSE OP THE BILL
  The purpose of this bill is to provide for the proper regulation of
nematocides,  plant regulators, defoliants,  and desiccants  which
have become of great importance to agriculture and related inter-
ests during the last 10 years.
  Nematocides are used to  control very small worms known as
nematodes or  eelworms,  many of which attack plants. Defoliants
are used to make leaves drop from plants, generally to permit
mechanical harvesting. Desiccants are used to hasten the drying
of plant tissues, usually  to facilitate harvesting or improve crop
quality. Plant regulators are used to modify  the normal  growth
processes of plants or the produce thereof, for  such purposes as to
prevent fruit  drop, to hasten maturity, and to delay sprouting in
storage. The products are defined in more precise technical terms
in the bill.
  The effect of the bill is to subject the aforementioned products to
the same regulatory controls and requirements under the Federal
Insecticide, Fungicide, and Rodenticide Act as are now applicable
to insecticides, fungicides, weed  killers, and rodenticides. By plac-
ing these products under that act, the bill would also effectively,
although  indirectly, place them under  the pesticide  chemicals
amendment to the Federal Food, Drug, and Cosmetic  Act  (Public
Law 518, 83d Cong.), insofar as  residues in or  on raw agricultural
commodities may be involved, because of the interrelationship of
the two acts.
  The bill  would accomplish its objective of placing nematocides,
plant regulators, defoliants,  and desiccants  under  the Federal
Insecticide, Fungicide,  and  Rodenticide  Act by  expanding  the
present definition of "economic poison" in that act to include these
products. It would also amend certain other definitions  in the act
and add some additional ones, as necessitated by the broader cov-
erage. However, it  does  not change the substantive provisions of
the act as they relate to presently regulated products.
  The bill would become effective upon enactment and thus permit
the Department of Agriculture to begin the  registration  of the
newly regulated products, as required by the  Federal Insecticide,

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 STATUTES AND LEGISLATIVE HISTORY                          95

 Fungicide, and Rodenticide Act, and also permit the Department
 of Health, Education, and Welfare to establish tolerances for them
 on raw agricultural commodities under section 408 of the Federal
 Food, Drug, and Cosmetic Act. However, in  order to permit  an
 orderly transition period for both the Government and the indus-
 try, provision is made to defer the applicability of  certain sections
 of those two acts to some of these products until March 5, 1960 or
 such later date or dates, not beyond March 5, 1961, as the Secre-
 tary of Agriculture and the  Secretary of Health,  Education, and
 Welfare, respectively, may prescribe on the basis of a determina-
 tion that such postponement is necessary to avoid hardships and
 will not be unduly detrimental to the public interest.  These dates
 have been specified so as to have the fully effective dates under this
 bill coincide with those under the food additives amendment to the
 Federal Food, Drug, and Cosmetic Act (Public Law 85-929). Since
                                                         [p. 2]
 some products which would be affected by this bill are also subject
 to the food  additives amendment, it has  appeared desirable that
 the two become fully effective at the same time.

                         BACKGROUND
  The original Federal Insecticide Act was passed in 1910. The
 present Federal  Insecticide, Fungicide, and Rodenticide  Act was
 enacted in 1947 to reflect the then  current situation as  regards
 pest control chemicals and agricultural practices. It regulates the
 labeling and marketing of insecticides, fungicides,  herbicides, and
 rodenticides which are collectively referred to in the  act as "eco-
 nomic poisons," and commonly known as pesticides.
  Since 1947, several new types of agricultural  chemicals have
 been developed and have found widespread commercial application.
 These new products are generally  referred to  and are designated
 in this bill as nematocides, defoliants, desiccants, and plant regu-
 lators. While these products are now regulated under some State
 laws which correspond to the Federal Insecticide,  Fungicide, and
 Rodenticide  Act, they are not regulated under the latter  statute.
 Because of the importance of these products  to the agricultural
 interests of  this Nation, various organizations and groups have
 expressed the opinion that they should be  subject to similar regu-
 lation at the Federal level.
  Experience has shown that regulation of agricultural pest con-
trol  chemicals under the Federal  Insecticide, Fungicide,  and
 Rodenticide  Act has been effective and beneficial to farmers and
 growers. Accordingly, it appears desirable that the same type  of

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96                            LEGAL COMPILATION—PESTICIDES

regulation, under the same act, should be applied to these more
recently developed products.

                          HEARING
  A hearing was held by the full committee on this bill. At the
hearing,  representatives from  the  Department  of Agriculture,
land-grant colleges, the Association of American Pesticide Control
Officials, Inc., farm and grower organizations, and the agricultural
chemical industry appeared and testified unanimously in favor of
the bill and urged its enactment.

                   COMMITTEE AMENDMENT
  In addition to placing  nematocides, plant regulators, defoliants,
and desiccants under the Federal Insecticide, Fungicide, and Ro-
denticide Act, the bill also makes residues of such chemicals in or
on raw agricultural commodities subject to the pesticide chemi-
cals amendment to the Federal Food, Drug, and Cosmetic Act. The
bill,  as introduced, provided that that amendment would not be
applicable to some of the chemicals for a  period of time  to be
specified by the Secretary of Health, Education, and Welfare, but
not extending beyond March 5, 1961. The committee amendment,
adopted upon the recommendation of the Department of Health,
Education, and  Welfare, provides  that  during this  transitional
period,  the adulteration provisions of the earlier law shall be
applicable for the purpose of protecting the public health.
                                                        [p. 3]
                   DEPARTMENTAL REPORTS
  Reports recommending enactment of H.R. 6436 were received
from both the Department of Agriculture and the Department of
Health, Education and Welfare. In connection with the estimates
of cost in the report of the Department of Agriculture,  it is to be
noted that many of the products are now scheduled for regulation
by the  Food and Drug Administration under the provisions of the
food additive amendment,  so that transfer of their regulation to
the Department of Agriculture under terms of this bill  will be in
part a transfer of administrative  cost.  Thus the estimates of
administrative cost made by the Department of Agriculture are
not all new or additional costs.
  The  amendment recommended by the Department of Health,
Education, and Welfare  was adopted by the committee.

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STATUTES AND  LEGISLATIVE HISTORY                               97

                                                          MAY 21,1959.
Hon. HAROLD D. COOLEY,
Chairman, Committee on Agriculture,
House of Representatives.
  DEAR CONGRESSMAN COOLEY: This is in reply to your request of April 16 for
a report on H. R. 6436, a bill to amend the Federal Insecticide, Fungicide, and
Rodenticide Act so as to include nematocides, plant regulators, defoliants, and
desiccants, and for other purposes.
  This  Department  supports  the purposes of the bill and  recommends its
enactment.
  The bill would amend the Federal Insecticide, Fungicide,  and Rodenticide
Act so as to  bring  within  the provisions of that law four  new classes of
chemicals. These classes are  nematocides, plant regulators, defoliants, and
desiccants.
  Our reasons for making the above recommendation are as follows:
  (1)  The new  classes  of  chemicals which  would be brought within  the
Federal Insecticide,  Fungicide, and Rodenticide  Act are characteristically
agriculture chemicals. The  regulation of their  use would provide the same
protection to farmers and  others using them as is  now  provided users of
products subject to the present act.
  (2)  These materials have developed into significant agricultural usage since
the Federal Insecticide, Fungicide, and Rodenticide Act was enacted in 1947.
Thus, their inclusion within  the provisions of that law appears warranted now
on the basis of their vastly increased commercial usage.
  (3)  It  is  in the interest of uniformity in the regulation of agricultural
chemicals to  have nematocides, plant regulators, defoliants,  and desiccants
subject to the same requirements as are insecticides, fungicides, and herbicides.
  (4)  Many  State pesticide statutes presently regulate these materials. The
bill would bring them under Federal jurisdiction and would promote uniformity
in Federal-State pesticide regulation.
  It is estimated  that $350,000 would be required to administer the provisions
of H. R. 6436.
  The Bureau of the Budget advises that there is no objection to the submis-
sion of this report.
      Sincerely yours,                                       E. T. BENSON
                                 	                            [p. 4]
                  DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
                                                          May 20, 1959.
Hon. HAROLD D. COOLEY,
Chairman, Committee on Agriculture,
House of Representatives, Washington, D. C.
  DEAR MR. CHAIRMAN : This responds to your request of May 13, 1959, to the
Commissioner of  Food and Drugs for a report on H. R. 6436, a bill to amend
the  Federal  Insecticide, Fungicide, and  Rodenticide Act so as  to include
nematocides,  plant regulators, defoliants,  and desiccants,  and  for  other
purposes.
  The bill would amend  the definition of the term "economic poison"  in the
Federal Insecticide, Fungicide, and Rodenticide Act so that nematocides, plant
regulators, defoliants, and desiccants would be regarded as economic poisons
for  the purpose of that act. This automatically would classify these chemicals,

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98                                  LEGAL COMPILATION—PESTICIDES

with respect to residues thereof on raw agricultural commodities, as "pesticide
chemicals" and exclude them from the term "food additive" for the purposes of
the Federal Foood, Drug, and Cosmetic Act, and thus would require tolerances
for the residues on food crops to be established under the pesticide chemicals
amendment  of that  act  (sec.  408)  rather  than under the Food Additives
Amendment of 1958 (sec. 409).
  We defer to the views of the Department of Agriculture insofar as the effect
of the bill upon the  Insecticide, Fungicide,  and Rodenticide Act,  which that
Department administers, is concerned.
  Subject to modification of the transitional provisions of the  bill, discussed
below, we see no objection to the bill  from the standpoint of the Food, Drug,
and Cosmetic Act which this Department administers, since, as  above indicat-
ed, the permanent effect of the bill would be to require safe tolerances for the
four groups of agricultural chemicals named  in the title to be established under
the pesticide  chemicals amendment rather  than the food  additives amendment.
Both laws require adequate scientific  proof of safety. Indeed, from our view-
point, some advantage would be gained by having the Secretary of Agriculture
certify the usefulness of these chemicals to us, as he is called upon to do under
the pesticide chemicals amendment to our act.
  We believe, however, that the traditional provisions (sec.  3)  of  the bill are
in need of modification insofar as they pertain to our act.
  Section 3(b) would, for a period of time  which could extend to as late as
March 5,  1961, prevent any of these chemicals which were commercially used
before January 1, 1958, from being considered adulterated under the pesticide
chemicals amendment to our act when not in  conformity with the requirements
of that amendment.  This transitional period parallels the transitional period
during which, under present  law, these chemicals need not conform to the
pretesting requirements of the food additives amendment. However, unlike the
transitional provisions of the food additives amendment (Public Law 85-929,
sec. 6(c)), the bill fails to preserve, during this transitional period, the appli-
cation of the adulteration provisions of  the  earlier law under which food-
bearing residues of added chemicals, if they are poisonous or deleterious sub-
stances, would be deemed adulterated unless these  chemicals are  required in
production and meet such tolerance limitations, if  any, as  we  may establish
for them.
  If enacted in  its present form, this section would thus create a  loophole in
the consumer protection now available under  the pure
                                                                   LP-oJ

food law. For a period that could extend  to March 5, 1961, it would make it
more difficult, if not impossible, for this Department to safeguard the public in
case crops were marketed with excessive residues of certain nematocides, plant
regulators, defoliants, or desiccants. This loophole,  which we believe was not
intended to be created, could be closed by revising  section 3(b)  of the bill to
read as stated in the proposed substitute enclosed herewith.
  With the substitution of the enclosed language, we would  have no  objection
to the enactment of this bill.
  The Bureau of  the  Budget  advises that  it perceives no  objection  to the
submission of this report to your committee.
      Sincerely yours,
                                             ELLIOT L. RICHARDSON,
                                                    Assistant Secretary.

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STATUTES AND LEGISLATIVE HISTORY                          99

       PROPOSED SUBSTITUTE FOR SECTION 3 (b) OF H.R. 6436
   " (b) with respect to any particular commercial use of a nemato-
cide, plant regulator, defoliant, or desiccant in  or on a raw agri-
cultural commodity, if such use was made of such substance before
January 1, 1958, section 406 (a)  and clause (2)  of section 402 (a)
of the Federal Food, Drug, and Cosmetic Act as in force prior to
the date of enactment of the Act of July 22, 1954,  68 Stat. 511
 (relating to pesticide chemicals on raw agricultural commodities)
shall apply until—
       (1) March 5, 1960 or the end  of such additional period, not
    beyond March 5, 1961, as the Secretary of Health, Education,
    and Welfare may prescribe on the basis of a finding that such
    extension involves no undue risk to the public health and that
    conditions exist which necessitate  the prescribing of such an
    additional period, or
       (2) the date on which an order with respect to such use
    under section 408 of the Federal Food,  Drug, and Cosmetic
    Act (21 U.S.C. 348)  becomes effective,
whichever date first occurs."
                  CHANGES  IN EXISTING LAW
   In compliance with clause 3 of rule XIII  of the  Rules of the
House of Representatives, changes in  existing  law  made by the
bill are shown as follows  (existing law proposed to be omitted is
enclosed in  black  brackets, new matter is printed  in italic, and
existing law in which no change is proposed is shown in roman)  :
                                                         [p. 6]

FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE
                             ACT
AN ACT To regulate the marketing of economic poisons and devices, and for
                         other purposes
  Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled.
                            TITLE
  SECTION 1. This Act may be cited as the "Federal Insecticide,
Fungicide, and  Rodenticide Act."
                         DEFINITIONS
  SEC. 2.  For the  purpose of this Act—
  a. The  term  "economic poison" means (1)  any  substance or
mixture of substances intended for preventing,  destroying, repel-
ling, or mitigating any insects, rodents, nematodes, fungi, weeds,
and other forms of plant or animal life or viruses, except  viruses

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100                            LEGAL COMPILATION—PESTICIDES

on or in living man or other animals, which the Secretary shall
declare to be a pest [.]  and (2) any substance or mixture of sub-
stances intended for use as a plant regulator, defoliant or desiccant.
  b. The term "device" means any instrument or contrivance in-
tended for trapping, destroying, repelling, or mitigating insects or
rodents or destroying, repelling, or  mitigating fungi, nematodes,
or such other pests as may be designated by the Secretary, but not
including equipment used for the application of economic poisons
when sold separately therefrom.
  c. The term "insecticide"  means any substance or mixture of
substances intended for preventing, destroying, repelling, or miti-
gating  any insects which  may  be present in any  environment
whatsoever.
  d. The term "fungicide" means any substance or mixture of sub-
stances intended for preventing, destroying, repelling, or mitigat-
ing any fungi.
  e. The term "rodenticide" means  any  substance or mixture of
substances intended for preventing, destroying, repelling, or miti-
gating rodents or any other vertebrate animal which the Secretary
shall declare to be a pest.
  f. The term "herbicide"  means any  substance  or mixture of
substances intended for preventing, destroying, repelling, or miti-
gating any weed.
  g. The term "nematocide" means any  substance or mixture of
substances intended for 'preventing, destroying, repelling, or miti-
gating nematodes.
  h. The term "plant regulator" means any substance or mixture
of substances, intended through physiological action, for  acceler-
ating or retarding the rate of growth or rate of maturation, or for
otherwise altering the behavior of ornamental or crop plants or
the produce thereof, but shall not include substances  to the extent
that they are intended  as plant nutrients, trace elements, nutri-
tional chemicals,  plant inoculants, and soil amendments.
  i.  The term "defoliant" means any substance or mixture of sub-
stances intended for causing the leaves or foliage to drop from a
plant, with or without causing abscission.
                                                         [p. 7]
  j. The term "desiccant" means any substance or mixture of sub-
stances intended  for  artificially accelerating  the drying of plant
tissue.
  k. The term "nematode"  means  invertebrate animals  of  the
phylum nemathelminthes and class nematoda, that is, unsegmented
round worms with elongated, fusiform or saclike bodies  covered

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 STATUTES AND LEGISLATIVE HISTORY                         101

 with cuticle, and inhabiting soil, water, plants or plant parts; may
 also be called nematocides or eelworms.
   [g.] I. The term "weed" means any plant which grows where
 not wanted.
   [h.] m. The term "insect" means any of the numerous small
 invertebrate animals generally having the body more or less obvi-
 ously segmented, for the most part belonging to the class insecta,
 comprising six-legged, usually  winged  forms,  as,  for example,
 beetles, bugs, bees, flies, and to  other allied classes of arthropods
 whose members are wingless and usually have more than six legs,
 as, for example, spiders, mites, ticks, centipedes, and wood lice.
   [i.]  n. The term "fungi" means all  non-chlorophyll-bearing
 thallophytes (that is, all non-chlorophyll-bearing plants of a lower
 order than mosses  and liverworts) as, for example, rusts, smuts,
 mildews, molds, yeasts, and bacteria, except  those on or in living
 man or other animals.
   [j.]  o. The term "ingredient statement" means either—
   (1)  a statement  of  the name  and  percentage  of each active
 ingredient, together with the total percentage of the inert ingredi-
 ents, in the economic poison; or
   (2)  a statement of the  name of each active ingredient, together
 with the name of each and total percentage of the inert ingredients,
 if any  there be, in the economic poison (except option 1 shall apply
 if the preparation is highly toxic to man, determined as provided
 in section 6 of this Act)  ;
 and, in addition to (1)  or  (2) in case the economic poison contains
 arsenic in any form, a statement  of the percentages of total and
 water soluble arsenic, each calculated as elemental arsenic.
   [k.]  p. The term "active ingredient" means—
       (1)  in the case of  an economic poison other than a plant
    regulator, defoliant or desiccant, an  ingredient  which will
    prevent, destroy, repel, or mitigate insects, nematcdes, fungi,
    rodents, weeds, or other pests [.] ;
       (2)  in the case  of  a plant regulator, an ingredient which,
    through physiological action, will accelerate or retard the rate
    of growth or rate of maturation  or otherwise  alter the  be-
    havior of ornamental or crop plants or the produce thereof;
       (3) in the case of a  defoliant, an ingredient which will cause
    the leaves or foliage to drop from a plant;
       (4) in the case of a desiccant, an ingredient which will arti-
    ficially accelerate the drying of plant tissue.
   [L]  q. The term "inert ingredient" means  an  ingredient which
is not active.

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102                            LEGAL COMPILATION—PESTICIDES

   [m.]  r. The term "antidote" means a practical immediate treat-
ment in case of poisoning and includes first-aid treatment.
   [n.] s. The  term "person" means any individual, partnership,
association,  corporation, or  any  organized group  of  persons
whether incorporated or not.
                                                         [p. 8]
   [o.] t. The term "Territory" means any Territory or possession
of the United States, excluding the Canal Zone.
   [p.] u. The term "Secretary" means the Secretary  of Agricul-
ture.
   [q.] v. The term "registrant" means the person registering any
economic poison pursuant to the provisions of this Act.
   [r.] w. The term "label" means the written, printed, or graphic
matter  on, or  attached to, the economic  poison or  device or the
immediate container thereof, and the outside container or wrapper
of the retail package,  if any there  be,  of the economic poison
or device.
   [s.] x. The term "labeling" means all labels and other  written,
printed, or graphic matter—
   (1) upon  the economic poison or device or any of its containers
or wrappers;
   (2) accompanying the economic poison or device at  any time;
   (3) to which reference is made on the label or in literature
accompanying the economic poison or device, except to current
official publications of the United States Departments  of Agricul-
ture and Interior, the United States Public Health Service, State
experiment stations, State agricultural colleges, and other similar
Federal or  State institutions or  agencies  authorized by law to
conduct research in the field  of economic poisons ;
   [t.] y. The term "adulterated" shall  apply to any economic
poison if its  strength or purity falls below the professed standard
or quality as expressed on its labeling or under which it is sold, or
if any substance has been substituted wholly or in part for the arti-
cle,  or if any valuable constituent of the article has been wholly or
in part abstracted.
   z.  The term "misbranded" shall apply—
        (1) to  any economic  poison or device  if its labeling bears
     any statement,  design,  or graphic representation  relative
     thereto  or to its ingredients which is false or  misleading in
     any particular;
       (2) to any economic poison—
            (a) if it is an imitation of or is offered for sale under
         the name of another economic poison;

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STATUTES AND LEGISLATIVE HISTORY                         103

           (b) if its labeling bears any reference to registration
         under this Act;
           (c)  if the labeling accompanying it does not contain
         directions for use which are necessary and if complied
         with adequate for the protection of the public;
           (d) if the label does not contain a warning or caution
         statement which may be necessary and if complied with
         adequate  to prevent injury to living man  and other
         vertebrate animals,  vegetation, and useful invertebrate
         animals;
           (e)  if the label does not bear an ingredient statement
         on that part of the immediate container  and on the out-
         side container or wrapper, if there be one, through which
         the  ingredient statement  on the immediate container
         cannot be clearly read, of the retail package which is
         presented or displayed under  customary conditions of
         purchase: Provided, That the Secretary  may permit the
         ingredient  statement to appear  prominently on some
         other part of the container, if the size  or form of the
         container makes  it impracticable  to place it on the part
         of the retail package  which is presented or displayed
         under customary conditions of purchase;
                                                        [p. 9]
          "(f)  if any word, statement, or other  information re-
         quired by or under authority of this Act to appear on the
         label or labeling is not prominently placed thereon with
         such  conspicuousness (as compared with other  words,
         statements,  designs, or graphic matter in the labeling)
         and  in such terms as to render it likely  to be read and
         understood by the ordinary individual under  customary
         conditions of purchase and use; or
           (g)  if in  the case  of an insecticide, nematocide, fungi-
         cide, or herbicide when used as directed or in accordance
         with commonly recognized  practice it shall be injurious
        to living man or other vertebrate animals, or vegetation,
         except weeds, to which it  is applied,  or to the  person
         applying such economic poison [.] ; or
          (In)  if in the  case of a plant regulator, defoliant,  or
        desiccant when used as directed it shall  be injurious to
         living man or other vertebrate animals, or vegetation to
        which it is applied, or to the person applying such eco-
        nomic poison: Provided,  That physical or physiological
        effects on plants or parts thereof shall not be  deemed to

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104                           LEGAL COMPILATION—PESTICIDES

         be injury, when this is the purpose for which the plant
         regulator, defoliant, or desiccant was applied, in accord-
         ance with the label claims and recommendations.
                                                      [p. 10]

l.ld  (2)   SENATE  COMMITTEE ON  AGRICULTURE AND
                         FORESTRY
             S. REP. No. 519, 86th Cong., 1st Sess. (1959)
NEMATOCIDE,  PLANT  REGULATOR,  DEFOLIANT, AND
            DESICCANT AMENDMENT  OF  1959
                JULY 15,1959.—Ordered to be printed
Mr. HOLLAND, from the Committee on Agriculture and Forestry,
                   submitted the following

                         REPORT
                    [To accompany H. R. 6436]
  The Committee on Agriculture and Forestry, to whom was re-
ferred the bill (H.R.  6436)  to  amend  the Federal  Insecticide,
Fungicide, and Rodenticide Act so as to include nematocides, plant
regulators, defoliants, and desiccants, and for other purposes, hav-
ing considered the same, report thereon with a recommendation
that it do pass with an amendment.
  This bill provides for regulation of the labeling and marketing
of nematocides, plant regulators,  defoliants, and desiccants under
the Federal Insecticide, Fungicide, and Rodenticide Act. By bring-
ing these products under that act, the bill would also  bring them
under the pesticide chemicals amendment to the Federal Food,
Drug, and Cosmetic Act (sec. 408 of that act), which provides the
manner in which  tolerances are established for their  residues on
raw agricultural commodities.
  The bill is fully explained in the attached report of the  House
Committee on Agriculture. The amendment recommended by the
House committee was adopted by the House.
  The committee  amendment corrects a reference in the bill to
the United States  Code. Section 408 of the Federal Food, Drug, and
Cosmetic Act should be cited as "21 U.S.C. 346a",  rather than
"21U.S.C.348".
                 [H. Kept. 552, 86th Cong., 1st sess.]
  The Committee on Agriculture, to whom was referred the bill
(H.R.6436)  to amend the Federal Insecticide,  Fungicide, and

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STATUTES AND LEGISLATIVE HISTORY                         105

Rodenticide Act  so  as  to include nematocides,  plant  regulators,
defoliants, and desiccants, and for  other  purposes, having  con-
sidered the same,
                                                        [p-1]
report favorably thereon with an amendment and recommend that
the bill as amended do pass.
   The amendment is as follows :
   Strike out entire section 3(b), page 7, line 21, through page 8,
line 14, and substitute therefor the following:
       (b) with  respect to any particular commercial use  of a
    nematocide,  plant regulator, defoliant, or desiccant in or on
    a raw agricultural  commodity, if such use was made of  such
    substance before January 1, 1958, section 406 (a)  and clause
     (2) of section 402 (a) of the Federal Food, Drug, and Cosmetic
    Act as in force prior to  the date of enactment of the Act of
    July 22, 1954, 68 Stat. 511 (relating to pesticide chemicals on
    raw agricultural commodities) shall apply until—
           (1)  March  5, 1960, or  the  end of such  additional
         period, not beyond  March  5, 1961,  as  the Secretary of
         Health,  Education,  and Welfare  may  prescribe on the
         basis of a finding that such extension involves no undue
         risk to the public health and that conditions exist which
         necessitate the prescribing of such an additional period, or
           (2)  the date on which an order with respect to  such
         use under section 408 of the Federal Food,  Drug,  and
         Cosmetic Act  (21 U.S.C. 348) becomes effective,
    whichever date first occurs.
                     PURPOSE OF THE BILL
   The purpose of this bill is  to provide for the proper regulation
of nematocides, plant regulators, defoliants, and  desiccants which
have become of great importance to agriculture and related inter-
ests during the last 10 years.
    Nematocides are used to control very small worms known as
nematodes or eelworms, many of which attack plants. Defoliants
are used to make leaves  drop  from plants,  generally to permit
mechanical harvesting. Desiccants are used to hasten the drying of
plant  tissues, usually to  facilitate  harvesting  or  improve  crop
quality. Plant regulators are used to modify the normal  growth
processes of plants or the produce thereof, for such purposes as to
prevent fruit drop, to hasten maturity, and to delay sprouting in
storage. The products are defined in  more precise technical terms
in the bill.
   The effect of  the bill is to subject  the aforementioned products

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106                            LEGAL COMPILATION—PESTICIDES

to the same regulatory controls and requirements under the Fed-
eral Insecticide, Fungicide, and Rodenticide Act as are now appli-
cable to insecticides, fungicides, weed killers, and rodenticides. By
placing these products under that act,  the bill would also effec-
tively, although indirectly, place them under the pesticide chemi-
cals amendment to  the Federal Food,  Drug,  and  Cosmetic Act
 (Public Law  518, 83d Cong.), insofar  as  residues in or on  raw
agricultural commodities  may be involved, because of  the inter-
relationship of the two acts.
   The bill would accomplish its objective of placing nematocides,
plant regulators, defoliants,  and  desiccants  under the Federal
Insecticide,  Fungicide,  and  Rodenticide Act  by  expanding the
present definition of "economic poison" in that act to include these
products. It would also amend certain other definitions  in the act
and add some
                                                        [p. 2]
additional ones, as necessitated by the broader  coverage. However,
it does not change  the substantive provisions of the  act as they
relate to presently regulated products.
   The bill would become effective upon enactment and  thus permit
the Department of Agriculture  to begin the  registration of the
newly regulated products, as required by the  Federal Insecticide,
Fungicide, and Rodenticide Act, and also permit the  Department
of Health, Education, and Welfare to establish  tolerances for them
on raw agricultural commodities under section 408  of the Federal
Food, Drug, and Cosmetic Act.  However,  in  order to permit an
orderly transition period for both the Government and the indus-
try, provision is made to defer the applicability of certain sections
of those two acts to some of these products  until March 5, 1960, or
such later date or dates, not beyond March 5,  1961, as the Secre-
tary of Agriculture and the  Secretary of Health, Education, and
Welfare, respectively, may prescribe on the basis of a determina-
tion that  such postponement is necessary to avoid  hardships and
will not be unduly detrimental to the public interest.  These dates
have been specified so as to have the fully effective dates under this
bill coincide with those under the  food additives amendment to
the Federal Food, Drug, and Cosmetic Act (Public Law 85-929).
Since some products which would be affected by this  bill are also
subject to the food additives amendment, it  has appeared desirable
that the two become fully effective at the same time.
                         BACKGROUND
   The original  Federal Insecticide Act was passed in  1910. The
present Federal Insecticide, Fungicide, and Rodenticide Act was

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 STATUTES AND LEGISLATIVE HISTORY                         107

 enacted in 1947 to reflect the then current situation as regards pest
 control chemicals  and  agricultural  practices.  It regulates  the
 labeling and marketing of insecticides, fungicides, herbicides, and
 rodenticides which are collectively referred to in the act as "eco-
 nomic poisons," and commonly known as pesticides.
   Since 1947, several new types of agricultural  chemicals have
 been developed and have found widespread commercial applica-
 tion. These  new products are generally referred to and are desig-
 nated in this bill  as nematocides, defoliants, desiccants, and plant
 regulators.  While these products are now regulated under some
 State laws which correspond to the Federal Insecticide, Fungicide,
 and Rodenticide  Act, they are not  regulated  under  the  latter
 statute. Because of the importance of these products to agricultural
 interests of this  Nation, various organizations  and groups have
 expressed the opinion that they should be  subject to  similar regu-
 lation at the Federal level.
   Experience has shown that  regulation of agricultural pest con-
 trol  chemicals under the Federal  Insecticide,  Fungicide, and
 Rodenticide Act has been effective and  beneficial to farmers and
 growers. Accordingly, it appears desirable that  the  same type of
 regulation, under the  same act, should  be applied to these more
 recently developed products.
                           HEARING
   A hearing was held by the  full committee on this bill. At the
 hearing, representatives  from the  Department of Agriculture,
 land-grant colleges, the Association of American  Pesticide Control
 Officials,
                                                         [P. 3]
 Inc., farm and grower organizations, and the agricultural chemical
 industry appeared and testified unanimously in  favor of the bill
 and urged its enactment.
                   COMMITTEE AMENDMENT
   In addition to placing nematocides, plant regulators, defoliants,
 and desiccants under the Federal Insecticide, Fungicide, and Ro-
 denticide Act, the bill also makes residues  of such chemicals in  or
 on raw agricultural commodities subject to the pesticide chemicals
 amendment  to the Federal Food, Drug, and Cosmetic  Act. The bill,
 as introduced, provided that that amendment would  not be appli-
 cable to some of the chemicals  for a period of time to be specified
by the Secretary of Health, Education, and Welfare, but not extend-
ing beyond  March  5, 1961. The committee amendment, adopted
 upon the recommendation of the Department of Health,  Educa-
tion, and Welfare, provides that during this transitional period,

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108                               LEGAL COMPILATION—PESTICIDES

the adulteration provisions of the earlier law  shall be applicable
for the purpose of protecting the public health.
                      DEPARTMENTAL REPORTS
   Reports recommending enactment of H.R. 6436 were received
from both the Department of Agriculture and  the Department  of
Health, Education, and Welfare. In connection with the estimates
of cost in the report of the Department of Agriculture, it is to be
noted that many of the products are now scheduled for regulation
by the Food and Drug Administration under the provisions of the
food  additives amendment, so that transfer  of their regulation  to
the Department of Agriculture under terms of this bill will be  in
part a transfer of administrative cost. Thus the estimates of admin-
istrative cost made by the Department of Agriculture are not all
new or additional costs.
   The amendment  recommended by the Department of Health,
Education, and Welfare was adopted by the committee.
                                                      MAY 21,1959.
Hon. HAROLD D. COOLEY,
Chairman, Committee on Agriculture,
House of Representatives.
  DEAR CONGRESSMAN COOLEY : This is in reply to your request of April 16 for
a report on H.R. 6436, a bill to amend the Federal Insecticide, Fungicide, and
Rodenticide Act so as to include nematocides, plant regulators, defoliants, and
desiccants, and for other purposes.
  This Department  supports the purposes of the bill and recommends  its
enactment.
  The bill would amend the Federal Insecticide, Fungicide, and Rodenticide
Act so as to bring  within the provisions of that law four new classes  of
chemicals. These classes are nematocides, plant  regulators, defoliants, and
desiccants.
  Our reasons for making the above recommendation are as follows:
   (1) The new classes of chemicals which would be brought within the Federal
Insecticide, Fungicide, and Rodenticide Act are characteristically agricultural
chemicals. The regulation of their use
                                                              [p.  4]
would provide the same protection to farmers and others using them as is now
provided users of products subject to the present act.
   (2) These materials have developed into significant agricultural usage since
the Federal Insecticide, Fungicide, and Rodenticide Act was enacted in  1947.
Thus, their inclusion within the provisions of that law appears warranted now
on  the basis of their vastly increased commercial usage.
   (3) It is  in the interest of uniformity in the regulation of agricultural
chemicals to  have nematocides, plant  regulators, defoliants, and desiccants
subject to the same requirements as are insecticides, fungicides, and herbicides.
   (4) Many State pesticide statutes presently regulate these materials. The
bill would bring them under Federal jurisdiction and would promote uniform-
ity in Federal-State pesticide regulation.

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STATUTES AND LEGISLATIVE HISTORY                              109

   It is estimated that $350,000 would be required to administer the provisions
of H.R. 6436.
   The Bureau of the Budget advises that there is no objection to the submis-
sion of this report.
      Sincerely yours,
                                                         E. T. BENSON.
                   DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
                                                          May 20, 1959.
Hon. HAROLD D. COOLEY,
Chairman, Committee on Agriculture,
House of Representatives, Washington, D. C.
  DEAR MR. CHAIRMAN : This responds to your request of May 13, 1959, to the
Commissioner of  Food and Drugs for a report on H.R. 6436, a bill  to amend
the Federal  Insecticide,  Fungicide, and  Rodenticide  Act so  as to  include
nematocides, plant  regulators,  defoliants, and  desiccants, and  for  other
purposes.
  The bill would  amend the definition of the  term "economic poison" in the
Federal Insecticide, Fungicide, and Rodenticide Act so that nematocides, plant
regulators, defoliants, and desiccants  would be regarded  as  economic  poisons
for the purpose of that act. This automatically would classify these chemicals,
with respect to residues thereof on raw agricultural commodities, as "pesticide
chemicals" and exclude them from the term "food additive" for the purposes of
the Federal  Food, Drug, and Cosmetic Act, and thus would require tolerances
for the residues on  food crops to be established under the pesticide chemicals
amendment  of that act  (sec. 408) rather than under  the  Food  Additives
Amendment of 1958 (sec.  409).
  We defer to the views of the Department of Agriculture insofar as the effect
of the bill upon the Insecticide, Fungicide, and Rodenticide Act, which that
Department administers, is concerned.
  Subject to modification  of the transitional provisions of the bill,  discussed
below, we see no objection to the  bill from the standpoint of the Food, Drug,
and Cosmetic Act which this Department administers, since,  as above indicat-
ed,  the permanent effect of the bill would be to require safe tolerances for the
four groups of agricultural chemicals named in the title to  be established under
the pesticide chemicals amendment rather than the food additives amendment.
Both laws require adequate scientific proof of safety.  Indeed, from our view-
                                                                  [P. 5]
point, some advantage would be gained by having the Secretary of Agriculture
certify the usefulness of these chemicals to us, as he is called  upon to do under
the pesticide chemicals amendment to our act.
  We believe, however, that the transitional provisions  (sec. 3) of the bill are
in need of modification insofar as  they pertain to our act.
  Section 3(b) would, for a period of time which could extend to as  late as
March 5, 1961, prevent any of these chemicals which were commercially used
before January 1, 1958, from being considered adulterated under the pesticide
chemicals amendment to our act when not in conformity with  the requirements
of that amendment. This  transitional  period parallels the transitional period
during which, under  present law, these  chemicals need  not conform to the
pretesting requirements of the food additives amendment.  However, unlike the

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110                              LEGAL COMPILATION—PESTICIDES

transitional provisions of the food additives amendment (Public Law 85-929,
sec. 6 (c)), the bill fails to preserve, during this transitional period, the appli-
cation of the adulteration provisions of the earlier law  under which food-
bearing  residues of  added  chemicals, if  they are poisonous  or  deleterious
substances, would be deemed adulterated unless these chemicals are  required
in production and meet such tolerance limitations, if any, as we may establish
for them.
  If enacted in its present form, this section would thus create a loophole in
the consumer protection now available under the pure food law. For a period
that could extend to March  5, 1961, it would make it more difficult, if not
impossible, for  this Department to safeguard the public in  case crops were
marketed with  excessive residues of certain nematocides, plant regulators,
defoliants, or desiccants. This loophole, which we believe was not intended to
be created, could be closed by revising section 3(b) of the bill  to read as stated
in the proposed substitute enclosed herewith.
  With the substitution of the enclosed language, we would have no objection
to the enactment of this bill.
  The Bureau  of the Budget advises that it perceives no  objection to the
submission of this report to your committee.
      Sincerely yours,
                                         ELLIOT L. RICHARDSON,
                                               Assistant Secretary.

     PROPOSED SUBSTITUTE FOR  SECTION 3(b)  OF H.R. 6436
   " (b) with respect to any particular commercial use of a nemato-
cide, plant regulator, defoliant,  or  desiccant  in  or on  a raw
agricultural commodity,  if such use  was made of such substance
before January 1, 1958, section  406 (a) and clause  (2)  of  section
402 (a) of the Federal Food, Drug,  and Cosmetic Act as in force
prior to the date of enactment of the Act of July 22,  1954, 68  Stat.
511 (relating to pesticide chemicals on raw agricultural commodi-
ties) , shall apply until—
       " (1) March 5, I960, or the end of such additional period, not
     beyond March 5, 1961, as the Secretary of Health, Education,
     and Welfare may prescribe on the basis of a finding that such
     extension involves no undue risk to the public health and that
     conditions exist which necessitate the prescribing of such an
     additional period, or
       " (2) the date on which an order with respect to such use
     under  section 408 of the Federal Food, Drug,  and  Cosmetic
     Act (21 U.S.C. 348) becomes effective,
whichever date first occurs."
                                                             [p. 6]

                   CHANGES IN  EXISTING  LAW
   In compliance with subsection (4) of rule XXIX of the Standing
Rules of the Senate, changes in existing law made  by the  bill,  as
reported,  are shown as follows  (existing law  proposed to be

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STATUTES AND LEGISLATIVE HISTORY                         111

omitted is enclosed in black brackets, new matter is printed  in
italic, existing law in which no change  is proposed is shown  in
roman) :

FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE
                             ACT
AN ACT To regulate the marketing of economic poisons and devices, and for
                         other purposes
   Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
                             TITLE
   SECTION 1. This Act may be cited as the "Federal Insecticide,
Fungicide, and Rodenticide Act."
                         DEFINITIONS
   SEC. 2. For the purposes of this Act—
   a. The  term  "economic poison" means  (1)  any substance  or
mixture of substances intended for preventing, destroying, repel-
ling, or mitigating any insects, rodents, nematodes, fungi, weeds,
and other forms of plant or animal life or viruses, except viruses
on or in living man or other  animals, which the Secretary shall
declare to be a pest  [.], and  (2) any  substance or mixture  of
substances intended for use  as a plant  regulator,  defoliant  or
desiccant.
   b. The term  "device" means any instrument  or contrivance in-
tended for trapping, destroying, repelling, or mitigating insects  or
rodents or destroying, repelling, or mitigating  fungi, nematodes,
or such other pests as may be designated by the  Secretary, but not
including equipment used for the application of economic poisons
when sold separately therefrom.
   c. The term  "insecticide" means any substance or mixture  of
substances intended for preventing, destroying,  repelling, or miti-
gating any insects which  may be present in  any  environment
whatsoever.
   d. The  term "fungicide"  means any  substance or mixture  of
substances intended for preventing, destroying,  repelling, or miti-
gating any fungi.
   e. The term  "rodenticide" means any substance or mixture  of
substances intended for preventing, destroying,  repelling, or miti-
gating rodents or any other vertebrate animal which the Secretary
shall declare to be a pest.
  f. The term  "herbicide" means any substance  or  mixture  of
substances intended for preventing, destroying,  repelling, or miti-
gating any weed.

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112                            LEGAL COMPILATION—PESTICIDES

  g. The term "nematocide" means any substance or mixture of
substancs intended for preventing, destroying, repelling, or miti-
gating nematodes.
  h. The term "plant regulator" means any substance or mixture
of substances, intended through physiological action, for acceler-
ating or retarding the rate of growth or rate of maturation, or for
otherwise altering the behavior of ornamental or crop  plants or
                                                        [p. 7]
the produce thereof,  but shall not include substances to the extent
that they are intended as plant nutrients, trace elements, nutrition-
al chemicals, plant inoculants, and soil amendments.
  i.  The term "defoliant" means any  substance or  mixture of
substances intended for causing the leaves or foliage to drop from
a plant, with or without causing abscission.
  j. The term "desiccant" means any substance or  mixture of
substances  intended  for  artificially accelerating the  drying of
plant tissue.
  k. The  term "nematode"  means invertebrate animals  of the
phylum nemathelminthes  and class nematoda,  that  is,  unseg-
mented round  worms with elongated, fusiform, or saclike bodies
covered with cuticle, and inhabiting soil, water, plants or plant
parts; may also be called nemos or eelworms.
   [g.]  I. The term "weed" means any  plant which grows where
not wanted.
   [h.]  TO.  The term "insect" means any of the numerous small
invertebrate animals generally having the body more or less obvi-
ously segmented, for the most part belonging to the class insecta,
comprising  six-legged, usually winged  forms,  as, for example,
beetles, bugs, bees, flies, and to other allied classes of arthropods
whose members are  wingless and usually have more than six legs,
as, for example, spiders, mites, ticks, centipedes, and wood lice.
   [i.] n.  The  term  "fungi" means all  non-chlorophyll-bearing
thallophytes (that is, all non-chlorophyll-bearing plants of a lower
order than mosses and liverworts)  as, for example, rusts, smuts,
mildews, molds, yeasts, and bacteria, except those on or in living
man or other animals.
   [j.]  o.  The term "ingredient statement" means either—
        (1) a statement of the name and percentage of each active
     ingredient, together  with the  total percentage of the inert
     ingredients, in the economic poison; or
        (2)  a statement of the name of  each active ingredient, to-
     gether with the name of each and total percentage of the inert
     ingredients, if any there be, in the economic poison (except

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STATUTES AND LEGISLATIVE HISTORY                         113

     option  1  shall apply if the preparation is highly toxic to
     man, determined as provided in section 6 of this Act) ;
     and,  in addition to  (1)  or (2) in case the  economic poison
     contains arsenic in any form, a statement of the percentages
     of  total and water soluble arsenic,  each  calculated as  ele-
     mental arsenic.
   [k.] p. The term "active ingredient" means—
       (1) in the case of an economic poison other than a plant
     regulator, defoliant or desiccant, an ingredient which will pre-
     vent, destroy, repel, or mitigate insects,  nematodes, fungi,
     rodents, weeds, or other pests [.] ;
       (2) in the case of a plant regulator, an ingredient which,
     through physiological action,  will accelerate  or retard  the
     rate of growth or rate of maturation or otherwise alter the
     behavior of ornamental or crop plants or the produce thereof;
       (3) in the case of a defoliant, an ingredient which will cause
     the leaves or foliage to drop from a plant;
       (4) in the case of a desiccant, an ingredient which will arti-
     ficially accelerate the drying of plant tissue.
                                                         [p. 8]
   [1.]  q.  The term "inert ingredient" means an ingredient which
is not active.
   [m.]  r. The term "antidote" means a practical immediate treat-
ment in case of poisoning and includes first-aid treatment.
   [n.] s. The term "person"  means any  individual, partnership,
association, corporation, or any organized group of persons whether
incorporated or not.
   [o.] t. The term "Territory" means any Territory or possession
of the United States, excluding the Canal Zone.
   [p.] u. The term "Secretary" means the  Secretary  of Agricul-
ture.
   [q.] v. The term "registrant" means the person registering  any
economic poison pursuant to the provisions of this Act.
   [r.] w. The term "label" means the written, printed, or graphic
matter on, or attached to, the economic poison or device or the im-
mediate container thereof, and the outside container or wrapper of
the retail package, if any there be, of the economic poison or device.
   [s.] x. The term "labeling" means all labels and  other written,
printed, or graphic matter—
       (1) upon the economic poison or device or any of its con-
     tainers or wrappers;
       (2) accompanying the economic poison or  device at  any
     time;

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114                            LEGAL COMPILATION—PESTICIDES

       (3) to which reference is made on the label or in literature
     accompanying- the economic  poison  or device, except to cur-
     rent official publications of the United States Departments of
     Agriculture  and Interior, the United States Public Health
     Service, State experiment stations, State agricultural colleges,
     and other  similar Federal or  State institutions  or agencies
     authorized by law to conduct research  in the field of eco-
     nomic poisons;
   [t.] y.  The term "adulterated"  shall apply  to  any economic
poison if its strength or purity falls below the professed standard
or quality as expressed on its labeling or  under which it is sold, or
if any substance has been substituted wholly or in part for the
article, or if any  valuable constituent  of the  article has  been
wholly or in part abstracted.
   [u.] z.  The term "misbranded" shall apply—
       (1) to any economic poison or device if  its labeling bears
     any statement, design,  or  graphic  representation  relative
     thereto or  to its ingredients which  is false or misleading in
     any particular;
       (2) to any economic poison—
           (a)  if it is an imitation of or is offered for sale under
         the name of another economic poison;
           (b)  if its labeling bears any  reference to registration
         under this Act;
           (c)  if the labeling accompanying it does not contain
         directions for use which are necessary and if complied
         with adequate for the protection of the  public;
           (d)  if the label does not contain a warning or caution
         statement which may be necessary and if complied  with
         adequate to prevent injury to living man and other verte-
         brate  animals, vegetation, and  useful  invertebrate ani-
         mals;
           (e)  if the label does not bear an ingredient statement
         on that part of the immediate container and on the out-
         side container or wrapper, if there be one, through which
         the ingredient  statement on the immediate  container
                                                         [p. 9]
         cannot be clearly read,  of the  retail package which is
         presented or  displayed  under  customary conditions  of
         purchase: Provided, That the Secretary may permit the
         ingredient statement to  appear  prominently on  some
         other  part of the container,  if the  size or form of the
         container makes it impracticable to place  it on the part

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STATUTES AND LEGISLATIVE HISTORY                         115

         of  the  retail  package which is presented  or  displayed
         under customary conditions of purchase;
           (f) if any  word, statement, or other information re-
         quired by or under authority of this Act to appear on the
         label or labeling is not prominently placed thereon with
         such conspicuousness  (as compared  with other words,
         statements, designs, or graphic matter in the labeling)
         and in  such terms as  to render it  likely to be read and
         understood by the ordinary individual  under customary
         conditions of  purchase and use; or
           (g)  if in the case of an insecticide, nematocide, fungi-
         cide, or herbicide when used as directed or in accordance
         with commonly recognized practice it shall be injurious
         to living man or other vertebrate animals, or vegetation,
         except  weeds, to  which  it is applied, or to the person
         applying such economic poison [.]; or
           (h)  if in the case of  a plant regulator,  defoliant, or
         desiccant when used as directed it shall be injurious to
         living man or other vertebrate animals, or vegetation to
         which it is applied, or to the person applying such eco-
         nomic poison: Provided,  That physical or physiological
         effects on plants or parts thereof shall not be deemed to
         be injury,  when this is the purpose for which the plant
         regulator,  defoliant, or desiccant was applied, in accor-
         dance with the label claims and recommendations.
                                                       [p.10]

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116
LEGAL COMPILATION—PESTICIDES
     l.ld  (3)    CONGRESSIONAL  RECORD,  VOL. 105  (1959);
  l.ld (3)  (a)   July 6: Amended and passed House, pp. 12712-12713;
  AMENDING THE INSECTICIDE
                   ACT

   The Clerk called the bill (H.R. 6436)
 to amend the Federal Insecticide, Fun-
 gicide, and Rodenticide Act so as to in-
 clude  nematocides,  plant   regulators,
 defoliants,  and  desiccants,  and  for
 other purposes.
   There being no objection, the  Clerk
 read the bill, as follows:

   Be it enacted by the Senate and the House of
 Representatives of the Vnited States of Amer-
 ica in Congress assembled, That this Act  may
 be cited  as the  "Nematocide,  Plant Regulator,
 Defoliant, and Desiccant Amendment of 1959".
   SEC. 2.  (A) The Federal Insecticide, Fungi-
 cide,  and  Rodenticide Act (61   Stat.  163;  7
 U.S.C. 135-13Bk)  is amended so that sections 2a
 and 2b read as follows.
   "a. The term 'economic poison' means (1) any
 substance  or  mixture of  substances intended
 for preventing,  destroying, repelling, or miti-
 gating any insects, rodents, nematodes, fungi,
 weeds, and other forms of  plant or animal life
 or viruses, except viruses on or in  living man or
 other animals, which the Secretary shall declare
 to be a pest,  and (2) any substance or mixture
 of substances intended for use as  a plant regu-
 lator, defoliant, or desiccant.
   "b. The term 'device' means any instrument
 or contrivance intended for trapping, destroy-
 ing, repelling, or mitigating insects or rodents
 or destroying,  repelling, or mitigating fungi,
 nematodes, or such other pests as may be desig-
 nated by the Secretary, but not including equip-
 ment used for the application  of economic poi-
 sons when sold separately therefrom."
   (B) Section 2 of such Act is further amended
 by redesignating subsections g through u to be
 subsections 1  through z respectively;  and  by
 adding new subsections g, h,  i,  j, and  k,  and
 amending new  subsections p and z, to  read
 respectively, as follows:
   "g.  The term  'nemotocide'  means any  sub-
 stance or mixture of  substances intended for
 preventing, destroying, repelling,  or mitigating
 nematodes.
   "h. The term 'plant regulator' means any sub-
 stance  or  mixture  of  substances,  intended
 through  physiological  action,  for accelerating
 or retarding the rate of growth or rate of matur-
                                 [p. 12712]
 ation, or  for otherwise altering the behavior of
 ornamental or crop plants or the produce there-
 of, but shall not include substances to the extent
 that they are intended as plant nutrients, trace
 elements,  nutritional  chemicals,  plant inocu-
 lants, and soil amendments.
   "i. The term 'defoliant' means any substance
 or mixture of substances intended for causing
 the leaves  or foliage to drop from a plant, with
 or without causing abscission.
   "j. The term 'desiccant' means any substance
 or mixture of substances intended for artifici-
 ally accelerating the drying of plant tissue.
   "k. The term 'nematode1  means invertebrate
 animals of the phylum nemathelminthes  and
 class  nematoda, that is,  unsegmented  round
 worms  with  elongated  fusiform,  or  saclike
 bodies covered with cuticle, and inhabiting soil,
 water, plants or plant parts ; may also be called
 nemas or eelworms.
   "p. The term 'active ingredient* means—
   "(1) in  the case of an economic poison other
 than a plant regulator,  defoliant or desiccant,
 an ingredient which will  prevent, destroy, repel,
 or mitigate insects, nematodes, fungi,  rodents,
 weeds, or other pests ;
   "(2) in  the case of a  plant regulator,  an in-
 gredient which,  through physiological action,
 will accelerate or retard the rate of growth or
 rate  of  maturation or otherwise alter the be-
 havior of  ornamental or  crop  plants or the
 produce thereof ;
   "(3) in  the case of a defoliant, an ingredient
 which will cause the leaves or foliage to drop
 from a plant;
   "(4) in  the case of a desiccant, an ingredient
 which will artificially accelerate the drying of
 plant tissue.
   "z. The term 'misbranded' shall apply—
   "(1) to  any economic  poison or device if its
 labeling bears any statement, design, or graphic
 representation relative thereto or to its ingredi-
 ents  which is  false or misleading in  any par-
 ticular ;
   "(2) to any economic poison—
   "(a) if  it is an imitation of or is offered for
 sale under the name of another economic poison ;
   "(b) if  its labeling bears any  reference to
 registration under this Act;
   "(c) if the labeling accompanying it does not
 contain  directions for use which  are necessary
 and if complied with adequate for the protec-
 tion of the public;
   "(d) if  the label does  not contain a  warning
 or caution statement which may be necessary
 and if complied with  adequate to prevent injury
 to living  man  and  other vertebrate  animals,
 vegetation, and useful invertebrate animals ;
   "(e) if  the label does  not bear an ingredient
 statement on that part  of  the immediate con-
 tainer and on the outside container or wrapper,
 if there be one, through which the ingredient
 statement on  the immediate  container cannot
 be clearly read, of the retail package  which is
 presented  or  displayed under customary condi-
 tions of purchase: Provided, That the Secretary
 may permit the ingredient statement to appear

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 STATUTES AND LEGISLATIVE HISTORY
                                        117
 prominently  on some other  part of the con-
 tainer,  if the  size or form  of  the  container
 makes it impracticable to place it on the part
 of the retail package which is presented or dis-
 played under customary conditions of purchase ;
   "(fi if any word, statement, or other infor-
 mation required by or under  authority  of this
 Act  to  appear  on the label or labeling is not
 prominently placed thereon with such conspicu-
 ousness (as  compared with other words, state-
 ments, designs, or graphic matter in the label-
 ing) and in such terms as to  render it likely to
 be read and  understood  by  the ordinary  indi-
 vidual under  customary conditions of purchase
 and use; or
   "(g)  if in the  case of an insecticide,  nem-
 atocide, fungicide,  or herbicide when  used as
 directed or in accordance with commonly rec-
 ognized practice it shall  be injurious to living
 man or other vertebrate animals,  or vegetation,
 except weeds, to which it is  applied, or to the
 person applying such  economic poison ; or
   "(h)  if in  the case of  a plant  regulator, de-
 foliant, or  desiccant when used as directed it
 shall be injurious to living man or other verte-
 brate animals, or vegetation to which it is ap-
 pHed, or to the person applying such economic
 poison: Provided,  That physical or physiological
 effects on plants  or parts thereof shall  not be
 deemed to be injury, when this is the purpose
 for which  the  plant regulator,  defoliant,  or
 desiccant was applied, in accordance with the
- label claims and recommendations."
   SEC. 3. This Act shall take  effect on the date
 of its enactment,  except  that—
   (a) with respect to any  nematocide, plant
 regulator, defoliant, or  desiccant which  was
 marketed commercially prior to the date of
 enactment and whose use  does not result in
 residues of same remaining in or on a food, and
 with respect  to any nematocide,  plant regula-
 tor, defoliant, or  desiccant whose use does re-
 sult in residue remaining in or on a food at the
 time of introduction into interstate  commerce
 and which use had commercial application prior
 to January 1,  1958, section 3. "Prohibited  Acts"  ;
 section  8,  "Penalties'*; section 9, "Seizures"  ;
 and section 10, "Imports", of the Federal In-
 secticide, Fungicide, and Rodenticide Act, which
 this Act amends, shall not be  applicable until—
   (1)  March  5, 1960, or such  later  date, not
 beyond March 5, 1961, as  the Secretary of Agri-
 culture may prescribe on the basis of a deter-
 mination that such action will not be  unduly
 detrimental to the public interest  and is neces-
 sary to avoid hardships, or
   (2)  the date on  which a registration for  such
 use is issued under  the Federal Insecticide,
 Fungicide, and Rodenticide Act,
 whichever date first occurs ; and
   (b)  with  respect to any particular  commer-
 cial use of  a nematocide, plant regulator, de-
 foliant,  or desiccant, if such  use  was made of
 such substance  before January 1, 1958, clause
 (2)  
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118
LEGAL COMPILATION—PESTICIDES
   l.ld (3) (b)  July 16: Amended and passed Senate, p. 13588
AMENDMENT OP FEDERAL IN-
   SECTICIDE, FUNGICIDE   AND
   RODENTICIDE ACT
   Mr. JOHNSON of Texas. Mr. Presi-
dent, I  promised  the Senator  from
Florida  [Mr. HOLLAND] that I would
call up Calendar No. 520, H.R. 6436.
There is no controversy about the bill,
and it has been cleared by the leader-
ship on both sides.
   I  ask  unanimous  consent that the
Senate proceed to the consideration of
Calendar No. 520, H.R. 6436.
   The PRESIDING OFFICER. The
bill will be stated by title for the infor-
mation of the Senate.
   The LEGISLATIVE CLERK. A bill  (H.R.
6436) to amend the Federal Insecti-
cide, Fungicide, and Rodenticide Act
so as to include nematocides, plant reg-
ulators, defoliants, and desiccants, and
for other purposes.
   The PRESIDING OFFICER. Is
there objection to the request  of the
Senator from Texas?
   There being no objection, the Senate
proceeded to consider the  bill which
had been reported from the Committee
on Agriculture and  Forestry with an
amendment.
   Mr. HOLLAND.  Mr. President, the
bill was  reported by a unanimous vote
of the Committee on Agriculture and
Forestry after  it had passed the House
without objection.
   The bill relates to the present Feder-
al Insecticide, Fungicide, and Rodenti-
cide Act, which was passed some years
ago. At that time, all the known sprays,
liquids,  and  other kinds of  poisons
which were used as insecticides, fungi-
cides, and rodenticides were placed un-
der the  control of the Department of
 Agriculture.  Since  that time,  other
similar  agricultural items  have been
developed, one group of which is known
as nematocides, which deals with nem-
atodes.  Others are  plant regulators,
defoliants, and desiccants.
   With the approval of all the agencies
 concerned, and at the request of all the
 agricultural groups concerned, this bill
 was drafted to give authority to regu-
 late these new types  of  agricultural
 chemicals  so as to protect the public.
 Inclusion  of  these  chemicals  in  the
 Federal Insecticide, Fungicide, and
 Rodenticide Act automatically includes
 them  under the  pesticide  chemicals
 amendment to the Federal Food, Drug,
 and Cosmetic Act. These new products,
 which were not included in the old act,
 will become subject to exactly the same
 kind of regulation and control.
   As I have said, the bill, which is a
 House bill, was passed by the House on
 an unobjected-to basis.
   It was reported unanimously by the
 Senate Committee on Agriculture and
 Forestry. It will simply aiford the pub-
 lic the protection which it already has
 in the fields of insecticides, fungicides,
 and rodenticides, namely, a close regu-
 lation  and control by the  Federal
 agency concerned.
   The  PRESIDING OFFICER (Mr.
 MANSFIELD in the  chair).  The  commit-
 tee amendment will be stated.
   The LEGISLATIVE CLERK. On page 8,
 in line 7, after " (21 U.S.C.)," it is pro-
 posed to strike out "348" and to insert
 "346a."
   The  PRESIDING OFFICER. The
 question is on agreeing to the  commit-
 tee amendment.
   The amendment was agreed to.
   The PRESIDING OFFICER. If there
 be no further amendment to be pro-
 posed, the question  is on  the engross-
 ment of the amendment and the third
 reading of the bill.
   The  amendment was ordered to be
 engrossed, and the  bill to  be  read a
 third time.
   The  bill (H.R.  6436) was read the
 third time and passed.
                           [p. 13588]

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STATUTES AND LEGISLATIVE HISTORY
                            119
l.ld (3)  (c)   July 29: House concurs in Senate amendment, p. 14629
    FEDERAL INSECTICIDE,
FUNGICIDE, AND RODENTICIDE
              ACT
  Mr. COOLEY. Mr. Speaker, I  ask
unanimous consent to take from  the
Speaker's desk the bill (H.R. 6436) to
amend the Federal Insecticide, Fungi-
cide, and  Rodenticide Act so as to in-
clude nematocides, plant  regulators,
defoliants, and dessicants,  and  for
other purposes, with a Senate amend-
ment thereto, and concur in the Senate
amendment.
  The Clerk read the title of the bill.
  The Clerk read the Senate amend-
ment, as follows:
  Page 8, line 7,  strike out "348" and insert
"346a."
  The SPEAKER. Is there objection to
the request of the  gentleman from
North Carolina?
  Mr. HOEVEN. Mr. Speaker, reserv-
ing the right to object, and I shall not
object, may I ask the chairman what
the Senate amendment is?
  Mr. COOLEY. It merely corrects an
error made in the drafting of the bill
and changes the section referred to in
the United States Code.
  Mr. HOEVEN. It is just a clerical
error?
  Mr. COOLEY. That is all it is.
  Mr. HOEVEN. I  withdraw my res-
ervation of objection, Mr. Speaker.
  The SPEAKER.  Is there objection
to the request of the gentleman from
North Carolina?
  There was no objection.
  The Senate  amendment was  con-
curred in.
  A motion to  reconsider was laid on
the table.
                       [p. 14629]
 Lie  ADDITIONAL TIME FOR REGISTRATION OF CERTAIN
 NEMATOCIDES, PLANT REGULATORS,  DEFOLIANTS AND
     DESICCANTS, MARCH 29, 1961, P.L. 87-10, 75 STAT. 18
                             AN ACT
 To amend the transitional provisions of the  Act approved August 7, 1959,
     entitled "Nematocide, Plant Regulator, Defoliant and Desiccant Amend-
     ment of 1959".
   Be it enacted by the Senate and House of Representatives of the
 United States of America in Congress assembled, That paragraph
 (a) of section 3 of the Nematocide, Plant Regulator, Defoliant, and
 Desiccant Amendment of 1959 (Public Law 86-139, 73 Stat. 286,
 287)  is amended  by deleting the comma and the word "or" appear-
 ing at the end of clause (1) and adding at the end of such clause a
 colon and the following1: "Provided, That with respect to any nema-
 tocide, plant regulator, defoliant, or desiccant whose use results in
 residue remaining in or on a food at the time of introduction into
 interstate  commerce and which  use had  commercial  application
 prior to January 1, 1958,  the  Secretary may  prescribe a date
 beyond March 5,  1961, on the basis of  a determination that such
 action will not be unduly detrimental to the  public interest and is
 necessary to avoid hardships: Provided further, That such date
 shall not be extended beyond (i) the date on which an order with
 respect to the use of such product under section 408 of the Federal

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120                           LEGAL COMPILATION—PESTICIDES

Food, Drug, and Cosmetic Act  (21 U.S.C. 346a) becomes effective
or (ii) the date on which any extension granted under paragraph
 (b) of this section is terminated, or".
  Approved March 29, 1961.
                                                      [p. 18]

Lie (1)   SENATE  COMMITTEE ON AGRICULTURE AND
                        FORESTRY
              S. REP. No. 74, 87th Cong., 1st Sess. (1961)
  ADDITIONAL TIME FOR REGISTRATION  OF CERTAIN
   NEMATOCIDES, PLANT REGULATORS, DEFOILANTS,
                     AND DESICCANTS
               MARCH 16, 1961.—Ordered to be printed
  Mr. ELLENDEE, from the Committee on Agriculture and Forestry,
                    submitted the following
                         REPORT
                     [To accompany S. 1028]
   The Committee on Agriculture and Forestry, to whom was re-
 ferred the bill (S. 1028) to amend the transitional provisions of the
 act approved August 7, 1959, entitled "Nematocide, Plant Regula-
 tor,  Defoliant, and  Desiccant Amendment of 1959," having con-
 sidered the same, report thereon with a recommendation that  it
 do pass with an amendment.
   This bill would extend the time within which  certain nemato-
 cides, plant regulators, defoliants, and desiccants may be continued
 exempt from certain provisions of the Federal Insecticide, Fungi-
 cide, and Rodenticide Act until such time as the Pesticide Chemicals
 Amendment to the Federal Food, Drug, and Cosmetic Act is made
 fully applicable to such products. It was requested by the Depart-
 ment of Agriculture and, with the committee amendment, is iden-
 tical to H.R.  4662, as reported by  the House Committee  on
 Agriculture.
   The  Federal Insecticide, Fungicide, and  Rodenticide Act pro-
 vides  authority for regulating the marketing of pesticides  and
 devices for controlling plant and animal pests, including the test-
 ing, registration, and labeling of these products. The Nematocide,
 Plant  Regulator, Defoliant, and Desiccant Amendment of  1959
 brought those products under the Insecticide Act, but delayed the
 effect  of that act's prohibitions with respect to such products until

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STATUTES AND LEGISLATIVE HISTORY                         121

registration could be accomplished, or until March 5, I960, or such
later date not beyond March 5, 1961, as the Secretary of Agricul-
ture might find would not be unduly detrimental to the public inter-
est and would be necessary to avoid hardships.
                                                         [P.I]
   In bringing these products under the Insecticide Act, the Nema-
tocide Amendment also brought such of these products as  might
leave residues on raw agricultural commodities under the Pesticide
Chemicals Amendment of the Federal Food, Drug, and Cosmetic
Act. In order to provide adequate time for the establishment of
tolerances under the Pesticide  Chemicals Amendment for such
products used prior to January 1,  1958, the adulterant provisions
of the  Federal Food, Drug, and Cosmetic Act as they existed prior
to the adoption of the Pesticide Chemicals Amendment were con-
tinued effective with respect to such products for such uses until
such tolerances could be established, or until certain dates, but in
no  event later than March 5, 1961. H.R.  3980, as passed by the
House on March  14, 1961, would provide additional time for the
establishment of such tolerances  under the Pesticide Chemicals
Amendment. So long as such tolerances have not been established,
proper labeling under the Insecticide Act cannot be determined. If
the time within which such tolerances can be established  is ex-
tended, it is essential  that  the existing exemption  from certain
provisions of the Insecticide Act  be extended.  If the time for
establishing such tolerances is not extended, the  bill herein being
reported would have no effect. The bill is effective with respect to
any product only if the Secretary  of Agriculture determines that
extension under the bill will not be unduly detrimental to the pub-
lic interest and is necessary to avoid hardship.
  The committee  amendment would strike  out  language which
does not  appear  to be necessary  and which might  cause some
difficulty. If the time for the establishment of tolerances under the
Pesticide Chemicals Amendment is extended, the time for registra-
tion under the Insecticide Act should probably  be similarly ex-
tended without regard to whether an extension to March 5, 1961,
has previously been granted under the Insecticide Act.
                     DEPARTMENTAL VIEWS
                                 DEPARTMENT or AGRICULTURE,
                              Washington, D. C., February 13,1961.
THE PRESIDENT OF THE SENATE,
U.S. Senate.
  DEAR MR. PRESIDENT : There is transmitted herewith, for the consideration
of the Congress, a draft bill entitled "To amend the transitional provisions of

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122                                 LEGAL COMPILATION—PESTICIDES

the act approved August 7, 1959, entitled 'Nematocide,  Plant  Regulator,
Defoliant, and Desiccant Amendment of 1959.' "
  The proposed legislation would authorize the Secretary of Agriculture to
extend the effective date under Section 3 (a)  (1) of the Nematocide,  Plant
Regulator, Defoliant, and Desicccant Amendment of 1959  (Public Law  86-
139) beyond  March 5, 1961. This authority would be limited to those nemato-
cides, plant regulators, defoliants, or desiccants whose use (1) results in  a
residue remaining in or  on a food at the  time of introduction into interstate
commerce, (2)  had commercial application prior to January 1, 1958, and  (3)
had been extended to March 5,1961.
  The Nematocide, Plant Regulator, Defoliant, and Desiccant Amendment of
1959 (Public Law 86-139, 73 Stat. 286) subjected four new classes of products
                                                                   [p. 2]
—nematocides, plant regulators, defoliants, and  desiccants—to the regulatory
controls and  requirements of the Federal Insecticide, Fungicide, and Rodenti-
cide Act. By  classifying  these products as "economic poisons" under such  act,
the amendment also placed the products under the Pesticide Chemicals Amend-
ment (Public Law 518, 83d Cong., 68 Stat. 511) to the Federal Food, Drug,  and
Cosmetic Act insofar as residues in or on raw agricultural commodities may
be  involved.  The Nematocide,  Plant Regulator, Defoliant,  and  Desiccant
Amendment was, in general, made effective upon enactment in order to permit
this Department to begin the registration of the newly regulated products
under the Federal Insecticide, Fungicide, and Rodenticide Act and to  permit
the Department of  Health,  Education, and  Welfare to  establish tolerances
with respect to such products under section 408  (relating to pesticide chemi-
cals) of the Federal Food, Drug, and Cosmetic Act. However, in order to
provide for an  orderly  transition  period for both the Government and  the
industry (pending such registration or establishment of tolerances), provision
was made to defer the applicability of certain sections of the  Federal Insec-
ticide, Fungicide, and Rodenticide Act, and to preserve the applicability of the
adulteration  provisions of the Federal Food, Drug, and  Cosmetic Act ante-
dating the Pesticide  Chemicals  Amendment, to  some of these  products until
such  date, not beyond March 5,  1961, as the  Secretaries of Agriculture  and
Health, Education, and  Welfare, respectively, might find necessary and con-
sistent with  the public interest  or health. The said Secretaries have  granted
an extension until March 5, 1961, with respect to  certain of these products.
   Industry studies to obtain residue and toxicological data necessary in obtain-
ing registration of some of these products under the Federal Insecticide, Fungi-
cide, and Rodenticide Act are now underway, but will not be completed by
March 5,1961. The proposed bill would authorize the Secretary of Agriculture
to extend beyond March 5,  1961,  the effective  date  of the registration  and
enforcement provisions of the Federal Insecticide, Fungicide, and Rodenticide
Act with respect to  these products. Under the proposed bill, extensions would
be authorized only (1) with respect to those products for which an extension
to March 5,1961, has been granted and (2) upon a determination by the Secre-
tary  of Agriculture  that such  action will not  be unduly detrimental  to the
public interest  and  is necessary to avoid hardships. Thus, the proposed bill
would allow continued use of these products, where no public  health risk is
involved, by making it possible to provide  additional time to complete the
necessary scientific investigations.
   We understand that the Department of Health, Education, and Welfare has

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STATUTES AND LEGISLATIVE HISTORY                          123

requested corresponding legislation with respect to those transitional provi-
sions that relate to the application of the Federal Food, Drug, and Cosmetic
Act. The enclosed draft bill and the legislation proposed by the Department of
Health, Education, and Welfare  would make it possible  to  subject these
products to all  the requirements of the Federal Insecticide, Fungicide, and
Rodenticide Act and of the pesticide chemical provisions of the Federal Food,
Drug, and Cosmetic Act upon the same date.
                                                          [p. 3]
  The Bureau of the Budget advises that there is no objection to the presenta-
tion of this report from the standpoint of the administration's program.
     Sincerely yours,
                                            ORVILLE L. FREEMAN.
                    CHANGES IN EXISTING LAW
  In compliance with subsection (4) of rule XXIX of the Standing
Rules of the Senate, changes in existing law made by the bill, as
reported, are shown as follows  (new matter is printed in italic,
existing law in which no change is proposed is shown in roman):

   NEMATOCIDE, PLANT REGULATOR, DEFOLIANT, AND DESICCANT
           AMENDMENT OF 1959 (PUBLIC LAW 86-139)
  SEC. 3. This Act shall take effect on the date of its enactment,
except that—
  (a)  with  respect to any nematocide, plant" regulator, defoliant,
or desiccant which was  marketed commercially prior to the date of
enactment and whose use  does  not result in residues of same re-
maining in or on a food, and with respect to any nematocide, plant
regulator, defoliant, or desiccant whose use does result in residue
remaining in or on a food at the time of introduction into interstate
commerce and which  use had  commercial application prior to
January 1, 1958, section 3, "Prohibited Acts"; section 8, "Penal-
ties" ;  section 9, "Seizures"; and section 10,  "Imports",  of the
Federal  Insecticide, Fungicide,  and Rodenticide  Act,  which this
Act amends,  shall not be applicable until—
       (1) March 5, 1960,  or such later date, not beyond March 5,
     1961, as the Secretary of Agriculture may prescribe on the
    basis of a determination that such action will not be unduly
    detrimental  to the public interest and is necessary to avoid
    hardships:  Provided, That with  respect to  any nematocide,
    plant regulator, defoliant,  or desiccant whose use results in
    residue remaining  in  or on a food at the time of introduction
    into  interstate commerce  and  which  use  had  commercial
    application prior to January 1, 1958, the Secretary may pre-
    scribe a date beyond March 5,1961, on the basis of a determin-
    ation that such action will not be unduly  detrimental  to the
    public interest and is  necessary to avoid hardships: Provided

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124                            LEGAL COMPILATION—PESTICIDES

    further, That such date shall not be extended, beyond, (i)  the
    date on which an order with respect to the use of such product
    under section 408 of the  Federal Food,  Drug, and Cosmetic
    Act (21 U.S.C. 346a) becomes effective or  (ii) the date on
    which any extension granted under paragraph  (b) of this
    section is terminated, or
       (2) the date on which a registration for such use  is issued
    under the Federal Insecticide, Fungicide,  and  Rodenticide Act,
whichever date first occurs; and
  Section 3(b) of the Nematocide, Plant Regulator, Defoliant, and
Desiccant Amendment of 1959 would  not be  amended by the bill,
but the effect of the bill depends upon some extension of section
3(b), such as would be made by H.R. 3980, as passed by the House
of Representatives. Section 3(b), as it would be amended by H.R.
3980, is therefore  set out below, the new matter which would be
added by H.R. 3980 being set out in boldface type.
                                                        [p. 4]
   (b) with respect to any particular commercial use of a nemato-
cide,  plant regulator, defoliant, or desiccant  in or on  a raw agri-
cultural commodity, if such use was made of such  substance before
January 1,1958, section 406 (a) and clause (2) of section 402 (a) of
the Federal Food, Drug, and Cosmetic Act as in force  prior to  the
date of the enactment of the Act of July 22, 1954 (68 Stat. 511)
(relating  to pesticide chemicals on raw  agricultural commodities)
shall  apply until—
       (1) March 5, 1960, or the end of such additional period,  not
    beyond March 5, 1961, as the Secretary of Health, Education,
    and Welfare may prescribe on the basis of a finding that such
    extension involves no undue risk  to the public health and that
    conditions exist which necessitate the prescribing of such an
    additional period, or
       (2) the date on which an order with respect  to  such  use
    under section  408 of the Federal Food, Drug, and Cosmetic
    Act (21 U.S.C. 346a) becomes effective,
whichever date  first occurs. Whenever the Secretary of Health,
Education, and Welfare has, pursuant to clause (1) of this para-
graph (b), prescribed an additional period expiring on March 5,
1961, or has on that date a request for such extension pending be-
fore him, with respect to any such particular use of a nematocide,
plant regulator, defoliant, or desiccant, he may, notwithstanding the
provision to the contrary in such clause (1), further extend  the
expiration date, not beyond June 30,  1964, applicable under such
clause (1) (but subject to clause (2)) with respect to such use of

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STATUTES AND LEGISLATIVE HISTORY                         125

such substance (or a more limited specified use or uses thereof),
if, in addition to making the findings required by clause (1), he
finds  (A) that bona fide action to determine the applicability of
such section 408 to such use or uses, or to develop the scientific data
necessary for action under such  section, was commenced by an
interested person before March 6, 1960, and was thereafter pur-
sued with reasonable diligence, and  (B)  that in the Secretary's
judgment such extension is consistent with the objective of carry-
ing to completion in good faith, as soon as reasonably practicable,
the scientific investigations necessary as a basis  for action under
such section 408. The  Secretary  may at any time terminate an
extension so granted if he finds that it should not  have been
granted, or that by reason of a change in circumstances the basis
for such extension no longer exists, or that there has been a failure
to comply with a requirement for submission of progress reports or
with other conditions attached to such extension.
                                                        [p. 5]

     Lie (2)  HOUSE COMMITTEE ON  AGRICULTURE
             H. R. REP. No. 61, 87th Cong., 1st Sess. (1961)
  AMENDING THE TRANSITIONAL PROVISIONS  OF THE
        FEDERAL INSECTICIDE ACT, AS AMENDED
MARCH  7, 1961.—Committed to the Committee of the Whole House on the
              State of the Union and ordered to be printed
Mr. COOLEY,  from the Committee on Agriculture,  submitted the
                          following
                         REPORT
                    [To accompany H. R. 4662]
  The Committee on Agriculture, to whom was referred the bill
(H.R. 4662) to amend the transitional  provisions of the act ap-
proved August 7,  1959, entitled "Nematocide,  Plant Regulator,
Defoliant, and Desiccant Amendment of 1959," having considered
the same, report favorably thereon with amendments and recom-
mend that the bill as amended do pass.
  The amendment is as follows:
  Page 2, lines 6 and 7, beginning with the  comma after "hard-
ships" strike out the remainder of line 6 and that portion of line 7
preceding the colon.

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126                            LEGAL COMPILATION—PESTICIDES

                           PURPOSE
  The purpose of this bill is to provide authority to the Secretary
of Agriculture to extend the effective date under section 3 (a) (1) of
the Nematocide, Plant Regulator, Defoliant, and Desiccant Amend-
ment of 1959 (Public Law 86-139), beyond March 5, 1961. This
authority would be limited to those nematocides, plant regulators,
defoliants, or desiccants whose use (1) results in a residue remain-
ing in or on a food at the time of introduction into interstate com-
merce, and (2) had commercial application prior to January 1,1958.
                            NEEDS
  The  Nematocide,  Plant Regulator, Defoliant,  and Desiccant
Amendment of 1959 (Public Law 86-139, 73 Stat.  286) subjected
four new classes of products—nematocides, plant regulators, defol-
iants, and desiccants—to the regulatory controls and requirements
of the Federal  Insecticide, Fungicide, and Rodenticide  Act.  By
                                                         [p.l]
classifying these products as "economic poisons" under such act,
the amendment also placed the products under the Pesticide Chem-
icals Amendment (Public Law 518, 83d Cong.,  68 Stat. 511) to the
Federal Food, Drug, and Cosmetic Act insofar  as residues in or on
raw agricultural commodities may be involved. The Nematocide,
Plant  Regulator, Defoliant,  and Desiccant Amendment was, in
general, made effective upon enactment in order to  permit this
Department to begin the registration of the newly regulated prod-
ucts under the Federal Insecticide, Fungicide, and Rodenticide Act
and to permit the Department of Health, Education, and Welfare to
establish  tolerances with respect  to such products under section
408 (relating to pesticide chemicals)  of  the Federal Food, Drug,
and Cosmetic Act. However,  in order to provide for an orderly
transition period for both the Government and the industry, pro-
vision was made to defer the applicability of certain sections of the
Federal Insecticide,  Fungicide,  and Rodenticide Act, and to pre-
serve the applicability of the adulteration provisions of the Federal
Food, Drug, and Cosmetic Act antedating the  Pesticide Chemicals
Amendment, to  some of these products until such date, not beyond
March 5,  1961, as the Secretaries of Agriculture and Health, Edu-
cation, and Welfare, respectively, might find necessary and consist-
ent with the public  interest or  health. The said Secretaries have
granted an  extension until March 5, 1961, with respect to certain
of these products.
   Industry  studies to obtain residue and toxicological data neces-
sary in obtaining registration of some of these products under the

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STATUTES AND LEGISLATIVE HISTORY                           127

Federal Insecticide, Fungicide, and Rodenticide Act are now under-
way, but cannot be completed by March  5, 1961. The bill would
authorize the Secretary of Agriculture to extend beyond March 5,
1961, the effective date of the registration and enforcement provi-
sions of the  Federal Insecticide, Fungicide, and Rodenticide Act
with respect to these products. Extensions would be  authorized
only upon a determination by the Secretary that such  action will
not be unduly detrimental to the public interest and is necessary to
avoid hardships. Thus, the bill would allow continued use of these
products, where no public health risk is  involved, by  making it
possible to provide additional time to complete the necessary scien-
tific investigations.
   The  Department  of Health,  Education, and Welfare has  re-
quested corresponding legislation with respect to those transitional
provisions that relate to the application of the Federal Food, Drug,
and Cosmetic Act.
                               COST
   Enactment of the bill will not require any increase in appropri-
ations.
                       DEPARTMENTAL VIEWS
   Under date of February 13, 1961, the  Department submitted to
the Congress draft legislation for this purpose. Following is the
letter recommending the legislation and giving the reasons there-
for.
                                                             [P. 2]
                                   DEPARTMENT OF AGRICULTURE,
                                 Washington, D.C., February 13,1961.
Hon. SAM RAYBURN,
The Speaker,
House of Representatives.
  DEAR MR. SPEAKER: There is transmitted herewith, for the consideration of
the Congress, a draft bill entitled "To amend the transitional provisions of the
act approved August 7, 1959, entitled 'Nematocide, Plant Regulator, Defoliant,
and Desiccant Amendment of 1959.' "
  The proposed legislation would authorize the Secretary of  Agriculture to
extend the effective date  under  section 3(a)(l)  of the Nematocide, Plant
Regulator, Defoliant, and Desiccant Amendment of 1959  (Public Law 86-139)
beyond March 5, 1961. This authority would be limited to those nematocides,
plant regulators, defoliants, or desiccants whose use (1) results  in a residue
remaining in or on a food at the time of introduction into interstate commerce,
(2) had  commercial application prior to January  1, 1958, and (3) had been
extended to March 5,1961.
  The Nematocide, Plant Regulator, Defoliant, and Desiccant Amendment of
1959 (Public Law 86-139, 73 Stat. 286) subjected four new classes of products
—nematocides, plant regulators, defoliants, and desiccants—to the regulatory

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128                                 LEGAL COMPILATION—PESTICIDES

controls and requirements of the Federal Insecticide, Fungicide, and Rodenti-
cide Act. By classifying these products as "economic poisons" under such act,
the amendment also placed the products under the pesticide chemicals amend-
ment (Public  Law  518, 83d Cong., 68 Stat. 511) to the Federal Food, Drug,
and Cosmetic  Act insofar as residues in or on raw agricultural commodities
may be involved. The nematocide, plant  regulator, defoliant,  and desiccant
amendment was, in general, made effective upon enactment in order to permit
this Department to begin  the registration of  the  newly regulated products
under the Federal Insecticide, Fungicide,  and Rodenticide  Act  and to permit
the Department of Health, Education, and Welfare to establish tolerances with
respect to  such products under section 408 (relating to pesticide  chemicals)
of the Federal Food, Drug, and Cosmetic Act. However, in order to provide for
an  orderly transition period  for both the Government  and the  industry
(pending  such registration or  establishment of tolerances),  provision was
made to defer the applicability of certain sections of the Federal Insecticide,
Fungicide, and  Rodenticide  Act, and to  preserve the  applicability of  the
adulteration provisions of  the Federal Food, Drug, and Cosmetic  Act  ante-
dating the Pesticide Chemicals  Amendment, to some  of these  products until
such date,  not beyond March 5, 1961, as  the Secretaries of  Agriculture and
Health, Education, and Welfare, respectively, might find necessary and consis-
tent with the  public interest  or health. The said Secretaries  have granted an
extension until March 5, 1961, with respect to certain of these products.
  Industry studies to obtain residue and toxicological data necessary in obtain-
ing registration  of some of these products "under the Federal Insecticide,
Fungicide, and Rodenticide Act are now underway, but will not be completed
by March 5, 1961. The proposed bill would authorize the Secretary of Agricul-
                                                                  [p. 3]
ture to extend beyond March 5, 1961, the effective date of the registration and
enforcement provisions of the Federal Insecticide, Fungicide, and Rodenticide
Act with respect to these products. Under the proposed bill, extensions would
be authorized  only  (1) with respect to those products for which an extension
to March  5, 1961, has been  granted,  and  (2)  upon a  determination by  the
Secretary of Agriculture that such action will not be unduly detrimental to the
public  interest and is necessary to avoid hardships. Thus, the proposed  bill
would allow continued use of these products, where no public health risk is
involved, by making  it possible  to provide additional  time  to complete  the
necessary scientific investigations.
  We understand that the Department of Health, Education,  and Welfare has
requested  corresponding legislation with respect to those  transitional provi-
sions that relate  to the application of the  Federal  Food, Drug, and Cosmetic
Act. The enclosed draft bill and the legislation proposed by  the Department of
Health, Education, and Welfare would  make it  possible to  subject  these
products to all the requirements  of the Federal Insecticide, Fungicide, and
Rodenticide Act and of the pesticide chemical provisions of the Federal Food,
Drug, and Cosmetic Act upon the same date.
  The Bureau of the Budget advises that there is no objection to the presenta-
tion of this report from the standpoint of the administration's program.
      Sincerely yours,
                                         ORVILLE L. FREEMAN, Secretary.
                      CHANGES IN EXISTING LAW
   In compliance with clause 3  of rule  XIII of  the Rules  of  the

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STATUTES AND LEGISLATIVE HISTORY                         129

House of Representatives, changes in  existing law made by the
bill,  are shown  as follows  (existing law  is  in roman;  deleted
material is in brackets;  and new language is in italic):
 NEMATOCIDE, PLANT REGULATOR, DEFOLIANT, AND DESICCANT
         AMENDMENT OF 1959  (PUBLIC LAW 86-139)
  SEC. 3. This Act shall take effect on the date of its enactment,
except that —
  (a) with respect to any nematocide, plant regulator, defoliant, or
desiccant which  was marketed commercially prior  to the date of
enactment  and whose use does not result  in residues of same
remaining  in or  on a food, and with respect to any nematocide,
plant regulator,  defoliant, or dissicant whose use  does result in
residue remaining in or  on a food at the time of introduction into
interstate commerce and  which use had commercial application
prior to January  1, 1958, section 3, "Prohibited Acts"; section 8,
"Penalties"; section 9,  "Seizures";  and section 10,  "Imports",
of the  Federal Insecticide, Fungicide, and Rodenticide Act, which
this  Act amends, shall not be applicable until —
       (1) March 5, 1960, or such later date, not beyond March 5,
     1961, as the Secretary of Agriculture may prescribe on the
     basis of a determination that such action will  not  be unduly
     detrimental  to the public interest  and is  necessary to avoid
     hardships [, or] :
                                                        [P. 4]
     Provided, That with respect to any namatocide, plant regula-
     tor, defoliant, or desiccant  whose use  results  in residue
     remaining in or on a food at the time of introduction into
     interstate commerce and which use had commercial applica-
     tion prior to January 1, 1958, the Secretary may prescribe a
     date beyond March 5, 1961, on the basis  of a determination
     that such  action will not be unduly detrimental to  the public
    interest and is necessary to avoid hardships, if an extension
     to March  5, 1961, has been granted for such  product under
     this paragraph (a): Provided further, That such  date shall
    not be  extended beyond (i) the date on which  an order with
     respect to the use of such product under section 408 of the
    Federal Food, Drug, and  Cosmetic Act  (21   U.S.C. 346a)
     becomes effective or  (ii) the date  on which  any extension
    granted under paragraph (b) of this section is  terminated, or
       (2) the date on which a registration for such use is issued
    under the Federal Insecticide, Fungicide, and Rodenticide Act,
    whichever date first occurs; and
                                                        [p. 5]

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130
LEGAL COMPILATION—PESTICIDES
    Lie  (3)   CONGRESSIONAL RECORD,  VOL.  107 (1961)

Lie (3)  (a)  March 20: Amended and passed Senate, pp. 4282-4283
REGISTRATION OF  CERTAIN
  NEMATOCIDES, PLANT REGU-
  LATORS,  DEFOLIANTS,  AND
  DESICCANTS
  Mr. MANSFIELD. Mr. President, I
ask unanimous consent that the Senate
proceed to the  consideration of Calen-
dar No. 70, S. 1023.
  The VICE PRESIDENT.  The bill
will be stated by title.
  The LEGISLATIVE CLERK. A bill (S.
1028) to amend the transitional pro-
visions of the act  approved August  7,
1959, entitled "Nematocide, Plant Reg-
ulator, Defoliant, and Desiccant Amend-
ment of 1959."
  The VICE PRESIDENT.  Is there
objection to the present consideration
of the bill?
  There being no objection, the Senate
proceeded to consider the bill, which
had been reported  from the Committee
on  Agriculture and  Forestry,  with
amendments, on page 2, at the begin-
ning of line 6, to strike out the comma
and "if an extension to March 5, 1961,
has been granted for such product un-
der this paragraph (a)", so as to make
the bill read:
  Be it enacted by the Senate and House  of
Representatives of the United States of America
in Congress assembled, That paragraph (a)  of
section 3 of the Nematocide, Plant Regulator,
Defoliant,  and Desiccant Amendment of 1959
(Public Law 86-139, 73 Stat. 286, 287) is amen-
ded  by deleting the comma and the word "or"
appearing  at the end of clause (1) and adding
at the end of such clause a colon and the follow-
ing: "Provided. That with respect to any nema-
tocide, plant regulator, defoliant, or desiccant
whose use results in residue remaining in or  on
a food at the time of introduction into interstate
commerce and which use had commercial appli-
cation prior to January 1,  1958, the Secretary
may prescribe a date beyond March 5, 1961,  on
the baaia of a determination that such  action
will not be unduly detrimental to the  public
interest and is necessary to avoid hardships:
Provided further, That such date shall not  be
extended beyond (1) the date on which an order
with respect to the use of such product under
section 408 of the Federal Food, Drug, and Cos-
metic Act (21 U.S.C. 346a) becomes effective or
 (ii) the date on which any extension granted
 under paragraph (b) of this section is termina-
 ted or".
   Mr. HOLLAND. Mr. President, I
 think a  brief  explanation  of  the bill
 would be !•> order. The chairman of the
 Committee on  Agriculture and  For-
 estry, the  distinguished Senator from
 Louisiana  [Mr. ELLENDER], had ex-
 pected to  make a statement, but was
 called from the Senate Chamber a few
 minutes ago.  He asked the  Senator
 from  Florida  to make a  statement
 about the  bill in the event  he  had not
 returned by the time the bill was called
 up.
   The Committee on Agriculture and
 Forestry unanimously passed upon the
 measure,  reported  it  favorably, and
 asked that it be approved with a small
 amendment, which will be stated at the
 proper time.
   The bill  would extend the time within
 which certain nematocides, plant regu-
 lators, defoliants, and  desiccants  may
 be continued exempt from certain pro-
 visions of the Federal Insecticide, Fun-
 gicide, and Rodenticide Act until  such
 time as the Pesticide Chemical  Amend-
 ment to  the Federal Food, Drug, and
 Cosmetic Act is made fully applicable
 to such products. It was requested  by
 the  Department of Agriculture  and,
 with  the  committee  amendment,  is
 identical to H.R. 4662, as reported  by
 the House Committee on Agriculture.
   In 1959, when the original act was
 passed,  bringing nematocides,  plant
 regulators, defoliants,  and desiccants
 under the  Insecticide Act,  and under
 the Pesticide Chemicals Amendment of
 the Federal Food, Drug, and Cosmetic
 Act,  provision was made  deferring
 certain effects of the Insecticide Act
 until tolerances could be  established
 under the  Pesticide Chemical  Amend-
 ment. As to many of the new chemicals,
 the act is  already applicable,  because
 the research has been  completed, and

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STATUTES AND LEGISLATIVE HISTORY
                                131
 the tolerances have heen declared hy
 the  Food and Drug Administration,
 and have been applied to those particu-
 lar chemicals.  However,  as  to  other
 chemicals, the research has not  yet
 been completed, and the passage of the
 bill  would  permit the Secretary of
 Agriculture to defer certain effects of
 the Insecticide Act until a determina-
 tion of the facts by the Food and Drug
 Administration has been made, so that
 the particular chemicals which are now
 being used, and have been used without
 any serious results to anybody,  could
 continue to be used, provided that  the
 Secretary of Agriculture must in each
 case determine that such  action will
 not be unduly detrimental to the public
 interest and is necessary to avoid  hard-
 ship.
  Industry  studies to obtain residue
 and toxicological data necessary in  ob-
 taining registration of some of  these
                           [p. 4282]
products under the Federal Insecticide,
 Fungicide, and  Rodenticide  Act are
 now underway, but were not completed
 by March 5, 1961, which was the ter-
 minal date of the present exemption.
 The bill would authorize the Secretary
 of Agriculture to extend beyond March
 5, 1961, the effective date of the regis-
 tration and enforcement provisions of
 the Federal Insecticide, Fungicide, and
 Rodenticide  Act with respect to  these
particular products.
  Under the bill,  extensions would be
authorized for any products only upon
 a determination by the Secretary of
 Agriculture that such action would not
be unduly detrimental to  the public
interest  and is  necessary  to  avoid
hardships and upon extension by the
 Secretary of Health, Education, and
 Welfare of the time within which such
 products are not fully subject to  the
 pesticide chemicals amendment. Such
 extension by the Secretary of Health,
 Education, and Welfare depends upon
 the enactment of additional legislation
 now pending before the Congress. Thus
 the bill would allow the continued  use
 of these products only where no sub-
 stantial public health risk is  involved,
 by making it possible to provide addi-
 tional time  to complete the necessary
 scientific investigations, which, by  the
 way, are underway in the most urgent
 fashion and manner possible.
  I know of no objection to the bill. I
 think  it would be administered with
 due  regard to the health  of all  the
 people of the United States and with
 fair treatment to the manufacturers of
 the chemicals in question.
  I ask that the committee amendment
 be considered and agreed to,  and that
 the bill as amended be passed.
  The VICE PRESIDENT. The ques-
 tion is on agreeing to the committee
 amendment.
  The amendment was agreed to.
  The VICE PRESIDENT. The bill is
 open to further amendment.  If  there
 be no  further amendment to be pro-
 posed, the question is on the  engross-
 ment and third reading of the bill.
  The bill (S. 1028) was ordered to be
 engrossed for a third reading, read  the
 third time, and passed.
  Mr. MANSFIELD. Mr. President, I
 move the Senate reconsider the vote by
 which the bill was passed.
  Mr.  HOLLAND. I move to lay that
motion on the table.
  The motion to lay on the table was
 agreed to.
                          [p. 4283]
   Lie (3) (b)  March 21: Passed House, p. 4399
   AMENDMENT OF FEDERAL
        INSECTICIDE ACT
  The Clerk called the bill (H.R. 4662)
to amend the transitional  provisions
of the act approved August 7, 1959,
entitled "Nematocide, Plant Regulator,
Defoliant,  Desiccant  Amendment  of
1959."
  The SPEAKER. Is there objection
to the present consideration of the bill?
  There was no objection.
  Mr. COOLEY.  Mr. Speaker, I ask

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132
LEGAL COMPILATION—PESTICIDES
unanimous consent that a similar Sen-
ate bill, S. 1028, be considered in lieu
of the House bill.
   There being no objection, the Clerk
read the bill as follows:
  Be it enacted by the Senate and  House of
Representatives of the Unted States of America
in Congress assembled. That paragraph (a) of
section 3 of the Nematocide, Plant Regulator,
Defoliant, and  Desiccant Amendment of 1959
(Public Law 86-139, 73 Stat. 286, 287) is amen-
ded by deleting the comma and the word "or"
appearing at the end  of clause (1) and adding
at the end of such clause a colon and the follow-
ing: "Provided, That with respect to any nema-
tocide, plant regulator, defoliant, or desiccant
whose use results in residue remaining in or on
a food at the time of introduction into inter-
state commerce and which use had commercial
application prior to January 1, 1958,  the Secre-
 tary may prescribe a date beyond March 6, 1961,
 on the basis of a determination that such action
 will not be unduly detrimental to the public
 interest and is necessary to avoid hardships:
 Provided further. That such date shall not be
 extended beyond (i) the date on which an order
 with respect to the use of such product under
 section 408 of the Federal Food, Drug, and Cos-
 metic Act (21 U.S.C. 346a) becomes effective or
 (ii) the date on which any extension granted
 under paragraph (b) of this section is termina-
 ted, or".

   The bill was ordered to be read a
 third time, was read the third time,
 and passed, and a motion to reconsider
 was laid on the table.
   A  similar House bill  (H.R. 4662)
 was laid on the table.
                           [p. 4399]
 l.lf  FOOD ADDITIVES TRANSITIONAL PROVISION AMEND-
                            MENT OF 1961
                    April 7, 1961, P. L. 87-19, 75 Stat. 42
                                 AN ACT
 To amend the transitional provisions of the Act approved September 6, 1958,
     entitled "An Act to protect the public health by amending the Federal
     Food, Drug, and  Cosmetic  Act to prohibit  the use in food of  additives
     which have not been adequately tested to establish their safety", and for
     other purposes.
    Be it enacted by the  Senate and House of Representatives of the
  United States  of America  in Congress assembled, That this  Act
 may be cited as  the  "Food  Additives  Transitional  Provisions
 Amendment  of 1961".
    SEC. 2. Subsection (c) of  section 6 of the Food Additives  Amend-
 ment of 1958 (Public Law 85-929, 72 Stat. 1784, 1788) is amended
 by inserting  in such subsection, at  the end thereof, the following:
  "Whenever the Secretary has, pursuant to clause (1)  (B)  of  this
  subsection, extended the effective date of section 3 of this Act to
  March 5, 1961, or  has  on that date  a request  for such extension
  pending before him, with respect to any such particular use  of a
  food additive, he  may, notwithstanding the  parenthetical  time
  limitation in that  clause, further extend such effective date, not
  beyond June 30,  1964, under the authority of  that  clause   (but
  subject to clause (2))  with respect to such use of the additive (or
  a more limited specified use or uses thereof)  if, in addition to
  making the findings required by clause (1)  (B), he finds  (i)  that
  bona fide action to determine the applicability of such section 409
  to such use or uses, or to develop the scientific data necessary for

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STATUTES AND LEGISLATIVE HISTORY                         133

action under such section, was commenced by an interested per-
son before March 6,1960, and was thereafter pursued with reason-
able diligence,  and  (ii)  that in  the Secretary's judgment  such
extension is consistent with the objective of carrying to completion
in good  faith,  as soon as reasonably practicable, the scientific
investigations necessary as a basis for action under such section
409. The Secretary may at any  time terminate an extension so
granted  if he finds that it should not have been granted, or that
by reason of a  change in circumstances the basis for such exten-
sion no longer  exists, or that there has  been  a failure to comply
with  a requirement for submission of progress reports or  with
other conditions attached to  such extension."
  SEC. 3. Paragraph (b) of section 3 of  the  Nematocide,  Plant
Regulator, Defoliant, and Desiccant Amendment of 1959 (Public
Law 86-139, 73 Stat. 286,  288) is amended by inserting in  such
paragraph, at the end thereof, the following: "Whenever the Sec-
retary of Health, Education,  and  Welfare has, pursuant to clause
(1)  of this  paragraph (b), prescribed an additional period expir-
ing on March  5,  1961,  or has on  that  date  a request for  such
extension pending before him, with respect to  any such particular
use of a nematocide, plant regulator, defoliant,  or desiccant, he
may, notwithstanding the provision to the contrary in such clause
(1), further extend the  expiration date, not beyond June 30, 1964,
applicable under such clause  (1)  (but subject  to clause  (2))  with
respect to such use of such substance (or a more limited specified
use or  uses thereof),  if,  in addition to making the findings
required by  clause (1), he finds (A) that bona fide action to deter-
mine  the applicability of such section 408 to such use or uses,
or to develop the scientific data necessary for action under  such
section, was commenced by an interested person before March 6,
1960, and was  thereafter pursued with reasonable diligence, and
(B) that in  the Secretary's judgment such extension is  consistent
with the objective of carrying to completion in good faith, as  soon
as reasonably practicable,  the  scientific  investigations  necessary
as a basis for action under such  section 408.  The Secretary  may
                                                       [p. 42]
at any time terminate an extension so granted if he finds that it
should not have been granted, or that by  reason of a  change in
circumstances the basis for  such extension no longer  exists, or
that there has  been a failure to  comply with  a requirement for
submission of progress reports or with other conditions attached
to such extension."
    Approved April 7, 1961.                             r   .„

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134                            LEGAL COMPILATION—PESTICIDES

l.lf (1)   HOUSE COMMITTEE ON  INTERSTATE AND FOR-
                     EIGN COMMERCE
             H. R. REP. No. 53,87th Cong., 1st Sess. (1961)
      FOOD ADDITIVES TRANSITIONAL PROVISIONS
                   AMENDMENT OF 1961
MARCH 3, 1961.—Committed to the Committee of the Whole House on the
              State of the Union and ordered to be printed
   Mr. HARRIS, from the Committee on Interstate and Foreign
              Commerce, submitted the  following
                         REPORT
                     [To accompany H.R. 3980]
   The Committee on  Interstate and Foreign Commerce,  to whom
 was referred the bill (H.R. 3980) to amend the transitional provi-
 sions of the act approved September 6, 1958, entitled "An act to
 protect the public health by amending the  Federal  Food, Drug,
 and Cosmetic Act to  prohibit the  use in  food of additives which
 have not been adequately tested to establish their safety", and
 for other purposes, having considered the same, report favorably
 thereon with  amendments and recommend that the  bill do pass.
   The amendments are as follows:
   Page 2, line 3, strike out "March 6, 1961" and insert in lieu
 thereof "March 5, 1961".
   Page 2, after the comma at the  end of line 3, insert "or has on
 that date a request for such extension pending before him,".
   Page 2, line 6, after the word "date", insert ", not  beyond June
 30, 1964,".
   Page 3, line 8, after "1961," insert "or has on that date  a request
 for such extension pending before him,".
   Page 3, line 11, after the word "date", insert ", not beyond June
 30, 1964,".
                      PURPOSE OF  THE BILL
   The  purpose of this bill is to continue until June 30,  1964, the
 authority of  the Secretary  of Health, Education and  Welfare,
 which expires on March 5,1961, to  permit the continued use of cer-
 tain food additives and pesticide  chemicals which have been in
 commercial use since Janui y 1, 1958, until the necessary investi-
 gations and scientific studie; now in progress by both the indus-
 tries concerned and the FecLral Food and  Drug Administration
                                                        [p.l]

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STATUTES AND LEGISLATIVE HISTORY                          135

can be completed and regulations adopted to provide final assur-
ance of the safe use of these additives and chemicals. These inves-
tigations and studies are for the purpose of determining whether
a large number of substances are actually additives in or on  a
food and, if they are, what if any tolerance limitations or other
conditions should be imposed on their use in order to protect the
public health.
  Under the bill, the Secretary of Health, Education, and Welfare
could permit the continued use of the food additives or pesticide
chemicals which have not been finally cleared for safety, only if
such additives and chemicals were in commercial use before Janu-
ary 1,1958, and if he finds that such action would involve no undue
risk to the public health and that conditions  exist which necessi-
tate the extension. Moreover, he could invoke this authority only
in those instances where he has received satisfactory evidence,
and has either authorized or has pending a  request for authori-
zation for the  continued usage of these chemicals up to March 5,
1961, the limit of his authority, and  he finds that the persons
requesting the extensions have taken bona fide  action before
March  6, 1960, to investigate the chemicals concerned,  that such
investigations  have continued with reasonable diligence and that
more time is necessary  to complete them.
  The  Secretary  would, at  any time, be  able  to  terminate any
extension of time granted under this legislation if he finds that
(1) it should not have been granted,  (2) the basis for  an exten-
sion no longer exists owing  to a change in circumstances, or  (3)
there has been a failure to comply with any  requirement for  the
submission of  progress  reports or with other conditions attached
to the  extension.
                    NEED FOR LEGISLATION
  The legislation is needed both by the Secretary of Health, Edu-
cation, and Welfare and by the industries concerned. The  Secretary
has informed the committee that the Food and  Drug Administra-
tion has been unable to  process before March 6, 1961, all the food
additive and pesticide chemical petitions for safety clearance now
pending. Those not cleared would have to be removed from com-
mercial use even  though they have  been  in  use  since before
January 1, 1958, unless  this legislation is  enacted. Moreover,  the
committee has been informed that the industries affected will  not
be able to develop before March 6, 1961, all  the necessary scien-
tific data and  to file petitions on which the Secretary can act to
clear many additives. The magnitude of the food additive problem
is such that the original 2Vi>-year transitional period has not been

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136                            LEGAL COMPILATION—PESTICIDES

long enough.
  The Food Additives Amendment of 1958 (Public Law 85-929)
amending the Federal Food, Drug, and Cosmetic Act became gen-
erally effective on March 5, 1959, 180 days after the date of
enactment. However, with respect to any particular commercial
use of a food additive before January 1, 1958, Public Law 85-929
authorized the Secretary of Health, Education,  and Welfare to
permit its continued commercial use while the industries concerned
proceeded to develop all the necessary scientific information and
data to petition the Secretary for safety clearance.
  While it was felt at the time of enactment of this legislation
that a deferred effective date of  18 months  would be generally
sufficient, it  was realized that there  would be some  instances
                                                        [P-2]
where a further extension of time might become necessary, par-
ticularly  in  cases where extensive scientific  work would  be
required. Hence Public Law 85-929 authorized the  Secretary to
allow, in these instances, an  extension ending not later than
March 5, 1961, based on a finding  that such an extension, in each
instance, would involve no undue risk to the public health and that
conditions exist which necessitate  such action. Under this author-
ity the Secretary has granted over 3,000 postponements.
  The Secretary of Health, Education, and Welfare has advised
the committee that the March 5, 1961, cutoff date on his authority
to grant extensions would operate unfairly in a number of situa-
tions where the continued  use  of an additive beyond  this date
would be consistent with the protection of the public health and
where the industry concerned has  exercised due diligence in start-
ing and pursuing the necessary scientific work but has been unable
to complete the work and file a petition for safety clearance in
time for the Secretary to act.
   The committee believes that the extension of authority to  the
Secretary of Health, Education, and Welfare to June 30, 1964, will
be sufficient to enable him and industry to complete most, if  not
all, of the work involved in the investigations already underway.
   The bill grants similar authority to the Secretary with respect
to certain pesticide chemicals—about 30 in number—which were
in the category of food additives before August  7,  1959,  but
became pesticide  chemicals on that date by  reason of a change
in the definition  of a  term which encompasses such chemicals.
This change was made by the Nematocide, Plant Regulator, Defo-
liant,  and Desiccant Amendment  of 1959 (Public  Law 86-139),
amending the Federal Insecticide,  Fungicide, and Rodenticide Act

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STATUTES AND LEGISLATIVE HISTORY                             137

which had the effect  of reclassifying nematocides, plant  regula-
tors, defoliants, and desiccants from the category of food additives
to the category of pesticide chemicals.1
   A question was raised at the hearings by members of the com-
mittee as  to how the  Food  and Drug Administration  would deal
with a substance which is not now considered to be  a food additive
but which may at some future date be suspected of  meeting this
definition,  or with  a  substance for which a prior sanction was
granted but which may lose such status.
   In  response  to this  question,  the  Commissioner of Food and
Drugs submitted the following letter stating the position of  the
Food  and Drug Administration on this subject. The Commissioner
advised the committee that he  had adequate  authority to handle
such situations in a judicious manner and  that he  would not pro-
ceed immediately with enforcement action to  ban the use of such
substances in commerce  unless he was  convinced  that there was
an imminent hazard to the public health.
                                                                 [p. 3]
                   DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
                                                    February 28, 1961.
Hon. OREN HARRIS,
Chairman, Committee on Interstate and Foreign Commerce,
House  of Representatives, Washington, D.C.
  DEAR MR. CHAIRMAN : This is in response to your request, at the hearing of
H. R. 3980, a bill to amend the transitional provisions of the  Food Additives
Amendment of 1958, that we supply the committee a statement as to  the
Department's discretion in dealing with a substance which is  not now a food
additive, under that amendment, but which may sometime in the future meet
the statutory definition.
  First, it should be made plain that the status of a substance generally recog-
nized as safe by qualified scientists, or of a substance for which there is a prior
sanction, cannot change without some new scientific evidence. A prior sanction
cannot be withdrawn unless there is a factual basis for withdrawal. We have
committed ourselves in  our regulations, except in cases of imminent hazard to
health, not to withdraw such a sanction without first providing a statement
of the reasons for our actions. Where the withdrawal  of the sanction involves
a single party or a  limited number of parties,  we give our reasons for with-
drawal directly to those interested in it. Where this cannot be done, the notice
is published in the Federal Register explaining why withdrawal is necessary.
  'The term "nematocide" means any substance or mixture of substances intended for preventing,
destroying, repelling, or mitigating nematodes. Nematodes are unsegmented round worms with
elongated, fusiform, or sacklike bodies covered with cuticle, and inhabitating soil, water, plants,
or plant parts. They are also known as nemas or eelworms. The term "plant regulator" means
any substance or mixture of substances, intended through physiological action for accelerating or
retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of orna-
mental or crop plants or the produce thereof, but does not include substances to the extent that
they are intended as plant nutrients, trace elements, nutritional chemicals, plan inoculants, and
soil amendments. The term "defoliant" means any substance or mixture of substances intended for
causing the leaves or foliage to drop from a plant, with or without causing abscission. The term
"desiccant" means  any substance or mixture of substances intended for artificially accelerating
the drying of plant  tissue.

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138                                  LEGAL COMPILATION—PESTICIDES

  A substance generally recognized as safe by qualified experts is not subject
to the food additives amendment so long as this general recognition of safety
exists. Before the status of any such substance can be changed, there must be
new scientific data which destroys this universally held belief as to its safety.
Normally, this would require the completion of scientific studies and the publi-
cation of the results to demonstrate to the scientific community that its long-
held beliefs are no longer warranted.
  Second, even after a prior sanction has been withdrawn, or the status of a
substance generally recognized as safe has been adequately drawn into ques-
tion,  the  Department  still has  the burden of proceeding with  enforcement
action, if it wishes to require the removal of the substance from the interstate
market. This means we must be prepared to prove by a preponderance of the
evidence in a civil case, or beyond a reasonable doubt in a criminal case, that
the substance meets the definition of a food additive, as it appears in section
201 (s) of the Federal Food, Drug, and Cosmetic Act, and that the substance is
not within the grandfather clause exemptions in that definition.
  These features of the law,  as a practical matter, make it extremely unlikely
that the status of an exempt substance might be changed overnight. We con-
sider it  our responsibility to communicate  any new facts about an exempt
substance to the scientific community  and  to persons known to be  directly
interested in it. This would give advance notice of the pending change and an
opportunity  either to start  the  preparation  of a food additive petition to
establish  safety or to supply controverting evidence with respect to the new
scientific developments. When the new science finally reaches the point that the
substance can no longer be generally  recognized as safe, or establishes that
the prior sanction was  granted under  a mistake as to the  supposed safety of
                                                                   [p. 4]
the article, the Department  would have to classify it  as a food additive. It
would then be subject to seizure under the food additives amendment, until a
regulation was promulgated permitting its safe use.
   It is here that the discretion mentioned comes into play. The Department is
not  bound  to proceed  immediately against  every  adulterated  article.  The
 Supreme Court, in United States v. Sullivan (332 U.S. 689), has made it clear
that the Department has been given broad discretion, "broad enough undoubt-
edly  to enable  [the Commissioner]  to  perform his  duties fairly  without
wasting his efforts on what may be no more than technical infractions of the
law." And the Court said that the scope of the law should not be narrowed by
"envisioning extreme possible applications of its provisions."
   More recently the Court, in an opinion by Chief Justice Warren in Rathburn
 v. United States (355 U.S. 107, 109), has said: "Every statute must be inter-
 preted  in the light of reason and  common understanding to reach the results
intended by the legislature."
   Applying this rule of reason, and exercising the discretion referred to by
 the Supreme Court, the Department would be able to cope with the situation in
 which a long-used substance, either on the generally recognized  as safe list or
 the subject of a prior sanction, is thrown into question under the food additives
 amendment. If  the question arose simply because it  was learned that  some
 substance of unknown identity migrated from paperboard, the Department
 would not be compelled to immediately initiate a seizure campaign against all
 paperboard packaged food. But if it  was learned that the migrant  was one
 about which there was a serious question of safety, or one of unknown toxicity,

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STATUTES AND LEGISLATIVE HISTORY                             139

the Department should have the authority to  proceed in the public interest.
This kind of action is permitted by the permanent provisions of the act.
  Thus adequate flexibility in administration already exisits. We do not believe
that the  law should provide for extension for all substances that may at any
time hereafter be found to be food additives. The purpose of the food additives
amendment is to provide,  after a reasonable transition period, that additives
shall meet all requirements without exceptions. Moreover, the possibility that
a substance thought not to be within the scope of the food additives amendment
might at some future time turn out to be within its scope, is inherent in every
provision of regulatory law, including1 other provisions of the Food, Drug, and
Cosmetic Act,  and it would manifestly be unsound to create possible loopholes
relating to all these situations.
  We recently reviewed this whole matter with representatives of the chemical
industry and asked for any concrete examples that might justify a permanent
provision in the law authorizing the Department to extend its effectiveness for
2 years or any other period, while new scientific problems arising with respect
to an old additive were solved. No such examples could be given to us, and
absent such an  example  we cannot recommend  modification  of the bill  to
authorize such an extension.
  It may be that some substances which we have listed as generally recognized
as safe, and some for which we have granted  prior sanctions, will change in
status  with the emergence of new scientific knowledge. If they do, the new
knowledge would have to establish a serious question of doubt of safety. In any
such case, we believe the best course would be to remove the substance from the
food supply while the issue of doubt was being removed rather than to approve
                                                                  [P-5]
a blanket extension. If the doubt were not a serious one, there would be no need
for immediate action.
  Additionally, as developed by some of  the members of the committee during
the hearings, the proposed deletion from  subsection (c) of section 6 of the food
additives amendment of the words "if such use was made  of such additive
before January 1, 1958"  and substitution  therefor of the  words "if the sub-
stances making up such additive were similarly used before January 1, 1958"
would weaken the present concept of the food additives amendment and of the
additional  extension  authority  contemplated  in H.R.  3980.  H.R.  3980  is
intended to allow us to grant further extensions only for the exact uses that
were made of a food additive before January 1,  1958. The amendment proposed
by  the American Paper  and Pulp  Association would greatly  expand this
authority and would authorize our Department to grant extensions for various
uses of a given chemical so long as it had been used in a somewhat related
manner before January 1, 1958. As I mentioned in my testimony, this require-
ment that a substance to  be granted further extension must have been used
prior to January 1, 1958, gives added support to the decisions of our scientists
that further limited extension will be without undue risk to the public health;
this added support would not exist for new uses of the same chemicals which
had not been subjected to the test of time.
      Sincerely yours,
                                                  GEO. P. LARRICK,
                                       Commissioner of Food and Drugs.

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140                            LEGAL COMPILATION—PESTICIDES

   REPORT OF SECRETARY OF HEALTH, EDUCATION, AND WELFARE
  The report of the Secretary of Health, Education, and Welfare
in support of this bill is  printed as an appendix to this report.
                  CHANGES  IN EXISTING LAW
  In  compliance with  clause 3 of rule XIII of  the Rules of the
House of Representatives, changes in existing  law made by the
bill, as introduced,  are shown as follows  (new  matter is printed
in italic, existing law in which no change is proposed is shown in
roman):
    SECTION 6 OF THE FOOD  ADDITIVES AMENDMENT OF 1958
  SEC. 6. (a) Except as provided in subsections (b) and (c) of this
section, this Act shall take effect on  the date  of its  enactment.
   (b) Except as provided in subsection (c) of this section, section
3 of this Act shall  take effect on the  one hundred and eightieth
day after the date of enactment of this Act.
   (c) With respect to any particular commercial use of a food
additive, if such use was made of such additive  before January 1,
1958, section 3 of this Act shall take effect —
       (1) either (A) one year after the effective date established
     in subsection (b) of  this section, or  (B) at the  end of such
     additional period  (but not  later  than  two years from such
     effective date established in subsection (b) as the Secretary
     of Health, Education, and Welfare may prescribe on the basis
     of a finding that such extension involves no undue risk  to the
                                                         [p-6]
     public health and that conditions  exist which necessitate the
     prescribing of such an additional  period, or
       (2) on the date on which an order with respect  to such use
     under section 409 of the Federal Food, Drug, and  Cosmetic
     Act becomes effective,
whichever date first occurs. Whenever the Secretary has, pursuant
to clause  (1) (B) of this subsection, extended the effective date of
section 3 of this Act to March 6,1961, with respect to any such par-
ticular use of a food additive, he may, notwithstanding the par-
enthetical time  limitation in that clause, further extend such
effective date under the authority. of  that  clause (but subject to
 clause (2)) with respect to  such use  of the additive  (or a more
limited specified use or uses  thereof) if, in addition to making the
findings required by  clause  (1)(B),  he finds  (i) that bona  fide
action to determine the applicability  of such section  409 to such
use or uses, or to develop the scientific data necessary for  action
under such section, was commenced by an interested person  before

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STATUTES AND LEGISLATIVE HISTORY                         141

March 6, 1960, and was thereafter pursued with reasonable dili-
gence, and  (ii) that in the Secretary's judgment such extension is
consistent with the objective of carrying to completion in good
faith, as soon as reasonably practicable, the scientific investigations
necessary as a basis for action under such section 409. The Secre-
tary may at any time terminate an extension so granted if he finds
that it should not have been granted, or that by reason of a change
in circumstances the basis for such extension no longer exists, or
that there has been a failure to comply with a requirement for sub-
mission of  progress reports or with  other conditions attached  to
such extension.
 SECTION 3 OF THE NEMATOCIDE, PLANT REGULATOR, DEFOLIANT,
             AND DESICCANT AMENDMENT OF 1959
     *       *        *        *        #       #        #
  SEC. 3. This Act shall take effect on the date of its enactment,
except that—
       (a)  with respect to any  nematocide, plant regulator, de-
     foliant, or desiccant which was marketed commercially prior
     to the date of enactment and whose use does not result in resi-
     dues of same remaining in or on a food, and with respect to
     any nematocide, plant regulator,  defoliant, or desiccant whose
     use does result in  residue remaining in or on a food at the time
     of introduction into interstate commerce and which use had
     commercial application prior to January  1,  1958, section  3,
     "Prohibited Acts"; section  8, "Penalties";  section  9, "Sei-
     zures" ; and section 10, "Imports", of the Federal Insecticide,
     Fungicide, and Rodenticide Act,  which this Act amends, shall
     not be applicable until—
           (1) March 5,  1960,  or such  later  date, not  beyond
        March 5, 1961, as the Secretary of Agriculture may pre-
        scribe on the basis of a determination  that such action
        will  not be unduly detrimental to the public interest and
        is necessary to avoid hardships, or
           (2) the date on which a registration for such use  is
        issued under the Federal Insecticide, Fungicide, and Ro-
        denticide  Act,
                                                        [p. 7]
     whichever date first occurs; and
      (b)  with respect to any  particular commercial use of a
     nematocide, plant regulator, defoliant, or desiccant in  or on a
     raw agricultural  commodity, if  such use was made of such
     substance before  January 1, 1958, section 406 (a) and clause
     (2) of section 402 (a)  of  the Federal Food,  Drug, and Cos-

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142                            LEGAL COMPILATION—PESTICIDES

     metic Act as in force prior to the date of the enactment of the
     Act of July 22,  1954  (68  Stat. 511)  (relating to pesticide
     chemicals on  raw agricultural  commodities)  shall  apply
     until—
           (1) March 5, 1960, or the end of such additional period,
         not beyond  March 5, 1961, as the Secretary of Health,
         Education, and Welfare may prescribe on the basis of a
         finding that  such extension involves no undue risk to the
         public health and that conditions exist which necessitate
         the prescribing of such an additional period, or
            (2)  the date on which  an order with  respect to such
         use under section  408 of the Federal Food, Drug, and
         Cosmetic Act (21  U.S.C.  346a) becomes effective.
     whichever date first occurs. Whenever the Secretary of Health,
     Education, and Welfare  has, pursuant to clause  (1)  of this
     paragraph (b), prescribed an additional period expiring  on
     March 5, 1961, with respect to any such particular use of a
     nematocide, plant regulator, defoliant,  or desiccant,  he may,
     notwithstanding the provision to the contrary in such clause
     (1), further extend the expiration date applicable under such
     clause (1) (but subject to clause (2)) with respect to such use
     of such substance (or a more limited specified use or uses
     thereof), if, in addition to making the findings required  by
     clause (1), he finds (A) that bona fide action to determine the
     applicability of  such section  408 to such use or uses, or to
     develop the scientific data necessary for action under such
     section, was commenced by an interested person before March
     6,1960, and was  thereafter pursued with reasonable diligence,
     and (B) that in the Secretary's judgment such extension is
     consistent with  the objective of carrying to completion in
     good faith,  as soon as reasonably practicable, the scientific
     investigations necessary as a basis for  action under such sec-
     tion W8. The Secretary may at any time terminate an exten-
     sion so granted if he finds that it should  not have been granted,
     or that by reason of a  change in circumstances the basis for
     such extension no longer exists, or that there has been a fail-
     ure to comply with a requirement for submission of progress
     reports or with other conditions attached to such extension.
                                                         [p. 8]

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STATUTES AND LEGISLATIVE HISTORY                             143

                              APPENDIX
                  DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
                                                     February 24,1961.

Hon. OREN HARRIS,
Chairman, Committee on Interstate and Foreign Commerce,
House of Representatives, Washington, D.C.
  DEAR MR. CHAIRMAN :  This is in response to your request  for a report on
H. R. 3980,  a bill to amend the transitional provisions of the act approved
September 6, 1958, entitled "An act to protect the public health by amending
the Federal Food, Drug,  and Cosmetic Act to  prohibit the  use in  food of
additives which have not been adequately tested to establish their safety," and
for other purposes.
  This measure, to be  known as the Food Additives Transitional Provisions
Amendment of 1961, would amend existing law in  two respects.
  1. The principal purpose of this bill, which would be carried out by section
2 of the bill, is to remove—subject to appropriate  safeguards and limitations—
the time limit (March 5, 1961) which  now exists  on the authority of  this
Department to postpone, when necessary and consistent  with public health
protection, the effective date of the key operative provisions  (sec. 3) of the
Food  Additives Amendment of 1958 (Public Law  85-929) to the Federal Food,
Drug, and Cosmetic Act, as applied to established food additives (i.e.,  those in
commercial use before  January 1,  1958). The additional authority conferred
by the bill would apply  only where such further postponement beyond March 6,
1961,  is necessary in order to permit the completion of necessary inquiries or
studies  started before  March 6, 1960, and needed as a basis for determining
whether, and if so under what  tolerance limitations or other  conditions, con-
tinued use of the additive should be permitted under  the permanent provisions
of Public Law 85-929  or whether that law applies to the substance  involved
at all.
  This legislation is needed, both by us and by industry, because we shall not
be able to process all food additive petitions under the Food Additives  Amend-
ment  of 1958—where extensions have  heretofore  been granted—before March
5, 1961  (the limit of our present authority to grant extension of the transi-
tional provisions), and because the  affected industries will  not be able to
develop  all necessary scientfic data and petitions before that date even where
appropriate  action leading to such petitions was  started in a  timely  manner.
  2. In  order to mesh with the  above-mentioned  amendment, the bill  (sec. 3)
would similarly modify the relevant transitional  provision of the Nematocide,
Plant Regulator,  Defoliant, and Desiccant Amendment of 1959 (Public Law
86-139,  sec.  3(b)), which, as the indirect result  of  bringing certain  agricul-
tural  chemicals—i.e., nematocides, plant  regulators, defoliants, and desiccants
                                                                  [p. 9]
—under the Federal Insecticide, Fungicide, and Rodenticide Act, had the effect
of classifying such chemicals, about  30  in  number, as "pesticide chemicals"
under the Food, Drug, and  Cosmetic Act,  rather than as "food additives."
(Pesticide chemical residues in or on raw  agricultural commodities  are not
within the purview  of  the food  additives amendment, but rather within the
purview of the earlier pesticide chemicals amendment (Public Law 83-518) to
the Food, Drug, and Cosmetic Act.) At present, this transitional provision of

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144                             LEGAL COMPILATION—PESTICIDES

Public Law 86-139 is in consonance with the transitional provisions of the
Food Additives Amendment of 1958 (Public Law 85-929) ; this would remain
true under the present bill.
  A detailed explanation of the need for enactment of this bill is enclosed
herewith.
  We therefore, in view of the need for and urgency of these amendments,
recommend prompt enactment of the bill.
  We are advised by the Bureau of the Budget that there is no objection to the
presentation of this  report from the standpoint  of  the administration's
program.
      Sincerely yours,
                                     ABRAHAM RIBICOFF, Secretary.
    ADDITIONAL EXPLANATION OF  PROPOSED  "FOOD  ADDITIVES
        TRANSITIONAL  PROVISIONS AMENDMENT OF 1961"
1.  Section 2 of  the bill
   The Food Additives  Amendment of 1958  (Public  Law  85-929)
amended the Federal Food, Drug, and Cosmetic Act so as to deem
adulterated—and thus bar from interstate  commerce—any  so-
called food additive, and food bearing or containing such  an addi-
tive, unless the safety of the particular additive for its intended use
had first been established to the satisfaction of the Department of
Health,  Education, and Welfare and the use of the additive com-
plied with tolerance limitations or other conditions of safe use set
forth in a safety-clearance regulation issued with respect to  the
additive by this Department.
   Basically, Public Law 85-929 became effective on March 6, 1959
 (180 days after the date of enactment). However, with "respect to
any particular commercial use of a food additive, if such use was
made  of such additive before Jauary 1, 1958," the prohibitory
provisions (sec. 3) of Public Law 85-929—i.e., those which had the
effect of barring such food additives from the interstate market
unless  previously  "cleared"  by this Department—were  to take
effect only after a variable additional grace period or, if earlier, on
the date of the establishment of an order passing upon the safety
of such particular use of the additive. This grace period  for such
commercially established uses of food additives was,  in general,  1
year beyond the basic effective date (i.e., March 5,1960) ; however,
the Secretary was empowered to extend it for as much as another
year (i.e., to March 5, 1961) "on the basis of a finding that such
extension involves no undue risk to the public health and that con-
ditions exist which necessitate the prescribing of such additional
period" (sec. 6(c) of Public Law 85-929).
   The purpose of  these grace-period provisions was  to permit an
orderly adjustment, on the part of interested industries, as well as
                                                         [p. 10]

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STATUTES AND LEGISLATIVE HISTOKY                         145

ourselves, to the new requirements imposed by Public Law 85-929
insofar as food additives established in commercial use before Jan-
uary 1,1958, were concerned, and to permit the affected industries
to develop the information and scientific data needed with respect
to such additives without meanwhile  discontinuing the  manufac-
ture, marketing, and  use  of such additives  not prohibited under
prior law. It was felt at the time that, in general, a deferred effec-
tive date of 18 months from the  date of enactment (i.e., March 5,
1960)  would suffice for this purpose but it was foreseen that in a
number of cases the need for further time, particularly where addi-
tional  scientific work was required, would arise; hence the Secre-
tary was given the above-quoted flexible authority to allow further
time in such cases  on an ad hoc basis,  provided that no undue risk
to the  public health was involved in such  postponement.  However,
following the precedent of the pesticide chemicals amendment
(Public Law 83-518),  Public Law 85-929 set an outer limit (i.e.,
March 5,1961) to such ad hoc postponements.
   Under this authority, we have so far granted over 3,000 ad hoc
postponements of the  effective date of section  3 of the food addi-
tives amendment with  respect to commercially established uses of
food additives. The question  whether Public Law 85-929 should
be amended to enable us to grant further postponements beyond
March 5, 1961, was raised in  January 1960 in the course of our
testimony before the House Committee on Interstate and Foreign
Commerce on the Color Additive Amendments  of 1960  (which
became Public Law 86-618).  We then  expressed the view that
consideration of this question  was premature but that, if further
experience should  indicate that the existing authority was  inade-
quate,  we  would submit  an  appropriate  legislative proposal to
Congress (p. 81, report of hearings on H.R. 7624).
  Our  experience since then indicates that the present cutoff date
of March 5, 1961, will in fact operate unfairly in a number of
situations in which available evidence  indicates that continued use
of an additive for  limited time will be consistent with the protec-
tion of the public  health,  and the interested persons in industry
have exercised due diligence in starting and pursuing the  neces-
sary scientific work, but that work cannot possibly be completed,
let alone acted upon by us, before arrival of this cutoff date. The
scientific problem is accentuated by the fact that the Food Addi-
tives Amendment of 1958 applies not only to substances directly
and  purposefully added to food but  also to so-called  incidental
additives; that is, substances the intended use of  which  may rea-
sonably be  expected  to  result  indirectly  in  their  becoming  a

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146                            LEGAL COMPILATION—PESTICIDES

component or  otherwise affecting the  characteristics of  food,
though this is not the purpose for which they are employed.
   For example, if a food wrapping material contains a chemical
that "migrates" from the wrapper into the wrapped food the
chemical is by definition  a "food additive" unless generally recog-
nized by experts as safe.  In many cases, it was not known whether
certain chemicals long used in food packaging materials were in
fact "migratory" and thus "food additives" or, if so, how much of
such chemicals  migrated to and  remained in or on  the food. In
such cases, therefore, scientific work was required to determine
these facts. If the chemical was determined to be a "food additive"
in this defined sense, full pharmacological studies on  laboratory
                                                       [p. 11]
animals were then required to furnish the necessary scientific basis
on which we would have to rest a determination of the long-term
safety of the chemical for its use and  of the precise conditions
under which such use should be permitted.
   Where the necessary  scientific  work  in process involves  long-
term pharmacological studies, there is no way in which it can be
expedited. For example,  we know of a pharmocological study now
underway by a responsible pharmacologist  on a series of paper
sizings, which  will not be finished until about April  1962. Again,
ongoing pharmacological industry studies on commercially estab-
lished waxes for use on fruits, vegetables, and food containers are
not expected to be completed by March 5,1961.
   Section 2 of the bill—which is  the principal part of the  bill—
would therefore authorize us, in cases of this kind, to postpone the
effective date of section 3 of  the  Food  Additives Amendment of
1960 beyond March 5, 1961, to the extent that this is consistent
with public health protection and is, in our judgment, necessary to
complete such scientific work in  good  faith. (This approach  is
similar in concept to that recently adopted by Congress in the Color
Additive Amendments of 1960 (Public  Law 86-618)). Moreover,
the  bill would  enable us to invoke this authority only where we
have previously granted an extension to March 6, 1961 (the limit
of our present authority), and necessary inquiries or studies were
started before  March 6,  1960,  and since  then pursued with reason-
able diligence.  (We do not believe that those who have food addi-
tive problems but have done little or nothing to solve them should
receive special consideration.) Finally, as in the case of the Color
Additive Amendments of 1960, the  bill would  authorize  us  to
terminate a postponement at any time when we find that it should
not have been granted in the first place, or that by reason of  a
change in circumstances the basis for the postponement no longer

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STATUTES AND LEGISLATIVE HISTORY                        147

exists, or that there has been a failure to comply with a require-
ment for submission of progress reports or with other conditions
attached to the postponement.
2. Section 3 of bill (re nematocides, plant regulators, defoliants,
     and desiccants)
   Under the Food Additives Amendment of 1958, the definition of
the term "food additive" expressly excludes "a pesticide chemical
to the extent that it is intended for use or is used in the production,
storage, or transportation of any  raw agricultural commodity."
The reason for this exclusion is that the regulation  of residues of
"pesticide chemicals" in or on  raw agricultural commodities was
already adequately provided for from the public health standpoint
by the pesticide  chemicals  amendment  (Public Law 518, 83d
Cong.)  to the Federal Food, Drug, and Cosmetic Act. The term
"pesticide chemical" is denned by that amendment as—
     any substance which * *  * is an "economic  poison" within the
     meaning of the  Federal  Insecticide, Fungicide, and Rodenti-
     cide Act (7  U.S.C., sees. 135-135 (k)  as now in force  or  as
     hereafter amended, and which is used in the production, stor-
     age, or transportation of raw agricultural commodities.
   Originally, the Federal Insecticide, Fungicide, and Rodenticide
Act, which established a registration system (administered by the
                                                       [p. 12]
Department of  Agriculture)  for  "economic  poisons,"  confined
that term, basically, to  insecticides, fungicides, rodenticides, and
weed killers. The Nematocide, Plant  Regulator, Defoliant, and
Desiccant Amendment of 1959 (Public Law 86-139) expanded the
definition of "economic poison" in the Insecticide, Fungicide, and
Rodenticide Act to include nematocides, and, also, any substance
intended for use as  a "plant regulator,"  defoliant, or desiccant.
As a result, chemicals in these four categories, used in the produc-
tion of agricultural crops, were no longer classified as "food  addi-
tives" under the Federal Food, Drug, and Cosmetic Act but were
automatically classified as "pesticide chemicals."
   However, in order to  permit an orderly transition for both the
Government and  industry, section  3 of Public Law 86-139  pro-
vided for transitional time periods, keyed to those specified in the
Food Additives Amendment  of 1958,  during  which (1) certain
civil and criminal sanctions, etc., of the Insecticide,  Fungicide,
and  Rodenticide Act  would not apply, and (2) the adulteration
provisions of the Food and  Drug Act antedating  the pesticide
chemicals amendment would continue to apply, to certain of these
products.

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148                            LEGAL COMPILATION—PESTICIDES

  Thus, section 3(b) of Public Law  86-139 provides that, with
respect to any particular commercial use of a nematocide, plant
regulator, defoliant, or desiccant in or on a raw agricultural com-
modity, "if such use was made of  such substance before January
1, 1958," the old adulteration provisions of the Food and  Drug Act
shall continue to apply until March 5,1960, or until the end of such
additional period, not beyond March 5, 1961, as the  Secretary of
Health, Education,  and  Welfare may prescribe "on the basis of a
finding that conditions exist which necessitate the prescribing of
such additional period." (If, however, a tolerance or exemption
therefrom under the pesticide chemicals amendment, i.e., sec. 408
of the Food and Drug Act, were sooner established for such use of
the substance, this transitional period would end at that  time with
respect to such use.) The present bill would amend section 3(b) of
Public Law 86-139  so as to enable the Secretary of Health, Educa-
tion, and Welfare to postpone the cutoff date of March 5, 1961, on
an ad hoc basis where necessary for completion of scientific work,
subject to safeguards and limitations exactly parallel to those con-
tained in section 2  of  this bill  which  amend  the transitional
provisions of the Food Additives Amendment of 1958. This author-
ity is needed  in order to make possible the bona fide completion
of needed scientific studies that cannot be completed by March 5,
1961.
  Changes in existing law made by the bill to amend the transi-
tional provisions of the act approved September  6, 1958, entitled
"An act to protect the public health by amending the Federal Food,
Drug, and Cosmetic Act to prohibit the  use in food of additives
which have not been adequately tested to establish  their safety,
and for other purposes"  (existing law in which no changes are
proposed are shown in roman; new matter is italicized) :
1. FOOD ADDITIVES  AMENDMENT OF 1958 (PUBLIC LAW 85-929)
   SEC. 6. (a) Except as provided in subsections (b) and (c) of this
section, this Act shall take effect on the date of its enactment.
                                                       [p. 13]
   (b) Except as provided in subsection (c) of this section, section
3 of this Act shall take effect on the one hundred and eightieth
day after the date of enactment of this Act.
   (c)  With  respect to any particular commercial use  of a food
 additive, if such use was made of  such additive before January 1,
 1958, section 3 of this Act shall take effect—
       (1) either (A) one year after the effective date established
     in subsection  (b) of this  section, or (B) at the end of such
     additional period  (but not later than two years from such

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STATUTES AND LEGISLATIVE HISTORY                         149

     effective date established in subsection (b)) as the Secretary
     of Health, Education, and Welfare may prescribe on the basis
     of a finding that such extension involves no undue risk to the
     public health and  that conditions exist which necessitate the
     prescribing of such an additional period, or
       (2) on the date  on which an order with respect to such use
     under section 409 of the Federal Food, Drug, and Cosmetic
     Act becomes effective,
whichever date first occurs. Whenever the Secretary has, pursuant
to clause (1) (B)  of this subsection, extended the effective date of
section 3 of this  Act to March 6, 1961, with respect to any such
particular use of a,  food  additive, he  may, notwithstanding the
parenthetical time limitation in that clause, further extend such
effective date  under the authority of that  clause (but subject to
clause (2))  with respect to such use of the additive (or a more
limited specified use  or uses thereof) if, in addition to making the
findings required by clause (1)(B), he finds  (i)  that bona fide
action to determine the applicability of such section 409 to such use
or uses, or to develop the scientific data necessary for action under
such  section,  was  commenced  by an  interested  person  before
March 6, 1960, and was thereafter pursued with reasonable dili-
gence, and (ii) that in  the Secretary's judgment such extension is
consistent with the  objective of carrying to completion in good
faith, as soon as reasonably practicable, the scientific  investiga-
tions necessary as a basis for action under such section 409. The
Secretary may at any  time terminate an extension so granted if
he finds that it should not  have  been granted, or that by reason of
a change in circumstances the basis for such extension no longer
exists, or that there  has been a failure to  comply with a require-
ment for submission of progress reports or with other conditions
attached to such extension.
2. NEMATOCIDE,  PLANT REGULATOR,  DEFOLIANT, AND DESICCANT
           AMENDMENT OP 1959 (PUBLIC LAW 86-139)
  SEC. 3. This Act shall take effect on the date of its enactment,
except that—
       (a)  with respect to any nematocide, plant regulator, defoli-
    ant, or  desiccant which was marketed commercially prior to
    the date  of  enactment and whose use does  not  result in
    residues of same remaining in or on a food, and with respect
    to any  nematocide, plant  regulator, defoliant,  or desiccant
    whose use does result in residue remaining in or on a food at
    the time of introduction into interstate commerce and which
    use had commercial  application prior  to January 1,  1958,

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150                            LEGAL COMPILATION—PESTICIDES

     section 3, "Prohibited Acts"; section 8, "Penalties"; section 9,
     "Seizures"; and section 10, "Imports", of the Federal Insecti-
     cide, Fungicide, and Rodenticide Act, which this Act amends,
     shall not be appplicable until—                       r  1 ..

            (1) March  5, 1960, or  such later date, not beyond
         March 5, 1961, as the Secretary of Agriculture may pre-
         scribe on the basis of a  determination  that such  action
         will not be unduly  detrimental to the public interest and
         is necessary to avoid hardships, or
            (2) the date on which a registration for such  use is
         issued  under  the  Federal Insecticide,  Fungicide,  and
         Rodenticide Act,
     whichever date first occurs; and
       (b)  with  respect to any particular commercial  use of a
     nematocide, plant regulator, defoliant, or desiccant in or on a
     raw  agricultural commodity, if such use was made of such
     substance before January 1, 1958, section 406 (a) and  clause
     (2) of section 402 (a) of the Federal Food, Drug, and Cosmetic
     Act as in force prior to the date  of the enactment of the  Act of
     July 22, 1954 (68 Stat. 511)  (relating to pesticide chemicals
     on raw agricultural commodities), shall apply until—
            (1)  March  5, 1960, or the  end of such additional peri-
          od, not beyond March 5, 1961, as the  Secretary of Health,
          Education, and Welfare may prescribe on the basis of a
          finding that such extension involves  no undue risk to  the
          public health and that conditions exist which necessitate
          the prescribing of such an additional period, or
            (2)  the date on which  an order with respect to such use
          under section 408 of the Federal Food, Drug, and Cosmetic
          Act  (21 U.S.C. 346a) becomes effective,
     whichever date first occurs. Whenever the Secretary of Health,
     Education, and Welfare has, pursuant to clause  (1)  of this
     paragraph (b), prescribed an  additional period expiring on
     March 5, 1961, with respect  to any such particular use of a
     nematocide, plant  regulator,  defoliant, or desiccant, he may,
     notwithstanding the provision to  the contrary in such clause
     (1), further extend the expiration date applicable under such
     clause (1) (but subject to clause (2)) with respect to such use
     of such substance (or a more  limited specified use or uses
     thereof), if, in addition to making the findings required by
     clause (1), he finds (A) that bona fide action to determine the
     applicability of such section 408  to such use or uses, or to
     develop the scientific data necessary for action  under such

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STATUTES AND LEGISLATIVE HISTORY                        151

    section, was commenced by an interested person before March
    6,1960, and was thereafter pursued with reasonable diligence,
    and (B) that in the Secretary's judgment such extension is
    consistent with the objective of carrying to completion in good
    faith, as soon as reasonably practicable,  the scientific investi-
    gations necessary as a basis for action under such section 408.
    The Secretary  may at any time terminate an  extension  so
    granted if he finds that it should not have been granted,  or
    that by reason of a change in circumstances the basis for such
    extension no longer exists, or that there  has been a failure to
    comply with a requirement for  submission of progress reports
    or with other conditions attached to such extension.
                                                      [p. 15]
l.lf (2)  SENATE COMMITTEE ON LABOR  AND  PUBLIC
                         WELFARE
              S. REP. No. 86, 87th Cong., 1st Sess. (1961)
     FOOD ADDITIVES TRANSITIONAL PROVISIONS
                   AMENDMENT OF  1961
               MARCH 24,1961—Ordered to be printed
Mr. HILL, from the Committee on Labor and Public Welfare, sub-
                     mitted the following
                         REPORT
                    [To accompany H.R. 3980]
  The Committee on Labor and  Public Welfare, to whom was
referred the bill (H.R. 3980) to amend the transitional provisions
of the act approved September 6, 1958, entitled "An act to protect
the public health by amending the Federal Food, Drug, and Cos-
metic Act to prohibit the use in food of additives which have not
been adequately tested to establish  their safety," and for  other
purposes,  having considered the same, report favorably thereon
and recommend that the bill do pass.
                        EXPLANATION
  This bill would extend, from March 5,1961, until June 30,  1964,
the final effective dates of the Food Additives Amendment of 1958
(Public Law 85-929) and the Nematocide, Plant Regulator, Defoli-
ant, and Desiccant Amendment of 1959 (Public Law 86-139). This
extension  would authorize the continued  use of certain food  addi-
tives and pesticide chemicals not covered by regulations issued by
the Secretary of the  Department of Health, Education, and Wei-

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152                            LEGAL COMPILATION—PESTICIDES

fare, if the Secretary finds that such continued use would involve
no undue risk to the public health, that such additives and pesticide
chemicals were in commercial use prior to January 1,1958, and that
scientific investigations to determine safe levels of use  are being
pursued with due diligence.
     Additional time is required by the Food and Drug Administra-
tion and the affected industries to complete and evaluate scientific
investigations and studies needed to determine final assurance of
safe use for about 30 pesticide chemicals and to determine whether
some 3,000 substances are actually additives in or on a  food  and,
                                                        [P.I]
if they are, what if any tolerance limitations or  other conditions
should be imposed on their use.
   Under the bill, the Secretary of Health, Education, and Welfare
could permit the continued use of the food  additives  or pesticide
chemicals which have not been finally cleared for safety only in
those instances where he has received satisfactory evidence, and
has either authorized or has pending a request for authorization
for the continued usage of these chemicals  up to March 5,  1961,
the limit of his authority, and he  finds that the persons requesting
the extensions have taken bona fide action before March 6, 1960, to
investigate the chemicals concerned, that such investigations have
continued with reasonable diligence, and that more time is neces-
sary to complete them.
   The Secretary would, at any  time, be able to terminate any
extension of time granted  under this legislation  if he  finds  that
 (1) it  should not have been granted, (2) the basis  for an extension
no longer exists owing to a change in circumstances, or  (3) there
has been a failure to comply with any requirement for the submis-
sion of  progress reports or  with  other  conditions  attached to
the extension.
                         BACKGROUND
   The Food Additives Amendment of 1958  (Public Law 85-929)
amending the Federal Food, Drug, and Cosmetic  Act became gen-
erally  effective on March 5,1959,180 days after the date of enact-
ment.  However, with respect to any particular  commercial use of
a food additive before January 1,1958, Public Law 85-929 author-
ized the Secretary of Health, Education, and Welfare to  permit its
continued commercial use while the industries concerned proceeded
to develop all  the  necessary scientific  information and  data to
petition the Secretary for safety clearance.
   While it was felt at the time of  enactment of this legislation that
a deferred effective date of 18 months would be generally sufficient,

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STATUTES AND LEGISLATIVE HISTORY                           153

it was realized that there would be some instances where a further
extension of time  might become necessary, particularly in cases
where extensive scientific  work would  be required.  Hence Public
Law 85-929 authorized the Secretary to allow, in these instances,
an extension  ending  not  later than March 5, 1961,  based on a
finding that such an extension, in each  instance, would involve no
undue risk to the  public  health and that conditions  exist which
necessitate such action. Under this authority the  Secretary  has
granted over 3,000  postponements.
   The Department of Health, Education,  and Welfare has advised
the committee that the March 5, 1961, cutoff date on the authority
to grant extensions would  operate unfairly in a number of situa-
tions where the continued use  of  an  additive beyond  this  date
would be consistent with  the protection of the public health  and
where the industry concerned has exercised due diligence in start-
ing- and pursuing the necessary scientific work but has been unable
to complete the work and file a petition for safety clearance in time
for the Secretary to act.
   The committee believes  that the extension  of authority to  the
Secretary of Health, Education, and Welfare to June 30, 1964,  will
be sufficient to enable him and industry to  complete most, if not all,
of the work involved in the investigations  already underway.
                                                             [p. 2]
   The bill grants similar authority to the Secretary with respect to
certain pesticide chemicals—about 30 in  number—which were in
the category of  food additives  before August 7, 1959, but became
pesticide chemicals on that date by reason  of a change in the defini-
tion of a term which encompasses such chemicals. This change was
made by the Nematocide,  Plant Regulator, Defoliant, and Desic-
cant  Amendment of  1959  (Public Law  86-139), amending  the
Federal  Insecticide, Fungicide, and Rodenticide Act which had the
effect of reclassifying nematocides, plant regulators, defoliants,
and desiccants from the category of food additives to the category
of pesticide chemicals.1
  !The term "nematocide" means any substance or mixture of substances intended for preventing,
destroying, repelling, or mitigating nematodes. Nematodes are unsegmented round worms with
elongated, fusiform, or sacklike bodies covered with cuticle, and inhabitating soil, water, plants,
or plant parts. They are also known as nemas or eelworms. The term "plant regulator" means
any substance or mixture of substances, intended through physiological action for accelerating or
retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of
ornamental or crop plants or the produce thereof, but does not include substances to the extent
that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants,
and soil amendments. The term "defoliant" means any substance or mixture of substances intended
for causing the leaves or foliage to drop from a plant, with or without causing abcission. The term
"desiccant" means any substance or mixture of substances intended for artificially accelerating
the drying of  plant tissue.

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154                                LEGAL COMPILATION—PESTICIDES

                      DEPARTMENTAL REPORTS
   A letter from the Department of Health, Education, and Welfare
 recommending enactment of H.R. 3980 as it passed the House was
 received.  In addition, correspondence explaining the need for the
 bill and an explanation of its provisions was also transmitted from
 the Department of Health, Education, and Welfare.

                  DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
                                          Washington, March 22,1961.
 Hon. LISTER HILL,
 Chairman, Committee on Labor and Public Welfare,
 U.S. Senate, Washington, B.C.
   DEAR MR. CHAIRMAN: This is in response to your informal request for a
 report on H.R. 3980 (the  proposed  Food Additives Transitional Provisions
 Amendment of 1961), as passed by the House of Representatives.
   The bill  in  its original form was  identical with a departmental proposal
 submitted by the Department to this Congress and  reaffirmed by us in  a letter
 to you dated February 2, 1961.
   Apart from a technical correction in the date referred to on page 2, line 3,
 of the bill—i.e., March 5,1961, instead of the erroneous reference in the earlier
 bill to March 6, 1961—the changes in the bill made by the House are as fol-
 lows:
   1.  We would be authorized under sections 2 and 3 of the bill to grant
 extensions of time beyond March 5, 1961, not only if we had previously granted
 an extension  to that date but also if on that date  a request for extension to
 March 5, 1961, was pending before us. This change was requested by us in the
 course of testimony before the House Committee  on Interstate and Foreign
 Commerce because a person who had submitted a request for an extension to
 March 5 prior to that date should not be penalized by our inability or failure to
 act upon it by that time.
                                                               [p. 3]
   2.  The House inserted in  sections 2 and 3 an ultimate cutoff date  of June
 30, 1964, beyond which extensions of time under the bill could not be granted.
 This provision is acceptable to us.
   We  therefore recommend favorable action  on this urgent measure in its
 present form.
       Sincerely yours,
                                        ABRAHAM RIBICOFF, Secretary.
                  DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
                                        Washington, February 2,1961.
 HON. LISTER HILL,
 Chairman, Committee on Labor and Public Welfare,
 U.S. Senate, Washington, D.C.
   DEAR MR. CHAIRMAN : On January 13, 1961, my predecessor in office, Secre-
 tary  Flemming, transmitted to  the President  of the Senate a draft bill to

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 STATUTES AND LEGISLATIVE HISTORY                             155

 amend the transitional  provisions of the act approved September 6, 1958,
 entitled "An act to protect the public health by amending the Federal Food,
 Drug, and Cosmetic Act to prohibit the use in food of additives which have
 not been adequately tested to establish their safety", and for other purposes.
   The draft bill has,  I  understand, been referred to  your committee.
   I am in  full accord with this legislative proposal. In view of its urgency, it
 is my hope that your committee will take favorable action on the proposal as
 soon as possible.
   We are  advised by the Bureau of the Budget that there is no objection to
 the presentation of  this report from the standpoint of the  administration's
 program.
       Sincerely yours,
                                           ABRAHAM RIBICOFF, Secretary.
                   DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
                                          Washington, January 13, 1961.
THE PRESIDENT OF THE U.S. SENATE,
Washington, D.C.
  DEAR MR. PRESIDENT :  There is enclosed herewith a draft bill to amend the
transitional provisions of the act approved September 6, 1958, entitled "An
act to protect the public health by  amending  the Federal  Food, Drug, and
Cosmetic Act  to prohibit the use in food of additives which have not been
adequately tested to establish their safety," and for other  purposes. The bill
may be referred to by the short title "Food Additives Transitional Provisions
Amendment of 1961."
  In view  of its urgency, we respectfully request the prompt consideration
and enactment of this bill. The bill would amend existing law in two respects.
  (1)  The principal purpose of this bill is to remove—subject to appropriate
safeguards and limitations—the time limit (March 6, 1961)  which now exists
on the authority of  this Department to postpone, when necessary and  con-
sistent with public-health protection, the  effective date of  the key operative
provisions  (sec. 3) of the Food Additives Amendment of 1958  (Public Law
                                                                  [p-4]
85-929) to the Federal Food, Drug, and Cosmetic Act, as applied to established
food additives  (i.e.,  those in commercial  use before  January 1, 1958).  The
additional  authority  conferred by  the bill  would  apply  only  where  such
further postponement beyond March 6, 1961, is necessary in order to permit
the completion of necessary inquiries or studies started before March 6,  1960,
and needed as a basis for determining whether, and if so under what tolerance
limitations or other  conditions, continued  use of  the additive should > be
permitted under the permanent provisions of Public Law 85-929 or whether
that law applies to the substance involved at all.
  This legislation is  needed, both by us and by industry, because we shall not
be able to process  all food additive petitions under the  Food Additives
Amendment of 1958—where extensions have heretofore been granted—before
March 6, 1961 (the limit of our present authority to grant extension of the
transitional provisions),  and because the affected industries will not be able
to develop  all necessary  scientific data and petitions before that date  even

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156                               LEGAL COMPILATION—PESTICIDES

where appropriate action leading to such petitions  was started in a timely
manner.
   (2) In order to mesh with the above-mentioned amendment, the bill (sec.
3) would similarly modify the relevant transitional provision of the Nema-
tocide, Plant Regulator, Defoliant, and Desiccant Amendment of 1959  (Public
Law 86-139,, sec.  3(b)),  which, as the  indirect result of  bringing  certain
agricultural chemicals—i.e., nematocides, plant regulators, defoliants,  and
desiccants—under the  Federal Insecticide, Fungicide, and  Rodenticide Act,
had the effect of classifying such chemicals, about 30 in number, as "pesticide
chemicals"  under the Food, Drug, and Cosmetic Act, rather  than as "food
additives."  (Pesticide chemical residues in or on raw agricultural commodities
are not within the purview of the food additives amendment, but rather within
the purview of the earlier pesticide chemicals amendment (Public Law 83-518)
to the Food, Drug, and Cosmetic Act.) At present, this transitional provision
of Public Law 86-139 is in consonance with the transitional  provisions of the
Food Additives  Amendment of 1958 (Public Law 85-929); this would remain
true under  the draft bill.
   A more detailed explanation of the need for enactment of this bill is enclosed
herewith. (In addition to the draft bill, there  is also enclosed a comparative
text of the relevant provisions of law, showing how they would be amended
by the draft bill.)
   We should, therefore,  appreciate it if you would  refer the  enclosed draft
bill to the appropriate committee for consideration.
   The  Bureau of the Budget advised on January 5,  1961,  that  there is no
objection to the submission of this proposed legislation to the Congress for its
consideration.
      Sincerely yours,
                                     ARTHUR S. FLEMMING, Secretary.
   Enclosure.

ADDITIONAL EXPLANATION OF PROPOSED FOOD ADDITIVES TRANSITION-
                 AL PROVISIONS AMENDMENT OF 1961

1. Section 2 of bill
   The Food Additives Amendment of 1958  (Public Law 85-929)
amended  the Federal Food, Drug, and Cosmetic Act so as to deem
adulterated—and thus bar from interstate commerce—any so-called
                                                               [p. 5]
food additive, and  food bearing or containing such  an additive,
unless the safety of the particular additive for its intended use had
first been established  to the satisfaction of the  Department of
Health, Education, and Welfare and the  use of the additive com-
plied with tolerance limitations or other conditions of safe use set
forth in a safety-clearance  regulation  issued with respect to the
additive by this Department.
   Basically, Public Law 85-929 became effective on March 6, 1959
 (180 days after the date of enactment). However, with "respect to
 any particular commercial use of a food additive, if such use was

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STATUTES AND LEGISLATIVE HISTORY                         157

made of such additive before January 1, 1958,"  the prohibitory
provisions (sec. 3)  of Public Law 85-929—i.e., those which had
the effect of barring such food additives from the interstate market
unless previously "cleared" by  this Department—were to take
effect only after a variable additional grace period or, if earlier,
on the date of the  establishment of an  order passing  upon the
safety of such particular use of the additive. This grace period for
such commercially established uses of food additives was, in gen-
eral, 1 year beyond  the basic effective date  (i.e., March 6, 1960)  ;
however, the Secretary was empowered to extend it for as much as
another year  (i.e., to March 6,1961) "on the basis of a finding that
such extension involves no undue risk to the public health and that
conditions exist which necessitate the prescribing of such addition-
al period" (sec. 6(c) of Public Law 85-929).
  The purpose of these grace-period provisions was to permit an
orderly adjustment, on the part of interested industries, as well as
ourselves, to the new requirements imposed by Public Law 85-929
insofar  as food additives established  in commercial  use before
January 1, 1958, were concerned, and to permit the affected indus-
tries to develop  the information and scientific data needed with
respect  to such additives without meanwhile discontinuing the
manufacture, marketing, and use of such additives not prohibited
under prior law. It was felt at the time that, in general, a deferred
effective date of 18 months from the date of enactment (i.e., March
6, 1960, would suffice for this purpose, but it was foreseen that in
a number of  cases the need for further time, particularly where
additional scientific work was required,  would arise; hence the
Secretary was given the above-quoted  flexible authority to allow
further time  in  such cases on an ad hoc basis, provided that no
undue risk to the public health was involved in such postponement.
However,  following the precedent of the pesticide chemicals amend-
ment (Public Law 83-518), Public Law 85-929 set an outer limit
(i.e., March 6, 1961) to such ad hoc postponements.
  Under this authority, we have  so far granted over 3,000 ad hoc
postponements of the effective date of section 3 of the food addi-
tives amendment with respect to commercially established uses of
food additives. The question whether Public Law 85-929 should be
amended to enable us to grant further postponements beyond March
6, 1961, was raised in January 1960 in the course of our testimony
before the House Committee on Interstate and Foreign Commerce
on the Color Additive Amendments of 1960 (which became Public
Law 86-618). We then expressed the view that consideration of
this question was premature but that, if further experience should

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158                            LEGAL COMPILATION—PESTICIDES

indicate that the existing authority  was inadequate, we  would
submit an appropriate  legislative proposal to Congress  (p.  81,
report of hearings on H.R. 7624).
                                                        [p. 6]
  Our experience since then indicates that the present cutoff date
of March  6, 1961, will  in fact operate unfairly in a number of
situations in which available evidence indicates that continued  use
of an additive for limited time will be consistent with the protec-
tion of the public health, and the interested persons in industry
have exercised due diligence in starting and pursuing the necessary
scientific work, but that  work cannot possibly be  completed", let
alone acted upon by  us,  before arrival  of  this cutoff date. The
scientific problem is accentuated by the fact that the Food Addi-
tives Amendment of 1958 applies not only to substances directly
and purposefully added to  food  but also to  so-called incidental
additives, that is, substances the intended use of which may reason-
ably be expected to result indirectly in their becoming a component
or otherwise affecting the characteristics of food, though this is
not the purpose for which they are employed.
   For example, if a food-wrapping material contains a chemical
that "migrates" from the wrapper into the wrapped food the chem-
ical is by definition a "food additive" unless generally recognized
by experts as safe. In many cases, it was not known whether cer-
tain chemicals long used in food-packaging materials were in fact
"migratory" and thus "food additives" or, if so, how much of such
chemicals migrated to and  remained in or on the food. In such
cases, therefore, scientific work was  required to determine these
facts. If the chemical was determined to be a  "food additive" in  this
defined  sense, full pharmacological studies on laboratory animals
were then required to furnish  the  necessary scientific  basis on
which we would have to rest a determination of the long-term
safety of the chemical for  its use and of the precise conditions
under which such use should be permitted.
   Where  the necessary  scientific  work in process involves long-
term pharmacological studies, there is no way in which it can be
expedited. For example, we know of a pharmacological study now
underway by a responsible pharmacologist on a series of  paper
sizings, which will not be finished until about April 1962. Again,
ongoing pharmacological industry studies on commercially  estab-
lished waxes for use on fruits, vegetables, and food containers are
not expected to be completed by March 6,1961.
   Section 2 of the enclosed  draft bill—which is the principal part
of the bill—would therefore authorize us, in cases of this kind, to

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STATUTES AND LEGISLATIVE HISTORY                         159

postpone  the effective date of section  3 of the Food  Additives
Amendment of 1960 beyond March 6, 1961, to the extent that this
is consistent with public health protection and is, in our judgment,
necessary to complete such scientific work in  good faith. (This
approach is similar in concept to that recently adopted by Congress
in the Color Additive Amendments of 1960 (Public Law 86-618)).
Moreover, the draft bill would enable us to invoke this authority
only where  we  have previously granted an extension to March 6,
1961 (the limit of our present authority), and necessary inquiries
or  studies were  started before March 6, 1960, and since then
pursued with reasonable diligence. (We do not believe that those
who have food  additive problems but have done little or nothing
to solve them should receive special consideration.)  Finally, as in
the case of the  Color Additive Amendments of 1960, the draft bill
would authorize us to terminate a postponement at any time when
we find that it  should not have been  granted in the  first place, or
that by reason of a change in circumstances the basis for the post-
ponement no longer exists, or that  there has  been a failure to
                                                        [p. 7]
comply with a requirement for submission of progress reports or
with other conditions attached to the  postponement.
2. Section 3 of bill (re nematocides, plant regulators, defoliants,
    and desiccants)
  Under the Food Additives Amendment of 1958, the definition of
the term "food  additive" expressly excludes "a pesticide chemical
to the extent that it is intended for use or is used in the production,
storage, or  transportation of  any raw  agricultural commodity."
The reason for  this exclusion is that  the regulation of residues of
"pesticide chemicals" in or on raw agricultural commodities was
already adequately provided for from the public-health standpoint
by  the  pesticide chemicals amendment  (Public Law  518,  83d
Cong.)  to the Federal Food, Drug, and Cosmetic Act. The term
"pesticide chemical" is defined by that amendment  as "any sub-
stance which *  *  *  is an 'economic poison' within the meaning of
the Federal  Insecticide, Fungicide, and Rodenticide Act  (7 U.S.C.
135-135 (k)) as now in force or as hereafter amended, and which
is used in the production,  storage, or transportation of raw agri-
cultural commodities."
  Originally, the Federal  Insecticide, Fungicide, and Rodenticide
Act, which established a registration  system (administered by the
Department of Agriculture) for "economic poisons," confined that
term, basically,  to insecticides, fungicides, rodenticides, and weed-
killers. The Nematocide, Plant Regulator, Defoliant, and Desiccant

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160                            LEGAL COMPILATION—PESTICIDES

Amendment of 1959 (Public Law 86-139)  expanded the definition
of "economic poison" in the Insecticide, Fungicide, and Rodenticide
Act to include nematocides, and, also, any substance intended for
use as a "plant regulator,"  defoliant,  or  desiccant.  As a result,
chemicals in these four categories, used in the production of agri-
cultural crops, were no longer classified as "food additives" under
the Federal Food, Drug, and Cosmetic Act but were automatically
classified as "pesticide chemicals."
  However, in order to permit an orderly transition for both the
Government and industry, section 3 of Public Law 86-139 provided
for transitional time periods, keyed to those specified in the Food
Additives Amendment of 1958, during which (1) certain civil and
criminal sanctions, etc., of the Insecticide, Fungicide, and Rodenti-
cide  Act would not apply, and (2) the adulteration provisions of
the Food and Drug Act antedating the pesticide chemicals amend-
ment would continue to appply, to certain of these products.
  Thus,  section 3(b)  of Public  Law 86-139 provides  that, with
respect  to any particular commercial use of a  nematocide,  plant
regulator, defoliant, or desiccant in  or on a raw agricultural com-
modity, "if such use was made of such substance before  January
1,1958," the old adulteration provisions of the Food and Drug Act
shall continue to apply until March 5,1960, or until the end of such
additional period, not beyond March 5, 1961, as the Secretary of
Health, Education, and Welfare  may prescribe "on the basis of a
finding that, conditions exist which necessitate the prescribing of
such additional  period." (If, however, a tolerance or  exemption
therefrom under the pesticide chemicals amendment, i.e., sec. 408
of the Food and Drug act, were sooner established for such use
of the substance, this transitional period would end at that time
                                                         [p. 8]
with respect to such use.)  The present draft  bill would amend
section 3(b) of Public Law 86-139 so to enable the Secretary of
Health, Education, and  Welfare to postpone the cutoff  date of
March 5, 1961, on an ad hoc basis where necessary for completion
of scientific work, subject to safeguards  and limitations exactly
parallel to those contained in section 2 of this bill which amend
the transitional provisions of the Food Additives Amendment of
1958. This authority is needed in order to make possible the bona
fide  completion  of needed scientific studies that cannot be com-
pleted by March 5,1961.
                   CHANGES IN  EXISTING LAW
  In compliance with subsection  (4) of rule XXIX of the Standing
Rules of the Senate, changes in  existing law made by  the bill, as

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STATUTES AND LEGISLATIVE HISTORY                         161

reported, are shown as  follows  (existing law proposed  to  be
omitted  is enclosed  in black brackets, new matter is printed in
italics, existing  law in which no change is proposed  is shown in
roman) :
      SECTION 6 OF THE FOOD ADDITIVES AMENDMENT OF 1958
     *******
   SEC. 6.  (a) Except as provided  in subsections  (b) and (c)  of
this section this Act shall take effect on the date of its enactment.
   (b)  Except as provided in subsection (c) of this section, section
3 of this Act shall take effect on the one hundred and eightieth day
after the date of enactment of this Act.
   (c)  With respect to any particular commercial use  of a food
additive, if such use was made of such additive before January 1,
1958, section 3 of this Act shall take effect—
       (1)  either  (A)  one year after the effective date established
    in subsection  (b)  of this section, or (B) at the  end of such
    additional period  (but not later than two years from such
    effective date  established  in subsection (b)) as the Secretary
    of Health, Education, and Welfare may prescribe on the basis
    of a finding that such extension involves no undue risk to the
    public health  and that conditions exist which necessitate the
    prescribing of such an additional period, or
       (2)  on the  date on which an order with respect to such use
    under section 409 of the Federal Food,  Drug, and  Cosmetic
    Act becomes effective,
whichever date first occurs. Whenever the Secretary has, pursuant
to clause (1) (B) of this subsection, extended the effective date of
section 3 of this Act to March 5,1961, or has on that date a request
for such extension pending  before him, with respect  to any such
particular use of  a  food additive,  he  may, notwithstanding the
parenthetical time limitation in that clause,  further  extend such
effective date, not beyond June  SO, 1964, under the authority of
that clause (but subject to clause (2)) with respect to such use of
the additive (or  a more limited specified use or uses thereof) if, in
addition to making the findings required by clause (1) (B), he finds
(i) that bona fide action to determine the applicability  of such
section 409 to such use or uses, or to  develop the scientific data
necessary for action under such section, was commenced by an
interested person before March  6, 1960, and was  thereafter pur-
sued with  reasonable diligence,  and (ii)  that in  the Secretary's
                                                         [p. 9]
judgment such extension is consistent with the objective of carry-
ing to completion in good faith, as soon as reasonably practicable,

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162                            LEGAL COMPILATION—PESTICIDES

the scientific investigations necessary as a basis for action under
such section 409. The Secretary may at any  time terminate an
extension so granted if he finds that it should not have been grant-
ed, or that by reason of a change  in circumstances the basis for
such extension no longer exists, or  that there has been a failure to
comply with a requirement for submission of progress  reports or
with other conditions attached to such extension.
SECTION  3  OP THE  NEMATOCIDE, PLANT REGULATOR, DEFOLIANT,
              AND DESICCANT AMENDMENT OF 1959
     *******
  SEC. 3. This Act shall take effect on the date of its enactment,
except that—
       (a)  with respect to any nematocide, plant regulator, defoli-
    ant,  or desiccant which was marketed commercially prior to
    the date of enactment and whose use does not result in residues
    of same remaining in or on a food, and with respect to  any
    nematocide, plant regulator, defoliant, or desiccant whose use
    does result in residue remaining in or on a food at the  time of
    introduction into interstate commerce  and  which use  had
    commercial application  prior to  January  1, 1958,  section 3,
    "Prohibited Acts"; section 8, "Penalties";  section 9, "Seiz-
    ures" ; and section 10, "Imports", of the Federal Insecticide,
    Fungicide, and Rodenticide Act, which this Act amends, shall
    not be applicable until—
           (1) March 5,  1960, or such later date, not  beyond
         March 5, 1961, as the Secretary of Agriculture may pre-
         scribe on the basis of a determination that such action will
         not be  unduly detrimental to the public interest and is
         necessary to avoid hardships, or
           (2) the date on which a registration for such use is
         issued  under the  Federal  Insecticide,  Fungicide,  and
         Rodenticide Act,
    whichever date first occurs; and
       (b)  with respect to  any particular commercial use of a
    nematocide, plant regulator, defoliant, or desiccant in  or on a
    raw agricultural commodity,  if  such use  was made of such
    substance before January 1, 1958, section 406 (a)  and clause
     (2) of section 402 (a) of the Federal Food, Drug, and Cosmetic
    Act as in force prior to the date of the enactment of the Act of
    July 22, 1954  (68 Stat.  511) (relating to  pesticide chemicals
    on raw agricultural commodities), shall apply until—
           (1) March 5, 1960, or the end of such additional peri-
         od, not beyond March 5, 1961, as the Secretary of  Health,

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STATUTES AND LEGISLATIVE HISTORY
                           163
          Education, and Welfare may prescribe on the basis of a
          finding that such extension involves no undue risk to the
          public health and that conditions exist which necessitate
          the prescribing of such an additional period, or
            (2) the date on which an order with respect to  such
          use  under section 408 of  the  Federal Food, Drug, and
          Cosmetic Act (21 U.S.C. 346a) becomes effective,
     whichever date first occurs. Whenever the Secretary of Health,
     Education, and Welfare has, pursuant to  clause (1)  of this
                                                         [P. HI
     paragraph (b), prescribed an  additional period expiring  on
     March 5,1961, or has on that date a request for such extension
     pending before him, with respect to any such particular use of
     a nematocide, plant regulator, defoliant, or desiccant, he may,
     notwithstanding the provision to the contrary in such clause
     (1), further extend the expiration date, not beyond June 30,
     1964, applicable under such clause (1) (but subject to clause
     (2)) with respect to such use of such substance (or a more
     limited specified use or uses thereof), if, in addition to making
     the findings  required by clause (1), he finds (A)  that bona
    •fide action to determine the applicability of such section 408
     to such use or uses, or to develop the scientific data necessary
     for action under such section, was commenced by an interested
     person before March 6,1960, and was thereafter pursued with
     reasonable diligence, and (B) that in the Secretary's judgment
     such extension is consistent with the objective of carrying to
     completion in good faith, as soon as reasonably practicable,
     the scientific investigations necessary as a basis for action
     under such section 408. The Secretary may at any time termin-
     ate an extension so  granted if he finds that it should not have
     been granted, or that by reason of a change in circumstances
     the basis  for such  extension no  longer exists,  or that there
     has been a failure to comply with a requirement for submis-
     sion of progress reports or with  other conditions attached to
     such extension.
                                                         [P. 12]

    l.lf (3)  CONGRESSIONAL RECORD, VOL.  107 (1961)
l.lf (3) (a)  March 14:  Amended and passed House, pp. 3924-3926
  The resolution was agreed to.
  Mr. HARRIS. Mr. Speaker, in view
of the apparent unanimity on this leg-
islation, I ask unanimous consent that
the  bill  (H.R. 3980)  to amend the
transitional provisions of the act ap-
proved September 6,1958, entitled "An
act  to protect the public health by
amending the Federal Food, Drug, and
Cosmetic Act to  prohibit  the use  in

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164
LEGAL COMPILATION—PESTICIDES
food of additives which have not been
adequately  tested  to  establish  their
safety," and  for  other  purposes,  be
considered in the House as in Commit-
tee of the Whole.
   The  SPEAKER  pro  tempore.  Is
there objection to the request of  the
gentleman from Arkansas?
   There was no objection.
   The Clerk read the bill, as follows:

  Be  it enacted  by  the  Senate and House of
Representatives of the United States of America
in Congress assembled. That this Act may be
cited as the  "Food Additives Transitional Pro-
visions Amendment of 1961".
  SEC. 2. Subsection  (c)  of section 6 of  the
Food  Additives Amendment  of 19S8  (Public
Law 85-929, 72 Stat. 1784, 1788) is amended by
inserting in  such subsection, at the end thereof,
the following: "Whenever  the Secretary  has,
pursuant to  clause (1) (B)  of this  subsection,
extended the effective date of section 3 of this
Act to March 6, 1961, with respect to any such
particular use of a food additive, he may,  not-
withstanding the parenthetical time limitation
in that clause, further extend  such effective
date,  under  the authority  of  that clause  (but
subject to clause  (2))  with  respect to such  use
of the additive (or a more limited specified use
or uses thereof)  if,  in addition to making  the
findings required by clause (1) (B), he finds  (i)
                                [p. 3924]

that bona fide action to determine the applica-
bility of such section 409 to such use or uses, or
to develop the scientific data necessary for ac-
tion under such section, was commenced by an
interested person before March 6,  1960,  and
was thereafter pursued with reasonable  dili-
gence, and (ii) that in the Secretary's judgment
such extension is consistent with the objective
of carrying to completion in good faith, as soon
as reasonably practicable, the scientific investi-
gations necessary as a basis  for action under
such  section 409. The Secretary may at any
time  terminate an extension  so granted if he
finds  that it should not have been granted, or
that by reason of a change in circumstances the
basis for such extension no  longer exists, or
that there has been a failure to comply with  a
requirement for submission of progress reports
or with  other conditions attached to such ex-
tension."
   SEC. 3.  Paragraph (b)  of  section 3  of  the
nematocide,  Plant  Regulator, Defoliant,   and
Desiccant Amendment of  1969  (Public  Law
86-139, 73 Stat. 286, 288) is amended by insert-
ing in such  paragraph, at the end thereof, the
following: "Whenever the Secretary of Health,
Education, and Welfare has, pursuant to clause
 (1) of this paragraph (b),  prescribed an addi-
tional period expiring on March  5,  1961,  with
 respect to any such particular use of a nemato-
 cide, plant regulator,  defoliant,  or desiccant,
 he may, notwithstanding the provision to the
 contrary in such clause (1), further extend the
 expiration date, applicable  under such clause
 (1) (but subject to clause (2))  with respect to
 such use of such substance  (or a more limited
 specified use or uses thereof), if, in addition to
 making the findings required by clause (1), he
 finds  (A)  that bona fide action  to determine
 the applicability of such section 408 to such use
 or uses, or to develop the scientific data neces-
 sary for action under such section, was  com-
 menced by an  interested person before March
 6, 1960, and was thereafter pursued with rea-
 sonable diligence,  and (B)  that in the Secre-
 tary's  judgment  such extension  is consistent
 with the objective of carrying to completion in
 good faith, as  soon as reasonably practicable,
 the scientific investigations necessary as a basis
 for action under such section 408. The Secretary
 may at any time  terminate an  extension so
 granted if he finds that it should not have been
 granted, or that by reason of a change in cir-
 cumstances the basis  for such  extension  no
 longer exists, or that there has been a failure
 to comply with a requirement for submission
 of progress reports or with other conditions at-
 tached to such extension."

    Mr. HARRIS  (during the  reading
 of the bill).  Mr. Speaker, I ask unani-
 mous consent that the further reading
 of the bill be dispensed with, and that
 the bill  be open for  amendment  and
 discussion.
    The  SPEAKER  pro  tempore.  Is
 there objection  to the request of  the
 gentleman from Arkansas?
    There was no objection.
    The SPEAKER pro tempore.  The
 Clerk will report the committee amend-
 ments.
    The Clerk read as follows:

    Committee amendment: Page 2,  line 3, strike
 out "March 6,  1961" and insert in lieu thereof
 "March 5, 1961."
    The committee  amendment  was a-
 greed to.
    The Clerk read as follows:
    Committee amendment: Page 2, line 4, insert
 "or has on that date a request for such an ex-
 tension pending before him."
    The committee  amendment  was a-
 greed to.
    The Clerk read as follows:
    Committee amendment: Page 2, line 8, strike
 the word  "date" and  insert "not beyond June
 30, 1964."

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STATUTES AND LEGISLATIVE HISTORY
                                165
  Mr. HARRIS. Mr. Speaker, I move
to strike out the last word.
  Mr. Speaker, H.R. 3980 was reported
unanimously  by the Committee on In-
terstate and  Foreign Commerce, and
it is urgently needed by the Federal
Food and  Drug  Administration and
many industries  serving the Ameri-
can people.
  The purpose of the bill,  as is indi-
cated by the  amendment just read, is
to continue until  June 30, 1964,  the
authority of  the Secretary of Health,
Education, and Welfare, which expired
on March 5,  1961, to permit the con-
tinued use of certain food additives
and  pesticide chemicals which have
been in  commercial use since January
1, 1958, until the necessary investiga-
tions and  scientific studies now  in
progress by  both  the industries  con-
cerned and the Food and Drug Admin-
istration can  be completed and regula-
tions adopted to provide final assurance
of the safe use of these additives and
chemicals.
  These investigations and  studies are
for the purpose of determining whether
a large  number of substances are ac-
tually additives in or on a food; and
if they  are,  what, if  any, tolerance
limitations or other conditions  should
be imposed on their use in order to pro-
tect the public health.
  Under the  bill,  the  Secretary  of
Health,  Education, and  Welfare could
permit the continued use of  the food
additives or pesticide chemicals which
have not been finally cleared for safety,
only if  such  additives and chemicals
were in commercial use before January
1,1958,  and if he finds that such action
would involve no undue risk to the pub-
lic health  and that conditions exist
which necessitate the extension. More-
over, he could invoke this authority
only in  those instances where he has
received satisfactory  evidence,  and
has either authorized or has pending a
request  for authorization for the con-
tinued usage  of these chemicals up to
March 5, 1961, the limit of his author-
ity, and he finds that the persons re-
questing the  extensions  have taken
bona fide action before March 6, 1960,
to investigate the chemicals concerned,
that such investigations have continued
with  reasonable  diligence,  and  that
more  time is  necessary  to  complete
them.
  The Secretary would, at any time, be
able to terminate any extension of time
granted under this  legislation if he
finds that first, ic should not have  been
granted, second, the basis for an exten-
sion no longer exists owing to a change
in circumstances, or third, there has
been a failure to comply with any re-
quirement for  the submission of prog-
ress reports or with other conditions
attached to the extension.
  As  I have indicated, the legislation
is needed both by  the Secretary of
Health, Education, and Welfare and by
the industries concerned. The Secre-
tary has informed the committee  that
the Food and Drug Administration has
been unable to process before March 6,
1961, all the food additive and pesticide
chemical petitions for safety clearance
now pending.  There  are some 2,100
substances   involved  here,   covering
3,000 different uses in food production,
processing,  or handling. Those   not
cleared would have to be removed from
commercial use even though they have
been in use since before January 1,
1958, unless this legislation is enacted.
Moreover, the  committee has been in-
formed that the industries affected will
not be able to develop before March 6,
1961,  all the necessary scientific  data
and to file petitions on which the Secre-
tary can act to clear many  additives.
The magnitude of the  food additive
problem is such that the original  2%-
year transitional  period has  not  been
long enough.
  The Food Additives Amendment of
1958—Public Law 85-929—amending
the Federal Food, Drug, and Cosmetic
Act became  generally  effective on
March 5,1959, 180 days after the  date
of enactment.  However,  with respect

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166
LEGAL COMPILATION—PESTICIDES
to any particular commercial use of a
food additive before January 1, 1958,
Public Law 85-929 authorized the Sec-
retary of Health, Education, and Wel-
fare to permit its continued commer-
cial use while the industries concerned
proceeded to develop all the necessary
scientific information and data to peti-
tion the Secretary for safety clearance.
   While it was felt at the time of en-
actment of this legislation that a de-
ferred  effective  date  of 18  months
would be generally sufficient, it was
realized that there would be some in-
stances where a  further extension of
time might become necessary, particu-
larly in cases where extensive scientific
work would be required. Hence Public
Law  85-929 authorized the Secretary
to allow, in these instances, an exten-
sion ending not  later than March 5,
1961, based on a finding that such an
extension,  in each instance, would in-
volve no undue risk to the public health
and that conditions exist which neces-
sitate such action. Under this author-
ity the  Secretary has  granted over
3,000 postponements.
   The Secretary of Health, Education,
and Welfare has advised the commit-
tee that the March 5, 1961, cutoff date
on his authority to grant extensions
would operate unfairly in a number of
situations  where the continued use of
an additive beyond this date would be
consistent with the protection of the
public health and where the industry
concerned  has exercised due diligence
in starting and pursuing the necessary
scientific work but has been unable to
complete the  work and  file a petition
for safety clearance in time for the
 Secretary  to act.
   The committee believes that the ex-
tension  of authority to  the Secretary
 of Health, Education, and Welfare to
 June 30, 1964, will be sufficient to en-
 able him and industry to complete the
 work involved in the investigations al-
 ready underway.
   The bill grants similar authority to
 the Secretary with respect to certain
 pesticide chemicals—about 30 in num-
 ber—which  were in the category of
 food additives before August 7, 1959,
 but became pesticide chemicals on that
 date l>y reason of a change in the defi-
 nition  of a term which encompasses
 such chemicals. This change was made
                            [p. 3925]
 by  the Nematocide, Plant  Regulator,
 Defoliant, and  Desiccant Amendment
 of 1959—Public Law 86-139—amend-
 ing the Federal Insecticide, Fungicide,
 and Rodenticide Act which had the ef-
 fect of reclassifying nematocides, plant
 regulators, defoliants,  and desiccants
 from the category of food additives to
 the category of pesticide chemicals.
   Mr. Speaker, you have heard the ex-
 planation given of some of the history
 of this legislation. The committee ac-
 cepted the  suggestion  of the  distin-
 guished  gentleman from New York
 [Mr. DELANEY],and provided a specific
 date by which the scientific investiga-
 tions of these additives and chemicals
 should be  completed and regulations
 adopted  to provide final assurance of
 their safe use.  This would be some 40
 months hence.  I might say that some
 wanted  it  to  be  open  indefinitely.
 Others wanted  a lesser time.  The com-
 mittee felt that in view of the informa-
 tion which we obtained from  the hear-
 ings, at which time the Secretary of
 Health,  Education, and Welfare, the
 Commissioner  of the Food and Drug
 Administration, and a number of other
 witnesses testified, a final date of June
 30,1964, would be appropriate.
    You will note that  the bill extends
 this authority from  March  5, 1961,
 which date has  already passed.  The
 committee obtained assurance from the
 Commissioner of Food and Drugs that
 as long as this bill  was  proceeding
 through the Congress, no action would
 be taken adversely insofar  as these
 substances now under investigation are
 concerned. Consequently, it has worked
 out, I  think, as satisfactorily as possi-
 ble to all concerned.
    I want to compliment the gentleman

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STATUTES AND LEGISLATIVE HISTORY
                                167
from New York [Mr. DELANEY] for the
magnificent work he has done in this
field.
  I urge the adoption of this bill.
  Mr. SPRINGER. Mr. Speaker, I ask
unanimous consent to extend my re-
marks at this point in the RECORD and
include extraneous matter.
  The  SPEAKER pro  tempore.  Is
there objection to the request of the
gentleman from Illinois.
  There was no objection.
  Mr. SPRINGER. Mr.  Speaker, the
food additives transitional provisions
amendment is technical in nature and
probably will not be fully understood
by the membership of  the House. For
this reason, I would like to talk briefly
about the need for this extension.
  This  legislation is  needed both by
the  Secretary of  Health, Education,
and Welfare, and  by the industries
concerned with the act. The Secretary
came before the committee and told us
that the Food and  Drug Administra-
tion has been unable to process before
March 6,1961, all of the food additives
and pesticide chemical petitions for
safety  clearance now pending.  The
original bill authorized the Secretary
to permit continued pure commercial
uses of  food additives until the indus-
tries concerned proceeded to  develop
the necessary scientific information for
safety clearance.
  The Secretary felt the March  5,
1961, cutoff date would operate unfair-
ly in many situations  where the  con-
tinued use of an additive would be con-
sistent with the protection of the public
health.  There was considerable  evi-
dence by Members of Congress as well
as technical evidence with reference to
the extension of the cutoff date March
5, 1961. The Subcommittee on Health
and Safety of the House Committee on
Interstate and Foreign Commerce has
followed carefully the progress of the
Food and  Drug Administration in en-
forcing  the 1958  statute. It appeared
to the subcommittee and also to the full
committee  that Food  and  Drug  had
been extremely careful in its hearings
on petitions regarding food additives.
  At the conclusion of all of our hear-
ings, which were extended, the commit-
tee came unanimously to the belief that
the law in question should be extended
until June 30, 1964. It  is the belief of
the Secretary, as well as the Commis-
sioner of Food and Drugs, that the ex-
tension  is in the public  interest.  For
this reason, the committee unanimous-
ly recommended that this  legislation
be extended. Mr. Speaker, in speaking
for the  minority, I am sure I express
our position  that it is in  the  public
interest to extend the bill until June 30,
1964, in order  to give  the  Food  and
Drug Administration a proper  oppor-
tunity to complete examination of all
of the  petitions now pending for ap-
proval.
  Mrs.  SULLIVAN. Mr.  Speaker, I
move to strike out the last word.
  Mr. Speaker, as one  of the original
sponsors of the Food Additives  Act of
1958, which was a very important new
departure in the enforcement  of the
pure-food laws, I see no reason to op-
pose H.R. 3980 which has been reported
by the  Committee on  Interstate  and
Foreign Commerce to provide addition-
al time for the clearance of many addi-
tives now in use but whose safety has
not been completely established.
  Under the  original act all of these
additives in use before January 1,1958,
would have had to be  cleared as to
complete safety by March 6,1961; that
is, by last week. Because of the tremen-
dous amount of scientific and techno-
logical work required on many of these
additives, there are apparently thou-
sands which  have not completed the
necessary testing. Unless we pass this
bill today all of those chemicals could
no longer be used in food, although, as
the law provides, they would have been
removed some time ago  if there  was
any serious doubt or real evidence of
danger.
  I would object to this kind of  an ex-
tension  of  time—the bill will permit

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168
LEGAL COMPILATION—PESTICIDES
this to go as long as June 30, 1964—I
would object to that under normal cir-
cumstances if  it was a case of manu-
facturers waiting until the last minute
to begin the testing or failing to make
any effort to comply with the law. But
I am pleased to note that this bill ap-
plies only  in  those cases where the
manufacturer  had proceeded  to make
the proper tests  and  had applied to
Food and Drug more than a year ago
for an extension of time to  continue
tests then underway.
  H.R. 3980 provides  broad authority
to the Food and Drug Administration
to step in at any time to cancel the ex-
tension of time for the testing of any
additive when  the interests of the pub-
lic  indicate it should be withdrawn
from the market as a food additive. So
there is plenty of protection  here for
the consumer if enforcement is strict.
  I would like to congratulate the Com-
mittee on Interstate and Foreign Com-
merce for refusing to make this exten-
sion bill a vehicle for weakening some
of the controversial provisions of the
Food  Additives  Act of 1958. I think
their action on this matter should serve
as a warning  to those manufacturers
who are going to be affected or are be-
ing affected by the Color Additives Act
of 1960 that they had better begin now,
 if they have not already done so, to
 conduct the tests which are required to
 prove the safety of the coloring matter
 used in their products.
   The  SPEAKER pro tempore. The
 question is on the committee amend-
 ment.
   The  committee amendment  was
 agreed to.
   The  SPEAKER pro tempore. The
 Clerk will report the next  committee
 amendment:
   The Clerk read as follows:
  Page 3, line 10, after "1961," insert "or has
 on that date a request for such extension pend-
 ing before him,".
   The  committee amendment  was
 agreed to.
   The  SPEAKER pro tempore. The
 Clerk will report the next committee
 amendment.
   The Clerk read as follows:
  Page 3, line 14, after the word "date", insert
 ", not beyond June 30, 1964,".
   The committee amendment was
 agreed to.
   The bill was ordered to be engrossed
 and read  a  third time, was read the
 third time and passed, and a motion to
 reconsider was laid on the table.
                            [p. 3926]
l.lf (3) (b)   March 27: Passed Senate, pp. 4874-4875
         FOOD ADDITIVES
   TRANSITIONAL PROVISIONS
       AMENDMENT OF 1961
   Mr. MANSFIELD. Mr. President, I
 move that the Senate proceed to the
 consideration of Calendar No. 74, H.R.
 3980.
   The PRESIDING  OFFICER.  The
 bill will be stated by title for the infor-
 mation of the Senate.
   The LEGISLATIVE CLERK. A bill (H.R.
 3980)  to amend the transitional provi-
 sions of the act approved  September
 6, 1958, entitled "An act to protect the
 public health by amending the Federal
 Food, Drug, and Cosmetic Act to pro-
 hibit the use in food of additives which
 have not been  adequately  tested to
 establish their safety,"  and for other
 purposes.
    The PRESIDING OFFICER.  The
 question is on agreeing to the motion
 of the Senator from Montana.
    The motion was agreed to: and the
 Senate proceeded to consider the bill.
    Mr. MANSFIELD. Mr. President, I
 have discussed this procedure with the
 minority leadership which is agreeable
 to having  the bill considered at this
 time.
    I ask unanimous consent, Mr. Presi-
 dent, to have printed in the RECORD at
 this point an excerpt from the report
 of the Committee on Labor and Public

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STATUTES AND LEGISLATIVE HISTORY
                             169
Welfare covering the proposal.
  There being no objection, the excerpt
was ordered to be printed in the REC-
ORD, as follows:
       *****
                          [p. 4874]
  The PRESIDING OFFICER.  The
bill is open to amendment.
  Mr. JAVITS. Mr. President, may we
have an explanation of the bill?  The
bill comes  from the  Committee on
Labor and Public Welfare, a commit-
tee on which I serve.
  Mr. MANSFIELD. The bill was re-
ported unanimously by the committee.
The bill would extend,  from  March 5,
1961, until June 30, 1964, the final ef-
fective dates  of the Food Additives
Amendment of 1958 (Public Law 85-
929) and the Nematocide, Plant Regu-
lator, Defoliant, and Desiccant Amend-
ment of 1959—Public Law 86-139. This
extension  would authorize  the  con-
tinued use  of certain  food  additives
and pesticide chemicals not covered by
regulations issued by the Secretary of
the Department  of Health, Education,
and Welfare,  if the Secretary finds
that such continued use would involve
no undue risk to the public health, that
such additives and pesticide chemicals
were in commercial use prior to Janu-
ary 1, 1958, and that scientific investi-
gations to determine safe levels of use
are being pursued with due diligence.
  The bill has been requested by the
administration, reported from the com-
mittee unanimously, and  cleared with
the minority leadership before being
called up.
  Mr. HILL. Mr.  President, will the
Senator yield?
  Mr. MANSFIELD. I yield.
  Mr. HILL. The  bill was  reported
unanimously by the committee in the
House of Representatives, and passed
unanimously by the House of Repre-
sentatives.
  The PRESIDING OFFICER. The
bill is open to amendment. If there be
no amendment, the question is on the
third reading and passage of the bill.
  The bill (H.R. 3980) was ordered to
a third  reading, was read  the  third
time, and passed.
                         [p. 4875]
 l.lg  AMENDMENTS TO THE FEDERAL INSECTICIDE, FUN-
               GICIDE, AND RODENTICIDE ACT
                  May 12,1964, P. L. 88-305,78 Stat. 190
 To amend the Federal Insecticide, Fungicide, and Rodenticide Act, as amended,
     to provide for labeling of economic poisons with registration numbers, to
     eliminate registration under protest, and for other purposes.
   Be it enacted by the Senate and House of Representatives of the
 United States of America in Congress  assembled,  That  section
 2.z. (2) (b) of the Federal Insecticide, Fungicide, and Rodenticide
 Act (61 Stat. 163,  as  amended,  7 U.S.C.,  1958  ed., Supp. Ill,
 135(z)  (2) (b))  is hereby amended by inserting before the semi-
 colon at the end  thereof the following phrase:  "other than  the
 registration number assigned to the esonomic poison".
   SEC.  2. Section 3  of said Act (61  Stat. 166; 7  U.S.C. 135a) is
 hereby amended by deleting the word "and"  at the end of section
 3.a. (2) (b), deleting  the period at the end of section 3.a. (2) (c) and
 inserting  in lieu  thereof a semicolon and the word "and",  and
 adding after section 3.a.  (2)  (c), a new provision reading as fol-
 lows: "(d)  when  required by regulation of the Secretary to effec-

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170                            LEGAL COMPILATION—PESTICIDES

tuate the purposes of this Act, the registration number assigned to
the article under this Act."
  SEC. 3. Section 4 of said Act (61 Stat. 167; 7 U.S.C. 135b) is
hereby amended by changing the  word "registrant" wherever it
appears in subsection a. and in the first sentence of subsection c. to
"applicant for registration"  and  by deleting the remainder of
subsection c. and inserting in lieu thereof the following:
"If,  upon receipt  of such notice, the applicant for registration
does not make the corrections, the Secretary shall refuse to register
the article. The Secretary, in accordance with the procedures spec-
ified herein, may suspend or cancel the registration of an economic
poison whenever it does not appear that the article or its labeling
or other material required to be submitted complies with the provi-
sions of this Act. Whenever the Secretary refuses registration of
an economic poison or determines that registration of an economic
poison should be canceled, he shall notify the applicant for registra-
tion  or the registrant of his action and the reasons therefor. When-
ever an application for registration is refused, the applicant, within
thirty days after service of notice of such refusal, may file a petition
requesting that the matter be referred to an advisory committee
or file objections and request  a public hearing in accordance with
                                                       [p. 190]
this  section. A cancellation of registration shall be effective thirty
days after service of the foregoing notice unless within  such time
the registrant (1) makes the necessary  corrections; (2)  files a
petition  requesting  that the  matter be referred  to an advisory
committee; or (3)  files  objections and requests a public hearing.
Each advisory committee shall be composed of experts, qualified in
the subject matter and of adequately diversified professional back-
ground selected by the  National Academy of Sciences  and shall
include one or more representatives from land-grant colleges. The
size  of the committee shall be determined by the Secretary. Mem-
bers of an advisory committee shall receive as compensation for
their services a reasonable per diem, which the Secretary shall by
rules and regulations prescribe, for time actually spent in the work
of the committee, and shall in addition  be reimbursed for their
necessary  traveling and subsistence  expenses while so serving
away from their  places of residence, all of which costs may be
assessed against the petitioner, unless the committee shall recom-
mend in favor of the petitioner or unless  the matter was referred
to the advisory committee by the Secretary. The  members shall
not be subject to any other  provisions of law regarding the appoint-
ment and compensation of employees of the United States.  The

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STATUTES AND LEGISLATIVE HISTORY                         171

Secretary shall furnish the committee with adequate clerical  and
other assistance, and shall by rules and regulations prescribe the
procedures to be followed by the committee. The Secretary shall
forthwith submit to such committee the application for registra-
tion of the article and all relevant data before him. The petitioner,
as well as representatives of the United  States Department of
Agriculture,  shall have the  right  to  consult with the advisory
committee. As soon as practicable after any such submission, but
not later than sixty days thereafter, unless extended by  the Secre-
tary for an additional sixty days, the committee  shall, after inde-
pendent study of the data submitted by the Secretary and all other
pertinent information available to it,  submit a report and recom-
mendation to the Secretary as to the registration of the article,
together with all underlying  data and a statement of the reasons
or basis for the recommendations.  After due consideration of the
views of the committee and all other data before him, the Secretary
shall, within ninety days after receipt of the report and recommen-
dations of the advisory committee, make  his determination  and
issue  an order, with findings of fact,  with respect to  registration
of the article and notify the applicant for registration or registrant.
The applicant for registration, or  registrant,  may,  within sixty
days from the date of the order of the Secretary, file  objections
thereto and  request a public hearing thereon.  In  the event  a
hearing is requested, the Secretary shall, after due notice, hold such
public hearing for the purpose of receiving evidence relevant  and
material to the issues raised by such objections. Any report, recom-
mendations, underlying data,  and reasons certified to the Secretary
by an advisory committee shall be made a part of  the record of the
hearing, if relevant and material, subject to the provisions of
section  7(c)   of the Administrative  Procedure Act  (5  U.S.C.
1006 (c)). The National Academy  of Sciences shall  designate  a
member of the advisory committee to appear and testify at  any
such hearing with respect to the report and recommendations of
such committee upon request of the Secretary, the petitioner, or
the officer conducting the hearing: Provided, That this shall not
preclude any other member of the advisory committee from appear-
ing and testifying at such hearing. As soon as practicable after
completion of the hearing, but not later  than ninety  days,  the
Secretary shall evaluate the data and reports before him, act upon
such objections and issue an order granting, denying,  or canceling
                                                       [p.191]
the registration or requiring modification of  the claims or  the
labeling. Such order shall be based only on  substantial evidence of

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172                            LEGAL COMPILATION—PESTICIDES

record at such hearing, including any report, recommendations,
underlying  data, and reason  certified to  the  Secretary by  an
advisory committee, and shall  set forth detailed findings of fact
upon which the order is based. In connection with consideration
of any registration or application for registration under this sec-
tion, the Secretary may consult with any other Federal agency or
with an advisory committee appointed as  herein provided. Not-
withstanding the provisions of section 3.c. (4),  information rela-
tive to formulas of products acquired by authority of this section
may be revealed, when necessary under this  section, to an advisory
committee,  or  to any Federal agency consulted, or at a public
hearing, or in  findings of  fact issued by the Secretary. All data
submitted to an advisory committee in support of a petition under
this section shall be considered confidential by such advisory com-
mittee: Provided, That this provision shall not be construed as
prohibiting the use of such data by the committee in connection
with its consultation with the petitioner or  representatives of the
United States Department of Agriculture, as provided for herein,
and  in connection  with its  report and recommendations to the
Secretary. Notwithstanding any other provision  of this section,
the Secretary may, when he finds that such action is necessary to
prevent an  imminent hazard to the public,  by order, suspend the
registration of an economic poison immediately. In such case, he
shall give the registrant prompt notice of such action and  afford
the registrant the opportunity  to have the matter submitted to an
advisory  committee  and  for  an expedited hearing under  this
section. Final orders of the  Secretary under this section shall be
subject to judicial review, in  accordance with  the provisions of
subsection d. In no event  shall registration of  an article be con-
strued  as a defense for the commission of  any  offense prohibited
under section 3 of this Act."
   SEC. 4. Section 4 of said  Act  (61  Stat. 167;  7 U.S.C. 135b) is
hereby further amended by redesignating subsections d. and e. as
subsections e. and f., and by adding a new subsection d., as follows:
   "d.  In a case of actual controversy as to the validity of any order
under this  section, any person who will be adversely affected by
such order may obtain judicial review  by filing in the United
States court of appeals for the circuit wherein such person resides
or has his principal place of business,  or in the United States Court
of Appeals  for the  District of Columbia Circuit, within sixty days
after the entry of such order, a petition praying that the order be
set aside in whole or in part. A copy of the  petition shall be forth-
with transmitted by the clerk of the court to the Secretary, or any

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STATUTES AND LEGISLATIVE HISTORY                        173

officer designated by him for that purpose,  and thereupon the
Secretary shall file in the court the record of the proceedings on
which he based his order, as provided in section  2112 of title 28,
United States Code. Upon the filing of such petition the court shall
have exclusive jurisdiction to affirm or set  aside the order com-
plained of in whole or in part. The findings of the Secretary with
respect to questions of fact shall  be  sustained  if  supported by
substantial evidence when considered  on  the  record  as a  whole,
including any report and recommendation of an advisory commit-
tee. If application is made to the court for leave to  adduce addition-
al evidence, the court may order  such additional evidence to be
taken before the Secretary, and to be adduced upon the hearing in
such manner and upon such terms  and conditions as to the court
may  deem proper,  if such evidence is material  and there were
reasonable grounds  for  failure to adduce such  evidence  in the
                                                      [p.192]
proceedings below. The Secretary  may modify his findings as to
the facts and order by reason of the additional evidence so taken,
and  shall file with the court such modified findings and  order.
The  judgment of the court affirming or setting aside, in whole or
in part,  any order under this section shall be final, subject to
review by the Supreme Court of the United States upon certiorari
or certification as provided in section 1254 of title  18 of the United
States Code. The  commencement of proceedings under this section
shall not, unless specifically ordered by the court  to the contrary,
operate as a stay of an order.  The court shall  advance on the
docket and  expedite the  disposition  of  all causes filed therein
pursuant to this section."
  SEC. 5. The first sentence of section 8.b. of said Act (61 Stat.
170; 7 U.S.C. 135f.(b)) is hereby  amended by deleting that part
beginning with  the second  proviso  therein  down  to,  but not
including, the period at the end thereof.
  SEC. 6. Section 3.a.(l)  and section 9.a.(l) (b)  of said Act (61
Stat.  166, 170; 7  U.S.C. 135a.(a) (1), 135g.(a) (1) (b))  are here-
by amended  by  changing the phrase  "has not been registered"
wherever it appears therein, to read "is not registered".
  SEC. 7. This Act and the amendments made hereby shall become
effective upon enactment, and all existing registrations under pro-
test issued under  said Federal Insecticide, Fungicide, and Rodenti-
cide Act shall thereupon terminate.
  Approved May  12,1964.
                                                      [p. 193]

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174                           LEGAL COMPILATION—PESTICIDES

l.lg (1)   SENATE  COMMITTEE  ON AGRICULTURE  AND
                         FORESTRY
             S. REP. No. 573, 88th Cong., 1st Sess. (1963)
        REGISTRATION  OF PESTICIDE  CHEMICALS
   OCTOBER 21 (legislative day, OCTOBER 15), 1963.—Ordered to be printed
Mr. JORDAN of North Carolina, from the Committee on Agriculture
              and Forestry, submitted the following
                         REPORT
                     [To accompany S. 1605]
  The Committee  on Agriculture and  Forestry, to whom was
referred the bill (S. 1605), to amend the Federal Insecticide, Fungi-
cide, and Rodenticide Act, as amended, to provide for labeling of
economic poisons with registration numbers, to eliminate regis-
tration  under protest, and for other purposes, having considered
the same, report thereon with a recommendation that it do pass
with an amendment.
                     SHORT EXPLANATION
  This  bill would amend the Federal Insecticide, Fungicide, and
Rodenticide Act to —
       (1)  repeal the provision permitting registration of eco-
    nomic poisons under protest, and
       (2) permit the Federal registration number to be shown on
    the label (and require it to be so shown if  the Secretary of
    Agriculture so provides by regulation).
In lieu of protest registration, the bill makes various appeal pro-
cedures available where registration  is refused or canceled. These
include reference to  an advisory committee for study and report,
further determination by the Secretary, public hearings, a final
order by the  Secretary, and judicial review of such order.
  Immediate suspension of registration is authorized when neces-
sary to prevent an imminent hazard to the public, but the appeal
procedures are then  accorded to the  applicant, including an expe-
dited hearing.
  The committee amendment does not change the purpose of the
bill, but merely incorporates in it a number of  technical correc-
tions and procedural provisions suggested by the Department of
Agriculture and industry representatives.
                                                        [P.I]

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STATUTES AND LEGISLATIVE HISTORY                         175

                     NEED FOR LEGISLATION
  The Federal Insecticide, Fungicide, and Rodenticide Act prohib-
its interstate commerce in "economic poisons," such as insecticides,
herbicides, and plant regulators, unless they have been registered
with the Secretary of Agriculture, are properly labeled, not adul-
terated or  misbranded,  and meet various  other requirements
designed to protect the public and assure it of safe and effective
products.  The act is enforced through  criminal  penalties under
section 8  and seizures under section 9.
  The Secretary is required, upon application, to register any
economic  poison if  the poison, its labeling, and other material
required to be submitted comply with the requirements of the act.
  At present, however, the Secretary  is also required to register
under protest poisons which do not comply with the requirements
of the act if, after he has advised the registrant  that the poison
does not  meet the act's  requirements, the  registrant  insists on
registration. In such case the registrant  is protected from the
effects of failure to register, but not from penalties and seizure if
the product is actually misbranded or otherwise out of compliance
with  the  act. The maximum fine is  $500  higher in some  cases
where the article has been registered under protest. The principal
effect of registration under protest is to shift the  burden of  proof
from the registrant to the Government. If the product is not reg-
istered, the penalty or seizure provisions can be  applied on that
ground. If it is registered under protest, the Government has the
burden of proving that the product does not comply with the act.
  Thus, at present,  the Secretary can be required to  register a
product even though he is convinced that  it is  ineffective and
dangerous to human life. He can  proceed against it  in such case
only after it has moved in interstate commerce, and he then has
the burden of proving that it violates the law. The bill would cor-
rect this situation and  afford greater  protection to the public by
repealing  the authority  for  registration  under  protest. In  its
place the bill provides that applicants  dissatisfied  with the Secre-
tary's action  in refusing or canceling registration may  have
recourse to advisory committee proceedings, public hearings, and
eventually judicial review. Thus the bill affords adequate  protec-
tion to the public, and protects applicants  for registration  from
arbitrary  or ill-advised action by the Department.
  Section 2z (2) (b)  of the  act,   at present, provides that any
economic poison shall be misbranded, if its labeling bears any ref-
erence to  registration under the  act.  The bill would permit the
registration number to be shown  and  authorize the Secretary to

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176                           LEGAL COMPILATION—PESTICIDES

require that it be shown. This would enable the user of the product
to determine that it had been registered under the act and that
the Department had made the necessary investigation and deter-
mined  that it  was truthfully labeled and  complied with  the
requirements of the act. Use of the registration number should
not create any inference that the product was recommended or
otherwise sponsored by the Government.
  The witness  for the National Agricultural Chemicals Associa-
tion at the committee's hearings on the bill testified that 47 States
require registration of pesticides, generally following the pattern
of the Federal act and regulations, and pointed out the difficulties
that might be encountered if the labeling were required to carry
48 different registration numbers. This would, of course,  be an
                                                        [p. 2]
unfortunate situation; and the committee assumes that the States
would have no  reason to, and would not, follow the provisions of
the Federal law in  this respect.
                           HEARINGS
   Hearings were held on S. 1605 by the committee's Subcommittee
on Agricultural Research and  General Legislation on  September
10. All witnesses favored the objectives of the bill. The Department
of Agriculture and the National Agricultural  Chemicals Associa-
tion proposed a number of technical and procedural amendments,
and these have been incorporated in  substance in the committee
amendment to the  satisfaction of the Department  and the asso-
ciation.
   The Department of the Interior recommended two amendments
dealing with fish and wildlife. One would have required the advis-
ory  committee to include on its membership a biologist familiar
with the effects of  pesticides on fish and wildlife.  The other would
have included hazard to useful animals and plants in the imminent
hazard clause justifying summary suspension of registration. The
committee felt that each  of these amendments overemphasized
this particular facet of the problem  and might create doubts as
to the consideration to be given to facets not specifically mentioned.
In some cases, such as that of a household  insecticide, the effect
on fish and wildlife would not appear to be a particularly important
consideration. Where it was an important consideration it should
be given all the weight due it, and the committee  would  expect
that to be done without special provision being included in the bill.
   The Department of  Health, Education,  and  Welfare recom-
mended two amendments. One would make it clear that confidential
data might  be revealed to the heads of other Federal agencies

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 STATUTES AND LEGISLATIVE HISTORY                         177

 consulted by the Secretary of Agriculture and persons authorized
 by such heads of other Federal agencies. The committee substan-
 tially revised and clarified the provisions of the bill dealing with
 confidential data so that the same rule applies to procedures fol-
 lowing refusal or concellation  of registration  as applies prior to
 such refusal or cancellation. The only information required by this
 rule to be kept confidential is that relating to formulas. The com-
 mittee amendment makes it clear that this information may be
 made available to other Federal agencies, and that it may also be
 revealed  when necessary under the act at public hearings or in
 findings of fact issued by the Secretary.
   The other amendment  proposed by the  Department of Health,
 Education, and Welfare would require copies of all applications to
 be transmitted to that Department, with an opinion of the Secre-
 tary of Agriculture as to whether use as directed or as reasonably
 foreseeable is likely to result in a residue on food and the amount
 thereof; prohibit registration until the Secretary of Health, Edu-
 cation, and Welfare had certified that no unsafe residue on food
 was likely; prohibit registration unless data was submitted to that
 Department showing the chemical identify of the poison, a method
 of determining residues on food if such residues might reasonably
 be expected, and results of investigations  as to residues on food
 in such cases; and require cancellation or suspension of any regis-
 tration if that Department lowered the residue tolerance below the
 expected  residue or found that in actual use  the poison left an
 unsafe residue. It would also provide procedures for the determi-
                                                         [P-3]
 nations by that Department similar to those for determinations
 by the Department of Agriculture,  including  separate, joint, or
 parallel advisory committees, separate,  joint,  or parallel  public
 hearings, and so on. The committee felt that this duplication of
 administration and procedures  was unnecessary and burdensome
 and would weaken the authority of the Secretary of Agriculture.
  Under the Federal  Food, Drug, and Cosmetic Act the Depart-
 ment of Health, Education, and Welfare has jurisdiction over
 adulterated foods moving in interstate  commerce and sets the
 tolerances, if any, of residual economic poisons  which may be per-
 mitted on raw agricultural commodities and the tolerances, if any,
of other food additives which may be permitted  on other food com-
modities.  If no tolerance  is established, the contaminated foods
cannot move in interstate commerce. The Federal Food, Drug, and
Cosmetic Act provides for advisory committees, hearings, and other
procedures for the Department of Health, Education, and Welfare

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178                            LEGAL COMPILATION—PESTICIDES

to reach its determinations. Under the Federal Insecticide, Fungi-
cide, and Rodenticide  Act,  the Secretary of Agriculture must
determine if the label contains directions adequate if complied with
for the protection of the public and proper precautionary state-
ments. If it would result in the production of food which would be
prohibited by the Federal Food, Drug, and Cosmetic Act from being
sold in interstate commerce, the public would not  be protected, and
the label could not be registered. The Secretary  of Agriculture
therefore must determine,  among other matters, whether the
economic poison will leave a residue in excess of the tolerance, if
any, permitted by the Department of Health, Education, and Wel-
fare and require  the labeling to be changed as  necessary  in the
light of  any  reduction in the  permitted tolerance. Under the
amendment proposed by the Department of  Health, Education,
and Welfare, that Department would also make this determination
and would make it not only on the  basis of  the  directions on the
label or customary practice, but also on the basis of any reasonable
likelihood of a residue under any reasonably foreseeable conditions
of use. The amendment proposed by the Department of  Health,
Education, and Welfare would  thus provide for a third separate
set of  procedures with its own advisory committee, hearings, and
judicial review. There would be one procedure for the Department
of Health, Education, and Welfare to determine  permissible toler-
ances, another for the Department of  Health, Education, and
Welfare  to determine the existence  of residues under any foresee-
able condition, and another for the Department  of Agriculture to
determine, among other matters, the existence of residues under
reasonably  expected usage. The committee did not include this
amendment in the committee substitute.
                SECTION BY SECTION EXPLANATION
   The first section of the bill permits the labeling of an economic
poison to carry its registration number under the act. At present
section 2z(2) (b)  of the act provides that an economic poison is
misbranded if its label bears any reference  to registration under
the act.  The first section of the bill amends  section 2z (2) (b)  to
permit the  registration number to  be shown.
   Section 2 provides that the  label on an economic poison must
show its registration number when required by regulation of the
Secretary of Agriculture.
                                                         [p. 4]
   Section 3 repeals the existing provision which permits registra-
tion of an economic poison under protest and provides instead for
various appeals from the Secretary's original determination that

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STATUTES AND LEGISLATIVE HISTORY                         179

registration should be refused or canceled.  The new procedure  is
modeled after that contained in section 408 of the Federal Food,
Drug, and Cosmetic Act for the determination  of  tolerances of
pesticide chemicals on  raw agricultural commodities. Under the
new procedure whenever  the Secretary  refused registration or
determined that registration  should be canceled  the applicant or
registrant  would be notified of that action and the reasons there-
for. The applicant would then have 30 days to request reference to
an advisory committee or to  file objections  and  request a public
hearing. The Secretary could also  refer the matter to an advisory
committee at any time on his own motion. Each advisory commit-
tee would  consist  of qualified experts selected  by  the National
Academy of Sciences. The size of the committee would be deter-
mined by the Secretary and  members would receive a reasonable
per diem for their services, plus traveling and subsistence expenses,
such costs being assessed  against the party requesting reference
to the advisory committee. The committee would submit  recom-
mendations to the Secretary within 60 days after reference,  and
the Secretary within 90 days thereafter would notify the applicant
or registrant of his determination. The applicant  would then have
60 days to file objections and request  a public hearing. Following
the hearing the Secretary would issue his order granting, denying,
or canceling registration.
  If necessary to prevent  an imminent hazard to the public, the
Secretary could suspend registration of an economic  poison imme-
diately and afford the registrant the opportunity for reference to
an advisory committee  and an expedited hearing following  such
suspension.
  Section 4 adds a new  section d to section 4 of the act to provide
for judicial review of the Secretary's orders by petition to an appro-
priate U.S. court of appeals within 60 days after entry of the order.
The court would then have exclusive jurisdiction to affirm or set
aside the order. The Secretary's findings of fact would be sustained
if supported by substantial evidence when considered  on the record
as a whole.
  Section  5 strikes out the  provision of  section 8  for  higher
maximum fines and automatic termination of registration in the
case of offenses of which the registrant has been warned at  the
time of registration under protest. In view of repeal by section  3
of the provision  for registration under protest, the provision
repealed by this section would no longer have any meaning.
  Section 6 makes clarifying changes in sections 3a(l) and  section
9a(l) (b) of the act, making it clear that those sections apply to an

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180                               LEGAL COMPILATION—PESTICIDES

economic poison which is not registered, without regard to whether
it may at some time have been registered. Section 6 substitutes
"is not registered" for "has not been registered" in each  section.
Section 3a(l), as thus amended, prohibits interstate commerce in
any economic poison which  "is not registered," while  section
9a(l) (b), as thus amended, provides for seizure of any economic
poison which "is not registered."
   Section 7 provides  that the bill will become effective  on enact-
ment,  and makes it  clear  that all  existing  registrations under
protest will then terminate.
                                                                [P. 5]
                     DEPARTMENTAL REPORTS
                                     DEPARTMENT OF AGRICULTURE,
                                       Washington, D.C., July 12,1963.
HON. ALLEN J. ELLENDER,
Chairman, Committee on  Agriculture and Forestry,
U.S. Senate.
  DEAR MR. CHAIRMAN : We wish to thank you for your letter  of May 28,
1963, giving us the opportunity to report on S. 1605, entitled "A bill to amend
the Federal Insecticticide, Fungicide, and  Rodenticide Act, as amended, to
provide for labeling of economic poisons with registration numbers, to elim-
inate registration under protest, and for other purposes."
  The bill would permit the labels of economic poisons registered under the
act to bear the registration numbers and would authorize the Secretary of
Agriculture to  require by regulation that registration numbers appear on
such labels. It would delete the  provisions now in the act for registration of
economic poisons under  protest and would prescribe the procedures  to be
followed in refusing or  canceling registrations, or requiring modification of
claims or labeling of registered economic poisons. Provisions would be made
for referral of the  question of the eligibility  of  an economic poison for
registration to an advisory committee; for  public hearing, if requested, with
respect to the Secretary's order  issued after consideration of the views of the
committee and other data; and for judicial review of the order issued by the
Secretary  after such hearing.
  In fulfilling its responsibilities under the act, this Department is  hampered
by a provision in the act which gives the applicant the right to demand and
receive registration  under protest when regular registration is denied, even
though the denial is based upon a hazard  to the public involved in its  use.
The net effect of a registration  under protest is to shift the burden of proof
from the  applicant to the Department. Thus a chemical formulation not
acceptable  to the Department  for registration  might be marketed for an
extended period on  a "registration under protest" basis before proof  of its
harmfulness could be developed. The intent of S. 1605 is  to eliminate regis-
trations under protest and to give this Department authority to deny or cancel
any registration or require modification of claims  or labeling in  any  case,
after opportunity for referral of the matter to an advisory committee  and a
public hearing, but with authority for immediate suspension of any registra-
tion when the Secretary  of Agriculture finds that such action is necessary to

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STATUTES AND LEGISLATIVE HISTORY                              181

prevent an imminent hazard to the public or any portion thereof.
   This Department recommends enactment of the bill if the following changes
are made.
   In section 3 of the bill, page 3, line 7, after "Secretary.", insert the following
new sentence: "The Secretary on his own motion, may at any time refer such
a  matter to an  advisory committee." It is believed that  this authority in the
Secretary is desirable.
   In section 3 of the bill, page 3, line  19, preceding the period, insert the
following:  ", all of which costs may be assessed against  the petitioner, unless
the matter  was referred to  the  advisory committee  upon the motion of the
                                                                   [p. 6]
Secretary without a petition". This change would clarify the responsibility for
payment of costs incurred in connection with an advisory committee.
   The bill  provides that all  data submitted to the Secretary or an advisory
committee shall  be considered confidential until final action is taken concerning
registration of the product. However, the bill also provides for such data to be
included in the record at the public hearing provided for  in  the  bill.  To
eliminate this apparent inconsistency, it is suggested that in section  3 of the
bill, page 5, lines 20-21, the phrase "final action is  taken concerning regis-
tration of the product." be deleted and the following  be  substituted therefor:
"the Secretary  issues his order  concerning registration of the  product  fol-
lowing consideration  of  the  views of the committee and other data before
him."  In the next sentence,  on  line 21, the word "final" preceding "action"
should be deleted and "by the Secretary" should be  inserted after "action".
It is contemplated that under this language the Secretary would be authorized
to make such data available  to other executive agencies that  have an official
interest.
   Since the provisions of the act for registration under protest would be
deleted by the  bill,  it would appear that the existing registrations under
protest would automatically terminate when the amendments  made by  the
bill become  effective.  However, to avoid any possible  question in  this respect,
it  is proposed that in section 7 of the bill, page 8, line 16, the  following be
inserted preceding the period: ", and all existing registrations under protest
issued  under said Federal Insecticide, Fungicide,  and Rodenticide Act shall
thereupon terminate".
   The  Bureau of the Budget advises that there is no objection to the sub-
mission of  this report from  the standpoint of the administration's program.
    Sincerely yours,
                                         ORVILLB L. FREEMAN,  Secretary.
                                       DEPARTMENT OF THE INTERIOR,
                                      Washington, D.C., August 19,1963.
HON. ALLEN J. ELLENDER,
Chairman, Committee on Agriculture and Forestry,
U.S. Senate, Washington, D.C.
  DEAR SENATOR ELLENDER : Your committee has requested this Department's
report on S. 1605, a bill to amend the Federal Insecticide,  Fungicide, and
Rodenticide Act, as amended, to provide for labeling of economic poisons with
registration numbers, to eliminate registration  under protest, and for other
purposes.

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182                                 LEGAL COMPILATION—PESTICIDES

  We recommend the enactment of S. 1605, if amended as suggested herein.
  This Department, in carrying out its responsibilities of administering our
national  parks and conserving1 fish and wildlife, is  convinced of the need to
provide a more effective means of controlling the use of chemicals potentially
harmful  to  living man, domestic animals,  and fish and  wildlife. S. 1605 is
designed to  accomplish this by strengthening, the Federal Insecticide, Fungi-
cide, and Kodenticide Act, as amended (7 U.S.C. 135 et seq.). The bill deletes
the provisions of that act permitting registration of economic poisons under
                                                                   [P-7]
protest and establishes procedures for granting, denying, or canceling the
registration or requiring the modification of the claims or the labeling by the
applicant for registration.                                                '
  In addition,  S.  1605  establishes procedures for referring  the  Secretary's
determination that  registration of  an economic poison should be  refused,
canceled, or the claims or labeling modified, to an advisory committee appointed
by the Secretary, if the applicant or registrant requests this. We understand
that the  Department of  Agriculture  has  suggested  that provision also be
made for referral to the committee on the Secretary's  motion at any time.
The committee then reviews the application  and all relevant data, and presum-
ably the determination of the  Secretary, and makes its report and recom-
mendations  to the Secretary.  The bill then provides for the Secretary to
consider the committee's views  and all other data and to make a new deter-
mination and issue a new order with  a findings of  fact. Following this, any
aggrieved person  may file objections and request and be granted a hearing
for the purpose of receiving evidence relevant and material to  the issues raised
by  the objections. After  completion of the hearing the Secretary  is again
required to  issue an order, based on the whole record, denying or canceling the
registration or  requiring a modification  of the claims  or the  labeling. The
order  of the Secretary would then be subject to judicial review. While this
Department does not object to these lengthy procedures, we believe that these
procedures may prove to be too cumbersome and work a  hardship on  all those
concerned.
  One of the principal concerns of this Department is the effect of pesticides
on fish and wildlife. These effects should be  considered during the registration
of these  chemicals. S. 1605 provides an opportunity for a careful consideration
of these effects by  an  advisory committee, in addition to the consideration
given  by the  Department of  Agriculture. Each advisory  committee shall
include experts selected by the National Academy of Sciences  and one or more
persons from land-grant colleges. Since the  bill specifically provides for repre-
sentatives of these colleges, we believe that a provision for including on such
a committee one or more  persons familiar with the  effects  of pesticides on
fish and wildlife also is necessary. Accordingly, we recommend that page 3,
line 11,  of  the bill  be  amended by striking the period  after "colleges" and
inserting a comma and the following clause: "and  one or more  biologists
familiar with the effects of pesticides on fish and wildlife."
   In the alternative, however,  we would not object to deleting the provision
for including representatives of land-grant  colleges and one or more biologists.
We believe  that the bill is broad enough to permit  the National Academy of
Sciences to include  such  representatives  when necessary without specifically
providing for such representation. Further,  there may be occasions where their
representation would serve no useful purpose.

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STATUTES AND LEGISLATIVE HISTORY                             183

  Section  3  of  the bill,  among other thing's,  authorizes  the  Secretary  of
Agriculture to order the suspension of the registration of an economic poison
immediately, when he  finds such action is necessary to prevent an imminent
hazard to the public. This would be applicable to economic poisons now regis-
tered under  the act. Procedures  similar to those described  for  registering
pesticides would be applicable  to  suspended registrations. We believe this
                                                                   [p. 8]
provision is  essential.  However, we believe that the term "public" may not
include fish and wildlife and other natural resources. Accordingly, we recom-
mend that S. 1605 be amended on page 6, line 3, after the word "public," by
inserting therein "including an imminent hazard to man, or animals or plants
useful to man, including useful fish and wildlife,".
  The Bureau of the  Budget has advised that there is no objection to the
presentation  of  this  report from  the  standpoint of the administration's
program.
      Sincerely yours,
                                                 STEWART L. UDALL,
                                                Secretary of the Interior.
                   DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
                                                       August 29, 1963.
Hon. ALLEN J. ELLENDER,
Chairman, Committee on Agriculture and Forestry,
U.S. Senate, Washington, D.C.
  DEAR MR. CHAIRMAN: This letter is in response to your request of June 6,
1963,  for a report on S. 1605, a bill to amend the Federal Insecticide, Fungi-
cide, and  Rodenticide Act, as amended, to  provide  for labeling  of economic
poisons with registration numbers, to  eliminate registration under  protest,
and for other purposes.
  The two objectives of this bill—objectives that we  fully endorse—are stated
in its  title. Under present law, if the Secretary of Agriculture determines that
an economic poison offered  for registration  under  the Federal Insecticide,
Fungicide, and Rodenticide Act would not comply with the various substantive
requirements of the act, he  still must, if the applicant insists,  register the
article though "under protest," even when the apparent violation is one that
constitutes a hazard to the public health. Likewise,  if an economic poison is
regularly registered, the Secretary can convert the registration into a registra-
tion "under protest" but cannot cancel it outright. And since the label of the
article bears no reference to registration—it is deemed misbranded if it does—
purchasers are not apprised  of its protested status.  The holder of an article
registered under protest does incur the risk of greater penalties and automatic
termination of the registration in the event of conviction for a violation of the
act, but in order to achieve this the Government would first  have to carry the
burden of proving beyond a reasonable doubt noncompliance with the  act's
substantive requirements, such as  labeling giving adequate directions for use
and adequate warnings to prevent injury. The burden should, we think, be on
the manufacturer  to show, before  an economic poison may be registered, that
the article may be safely and effectively used under  the proposed labeling, so
that, on the one hand, an article may  be marketed in reliance on the registra-

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184                                 LEGAL COMPILATION—PESTICIDES

tion so long as it is in effect and the article and its labeling are the same as that
which has been registered and, on the other hand, deviation from the registered
article or its labeling will per se constitute a violation.
  The present bill would—in addition to authorizing the Secretary to require
the label of the economic poison to bear a registration number—substitute for
the present  protest-registration  procedure  detailed provisions that would
authorize the Secretary to refuse registration,  or  to cancel the registration
(or require modification of the labeling), of an  economic poison that he con-
siders  to be violative of the act, subject to the  applicant's right to have the
                                                                   [p. 9]
matter referred to an advisory committee of experts and to  have a reconsid-
ered decision of the Secretary after the report of the advisory committee has
been obtained, and subject to the right of  any  person adversely  affected by
such a reconsidered decision to have an opportunity for public hearing and for
judicial review of the Secretary's final decision on the  basis of the hearing
record. (Pending referral to an advisory committee and hearing,  the Secretary
would  be empowered to suspend registration summarily if found necessary to
prevent an imminent hazard to the public.)
  These provisions would carry out procedurally two of the recommendations
(i.e., recommendations  D 1 and 2)  in the recent  report of the  President's
Science Advisory Committee on the "Use of Pesticides." We defer to the view
of the Secretary of Agriculture as to whether these provisions  are adequate,
not only  to do away with registration under protest but, as  above suggested,
to put the burden on the applicant to prove compliance  with the  substantive
requirements  of the act as to safety and effectiveness before the article may
be  registered, instead  of placing the  burden,  in  the last  analysis, on  the
Secretary to prove that the article does not comply before he may refuse
registration.  We believe, however, that in any event certain amendments to
the bill are needed from the point of view of the  impact of the  bill on this
Department.
1. Amendments  to clarify, extend, and improve the relationship between the
    Federal Food, Drug, and Cosmetic Act and the Federal Insecticide, Fungi-
    cide, and Rodenticide Act with respect to economic poisons that may leave
    a residue in or on food
  The Food,  Drug, and Cosmetic (FDC) Act provides, through  various regu-
latory procedures, for premarketing clearance for safety, including establish-
ment of safe  tolerances, for extraneous substances in or on food  (including
feed) that are either intended as components of food or the use  of which may
reasonably be expected to result in leaving a residue in food. If such a sub-
stance is present in or  on food at the time  of, or subsequent to, introduction
of the food in interstate commerce, the food is  deemed unsafe, and  hence
adulterated, unless the  use of the additive and the  amount involved are sanc-
tioned by a clearance regulation then in effect or are exempted  by the act or
regulation. Chemicals that are "economic poisons" within the meaning of the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFEA) may be subject
to one or two of these premarketing clearance procedures under  the FDC Act,
depending upon whether the chemical is used in the production, storage, or
transportation of crops or other raw agricultural commodities—in which event
it is referred to as a "pesticide chemical" subject to the clearance procedure
of the Pesticide Chemicals Amendment—or is used otherwise, in which event
it is, generally, subject to the clearance procedure of the Food Additives

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STATUTES AND LEGISLATIVE HISTORY                             185

Amendment of 1958 as a  "food additive" (unless it is classified as a  color
additive).
  In the case  of "pesticide chemicals" as above denned, where in the opinion
of the Department of Agriculture the proposed use of the chemical in accord-
ance with label directions will leave a residue on a raw agricultural commod-
ity, that Department  will ordinarily delay  registration until an applicable
                                                                  [p. 10]
tolerance or exemption has been established under the FDC Act, on the ground
that until  the establishment of such a tolerance or exemption  it cannot be
determined whether there will  be a violation of the provisions of FIFRA,
which deem an economic poison misbranded if the labeling does not contain
necessary directions for use "adequate for the protection of the  public" or if
the label does  not contain necessary warning or caution statements "adequate
to prevent  injury to living man and other *  * * animals * * *."  (See regula-
tions, 7  CFR  363.11.) We understand that extension of this procedure to
situations where an economic poison offered for registration  is  intended for
use in connection with food other than raw agricultural commodities is under
consideration,  though  not  as yet  in effect. However, we assume that,  under
present law, the  applicant could insist upon registration without awaiting a
determination by this  Department under the FDC Act,  though in such  cases
he might have  to accept a registration under protest.
  Whatever the basis for the above-mentioned procedure under FIFRA in its
present form,  with its  escape hatch of registration under protest, we seriously
doubt that, under the amendments proposed  by the bill, the Secretary of
Agriculture would be  authorized to delay his decision,  initially or otherwise,
on the ground that there has been no determination under the FDC Act. The
provisions of the bill, with their  built-in time  limits, emphasize the desirability
of expeditious procedure. Moreover, even if  the Secretary should manage to
defer his decision with respect to registration until a tolerance or exemption
under the FDC  Act has been granted or denied,  this would  apparently not,
as the bill is written, require or authorize him to deny registration simply on
the basis of the decision reached under the FDC Act; nor could the Secretary,
after registration has been granted, cancel  such  registration simply  on the
basis of the decisions reached under the FDC Act, such as a modification of a
previously  established  tolerance. The hearing provisions of the bill, particu-
larly, seem to contemplate an independent administrative decision  of the
Secretary of Agriculture (subject to judicial review on the  record)  "based
only on substantial evidence of record at such hearing"  (including any report
of an expert advisory  committee appointed  under the bill), and the grounds
on which the decision would have to be based would be failure to comply with
substantive provisions, including those relating to safety, of FIFRA rather
than with  applicable  standards or regulations under  the  FDC Act.  This
involves  the risk of duplicative, and even dichotomous, decisions of the two
departments contrary to their mutual desire and contrary to the public interest.
  The bill is therefore in need of  amendment to prevent these results and to
formalize in law, perfect, and extend to  all  foods  the now-existing procedure
applied  under FIFRA with respect to economic  poisons used in connection
with raw agricultural commodities. This could be  accomplished by amend-
ments as follows :
  (a)  A requirement  that an  application  for registration of  an economic
poison  be accompanied by a  satisfactory method  of analysis  which could be

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186                                 LEGAL COMPILATION—PESTICIDES

used to determine the presence or absence of residues in food, if the economic
poison is  intended  for use in the production,  handling1,  transportation, or
storage of food, or for some  other use that may reasonably be expected to
result in leaving a residue in food when used as directed or under reasonably
                                                                  [p.11]
foreseeable  conditions of use.  Such an analytical method is needed both to
determine whether the article should be registered on a "no residue" basis and,
after such  registration, whether  its use bears out  the expectation  of  "no
residue."
   (6)  In the case of an economic poison which is intended for a use described
in the preceding paragraph, a requirement that the application for registration
be accompanied by  full reports of adequate scientific investigations as to the
amount of residues remaining in or on food.
   (c)  A requirement that an economic poison may not be registered unless
and until  this Department has certified a finding either (1) that there is no
reasonable likelihood that the  article will result in a residue in or on food
(at or after the introduction  of the  food into interstate commerce),  or  (2)
that the residue likely to result will not be deemed unsafe under the FDC Act
(because of a tolerance or exemption  we have established, or because of other
facts stated in the certification). Provision should also be made for mandatory
cancellation of the registration upon certification by this Department that the
earlier findings are no longer applicable by reason of changes in the tolerance
or exemption previously established or of other action under  the FDC Act,
or by reason of actual experience as to the residues which result from  the use
of the economic poison.
   (d)  The standard to be applied in determining whether a chemical should
be registered is the amount of residue, if any, in or on food, that is likely to
result  if the chemical is used in accordance with directions or otherwise under
reasonably  foreseeable conditions  of use.  The  standard  to  be applied in
determining whether registration would be canceled is the amount of  residue
that is resulting from actual use of the chemical, either as directed, or under
other conditions of  actual use  that may reasonably be expected to be followed
in practice to a substantial extent.
   We are enclosing  draft language to carry out these recommendations.
2. Amendments to make information available to other agencies concerned
   We believe that the confidentiality provisions of the bill in section 3 could be
a bar to proper administration, and we therefore not only endorse the recom-
mendation in the Secretary of Agriculture's comments dealing with the pro-
posed amendments of lines 20 and 21 on page 5 of the bill, but also recommend
that the law make a specific provision, along the lines of an amendment enclosed
herewith, to make it clear that the Secretary of Agriculture is not barred from
providing information submitted to him to any other Federal agency consulted.
   Before closing this  report,  we should like to note that the President nas
asked  the  responsible  agencies to implement  the  recommendations  in the
Science Advisory Committee's report, including in such implementation the
preparation of proposals for submission by him to Congress.
   With respect to economic poisons that leave no residue in or  on food but
have other implications with respect to public health, we are currently engaged
in evaluating the statement in the report of that committee that "decisions on
registration, clearly  related to health,  should  be  the responsibility of the
Department of Health, Education, and Welfare," and the committee's recom-

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STATUTES AND LEGISLATIVE HISTORY                           187

mendation B.  4, that the "Secretaries of Agriculture, Interior, and Health,
Education, and Welfare review and define their roles in the registration of
                                                            [p. 12]
pesticides that are not present on food, but that may impinge on fish and wild-
life or come into  intimate contact with the public." Additional proposals for
the amendment of FIFRA could eventuate in the light of these committee
recommendations. We also intend to review the need for special controls over
especially hazardous persistent economic  poisons, whether used in connection
with food or otherwise, and the question whether the availability of a new and
less hazardous substance should be ground for changing the status of a previ-
ously registered article.
  At this time, we recommend, for the above-stated reasons, the enactment of
this bill, modified  in accordance with the proposed amendments enclosed here-
with which would  carry out the specific recommendations of our report.
  We are advised by the Bureau of the Budget that while there is no objection
to the submission of this report  from the standpoint  of the administration's
program, the matter of  relationships between the food and drug and pesticide
registration programs is still under study in the executive branch and a final
decision will be reached thereon as soon as possible.
      Sincerely,
                                         PHILIP H. DBS MARAIS,
                                         Acting Assistant Secretary.
     PROPOSED AMENDMENTS TO THE BILL RE ECONOMIC POISONS
                 LEAVING RESIDUES IN OR ON FOOD
   1.  On page 6, change lines 15 and  16 to read as follows: "tions
d and e as subsections f and g, and by inserting  before such redesig-
nated subsections the following new subsections, as follows:."
   2.  On page  6, line 18,  insert "subsection c  of"  after "under."
   3.  Strike  out the closing quotation marks on page 8,  line 6, and
insert between  lines  6 and 7 the following:
   "e. (1) The  provisions of this subsection shall apply notwith-
standing any other provisions of this Act.
   "(2)  For the purposes of this section, the registration  of an
economic poison shall not be valid with respect to  any change from
the  claims  therefor or the  labeling or composition thereof as
described in the application upon which such registration is based,
except  upon the filing  of  a supplement  to such  application in
accordance with such change and issuance of an order confirming
such registration: Provided, That no such supplement need be filed
with respect to  a change that is not significant from the standpoint
of safety or effectiveness or from the standpoint  of the residue of
the  economic poison remaining in or on food.  As used  in the fol-
lowing  paragraphs of this subsection, the term 'application for
registration' includes a proposed supplement to an application on
which a previous registration is based and a request pursuant to
subsection g for continuation  of  a  registration, and  the  terms

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188                            LEGAL COMPILATION—PESTICIDES

'register' and 'registration' include confirmation or continuation
of registration pursuant to such a supplement or pursuant to such
a request.
                                                        [p. 13]
   "(3)  A copy  of  every application for registration of an eco-
nomic poison, and of any statement or other data filed in connection
therewith, shall  be  transmitted by the Secretary to the Secretary
of Health, Education, and Welfare, together with an opinion of the
Secretary of Agriculture as to whether, on the basis of the data
before him, such economic poison, when used as directed or other-
wise under reasonably foreseeable conditions of use, is likely to
result in a residue  in or  on food and, if so, the amount of such
residue.
    "(4)  (A) An economic poison shall not be registered unless
and until the Secretary  of Health, Education, and Welfare has
certified, on the  basis of the data before him and after appropriate
consideration of the opinion of the Secretary of Agriculture sub-
mitted under paragraph  (3), that he finds (i) that such economic
poison, when used in accordance with directions  or otherwise under
reasonably foreseeable conditions of use, is not likely to result in
a residue in or on food  (at or after the introduction thereof into
interstate commerce), or (ii) that the residue likely to result from
such use will, by reason  of its conformance with a tolerance or
exemption established under the Federal Food, Drug, and Cosmetic
Act or by reason of any other facts found and  stated in such cer-
tification, not be deemed unsafe within  the meaning  of  section
406, 408,409, or  706 of such Act.
   "(B)  Such certification shall in any  event  be refused unless
the application  and other  data  submitted  to the  Secretary  of
Health, Education, and Welfare under paragraph (3) or submitted
to him directly by the applicant include the following:
      "(i)  Full data showing the chemical identity and composi-
    tion of the economic poison.
      "(ii)  Practicable and reliable methods of examination for
    determining the amount of residue, if any, of such economic
    poison in or on food if such economic poison is intended for
    use in producing, manufacturing, packing,  processing, pre-
    paring, treating, packaging, transporting,  or holding food, or
    is intended  for any  use that may reasonably be expected to
    result, directly or indirectly, in its leaving a residue in or on
    food when  used as  directed or  otherwise under reasonably
    foreseeable  conditions of use.
      "(iii)  Full reports of  adequate  investigations  (made in

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STATUTES AND LEGISLATIVE HISTORY                         189

     accordance with the methods referred to in clause (ii) showing
     the amount of such residue, if any, remaining in or on food
     when such economic poison is used as directed or otherwise
     under reasonably foreseeable conditions  of use, except that
     such investigations, if not  made, may be dispensed with  by
     such Secretary if such economic poison is not intended for a
     use described in clause (ii).
   "(5)  Whenever the Secretary  of Health, Education, and Welfare
certifies that he finds (A) that, by reason of action  (specified in
such certification)  taken under section 406,  408, 409, or  706 of
the Federal Food, Drug,  and Cosmetic Act, as  the  case may be,
                                                        [p. 14]
the probable residue of an economic poison in or on food assumed
as a basis for a prior registration of an economic poison would now
be deemed unsafe within the  meaning of such section, or (B) that
the actual use of  such economic  poison as directed, or under other
conditions of actual use that may reasonably be expected to con-
tinue to be followed in practice to a substantial extent, has resulted
in leaving in or on food, at  or  after the introduction thereof in
interstate  commerce,  a residue that for reasons  stated in  such
certification is deemed unsafe  within the meaning of any  such
section  of such Act, the Secretary of Agriculture shall cancel such
registration on thirty days'  notice, except that,  if  the order of
certification of the Secretary of Health, Education, and Welfare
includes a finding of imminent hazard to the public health pursuant
to clause  (C) of the proviso  to paragraph (6) of  this subsection,
such registration shall be suspended without prior notice pending
final action of such Secretary.
   (6) Certifications, or refusals of certification, of the Secretary
of Health, Education, and Welfare  under this subsection shall be
made by order. The procedure  for the issuance,  amendment,  or
revocation of such  orders, including  opportunity  for hearing on
the record to any person adversely affected by the Secretary's
action or proposed action, shall be prescribed by such Secretary by
regulations and shall follow as nearly as practicable the procedure
governing orders  of the Secretary of Agriculture set forth in sub-
section  c: Provided, That (A)  the question  whether or on what
terms a tolerance, or exemption from the requirement of a toler-
ance, should be established, modified, or revoked under any provi-
sion of the Federal Food, Drug, and Cosmetic Act shall not be put in
issue in any proceeding under this  section; (B)  the referral of a
matter  to an advisory committee shall not be mandatory  on the
Secretary of Health, Education, and Welfare  unless requested by

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190                            LEGAL COMPILATION—PESTICIDES

the applicant or registrant; and (C)  where such Secretary finds
that there is an  imminent  hazard to the  public health he may
immediately make the certification  provided for in paragraph (5),
in which event he shall give prompt notice to the registrant and
afford him the opportunity to have the matter submitted to an
advisory  committee and  for  an  expedited  hearing under  this
paragraph (6) and shall, after such opportunity, issue a final
order confirming, modifying,  or setting aside his  earlier order.
Final orders under this paragraph shall  be  subject to judicial
review on the record in accordance with the procedure set forth
in subsection d of this subsection,  and for  that purpose the term
"Secretary" as used in subsection  d shall mean the Secretary of
Health,  Education,  and Welfare. Notwithstanding  the foregoing
provisions of this  paragraph, the two Secretaries may,  to the
extent they deem  it  practicable and in  the interest of efficiency and
convenience of the parties, provide by joint or parallel regulations
for joint hearings before them, in  which event judicial review of
such orders may be initiated  by a single petition.
                                                        [p. 15]
   "(7)  As used in  this subsection, the term 'residue' includes the
breakdown products of an economic poison  in foods; and the term
'food' means  such term as defined in the Federal Food, Drug, and
Cosmetic Act."
   4. Change the  two sentences beginning  on page 5, line 16, to
read as follows: "All data submitted to the Secretary or to an ad-
visory committee in support of a petition under this section shall
be considered confidential by the Secretary, by any other Federal
agency officially consulted by  the  Secretary in connection there-
with, and by such advisory committee until the Secretary issues
his order  concerning registration of the product following consid-
eration of the views of the committee and  other data before him.
Until such action such data shall  not be revealed to any  person
other than those authorized by the Secretary, or by an  advisory
committee in the carrying out of the official duties under this sec-
tion, or by the head of such other Federal agency."

                   CHANGES IN EXISTING LAW
   In compliance with subsection (4) of rule XXIX of the Standing
Rules of the Senate, changes in existing law made  by the  bill, as
reported, are shown as follows  (existing law proposed to be omitted
is enclosed in black  brackets, new matter is printed in italic, exist-
ing law in which no change is proposed is shown in roman):

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STATUTES AND LEGISLATIVE HISTORY                         191

     FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
AN ACT To regulate the marketing of economic poisons and devices, and for
                        the other purposes
  Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
                             TITLE
  SEC. 1. This Act may be cited as the "Federal Insecticide, Fun-
gicide, and Rodenticide Act."
                         DEFINITIONS
  SEC. 2. For the purposes of this Act—
  a. The term "economic poison" means (1) any substance or mix-
ture of substances intended for preventing, destroying, repelling,
or mitigating any insects, rodents, nematodes,.fungi, weeds, and
other forms of plant or animal life or viruses, except viruses on or
in living man or other animals, which  the Secretary shall declare
to be a pest, and (2) any substance or mixture of  substances in-
tended for use as a plant regulator, defoliant or desiccant.
  b. The term "device" means any instrument or contrivance in-
tended for trapping, destroying, repelling, or mitigating insects or
rodents or destroying, repelling, or mitigating fungi, nematodes, or
such other pest as  may be designated by the Secretary, but not
including equipment used for the application of economic poisons
when sold separately therefrom.
                                                        [P. 16]
  c. The term "insecticide" means any substance  or mixture of
substances intended for preventing, destroying, repelling, or miti-
gating any insects  which  may be present in any environment
whatsoever.
  d. The term "fungicide" means any substance or mixture of sub-
stances intended for preventing, destroying, repelling, or mitigat-
ing any fungi.
  e. The term  "rodenticide" means any substance  or mixture of
substances intended  for preventing, destroying, repelling, or miti-
gating rodents or any other vertebrate animal which the Secretary
shall declare to be a pest.
  f. The term "herbicide" means any substance or mixture of sub-
stances intended for preventing, destroying, repelling, or mitigat-
ing any weed.
  g. The term "nematocide" means any substance  or mixture of
substances intended  for preventing, destroying, repelling, or miti-
gating nematodes.
  h. The term "plant regulator" means any substance or mixture

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192                            LEGAL COMPILATION—PESTICIDES

of substances, intended through physiological action, for accelerat-
ing or retarding the rate of growth or rate  of maturation, or for
otherwise altering the behavior of ornamental or crop plants or the
produce thereof, but shall not include substances to the extent that
they are intended as plant nutrients, trace  elements, nutritional
chemicals, plant inoculants, and soil amendments.
  i. The term "defoliant" means any substance or mixture of sub-
stances intended for causing the leaves or foliage to drop from a
plant, with or without causing abscission.
  j. The term "desiccant" means any substance or mixture of
substances intended for artificially accelerating the drying of plant
tissue.
  k. The term "nematode" means invertebrate  animals of  the
phylum nemathelminthes and class nematada, that is, unsegmented
round worms with elongated, fusiform, or saclike bodies, covered
with cuticle, and inhabiting soil, water, plants or plant parts; may
also be called nemas or eelworms.
  1. The term "weed" means any plant which  grows where  not
wanted.
  m.  The term "insect" means any of the numerous small inverte-
brate animals generally having the body more or less obviously
segmented, for the most part belonging to the class insecta, com-
prising six-legged, usually winged forms, as, for example, beetles,
bugs, bees, flies, and to other allied classes  of arthropods  whose
members are wingless and usually have more than six legs, as, for
example, spiders, mites, ticks, centipedes, and wood lice.
  n. The term "fungi" means all non-chlorophyll-bearing thallo-
phytes (that is, all non-chlorophyll-bearing plants of a lower order
than mosses and liverworts) as,  for example, rusts, smuts, mil-
dews, molds, yeasts, and bacteria, except those on or in living man
or other animals.
  o.  The term "ingredient statement" means  either—
       (1)  a statement of the name and percentage of each active
    ingredient, together with the total percentage of the inert in-
    gredients, in the economic poison; or
       (2) a statement of the name of each  active ingredient, to-
    gether with the name of each and total percentage of the inert
    ingredients, if  any there be, in the economic poison  (except
                                                       [p. 17]
    option 1 shall apply if the preparation is highly toxic to man,
    determined as provided in section 6 of this Act);
and, in addition to (1) or (2)  in case the economic poison contains
arsenic in any form, a statement of the percentages of total and

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STATUTES AND LEGISLATIVE HISTORY                         193

water soluble arsenic, each calculated as elemental arsenic.
  p. The term "active ingredient" means—
       (1) in the case of an economic poison other than a plant
     regulator, defoliant or desiccant, an ingredient which will pre-
     vent, destroy, repel, or mitigate insects, nematodes, fungi,
     rodents, weeds, or other pests;
       (2) in the case of a plant regulator, an  ingredient which,
     through physiological action, will accelerate or retard the rate
     of growth or rate of maturation or otherwise alter the behavior
     of ornamental or crop plants or the produce thereof;
       (3)  in the case of  a defoliant,  an ingredient which  will
     cause the leaves or foliage to drop from a plant;
       (4) in the case of  a desiccant,  an ingredient which  will
     artificially accelerate the drying of plant tissue.
  q. The term "inert ingredient" means an ingredient which is not
active.
  r. The term "antidote" means a practical immediate treatment
in case of poisoning and includes first-aid treatment.
  s. The term "person" means any individual, partnership, associa-
tion, corporation or any organized group of persons whether in-
corporated or not.
  t. The term "Territory" means any Territory or possession of
the United States, excluding the Canal Zone.
  u. The term "Secretary" means the Secretary of Agriculture.
  v. The term "registrant" means the person registering any eco-
nomic poison pursuant to the provisions of this Act.
  w. The term  "label" means  the written,  printed,  or graphic
matter, on,  or attached to, the  economic  poison  or device  or the
immediate container thereof, and the outside container or wrapper
of the retail package, if any there be, of the economic poison or
device.
  x. The term  "labeling" means all  labels  and other written,
printed, or graphic matter—
       (1)  upon the economic poison  or device or any of its con-
     tainers or wrappers;
       (2)  accompanying the economic poison  or device at any
     time;
       (3)  to which reference is made on the label or in literature
     accompanying the economic poison or device, except to current
     official publications of the United States Departments of Agri-
     culture and Interior, the United States Public Health Service,
     State experiment stations, State agricultural  colleges, and
     other similar Federal or State institutions or agencies author-

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194                            LEGAL COMPILATION—PESTICIDES

    ized by law to conduct research in the field of economic poisons.
  y. The term  "adulterated" shall apply to any economic poison
if  its strength  or purity falls  below the professed standard or
quality as expressed on its labeling or under which it is sold, or if
any substance  has been substituted  wholly or in part for the
article, or if any valuable constituent of the article has been wholly
or in part abstracted.
                                                       [p. 18]
  z. The term "misbranded" shall apply—
      (1)  To any economic poison or device if its labeling bears
    any statement,  design,  or graphic representation relative
    thereto or to its ingredients which is  false or misleading  in
    any particular;
      (2)  to any economic poison—
           (a)  if it is an imitation of or is offered for sale under
         the name of another economic poison;
           (b)  if its labeling bears any reference to registration
         under this Act other  than the  registration number as-
         signed to the economic poison;
           (c)  if the labeling  accompanying it does not contain
         directions for use which are necessary and if  complied
         with adequate for the  protection of the public;
           (d) if the label does not contain a warning or caution
         statement which may be necessary and if complied with
         adequate to prevent  injury to living  man  and other
         vertebrate animals, vegetation, and useful invertebrate
         animals;
           (e)  if the label does not bear an ingredient statement
         on that part of the immediate container and on the out-
         side container or wrapper, if there be one, through which
         the ingredient statement on the immediate container can-
         not be  clearly read,  of  the  retail package  which  is
         presented or displayed under customary conditions  of
         purchase: Provided, That the Secretary may permit the
         ingredient statement  to  appear  prominently  on  some
         other part of the container, if the size or form of the
         container makes it impracticable  to place it on the part
         of the retail package which is presented or displayed
         under customary conditions of purchase;
           (f) if any word, statement, or other information re-
         quired by or under authority of this Act to appear on the
         label or labeling is not prominently placed thereon with
         such  conspicuousness  (as compared with other words,

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STATUTES AND LEGISLATIVE HISTORY                         195

         statements, designs, or graphic matter in the labeling)
         and in such terms as to render it likely to be read and
         understood by the ordinary individual under customary
         conditions of purchase and use or;
           (g) if in the case of an insecticide, nematocide, fungi-
         cide, or herbicide when used as directed or in accordance
         with commonly recognized practice it shall be injurious to
         living man or other vertebrate animals,  or vegetation,
         except weeds, to which  it is  applied, or to the person
         applying such economic poison; or
           (h)  if in the case of a plant regulator, defoliant, or des-
         iccant when used as directed 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:  Provided, That physical or physiological effects
         on plants or parts thereof shall not be deemed to be in-
         jury, when this is the purpose for which the plant regu-
         lator,  defoliant,  or desiccant was applied, in accordance
         with the label claims and recommendations.
                                                        [p.19]
                        PROHIBITED ACTS
  SEC. 3. a.  It shall be unlawful for any person to distribute, sell,
or offer for sale in any Territory or in the District of Columbia, or
to ship or deliver  for shipment from any State, Territory, or the
District of Columbia to any other State, Territory,  or the District
of Columbia, or to any foreign country,  or to receive in any State,
Territory, or the District of Columbia from any other State, Terri-
tory or the District of Columbia, or foreign country, and having so
received, deliver or offer to deliver in the original unbroken pack-
age to any other person,  and  of the following:
   (1)  Any economic poison which [has not been] is not registered
pursuant to the provisions of section 4 of this Act, or any economic
poison if any of the claims made for it or any of the directions for
its use differ in substance from the representations made in connec-
tion  with its registration, or if the composition of an economic
poison differs from its composition as  represented  in  connection
with its registration: Provided,  That in the discretion of the Sec-
retary, a change in the labeling  or formula of an economic poison
may be made within a registration period without requiring rereg-
istration of the product.
  (2)  Any economic poison unless it is in the  registrant's or the
manufacturer's unbroken immediate container, and there is affixed
to such container, and to the outside container or wrapper of the

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196                            LEGAL COMPILATION—PESTICIDES

retail package, if there be one, through which the required informa-
tion  on the immediate container cannot be clearly  read, a label
bearing—
       (a)  the name" and address of the manufacturer, registrant,
    or person for whom manufactured;
       (b)  the name, brand or trade-mark under which said article
    is sold; [and]
       (c)  the net weight or measure of the content: Provided,
    That the Secretary may permit reasonable variations [.] ; and
       (d), when required by regulation of the Secretary to effect-
    uate the purposes of this Act, the registration number assigned
    to the article under this Act.
  (3) Any economic poison which contains any substance or sub-
stances in quantities highly toxic to man, determined as provided
in section 6 of this Act (unless the label shall bear, in addition to
any other matter required by this Act—
       (a)  the skull and crossbones;
       (b)  the word "poison" prominently (IN RED) on a back-
    ground of distinctly contrasting color; and
       (c)  a statement of an antidote for the economic poison.
  (4) The economic poisons commonly known as standard lead
arsenate, basic lead arsenate, calcium  arsenate, magnesium arse-
nate, zinc narsenate, zinc arsenite, sodium fluoride, sodium fluosili-
cate,  and  barium fluosilicate unless they  have  been distinctly
colored  or  discolored as provided by  regulations issued in accord-
ance with  this Act, or any  other white powder economic poison
which the Secretary, after investigation of and after public hear-
ing on the  necessity for such action for the protection of the pub-
lic health and the feasibility  of such  coloration or  discoloration,
shall, by regulation, require to be distinctly colored  or discolored,
unless  it has been so colored or discolored: Provided,  That the
Secretary may exempt any economic poison to the extent that it is
                                                        [p. 20]
intended for a particular use or uses from the coloring or discolor-
ing required or authorized by this section if he determines that
such coloring or discoloring for  such use or uses is not necessary
for the protection of the public health.
  (5) Any economic poison which is adulterated or misbranded or
any device which is misbranded.
  b. Notwithstanding any other provision of this Act, no article
shall be deemed  in violation of this Act when intended solely for
export to any foreign country and prepared or packed according
to the specifications or directions of the foreign purchaser.

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STATUTES AND LEGISLATIVE HISTORY                        197

  c. It shall be unlawful—
       (1) for any person  to detach, alter, deface,  or destroy,  in
     whole or in part, any label or labeling provided for in this Act
     or the rules and regulations promulgated hereunder, or to add
     any substance to, or take  any substance from, an economic
     poison in a manner that may defeat the purpose of this Act;
       (2) for any manufacturer, distributor,  dealer, carrier,  or
     other person to refuse, upon a request in  writing specifying
     the nature or kind of economic poison or device to which such
     request relates, to furnish to or permit any person designated
     by the Secretary to have access to and to copy such records
     as authorized by section 5 of this Act;
       (3) for any  person to give a guaranty or undertaking pro-
     vided for in section 7 which is false in any particular, except
     that a person who receives and relies upon a guaranty author-
     ized under section 7 may give a guaranty to the same effect,
     which guaranty shall contain in addition to his own name and
     address the name and address of the person residing in the
     United States from whom he received the guaranty or under-
     taking ; and
       (4) for any person to use for his own advantage or to reveal,
     other than to the Secretary, or officials or employees of the
     United  States  Department  of Agriculture,  or  other  Federal
     agencies,  or  to the courts  in response  to  a subpoena, or  to
     physicians, and in emergencies to pharmacists and other quali-
     fied persons, for use in the preparation of antidotes, in accord-
     ance with such directions as the Secretary may  prescribe, any
     information  relative to formulas  of  products acquired  by
     authority of section 4 of this Act.
                        REGISTRATION
  SEC. 4.  a. Every  economic poison which is distributed,  sold,  or
offered for sale in any Territory or the District of  Columbia,  or
which is shipped or delivered for shipment from any State, Terri-
tory, or the District of Columbia to  any other State, Territory,  or
the District of Columbia, or which is  received from any foreign
country shall  be  registered with the Secretary: Provided, That
products which have the same formula, are manufactured by the
same person, the labeling of which contains the same claims, and
the labels of which bear a designation identifying the  product
as the same economic poison may be registered  as  a single eco-
nomic poison; and additional names and labels shall be added by
supplement statements; the [registrant] applicant for registration
shall file with the Secretary a statement including—

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198                            LEGAL COMPILATION—PESTICIDES

      (1)  the name and address of the  [registrant] applicant for
    registration and the name and address of the person whose
                                                       [P.21]
    name will appear on the label, if other than the [registrant]
    applicant for registration;
      (2)  the name of the economic poison;
      (3)  a complete  copy of the  labeling accompanying  the
    economic poison and a statement of all claims to be made for
    it, including the directions for use; and
      (4)  if requested by the Secretary, a full description of the
    tests made and the results thereof upon which the claims are
    based.
  b. The Secretary, whenever he deems it necessary for the effec-
tive administration of this Act, may require the submission of the
complete formula  of the economic poison.  If it  appears to  the
Secretary that the  composition of the  article is such as to warrant
the proposed claims for it and  if the article and its labeling  and
other material required to be submitted comply with the  require-
ments of section 3 of this Act, he shall register it.
  c. If it does not  appear to the Secretary that the article is such
as to  warrant the  proposed claims for it or if the article and its
labeling and other material required to be submitted do not comply
with the provisions of this Act, he shall notify the [registrant]
applicant for registration of the manner in which the article, label-
ing, or other material required to be submitted fail to comply with
the Act so as to afford the [registrant]  applicant for registration
an opportunity to make the corrections necessary. [If, upon receipt
of such  notice, the registrant insists that such corrections are not
necessary and requests  in writing that it be registered, the Secre-
tary shall register  the article, under protest, and such registration
shall be accompanied by a warning, in writing, to the registrant of
the apparent failure of the article to comply with the provisions of
this Act. In order  to protect the public,  the Secretary, on  his own
motion, may at any time, cancel the  registration  of an economic
poison and  in lieu thereof issue a registration under protest in
accordance with the foregoing procedure. In no event shall registra-
tion of  an article, whether  or not protested, be  construed as a
defense for the commission of any offense prohibited under section
3 of this Act.] //, upon receipt of such notice, the applicant  for
registration does  not  make  the corrections,  the  Secretary shall
refuse to register the article. The Secretary, in accordance  with the
procedures specified herein,  may suspend or cancel the registra-
tion of  an economic poison whenever it does not appear  that  the

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STATUTES AND LEGISLATIVE HISTORY                         199

article or its labeling or other material required to be submitted
complies with the provisions of this Act. Whenever the Secretary
refuses registration of  an economic  poison or determines  that
registration of an economic poison should be canceled,  he shall
notify the applicant for registration or the registrant of his action
and the reasons therefor. Whenever an application for registration
is refused, the applicant, within thirty days after service of notice
of such refusal, may file a petition requesting that the matter be
referred to an advisory committee or file objections and request a
public hearing in accordance ivith this section. A  cancellation of
registration shall be effective thirty days after service of the fore-
going notice unless ivithin such  time the registrant (1) makes the
necessary corrections; (2) files a petition requesting that  the mat-
ter be referred to an advisory committee; or  (3) files  objections
and requests a public hearing. The Secretary, on his own motion,
may at any time refer such a matter to an advisory committee.
Each advisory committee shall  be composed of experts,  qualified
in the subject matter and of adequately diversified professional
                                                        [p. 22]
background selected by the National Academy of Sciences and shall
include one or more representatives from land-grant colleges. The
size of the committee shall be determined by the Secretary. Mem-
bers of an advisory committee shall receive as compensation for
their services a reasonable per diem, which the Secretary shall by
rules and  regulations prescribe, for time actually spent in the
work of the committee,  and shall in addition be reimbursed for
their necessary traveling and subsistence expenses while so serving
away from their places  of residence,  all of which costs may be
assessed against the petitioner, unless  the matter was referred to
the advisory ccmmittee upon the motion of the Secretary without
a petition.  The members shall not be subject to any other  provi-
sions of law  regarding the appointment and compensation of
employees  of the United States. The Secretary shall furnish the
committee with adequate clerical and other assistance, and shall by
rules and regulations prescribe  the procedures to be followed by
the committee. The Secretary shall forthwith submit to such com-
mittee the application for registration of the article and all  relevant
data before him.  The petitioner, as well as representatives  of the
United States Department of Agriculture, shall have the  right to
consult with the advisory committee. As soon as practicable after
any such submission,  but not  later than sixty days thereafter,
unless extended by the Secretary for an additional sixty days, the
committee shall, after independent study of the data submitted by

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200                            LEGAL COMPILATION—PESTICIDES

the Secretary and all other pertinent information available to it,
submit a report and  recommendation to  the Secretary as to the
registration of the article, together with  all underlying data  and
a statement of the reasons or basis for the recommendations. After
due consideration of the views of the committee and all other data
before him, the Secretary  shall, within ninety days after receipt
of the report and recommendations  of  the advisory committee,
make his determination and issue an order, with findings of fact,
with respect to registration of the article  and notify the applicant
for registration or registrant.  The applicant for registration, or
registrant, may, within sixty days from the date of  the order of
the Secretary, file objections thereto and request a  public hearing
thereon. In the event a hearing is requested, the Secretary shall,
after due notice, hold such public hearing for the purpose of receiv-
ing evidence relevant and material to the issues raised  by such
objections. Any report,  recommendations,  underlying data,  and
reasons certified to the Secretary by an advisory committee shall
be made a  part of the record of the hearing, if relevant and  ma-
terial, subject to the provisions of section 7(c) of the Administra-
tive Procedure Act (5 U.S.C. 1006(c)). The National Academy of
Sciences shall designate  a  member of the advisory committee to
appear and testify at any such  hearing with respect to the report
and  recommendations of  such committee  upon request of  the
Secretary,  the petitioner, or the officer  conducting the hearing:
Provided, That this shall not preclude any other member of the
advisory committee from appearing and testifying at such hearing.
As soon as practicable after completion of the hearing, the Secre-
tary shall evaluate the data and reports before him, act upon such
objections and issue an order granting, denying, or canceling the
registration. Such order shall be based only on substantial evidence
of record at such  hearing, including any report, recommendations,
underlying data,  and reason  certified to  the  Secretary by  an
advisory committee, and shall  set forth  detailed findings of fact
upon which the order is based. In connection with consideration
                                                       [P.23]
of any  registration  or  application for   registration under  this
section, the Secretary may  consult with any other Federal agency.
Notwithstanding  the provisions of section 3(4), information rela-
tive to formulas of products acquired by authority  of this section
may be revealed, when necessary under this section, to an advisory
committee, or to any Federal  agency consulted, or at a public
hearing, or in findings of fact  issued by  the Secretary. Notwith-
standing any other provision of this  section, the Secretary may,

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STATUTES AND LEGISLATIVE HISTORY                         201

when he finds that such action is necessary to prevent  an immi-
nent hazard to the public, by order, suspend the registration of an
economic poison immediately. In suck case, he shall give  the regis-
trant prompt notice of such action and afford the registrant the
opportunity to have the matter submitted to an advisory committee
and for an expedited hearing under this section. Final  orders of
the Secretary under this section shall be subject to judicial review,
in accordance with the provisions of subsection d. In no event shall
registration of an article be construed as a defense for the commis-
sion of any offense prohibited under section 3 of this Act.
   d. In a case of actual controversy as to  the validity of any order
under this section,  any person who will  be adversely  affected by
such order may obtain judicial review by filing in the United States
court of appeals for the circuit  wherein such person resides or has
his principal place  of business, or in the United States  Court of
Appeals  for  the  District of Columbia Circuit, within sixty days
after  the entry of such order, a petition praying that the order be
set aside in whole or in part. A copy of the petition shall be forth-
with transmitted by the clerk of the court to  the Secretary, or any
officer designated by him  for  that  purpose, and  thereupon the
Secretary shall file  in the court the record of the proceedings on
which he based his order, as provided in section 2112 of title 28,
United States Code. Upon the filing of such petition, the court shall
have exclusive jurisdiction to affirm  or set aside  the  order com-
plained of in whole or in part. The findings  of the Secretary ivith
respect  to questions  of fact shall be sustained if supported  by
substantial evidence ivhen considered on the record as  a whole,
including any report and recommendation of an advisory commit-
tee. If application is made to the court for  leave to adduce addi-
tional evidence, the  court may order such additional evidence to be
taken before  the Secretary, and to be adduced upon the hearing in
such manner and upon  such terms and  conditions as to  the court
may seem proper, if such evidence is material and there were
reasonable grounds  for failure to adduce such evidence in the pro-
ceedings  below. The Secretary may modify  his findings  as to the
facts and order by reason of the additional evidence so taken, and
shall  file  with the  court such  modified findings and  order. The
judgment of  the  court affirming or setting  aside,  in whole or in
part, any order under this section shall be final,  subject to review
by  the Supreme  Court of  the  United States upon certiorari or
certification as provided in section 1254 of title 18 of  the United
States Code. The  commencement of proceedings under this section
shall not, unless specifically  ordered by  the court to the  contrary,

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202                            LEGAL COMPILATION—PESTICIDES

operate as a stay of an order. The  court shall advance  on the
docket and expedite the disposition of all cases filed therein pur-
suant to this section.
  [d.] e. Notwithstanding any other provision of this Act, regis-
tration is not required in the case of an economic poison shipped
from one plant to another plant operated by the same  person and
used solely at such plant as a  constituent part to make an economic
poison which is registered under this Act.
                                                        [P. 24]
  [e.] /. The Secretary is authorized to  cancel the registration of
any economic poison at the end of a period of  five years following
the registration  of such economic poison or at the end  of any
five-year  period  thereafter,  unless the  registrant,  prior to the
expiration of each such  five-year period, requests in  accordance
with regulations  issued by the  Secretary that such registration be
continued in effect.
                      BOOKS AND RECORDS
  SEC. 5. For the purposes of enforcing the provisions of this Act,
any manufacturer, distributor,  carrier, dealer, or any other person
who sells or offers for sale, delivers or offers for delivery, or who
receives  or holds any economic poison or device subject to this
Act,  shall, upon  request  of  any employee  of the United  States
Department of Agriculture or  any employee of any State, Terri-
tory, or  political subdivision,  duly designated by the Secretary,
furnish  or permit such  person at all reasonable times to have
access to, and to  copy all records showing the  delivery, movement,
or holding of such  economic  poison or device,  including the quan-
tity,  the date of  shipment  and  receipt,  and  the  name of the
consignor and consignee; and  in the event of  the inability of any
person to produce  records containing such information, all other
records and  information relating  to such delivery, movement, or
holding  of the economic  poison or device.  Notwithstanding this
provision, however, the specific evidence obtained under this sec-
tion shall not be used in a criminal prosecution of the person from
whom obtained.
                         ENFORCEMENT
  SEC. 6. a. The Secretary  (except as otherwise provided  in this
section)  is authorized to make rules and regulations for carrying
out the provisions  of this Act,  including the collection and exami-
nation of samples of economic poisons and devices subject to this
Act and  the determination and establishment  of suitable names to
be used  in the ingredient statement. The Secretary is  in addition,
authorized after  opportunity for hearing—

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STATUTES AND LEGISLATIVE HISTORY                         203

       (1) to declare a pest any form of plant or animal life or
     virus which is  injurious to plants, man, domestic animals,
     articles, or substances;
       (2) to  determine economic poisons, and quantities  of
     substances  contained in economic poisons,  which are highly
     toxic to man; and
       (3) to determine standards of coloring or discoloring for
     economic poisons,  and to subject economic  poisons  to  the
     requirements of section 3a (4) of this Act.
  b. The Secretary  of the Treasury and the Secretary of Agri-
culture shall jointly  prescribe the regulations for the enforcement
of section 10 of this Act.
  c. The examination of economic poisons or devices shall  be
made in the United States Department of Agriculture or elsewhere
as the Secretary may designate for the purpose  of determining
from such examination whether they comply with the requirements
of this Act, and  if it shall appear from any such examination that
they fail to comply with the  requirements  of this  Act, the Secre-
tary shall cause notice to be given to the person against whom
criminal proceedings are contemplated. Any person so notified shall
                                                        [p. 25]
be given an opportunity to present his views, either orally or in
writing,  with regard to such contemplated proceedings, and if in
the opinion of the Secretary it appears that the provisions  of this
Act have been violated by such person,  then the  Secretary shall
certify the facts to the proper United State attorney, with  a copy
of the results of the analysis or the examination of such article:
Provided, That nothing in this Act shall be construed as requiring
the Secretary to report for prosecution  or for the institution  of
libel proceedings minor violations of this Act whenever he believes
that the  public  interest will  be adequately served by a suitable
written notice of warning.
  d. It shall be the duty of each United States attorney, to whom
the  Secretary or his  agents shall report any violation of this Act,
to cause appropriate proceedings to be commenced  and prosecuted
in the proper courts of the United States without delay.
  e.  The Secretary shall, by publication in such manner as he may
prescribe, give notice of all judgments entered in actions instituted
under the authority of this Act.
                         EXEMPTIONS
  SEC. 7. a. The penalties provided for  a  violation of section  3a
of this Act shall not apply to—
       (1)  any person who establishes a guaranty signed by, and

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204                            LEGAL COMPILATION—PESTICIDES

    containing the name and address of, the registrant or person
    residing in the United States from whom he purchased  and
    received in good faith the article in the same unbroken pack-
    age, to the effect that the article was lawfully registered at the
    time of sale and delivery to him, and that it complies with the
    other requirements of this Act, designating this Act. In such
    case the guarantor shall  be subject to the penalties  which
    would otherwise attach to the person holding  the guaranty
    under the provision of this Act;
       (2)  any carrier while lawfully engaged in transporting an
    economic poison or device if such  carrier upon request by a
    person  duly  designated by the  Secretary shall permit such
    person  to  copy all  records showing the transactions  in  and
    movement of the articles;
       (3)  to public officials while engaged in the performance of
    their official duties;
       (4)  to the manufacturer or shipper of an economic poison
    for experimental use only by or  under the supervision of  any
    Federal or State agency authorized by law to conduct research
    in the field of economic poisons; or by  others if a permit has
    been obtained before shipment in accordance with regulations
    promulgated  by the Secretary.
                          PENALTIES
  SEC. 8. a. Any person violating section 3a(l)  of this Act shall
be guilty of a misdemeanor and shall on conviction be fined  not
more than $1,000.
  b.  Any person violating any provision other than section 3a(l)
of this Act shall be guilty of a misdemeanor and shall upon  convic-
tion be fined not more than $500 for the first offense, and on con-
viction for each subsequent offense be fined not more than $1,000
or imprisoned for not more than one year, or both  such fine  and
                                                       [p. 26]
imprisonment: Provided, That an offense  committed more than
five years after the last previous conviction shall be considered a
first offense [: And provided  further, That in any  case where a
registrant was issued a warning by the Secretary pursuant to the
provisions of section 4c of this Act, he shall in each instance upon
conviction for an offense concerning which he had been so warned
be fined not more than $1,000 or imprisonment for not more than
one year, or both such fine and imprisonment; and the registration
of the article with reference to which the violation occurred shall
terminate automatically]. An article  the registration of which has
been terminated may not again be registered unless the article, its

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STATUTES AND LEGISLATIVE HISTORY                         205

labeling, and other material required to be submitted appear to the
Secretary to comply with all the requirements of this Act.
   c. Notwithstanding any other provision of this section, in  case
any person,  with  intent to defraud,  uses  or reveals information
relative to formulas of products acquired  under the authority of
section 4 of  this Act, he shall be fined not more than $10,000 or
imprisoned for not more than three years, or both  such  fine and
imprisonment.
   d. When construing and enforcing the provisions of this Act, the
act, omission, or  failure, of  any  officer, agent, or  other person
acting for or employed by any person shall  in every case be  also
deemed to be the act, omission, or failure of such person as well as
that of the person employed.
                           SEIZURES
   SEC. 9  a.  Any economic poison or  device that is being trans-
ported from one State, Territory, or District to another, or, having
been transported,  remains unsold or in original  unbroken pack-
ages, or that is sold or offered for sale in the District of Columbia
or any Territory, or that is imported from a foreign  country, shall
be liable to be proceeded against in any district court of the United
States in the district where it is found and seized for confiscation
by a process of libel for condemnation—
       (1) in the case of an economic poison—
           (a)  if it is adulterated or misbranded;
           (b)  if it [has not been] is not registered pursuant to
         the  provisions of section 4 of this Act ;
           (c)   if  it fails  to  bear on  its  label the information
         required by this Act;  or
           (d)  if it is a white powder, economic poison, and is not
         colored as required under this Act; or
       (2) in the case of a device if it is misbranded.
   b. If the article  is condemned it  shall, after entry  of the decree,
be disposed of by destruction  or sale as the court may direct  and
the proceeds, if sold, less the legal costs,  shall be  paid into the
Treasury of  the United  States, but the article  shall not be  sold
contrary to the provisions of this Act or of the laws of the jurisdic-
tion in which it is sold:  Provided, That upon the payment of the
costs of the libel proceedings and the execution  and  delivery of a
good and  sufficient bond conditioned that the article shall not be
sold or otherwise disposed of contrary to the provisions of this Act
or the laws of any State, Territory, or District in which sold, the
court may direct that such articles be delivered to the owner there-
of. The proceedings of such libel cases shall conform,  as  near as

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206                            LEGAL COMPILATION—PESTICIDES

may be, to the proceedings in admiralty, except that either party
may demand trial by jury of any issue of fact joined in any case,
                                                       [p- 27]
and all such proceedings shall be at the suit of and in the name of
the United States.
  c.  When a decree of condemnation is entered against the article,
court costs and fees, storage, and other proper expenses shall be
awarded against the person, if any,  intervening as claimant of
the article.
                           IMPORTS
  SEC. 10. The Secretary of the Treasury shall notify the Secre-
tary of Agriculture of the arrival of economic poisons and devices
offered for importation and shall deliver to the Secretary of Agri-
culture, upon his request, samples of  economic poisons or devices
which are being imported or offered  for import  into the United
States, giving notice to the owner or  consignee, who may appear
before the Secretary of Agriculture and have the right to intro-
duce testimony.  If it appears from the examination of a sample
that it  is adulterated, or  misbranded or otherwise violates the
prohibitions set forth in this Act, or is otherwise dangerous to the
health of the people of the United States, or is of a kind forbidden
entry into or forbidden to be sold  or restricted in sale  in the
country in which it is made or from which it is exported, the said
article may  be refused admission, and the Secretary of the Treas-
ury  shall refuse delivery  to the consignee  and  shall  cause the
destruction  of any goods refused  delivery  which  shall not be
exported by the consignee within three months from the date of
notice of such refusal under such regulations as the Secretary of
the Treasury may prescribe: Provided, That the Secretary of the
Treasury may deliver to the consignee  such goods pending examina-
tion and decision in the matter on execution of penal bond for the
amount of the full invoice value of such goods, together with the
duty thereon, and on refusal to return such goods for any cause to
the custody of the Secretary of the Treasury, when demanded, for
the purpose of excluding them from the country, or for any other
purpose, said consignee shall forfeit the full amount of said bond:
And provided further, That all charges for storage, cartage, and
labor on goods which are refused admission of delivery shall be
paid by the owner or consignee, and in default of  such payment
shall constitute a lien against any future importation made by
such owner  or consignee.
                     DELEGATION OF DUTIES
   SEC.  11.  All authority vested in the Secretary by virtue of the

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STATUTES AND LEGISLATIVE HISTORY                         207

provisions of this Act may with like force and effect be executed by
such employees of the United States Department of Agriculture as
the Secretary may designate for the purpose.
     AUTHORIZATION FOR APPROPRIATIONS AND EXPENDITURES
  SEC.  12. a. There is hereby authorized to be appropriated, out
of any moneys in the  Treasury  not otherwise appropriated, such
sums as may be necessary for the purposes and administration of
this Act. In order to carry  out the provisions  of this Act,  which
take effect prior to the repeal of the Insecticide Act of 1910, appro-
priations available for the enforcement of such Act are authorized
to be made available.
                                                        [p. 28]
  b. The Secretary is authorized from the funds appropriated for
this Act to make such expenditures as he deems necessary, includ-
ing rents, travel, supplies, books, samples, testing devices,  furni-
ture,  equipment, and such other expenses as may be necessary to
the administration of this  Act.
                         COOPERATION
  SEC.  13. The  Secretary is authorized to cooperate with any other
department or agency of the Federal Government  and  with the
official agricultural or other  regulatory agency of any State, or any
State, Territory, District, possession, or any political subdivision
thereof, in carrying out the provisions of this Act, and in securing
uniformity of regulations.
                         SEPARABILITY
  SEC.  14. If any provision of this Act is declared unconstitution-
al, or the applicability thereof to any person or circumstances is
held invalid, the constitutionality of the remainder of this Act and
the applicability thereof to other persons and circumstances shall
not be affected thereby.
                        EFFECTIVE DATE
  SEC. 15. All provisions of this Act, except section 3, "Prohibited
Acts"; section 8, "Penalties"; section 9, "Seizures"; and section 10,
"Imports", shall take effect  upon enactment, and sections 3, 8, 9,
and 10 of this Act shall take effect as follows:  (1) As to devices,
upon enactment; (2) as to rodenticides and herbicides, six months
after  enactment; and  (3) as to  insecticides, fungicides, and all
other economic poisons, one year after enactment; Provided, That
the Secretary, upon application, may at any time within one year
after sections 3, 8,9, and 10 of this Act become applicable to devices,
rodenticides and herbicides, and insecticides, fungicides, and other
economic poisons, respectively, if he determines that such action

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208                            LEGAL COMPILATION—PESTICIDES

will  not be unduly detrimental to the public interest,  and  is
necessary to  avoid  hardships,  exempt, under such terms  and
conditions as  he may  prescribe, any economic poison  from the
provisions of this Act if such economic poison was labeled, shipped,
and delivered  by the manufacturer thereof prior to the time the
sections of this Act referred to above become  applicable to such
economic poison and in case the economic poison is an insecticide
or fungicide if its sale,  delivery, or shipment has not been and will
not be in violation of the provisions of the Insecticide Act of 1910.
  SEC. 16.  The Insecticide Act of 1910, approved  April 26, 1910
(36 Stat. 331, 7 U.S.C. 121-134), is hereby repealed one year after
the date of the enactment of this Act: Provided,  That, with respect
to violations, liabilities incurred, or appeals  taken prior  to said
date, and with respect to sales, shipments, or deliveries of  insecti-
cides and fungicides under an exemption granted by the Secretary
under section 15, all provisions of the Insecticide Act of 1910 shall
be deemed to remain in full force for the purpose of sustaining any
proper suit, action,  or  other proceeding with respect to any such
violations, liabilities, appeals, or to such sales, shipments, or deliv-
eries of insecticides and fungicides exempted  by the Secretary
under section 15.
                                                       [p. 29]

     l.lg  (2)   HOUSE COMMITTEE ON AGRICULTURE
            H.R. REP. No. 1125, 88th Cong., 2d Sess.  (1964)

       REGISTRATION OF PESTICIDE CHEMICALS
FEBRUARY 3, 1964.—Committed to the Committee of the Whole House on the
              State of the Union and ordered to be printed
  Mr. COOLEY, from the Committee on Agriculture, submitted the
                          following
                         REPORT
                    [To accompany H.E. 9739]
  The Committee on Agriculture, to whom was referred the bill
(H.R.  9739)  to amend the Federal Insecticide, Fungicide,  and
Rodenticide Act, as amended, to provide for labeling of economic
poisons with registration numbers, to eliminate registration under
protest,  and  for other purposes, having  considered  the  same,
reports favorably thereon  without  amendment  and recommends
that the bill do pass.

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STATUTES AND LEGISLATIVE HISTORY                         209

                          STATEMENT
  The purpose of this bill is to end the practice of protest registra-
tion whereby the manufacturer of a pesticide can market a product
despite Department of Agriculture doubts as to its effectiveness or
safety. It also provides a complete  appeal system whereby the
applicant for registration can appeal the decision of the Depart-
ment of  Agriculture. This  legislation  was  first  introduced as
H.R. 6828.
                   NEED FOE THE LEGISLATION
  The Federal Insecticide,  Fungicide, and Rodenticide Act pro-
hibits interstate commerce in "economic poisons," such as insecti-
cides, herbicides,  and plant regulators, unless  they have  been
registered with the Secretary of Agriculture, are  properly labeled,
not adulterated  or misbranded, and  meet various other  require-
ments designed  to protect the public and assure it of safe  and
effective products. The act is enforced through criminal penalties
under section 8 and seizures under section 9.
  The Secretary is required, upon  application, to  register any eco-
nomic poison if the poison, its labeling, and other material required
to be submitted comply with the requirements of  the act.
                                                         [p.1]
  At present, however, the Secretary is  also required to register;
under protest poisons which do not comply with the requirements
of the act if, after he has advised the registrant that the poison
does not meet the act's requirements, the registrant  insists on
registration. In  such case the registrant is  protected from the
effects of failure to register, but not from penalties and seizure if
the product is actually misbranded or otherwise out of compliance
with the  act. The maximum  fine is $500 higher in some cases
where the article has been registered under protest. The principal
effect of registration under protest is to  shift the burden of proof
from the registrant  to  the Government.  If  the product is not
registered, the penalty or seizure provisions can be applied on that
ground. If it is registered under protest, the Government has the
burden of proving  that the product does not comply with the act.
  Thus, at present, the  Secretary can be required  to register  a
product even  though he is convinced that it is ineffective  and
dangerous to human life. He can proceed against it in such case
only after it has moved  in interstate commerce,  and he then has
the burden  of proving that it violates  the law.  The bill would
correct this situation and afford greater protection  to the public
by repealing the authority for registration under protest. In its
place the bill provides that applicants dissatisfied with the Secre-

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210                           LEGAL COMPILATION—PESTICIDES

tary's  action  in  refusing  or canceling registration may  have
recourse to advisory committee proceedings, public hearings, and
eventually judicial review. Thus the bill affords adequate protec-
tion  to the public, and protects applicants for  registration  from
arbitrary or ill-advised action by the Department.
  Section 2z(2) (b) of the act, at present, provides  that any eco-
nomic poison shall be  misbranded,  if its labeling bears any refer-
ence to registration under  the  act. The  bill would  permit the
registration number to be shown and authorize the Secretary to
require that it be shown. This would enable the user of the product
to determine that it had been registered under the act and that the
Department had made the necessary investigation and determined
that it was truthfully labeled and complied with the requirements
of the  act.  Use of the registration number should not create any
inference that the product  was recommended or otherwise spon-
sored by the Government.
                          HEARINGS
  Hearings were held on H.R. 6828, H.R. 6913,  and H.R. 7336, all
similar bills, on August 21 and 22, 1963, before the Departmental
Oversight and Consumer Relations Subcommittee of the House
Committee on Agriculture. Representatives of the chemical indus-
try, farm organizations, and the legislative and executive branches
of the Government appeared in behalf of the legislation.
  Amendments to the legislation were recommended by the De-
partment of Agriculture, the Department of Health, Education,
and Welfare, and the Fish and Wildlife Service of the Department
of Interior. These  suggested amendments, along with proposals
made by others, were considered by the subcommittee in execu-
tive session.
  The full Committee on Agriculture  in  Executive  Session con-
sidered the action  of the subcommittee in  connection with this
legislation and also considered S. 1605, the Senate passed bill which
had been referred to it. After a study of the recommended changes
to S. 1605, the full committee recommended the introduction of a
clean bill,  H.R.  9739, containing substantially the  provisions of
S. 1605 together with the  changes recommended by the House
                                                        [p. 2]
committee.  H.R. 9739 was  considered  by the  full  committee in
executive session on January 28, 1964, and voted to  be reported
to the House.
  The differences in the Senate passed bill, S. 1605, and the House
bill, H.R. 9739, are shown as follows:
   (1)  In order to shorten the time for appeal required in connec-

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STATUTES AND LEGISLATIVE HISTORY                         211

tion with denial of registration of a poison the Secretary has been
denied the right on his own motion to submit the matter  to an
advisory  committee. This  was done by removing  the  sentence:
"The Secretary, on his own motion, may at any time refer such a
matter to an advisory committee." from page 3, line 11 of S.  1605.
On page 6, line 7, the following language was added:  "or with an
advisory committee appointed as  herein provided." This gives the
Secretary the right to consult with an  advisory committee during
his initial consideration of an application for registration of a
commercial poison, but not  to refer the matter to an advisory
committee after a final determination.
   (2)  On page 3, line 24, the following language has been added:
"unless the committee shall recommend in favor of the petitioner
or". This provision assesses  cost against the Government if the
advisory board rules in favor of the  petitioner and  against the
decision made by the Secretary in connection with an application
for registration of a poison. A technical change was made by  strik-
ing language from lines 1 and 2 of page 4 of the Senate bill.
   (3)  On page 5, line 20, the following language has been added:
"but not  later than ninety days,".  This language was added in
order to set a definite time limitation upon the Secretary's reaching
a final determination in connection with a hearing on an appeal of
his order denying registration of  a commercial poison.
   (4)  On page 5, line 23, the following language has been added:
"or requiring modification of the claims or the labeling".  This
change was suggested by members of the committee to clarify the
meaning of this provision.
   (5)  On page 6, line 14, the following sentence was inserted:
      All data submitted to the Secretary or to an advisory com-
    mittee in support of a petition under  this section shall be
    considered confidential by the Secretary and by such advisory
    committee.
  This language was added in order to further protect secret infor-
mation  concerning  formulas and packaging methods from dis-
closure  to unauthorized  sources by  the Advisory  Committee
appointed by the Secretary in connection with carrying out the
provisions of this bill.

               SECTION-BY-SECTION EXPLANATION
  The first section of the bill permits the labeling of an economic
poison to carry its registration number under the act. At present
section 2z(2) (b) of the act  provides that an economic poison is
misbranded if its label bears any reference to registration under
the act. The first section of the bill amends section 2z(2) (b) to

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212                            LEGAL COMPILATION—PESTICIDES

permit the registration number to be shown.
  Section 2 provides that the label on an economic poison must
show its registration number when required by regulation of the
Secretary of Agriculture.
                                                        [p. 3]
  Section 3 repeals the existing provision which permits registra-
tion of an economic poison under protest and provides instead for
various appeals from the Secretary's original  determination that
registration should be refused or canceled. The new procedure  is
modeled after that contained in section 408 of the Federal Food,
Drug, and  Cosmetic Act for the determination of tolerances of
pesticide chemicals on raw  agricultural commodities. Under the
new  procedure whenever the Secretary refused registration or
determined that registration should be canceled the applicant or
registrant would be notified of that action and the reasons there-
for. The applicant  would then have 30 days to request reference to
an advisory committee  or to file objections and request a public
hearing. Each advisory committee would  consist of qualified ex-
perts selected by the National Academy of Sciences. The size of
the committee would be  determined by the  Secretary and members
would  receive a  reasonable per diem for their services, plus
traveling and subsistence  expenses,  such  costs being assessed
against the party requesting reference  to the advisory committee.
The  committee would submit recommendations  to the Secretary
within 60 days after reference, and the Secretary within 90 days
thereafter would notify  the applicant or registrant of his determi-
nation.  The applicant would then have 60 days  to file objections
and request a public hearing. Following the hearing the Secretary
would issue his order granting, denying, or canceling registration,
issuing such determination  within 90  days of the hearing. The
Secretary was given permission to select an advisory committee to
consult with during the period of his initial determination of
whether an  economic poison should be  granted  a  registration
number or not.
  In order to protect the formulas and packaging methods of the
various applicants who apply for registration of a poison which
they wish  to market, language has been  incorporated  that will
compel members of the advisory committee who advised the Sec-
retary to keep all information  divulged to them secret. There  is
language in the present  act that forces  such secrecy on all persons
who come  in contact with such  information and it  was only fair
that these provisions should clearly be applicable to members of
the advisory committee.
  If necessary to  prevent an imminent hazard to the public, the

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STATUTES AND LEGISLATIVE HISTORY                          213

Secretary could suspend registration of an economic poison im-
mediately and afford the registrant the opportunity for reference
to an advisory committee and an expedited hearing following such
suspension.
   Section 4 adds a new section d to section 4 of the act to provide
for judicial review of the Secretary's orders by petition to an ap-
propriate U.S. court of appeals within  60 days after entry of the
order. The court would then have  exclusive jurisdiction to affirm
or set aside the order. The Secretary's findings of  fact would be
sustained if supported by substantial evidence  when considered on
the record as a whole.
   Section 5 strikes out the provision of section 8 for higher maxi-
mum fines and automatic termination of registration in the case of
offenses of  which  the registrant has been warned at  the  time of
registration under protest. In view of repeal by  section 3 of  the pro-
vision for registration under protest, the provision repealed by this
section would no longer have any meaning.
   Section 6 makes clarifying changes in sections 3a(l)  and section
9a(l) (b) of the act, making it clear that those  sections apply to an
                                                          [p. 4]
economic poison which is not registered, without regard to whether
it may at some time have been registered.  Section 6 substitutes
"is not registered" for "has not been registered" in each  section.
Section 3a(l),  as thus amended, prohibits interstate commerce in
any economic  poison which  "is not  registered,"  while  section
9a(l) (b), as thus amended, provides for seizure of any economic
poison which "is not registered."
   Section 7 provides that the bill will  become effective on enact-
ment,  and makes it clear that all existing registrations under
protest will then terminate.
                    DEPARTMENTAL REPORTS
  The Department of Agriculture and the Department of Health,
Education,  and Welfare  submitted  reports  on  H.R. 6828 and
related bills. These reports are applicable to  H.R.  9739 and are
submitted as follows:
                                  DEPARTMENT  OF AGRICULTURE,
                                               Washington, D.C.
Hon. HAROLD D. COOLEY,
Chairman, Committee on Agriculture,
House of Representatives.
  DEAR MR. CHAIRMAN: We wish to thank you for your letter of  June 19,
1963, giving us the opportunity to report on H.R. 6828, entitled "A bill to
amend the Federal Insecticide, Fungicide, and Rodenticide Act, as amended, to

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214                                 LEGAL COMPILATION—PESTICIDES

provide for  labeling  of economic  poisons with  registration numbers,  to
eliminate registration under protest, and for other purposes."
  The bill  would permit the labels of economic poisons registered under the
act to bear the registration numbers and would  authorize  the Secretary  of
Agriculture to require by regulation that registration numbers appear on such
labels. It would delete  the  provisions now in the  act for registration  of
economic poisons  under protest and  would prescribe the procedures  to  be
followed in refusing or canceling registrations, or requiring modification  of
claims or labeling  of registered economic poisons. Provision would be made for
referral of the question of the eligibility of an economic poison for registration
to an advisory committee; for public hearing, if requested, with respect to the
Secretary's order issued  after consideration of the committee and other  data;
and for judicial review of the order issued by the Secretary after such hearing.
  In fulfilling its responsibilities under the  act, this Department is hampered
by  a provision  in  the act which gives the applicant the right to demand and
receive registration under protest when regular registration is denied,  even
though the denial  is based upon a hazard to the public involved in its use. The
net effect of a registration under protest is to shift the burden of proof from
the applicant to the Department. Thus a chemical formulation not acceptable
to the Department for registration might be marketed for an extended period
on  a "registration under protest" basis before proof  of its harmfulness could
be developed. The intent of H.R. 6828  is to eliminate registration under protest
and to give this Department authority to deny or cancel  any registration  or
require modification of claims  or labeling in any case, after opportunity for
referral of the matter to an advisory committee and a public hearing, but with
authority for immediate suspension of any registration when the Secretary of
Agriculture finds that such action is necessary to prevent an imminent hazard
to the public or  any portion thereof.
                                                                    [p.  5]
  This Department recommends enactment of the bill if the following changes
are made.
  In section 3 of the bill, page 3, line 7, after "Secretary.", insert the following
new sentence: "The Secretary on his own motion, may at any time refer such
a matter to an  advisory committee." It is believed that this  authority in the
Secretary is desirable.
  In  section 3  of the bill, page 3, line 19, preceding the period, insert the
following: ", all of which costs may be assessed against the petitioner, unless
the matter was referred to the advisory committee upon the motion  of the
Secretary without a petition". This change would clarify the responsibility for
payment of costs incurred in connection with an advisory committee.
  The bill provides that all data submitted to the Secretary or an advisory
committee  shall be considered confidential until final action is taken concerning
registration of  the product.  However, the bill also provides for such data to
be  included in the record at the  public hearing provided for in  the bill.  To
eliminate this apparent  inconsistency, it is suggested that in section 3 of the
bill, page 5, lines 20-21, the phrase "final action is taken concerning registra-
tion of the product." be deleted and the following be substituted therefor: "the
Secretary  issues his  order  concerning registration of the product  following
consideration of the views of the committee and other data before him." In the
next  sentence,  on line  21,  the  word  "final" preceding  "action"  should  be
deleted and "by the Secretary" should be inserted after "action". It is contem-

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STATUTES AND LEGISLATIVE HISTORY                              215

plated that under this language the Secretary would be authorized to  make
such data available to other executive agencies that have an official interest.
   Since  the  provisions of the  act  for registration  under protest would be
deleted by the  bill, it would  appear that the existing  registrations under
protest would automatically terminate when the amendments made by the bill
become effective. However, to avoid  any possible question in this respect, it is
proposed that in section 7 of the bill, page 8, line 16, the following be inserted
preceding the periods: ", and  all existing registrations under protest issued
under said Federal Insecticide, Fungicide, and Rodenticide Act shall thereupon
terminate".
   The Bureau of the Budget advises that there is no objection to the submis-
sion of this report from the standpoint of the administration's program.
       Sincerely yours,
                   DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
                                       Washington, D.C., August 21, 1963.

Hon. HAROLD D. COOLEY,
Chairman, Committee on Agriculture,
House of Representatives, Washington, D.C.
  DEAR MR. CHAIRMAN : This letter is in response to your request of June 19,
1963, for a report on H.R. 6828, a bill to amend the Federal Insecticide, Fungi-
cide, and  Rodenticide  Act,  as amended, to provide for labeling of economic
poisons with registration numbers, to eliminate registration under protest, and
for other purposes.
                                                                   [p. 6]
  The two objectives of this bill—objectives that we fully endorse—are stated
in its title. Under present law, if the Secretary of Agriculture determines that
an  economic poison offered for  registration under the  Federal  Insecticide,
Fungicide, and Rodenticide Act would not comply with the various substantive
requirements of the act,  he still must, if the applicant  insists, register the
article though "under  protest,"  even when the apparent violation is one that
constitutes a hazard to the public health. Likewise, if an economic poison is
regularly  registered, the  Secretary can convert the registration into a regis-
tration "under protest" but cannot cancel it outright. And, since the label of
the article bears no reference to registration—it is deemed misbranded if it
does—purchasers are not apprised of  its protested status.  The holder of an
article registered under protest does  incur  the risk of greater penalties and
automatic termination  of the registration in  the event of conviction for a viola-
tion of the act, but in order to achieve this, the Government would first have to
carry the  burden of proving  beyond a reasonable  doubt  noncompliance with
the act's substantive requirements, such as labeling1 giving adequate directions
for use and adequate warnings to prevent injury. The burden should, we think,
be on the manufacturer to show, before an economic poison may be registered,
that the article may be safely and effectively used under the proposed labeling,
so that on the one hand an article may be marketed in reliance on the registra-
tion so long as it is in effect and the article and its labeling are the same as
that which has  been registered and,  on the other hand,  deviation  from the
registered article or its labeling will per se constitute a violation.
  The  present bill would—in addition to authorizing the Secretary to require

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216                                LEGAL COMPILATION—PESTICIDES

the label of the economic poison to bear a registration number—substitute for
the present  protest-registration  procedure  detailed provisions  that would
authorize the Secretary to refuse registration, or to cancel the registration (or
require modification of the labeling), of an economic poison that he considers
to be violative of the act, subject to the applicant's  right to have the matter
referred  to an advisory committee of experts and to  have a reconsidered  deci-
sion of the  Secretary after the report of the advisory committee has  been
obtained, and subject to the right of any person adversely affected by such a
reconsidered decision to have an opportunity for public hearing and for judicial
review of the Secretary's final decision  on the basis of the hearing record.
(Pending referral to an advisory committee and hearing, the Secretary would
be empowered to suspend registration summarily if found necessary to prevent
an imminent hazard to the public.)
  These  provisions  would carry out procedurally two of the recommendations
(i.e.,  recommendations D.  1 and 2) in the recent report of  the  President's
Science Advisory Committee on the "Use of Pesticides." We defer  to the view
of the Secretary of Agriculture as to whether these provisions are adequate,
not only to do away with registration under protest but, as above suggested,
to put the burden on the applicant to prove compliance with  the  substantive
requirements of the act as to  safety and effectiveness before the article may
be registered, instead of placing the burden, in the last analysis, on the Secre-
tary to prove that the article does not comply before he may refuse registra-
tion. We believe, however, that in any event certain amndments to the bill are
needed from the point of view of the impact of the bill on this Department.
                                                                   [p. 7]
1. Amendments to  clarify, extend, and  improve the relationship  between the
    Federal Food,  Drug,  and  Cosmetic Act  and  the Federal  Insecticide,
    Fungicide, and Rodenticide Act with respect to economic poisons that may
    leave a residue  in or on food
  The Food, Drug, and  Cosmetic Act provides, through various regulatory
procedures,  for premarketing  clearance for  safety, including establishment of
safe -tolerances, for extraneous substances in or on food  (including feed) that
are either intended  as components of food or the use of  which may reasonably
be  expected  to result in  leaving a residue  in food. If such a substance  is
present in or on food at the time of, or subsequent to, introduction of the food
in interstate  commerce,  the food is deemed unsafe, and hence  adulterated,
unless the use of the additive and the  amount  involved are sanctioned by a
clearance regulation then in effect or are exempted by the act or regulation.
Chemicals that are "economic poisons" within the meaning of  the Federal
Insecticide,  Fungicide, and Rodenticide Act may be subject to one of two of
these premarketing clearance procedures under the Food, Drug, and Cosmetic
Act, depending upon whether the chemical is used in the production, storage,
or transportation of  crops or other raw agricultural  commodities—in which
event it  is referred to as a "pesticide chemical" subject to the clearance proce-
dure  of  the  pesticide chemicals amendment—or is  used otherwise, in which
event it  is, generally, subject to the clearance procedure of the Food Additives
Amendment of 1958  as  a  "food  additive"  (unless it is classified as a  color
additive).
   In  the case of "pesticide chemicals" as above defined, where in the opinion
of the Department  of Agriculture the proposed use of the chemical in accord-
ance with label directions will leave a residue on a raw agricultural commodity,

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STATUTES AND LEGISLATIVE HISTORY                             217

that Department will ordinarily delay registration until an applicable tolerance
or exemption has been established under the Food, Drug, and Cosmetic Act,
on the ground that until the establishment of such a tolerance or exemption
it cannot be determined whether there will be a violation of the provisions of
Federal Insecticide, Fungicide, and Rodenticide Act, which deem an economic
poison misbranded if the labeling does not contain necessary directions for use
"adequate  for the protection of the public" or if the label does  not  contain
necessary warning or caution statements "adequate to prevent injury to living
man and other * * * animals * * *." (See Regs., 7 CFR 363.11.) We understand
that extension of this procedure to situations where an economic poison offered
for registration is intended for use in connection  with food  other than raw
agricultural  commodities is under consideration, though not as yet in effect.
However, we assume that,  under present law, the applicant could insist upon
registration without awaiting a determination by this Department under the
Food, Drug,  and Cosmetic  Act, though  in such cases he might have to accept
a registration under protest.
  Whatever  the basis for the  above-mentioned  procedure  under  Federal
Insecticide, Fungicide, and Rodenticide Act in its present form, with its escape
hatch of registration under protest, we seriously doubt that, under the  amend-
ments  proposed  by the bill, the Secretary of Agriculture would be authorized
to delay his decision, initially or otherwise, on the ground that there has been
no determination under the Food, Drug, and Cosmetic Act. The provisions of
                                                                   [p. 8]
the bill, with their built-in time limits, emphasize the desirability of  expedi-
tious procedure. Moreover, even if the  Secretary should manage to defer his
decision with respect to registration until a tolerance or -exemption under the
Food, Drug, and Cosmetic  Act  has been granted or denied, this would appar-
ently not, as the bill is written, require or authorize him to deny registration
simply on the basis of the decision reached under the Food, Drug, and Cosmetic
Act; nor could the Secretary, after registration has been granted,  cancel such
registration simply on the basis of the decisions reached  under the Food, Drug,
and Cosmetic Act, such as a modification of a previously established tolerance.
The  hearing provisions of the bill, particularly, seem to contemplate an inde-
pendent  administrative decision of the  Secretary of Agriculture  (subject to
judicial review on the record)  "based only on substantial evidence of record
at such  hearing" (including any  report  of an expert advisory committee
appointed under the bill), and  the grounds on which the decision  would have
to be based would be failure to comply with  substantive provisions, including
those relating1 to safety, of  Federal Insecticide, Fungicide, and Rodenticide Act
rather than with applicable standards or regulations under the Food, Drug,
and Cosmetic Act. This involves the risk of duplicative, and even dichotomous,
decisions of the two departments contrary to  their mutual desire and contrary
to the public interest.
  The bill  is therefore in need  of amendment to prevent these results and to
formalize in law, perfect, and extend to all foods the now-existing procedure
applied under Federal Insecticide, Fungicide, and Rodenticide Act with respect
to economic poisons  used in connection with raw  agricultural commodities.
This could be accomplished by amendments as follows:
  (a) A requirement  that an  application  for  registration of an  economic
poison  be accompanied by  a satisfactory method of analysis  which could be
used to determine the presence  or absence of residues in food,  if the economic

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218                                LEGAL COMPILATION—PESTICIDES

poison is intended for use in the production, handling, transportation, or stor-
age of food, or for some other use that may reasonably be expected to result
in leaving a residue in food when used as directed or under reasonably foresee-
able conditions of use. Such an analytical method is needed both to determine
whether  the article should be registered  on a "no residue" basis and, after
such registration, whether its use bears out the expectation of "no residue."
  (6) In the case of an economic poison which is intended for  a use described
in the preceding paragraph, a requirement that the application for registra-
tion be accompanied by full reports of adequate scientific investigations as to
the  amount of residues remaining in or on food.
  (c) A requirement that an economic poison may not be registered unless
and until this Department has certified a finding  either (1)  that there is no
reasonable likelihood that the article will result in a residue in or on food (at
or after  the introduction of the food into  interstate commerce), or (2)  that
the residue likely to result will not be deemed unsafe  under the  Food, Drug,
and Cosmetic  Act  (because of a tolerance or exemption we have established,
or because of other facts stated in the certification). Provision should also be
made for mandatory cancellation of the registration upon certification by  this
Department that the earlier findings are  no  longer applicable  by reason of
changes  in the tolerance or exemption previously established or of other action
                                                                   [p. 9]
under the Food, Drug, and Cosmetic Act, or by reason  of actual experience as
to the residues which result from the use of the economic poison.
  (d) The standard to be applied in determining whether a chemical should
be registered is the amount of residue, if any, in  or on food, that is  likely to
result if the chemical is used in accordance with directions or otherwise under
reasonably foreseeable conditions of use. The standard to be applied in deter-
mining whether registration should be canceled is the  amount of residue that
is resulting from actual  use of the chemical, either as directed, or under other
conditions of  actual use that may reasonably be expected to be followed in
practice  to a substantial extent.
  We are enclosing draft language to  carry out these recommendations.
2. Amendments to make information a/oailable to other agencies concerned
  We believe  that the confidentiality provisions of the bill in section 3 could
be  a  bar to  proper administration,  and we therefore not only endorse the
recommendation in the Secretary of Agriculture's comments dealing with the
proposed amendments of lines 20 and 21 on page 5 of the bill, but also recom-
mend that the law make a specific provision, along the lines of an amendment
enclosed herewith, to make it clear that  the Secretary of Agriculture is not
barred  from  providing  information  submitted to him to  any other Federal
agency consulted.
  Before closing this report, we  should  like  to  note  that the President has
asked the responsible agencies  to  implement the recommendations in  the
Science  Advisory Committee's report,  including  in such implementation the
preparation of proposals for submission by him to Congress.
   With  respect to economic poisons  that  leave no residue in or on  food but
have other implications with respect to public health, we are currently engaged
in  evaluating the statement in the report of  that committee that "decisions
on  registration, clearly related to health, should  be the responsibility of the
Department  of Health, Education, and Welfare," and the committee's recom-
mendation B. 4, that the "Secretaries of Agriculture, Interior, and Health,

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STATUTES AND LEGISLATIVE HISTORY                           219

Education, and Welfare review and define their roles in the registration of
pesticides that  are not present on food, but that  may impinge on  fish and
wildlife or come into intimate contact with the public." Additional proposals
for the amendment of FIFRA could eventuate in the light of these committee
recommendations. We also intend to review the need for special controls over
especially hazardous persistent economic poisons, whether used in connection
with food or otherwise, and the question whether the availability of a  new and
less hazardous substance should be ground for changing the status of a previ-
ously registered article.
  At this time, we recommend, for the above-stated reasons, the enactment of
this bill, modified in accordance with the proposed amendments enclosed here-
with which would carry out the specific recommendations of our report.
  We are advised by the Bureau of the Budget that while there is no objection
to the submission of  this report from the standpoint of  the administration's
program, the matter of relationships between the food and drug and pesticide
registration programs is still under study in the executive branch and a final
decision will be reached thereon as soon as possible.
      Sincerely,
                                             WILBUR J. COHEN,
                                               Assistant Secretary.
                                                           [p. 10]

PROPOSED AMENDMENTS  TO  THE BILL RE ECONOMIC POISONS
                LEAVING RESIDUES IN OR ON FOOD

   1. On page 6, change lines 15 and 16 to read as follows: "tions d.
and e. as subsections f. and g.,  and by inserting before such redesig-
nated subsections the following new subsections, as  follows:."
   2. On page 6, line 18, insert "subsection c. of" after "under."
   3. Strike out the closing quotation marks on page 8, line 6, and
insert between lines 6 and 7 the following :
   "e. (1)  The  provisions of  this subsection shall  apply notwith-
standing any other provisions  of this Act.
   "(2)   For the purposes of  this section, the  registration of an
economic poison shall not be valid with respect to any change from
the claims therefor or the labeling or  composition thereof as de-
scribed in the application upon which  such registration is based,
except  upon  the  filing  of a  supplement to such  application  in
accordance with such change  and issuance of an order confirming
such registration:  Provided, That no such supplement need  be filed
with respect to a change that is not significant from the standpoint
of safety or effectiveness or from the standpoint of the residue  of
the economic poison remaining in or on food. As used in the  follow-
ing paragraphs of  this subsection, the term  "application for regis-
tration" includes a proposed supplement to an application on which
a previous registration  is based and  a request pursuant to sub-
section g. for continuation of  a registration, and the terms  "regis-

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220                            LEGAL COMPILATION—PESTICIDES

ter"  and "registration" include confirmation or continuation  of
registration pursuant to such a supplement  or pursuant to such
a request.
  " (3) A copy of every application for registration of an economic
poison,  and of any statement or  other  data filed in  connection
therewith, shall be transmitted by the Secretary to the Secretary
of Health, Education, and Welfare,  together with an  opinion  of
the Secretary of Agriculture as to whether, on the basis of the data
before him, such economic poison, when used  as directed  or other-
wise under reasonably foreseeable conditions of use, is likely to re-
sult in a residue in or on food and, if so, the amount of such residue.
  "(4) (A)  An economic poison shall not be registered unless and
until the Secretary of Health, Education, and Welfare has certi-
fied, on the basis of the data before him and after appropriate con-
sideration of the opinion of  the  Secretary  of  Agriculture sub-
mitted under paragraph (3), that he finds (i) that such  economic
poison,  when  used in accordance with directions or otherwise
under reasonably foreseeable  conditions of  use,  is not  likely  to
result in a residue in or on food (at or after the introduction there-
of into  interstate commerce), or  (ii)  that the  residue  likely  to
result from such use will, by reason of its  conformance with a
tolerance or exemption established under the  Federal Food, Drug,
and Cosmetic Act or by reason of any other facts found and stated
in such certification, not be deemed unsafe within  the meaning  of
sections 406, 408, 409, or 706 of such Act.
                                                        [p. 11]
  "(B)  Such certification shall in  any event be refused unless the
application and other data submitted to the  Secretary of Health,
Education, and Welfare under paragraph (3) or submitted to him
directly by the  applicant include the following:
       "(i)  Full data showing the chemical identity and  composi-
    tion of the economic poison.
       "(ii) Practicable and reliable methods of examination for
    determining the amount of residue, if any,  of such  economic
    poison in or on food if such economic poison is intended for use
    in producing, manufacturing,  packing, processing, preparing,
    treating, packaging,  transporting, or holding  food,  or is in-
    tended for any use that may reasonably be expected  to result,
    directly or indirectly, in  its leaving a residue in or on food
    when used as directed or  otherwise under reasonably foresee-
    able conditions of use.
       "(iii) Full reports of  adequate  investigations  (made  in
    accordance with the methods referred to  in clause (ii)) show-

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STATUTES AND LEGISLATIVE HISTORY                         221

    ing the amount of such residue, if any, remaining in or on food
    when such economic poison is used as directed or otherwise
    under  reasonably foreseeable conditions of use, except that
    such investigations, if not made, may be dispensed with by
    such Secretary if such economic poison is not intended for  a
    use described in clause  (ii).
  "(5)  Whenever the Secretary  of Health, Education, and  Wel-
fare certifies that he finds (A) that, by reason of action (specified
in such certification) taken under sections 406, 408, 409, or 706 of
the Federal Food, Drug, and Cosmetic Act, as the case may be, the
probable residue of an economic poison in or on food assumed as  a
basis for a  prior registration of an economic poison would now be
deemed unsafe within the meaning of such section, or (B) that the
actual use of such economic poison as directed, or under other con-
ditions of actual use that may reasonably be expected to continue
to be followed in practice to a substantial extent, has  resulted in
leaving in or on food, at or after the introduction thereof in inter-
state commerce, a residue that for reasons stated in such certifica-
tion is deemed unsafe within the meaning of any such section of
such Act, the Secretary of Agriculture shall cancel such registra-
tion on thirty days' notice, except that, if the order of certification
of the Secretary of Health, Education, and Welfare includes a find-
ing of imminent hazard to the public health pursuant to clause (C)
of the proviso to paragraph (6)  of this subsection,  such registra-
tion shall be suspended without prior notice pending final action of
such Secretary.
  "(6)  Certifications, or refusals of certification, of the Secretary
of Health, Education, and Welfare under this subsection shall be
made by order.  The procedure for the issuance, amendment, or
revocation of such orders, including opportunity for hearing on the
record to any  person  adversely affected by the Secretary's action
or proposed action, shall be prescribed by such Secretary by regula-
tions and shall follow as nearly as practicable the procedure gov-
erning orders  of the Secretary of Agriculture set forth in subsec-
tion c.: Provided, that (A) the question  whether  or on what terms
a tolerance, or exemption from the requirement of a tolerance,
should be established, modified, or revoked under any provision of
the  Federal Food, Drug, and Cosmetic Act shall not be put in issue
in any proceeding under this section; (B) the referral of a matter
                                                        [p. 12]
to an advisory committee shall not be mandatory on the Secretary
of Health, Education, and Welfare unless requested by the appli-
cant or registrant; and (C)  where such  Secretary finds that there

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222                            LEGAL COMPILATION—PESTICIDES

is an imminent hazard to the public health he may immediately
make the certification provided  for in paragraph (5), in which
event he shall give prompt notice to the registrant and afford him
the opportunity to have the matter submitted to an advisory com-
mittee and for an expedited hearing under this paragraph (6)
and  shall, after such  opportunity,  issue a final order confirming,
modifying, or setting aside his earlier order. Final orders under
this paragraph shall be subject to judicial review on the record in
accordance with the procedure set forth in subsection d. of this
subsection, and for that purpose the term "Secretary" as used in
subsection d. shall mean  the Secretary of Health, Education, and
Welfare. Notwithstanding the foregoing provisions of this para-
graph, the two Secretaries may, to the extent they deem it practic-
able and in the interest of efficiency and convenience of the parties,
provide by joint or parallel regulations for joint hearings before
them, in which event judicial review of such orders may be initi-
ated by a single petition.
  "(7)  As used in this subsection, the term 'residue'  includes the
breakdown products of an economic poison in foods; and the term
'food' means such term as defined in the Federal Food, Drug, and
Cosmetic Act."
  4. Change the two sentences beginning on page 5, line 16, to read
as follows: "All data  submitted to the Secretary or to an advisory
committee in support of a petition under this section shall be con-
sidered confidential by the Secretary, by any other Federal agency
officially consulted by the Secretary in connection therewith, and by
such advisory committee until the Secretary issues his order con-
cerning registration of the product following consideration of the
views of the committee and other data before him. Until such action
such data shall not be revealed to any person other than those
authorized by the Secretary, or by an advisory committee in the
carrying out of the official duties under this section, or by the head
of such other Federal agency."
                   CHANGES  IN EXISTING LAW
   In compliance  with clause 3  of rule XIII of the  Rules of the
House of Representatives, changes in existing law made by the bill
as introduced, are shown as follows (existing law proposed to be
omitted is enclosed  in black brackets, new matter is printed in
italic, existing law in which no change is proposed  is shown in
roman) :
     FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
AN ACT To regulate the marketing of economic poisons and devices, and for
                         other purposes

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STATUTES AND LEGISLATIVE HISTORY                         223

   Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
                            TITLE
   SECTION 1. This Act may be cited as the "Federal Insecticide,
Fungicide, and Rodenticide Act."
                                                       [p. 13]
                         DEFINITIONS
   SEC.  2. For the purposes of this Act—
   a. The term "economic poison"  means  (1)  any substance  or
mixture of substances intended for preventing, destroying-, repel-
ling, or mitigating any  insects, rodents, nematodes, fungi, weeds,
and other forms of plant or animal life or viruses, except viruses
on or in living man or other animals, which the Secretary shall
declare to be a pest, and (2)  any  substance or mixture of  sub-
stances intended for use as a plant regulator, defoliant or desiccant.
   b. The term "device" means any  instrument or contrivance in-
tended for trapping,  destroying, repelling, or mitigating insects or
rodents or destroying, repelling, or mitigating fungi, nematodes,
or such other pest as may be designated by the Secretary, but not
including equipment used for the application of economic poisons
when sold separately therefrom.
   c. The term "insecticide" means any substance or mixture  of
substances intended for preventing, destroying, repelling, or miti-
gating any  insects which  may  be  present in any environment
whatsoever.
   d. The term "fungicide" means any substance or mixture of sub-
stances intended for  preventing, destroying, repelling, or mitigat-
ing any fungi.
  e. The term "rodenticide" means any substance or mixture  of
substances intended for preventing, destroying, repelling, or miti-
gating rodents or any other vertebrate animal which the Secretary
shall declare to be a pest.
  f. The term "herbicide" means any substance or mixture of sub-
stances intended for  preventing, destroying, repelling, or mitigat-
ing any weed.
  g. The term "nematocide" means any substance or mixture  of
substances intended for preventing,  destroying, repelling, or miti-
gating nematodes.
  h. The term "plant regulator" means  any substance or mixture
of substances, intended through physiological action, for accelerat-
ing or retarding the  rate of growth or rate of maturation, or for
otherwise altering the behavior of ornamental or crop plants or the
produce thereof, but shall not include substances to the extent that

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224                            LEGAL COMPILATION—PESTICIDES

they are intended as plant nutrients, trace elements, nutritional
chemicals, plant inoculants and soil amendments.
  i. The term "defoliant" means any substance or mixture of sub-
stances intended for causing the leaves or foliage to drop from a
plant, with or without causing abscission.
  j. The term "desiccant" means any substance or mixture of sub-
stances intended  for artificially accelerating the drying  of plant
tissue.
  k. The term "nematode" means invertebrate animals of the phy-
lum nemathelminthes and class nematoda, that is, unsegmented
round worms with elongated, fusiform, or saclike bodies, covered
with cuticle, and inhabiting soil, water, plants or plant parts; may
also be called nemas or eelworms.
  1. The term "weed" means  any plant  which grows where not
wanted.
  m.  The term "insect" means any of the numerous small inverte-
brate animals generally having the body more or less obviously seg-
mented, for the most part belonging to the  class insecta, compris-
ing six-legged, usually winged forms, as, for example, beetles, bugs,
                                                       [p. 14]
bees, flies, and to other allied classes of arthropods whose members
are wingless and usually have more than six legs, as, for example,
spiders, mites, ticks, centipedes, and wood lice.
  n. The  term "fungi" means  all  non-chlorophyll-bearing thallo-
phytes (that is, all non-chlorophyll-bearing plants of a lower order
than mosses and liverworts) as, for example, rusts, smuts, mildews,
molds, yeasts, and  bacteria, except those on or in living man or
other animals.
  o. The term "ingredient statement" means either—
       (1) a statement of the name and percentage of each active
    ingredient, together with the total percentage of the inert in-
    gredients, in the economic poison; or
       (2) a statement of the name of each  active ingredient,
    together with the name of each and total  percentage of the
    inert ingredients, if any there be, in the economic poison (ex-
    cept option 1 shall apply if the preparation is highly toxic to
    man, determined as provided in section 6 of this Act);
and, in addition to (1) or (2) in case the economic poison contains
arsenic in any form, a statement of the  percentages of total and
water soluble arsenic, each calculated as elemental arsenic.
  p. The term "active ingredient" means—
       (1) in the case of an economic poison other than a plant
    regulator, defoliant or desiccant, an ingredient which will pre-

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STATUTES AND LEGISLATIVE HISTORY                         225

     vent, destroy, repel, or mitigate insects, nematodes,  fungi,
     rodents, weeds, or other pests;
       (2) in the case of a plant regulator,  an ingredient which,
     through physiological action, will accelerate or retard the rate
     of growth or rate of maturation or otherwise alter the behavior
     of ornamental or crop plants or the produce thereof;
       (3) in the case of a defoliant, an ingredient which will cause
     the leaves or foliage to drop from a plant;
       (4) in the case of a desiccant, an ingredient which will arti-
     ficially accelerate the drying of plant tissue.
   q. The term "inert ingredient" means an ingredient which is not
active.
   r. The term "antidote" means a practical immediate treatment
in case of poisoning and includes first-aid treatment.
   s. The term "person" means any individal, partnership, associa-
tion, corporation or any organized group of persons whether incor-
porated or not.
   t. The term "Territory" means any Territory or possession of
the United States, excluding the Canal Zone.
   u. The term "Secretary" means the Secretary of Agriculture.
   v. The term "registrant" means the person registering any eco-
nomic poison pursuant to the provisions of this Act.
   w. The term "label" means the written, printed,  or graphic mat-
ter, on,  or  attached to,  the  economic poison  or device  or the
immediate container thereof, and the outside container or wrapper
of the retail  package,  if any there be, of the economic poison or
device.
   x. The term "labeling" means all labels and  other written,
printed, or graphic matter—
       (1) upon the economic poison  or device or  any of its con-
     tainers or wrappers;
       (2) accompanying the economic poison or device at any time;
       (3) to which reference is made on the label or in literature
     accompanying the economic poison or device, except to current
                                                        [p. 15]
     official publications of the United States Departments of Agri-
     culture and Interior, the United States Public  Health Service,
     State experiment stations, State agricultural colleges, and
     other similar Federal or State institutions or agencies author-
     ized  by law to conduct research in the field of economic poisons.
  y. The term "adulterated" shall apply to  any  economic  poison if
its strength or purity falls below the professed standard or quality
as expressed on its labeling or under which it is  sold, or if any

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226                            LEGAL COMPILATION—PESTICIDES

substance has been substituted wholly or in part for the article, or
if any valuable constituent of the article has been wholly  or in
part abstracted.
  z. The term "misbranded" shall apply—
       (1)  to any economic poison or device if its labeling bears
    any statement, design, or graphic representation relative there-
    to or to its ingredients which is false or misleading in any
    particular;
       (2)  to any economic poison—
           (a)  if it is an imitation of or is offered for sale under
         the name of another economic poison;
           (b)  if its labeling bears any reference to registration
         under this Act other than  the registration number as-
         signed to the economic  poison;
           (c)  if the labeling accompanying it does not contain
         directions for use which are necessary and if complied
         with adequate for the protection of the public;
           (d)  if the label does  not contain a warning or caution
         statement which may be necessary and if complied with
         adequate to prevent injury to living man and other verte-
         brate animals,  vegetation, and useful invertebrate ani-
         mals;
           (e)  if the label does  not bear an ingredient statement
         on that part of the immediate container and on the outside
         container or wrapper, if there be  one, through which the
         ingredient statement on the immediate container cannot
         be clearly read, of the retail package which is presented or
         displayed under customary conditions of purchase: Pro-
         vided,  That  the  Secretary  may  permit  the ingredient
         statement to appear prominently on some other part of
         the container, if the size or form  of the container makes
         it impracticable to place it on the part of the retail pack-
         age which is presented or displayed under customary con-
         ditions of purchase;
           (f)  if any word, statement,  or other  information re-
         quired by or under authority of this Act to appear on the
         label or  labeling is  not  prominently placed thereon with
         such conspicuousness  (as  compared with other words,
         statements, designs, or graphic matter in the  labeling)
         and in such  terms as to render it likely to be  read and
         understood by  the ordinary individual under customary
         conditions of purchase and use or;
           (g)  if in the case of  an insecticide, nematocide, fungi-

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STATUTES AND LEGISLATIVE HISTORY                         227

         cide, or herbicide when used as directed or in accordance
         with commonly recognized practice it shall be injurious to
         living man or other vertebrate animals,  or  vegetation,
         except weeds, to which  it is  applied, or to  the person
         applying such economic poison; or
                                                        [p. 16]
            (h)  if in the case of  a plant regulator, defoliant, or
         desiccant when used as directed it shall be injurious to
         living man or  other vertebrate animals, or vegetation to
         which it is applied, or to the person applying such eco-
         nomic poison: Provided, That  physical or physiological
         effects on plants or parts thereof shall not be deemed to
         be injury, when this is the purpose for which the plant
         regulator, defoliant, or desiccant was applied, in accor-
         dance with the label claims and recommendations.
                       PROHIBITED ACTS
   SEC.  3. a. It shall be unlawful for any person to distribute, sell,
or offer for sale in any Territory or in the District of Columbia, or
to ship  or deliver for shipment from any State, Territory, or the
District of Columbia to any other  State, Territory,  or the District
of Columbia, or to any foreign country,  or to receive in any State,
Territory, or the District of Columbia from any other State, Terri-
tory or the District of Columbia, or foreign country, and having so
received, deliver or offer to deliver in the original unbroken pack-
age to any other person, any of the following:
   (1)  Any economic poison which [has not been] is not registered
pursuant to the provisions of section 4 of this Act, or any economic
poison if any of the claims made for it or any of the directions for
its use differ in substance from the representations made in con-
nection with its registration, or if  the composition of an economic
poison differs from its  composition as represented in  connection
with its registration: Provided, That in the discretion of the Secre-
tary, a  change in the labeling or  formula  of an economic poison
may be made within a  registration period without requiring re-
registration of the product.
   (2)  Any economic poison unless it is in the registrant's or the
manufacturer's unbroken immediate container, and there is affixed
to such  container, and to the outside container or wrapper of the
retail package, if there be one, through  which the required infor-
mation on the immediate container cannot be clearly read, a label
bearing—
       (a)  the name and address of the manufacturer,  registrant,
     or person for whom manufactured ;

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228                            LEGAL COMPILATION—PESTICIDES

       (b)  the name,  brand, or trade-mark under  which  said
    article is sold;  [and]
       (c)  the net  weight or measure of the content:  Provided,
    That the Secretary may permit reasonable variations [.]; and
       (d), when required by regulation of the Secretary to effec-
    tuate the purposes of this Act, the registration number as-
    signed to the article under this Act.
   (3)  Any economic poison which contains any substance or sub-
stances in quantities highly toxic to man, determined as provided
in section 6 of this  Act, unless the label shall bear, in addition to
any other matter required by this Act—
       (a)  the skull and crossbones;
       (b)  the word "poison" prominently (IN RED) on a back-
    ground of distinctly contrasting color; and
       (c)  a  statement of an antidote for the economic poison.
   (4)  The economic poisons commonly known as standard lead
arsenate, basic lead arsenate, calcium arsenate, magnesium arse-
nate,  zinc arsenate, zinc  arsenite,  sodium fluoride, sodium  fluo-
silicate, and barium fluosilicate unless they have been distinctly
                                                        [p. 17]
colored or discolored as provided by regulations issued  in accord-
ance with this Act, or any other white powder  economic poison
which the Secretary, after investigation of and after  public hear-
ing on the necessity for such action for the protection of the public
health and the feasibility of such coloration or discoloration, shall,
by regulation, require to be distinctly colored or discolored, unless
it has been so colored or discolored: Provided, That the Secretary
may exempt any economic  poison to the extent that it is intended
for a  particular use or uses from the coloring or discoloring re-
quired or authorized by this  section if he determines  that  such
coloring  or discoloring for such use or uses  is not necessary for
the protection of the public health.
   (5)  Any economic poison  which is adulterated or misbranded
or any device which is misbranded.
  b. Notwithstanding  any other provision of this Act, no article
shall be deemed in  violation of this Act when intended solely for
export to any foreign country and prepared or packed  according to
the specifications or directions of the foreign purchaser.
  c. It shall be unlawful—
       (1) for any person to detach, alter, deface, or destroy, in
    whole or in part, any label or labeling provided for in this Act
    or the rules and regulations promulgated hereunder, or to add
    any substance  to, or take any substance from,  an economic

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 STATUTES AND LEGISLATIVE HISTORY                         229

     poison in a manner that may defeat the purpose of this Act;
       (2) for any manufacturer, distributor, dealer, carrier, or
     other person to refuse, upon a request in writing specifying
     the nature or kind of economic poison or device to which such
     request relates, to furnish to or permit any person designated
     by the Secretary to have access to and to copy such records as
     authorized by section 5 of this Act;
       (3) for any person to give a guaranty or undertaking pro-
     vided for in section 7 which is false in any particular, except
     that a person who receives and relies upon a guaranty autho-
     rized under section 7 may give a guaranty to the same effect,
     which guaranty shall contain in addition to his own name and
     address the name and address of the person residing in  the
     United States from whom he received the guaranty or under-
     taking ; and
       (4) for any person to use for his own advantage or to reveal,
     other than  to the Secretary, or officials or employees of  the
     United States  Department of Agriculture, or other  Federal
     agencies,  or to the courts in response  to a subpoena,  or to
     physicians, and in emergencies to pharmacists and other quali-
     fied  persons, for use in the preparation of antidotes, in  ac-
     cordance with such directions as the Secretary may prescribe,
     any information  relative to formulas of products acquired by
     authority of section 4 of this Act.
                         REGISTRATION
  SEC. 4  a. Every  economic poison which is distributed,  sold,  or
 offered for sale  in any Territory or the District of Columbia,  or
 which is shipped or delivered for shipment from any State, Terri-
 tory, or the District of Columbia to any other State, Territory, or
 the District of Columbia, or which is received from any  foreign
country shall be registered with the Secretary: Provided, That
 products which have  the same formula, are manufactured by the
 same person, the labeling of which contains the same claims, and
                                                       [p. 18]
the labels of which  bear a designation identifying the product  as
the same economic poison may be registered as a single economic
poison; and additional names and labels shall be added by supple-
ment statements; the [registrant] applicant for registration shall
file with the Secretary a statement including—
       (1)  the name and address of the [registrant] applicant for
     registration and  the name and address of the person whose
     name will appear on the label, if other than the [registrant]
     applicant for registration;

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230                            LEGAL COMPILATION—PESTICIDES

       (2)  the name of the economic poison;
       (3)  a complete copy of the labeling accompanying- the eco-
    nomic poison and a statement of all claims to be made for it,
    including the directions for use; and
       (4)  if requested by the Secretary, a full description of the
    tests made and the results thereof upon which the claims are
    based.
  b. The Secretary, whenever he deems it necessary for the effec-
tive administration of this Act, may require the submission of the
complete formula of the economic poison. If it appears to the Sec-
retary that the composition of the article is such as to warrant the
proposed claims for it and if the article and its labeling and other
material required to be submitted comply with the  requirements
of section 3 of this Act, he shall register it.
  c. If it does not appear to the Secretary that the article is such
as to warrant the proposed claims for it or if the article and  its
labeling and other material required to be submitted do not comply
with the provisions of this Act,  he shall notify  the [registrant]
applicant for registration of the manner in which the article, label-
ing, or other material required to be submitted fail to comply with
the Act so as to afford the [registrant] applicant for registration
an opportunity to make the corrections necessary.  [If, upon receipt
of such notice, the registrant insists that such corrections are not
necessary and requests in writing that it be registered, the Secre-
tary shall register the article, under protest, and such registration
shall be accompanied by a  warning, in writing, to the registrant of
the apparent failure of the article to comply with the provisions of
this Act. In order to protect the public, the Secretary, on his own
motion, may  at any time,  cancel the registration of an  economic
poison and in lieu thereof issue a registration under protest in
accordance with the foregoing procedure. In no event shall  regis-
tration of an article,  whether or not protested, be construed as a
defense for the commission of any offense prohibited  under section
3 of this Act.] //, upon receipt of such notice, the applicant for reg-
istration does not make the corrections, the Secretary shall refuse
to register the article. The Secretary, in accordance  with the pro-
cedures specified herein, may suspend or cancel the registration of
an economic poison whenever it does not appear that the  article or
its  labeling or other  material required to be submitted complies
with the provisions of this Act.  Whenever the Secretary refuses
registration of an economic poison or determines  that registration
of an economic poison should be canceled, he shall notify the appli-
cant for registration or the registrant of his action and the reasons

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STATUTES AND LEGISLATIVE HISTORY                         231

therefor. Whenever an application for registration is refused, the
applicant, within thirty days after service of notice of such refusal,
may file a petition requesting  that the matter be  referred to an
advisory committee or file objections and request a public hearing
in accordance with this section. A cancellation of registration shall
be effective thirty days after service of the foregoing notice unless
within such time  the registrant (1) makes the necessary correc-
                                                        [P-19]
tions; (2) files a petition requesting that the matter be referred to
an advisory committee; or (3) files objections and requests a public
hearing. Each advisory committee shall be composed of experts,
qualified in the subject matter and of adequately diversified profes-
sional background selected  by  the National Academy  of Sciences
and shall include one or more representatives  from land-grant
colleges. The  size of the committee shall be determined by the Sec-
retary. Members of  an advisory committee shall receive as  com-
pensation for their services a reasonable per diem, which the
Secretary shall by rules and regulations prescribe, for time  actu-
ally spent in the  work of the committee, and shall in  addition be
reimbursed for their necessary  traveling and subsistence expenses
while so serving aivay from their places of residence, all of ivhich
costs may be  assessed against the petitioner, unless the committee
shall recommend in  favor of the petitioner or unless the matter
was referred to  the  advisory  committee  by  the Secretary.  The
members shall not be subject to  any other provisions of  law regard-
ing the appointment and compensation of employees of the United
States. The Secretary shall  furnish the  committee with adequate
clerical and other assistance, and shall by rules and  regulations
prescribe the procedures to be followed by the  committee. The Sec-
retary shall forthwith submit  to such  committee the  application
for registration of the article  and all relevant data before  him.
The petitioner, as well as representatives of the United States De-
partment of Agriculture, shall  have the right to  consult with the
advisory committee. As soon as practicable  after  any such sub-
mission,  but not later than sixty days thereafter, unless extended
by the Secretary for an additional sixty days,  the committee shall,
after independent study  of  the data submitted by  the Secretary
and all other  pertinent information available to it, submit a report
and recommendation to the Secretary as to the registration of the
article, together ivith all underlying data and a statement of the
reasons or basis  for the recommendations. After due considera-
tion of the views of the committee and all other data before him, the
Secretary shall, within ninety days after receipt of the report and

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232                            LEGAL COMPILATION—PESTICIDES

recommendations of the advisory committee, make his determina-
tion and issue an order, with findings of fact, with respect to regis-
tration  of  the article and notify the  applicant for registration,
or registrant. The applicant for registration, or registrant, may,
within sixty days from  the date of the order of the Secretary,
file objections thereto and request a public hearing thereon. In the
event a hearing is requested, the Secretary shall, after due notice,
hold such, public  hearing for the purpose of receiving evidence
relevant and material to  the issues raised by such objections. Any
report,  recommendations, underlying data, and reasons certified
to the Secretary by an advisory  committee shall be made a part
of the record of the hearing, if relevant and material, subject to the
provisions  of section 7(c) of the Administrative Procedure Act
(5 U.S.C. 1006(c)). The National Academy of Sciences shall desig-
nate a member of the advisory committee to appear  and testify
at any such hearing with respect to the report and recommenda-
tions of such committee  upon request of the Secretary, the peti-
tioner, or the officer conducting the hearing: Provided, That this
shall not preclude any other member of the advisory committee
from appearing and testifying at such hearing. As soon as practi-
cable after completion of the hearing, but not later than ninety
days, the Secretary shall evaluate the data and reports before him,
act upon such objections and issue an order granting,  denying, or
canceling the registration or requiring modification of the claims
or the labeling. Such order shall  be based only on substantial evi-
dence of record at such hearing,  including any report, recommen-
                                                        [p. 20]
dations, underlying data, and reason certified to the Secretary by
an advisory committee, and shall set forth detailed findings of fact
upon which the order is based. In connection with consideration of
any registration or application for registration under this section,
the Secretary may  consult with any other Federal agency or with
an advisory committee  appointed as herein provided.  Notwith-
standing the provisions  of section 3(4), information relative to
formulas of products acquired by authority of this section may be
revealed,  when  necessary under this section,  to an advisory
committee, or to any Federal agency consulted,^or at a public hear-
ing  or  in findings  of fact issued  by the Secretary. All data sub-
mitted  to the Secretary or to an advisory committee in support of
the petition under  this section shall be considered confidential by
the Secretary and  by such advisory committee. Notwithstanding
any other  provision of this section, the Secretary may, when he
finds that such action is  necessary to prevent an imminent hazard
to the public, by order,  suspend the registration of an economic

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STATUTES AND LEGISLATIVE HISTORY                         233

poison immediately. In such case,  he  shall give the registrant
prompt notice of such action and afford the registrant the oppor-
tunity to have the matter submitted to an advisory committee and
for an expedited hearing under this section. Final orders of the
Secretary under this section shall be subject to judicial review, in
accordance with the provisions of subsection d. In no event  shall
registration of an article be  construed  as a defense for the  com-
mission of any offense prohibited under section 3 of this Act.
  d. In case of actual controversy as to the validity of any order
under this section,  any person who  will be adversely affected by
such order may obtain judicial review by filing in the United States
court of appeals for the circuit wherein  such person resides or has
his principal place  of business, or in the United States Court of
Appeals for the District of Columbia Circuit, within sixty  days
after the entry of such order, a petition praying that  the order be
set aside in whole or in part. A copy of the petition shall be forth-
with transmitted by the clerk of the court to the Secretary, or any
officer designated by him for that  purpose,  and thereupon the
Secretary shall file  in the court the  record of the proceedings on
which he  based his order, as provided in section 2112 of title 28,
United States Code. Upon the filing of such petition, the court shall
have  exclusive  jurisdiction to affirm or set aside the order  com-
plained of in whole or in part. The findings of the Secretary with
respect to questions of fact shall be sustained if supported by sub-
stantial evidence when considered on the record as a whole, includ-
ing any report and recommendation of  an advisory committee. If
application is made to the court for leave to adduce additional evi-
dence, the court may order such additional evidence to  be  taken
before the Secretary, and to be adduced upon the hearing in such
manner and upon such  terms and conditions as to the court may
seem  proper, if such evidence is material and there  ivere reason-
able grounds for failure to adduce such evidence in the proceedings
below. The Secretary may modify his findings as to the facts and
order by reason of the additional evidence so taken,  and shall file
with the court such modified findings and order. The judgment of
the court affirming or setting aside, in whole or in part, any order
under this section shall  be final, subject  to review by the Supreme
Court of the United States upon certiorari or certification as pro-
vided in section 1254 of title 18 of  the United States Code. The
commencement of proceedings under this section shall not, unless
specifically ordered by the court to the contrary, operate as a stay
of an order. The court  shall  advance on the docket  and expedite
the disposition of all causes filed therein pursuant to this section.
                                                       [p. 21]

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234                            LEGAL COMPILATION—PESTICIDES

  [d.] e.  Notwithstanding any other provision of this Act, regis-
tration is not required in the case of an economic poison shipped
from one plant to another plant operated by the same person and
used solely at such plant as a constituent part to make an economic
poison which is registered under this Act.
  [e.] /.  The Secretary is authorized to  cancel the registration of
any economic poison at the end of a period of five years following
the registration of such economic poison or at the end of any five-
year period thereafter, unless the registrant,  prior to the expira-
tion of each such five-year period, requests in accordance with regu-
lations issued by the Secretary that such  registration be continued
in effect.
                      BOOKS AND RECORDS
  SEC. 5.  For the purposes of enforcing the provisions of this Act,
any manufacturer, distributor, carrier, dealer, or any other person
who sells or offers for sale, delivers or offers for delivery, or who
receives or holds any economic poison or device subj ect to this Act,
shall, upon request of any employee of the United States Depart-
ment of Agriculture or any employee of any  State,  Territory,  or
political subdivision, duly designated by the Secretary, furnish or
permit such person at all reasonable times to have access to, and
to copy all records showing the delivery,  movement, or holding of
such economic poison or device; including the  quantity, the date of
shipment and receipt, and the name of the consignor and consignee;
and in the event of the inability of any person to produce records
containing such information, all other records and information re-
lating to  such  delivery,  movement,  or holding  of the economic
poison or device. Notwithstanding this provision, however, the spe-
cific  evidence obtained under this section shall not be used in  a
criminal prosecution of the person from whom obtained.

                         ENFORCEMENT
  SEC. 6 a. The Secretary (except as otherwise provided in this
section) is authorized to make rules  and regulations for carrying
out the provisions of this Act, including the collection and examina-
tion of samples of economic poisons and devices subject to this Act
and the determination and establishment of suitable names to be
used in  the ingredient statement. The Secretary is in  addition,
authorized after opportunity for hearing—
      (1)  to declare a pest  any  form of plant or animal life or
    virus which is injurious to  plants,  man, domestic  animals,
    articles,  or substances;
      (2)  to determine economic poisons, and quantities of sub-

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STATUTES AND LEGISLATIVE HISTORY                         235

     stances contained in economic poisons, which are highly toxic
     to man; and
       (3) to determine standards of coloring or discoloring for
     economic poisons, and to subject economic poisons to the re-
     quirements of section 3a(4) of this Act.
  b. The Secretary of the Treasury and the Secretary of Agricul-
ture shall jointly prescribe the regulations for the enforcement of
section 10 of this Act.
  c. The examination of economic poisons or devices shall be made
in the United States Department of Agriculture or elsewhere as the
Secretary may designate for the purpose of determining from such
examination  whether they comply  with the requirements of this
                                                       [p. 22]
Act, and if it shall appear from any such examination that they fail
to comply with the requirements of this Act, the Secretary shall
cause notice to be given to the person against whom criminal pro-
ceedings are contemplated. Any person so notified shall be given an
opportunity to present his views, either orally or in writing, with
regard to such contemplated  proceedings; and if in the opinion of
the Secretary it appears that the provisions of this Act have been
violated by such person, then the Secretary shall certify the facts
to the proper United States attorney, with a copy of the results of
the analysis  or the examination of such  article: Provided, That
nothing in this Act shall be construed as  requiring the Secretary
to report for prosecution or for the  institution of libel proceedings
minor violations of this Act whenever he  believes that the public
interest will be adequately served by  a suitable written notice of
warning.
  d. It  shall be the duty of each United States attorney, to whom
the Secretary or his agents shall report any violation of this Act, to
cause appropriate proceedings to be commenced and prosecuted in
the proper courts of the United States without delay.
  e. The Secretary shall, by publication in such manner as he may
prescribe, give notice of all judgments  entered in actions instituted
under the authority of this Act.
                         EXEMPTIONS
  Sec.  7a. The penalties provided  for a violation of section  3a of
this Act shall not  apply to—
       (1) Any person who establishes a guaranty signed by, and
    containing the name and address  of, the registrant or person
    residing in the United States from whom he purchased and re-
    ceived in good faith the article in the same unbroken package,
    to the effect that the article was lawfully registered at the

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236                           LEGAL COMPILATION—PESTICIDES

    time of sale and delivery to him, and that it complies with the
    other requirements of this Act, designating this Act. In such
    case the guarantor  shall be subject  to the penalties  which
    would otherwise attach to the person holding the  guaranty
    under the provision of this Act;
       (2)  any carrier while lawfully engaged in transporting an
    economic poison or device if such carrier upon request by a
    person duly designated by the  Secretary shall permit such
    person to copy  all records showing the transactions in and
    movement of the articles;
       (3)  to public officials while engaged in the performance of
    their official duties;
       (4)  to the manufacturer or shipper of an economic poison
    for experimental use only by or under the supervision of any
    Federal or State agency authorized by law to conduct research
    in the field of economic poisons; or by others if a permit has
    been obtained before shipment in accordance with regulations
    promulgated by the Secretary.
                          PENALTIES
  SEC. 8. a. Any person violating section 3a(l) of this Act shall be
guilty of a misdemeanor and shall on conviction be fined not more
than $1,000.
  b. Any person violating any provision other than section 3a(l)
of this Act shall be guilty of a misdemeanor and shall upon convic-
tion be fined not more than $500 for the first offense, and on
                                                       [p. 23]
conviction  for each  subsequent offense be fined not more than
$1,000 or imprisoned for not more than one year, or both such fine
and imprisonment:  Provided,  That an offense  committed more
than five years after the last previous conviction shall be consid-
ered a first offense  [: And provided further, That in  any case
where a registrant was issued a warning by the Secretary pursuant
to the provisions of section 4c of this Act, he shall in each instance
upon  conviction for an offense concerning which he had been so
warned be fined not more than $1,000  or imprisonment for not
more  than  one year,  or both such fine and  imprisonment; and the
registration of the article with  reference  to which the violation
occurred shall terminate automatically]. An article the registra-
tion of which has been terminated may not again be registered
unless the  article, its labeling, and other material required to be
submitted appear to  the Secretary to comply with all the require-
ments of this Act.
  c. Notwithstanding any other provision  of this section, in case

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STATUTES AND LEGISLATIVE HISTORY                         237

any person, with  intent to  defraud,  uses  or  reveals information
relative to formulas of products acquired  under the authority of
section 4  of this Act, he shall be fined not more than $10,000 or
imprisoned for not more than three years, or both such fine and
imprisonment.
  d. When construing and enforcing the provisions of this Act, the
act, omission, or failure, of any officer, agent, or other  person
acting for or employed by any person shall in every case  be also
deemed to be the act, omission, or  failure  of such person  as well
as that of the person employed.
                           SEIZURES
  SEC. 9  a. Any economic poison or device that  is being trans-
ported from one State, Territory, or District to another, or, having
been transported, remains unsold or in original unbroken packages,
or that is sold or offered for sale in  the District of Columbia, or
any Territory, or that is imported  from a foreign country,  shall
be liable to be proceeded against in any district court of the United
States in the district where  it is found and seized for confiscation
by a process of libel for condemnation—
       (1) in the case of an economic poison—
           (a)  if it is adulterated  or misbranded;
           (b)  if it [has not been] is not registered pursuant to
        the provisions of section 4 of this Act;
           (c)  if it fails to bear on  its label  the information re-
        quired by this Act; or
           (d)  if it is a white powder, economic  poison, and is
        not colored as required under this Act; or
       (2) in the case of a device if it is misbranded.
  b. If the article  is condemned it shall, after entry of the  decree,
be disposed of by destruction or sale  as the court may direct and
the proceeds, if sold, less the legal costs,  shall be paid into the
Treasury  of the United  States, but the article shall not be sold
contrary to the provisions of this Act or of the laws of the juris-
diction in which it is sold:  Provided, That upon payment of the
costs of the libel proceedings and the execution and delivery of a
good and  sufficient bond conditioned  that the article  shall not be
sold or otherwise  disposed of contrary to  the provisions  of this
Act or the laws  of any State, Territory, or District in which  sold,
the court  may direct that such articles be  delivered to the owner
thereof. The proceedings of such libel cases shall conform, as  near
                                                        [P. 24]
as may be, to the proceedings in admiralty, except that either party
may demand trial by jury of any issue of fact joined  in any  case,

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238                            LEGAL COMPILATION—PESTICIDES

and all such proceedings shall be at the suit of and in the name of
the United States.
  c.  When a decree of condemnation is entered against the article,
court costs and fees, storage, and other proper expenses shall be
awarded against the person, if any, intervening as claimant of the
article.
                           IMPORTS
  SEC. 10. The Secretary of the Treasury shall notify the Secretary
of Agriculture of the arrival  of economic poisons and  devices
offered for importation and shall deliver to the Secretary of Agri-
culture, upon his request, samples of economic poisons or devices
which are being imported or offered  for  import  into the United
States, giving notice to the owner or  consignee, who may appear
before the Secretary of Agriculture and have the right to introduce
testimony. If it appears from the examination of  a sample that it
is adulterated, or misbranded or otherwise violates the prohibitions
set forth in this Act, or is otherwise dangerous to the health of the
people of the United States, or is of a kind forbidden entry into or
forbidden to be sold or restricted in sale in the country in which it
is made or from which  it is exported, the said article may be
refused admission, and the Secretary of the Treasury shall refuse
delivery to the consignee and shall cause the destruction of any
goods refused delivery which shall not be exported  by the consignee
within three months from the date of notice of such refusal under
such regulations as the Secretary of the Treasury may prescribe:
Provided, That the Secretary of the Treasury may deliver to the
consignee such goods pending examination and decision in the mat-
ter on execution of penal bond for the amount of the full invoice
value of such goods, together with the duty thereon, and on refusal
to return such goods for any cause to the custody  of the Secretary
of the Treasury, when demanding, for the purpose of excluding
them from the country,  or for any other purpose, said consignee
shall forfeit the full amount of  said bond: And provided further,
That all charges for  storage, cartage, and  labor on goods which
are  refused admission of delivery shall be  paid by the owner  or
consignee, and in default of such payment  shall  constitute a lien
against any future importation made  by such owner or consignee.

                     DELEGATION OF  DUTIES
   SEC. 11. All authority vested in the Secretary  by virtue of the
provisions of this Act may with like force and effect be executed
by such employees of the United States Department of Agriculture
as the Secretary may designate for the purpose.

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STATUTES AND LEGISLATIVE HISTORY                         239

     AUTHORIZATION FOR APPROPRIATIONS AND EXPENDITURES
  SEC. 12 a. There is hereby authorized to be appropriated, out of
any moneys in the Treasury not otherwise appropriated, such sums
as may be necessary for the-purposes and administration of this
Act. In order to carry out the provisions of this Act,  which take
effect prior to the repeal of the Insecticide Act of 1910, appropria-
tions available for the enforcement of such Act are authorized to
be made available.
                                                        [p. 25]
  b. The Secretary is authorized from the funds appropriated for
this Act to make such expenditures as he deems necessary, includ-
ing  rents,  travel, supplies,  books,  samples,   testing devices,
furniture, equipment, and such  other expenses  as may be neces-
sary to the administration of this Act.

                         COOPERATION
  SEC. 13. The Secretary is authorized to cooperate with any other
department or agency of the Federal Government and with the
official agricultural or other regulatory agency of any State, or any
State, Territory, District, possession, or any political  subdivision
thereof, in carrying out the provisions of this Act, and  in securing
uniformity of regulations.

                         SEPARABILITY
  SEC. 14. If any provision of this Act is declared unconstitutional,
or the applicability thereof to any person or circumstances is held
invalid, the constitutionality of the remainder of this Act and the
applicability thereof to other persons and circumstances shall not
be affected thereby.
                        EFFECTIVE DATE
  SEC. 15. All provisions of this  Act, except section 3, "Prohibited
Acts"; section 8, "Penalties"; section 9, "Seizures"; and section 10,
"Imports", shall take effect upon enactment, and sections 3, 8, 9,
and 10 of this Act shall take effect as follows:  (1) As to devices,
upon enactment; (2) as to rodenticides and herbicides,  six months
after enactment; and  (3) as to insecticides, fungicides, and all
other economic  poisons,  one year after  enactment; Provided,
That the Secretary, upon application, may at any time within one
year after sections 3, 8, 9, and 10 of this Act become applicable to
devices, rodenticides and  herbicides,  and insecticides,  fungicides,
and other  economic poisons, respectively,  if he determines  that
such action will  not be unduly detrimental to the public interest,
and is necessary to avoid hardships, exempt, under such terms and

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 240
LEGAL COMPILATION—PESTICIDES
 conditions  as he  may prescribe,  any economic  poison from the
 provisions of this  Act if such economic poison was labeled, shipped,
 and delivered by  the manufacturer thereof prior to the time the
 sections of this Act referred to above  become applicable to  such
 economic poison and in case the economic poison is an insecticide
 or fungicide if its sale, delivery, or shipment has  not been and will
 not be in violation of the provisions of the Insecticide Act of 1910.
    SEC. 16.  The  Insecticide Act of 1910, approved April 26,  1910
 (36 Stat. 331, 7 U.S.C. 121-134), is hereby repealed one year after
 the date of the enactment of this Act: Provided, That, with respect
 to violations, liabilities incurred, or appeals taken prior to said date,
 and with respect  to sales, shipments, or deliveries of insecticides
 and fungicides under an exemption granted by the Secretary under
 section 15, all provisions  of the Insecticide Act of 1910 shall be
 deemed to  remain in full force for the purpose of sustaining any
 proper suit, action, or other proceeding with  respect to any such
 violations,  liabilities,  appeals,  or to such sales,  shipments, or
 deliveries of insecticides and fungicides exempted by the Secretary
 under section 15.
                                                                [p. 26]

              l.lg  (3)  CONGRESSIONAL RECORD
l.lg (3) (a)  Vol. 109 (1963), Oct. 22: Considered and passed Sen-
ate, pp. 20077-20081
AMENDMENT  TO  FEDERAL IN-
  SECTICIDE,  FUNGICIDE, AND
  RODENTICIDE ACT
  Mr. MANSFIELD. Mr. President, I
ask unanimous consent that the Senate
                          [p. 2077]
proceed to the consideration of  Calen-
dar No. 551, S. 1605.
  The PRESIDING  OFFICER.  The
bill will be stated by title.
  The LEGISLATIVE CLERK. A bill (S.
1605) to amend the Federal Insecticide,
Fungicide,  and  Rodentieide Act,  to
provide for labeling  of economic poi-
sons  with  registration numbers,  to
eliminate registration  under protest,
and for other purposes.
  The PRESIDING  OFFICER.  Is
there objection to  the  request  of the
Senator from Montana?
  There being no objection, the  Senate
proceeded to  consider the bill, which
 had been reported from the Committee
 on Agriculture and Forestry with an
 amendment to strike out all after the
 enacting clause and insert:
 That section 2.z.(2) (b) of the Federal Insecti-
 cide, Fungicide, and Rodentieide Act (61 Stat.
 163, as amended, 7 U.S.C., 1968 ed., Supp. Ill,
 135(z)  (2) (b) ) is hereby amended by inserting
 before the semicolon at the end thereof the fol-
 lowing phrase:  "other  than the registration
 number assigned to the economic poison".
   SEC.  2. Section 3 of said Act (61 Stat. 166; 7
 U.S.C.  135a) is hereby amended by deleting the
 word "and" at the end of section 3.a.(2) (b), de-
 leting the period at the end of section 3.a.(2) (c)
 and inserting in lieu  thereof a semicolon and
 the word "and", and adding after section 3.a.(2)
 (c), a new provision reading as follows: "(d),
 when required by regulation of the Secretary to
 effectuate the purposes of this Act, the registra-
 tion number assigned  to the article under this
 Act.".
   SEC.  3. Section 4 of  said Act (61 Stat. 167; 7
 U.S.C. 135b) is hereby amended by changing
 the word "registrant" wherever  it  appears in
 subsection a. and in the first sentence of sub-
 section c. to "applicant for registration" and

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STATUTES AND LEGISLATIVE HISTORY
                                         241
by deleting: the remainder of  subsection c.  and
inserting in lieu thereof the following:
"If, upon receipt of such notice, the applicant
for registration does not  make the corrections,
the Secretary shall refuse  to register the article.
The Secretary, in accordance with the proce-
dures  specified herein, may suspend or cancel
the registration of an economic poison when-
ever it does not appear that  the article or its
labeling or other material required to be sub-
mitted complies with the provisions of this Act.
Whenever the Secretary refuses registration of
an economic poison or determines  that regis-
tration of an economic poison should  be  can-
celed,  he shall notify the applicant for registra-
tion or  the registrant of his action  and  the
reasons therefor.  Whenever an application for
registration is refused, the applicant, within
thirty days after service  of notice of such re-
fusal,  may file a petition requesting that  the
matter be referred to an advisory committee or
file objections and request a public hearing in
accordance with this section.  A cancellation of
registration sha]] be effective  thirty days after
service of  the foregoing  notice unless within
such time the registrant  (1)  makes the neces-
sary corrections;  (2) files a petition requesting
that the matter be referred to an advisory com-
mittee; or (3) files objections and requests  a.
public  hearing.  The  Secretary, on  his  own
motion, may at any time refer such a matter to
an advisory committee. Each  advisory  commit-
tee shall  be composed of experts,  qualified in
the subject matter and of  adequately diversified
professional background  selected  by  the  Na-
tional  Academy of Sciences and shall include
one or more  representatives  from  land-grant
colleges.  The  size  of  the committee shall be
determined by the  Secretary.  Members of an
advisory committee shall  receive as compensa-
tion for their services a  reasonable per diem,
which  the Secretary shall by  rules  and regula-
tions prescribe, for time  actually  spent in  the
work of the committee, and shall in  addition be
reimbursed for their necessary traveling  and
subsistence  expenses  while  so serving  away
from their places of residence,  all of which costs
may be assessed against  the petitioner, unless
the matter was referred  to the advisory com-
mittee upon the motion of  the Secretary without
a  petition. The members shall  not be subject to
any other provisions of law regarding the  ap-
pointment and compensation  of employees of
the United States. The Secretary shall furnish
the committee with adequate clerical and other
assistance,  and shall by rules and  regulations
prescribe the procedures to be followed by the
committee. The Secretary  shall forthwith  sub-
mit to such committee the application for regis-
tration of  the article and all relevant data
before him. The petitioner, as  well as repre-
sentatives of the United States Department of
Agriculture, shall have the right to consult with
the advisory committee. As soon as  practicable
after any  such submission, but not later than
sixty days  thereafter,  unless  extended by the
Secretary for an additional sixty days, the com-
mittee  shall, after independent  study of the
data  submitted  by the Secretary  and  all  other
pertinent information available to it,  submit a
report and recommendation to the Secretary as
to the registration of the article,  together with
all underlying data and a statement of the rea-
sons  or basis for  the  recommendations.  After
due consideration of the views of the committee
and all  other data before him, the Secretary
shall, within ninety days  after receipt of the
report  and  recommendations  of the  advisory
committee,  make his  determination and   issue
an order, with findings  of fact, with respect to
registration of the article and notify the  appli-
cant  for registration or registrant.  The  appli-
cant for registration, or registrant, may, within
sixty days from the date  of the order of the
Secretary, file objections thereto and request a
public hearing thereon.  In  the event a hearing
is requested, the Secretary shall,  after due no-
tice, hold such public hearing for the purpose of
receiving evidence relevant and material to the
issues raised by  such  objections.  Any report,
recommendations, underlying data, and reasons
certified to  the  Secretary by an advisory  com-
mittee shall be made a part of the record of the
hearing, if relevant and material, subject  to the
provisions of section 7{c) of the Administrative
Procedure Act (5 U.S.C. 1006 (c) ). The National
Academy of  Sciences shall  designate a member
of the advisory committee to appear  and testify
at any  such  hearing with  respect to the report
and recommendations  of such committee upon
request of the Secretary, the petitioner, or the
officer conducting the hearing: Provided,  That
this shall not preclude any other member of the
advisory committee from appearing and  testi-
fying at such hearing.  As  soon as practicable
after completion of the hearing, the Secretary
shall  evaluate the data and reports before him,
act upon such  objections  and issue an  order
granting, denying,  or  canceling  the  registra-
tion.  Such order  shall  be  based  only on sub-
stantial evidence of record  at such hearing, in-
cluding  any report,  recommendations, under-
lying data, and reason certified to the Secretary
by an advisory  committee,  and shall set  forth
detailed findings of fact upon which the  order
is based.  In connection with  consideration  of
any registration  or application for registration
under this section, the  Secretary  may consult
with any other Federal agency. Notwithstanding
the provisions of  section   3.c. (4), information
relative  to  formulas of products  acquired  by
authority of this section may be revealed,  when
necessary under  this  section, to  an  advisory
committee, or to any Federal agency consulted,
or at a public hearing, or in findings of fact
issued by the Secretary. Notwithstanding any
other provision  of this section, the Secretary
may,  when  he finds that such action  is  neces-
sary  to prevent  an  imminent hazard to  the
public, by order,  suspend the registration  of  an

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242
LEGAL COMPILATION—PESTICIDES
economic poison immediately. In such case,  he
shall give the registrant prompt notice of such
action and afford the registrant the opportunity
to have the matter  submitted to an advisory
committee and for an expedited hearing under
this section. Final orders of the Secretary under
this section shall be  subject to judicial  review,
in accordance "with the provisions of subsection
d. In no event shall registration of an article be
construed as a defense for the commission of any
offense prohibited under section  3 of this Act."
  SEC. 4. Section 4 of said Act (61 Stat. 167: 7
U.S.C.  135b) is hereby further amended by re-
designating subsections d. and e. as subsections
e. and  f., and by adding  a  new subsection  d.,
as follows:

  "d. In a case of actual controversy as to the
validity of  any order under thia section, any
person  who will be adversely affected by such
order may  obtain judicial review by filing in
the United  States court of appeals for the cir-
cuit wherein  such person resides  or has his
principal place of business, or  in the "United
States  Court  of Appeals for the District  of
Columbia Circuit, within  sixty  days after the
entry of such  order, a petition praying that the
order be  set aside in whole or in part.  A copy
of the petition shall be forthwith transmitted by
the clerk of the court to the Secretary, or any
officer designated by  him for that purpose, and
thereupon the Secretary  shall file in the court
the record  of  the proceedings  on  which  he
based his order, as provided in section  2112 of
title 28, United States Code. Upon the filing of
such petition, the court  shall  have exclusive
jurisdiction to affirm or set aside the  order com-
plained of in  whole or in part. The  findings of
the Secretary with respect to questions of fact
shall be sustained if supported by  substantial
evidence  when  considered on the record as a
whole,  including any report and recommenda-
tion of an advisory committee. If application is
made to the court for leave to adduce additional
evidence, the  court may order such additional
evidence  to be taken before the Secretary, and
to be adduced upon the hearing in such manner
and upon such  terms and conditions as to the
court may seem proper, if such evidence is ma-
terial  and  there were reasonable grounds for
failure to adduce such evidence  in the proceed-
ings below.  The  Secretary may  modify  his
findings as to the facts and order by reason of
the additional evidence so taken, and shall file
with the court such modified findings and order.
The judgment of the court affirming or setting
aside, in whole or in part, any order under this
section shall be final, subject to review by the
Supreme Court of the United States upon cer-
tiorari or certification as provided  in section
1254 of title 13 of the United States Code. The
commencement of proceedings under this sec-
tion shall not, unless specifically ordered by the
court to the contrary,  operate as a  stay of an
order.  The court shall advance on  the docket
 and expedite the disposition of all causes filed
 therein pursuant to this section."
   SEC.  5. The first sentence of section  8.b.  of
 said Act (61 Stat. 170; 7 U.S.C.  135f.(b) ) is
 hereby amended by deleting that part beginning
 with the second proviso therein down to,  but not
 including, the period at the end thereof.
   SEC.  6. Section 3,a. (1)  and section  9.a. (1)
 (b) of said  Act (61 Stat. 166, 170; 7  U.S.C.
 135a.(a)(l),  135g.(a) (1) fb)  are hereby  amen-
 ded by changing  the phrase "has not been reg-
 istered" wherever it  appears therein, to read
 "is not registered."
   SEC.  7. This  Act and the amendments made
 hereby shall  become effective upon enactment,
                                 [p.  2078]
 and all existing registrations  under  protest
 issued under said Federal Insecticide, Fungicide,
 and Rodenticide Act shall  thereupon terminate.
    Mr. ELLENDER.  Mr.  President,
 the bill was reported unanimously by
 the  Committee  on  Agriculture  and
 Forestry. There was no objection from
 the producers of insecticides or from
 farm organizations.
    This bill makes two changes  in the
 Federal  Insecticide,   Fungicide,  and
 Rodenticide Act. The first change deals
 with registration of  economic poisons
 under protest. The  bill  repeals the
 existing provision permitting such reg-
 istration. In  the future an economic
 poison would have to  be determined to
 be in  compliance  with  the  act  or  it
 could not be registered and marketed
 in interstate commerce.
    The second change  deals with  show-
 ing  the registration number of  an
 economic poison on its label. At pres-
 ent an economic  poison is  considered
 misbranded if its label gives the slight-
 est  intimation  that  the product has
 been registered under the act. The bill
 would permit the registration number
 to be shown  on the label;  and,  if the
 Secretary  of  Agriculture  should  so
 prescribe by regulation, the  registra-
 tion  number would be required  to  be
 shown on the label.
    The Federal  Insecticide,  Fungicide,
 and  Rodenticide  Act  is  designed  to
 assure the public of safe and effective
 pesticides, or,  as the act describes them,
 "economic poisons." Economic poisons
 are defined  to  include such  prepara-
 tions  as insecticides,  herbicides,  plant

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STATUTES AND LEGISLATIVE HISTORY
                                243
regulators, defoliants, desiccants, and
similar products. The act requires that
they be honestly labeled,  not adulter-
ated,  and meet various other require-
ments.
  All economic poisons are required to
be  registered with  the  Secretary of
Agriculture,  and the Secretary at the
time of registration makes a determi-
nation as to  whether the product, its
label, and the other materials required
to be submitted at the time of registra-
tion comply with the requirements of
the act.  If the  Secretary determines
that the product and the label do not
comply with  the requirements of the
act, he so advises the applicant for
registration.
  Under the existing law the regis-
trant then has  two  alternatives. He
may elect not to market  the product,
or he may request that the product be
registered under protest. If the product
actually does not comply with the act's
requirements, registration   does  not
protect the registrant from  penalties
and from seizure of the product. The
applicant who registers under protest,
having been advised that the Secretary
considers his  product as not complying
with the act, may expect prosecution
or seizure of his product when he begins
marketing  it in interstate commerce.
In  the  case  of such  prosecution or
seizure, the burden of proof rests upon
the Government to  prove  that  the
product does  not comply with the act.
There have been  very few  products
registered under protest, but protest
registration does leave the door  open
to the marketing of a product which
might be extremely  dangerous to the
public.
  The bill therefore repeals the provis-
ion for registration  under protest. If
the product does not comply with the
terms of the act it cannot be regis-
tered; and if it is  not  registered it
cannot be marketed without being sub-
ject to  the penalty  and  seizure  pro-
visions of the law. No further showing
that it is misbranded, adulterated, or
otherwise in violation  of the act is
necessary. The burden of proof is with
the applicant at the time of registra-
tion to show that the product complies
with the act.
  At present registration under pro-
test provides a means by which  an
applicant for registration may appeal
from a  decision of the Secretary with
which he disagrees. However, in order
to take this appeal, he  must take ac-
tions which subject him to penalties,
the product to seizure, and the public
to possible danger  if the  Secretary's
determination  should  prove  to  be
correct.
  In  lieu of  this unsatisfactory type
of appeal, the bill provides for admin-
istrative and judicial  appeals. An ap-
plicant  or registrant who disagrees
with the Secretary's determination to
refuse or cancel registration may re-
quest that the matter be referred to an
advisory committee which would con-
sider the matter and make recommen-
dations  which the  Secretary  could
follow or not as he saw fit. The bill also
permits the applicant or registrant to
file objections and request public hear-
ings,  either after the Secretary has
received and acted  upon the advisory
committee's recommendations, or with-
out having gone through the advisory
committee  procedure.  The hearing
would be followed by a final order of
the Secretary, which would then  be
subject to judicial review.
  The bill therefore  provides  better
procedures to protect  the applicant or
registrant from  any  arbitrary deter-
mination by the Secretary of Agricul-
ture than  does the existing law.  In
order that  these  appeal  procedures
may not cause delays in cases where
the public  might be  endangered,  the
bill provides  for suspension of regis-
tration  immediately  if necessary  to
prevent imminent hazards to the public.
Such  suspension  could then be fol-
lowed by the various appeal procedures.
  At  present the law  prohibits  the
label  from showing that  the product

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244
LEGAL COMPILATION—PESTICIDES
has been registered under the act. This
information would be useful to a pro-
spective user of the product, since it
provides some assurance that the Sec-
retary has  investigated the product
and that it is properly labeled. If  the
product is to be used in the production
of agricultural commodities, the fact
that it  has been registered  provides
some  assurance that if  the directions
on the label are followed, the commodi-
ties produced will  meet the require-
ments of the Federal Food, Drug, and
Cosmetic Act insofar as possible resi-
dues of this particular poison are con-
cerned.  The bill therefore permits  the
label  to show the product's registra-
tion number; and  requires  it to be
shown if the Secretary  should so pre-
scribe.
  The committee held hearings on this
bill, and all witnesses favored  its  ob-
jectives. The committee  amendment
modifies the bill only to the extent of
including a number of technical and
procedural suggestions of the industry
and the Department of Agriculture.
  Mr. RIBICOFF.  Mr. President, will
the Senator from Louisiana yield?
  Mr. ELLENDER. I yield.
  Mr. RIBICOFF. On  behalf  of  the
subcommittee, I express our gratitude
to the Senator from Louisiana and the
members of his committee for report-
ing the measure.
  The  Senator from  Kansas  [Mr.
PEARSON] , the Senator from New York
 [Mr.  JAVITS], the Senator from Rhode
Island [Mr. PELL] ,  and I held hearings
on the bill. The hearings disclosed the
loophole which is sought to be closed
by the bill. It is most important for the
health and welfare of the people.
  Mr. GORE. Mr.  President, will the
Senator from Connecticut yield?
  Mr. RIBICOFF. I yield.
   Mr.  GORE. Does the  bill relate
strictly to  labeling,  numbering,  and
identification; or  does  it go further
and propose,  as I  hope would be the
case,  a genuine study of the possible
 health hazards involved in the use of
 insecticides?
   Mr. RIBICOFF. The subcommittee
 conducted long and careful hearings
 on the subject.  As we discovered  a
 particular loophole, we made recom-
 mendations to the  appropriate  com-
 mittee.
   The first thing we discovered  was
 that certain pesticides  were  being
 placed on the market after they had
 been rejected by the Secretary of Agri-
 culture, merely by the filing of a  pro-
 test registration. This was a bad loop-
 hole in  the  law, because  it allowed
 toxic pesticides  to  be  placed on the
 market. We therefore called the atten-
 tion of the Committee on  Agriculture
 to this situation.
   The bill would close  such loopholes,
 so that if a pesticide is declared to be
 unsafe,  the manufacturer will not be
 able to market it merely by filing a pro-
 test registration.
   Mr. GORE. As I understand, the bill
 is partially  the  result of a thorough
 study which  the committee has made.
   Mr. RIBICOFF. That is correct. We
 shall continue to investigate thorough-
 ly every phase of the problem. As we
 reach our conclusions,  we will  from
 time to  time make  recommendations
 to Congress.  This bill is one of the re-
 sults of our study. But this measure is
 of such  clear importance  and  solves
 such a specific problem that it is well
 we act on it promptly. I hope the House
 of Representatives will complete action
 at an early date.
   Mr. President, a quarter of a cen-
 tury ago there  were fewer  than six
 primary chemicals available for use as
 pesticides. Today over 50,000 formula-
 tions based on more than 500 individual
 chemical  compounds  are registered
 with the Department of Agriculture.
   In this wide range of complex prod-
 ucts—many  with similar properties
 but  each one differing from the other
 in some important aspect—there is in-
 cluded a great  variety  of toxicants.
 They vary from insecticides for corn

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STATUTES AND LEGISLATIVE HISTORY
                                 245
borers  to  repellants  for mosquitoes,
from nematocides  for tobacco to  ant
and cockroach killers, from herbicides
for lawns  to killers of rats  and mice,
                           [p. 20079]
from fungicides for wood to insecti-
cides for malaria mosquitoes.
   The  United  States produces and
uses more  of these products than any
other nation. And the trend is continu-
ing upward. In 1954 over 400 million
pounds of  synthetic organic  pesticides
valued at something over $150 million
were produced. Preliminary 1962  fig-
ures  show production exceeding  700
million pounds valued  at over $400
million. By 1975 it is  estimated  pesti-
cide sales  alone will reach the $2  bil-
lion mark.
   Despite  the  huge increase in these
materials since the end of World War
II there has been no basic revision of
the pesticide regulation laws adminis-
tered by U.S. Department of Agricul-
ture since that time.
   According to  the Director of  the
Pesticides  Regulation Division of  the
Department of Agriculture, the 1947
act—known as the Federal Insecticide,
Fungicide,  and  Rodenticide  Act—is
"basically  a labeling  law which pro-
tects the public by requiring that  the
label be adequate to protect the public,
when followed." The  key protective
feature of the law—as pointed  out
frequently  by Department  of  Agri-
culture officials over  the years—was
that all pesticides were required to be
registered  with the Secretary of  Agri-
culture before they could be  sold  in
interstate  commerce. Registration, we
have been told, meant that the product
was effective  and safe when used  as
directed.
   Yet despite such assurance there ex-
isted from  the  beginning a loophole in
the  law.   Secretary  of   Agriculture
Freeman  described this gap  to our
Subcommittee  on Reorganization last
May during our hearing on the use of
pesticides as follows:
  One provision of the Insecticide, Fungicide,
and Rodenticide Act, in our opinion,  subjects
the public to danger. If the Department denies
registration,  the law now permits a manufac-
turer to  register his product "under protest."
The product can then be sold to the public until
we are able to develop performance and toxicity
records and take legal action to remove it from
the market.
  This is a loophole in the law that should be
closed. We believe the act should be amended
to do  away  with the provision  that  permits
registration "under protest," and our recom-
mendations to this effect are now under con-
sideration in the executive branch.
  Actually these recommendations had
been under consideration—we learned
—since 1960 but action in the  execu-
tive branch was slow.  Instead of wait-
ing for further consideration, I intro-
duced along  with Senators PEARSON,
PELL, and JAVITS the bill now before us.
  There was no need  to wait for fur-
ther consideration. The facts were ob-
vious and the need was clear.
  Over Government objection and de-
spite doubts as to a product's safety or
effectiveness, a manufacturer could, if
he chose, market his  product "under
protest" and  the registration would be
considered perfectly valid—with noth-
ing on the label to differentiate it from
other products properly registered. For
4  years this problem has remained
unresolved. That is  why I  introduced
S. 1605 4 days after  Secretary Free-
man's testimony.
  This bill closes a loophole that posed
a  constant threat to  the  health  and
safety of the American people. Any
product  could be sold to  the  public
even though  evidence of its safety was
completely lacking. This bill ends that
possibility once and for all.
  Fortunately, we have been able  to
avoid a national  tragedy  while  this
gap in consumer protection remained
in the law. Only a very few products,
out of the  thousands registered, have
been protest-registered over the past
16 years. Even these  have been too
many and it is time to close the gap.
  Despite our relatively good fortune
in the past,  the danger of an unsafe
product  coming on the market is al-

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246
LEGAL COMPILATION—PESTICIDES
ways with us under existing law. Let
me give you a few examples of what
I mean.
  A number of manufacturers have
submitted for registration under  the
Federal  Insecticide,  Fungicide,  and
Rodenticide Act labeling for chlordane
aerosol formulations for household use.
These  were intended  for use in  con-
trolling various household  pests, in-
cluding flies and  mosquitoes.  Regis-
tration was refused for products bear-
ing directions  for use which would
result  in an aerosol dispersal of chlor-
dane. USDA pharmacologists did not
consider such  a  use to be safe. Their
judgment was based  partly on  the
findings of the Food and Drug Admin-
istration, which showed that chlordane
formulations in some cases could pro-
duce  skin  and  eye irritation.  Since
aerosol uses risk contact of the spray
with skin and eyes, such usage could
not be accepted and registration was
refused. The  Public   Health Service
was asked to  review  this matter and
endorsed the decision.
   On a number of occasions registra-
tion of floor waxes containing dieldrin
has  been  requested.  Such  products
were  intended for use in controlling
various household insects. USDA phar-
macologists did  not consider complete
floor coverage with such  waxes to be
safe,   and  refused to register them.
Dieldrin formulas for household use
required directions which would not
exceed the patterns set forth in USDA
interpretation  19. It was  concluded
that  no directions could  be written
which would meet the requirements of
this interpretation, and still  provide a
useful floor wax.
   USDA was  asked  by  one firm to
consider registration  of  a parathion
formulation for use in rodent control.
Another firm asked USDA about the
 possibility of  obtaining registration
for a  parathion product for household
 use, and for the  control of fleas -and
 other  pet insect parasites. These firms
 were informed that such uses were un-
 acceptable due to the high toxicity of
 parathion. USDA toxicological experi-
 ence and the scientific literature indi-
 cated that such use would be hazardous
 and would risk  injury or death. Since
 there was much more than a "reason-
 able doubt"  as to the propriety of the
 use, registration was denied.
   As a result of cases of methemoglob-
 inemia reported in premature infants
 on whom diapers treated with disin-
 fectants  containing  TCC were  used,
 USDA reviewed the registration status
 of all  formulations  containing  this
 compound. Registration was canceled
 on several products  where  directions
 for  use  involved  industrial laundry
 soaps wherein the treated diapers or
 clothing could likely be autoclaved in
 routine hospital practice. Due to this
 action, all such products were removed
 from use.  This  specific  action  was
 taken,  since  detailed  studies  have
 proved  that TCC was capable of de-
 composition, and  diapers were able to
 absorb the breakdown products in hos-
 pital autoclaves.  In  addition, USDA
 required manufacturers to place on the
 labels  of certain  laundry  products
 warnings against boiling or autoclav-
 ing.
   Each of these 4 products could be on
 the market today under protest regis-
 tration.  Only after  accumulation of
 considerable evidence  could USDA
 move against them  and cause their
 removal. The public,  in the meantime,
 would  serve as guinea pig.  This  bill
 makes sure  that such a possibility will
 not happen.
   The policy of this Nation should al-
 ways be that a  pesticide should  not
 come on the market until  adequate
 proof  of safety has  been established
 and it should not be left for the public
 to play the role of  guinea pig while
 the true facts of toxicity are brought
 out. Today,  it is possible under the law
 to subject the public to that role when
 the  Government  is not satisfied  with
 the  manufacturer's  proof  of safety
 and yet lacks definite evidence of lack

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STATUTES AND LEGISLATIVE HISTORY
                                247
of safety. That grey area must be de-
cided  in favor  of  the public—the
consumer.
  Protest registration was supposedly
a technique  to force  a  court review
whenever the manufacturer  and the
Government  disagreed on the safety
or effectiveness of the product in ques-
tion. The proposed legislation rejects
this archaic concept of consumer pro-
tection and substitutes a system under
which both the public's interest and a
manufacturer's  rights  are  protected.
And this protection  runs  from  the
initial  decision, through  an advisory
committee, through a  hearing on the
record, through judicial review.
  In addition, the legislation  requires
that every pesticide formulation carry
its  official registration number on the
label. In this way  the public will  be
able to tell at a glance that the product
on the shelf has satisfied the  require-
ments of Federal law as to its effective-
ness and safety when used according
to the directions on the label.
  This legislation is recommended  by
the President's Science Advisory Com-
mittee.  It has been endorsed by the
heads of the  various affected  Federal
agencies,  the  regulated industry and
by every witness to appear before our
Senate subcommittee now studying the
problem of the use of pesticides. I urge
its adoption.
  Mr.  PEARSON.  Mr.  President,  I
should like to join  the Senator from
Connecticut in expressing appreciation
to the Senator from Louisiana for re-
porting the bill.  The measure is the
direct result  of the work of the sub-
committee in  dealing with pesticides.
I believe it carries the endorsement of
                          [p. 20080]
the appropriate authorities and agen-
cies of the Government. It will be  of
public service.
  Mr. YOUNG of North Dakota. Mr.
President, I commend the distinguished
Senator  from Connecticut,  who  is  a
former  Secretary  of Health, Educa-
tion, and Welfare,  for doing a  vast
amount of work in this field. The Amer-
ican public is deeply concerned  about
the use of insecticides and pesticides.
The bill is a step in the right direction.
  The Department of Agriculture has
concerned itself with this problem. In
my own State a $2 million Federal re-
search laboratory is now being  com-
pleted to conduct work in this field
alone. More should be done.
  Mr. JAVITS. Mr. President, S. 1605
is important  not only from the stand-
point of eliminating the evils and dan-
gers of pesticides; it is very important
that  pesticides  shall continue  to be
used. That was the emphasis  of the
testimony  of experts who  have ap-
peared before the subcommittee.  The
danger was  that our  food supplies
would be materially affected if we sud-
denly wiped out the use of insecticides
and pesticides by impossible regula-
tions. Therefore, it is doubly important
that the Senate understand  that the
purpose of the bill is not only to pre-
vent the evils which the Senator has
suggested,  but also  to ensure legiti-
mate and constructive uses of insecti-
cides and pesticides in connection with
our food supply.
  Mr. RIBICOFF. The Senator  from
New York is  correct.
  Mr. PELL.  Mr.  President,  I am
happy to add my  full support to the
bill  proposed  by the  distinguished
Senator  from Connecticut to plug a
dangerous  loophole  in  our  pesticide
registration laws.
  This bill would simply make it more
difficult for manufacturers to market
products which should not be sold to
the public, but which under existing
law could conceivably come  into the
hands of unsuspecting buyers.
  As things  now  stand, a  manufac-
turer can insist on securing a "protest
registration" even though the Depart-
ment of Agriculture has raised doubts
as to the safety and effectiveness of
his  product. I am informed that  most
manufacturers actually  comply  with
the Department's suggestions, but that

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248
LEGAL COMPILATION—PESTICIDES
a small number—1 in every 2,280 reg-
istrations now granted—insist on mar-
keting their products under the protest
registrations.
  This is of course a very small area
of risk, but it is a significant one when
chemicals  and public  health are  in-
volved.   Clearly,   we  must  take  no
chances.  S. 1605 solves the problem by
establishing  new and more  rigorous
procedures for registration,  and for
this reason,  I  urge that it be adopted
by the Senate today.
  The PRESIDING  OFFICER.  The
 question is on agreeing  to the  com-
 mittee amendment.
   The amendment was agreed to.
   The  PRESIDING OFFICER.  The
 bill is open to further amendment.  If
 there be no further amendment to be
 proposed, the  question is on the en-
 grossment and  third  reading  of the
 bill.
   The  bill  (S. 1605)  was  ordered  to
 be engrossed for a third reading, was
 read the third  time, and passed.
                               [p. 20081]
l.lg  (3)  (b)    Vol. 110  (1964),  Feb.  17:  Considered and passed
House, amended, pp. 2947-2950
  REGISTRATION OF PESTICIDE
             CHEMICALS
   The Clerk called the bill  (H.R. 9739)
to amend the Federal Insecticide, Fun-
gicide, and Rodenticide Act, as amend-
ed, to provide for labeling of economic
poisons with registration  numbers, to
eliminate  registration under protest,
and for other purposes.
   There being no objection, the Clerk
read the bill as follows:
  Be  it enacted by the Senate and House of
Representatives of the United States of America
in Congress assembled, That section 2.z(2) (b)
of the Federal Insecticide, Fungicide, and Ro-
denticide Act (61 Stat. 163 as amended, 7 U.S.C.,
1958  ed.,  Supp III, 135(z)(2)(b) ) is  hereby
amended by  inserting before  the semicolon at
the end thereof the following phrase:  "other
than  the registration number assigned  to the
economic poison".
  SEC. 2. Section 3 of said Act (61 Stat. 166 ;  1
U.S.C. 135a) is hereby amended by deleting the
word  "and" at the end of section 3.a.(2) (b), de-
leting the period at the end of section 3.a.(2) (c)
and inserting in  lieu thereof a semicolon and
the word "and",  and adding  after  section
3.a.(2)(c), a new provision reading as follows:
"(d)  when required by regulation of the Secre-
tary to effectuate the purposes of this Act, the
registration  number  assigned  to  the  article
under this Act."
  SEC. 3. Section 4 of said Act (61 Stat. 167;  7
U.S.C.  135b)  is hereby amended by  changing
the word  "registrant" wherever it appears in
subsection a.  and  in the first sentence  of sub-
section c. to  "applicant for  registration" and
by deleting the remainder of subsection c. and
inserting in lieu thereof the following:
"If, upon receipt  of such  notice, the applicant
 for registration does not make the corrections,
 the Secretary shall refuse to register the article.
 The Secretary, in accordance with the  proce-
 dures specified herein,  may suspend or  cancel
 the registration of an  economic poison  when-
 ever it does not appear that.the article or its
 labeling or other material required to be  sub-
 mitted complies with the provisions of this  Act.
 Whenever the Secretary refuses registration of
 an economic poison or determines that registra-
 tion of an economic poison should be canceled, he
 shall notify the applicant for registration or the
 registrant of his action and the reasons therefor.
 Whenever an  application for registration  is
 refused, the applicant, within thirty days after
 service of notice  of such refusal, may file a
 petition requesting that the matter be referred
 to an advisory committee or file objections and
 request a public hearing in accordance with this
                                [p. 2947]
 section.  A cancellation of  registration shall be
 effective thirty days after service of  the fore-
 going notice unless within such time the regis-
 trant (1) makes the necessary corrections: (2)
 files a petition requesting that the matter be
 referred to an advisory committee; or (3)  files
 objections and requests a public hearing. Each
 advisory committee shall  be  composed  of ex-
 perts, qualified in the subject matter and of
 adequately diversified professional background
 selected by the National  Academy of Sciences
 and shall include one  or  more representatives
 from land-grant  colleges.  The size of the com-
 mittee shall be determined by the  Secretary.
 Members of an advisory committee shall  receive
 as compensation for their services a reasonable
 per  diem, which the Secretary shall by rules
 and regulations  prescribe, for time actually
 spent in the work of the committee, and shall in
 addition be  reimbursed   for  their  necessary
 traveling  and subsistence expenses  while  so
 serving away from their places of residence, all

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STATUTES AND LEGISLATIVE HISTORY
                                         249
of  which  costs  may  be  assessed  against  the
petitioner, unless the  committee  shall recom-
mend  in favor  of the  petitioner or unless  the
matter was referred to the advisory committee
by  the Secretary.  The members  shall not  be
subject to any other provisions of law regarding
the appointment and compensation of employees
of the United States.  The Secretary shall fur-
nish the committee  with adequate clerical and
other assistance, and shall by rules and regula-
tions prescribe the procedures to be followed  by
the  committee.  The Secretary  shall forthwith
submit to  such  committee the application  for
registration of the article and all relevant data
before him.  The petitioner, as  well as repre-
sentatives  of the United States  Department  of
Agriculture, shall have the right to consult with
the advisory committee. As soon as practicable
after any  such  submission, but  not later than
sixty days thereafter,  unless  extended by  the
Secretary for an additional sixty days, the com-
mittee  shall,  after  independent study of the
data submitted  by the  Secretary and  all  other
pertinent information available  to  it,  submit a
report and recommendation to the Secretary  as
to the registration of the article, together with
all underlying data  and a statement of the rea-
sons or basis for the  recommendations. After
due consideration of the views of the committee
and  all other data  before him, the Secretary
shall,  within ninety days after receipt of the
report and recommendations  of  the  advisory
committee, make his  determination  and  issue
an order, with findings of fact, with respect to
registration of the article and notify the appli-
cant for registration or  registrant. The appli-
cant for registration, or registrant, may, within
sixty days from the date of the  order of the
Secretary,  file objections thereto and request a
public  hearing  thereon. In the event a hearing
is requested,  the  Secretary  shall, after due
notice, hold such public hearing for the purpose
of receiving  evidence relevant and material  to
the issues raised by such objections. Any report,
recommendations, underlying  data,  and reasons
certified  to the  Secretary  by  an advisory com-
mittee shall be made a part of the  record of the
hearing, if relevant and  material, subject  to
the provisions of section 7(c)  of the Adminis-
trative Procedure Act (5 U.S.C. 1006 (c) ). The
National Academy of Sciences shall designate a
member  of the advisory committee to appear
and testify at any such hearing with respect  to
the report and  recommendations of such com-
mittee upon request of the Secretary,  the peti-
tioner, or  the  officer conducting the  hearing:
Provided, That this shall not preclude any other
member of the advisory committee from appear-
ing and testifying at such hearing. As soon  as
practicable after completion  of the  hearing,
but not later than  ninety days, the  Secretary
shall evaluate the data  and reports before him,
act upon  such  objections and  issue an order
granting, denying, or canceling the registration
or requiring  modification  of the claims or the
labeling.  Such  order shall  be based  only on
substantial  evidence of record at such hearing,
including any report, recommendations,  under-
lying data, and reason certified to the Secretary
by  an advisory committee, and shall set forth
detailed  findings of fact  upon  which the order
is based. In connection  with consideration  of
any registration  or application for registration
under this  section, the  Secretary may consult
with any  other Federal agency or  with an
advisory committee  appointed as  herein  pro-
vided. Notwithstanding the provisions of section
3.c. (4),  information  relative  to  formulas  of
products acquired  by authority of  this section
may  be  revealed,  when  necessary  under this
section,  to  an advisory  committee, or to any
Federal agency consulted, or at a public hearing,
or in findings  of fact issued by the Secretary.
All  data submitted to  the Secretary or to an
advisory committee  in  support  of a petition
under this section  shall be considered confiden-
tial by the Secretary  and by  such  advisory com-
mittee. Notwithstanding any other provision  of
this section, the  Secretary may, when he finds
that such action  is  necessary to prevent an im-
minent hazard to the public, by order, suspend
the registration of  an economic poison immedi-
ately. In such case, he shall  give the registrant
prompt  notice of  such  action and afford the
registrant  the  opportunity to have the matter
submitted to an advisory committee and  for an
expedited  hearing  under this section.   Final
orders of the Secretary under this section shall
be subject to the judicial review,  in accordance
with the provisions of subsection d. In  no event
shall registration of an article be construed as
a defense  for  the  commission of  any offense
prohibited under section 3 of  this  Act."
  SEC. 4. Section 4  of said Act (61  Stat.  167;  7
U.S.C. 135b) is hereby  further  amended by
redesignating subsections d.  and  e. as subsec-
tions e. and f., and by adding a new subsection
d.f as follows:
  "d. In a case of  actual controversy as  to the
validity  of  any order under this  section, any
person who  will  be adversely affected by such
order may obtain judicial review by filing in the
United States court of appeals for  the  circuit
wherein  such person  resides  or has his princi-
pal place of business, or in  the United  States
Court of Appeals for the District of Columbia
Circuit,  within  sixty days after  the entry of
such order, a petition praying that the order be
set  side  in whole  or in  part. A copy of the
petition shall be forthwith transmitted by the
clerk of the court to the  Secretary, or any
officer designated by him for that purpose, and
thereupon the Secretary  shall file in the court
the  record  of  the proceedings on which he
based his order, as provided  in section 2112 of
title 28, United States Code.  Upon the filing of
such  petition the  court  shall have exclusive
jurisdiction  to affirm or set aside the order
complained of in whole or in  part. The findings
of the Secretary with  respect  to  Questions of

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250
LEGAL COMPILATION—PESTICIDES
fact shall be sustained if supported by substan-
tial evidence when considered on the record as
a whole, including any report and recommenda-
tion of an advisory committee. If application is
made to the court for leave to adduce additional
evidence, the court may order such additional
evidence to be taken the Secretary,. and to be
adduced  upon the hearing in such manner  and
upon such terms and conditions as to the court
may seem proper, if such evidence  is material
and there were reasonable grounds for failure
to adduce  such evidence  in the  proceedings
below. The Secretary may modify  his findings
as to the facts and order by reason of the addi-
tional evidence so taken, and shall file with the
court such modified findings and  order.  The
judgment of the court  affirming  or  setting
aside, in whole or in part, any order under  this
section  shall be final, subject to review by the
Supreme Court of the United States upon  cer-
tiorari  or  certification as provided in  section
1254 of title 18 of the United States Code.  The
commencement  of proceedings under this  sec-
tion shall not, unless specifically  ordered by the
court to the contrary, operate as a stay of an
order. The court shall advance  on the docket
and expedite the disposition of all causes filed
therein pursuant to this section."
  SEC. 6. The first sentence of section 8.b. of
said Act (61  Stat. 170 ; 7 U.S.C. 135f.  (b)  ) is
hereby amended by deleting that part beginning
with the second proviso therein down  to,  but
not including, the period at the end thereof.
  SEC. 6. Section 3.a. (1) and section 9.a. (l)(b)
of said Act (61 Stat. 166,  170 ;  7  U.S.C. 136a.
 (a)(l),  135g.(a)(l)(b) are hereby amended by
changing the phrase "has not been registered"
wherever it appears  therein, to read  "is  not
registered".
  SEC.   7.  This Act and  amendments made
 hereby  shall  become effective upon enactment,
and all existing registrations  under  protest
 issued  under said  Federal Insecticide, Fungi-
 cide,  and Rodenticide Act shall  thereupon
terminate.

   Mrs. SULLIVAN.  Mr.  Speaker,  I
 ask unanimous consent to extend  my
 remarks at this point in the RECORD.
   The SPEAKER protempore. Is there
 objection to  the request of the gentle-
 woman from Missouri?
   There was no objection.

   Mrs. SULLIVAN.  Mr.  Speaker,  I
 congratulate the  chairman  and  the
 members of the Committee on Agricul-
 ture for acting on the bill now  before
 us to provide greater protection to the
 public in connection with  the use  and
 handling of dangerous economic pois-
 sons. I was happy to appear before the
 Subcommittee  on  Department  Over-
 sight and Consumer Relations of the
 House  Committee  on Agriculture  on
 Thursday, August 22, 1963, in support
 of this legislation, and I am happy to-
 day to join in urging House approval
 of the  measure. This bill  places the
 burden of proof on industry, to estab-
 lish  that  a  pesticide can safely  be
 marketed before a certificate  of  regis-
 tration can  be issued. At  the present
 time, a manufacturer can insist on the
 right to market a  dangerous  product
 until the Government can present legal
 proof of the product's hazards and un-
 suitability for general use.
    This is an  important  step forward
 in protecting the consumer,  but it  is
 only  one  of  a number  of problems
 which we still must face in connection
 with  pesticides. We have tripled the
 number of inspections by the Food and
 Drug  Administration of shipments  of
 raw agricultural commodities for ille-
 gal pesticides residue, but we are still
 inspecting only 1 percent of such ship-
 ments. Greater care  must  be exercised
 by the farmer in the use of these ter-
 ribly dangerous products, and the Gov-
 ernment must never  relax its vigilance
 in preventing pesticides residue from
 contaminating our food. Just the other
 day we  read of instances of a very
 dangerous pesticide  getting into milk
 supplies. This is intolerable.
    Mr.  Speaker, under unanimous con-
 sent, I submit the testimony I gave  on
                                [p. 2948]
 this legislation on August 22, 1963, as
 follows:
     THE "BURDEN OF PROOF" ON PESTICIDES
  (Statement  by  Representative  LEONOR  K.
    SULLIVAN,   of  Missouri, on legislation  to
    tighten controls over pesticides and economic
    poisons before Subcommittee  on Department
    Oversight and Consumer Relations of House
    Committee on Agriculture, Thursday, August
    22, 1963)
    Chairman  JONES and  members of the sub-
  committee, I am strongly in favor of the legis-
  lation now before you to require industry, rather
 than the Federal Government,  to shoulder  the
 burden of proof in connection with the market-
  ing of pesticides which may be unsafe for  use
  as intended.

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STATUTES AND LEGISLATIVE  HISTORY
                                       251
  This is an old story—an old controversy—as
far as consumers are concerned. It used to be
true in the Food, Drugs and Cosmetic Act that
a doubtful or dangerous chemical additive could
be used in foodstuffs until the Government was
able to prove it unsafe. In 1958, we changed
that, in the Food Additives Act, by placing  on
industry the burden  of  proof to establish  in
advance the safety of  any additive used in food.
  In 1960, we put an  anticancer clause into the
law  affecting coloring  matter used in foods,
drugs or cosmetics. The burden of proof is  on
the manufacturer.  Last year, we  passed  the
far-reaching Drug Control Act so that the con-
sumer would have far greater protections in the
use of new drugs. The burden of proof is on the
manufacturer.
  We still need such a burden of proof shift of
emphasis  in  our laws covering  the safety  of
cosmetics, and  of therapeutic  devices.  I have
introduced omnibus  legislation  carrying  out
these objectives, and I hope we can pass it in
this Congress. As pending before another com-
mittee,  it would  put the burden of proof  of
safety on the manufacturer.
  The  same  principle of burden of  proof is
before this subcommittee now in connection with
pesticides and economic poisons. The pesticides
serve a very important  economic purpose.  In
her tremendously effective book on this  subject,
Rachel Carson made clear that pesticides often
serve a very useful purpose and  that it is  the
improper  or unsafe use  of these poisons  that
she opposes. From the response her book elicited
from residents of my congressional district, and
others  in the St. Louis area, I know that there
is widespread public  concern,  which  I share,
over the pesticides problem.
  Under present law, if the  Department  of
Agriculture refuses to register a product  for
sale because it  is not convinced the product is
safe or effective, the  manufacturer can never-
theless utilize a loophole in the law to place the
product on sale anyway, and  for an extended
period, until the Department can then  provide
proof of the product's shortcomings. This takes
extensive  research and,  more  importantly,  it
takes time. In the meantime, great damage can
be done to the  unwary consumer or to public
health and safety.
  We used to have the same  problem  in con-
nection  with food  additives  and  non-coal-tar
color additives ; we still, as I  said earlier, have
it in  cosmetics  and therapeutic devices.  The
burden of proof of safety should  always be on
the manufacturer.  These economic poisons are
seldom innocuous. They can often kill humans
as well as insects. They can contaminate water
supplies and meat and vegetable supplies. They
must be treated with  the respect their danger
justifies.  We must close any  loopholes  in the
law which permit  manufacturers to  market
products  they cannot  prove are safe in  use  in
the manner  intended. The burden  of proof
 should  not rest  on the Government, because
 great damage can be done during the period the
 Government is developing the data necessary to
 remove a  product  which should not be  mar-
 keted.
   I  support  this legislation  and urge its ap-
 proval.

   The bill was ordered to be engrossed
 and read a  third  time, was read the
 third time, and passed, and  a motion
 to reconsider  was  laid on the table.
   Mr. ROSENTHAL.  Mr. Speaker,  I
 ask unanimous  consent for the imme-
 diate  consideration  of   the   bill  (S.
 1605)  to amend the Federal Insecti-
 cide,  Fungicide, and Rodenticide Act,
 as amended, to provide  for labeling of
 economic  poisons   with   registration
 numbers, to eliminate  registration un-
 der protest, and for other purposes.
   There  being no objection, the Clerk
 read the bill, as follows:
   Be it enacted  by  the  Senate and House of
 Representatives of the United States of America
 in Congress assembled, That section 2z. (2) (b)of
 the Federal Insecticide, Fungicide, and Rodenti-
 cide Act (61  Stat.  163, as  amended, 7 U.S.C.,
 1958 ed.,   Supp,  III,  135(z)(2)(b)   is hereby
 amended by inserting before the semicolon at
 the end thereof the following  phrase:  "other
 than the registration number  assigned  to the
 economic poison".
  SEC.  2. Section  3 of said Act  (61  Stat. 166 ;  7
 U.S.C. 135a) is  hereby amended by deleting the
 word "and" at the end  of  section  3.a.(2)(b),
 deleting the period at the end of section 3.a.(2)
 (c) and inserting in lieu thereof a semicolon
 and  the word "and", and adding after section
 3.a.(2)(c),  a new provision  reading  as follows:
 "(d), when required by regulation  of the Sec-
 retary  to  effectuate the  purposes of this  Act,
 the registration number assigned to the article
 under this Act.".
  SEC.  3. Section 4 of said Act (61 Stat. 167;  7
 U.S.C.  135b)  is  hereby amended by changing
 the word "registrant"  wherever it  appears in
 subsection  a.  and in the first sentence of  sub-
 section c.  to  "applicant  for registration" and
 by deleting the  remainder of subsection c. and
 inserting in  lieu thereof the  following:  "If,
 upon receipt  of such notice,  the applicant for
 registration does not  make the  corrections,
 the  Secretary  shall  refuse  to  register  the
 article. The Secretary,  in accordance with the
procedures  specified herein,  may  suspend or
 cancel  the  registration of an economic poison
 whenever  it does not appear that  the article
 or its  labeling  or other material  required to
be submitted  complies  with the provisions of
this  Act,   Whenever  the  Secretary  refuses

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252
LEGAL  COMPILATION—PESTICIDES
registration  of  an  economic poison  or deter-
mines that registration of an economic poison
should be canceled, he shall notify the appli-
cant  for registration  or the registrant of his
action and the  reasons therefor. Whenever an
application   for  registration  is  refused,  the
applicant, within thirty days after service of
notice of such refusal,  may file a petition re-
questing that  the  matter be  referred to an
advisory  committee  or  file   objections  and
reauest a public hearing  in  accordance  with
this  section. A  cancellation  of   registration
shall  be effective thirty days after service of
the foregoing notice  unless within such  time
the registrant  (1)  makes the  necessary  cor-
rections ;  (2) files  a  petition  requesting  that
the matter   be  referred to an  advisory  com-
mittee; or (3)  files objections and requests  a
public hearing.  The   Secretary,  on  his  own
motion, may at  any time refer such c, matter
to an advisory committee.  Each advisory  com-
mitteee shall be composed of experts, qualified
in  the subject  matter  and of  adequately di-
versified professional   background  selected by
the National Academy of Sciences  and  shall
include  one  or  more  representatives  from
land-grant colleges. The size of the committee
shall  be determined  by the Secretary. Mem-
bers of an advisory committee shall receive as
compensation for  their  services a reasonable
per diem, which  the  Secretary shall by rules
and regulations prescribe,  for time  actually
spent  in the work of  the committee,  and  shall
in addition  be reimbursed for their  necessary
traveling  and  subsistence expenses  while  so
serving away from their places of  residence,
all of which  costs may be assessed against the
petitioner,  unless the  matter  was referred to
the advisory committee upon the motion  of
the Secretary  without  a petition. The mem-
bers  shall not  be  subject to  any other  pro-
visions of law regarding the appointment and
compensation  of  employees  of   the   United
States. The  Secretary shall furnish  the  com-
mittee with  adequate clerical  and  other as-
sistance, and shall by rules  and regulations
prescribe the  procedures  to  be  followed by
the committee.  The Secretary shall  forthwith
submit to such  committee the application for
registration  of   the article  and  all   relevant
data  before  him.  The  petitioner,  as  well  as
representatives  of  the  United States  Depart-
ment  of Agriculture,   shall have  the right to
consult with the  advisory  committee. As  soon
as practicable after any such  submission, but
not  later than  sixty  days thereafter, unless
extended  by the Secretary for an  additional
sixty  days,   the  committee shall,  after  inde-
pendent  study  of  the data submitted   by the
Secretary and  all  other pertinent  information
available  to  it,  submit  a report  and  recom-
mendation to the Secretary as  to the regis-
tration of the article, together with all under-
lying data and  a statement of  the reasons or
basis   for  the   recommendations.  After   due
 consideration of the  views of  the  committee
 and  all  other  data before him, the  Secretary
 shall, within ninety days after receipt  of the
 report and  recommendations  of th-=>  advisory
 committee,  make his  determination and  issue
 an  order,  with findings  of fact, with respect
 to registration  of the article  and  notify the
 applicant for  registration or  registrant. The
 applicant   for   registration,   or  registrant,
 may, within sixty days  from the date  of the
 order of the Secretary,  file objections thereto
 and  request a public hearing  thereon.  In the
 event  a hearing is requested, the  Secretary
 shall, after due  notice, hold  such public hear-
 ing  for the purpose of receiving  evidence
 relevant and material  to the issues  raised  by
 such objections.  Any report,  recommendations,
 underlying  data,  and reasons  certified  to the
 Secretary by an  advisory committee  shall  be
 made a  part of  the record of the hearing, if
 relevant and material, subject to the provisions
 of section  7(c)  of  the Administrative  Proce-
 dure  Act  (5 U.S.C.  1006(c) ). The  National
 Academy of  Sciences shall designate a member
 of  the  advisory committee  to  appear  and
 testify  at  any  such hearing  with  respect  to
 the report  and recommendations of  such  com-
 mittee  upon request  of  the   Secretary,  the
 petitioner,  or the officer conducting  the hear-
 ing :  Provided,   That  this shall not  preclude
 any  other  member  of  the advisory  committee
 from appearing  and testifying at such hear-
 ing.  As  soon as practicable after completion
 c * the  hearing,  the Secretary shall  evaluate
 the  data and  reports before  him,   act upon
 such  objections  and issue an  order  granting,
 denying, or canceling the registration.  Such
 order shall be based  only on  substantial evi-
 dence  of  record at such hearing,  including
 any  report, recommendations, underlying data,
 and  reason  certified to  the  Secretary  by  an
 advisory committee, and shall set forth detailed
 findings  of fact upon which the order is based.
 In connection with  consideration of  any regis-
 tration  or  application for registration  under
 this  section, the Secretary may consult  with
 any  other  Federal  agency.   Notwithstanding
                                    [p. 2949]

 the provisions of section  3.c. (4), information
 relative  to  formulas of  products  acquired  by
 authority of  this section may  be revealed, when
 necessary  under this section,  to  an  advisory
 committee,  or to any  Federal  agency consul-
 ted,  or at  a public hearing,  or in findings  of
 fact issued by the Secretary.  Notwithstanding
 any  other  provision of  this  section,  the Sec-
 retary may,  when  he finds that such  action is
 necessary  to prevent an imminent hazard  to
 the public,  by order,  suspend  the registration
 of an economic poison  immediately.  In  such
 case,  he  shall  give  the registrant  prompt
 notice of such action and afford the registrant
 the opportunity  to  have the matter  submitted
 to an advisory committee and  for  an  expedi-

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STATUTES AND LEGISLATIVE HISTORY
                                     253
ted hearing under this section. Final orders of
the Secretary under this section shall be sub-
ject to judicial review, in accordance with the
provisions of subsection  d.  In  no  event  shall
registration  of  an article  be construed  as  a
defense for the  commission  of  any  offense
prohibited under section 3 of this Act."
  SEC. 4. Section  4 of said Act (61 Stat. 167 ;
7 U.S.C. 135b}  is hereby further amended  by
redesignating subsections d. and e. as  subsec-
tions  e. and f., and by  adding a new  subsec-
tion d., as follows:
  "d.  In a  case  of actual  controversy as  to
the validity of  any order  under  this section,
any person who  will be adversely affected  by
such order may obtain judicial review by filing
in the United States court of appeals for the
circuit wherein such person resides or has his
principal place  of business, or in the  United
States Court of  Appeals for the District  of
Columbia  Circuit, within sixty days after the
entry of such order, a petition praying that the
order  be set aside in whole or in part. A copy
of the petition shall be  forthwith  transmitted
by  the clerk of  the court to the Secretary,  or
any officer designated by  him for that purpose,
and thereupon the Secretary shall  file in the
court  the record of the proceedings on which he
based his order, as provided in  section 2112 of
title 28, United States Code. Upon the filing of
such  petition,  the court shall  have exclusive
jurisdiction  to affirm  or set  aside the order
complained of  in  whole  or  in part. The  find-
ing^ of the Secretary with respect to questions
of fact shall be sustained if supported by sub-
stantial evidence when considered on the record
as  a  whole, including any report  and  recom-
mendation of an advisory committee. If appli-
cation is made to  the court for leave to adduce
additional evidence,  the  court may  order such
additional evidence to be taken before the Secre-
tary,  and  to be adduced upon  the  hearing  in
such manner and  upon such terms  and condi-
tions  as to the court may seem proper,  if such
evidence is material and  there were reasonable
grounds for failure to adduce such evidence in
the proceedings below. The Secretary may mod-
ify his findings as to the  facts and order  by
reason of the additional evidence so taken, and
shall file with the court such modified findings
and order. The judgment of the court affirming
or setting aside, in whole or in part, any order
under this section shall  be final, subject  to re-
view by the Supreme Court of the United States
upon certiorari or certification as provided  in
section 1254 of title 18 of the United States
Code. The commencement of proceedings  under
this section shall not, unless specifically ordered
by the  court to the contrary, operate as a stay
of an  order. The court shall advance on  the
docket  and expedite the disposition of all causes
filed therein pursuant to this section."
  SEC.  5. The first sentence of section 8.b.  of
said  Act  (61 Stat. 170;  7 U.S.C. 135f.(b))  is
hereby amended by deleting that part beginning
with the  second proviso therein down to, but
not including, the  period at the end thereof.
  SEC.  6. Section  3.a.(l)  and 9.a.(l){b) of said
Act  (61 Stat. 166, 170; 7 U.S.C.  135a.(a)(l),
135g.(a)(l)(b)  are hereby amended  by chang-
ing the phrase "has not  been registered"  wher-
ever it appears therein,  to  read "is  not  regis-
tered".
  SEC.  7.  This  Act and  the amendments  made
hereby  shall become effective upon enactment,
and  all existing  registrations  under protest
issued under said Federal Insecticide,  Fungicide,
and Rodenticide Act shall thereupon  terminate.

    AMENDMENT OFFERED BY MB. ROSENTHAL

   Mr. ROSENTHAL. Mr.  Speaker, I
offer an amendment.
   The Clerk read as follows:
  Amendment  offered   by Mr.  ROSENTHAL :
Strike  out  all  after the enacting clause of S
160B and insert the provisions of H.R. 9739,  as
passed.
   The amendment was agreed to.
   The bill was ordered to be read a
third  time, was read  the third time,
and passed, and a motion to reconsider
was laid on the table.
   A  similar House bill  (H.R. 9739)
was laid on the table.
                                [p. 2950]
l.lg  (3)  (c)   Vol. 110  (1964), April 8: Senate concurred in House
amendment with an amendment, pp. 7188-7190
 AMENDMENT OF  FEDERAL  IN-
   SECTICIDE, FUNGICIDE,  AND
   RODENTICIDE ACT
   Mr. RIBICOFF. Mr. President, I ask
 that the Chair lay before the Senate a
 message from the  House of Represen-
 tatives on Senate bill 1605.
   The  ACTING  PRESIDENT  pro
 tempore  laid before the  Senate  the
amendment of the House of Represen-
tatives to the bill (S. 1605) to amend
the Federal Insecticide, Fungicide, and
Rodenticide  Act, as  amended, to pro-
vide  for labeling of economic poisons
with registration numbers, to eliminate
registration  under  protest,  and  for
other purposes, which was to strike out
all after the enacting clause and insert:

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254
LEGAL COMPILATION—PESTICIDES
  That section  2.z.(2)(b)  of the Federal  In-
secticide,  Fungicide, and  Rodenticide Act  (61
Stat.  163,  as  amended;  7  U.S.C.,  1958  ed.,
Supp.  Ill, 135(z)(2)(b) 13 hereby amended by
inserting  before the semicolon at the end there-
of the following phrase: "other  than  the regis-
tration number assigned  to  the economic  poi-
son".
  SEC. 2.  Section  3 of said Act  (61 Stat.  166;
7 U.S.C.  135a)  is  hereby  amended by deleting
the word  "and" at the end of section 3.a.(2) (b),
deleting the period at the  end of section 3.a.(2)
(c)  and inserting in lieu  thereof a  semicolon
and the word "and", and  adding after section
3.a.(2)(c), a new  provision reading as follows:
"(d) when  required by regulation of the Secre-
tary to effectuate the purposes of this Act, the
registration number assigned to the article un-
der this Act."
  SEC. 3.  Section  4 of said Act  (61  Stat.  167;
7 U.S.C.  135b) is  hereby amended by changing
the  word "registrant" wherever it appears in
subsection a.  and  in the first sentence of sub-
section c. to  "applicant for registration"  and
by  deleting the remainder of subsection c,  and
inserting  in lieu thereof the following:
"If, upon receipt of such notice, the applicant
for registration does not make  the corrections,
the Secretary shall refuse to register the article.
The Secretary,  in accordance with the proce-
dures  specified herein,  may  suspend  or cancel
the  registration  of an  economic poison when-
ever it does not appear that the article or its
labeling or other material required to be  sub-
mitted complies with the provisions of this  Act.
Whenever the Secretary refuses registration of
an  economic poison or determines that registra-
tion of an  economic poison should be canceled,
he  shall notify the applicant for registration or
the  registrant of his  action and  the reasons
therefor.  Whenever an  application  for  regis-
tration is refused, the applicant, within thirty
days after service of  notice of  such  refusal,
may file  a  petition requesting that the matter
be  referred to  an advisory committee  or file
objections and request  a  public  hearing in ac-
cordance  with this  section.  A  cancellation of
registration shall be effective thirty days after
service of  the foregoing notice unless  within
such time the registrant  (1) makes  the neces-
sary corrections ;  (2) files  a  petition  requesting
that the matter be referred to an advisory com-
mittee; or  (3)  files objejctions  and requests a
public hearing. Each advisory committee  shall
be  composed of experts,  qualified in the  sub-
ject matter and  of adequately  diversified  pro-
fessional  background selected by the National
Academy of Sciences and shall  include one or
more  representatives from land-grant colleges.
The size  of the committee shall be determined
by the Secretary.  Members of an advisory com-
mittee shall receive as compensation for  their
services a reasonable per diem, which the  Sec-
retary shall by rules and regulations prescribe.
 for time actually spent in the work of the com-
 mittee, and shall in addition be reimbursed for
 their necessary traveling and subsistence  ex-
 penses while so serving away from their places
 of residence, all of which costs may be assessed
 against  the petitioner, unless  the committee
 shall recommend in favor of the  petitioner or
 unless the matter was referred to the advisory
 committee by the Secretary. The members shall
 not  be subject to any other provisions of  law
 regarding the appointment and compensation of
 employees of the United States. The Secretary
 shall furnish the committee  with adequate cler-
 ical and  other  assistance,  and shall  by rules
 and regulations prescribe the procedures to be
 followed by the committee.  The Secretary shall
 forthwith submit  to such committee  the  appli-
 cation  for  registration of  the article and  all
 relevant data before him. The petitioner, as well
 as representatives of the United States Depart-
 ment  of  Agriculture,  shall  have  the right to
 consult with the advisory committee. As soon
 as  practicable after  any  such submission,  but
 not later  than sixty  days  thereafter,  unless
 extended by  the  Secretary  for  an  additional
 sixty  days,  the committee  shall, after inde-
 pendent study  of  the data submitted by  the
 Secretary  and all  other  pertinent information
 available to it, submit a  report and recommen-
 dation  to the Secretary  as  to the registration
 of  the  article, together  with  all  underlying
 data and a statement of the reasons or basis
 for  the recommendations.  After  due  consider-
 ation  of  the views of the  committee and  all
 other  data  before  him,  the  Secretary  shall,
 within ninety days after  receipt  of the report
 and recommendations  of the advisory commit-
 tee, make his determination and issue an  order,
 with findings of fact, with respect to the regis-
 tration of the article and notify  the  applicant
 for registration or  registrant. The  applicant
 for  registration,  or  registrant,  may,  within
 sixty  days  from the  date of the order of the
 Secretary, file objections thereto and  request a
 public  hearing thereon. In the event a hearing
 is  requested, the  Secretary shall,  after  due
 notice, hold such public  hearing  for the pur-
 pose of receiving evidence relevant  and  ma-
 terial to the issues raised  by such objections.
 Any report, recommendations, underlying data,
 and  reasons certified  to  the Secretary  by an
 advisory committee shall be made a part of the
 record of the hearing, if relevant  and material,
 subject to the provisions of section 7(c)  of the
 Administrative  Procedure Act  (5 U.S.C.  1006
  (c)).  The National Academy of Sciences shall
 designate a member  of the advisory commit-
 tee to  appear and testify at any such hearing
 with  respect to the  report and  recommenda-
 tions  of such committee upon request of the
 Secretary,  the  petitioner,  or  the officer  con-
 ducting the hearing:  Provided, That  this shall
  not preclude any  other member of the advisory
 committee  from  appearing and  testifying at

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STATUTES AND LEGISLATIVE HISTORY
                                        255
such  hearing.  As  soon  as  practicable after
completion of the hearing, but not later  than
ninety  days, the Secretary  shall evaluate the
data  and reports before him,  act  upon  such
objections and issue  an order granting, deny-
ing or  canceling the registration or requiring
modification of the claims or the labeling. Such
order shall  be based only  on substantial evi-
dence of record at  such hearing, including any
report,  recommendations, underlying data, and
reason certified to the Secretary by an advisory
committee, and shall set  forth detailed  find-
ings  of  fact  upon which  the order is based.
In connection with consideration of any regis-
tration  or application  for registration under
this  section,  the Secretary  may  consult  with
any  other Federal  agency  or with an advisory
committee appointed as herein provided.  Not-
withstanding the provisions of section 3.C.(4),
information  relative to formulas  of  products
                                  [p.  7188]
acquired by  authority of this section  may  be
revealed,  when necessary  under  this  section,
to an advisory committee, or to any  Federal
agency  consulted,  or at a public hearing,  or
in findings of  fact  issued  by the Secretary.
All data  submitted to  the  Secretary or to  an
advisory  committee in support of a  petition
under this  section shall  be  considered  con-
fidential  by  the Secretary  and  by such  ad-
visory committee.  Notwithstanding: any other
provision of this section,  the Secretary may,
when he finds  that such action is necessary to
prevent  an  imminent  hazard  to the  public,
by order, suspend  the  registration  of  an eco-
nomic poison  immediately.  In such  case,  he
shall give the registrant prompt notice of such
action and afford the registrant the opportunity
to have the  matter submitted  to  an  advisory
committee and for  an expedited  hearing under
this  section.  Final  orders of the Secretary un-
der  this  section shall  be  subject  to  judicial
review,  in accordance  with the provisions  of
subsection d. In  no event  shall registration  of
an  article be construed as  a defense  for the
commission of  any  offense  prohibited under
section  3  of this Act."
  SEC. 4.  Section 4 of said Act (61 Stat.  167;
7 U.S.C.  135b)  is  hereby further amended  by
redesignating subsections  d. and e,  as  sub-
sections e. and  f.,  and by  adding a new  sub-
section d., as follows:
  "d. In a case of actual controversy as to the
validity of any order under  this section, any
person who will  be adversely affected by  such
order may obtain judicial review by  filing  in
the United States court of appeals for  the cir-
cuit  wherein  such  person  resides or has  his
principal  place of  business, or in the  United
States Court  of  Appeals  for the District  of
Columbia  Circuit, within sixty days after the
entry of such  order, a  petition praying  that
the order be  set  aside in whole or in part.  A
copy of the petition shall  be forthwith trans-
mitted by the clerk of the court to the Secretary,
or any officer designated by  him for that pur-
pose,  and  thereupon the  Secretary shall  file
in the court the record of the proceedings on
which he based his  order, as provided in sec-
tion 2112 of title 28, United  States Code.  Upon
the filing of such petition the court shall have
exclusive jurisdiction  to  affirm  or set  aside
the order complained of in  whole or in  part.
The findings of the Secretary with respect  to
questions of fact shall be sustained if supported
by substantial evidence when considered on the
record as a  whole,  including any  report and
recommendation of an  advisory  committee.  If
application is made to  the court for leave  to
adduce additional evidence, the court may  order
such additional evidence to be taken before the
Secretary, and to be adduced upon the hearing
in such manner and upon such terms  and con-
ditions  as  to  the court may seem  proper,  if
such evidence is material and  there were reason-
able grounds  for  failure to adduce such evi-
dence in the proceedings below.  The Secretary
may modify  his  findings  as to  the facts and
order by reason of  the additional  evidence  so
taken, and shall file with  the court  such  modi-
fied findings and order.  The judgment of  the
court  affirming or setting aside, in whole  or  in
part,  any  order under  this section  shall be
final,  subject  to review by the Supreme  Court
of the United States upon certiorari or certifi-
cation as provided in  section 1254  of title  18
of the United States Code, The commencement
of  proceedings  under this  section  shall not,
unless specifically ordered  by the court to the
contrary, operate  as a  stay  of  an  order. The
court  shall advance on the docket and expedite
the disposition of  all causes  filed therein  pur-
suant to this section."
  SEC. 5. The first sentence  of section 8.b.  of
said Act (61  Stat. 170; 7 U.S.C.  136f(b))  is
hereby amended by deleting that part beginning
with the second proviso therein  down to, but
not including, the period at the end thereof.
  SEC. 6. Section 3.a.(l) and section 9.a.(l)(b)
of said Act (61 Stat. 166,  170; 7 U.S.C.  135a.
(a)(l),  135fir.(a)(l)(b)   are   hereby  amended
by  changing the phrase "has not  been regis-
tered" wherever it appears therein,  to read "is
not registered".
  SEC. 7. This Act and the amendments  made
hereby shall become effective upon  enactment,
and all  existing  registrations  under protest
issued  under  said Federal Insecticide, Fungi-
cide, and Rodenticide Act shall thereupon ter-
minate.
   Mr.  RIBICOPP.  Mr.  President,  I
move that  the  Senate  concur  in  the
amendment  of  the   House,   with an
amendment which I offer on behalf of
myself, the  Senator from Rhode Island
[Mr.  PELL], the Senator  from New
York [Mr.  JAVITS],  and the Senator

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256
LEGAL COMPILATION—PESTICIDES
from Kansas [Mr. PEARSON].
   The  ACTING   PRESIDENT   pro
tempore. The amendment submitted by
the Senator  from Connecticut will be
stated.
   The LEGISLATIVE CLERK. On page 6,
beginning  in line 9, it is proposed to
strike out the following language:
  All data submitted to the Secretary or to an
advisory  committee in support  of  a  petition
under this section shall be considered confiden-
tial  by the  Secretary and  by  such  advisory
committee.
   And in lieu thereof insert the follow-
ing:
  All data submitted  to  an  Advisory Commit-
tee in support  of a petition under this section
shall be considered  confidential by such  Ad-
visory Committee: Provided, that this provision
shall not  be  construed as prohibiting  the use
of such data by the  Committee in  connection
with its  consultation with the petitioner or
representatives of the United  States  Depart-
ment of Agriculture, as provided  for herein,
and in connection with its  report and recom-
mendations to  the Secretary.
   The   ACTING  PRESIDENT   pro
tempore. The question is on  agreeing
to the motion of the Senator from Con-
necticut.
   Mr.  RIBICOFF.  Mr.  President,  I
ask unanimous consent that an  expla-
nation of our amendment be printed at
this point in the RECORD.
   There being no objection, the  expla-
nation was ordered to be printed in the
RECORD, as follows:
STATEMENT BY  SENATOR RIBICOFF ON  S.  1605
   The effect  of pesticide chemicals upon plant,
animal, and  human  life has  been  the subject
of  widespread public discussion for  the  last
several years.
   In the  fall of 1962 Rachel Carson's  "Silent
Spring"  heightened  public interest and  con-
 cern.  Her book was  followed by a  critical re-
 view of the problem by the President's Science
 Advisory  Committee  and its report of  a  year
ago. Since last May,  the Subcommittee on Re-
 organization and  Internationa] Organizations
 has been  reviewing the subject  from the  point
 of view of the adequacy of Federal programs
 and laws  dealing with pesticide research and
 regulation.
   Early in our hearings the problem of  "pro-
 test registration" was pinpointed.  Up  to that
 point it  was widely thought that a pesticide
 could be  marketed only after the  Department
 of Agriculture was  satisfied as to its safety
 and effectiveness. As a matter of fact, the law
 now permits a manufacturer  to  "register" a
 doubtful  pesticide with the Secretary of Agri-
 culture and proceed to market it.  If the Secre-
 tary questions the product's safety or effective-
 ness, he still must register the  pesticide "under
 protest," He then has the burden of establishing
 that it  does not comply  with the safety or
 effectiveness standards prescribed by  the  act.
 While the Secretary gathers his proof, a pesti-
 cide can  be sold on  the market and be causing
 injury.
   On May 27,  1963,  to close  the loophole of
 "protest  registration," this bill would prohibit
 the marketing of any pesticide until the Gov-
 ernment  was satisfied  as to its  safety and effec-
 tiveness  and empower the Secretary of Agri-
 culture to withdraw a dangerous product from
 the market without the delay of a long hearing,
 I was joined in this effort by the Senator from
 Kansas [Mr. PEARSON] , the Senator from Rhode
 Island, [Mr. PELL] and  the Senator from New
 York [Mr. JAVITS].
   On October  25,  1963,  the  bill passed  the
 Senate.  On  February 17, 1964,  it passed  the
 House  with amendments. That is its  present
 status.
   Most  of  the  House amendments are techni-
 cal in  nature and  should  be  accepted by  the
 Senate.  One, however, causes some difficulty.
   In an  effort to  make certain that the Ad-
 visory  Committee  established under  S. 1605
 would be covered by confidentiality prohibitions
 of  existing law, the House added language on
 page 6,  lines 14-17 of the  bill,  as  follows:
   "All data submitted to the Secretary  or to
 an  advisory committee in  support of a petition
 under  this  section  shall  be considered confi-
 dential by the Secretary and by such advisory
 committee."
   According to the House Committee on Agri-
 culture  in its report on  the bill—
   "This  language was added  in order to fur-
 ther protect secret information concerning for-
 mulas and packaging methods from  disclosure
 to  unauthorized sources by the  advisory com-
 mittee appointed by  the  Secretary  in  connec-
 tion with carrying  out  the  provisions of this
 bill."
   Obviously, the amendment goes beyond "for-
 mulas  and  packaging  methods" and applies
 not only to the Advisory  Committee but to the
 Secretary and all officials of the Department
 of  Agriculture as well,  who  are already cov-
  ered by confidentiality restrictions in the law.
    I am  fearful that  the  House amendment is
 not only unnecessarily  restrictive but in con-
 flict with other provisions of the bill  as well.
  It  should not  be  accepted  by the  Senate for
  three main reasons:
    First, it  would result  in "all data"  being
  considered  confidential  rather than trade se-
  crets, such  as formulas, which are so well de-
  serving  of such treatment. In its report on the
  use of  pesticides,  the President's Science  Ad-

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STATUTES AND LEGISLATIVE HISTORY
                                   257
visory Committee expressed the belief that all
data used as a basis for granting registration
and establishing tolerances should be published,
thus allowing the hypotheses and the  validity
and reliability  of the  data to be  subjected to
critical review  by the  public and the scientific
community. The House amendment goes  con-
trary to this proposal.
  Second, the scope of this provision, covering
"all data" and being  applicable to  the Secre-
tary of Agriculture as  well as the advisory
committee, appears to be in direct conflict with
the preceding sentence in the bill, starting at
line 9 on page 6, which  specifically authorizes
the disclosure of data when it is necessary.
  Finally, it  is not necessary to have a further
restriction on  the Secretary  or employees of
the Agriculture Department  as the act pres-
ently prohibits them  from revealing informa-
tion  relating  to  formulas. Furthermore,  sec-
tion 1905 of title 18 of the United States Code
is  applicable to the officers and employees of
                               [p. 7189]

the Department and this too makes unlawful
the disclosure of confidential information.
  I will offer an amendment to delete this pro-
vision from the bill and  substitute in its stead
a  provision  designed  to protect  actual  trade
secrets against disclosure by the advisory com-
mittee.
  I want to emphasize that passage of  this bill
takes on a new urgency since the  recent an-
nouncement by the Department of Agriculture
that it will  hold public hearings on  April 9
on the question of removing three highly toxic
pesticides from the market.
  The Department of  Agriculture is obviously
considering either removing the pesticides al-
drin, dieldrin and endrin from the market al-
together or  drastically  restricting  their  use.
If the evidence supports them this will be ac-
complished by  a change in  registration.  But
as we have already seen,  under existing law the
manufacturer can still  continue to market these
products as before until the Department has
gathered massive evidence that they are harm-
ful.
  The burden of proof should be on the manu-
facturer to show his product safe rather than
on the Government to prove it harmful.  This
is  the essence of adequate consumer protection
law. Without it we are back  in the dark  ages
of "let the buyer beware."
  What a  cruel hoax it  would be to crank up
the massive machinery of Government—hold a
public  hearing—reach a conclusion that the
three products  are at  least of doubtfu] safety
—and then watch them continue to appear on
the market until a higher degree of proof is
gathered by the Government. That  higher de-
gree of proof will not  be dead fish. We already
know  about them. It will be injury to people.
That is not how the law  should work.
  If the  Department  of Agricuture hearings
are to have any meaning, S. 1605 must become
the law of the land.
  I urge approval of the amendment.

  Mr.  ELLENDER.  Mr. President,
will  the  Senator from  Connecticut
yield?
  Mr.  RIBICOFF.  I  am pleased  to
yield.
  Mr. ELLENDER. Will the Senator
from  Connecticut state  the  effect  of
the amendment?
  Mr. RIBICOFF. Yes.  This  amend-
ment has  been cleared with the chair-
man  of the Committee on Agriculture
and  Forestry  [Mr.  ELLENDER],  the
ranking minority member of the com-
mittee  [Mr.   AIKEN],  the  majority
leader, the minority leader, and other
Senators.  It concerns  a  bill  that will
make it possible  for the Department
of Agriculture, when it acts in regard
to the advisability of th? use of a pesti-
cide, to end the  practice of  "protest
registration," and make sure that when
the Department disapproves  an appli-
cation to register a pesticide, the man-
ufacturer will not be  able to put the
pesticide on the market as he can to-
day.
  The  difference  between the  amend-
ment I offer and the amendment of the
House  is  that the House amendment
would keep secret all information sub-
mitted in support of the application,
while my amendment makes sure data
on health and safety is available to the
public. We felt that while the formula
itself and  any trade secret should  be
kept  confidential, it  would be  against
the beneficial interest of the public and
against freedom of information to deny
to the public and to the various Depart-
ments and to  the Senate the informa-
tion, for example, on side effects of the
pesticide.
  Mr. DIRKSEN. Mr. President, on a
number of occasions I have  discussed
the amendment with the Senator from
Connecticut. I think  the amendment is
acceptable, and I believe that  the bill
with this amendment will be more ac-

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258
LEGAL COMPILATION—PESTICIDES
ceptable than it would have been with-
out it.
  Mr. RIBICOFF. That is true.
  In  submitting the amendment, 1 re-
peat that its cosponsors are the Sena-
tor from Rhode Island [Mr. PELL], the
Senator from New York [Mr. JAVITS] ,
and the Senator from Kansas [Mr.
PEARSON].
  The Committee on Agriculture and
Forestry  spend considerable time  on
this matter; and I  am grateful to the
chairman of the committee [Mr. EL-
LENDER] and to its ranking minority
member [Mr. AIKEN] for  their con-
sideration of both  the amendment and
the bill.
   I think the bill with this amendment
will close a very decided gap  in con-
nection with one of the potential dan-
gers  the country faces from pesticides.
   Mr. DIRKSEN.  Mr. President, this
matter is very much before the public;
and there always is a danger that too
 narrow an interpretation  can do a
great deal of damage to the entire ag-
 ricultural economy of the country.
   When all is said  and done, there is a
continuing  and unremitting  struggle
 against insect life; and there is only
 one way to  wage that struggle—name-
 ly, by the use of pesticides and fungi-
 cides that American industry has  de-
 veloped. The industry tries  to exercise
 the utmost of caution and care in estab-
 lishing careful tolerances in every case.
   So I hope particular caution will be
 exercised, so that we  do  not get too
 narrow an interpretation and construc-
 tion, and thereby do damage to the in-
 dustrial side of the economy, while do-
 ing good on the other side.
   Mr. RIBICOFF. I thank the Senator
 from Illinois for his contribution.
   I think it only fair to state that re-
 sponsible manufacturers have not op-
 posed the provision; and when the De-
 partment of Agriculture has raised a
 question concerning the  dangers  in-
 volved in the use of a particular pes-
 ticide, there has invariably been co-
 operation by most of the manufactur-
 ers of the  country. However, there is
 a definite loophole in the law; and from
 time to  time  there have  been manu-
 facturers who have  not  acted in  so
 responsible a manner; and even though
 a  particular  pesticide has been dis-
 approved, they have continued to sell
 it on the market.
    So I thank the distinguished minor-
 ity leader for his contributions.
    The  ACTING PRESIDENT  pro
 tempore. The question is on agreeing
 to the motion of the Senator from Con-
 necticut [Mr. RIBICOFF].
    The motion was agreed to.
                            [p. 7190]
 l.lg (3) (d)   Vol. 110  (1964), April 29: House concurred in Senate
 amendment, p. 9421
   THE FEDERAL INSECTICIDE,
          FUNGICIDE, AND
        RODENTICIDE ACT
   Mr.  ROSENTHAL. Mr. Speaker,  I
 ask unanimous  consent to take from
 the Speakers' desk the bill (S. 1605) to
 amend the Federal Insecticide, Fungi-
 cide, and Rodenticide Act, as amended,
 to provide  for  labeling of economic
 poisons with registration numbers, to
 eliminate registration under  protest,
 and for  other purposes, and to concur
 in the  Senate amendment to the House
 amendment.
    The Clerk read the title of the bill.

    The Clerk read the Senate amend-
  ment to the House amendment, as fol-
  lows:
    On page 6, lines 9 to 12. of  the House en-
  grossed amendment, strike out  "All data sub-
  mitted to the Secretary or to an advisory com-
  mittee in support of a petition under this sec-
  tion shall be considered confidential by  the
  Secretary and by such advisory  committee".
  and insert "All data submitted  to an advisory
  committee in support of a. petition under this
  section shall be considered confidential by such
  advisory  committee; Provided, That this pro-
  vision shall not be construed as  prohibiting the
  use of  such data by the committee in connec-

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STATUTES AND LEGISLATIVE HISTORY
                                                              259
tion with its consultation with the petitioner
or representatives of the United States Depart-
ment of Agriculture, as provided for  herein,
and in  connection with its report and  recom-
mendations to the Secretary".
  The SPEAKER. Is there objection
to  the request of the gentleman from
New York?
  Mr. CURTIS.  Mr.  Speaker, reserv-
ing the right to  object, I  assume this
has been cleared  with this side?
  Mr. ROSENTHAL. Yes, it has been
cleared with the ranking member of
the Committee  on Agriculture, and
with the minority leader.
  Mr. HOEVEN. Reserving the right
to  object. Mr. Speaker, I want to say
that this matter has been cleared with
the minority and is  perfectly agree-
able to us.
  The SPEAKER. Is there objection
    l.lh
                                  to the request of the gentleman from
                                  New York?
                                   There was no objection.
                                   The Senate amendment to the House
                                  amendment was concurred in.
                                   A motion to reconsider was laid on
                                  the table.
                                  COMMITTEE ON THE JUDICIARY
                                    Mr. ALBERT. Mr. Speaker, I ask
                                  unanimous consent that the  Commit-
                                  tee on the Judiciary may be permitted
                                  to sit today during general debate and
                                  during the balance of the week on the
                                  prayer bill.
                                    The  SPEAKER.  Is there objection
                                  to the request of the gentleman  from
                                  Oklahoma?
                                    There was no objection.
                                                          [p. 9421]
         FOOD ADDITIVES TRANSITIONAL PROVISIONS
                      AMENDMENT OF 1964
          October 3, 1964, P.L. 88-625, §3, 78 Stat. 1002
To further amend the transitional provisions of the Act approved September
  6, 1958, entitled "An Act to protect the public health by amending the Fed-
  eral Food, Drug, and Cosmetic Act to prohibit the use in food of additives
  which have not been  adequately tested to establish their safety", and for
  other purposes.
  Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act
may be cited as  the "Food Additives  Transitional  Provisions
Amendment of 1964".
  SEC. 2. The penultimate sentence of subsection (c) of section 6
of the Food Additives Amendment of 1958  (Public  Law 85-929,
72 Stat. 1784,1788), as added by the "Food Additives Transitional
Provisions Amendment of 1961" (Public Law 87-19, 75 Stat. 42),
is hereby further amended  by inserting before the period at  the
end thereof a colon and the  following: "Provided, That if the Sec-
retary has, pursuant to this  sentence, granted an extension to June
30, 1964, he may, upon making the findings required by clause
(1) (B) of  this subsection  and clauses (i) and (ii) of this sen-
tence,  further extend such  effective date, but not beyond Decem-
ber 31,1965".
  SEC. 3. The penultimate sentence of section 3 of the Nematocide,
Plant Regulator, Defoliant, and  Desiccant Amendment  of  1959
(Public Law 86-139, 73 Stat. 286, 288), as added by the "Food

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260                           LEGAL COMPILATION—PESTICIDES

Additives Transitional Provisions Amendment of 1961" (Public
Law 87-19, 75 Stat. 42), is hereby further amended by inserting
before the period at the end thereof a colon and the following:
"Provided, That if the Secretary has, pursuant to this sentence,
granted an extension to June 30, 1964, he may, upon making the
findings required by clause (1) of this paragraph (b) and clauses
(A)  and  (B) of this sentence, further extend such expiration date,
but not beyond December 31, 1965".
  Approved October 3,1964.
                                                      [1002]

l.lh  (1)  HOUSE  COMMITTEE  ON INTERSTATE  AND
                   FOREIGN COMMERCE
            H. R. REP. No. 1770, 88th Cong., 2d Sess. (1964)
     FOOD  ADDITIVES  TRANSITIONAL PROVISIONS
                  AMENDMENT  OF  1964
AUGUST 12, 1964.—Committed to the Committee of the Whole House on the
             State of the Union and ordered to be printed
Mr. ROBERTS of Alabama, from the Committee on Interstate and
           Foreign Commerce, submitted the following

                        REPORT
                   [To accompany H.R. 12033]
  The Committee on Interstate and Foreign Commerce, to whom
was referred the bill (H.R. 12033)  to further amend the transi-
tional provisions of  the act approved September 6, 1958, entitled
"An act to protect the public health by amending the Federal Food,
Drug, and Cosmetic Act to prohibit the use in food of additives
which have not been adequately tested to establish their safety,"
and for other purposes, having considered the same, report favor-
ably  thereon without  amendment and  recommend that the  bill
do pass.
                    PURPOSE OF THE BILL
  This bill would permit the Secretary of Health, Education, and
Welfare to permit until December 31, 1965, the continued use of
certain food additives and pesticide chemicals which were in com-
mercial use before  January 1, 1958, but which have  not been
cleared for use under sections 408 or 409 of the Federal Food, Drug,
and Cosmetic Act, if he finds that—
       (1)  such extension involves no  undue risk to the public
    health;

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STATUTES AND LEGISLATIVE HISTORY                         261

       (2)  conditions exist which necessitate the prescribing of
    such additional period;
       (3)  bona fide action to determine the applicability of such
    section 408 or 409 to such uses, or to develop the scientific data
    necessary for action under such section, was commenced by
    an interested person before March  6, 1960;
       (4)  such bona fide action was pursued with reasonable dili-
    gence after March 6, 1960; and
       (5)  in the Secretary's judgment such extension  is consis-
    tent with the objective of carrying  to completion in good faith
    as soon as reasonably practicable the scientific investigations
    necessary as a basis for action under such sections 408 or 409.
                         BACKGROUND
  The Food Additives Amendment of  1958 (Public  Law  85-929,
approved Sept. 6, 1958) added a  new section 409 to the Federal
Food,  Drug, and Cosmetic Act,  which provided  in general for
advance clearance by the Food and Drug Administration of all  sub-
stances proposed to be used as food additives. The act  contained
transitional provisions permitting the  continued  use of additives
which were in commercial use on Janary 1, 1958, requiring that
such additives be tested for safety leading to eventual  clearance
under section 409. The original transition period was 21/2 years in
duration, and was due to expire on March 6, 1961.
  Experience developed under the operation of the Food  Additives
Amendment of 1958 revealed that the  2l/2-year period allowed in
the law was insufficient for the completion of testing  on  a number
of additives, and more time was required. The  Administration
therefore recommended the enactment of legislation (H.R. 3980,
87th Cong.) which would have permitted the Secretary to grant
unlimited extensions of time for the testing of additives covered
by the 1958 transitional provisions. Testimony of the Commissioner
of the Food and Drug Administration  indicated that the bulk of
the additives covered by the  legislation could be  tested within 3
years. The proposed legislation was amended so  as  to  limit the
duration of extensions to June 30, 1964, and was  enacted April 7,
1961 as the Food Additives Transitional Provisions  Amendment
of 1961 (Public Law 87-19).
  As of June 30,1964, approximately 250 food additives had not as
yet been cleared under the food additives amendment, and further
research will be required with respect to these additives.  These
cases  involve situations where unexpected difficulties have arisen,
and it has been impossible to obtain all the information required by
the food  additives amendment in the period provided  by  law, even

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262                            LEGAL COMPILATION—PESTICIDES

though the industries  affected have proceeded with all due  dili-
gence. The reported bill would permit a further extension of time for
the testing of these 250 food additives and of a limited number of
pesticide chemicals, but the extension may not be granted if there
is any undue risk to the public health involved, and the extension
may not be granted unless bona fide action by the applicant was
commenced before March 6, 1960, and has been pursued with rea-
sonable diligence thereafter.
  Draft legislation to permit these extensions was prepared in con-
sultation with the Department of Health, Education, and Welfare
and the Department has stated that it has no objection to the leg-
islation.
                      DETAILED ANALYSIS
  The first section of  the bill contains a short title which is the
"Food Additives Transitional  Provisions Amendment of  1964."
  Section 2 of the bill amends the next to last sentence of section
6(c) of the  Food Additives Amendment of 1958 by  permitting
extensions heretofore  granted with respect to  food additives  in
commercial use before January 1, 1958, to be further extended, but
not beyond December 31, 1965, if the Secretary makes appropriate
findings prescribed in such section  6(c).  In  general these findings
require that there be no undue risk to the public health, that condi-
tions exist which necessitate the prescribing of such additional
period, that bona fide action leading  to a determination  with
respect to the clearance of such additives was commenced before
March 6, 1960, and was thereafter pursued with reasonable dili-
gence, and that such extension is consistent with the objective of
carrying  to  completion the  necessary  scientific investigations.
  Section 3 amends the next  to last sentence of section 3 of the
Nematocide, Plant Regulator, Defoliant, and Desiccant Amendment
of 1959 to make an amendment with respect to pesticide chemicals
similar in effect to the amendment made by section 2 of the bill
with respect to food additives.
  Section 3(b) of that  act provides that, with respect to any par-
ticular commercial use of a nematocide, plant regulator, defoliant, or
desiccant in or on a raw agricultural commodity, "if such use was
made of such substance before January 1, 1958" the old adultera-
tion provisions of the  Food and Drug Act shall continue to apply
until March 5, 1960, or until the end of such additional period, not
beyond June 30, 1964, as the  Secretary of Health, Education, and
Welfare may prescribe. This provision was amended by the  Food
Additives Transitional Provisions  Amendment  of  1961, so as to
include the 1964 date specified above, in order to make possible the

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 STATUTES AND LEGISLATIVE HISTORY                           263

 bona fide completion of needed scientific  studies  that could not
 be completed by March  5, 1961  (the date originally  specified in
 the law).
     Under the  amendment made by  the bill, the Secretary of
 Health, Education, and Welfare may permit extensions heretofore
 granted with respect to these pesticide chemicals to be further
 extended, but not beyond December 31, 1965, if the Secretary
 makes findings that there will be no undue risk to the public health,
 that  conditions  exist which  necessitate the prescribing of such
 additional period, that bona fide action leading to a determination
 with  respect to  the clearance of such  chemicals was commenced
 before March 6, 1960, and was thereafter pursued with reasonable
 diligence, and that such extension is consistent with the objective
 of carrying to completion the necessary scientific  investigations.

                         AGENCY  REPORTS
   The  favorable reports of the Government agencies on this bill
 are set forth below:
                          EXECUTIVE OFFICE OF THE PRESIDENT,
                                         BUREAU OF THE BUDGET,
                                    Washington, D.C., August 6,1964.
 Hon. OREN HARRIS,
 Chairman, Committee on Interstate and Foreign Commerce,
 House of Representatives, Washington, D.C.
  DEAR  MR. CHAIRMAN: This is in response to your letter  of  July 27, 1964,
 requesting the views of the Bureau of the Budget  on H.R. 12033, a bill to
 further amend the transitional provisions of the act approved  September 6,
 1958, entitled "An act to protect the public health by amending the Federal
 Food,  Drug, and Cosmetic Act to prohibit the use in food of additives which
 have not been adequately tested  to  establish their safety," and for other
 purposes.
  The Department of Health, Education, and Welfare has reported that it
 has no objection to this bill in its present form. In view of the  considerations
 set forth in the Department's report, the Bureau of the Budget advises that
 there would be no objection to the enactment of H.R. 12033 from the stand-
 point of the administration's program.
      Sincerely yours,
                                            PHILLIP  S. HUGHES,
                           Assistant Director for Legislative Reference.
                 DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
                                                    August 4,1964.
Hon. OREN HARRIS,
Chairman, Committee on Interstate and Foreign Commerce.
House of Representatives, Washington, D.C.

  DEAR MR. CHAIRMAN : This letter is in response to your request of July 27,
1964, for a report on H.R. 12033, a bill  to further amend the transitional

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264                                LEGAL COMPILATION—PESTICIDES

provisions of the act approved September 6, 1958, entitled "An act to protect
the public health by amending the Federal Food, Drug, and Cosmetic Act to
prohibit the use in food of additives which have not been adequately tested to
establish their safety," and for other purposes.
  This bill incorporates certain modifications suggested in our letter of com-
ment to the sponsor of the bill  in connection with a draft bill sent to us for
comment. A copy of that letter is enclosed.
  For the reasons stated in  that letter, we would have no objection to the
enactment of this bill in its present form.
      Sincerely,
                                                 WILBUR J. COHEN,
                                                   Assistant Secretary.
                THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE,
                                          Washington, D.C., July 2,1964.
Hon. JOHN A. BLATNIK,
House of Representatives, Washington, D.C.
  DEAR MR. BLATNIK: This is in response to the joint letter, dated  May 21,
1964, from you, Senator McCarthy, and Senator Humphrey,  requesting that
we  comment  on an enclosed copy of a draft  bill  to further amend the transi-
tional provisions of  the Food Additives Amendment of 1958 and for other
purposes. The draft bill would have the short title "Food Additives Transi-
tional Provisions Amendment of 1964."
  The draft  bill proposes,  under safeguards described below, to extend from
June 30,1964, to June SO, 1966, our authority to postpone on an ad hoc basis—
with  respect  to chemicals that were in commercial use before  1958—the effec-
tive date of section 3 of the Food Additives Amendment of 1958 (Public Law
85-929), which amended the adulteration provisions of the Food and Drug Act
so as to deem a food additive adulterated unless its use has been cleared for
safety.  The bill would likewise extend from June 30, 1964, to June 30, 1966,
our authority to postpone the effective date of the changes made in the adul-
teration provisions of  the  Food and Drug Act by the pesticide chemicals
amendment (Public Law 83-518), as applied to those chemicals in commercial
use before 1958 that were classified as "pesticide chemicals" (instead  of "food
additives") by the Nematocide,  Plant  Regulator, Defoliant, and Desiccant
Amendment of 1959  (Public Law 86-139). During any such postponement the
adulteration provisions of preexisting law under the Food and  Drug Act would
continue to apply.
  As you will recall, the Food  Additives Amendment of 1958  (Public Law
85-929)  contained transitional  provisions authorizing  us to postpone  until
March 5, 1961, the effective date of the provisions above referred to, as applied
to additives in commercial use before 1958, if we found that this was necessary
and that it would involve no undue risk to the public health.  Similarly, when
the Nematocide,  Plant Regulator, Defoliant,  and Desiccant Amendment of
1959  (Public Law 86-139) brought certain  agricultural chemicals—about 30
in  number—under the  Federal  Insecticide, Fungicide,  and Rodenticide Act
and thus indirectly transferred such  chemicals from the purview of  the food
additive provisions of the Food and Drug Act to that of the pesticide chemicals
provisions of that act,  it contained parallel transitional provisions,  meshing
with  those of the food additives amendment, with respect to those chemicals in
commercial use before 1958.

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STATUTES AND LEGISLATIVE HISTORY                             265

  When it became apparent that the March 5, 1961, limitation on the period
for which we could thus extend the final effective date  involved under these
two amendatory laws, as applied to chemicals on the market before 1958, was
insufficient to permit resolution of all the complex  scientific problems which
arose, Congress, by the Food  Additives Transitional Provisions Amendment
of 1961 (Public Law 87-19), authorized us  to grant further postponements,
but not beyond June 30, 1964, on  an ad hoc basis, in  the case  of any  such
chemical in commercial use for which we had previously granted a postpone-
ment to March 5, 1961  (or  had a  request for an extension pending on that
date), if, in addition to making the findings required as a basis for the prior
postponement, we found  (i) that bona fide action to determine the applicability
of the clearance requirements of the food additives amendment or pesticide
chemicals amendment to  such  use or to develop  the scientific data necessary
for action thereunder was commenced before March 6,  1960, and thereafter
pursued with reasonable diligence and (ii) that in our judgment  such further
postponement was consistent  with the  objective of carrying the necessary
scientific investigations to completion in good faith as soon as reasonably prac-
ticable. At the time of the enactment of Public Law 87-19 in 1961, over 3,000
uses of chemicals were covered by postponements to March 5, 1961,  that we
had granted.
  The draft bill enclosed with  your letter would amend the earlier legislation
to authorize us to grant a further postponement, but not beyond June 30, 1966,
in any case in which we had previously  granted a postponement  with respect
to a use of a chemical until June 30, 1964. Such a postponement  beyond June
30,  1964, could, however, be  granted under the terms .of the draft bill only if
we  again  made the same findings as are described above under  (i) and  (ii).
The June 30, 1964, cutoff date  had been inserted by Congress at the time of
the 1961  amendment (Public Law 87-19) because it then was estimated that
the bulk of the cases could be finally dealt with in about  3 additional years. It
was understood that if  that  estimate  proved overly   optimistic legislative
authority to grant additional extensions might have to be sought.
  While it has been possible for both the  industries concerned and this Depart-
ment to complete the work involved on most  of the 3,000 extensions, there are
still some 250 uses of food additives and pesticide chemicals on which we are
not yet prepared to take final action. The problems on most of these will be
resolved within the next 6 to 12 months. However,  there are a  few cases in
which scientific work now in progress could not be completed  and evaluated
by us within 1 year. In our opinion, the cases pending can be resolved finally
within 18 months if pursued with diligence and the expiration date stated in
the bill should therefore be December 31, 1965. Secondly, the draft bill needs
to be clarified as shown in the enclosed markup, to incorporate by reference
the requirement of existing law that any ad hoc postponement granted for the
use of a chemical must be based on a finding that the postponement is neces-
sary and involves no undue risk to the public health. (This provision was, we
understand, omitted from the draft through inadvertence.)
  We would not object to the enactment of the proposed legislation if amended
as above suggested. We do not envision circumstances which would require any
further extension beyond December 31,1965.
  We are advised by the Bureau of the Budget that there is no objection to
the presentation of this report.
      Sincerely,
                                           WILBUR J. COHEN,  Secretary.

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266                            LEGAL COMPILATION—PESTICIDES

  CHANGES IN EXISTING LAW  MADE BY  THE BILL,  AS  REPORTED
  In compliance with clause 3 of rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as
reported, are shown as follows  (new matter is  printed in italic,
existing law in which no change is proposed is shown in roman):
  SECTION 6(c) OF THE FOOD ADDITIVES AMENDMENT OF  1958
  SEC. 6.  (a)  * *  *
 *******
   (c)  With respect to any particular commercial use of, a food
additive, if such use was made of such additive before January 1,
1958, section 3 of thJs Act shall take effect—
       (1)  either  (A) one year after the effective date established
     in subsection  (b) of  this section, or (B) at the  end  of such
     additional period (but not later than two  years from such
     effective date established in subsection (b) as the Secretary of
     Health, Education, and Welfare  may prescribe on the basis
     of a finding that  such extension involves no  undue risk to the
     public health  and that conditions exist  which necessitate the
     prescribing of such an additional period, or
       (2) on the  date on which an order with respect  to such
     use under section 409  of the Federal Food, Drug, and Cosmetic
     Act becomes effective,
whichever date first occurs. Whenever the Secretary has, pursuant
to clause (1) (B) of this subsection, extended the effective date of
section 3 of this Act to March 5,1961, or has on that date a request
for such extension pending before him, with respect to any such
particular use of  a food  additive, he may,  notwithstanding  the
parenthetical time limitation  in that clause, further  extend such
effective date, not  beyond June 30, 1964, under the authority of
that clause (but subject to clause (2)) with respect to such use of
the additive (or a more limited specified use or uses thereof) if, in
addition to making the findings required by clause (1)  (B), he
finds  (i)  that  bona fide action  to determine the  applicability of
such section 409 to such  use  or uses, or to develop the  scientific
data necessary for action under such section, was commenced by
an interested person before March 6,  1960, and was thereafter
pursued with reasonable diligence, and (ii) that in the Secretary's
judgment such extension  is consistent with the objective of carry-
ing to completion in good faith, as soon as reasonably practicable,
the scientific investigations necessary as a basis for action under
such section 409: Provided, That if the Secretary has, pursuant to
this sentence, granted an  extension to June 30,1964, he may, upon
making the findings required  by clause  (1)  (B)  of this subsection

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STATUTES AND LEGISLATIVE HISTORY                         267

and clauses (i) and  (ii)  of this sentence, further  extend such
effective date, but not beyond December 31, 1965. The Secretary
may at any time terminate an extension so granted if he finds that
it should not have been granted, or that by reason of a change in
circumstances the basis for such extension no longer exists, or
that there has been a failure to comply with a requirement for
submission of progress reports or with other conditions attached
to such extension.
    *******
SECTION 3  OP THE NEMATOCIDE, PLANT  REGULATOR, DEFOLIANT,
            AND  DESICCANT AMENDMENT OP 1959
  SEC. 3. This Act shall take effect on the date of its enactment,
except that—
       (a)  with respect to any nematocide, plant regulator, defo-
    liant, or desiccant which was marketed commercially  prior
    to the date of enactment and whose use does  not  result in
    residues of same remaining in or on  a food, and  with respect
    to any  nematocide, plant  regulator,  defoliant,  or  desiccant
    whose use does result in residue remaining in or on  a food at
    the time of introduction into interstate commerce and  which
    use  had commercial  application  prior to January 1,   1958,
    section 3,  "Prohibited Acts"; section 8. "Penalties"; section 9,
    "Seizures"; and section 10, "Imports", of the Federal Insecti-
    cide, Fungicide, and Rodenticide Act, which this Act amends
    shall not be applicable until—
           (1) March 5,  1960, or  such  later date, not beyond
         March 5, 1961, as the Secretary of Agriculture  may pre-
         scribe on the basis of a determination that such  action
         will not be unduly detrimental to the public interest and
         is necessary to avoid hardships, or
           (2) the date on which  a registration  for such  use is
         issued  under the Federal  Insecticide,  Fungicide,  and
         Rodenticide Act,
    whichever date first occurs; and
       (b)  with respect to any particular commercial  use of  a
    nematocide, plant regulator, defoliant, or desiccant in or on a
    raw agricultural commodity, if such use was made of such
    substance before January 1, 1958, section 406 (a) and  clause
     (2)  of section 402 (a) of the Federal Food, Drug,  and Cos-
    metic Act as in force prior to the date of the enactment  of the
    Act  of July 22,  1954 (68  Stat. 511)  (relating  to  pesticide
    chemicals  on raw agricultural  commodities)  shall  apply
    until—

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268                            LEGAL COMPILATION—PESTICIDES

           (1) March 5,  1960, or the end of such additional pe-
         riod, not beyond March 5, 1961, as the Secretary of
         Health, Education,  and Welfare  may prescribe on  the
         basis of a finding that such extension involves no undue
         risk to the public health and that conditions exist which
         necessitate the prescribing of such an additional period,
         or
           (2) the date on which an order with respect to such
         use under section 408  of the Federal Food, Drug, and
         Cosmetic Act (21 U.S.C. 346a) becomes effective,
    whichever date first occurs. Whenever the Secretary of Health,
    Education, and Welfare has, pursuant to clause (1) of this
    paragraph (b), prescribed  an additional period  expiring on
    March 5,1961, or has on that date a request for such extension
    pending before him,  with respect to any such particular use
    of a nematocide, plant regulator, defoliant, or desiccant, he
    may notwithstanding the provision  to the contrary in such
    clause  (1), further  extend the expiration  date not beyond
    June 30, 1964, applicable under such clause (1)   (but subject
    to clause  (2)) with respect to such use of such substance (or
    a more limited specified use or uses thereof), if, in addition
    to making the findings required by clause  (1), he finds (A)
    that bona fide action to determine the applicability of such
    section 408 to such use or uses, or to develop the scientific data
    necessary for action  under such section, was commenced by
    an interested person before March 6, 1960, and was thereafter
    pursued with  reasonable diligence, and (B) that in the Secre-
    tary's judgment such extension is consistent with the objec-
    tive of carrying to completion in good faith, as soon as reason-
    ably practicable, the scientific investigations  necessary  as  a
    basis for action under such section 408: Provided, That if the
    Secretary has, pursuant to this sentence,  granted an extension
    to June 30, 1964, he may, upon making the findings required
    by clause (1)  of this  paragraph (b)  and clauses  (A) and (B)
    of this sentence, further extend such expiration date, but not
    beyond December 31, 1965. The Secretary may  at any time
    terminate an  extension so granted if  he finds that  it should
    not  have been granted, or that by reason of a change in cir-
    cumstances the basis for such extension no longer exists, or
    that there has been a failure to comply with a  requirement
    for  submission of progress reports or with other conditions
    attached to such extension.

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STATUTES AND LEGISLATIVE HISTORY                         269

l.lh (2)  SENATE COMMITTEE  ON LABOR AND PUBLIC
                          WORKS
             S. REP. No. 1593, 88th Cong., 2d Sess. (1964)
      FOOD  ADDITIVES TRANSITIONAL PROVISIONS
                   AMENDMENT  OF  1964
             SEPTEMBER 23,1964.—Ordered to be printed
   Mr. YARBOROUGH, from the Committee on Labor and Public
               Welfare, submitted the following
                         REPORT
                    [To accompany H.R. 12033]
  The Committee on Labor and Public Welfare, to whom was
referred the bill (H.R. 12033)  to further amend  the transitional
provisions of the act approved September 6,1958, entitled "An act to
protect the public health by amending the Federal  Food, Drug, and
Cosmetic Act to prohibit the use in food of additives which have
not been adequately tested to establish their safety," and for other
purposes, having considered the same, report favorably  thereon
without amendment and recommended that the bill do pass.
                          SUMMARY
  H.R. 12033 would  extend the final effective date  of the Food
Additives Amendment of 1958, as amended, from June 30,  1964, to
December 31, 1965, to authorize the Secretary of Health, Educa-
tion, and Welfare to permit the continued use of certain food addi-
tives pending the completion of testing to ascertain their safety;
providing he determines that no undue risk to the public health is
involved, that conditions necessitate additional time for the test-
ing, and that the testing has been  undertaken and is being dili-
gently pursued.
  The Food  Additives Amendment  of  1958 (Public  Law  85-929)
requires the  advance clearance by the Food  and Drug Administra-
tion of all substances proposed as food additives, but permitted the
continued use of additives in commercial use on January  1, 1958,
until March  6, 1961, so that the required testing could be carried
out. Experience  revealed more time was needed for the completion
of testing on a number of additives and Congress approved Public
Law 87-19 that extended the final effective date until June 30,
1964.  Although  testing involving some 3,000  food additives has
been completed,  there are still some 250 food additives on which no
                                                       [p.l]

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270                              LEGAL COMPILATION—PESTICIDES

final determination concerning safety has been made. These cases
involve situations where unexpected difficulties have arisen  and
needed information is still lacking even though the industries af-
fected have proceeded with  all due  diligence. H.R. 12033 would
extend the period for the completion of testing until December 31,
1965.
  H.R. 12033 also authorizes the same extension  for the transi-
tional provisions of the Nematocide, Plant Regulator, Defoliant,
and Desiccant Amendment of 1959 * that transferred some 30 agri-
cultural chemicals from the food additive provisions of the Food,
Drug, and Cosmetic Act to its pesticide chemical provisions.

                           BACKGROUND
  The Food Additives Amendment of  1958  (Public Law 85-929,
approved Sept. 6, 1958) added a  new  section 409  to the Federal
Food, Drug, and Cosmetic Act, which  provided in  general for ad-
vance clearance by the Food and Drug Administration of all  sub-
stances  proposed to be used as food additives.  The act contained
transitional provisions permitting the  continued use of additives
which were in commercial use on January 1, 1958, requiring  that
such additives be tested for safety leading to eventual  clearance
under section 409. The original transition period was  2^ years in
duration, and was due to expire on March 6,1961.
  Experience developed under the operation of the Food Additives
Amendment of 1958  revealed that the 2l/z-year period allowed in
the law was insufficient for the completion of testing on a number
of  additives,  and more time  was required. The  Administration
therefore recommended the  enactment of legislation  (H.R.  3980,
87th Cong.)  which would have permitted  the Secretary to grant
unlimited extensions  of time for  the testing of additives covered
by the 1958 transitional provisions. Testimony of the Commissioner
of  the Food  and Drug Administration indicated that  the  bulk of
the additives covered by the legislation could be  tested within 3
years. The proposed  legislation  was amended  so  as to limit the
duration of extensions  to June 30, 1964,  and was enacted April
  !The term "nematocide" means any substance or mixture of substances intended for preventing:,
 destroying, repelling, or mitigating nematodes. Nematodes are unsegmented round worms -with
 elongated, fusiform, or sacklike bodies covered with cuticle, and inhabiting soil, water, plants, or
 plant parts. They are also known as nemas or eelworms. The term "plant regulator" means any
 substance or mixture of substances, intended through  physiological action for accelerating or
 retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of
 ornamental or crop plants or the produce thereof, but does  not include substances to the extent
 that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants,
 and soil amendments. The term "defoliant" means any substance or mixture of substances intended
 for causing the leaves or foliage to drop from a plant, with or without causing abscission. The
 term "desiccant" means any substance or mixture of substances intended for artificially accelerat-
 ing the drying of plant tissue.

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STATUTES AND LEGISLATIVE HISTORY                         271

7,1961, as the Food Additives Transitional Provisions Amendment
of 1961 (Public Law 87-19).
  As of June 30,1964, approximately 250 food additives had not as
yet been cleared under the food additives amendment, and further
research will  be required  with respect to  these  additives.  The
principal area where  additional time is needed is in the field of
packaging materials that come into contact  with food.  It has not
been finally determined in  the  case of some packaging materials
whether there is migration of substances to the foods.  In other
cases there has  been  insufficient time to carry out the intensive
scientific testing by the manufacturer and the evaluation of test-
ing that is the responsibility of the Food and  Drug Administration.
These  cases involve situations where unexpected  difficulties have
arisen, and it has been impossible to obtain all the information re-
                                                        [P.2]
quired by the food additives amendment in the period provided by
law, even though the  industries affected have proceeded with all
due diligence.
  The reported bill would authorize the Secretary of Health, Edu-
cation, and Welfare to permit until December 31, 1965,  the con-
tinued use of certain food additives and pesticide chemicals which
were in commercial use before January 1, 1958, but which have not
been cleared for use under sections 408 or 409 of the Federal Food,
Drug, and Cosmetic Act, if he finds that—
       (1)  such extension  involves no  undue risk to  the  public
    health;
       (2)  conditions  exist  which necessitate the prescribing of
    such additional period;
       (3)  bona fide action to determine the applicability of such
    section 408 or 409 to such uses, or to develop the scientific data
    necessary for action under such section, was commenced by an
    interested person before March 6, 1960;
       (4)  such bona fide action was pursued with reasonable dili-
    gence after March 6,1960; and
       (5) in the Secretary's judgment such extension is consistent
    with the objective of carrying to completion in good faith as
    soon as reasonably practicable the scientific investigations nec-
    essary as a basis for action under such sections 408 or 409.

                      DETAILED ANALYSIS
  The first section of the bill contains a short title which  is the
"Food Additives Transitional Provisions Amendment of  1964."
  Section 2 of the bill amends the next to last sentence of section
6(c) of the Food Additives  Amendment of 1958 by permitting ex-

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272                            LEGAL COMPILATION—PESTICIDES

tensions heretofore granted with respect to food additives in com-
mercial use before January 1,1958, to be further extended, but not
beyond December 31,  1965, if the Secretary makes  appropriate
findings prescribed in such section 6(c). In general these findings
require that there be no undue risk to the public health, that con-
ditions exist which necessitate the prescribing of such additional
period,  that bona fide action leading to a determination with re-
spect to the clearance of such additives  was commenced before
March 6, 1960, and was thereafter pursued with reasonable dili-
gence, and that such extension is consistent with the objective of
carrying to completion the necessary scientific investigations.
  Section 3 amends the next to last sentence of section 3 of the
Nematocide, Plant Regulator, Defoliant, and Desiccant Amendment
of 1959 to make an amendment with respect to pesticide chemicals
similar in effect to the amendment made  by section 2 of the bill
with respect to food additives.
  Section 3 (b) of that act provides that, with respect to any par-
ticular commercial use of a nematocide, plant regulator, defoliant,
or desiccant in or on a raw agricultural commodity, "if such use
was made of such substance before January 1, 1958," the old adul-
teration provisions of  the  Food and Drug Act shall  continue to
apply until March 5,1960, or until the end of such additional period,
not beyond June 30, 1964, as the Secretary of Health, Education,
and Welfare may prescribe. This provision was amended by the
Food Additives Transitional Provisions Amendment of 1961, so as
to include the  1964 date specified above, in order to make possible
                                                         [p. 3]
the bona fide completion of needed scientific studies that could not
be completed by March 5, 1961 (the date originally specified in the
law).
  Under the amendment made by the bill, the Secretary of Health,
Education, and Welfare may permit extensions heretofore granted
with respect to these pesticide chemicals  to be further extended,
but not beyond December 31,1965, if the Secretary makes findings
that there will be no undue risk to the public health, that conditions
exist which necessitate the prescribing of such additional period,
that bona fide  action leading to a determination with respect to the
clearance of such chemicals was commenced before March 6, 1960,
and was thereafter pursued with reasonable diligence, and that
such  extenstion is consistent with the objective  of  carrying to
completion the necessary scientific investigations.

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STATUTES AND LEGISLATIVE HISTORY                             273

                         DEPARTMENTAL REPORTS
                            EXECUTIVE OFFICE OF THE PRESIDENT,
                                            BUREAU OF THE BUDGET,
                                   Washington, D.C., September 16,1964.
Hon. LISTER HILL,
Chairman, Committee on Labor and Public Welfare,
U.S. Senate, Washington, D.C.
  DEAR MR. CHAIRMAN:  This is in response to your request of September 9,
1964, for the views of the Bureau of the Budget on H.R. 12033, a bill to further
amend the transitional  provisions of the act approved September 6,  1958,
entitled "an act to protect the public health by amending the Federal Food,
Drug, and Cosmetic Act to prohibit the use in food of additives which have
not been adequately tested to establish their safety," and for other  purposes.
  In its August 6, 1964,  report to your committee on S.  2977, a  bill identical
to H.R. 12033, the Bureau stated that in view of the considerations set forth
in the report of the Department of Health, Education, and Welfare, it would
have no  objection to enactment of S. 2977. Accordingly, the Bureau would
have no objection to enactment of H.R. 12033.
      Sincerely yours,
                                               PHILLIP S. HUGHES,
                             Assistant Director for Legislative Reference.
                  DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
                                                   September 11,1964.
Hon. LISTER HILL,
Chairman, Committee on Labor and Public Welfare,
U.S. Senate, Washington, D.C.
  DEAR MR. CHAIRMAN : This report is in response to your request of Septem-
ber 9, 1964, for a report on H.R. 12033 (as passed by the House), a bill to be
known as the Food Additives Transitional Provisions Amendment of 1964.
  The bill is identical with S. 2977, on which, in our report of July 17 to you,
we advised that, for the reasons stated at length in the enclosure to that letter,
we would have no objection to its enactment. (See also, the explanation  of the
House bill, and our report thereon, set forth in H. Rept. 1770 on that bill.)
                                                                 [p. 4]
  We therefore would have no objection to the enactment of H.R. 12033.
  We are advised by the Bureau of the Budget that there is no objection to the
presentation  of this report from  the  standpoint of the administration's
program.
      Sincerely,
                                                WILBUR J. COHEN,
                                                   Assistant Secretary.

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274                                LEGAL COMPILATION—PESTICIDES

                  DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
                                                          Washington.
Hon. HUBERT H. HUMPHREY,
U.S. Senate,
Washington, D.C.
  DEAR SENATOR HUMPHREY:  This is in response to the joint letter, dated
May 21,1964, from you, Senator McCarthy, and Congressman Blatnik, request-
ing that we comment on an enclosed copy of a draft bill to further amend the
transitional provisions of the  Food Additives Amendment of 1958 and for
other purposes.  The draft bill would have the  short title  "Food Additives
Transitional Provisions Amendment of 1964."
  The draft bill proposes, under safeguards described below, to extend from
June 30,1964, to June 30,1966, our authority to postpone on an ad hoc basis—
with respect to chemicals that were in commercial use before 1958—the effec-
tive date of section 3 of the Food  Additives Amendment of 1958 (Public  Law
85-929), which amended the adulteration provisions of the Food and Drug Act
so as to deem a food additive adulterated unless its use has been  cleared for
safety. The bill would likewise extend from June 30, 1964, to June 30,1966, our
authority to postpone the effective date of the changes made in the adultera-
tion provisions of the Food and Drug Act by the Pesticide Chemicals Amend-
ment (Public Law 83-518), as  applied to those chemicals in commercial use
before 1958 that were classified  as "pesticide chemicals" (instead of "food
additives")  by the Nematocide,  Plant Regulator, Defoliant, and Desiccant
Amendment of 1958 (Public Law  86-139). During any such postponement the
adulteration provisions of preexisting law under the Food and Drug Act would
continue to apply.
  As  you will recall, the  Food Additives Amendment of 1958  (Public  Law
85-929)  contained transitional provisions  authorizing us to postpone  until
March 5,1961, the effective date of the provisions above referred to, as applied
to additives in commercial use before 1958, if we found that this was necessary
and that it would involve no undue risk to  the public health. Similarly, when
the Nematocide,  Plant  Regulator, Defoliant,  and Desiccant Amendment of
1959  (Public Law 86-139)  brought certain agricultural chemicals—about 30
in number—under the  Federal Insecticide, Fungicide, and Rodenticide Act
and thus  indirectly transferred such chemicals from the  purview  of the food
additive provisions of the Food and Drug Act to that of the pesticide chemicals
provisions of that act, it contained parallel transitional  provisions, meshing
•with those of the food additives amendments, with respect to those chemicals
in commercial use before 1958.
   When it became apparent that  the March 5, 1961, limitation  on the period
for which we could thus extend the final effective date involved under these
two amendatory laws, as applied to chemicals on the market before 1958, was
                                                                  [p. 5]
insufficient to permit resolution of all the  complex scientific problems which
arose, Congress, by the Food Additives Transitional Provisions Amendment of
1961  (Public Law 87-19), authorized us  to grant further postponements, but
not beyond June 30, 1964, on an ad hoc basis, in the case of any such chemical
in commercial use for which we  had previously  granted a postponement to
March 6, 1961  (or had a request for an extension pending on that date), if,
in addition to making the findings required as a basis for the prior postpone-

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STATUTES AND LEGISLATIVE HISTORY                             275

ment, we found (i) that bona fide action to determine the applicability of the
clearance requirements of the food additives amendment or pesticide chemicals
amendment to such use or to develop the scientific data necessary for action
thereunder was commenced before March 6, 1960, and thereafter pursued with
reasonable diligence; and (ii)  that in our judgment  such further postpone-
ment was consistent  with the objectives of carrying the necessary  scientific
investigations to completion  in good faith as soon as  reasonably practicable.
At the time of the enactment of Public Law 87-19 in 1961, over 3,000 uses of
chemicals  were covered by  postponements to March 5, 1961,  that we had
granted.
  The draft bill enclosed with your letter would amend the earlier legislation
to authorize us to grant a further postponement, but not beyond June 30, 1966,
in any case in which  we had previously granted a postponement with respect
to a  use of a  chemical until June 30, 1964. Such a postponement beyond June
30, 1964, could, however, be granted under the terms of the draft bill only if
we again made the same findings as are described above under (i)  and  (ii).
The  June  30, 1964, cutoff date had been inserted by Congress at the time of
the 1961 amendment  (Public Law 87-19) because it then was estimated that
the bulk of the cases could be finally dealt with in  about 3 additional years.
It was understood that if that estimate proved overly optimistic, legislative
authority to grant additional  extensions might have to be sought.
  While it has been possible for both the industries concerned and this Depart-
ment to complete the  work involved on most of the 3,000 extensions, there are
still  some  250 uses of food additives and pesticide chemicals on which we are
not yet  prepared  to take final action. The problems on most of these will be
resolved within the next 6 to 12 months. However, there are a few cases in
which scientific work  now in progress could not be completed and evaluated by
us within 1 year. In our opinion, the cases  pending  can be resolved  finally
within 18 months if pursued with diligence and the expiration date  stated in
the bill should therefore be December 31, 1965. Second, the draft bill needs to
be clarified as shown  in the enclosed markup, to incorporate by reference the
requirement of existing law that any ad hoc postponement granted for the
use of a chemical must be based on a finding that the postponement is neces-
sary and involves no  undue risk to the public health. (This provision was, we
understand, omitted from the draft through inadvertence.)
  We would not object to the enactment of the proposed legislation if amended
as above suggested. We do  not envision circumstances which would require
any further extension beyond December 31,1965.
  We are  advised by the Bureau of the  Budget that there is  no objection to
the presentation of this report.
      Sincerely,
                                    ANTHONY J. CELEBREZZE, Secretary.
                                                                [p. 6]

                      CHANGES IN EXISTING LAW
  In compliance with subsection (4) of rule XXIX of the Standing
Rules of the Senate, changes in existing law made by  the bill, as
reported, are shown as follows (existing law proposed to be omitted
is enclosed in black brackets, new matter is printed in italic, exist-
ing  law  in which  no change is proposed is  shown in  roman) :

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276                            LEGAL COMPILATION—PESTICIDES

  SECTION 6(c)  OP THE FOOD ADDITIVES AMENDMENT OF  1958
  SEC. 6. (a) * * *
     *******
  (c) With respect to any particular commercial use of  a food
additive, if such use was made of such additive before January 1,
1958, section 3 of this Act shall take effect—
       (1)  either (A) one year after the effective date established
     in subsection  (b) of this section, or (B)  at the  end of such
     additional  period (but not  later than  two  years from such
     effective date  established in subsection  (b)) as the Secretary
     of Health, Education, and Welfare may  prescribe  on  the basis
     of a finding that such extension involves no  undue risk to the
     public health  and that conditions exist  which necessitate the
     prescribing of such an additional period, or
       (2)  on the  date on which an order with respect to such use
     under section 409 of the Federal Food, Drug, and Cosmetic Act
     becomes effective,
whichever date first occurs. Whenever the Secretary has, pursuant
to clause (1) (B) of this subsection, extended the effective  date of
section 3 of this Act to March 5, 1961,  or has on that date  a request
for such extension pending before him, with respect  to  any such
particular  use  of  a food  additive,  he may, notwithstanding the
parenthetical time limitation  in that clause, further  extend such
effective date, not beyond June 30, 1964, under the  authority of
that clause (but subject to clause (2)) with respect to such use of
the additive  (or a  more limited specified use or uses thereof) if, in
addition to making the findings required by clause (1)  (B), he finds
 (i)  that bona fide action  to determine the applicability of such
section 409 to  such use or uses, or to develop the scientific data
necessary for action  under such section, was commenced by an
interested person  before March 6,  1960, and was thereafter pur-
sued with reasonable diligence, and  (ii)  that in the Secretary's
judgment such extension is consistent with the objective of carry-
ing  to completion  in good faith,  as soon as reasonably practicable,
the  scientific investigations necessary as a basis for  action under
section 409: Provided, That if the Secretary has, pursuant to this
sentence, granted an extension to June 30, 1964, he may, upon
making  the findings required by clause  (1)  (B) of this subsection
and clauses  (i) and  (ii)  of this sentence, further  extend such
effective date,  but not beyond December 31, 1965. The  Secretary
may at any time terminate an extension so granted if he finds that
it should not have been granted, or that by reason of a  change in
circumstances the basis for such extension no longer exists, or that

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STATUTES AND LEGISLATIVE HISTORY                         277

there has been a failure to comply with a requirement for sub-
mission of progress reports or with other conditions attached to
such extension.
                                                        [p. 7]
     *******

SECTION 3 OP THE NEMATOCIDE, PLANT REGULATOR,  DEFOLIANT,
             AND DESICCANT AMENDMENT OP 1959
  SEC. 3. This Act shall take effect on the date of its enactment,
except that—
      (a) with respect to any nematocide, plant regulator, defoli-
    ant or desiccant which was marketed commercially prior to the
    date of enactment and whose use does not result in residues of
    same remaining in or on a food, and with respect to any nema-
    tocide, plant regulator, defoliant, or desiccant whose use does
    result in residue remaining in or on a food at the time of intro-
    duction  into interstate commerce and which use had commer-
    cial application prior to January 1,1958, section 3, "Prohibited
    Acts"; section 8,  "Penalties";  section 9, ""Seizures"; and sec-
    tion 10, "Imports", of the  Federal Insecticide, Fungicide, and
    Rodenticide Act, which this Act amends shall not be applicable
    until—
          (1) March 5,1960, or such later date, not beyond March
         5, 1961, as the Secretary of Agriculture may prescribe on
         the basis of a determination that such action will not be
         unduly detrimental to the public interest and is necessary
         to avoid hardships, or
          (2) the date on which  a registration for  such use is
         issued under the Federal Insecticide, Fungicide, and Ro-
         denticide Act,
    whichever date first occurs; and
      (b) with  respect to any particular  commercial use of a
    nematocide, plant regulator, defoliant, or desiccant in or on a
    raw agricultural commodity, if such use was made  of such
    substance before January 1, 1958, section 406 (a) and clause
    (2)  of section 402 (a) of the Federal Food, Drug, and Cosmetic
    Act as in force prior to the date of the enactment of the Act of
    July 22,1954 (68 Stat. 511) (relating to pesticide chemicals on
    raw agricultural commodities) shall apply until—
          (1) March 5,1960, or the end of such additional period,
        not beyond March 5,  1961, as the Secretary of Health,
         Education, and Welfare may prescribe on the basis of a
        finding that such extension involves no undue risk to the

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278                            LEGAL COMPILATION—PESTICIDES

        public health and that conditions exist which necessitate
        the prescribing of such an additional period, or
           (2)  the date on which an order with respect to such use
        under section 408 of the Federal Food, Drug, and Cosmetic
        Act (21 U.S.C. 346a) becomes effective,
    whichever date first occurs. Whenever the Secretary of Health,
    Education, and Welfare has, pursuant to clause  (1)  of this
    paragraph (b), prescribed an additional period expiring on
    March 5,1961, or has on that date a request for such extension
    pending before him, with respect to any such particular use of
    a nematocide, plant regulator, defoliant, or desiccant, he may
    notwithstanding the provision to the contrary in such clause
    (1), further extend the expiration date not beyond June 30,
                                                         [p. 8]
    1964, applicable under such clause (1)  (but subject to clause
    (2)) with respect to such  use of such substance  (or a more
    limited specified use or uses thereof), if, in addition to making
    the findings required by clause  (1), he finds  (A)  that bona
    fide action to determine the applicability of such  section 408
    to such use or uses, or to develop the scientific data necessary
    for action under such section, was commenced by an interested
    person before March 6,1960, and was thereafter pursued with
    reasonable diligence, and (B) that in the Secretary's judgment
    such extension is consistent with the objective of carrying to
    completion in good faith, as soon as reasonably practicable, the
    scientific investigations necessary as a basis for action under
    such section 408: Provided, That if the Secretary has, pursu-
    ant to this sentence, granted an extension to June 30, 1964, he
    may, upon making the findings required by clause (1) of this
    paragraph (b) and clauses (A) and (B) of this sentence, fur-
    ther extend such expiration date, but not beyond December
    31, 1965. The Secretary may at any time terminate an exten-
    sion so granted if he finds that it should not have been granted,
    or that by reason of a change in circumstances the basis for
    such extension no longer exists, or that there has been a fail-
    ure to comply with a requirement for submission of progress
    reports or with other conditions attached to such extension.
                                                         [P. 9]

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STATUTES AND LEGISLATIVE HISTORY
                                 279
    l.lh (3)   CONGRESSIONAL RECORD, VOL. 110  (1964)
l.lh (3)  (a)   Sept. 3: Passed House, pp. 21597-21599
         FOOD ACTIVITIES
   TRANSITIONAL PROVISIONS
       AMENDMENT'OF 1964
   Mr. HARRIS. Mr. Speaker, I call up
the bill (H.R. 12033) to further amend
the transitional provisions of the act
approved September 6, 1958, entitled
"An act to protect the public health by
amending the Federal Food, Drug, and
Cosmetic Act to  prohibit the use in
food of additives  which have not been
adequately  tested to establish  their
safety," and  for  other  purposes, and
ask unanimous consent that the bill be
considered  in  the House as in  Com-
mittee of the Whole.
   The  SPEAKER  pro  tempore. Is
there  objection to the request of the
gentleman from Arkansas?
   There was no objection.
   The Clerk read the bill, as follows:
  Be it enacted  by the Senate and House of
Representatives of the United States of  Amer-
ica in Congress  assembled, That this Act may
be cited as the  "Food  Additives Transitional
Provisions Amendment of 1964".
  SEC.  2. The penultimate  sentence of sub-
section (c) of section 6 of the Food Additives
Amendment of  1958  (Public Law 85-929, 72
Stat. 1784, 1788), as added by the "Food Addi-
tives Transitional Provisions Amendment of
1961"   (Public Law  87-19,  75  Stat.  42),  is
hereby  further  amended by  inserting  before
the period at  the end thereof a colon and the
following:  "Provided, That  if the Secretary
has, pursuant to  this  sentence,  granted an
extension to June 30,  1964, he may, upon mak-
ing the findings  required by clause (1)  (B) of
this subsection and clauses (i) and  (ii) of this
sentence,  further  extend such effective date,
but not beyond December 31, 1965".
  SEC. 3. The penultimate sentence of section
3  of the Nematocide,  Plant Regulator,  De-
foliant, and  Desiccant  Amendment  of 1959
(Public Law  86-139, 73 Stat. 286, 288), as
added  by the "Food Additives Transitional
Provisions Amendment of 1961" (Public Law
87-19, 76 Stat. 42), is hereby further amended
by inserting before the period at the end there-
of a colon and the following:  "Provided, That
if the Secretary has, pursuant to this sentence,
granted an extension  to June 30, 1964, he may,
upon  making  the findings required by  clause
(1) of this paragraph (b) and clauses (A) and
(B) of  this  sentence, further extend such
expiration date, but not beyond  December 31,
1965".
  Mr. HARRIS. Mr. Speaker, I move
to strike out the last word.
  Mr. Speaker, this bill is a straight
extension of the provisions of existing
law, under which the Food and Drug
Administration is authorized to permit
the continued use of certain food addi-
tives in the manufacture of food where
there has not been a sufficient time for
the completion of all the tests that are
required under the provisions of the
food additives  amendments of 1958. It
is my  understanding that this legisla-
tion was drafted  in consultation  with
the  Food and Drug  Administration,
and that appropriate safeguards are
included in the legislation for the  pro-
tection of the  public health. The De-
partment of  Health,  Education,  and
Welfare and the Bureau of the Budget
have indicated in their reports   that
they had no objection to the legislation.
  In 1958, the Congress adopted the
food additives amendments, which  pro-
vide, in general, for  advanced  testing
on all substances proposed to be used in
the manufacture  of food, and provid-
ing further that  no  substances could
be  so  used  until  the Food  and Drug
Administration had  been  furnished
adequate evidence indicating that the
particular additive in  question   was
safe for use. At the time the legislation
was enacted, there were a number of
additives which  were  in commercial
use. In order to avoid disrupting the
entire food  processing industry, tran-
sitional provisions were included in the
legislation under which  any substance
which was in commercial use as a food
additive on or  before January 1, 1958,
could continue to be  used if the Food
and Drug Administration  determined
that the continued use of this additive
involved no undue risk to the public
health. The  majority of  the food addi-
tives in use in 1958 were cleared for
use, or withdrawn from use,  within

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280
LEGAL COMPILATION—PESTICIDES
the next few  years. The transitional
provisions were due to expire in March
1961, and  approximately  4,000  sub-
stances required  further  testing  at
that time. The administration  recom-
mended to  the Congress  legislation
which would have provided authority
for an unlimited extension  of time for
the completion of tests on these sub-
stances ; however, during the hearings
in 1961 it was stated to us that within
3 years the bulk of these food additives
could be tested for safety. The  gentle-
man from New York [Mr. DELANEY]
appeared  before  our  committee and
testified in opposition to the open end
extension, and recommended that the
extension be for a limited period of
time, with the understanding  that if
problems still remained at the end of
the period of extension, the legislation
could be further extended if necessary.
The committee accepted that  recom-
mendation and extended the authority
of the Food and Drug Administration
to June 30, 1964. As of that date, ap-
proximately 250 additives still required
further  work. The purpose  of this
legislation is  to permit an additional
18 months for the completion of neces-
sary testing  on  these additives. We
have been informed that, if reasonable
diligence is used, all testing should be
completed by December 31,1965, which
is the date on which this legislation
expires.
   This legislation has been carefully
drawn to insure the  complete  protec-
tion of the public health. The Food and
Drug Administration may not grant
an extension  of  time for  the  testing
of any food additive unless the follow-
ing five findings are made:
   First.  Such extension involves no
undue risk to the public health.
                           [p. 21597]
   Second.  Conditions  exist which ne-
cessitate the prescribing of such addi-
tional period.
   Third. Bona fide action to determine
the applicability of such section 408 or
409 to such  uses, or  to develop the
  scientific  data  necessary  for action
  under such section, was commenced by
  an interested person before March 6,
  1960.
    Fourth. Such bona fide action was
  pursued with reasonable diligence after
  March 6,1960.
    Fifth. In the Secretary's judgment
  such extension is consistent with the
  objective of carrying to completion in
  good faith as soon as reasonably prac-
  ticable  the  scientific  investigations
  necessary as a basis for action under
  such section 408 or 409.
    Mr. Speaker, I know of no objection
  to this  legislation; it came out of our
  committee unanimously  and I recom-
  mend its approval to the House.
    Mr.  SPRINGER. Mr.  Speaker,  I
  move to strike the requisite number of
  words.
    Mr.  Speaker, there is one  further
  point: It is not possible for the Secre-
  tary of Health, Education, and  Wel-
  fare to permit the continued use of
  additives which the distinguished chair-
  man has so well pointed out, unless he
  finds that first, such extension involves
  no undue  risk to  the public  health;
  second, conditions exist which  necessi-
  tate the prescribing of such additional
  period;  third,  bona fide action to
  determine the  applicability  of  such
  section 408 or 409 to such uses,  or to
  develop the scientific data necessary
  for action  under  such  section,  was
  commenced  by an  interested person
  before  March 6, 1960;  fourth, such
  bona fide action was pursued  with
  reasonable  diligence  after March  6,
  I960;  and,  fifth,  in the Secretary's
  judgment such extension is consistent1
  with the objective of carrying to com-
  pletion in good faith as soon as rea-
  sonably practicable the  scientific in-
  vestigations necessary as a basis for
  action under such section 408 or 409.
    With that clarification I believe that
  the  Secretary  would be  justified in
  granting such extensions. The hun-
  dreds of these pesticides and additives
  which are in use which were in use in

-------
STATUTES AND LEGISLATIVE HISTORY
                              281
1958 and  have oeen continued  since
that time, but are being tested,  I be-
lieve, by the Food and Drug Adminis-
tration, certainly should  give  them
more time to do that.  It seems to me
that the extension of some 18 months
is reasonable and in the public interest.
  We held extensive hearings on this
bill,  and  we were familiar with this
matter in connection with two  other
cases before the committee that I  know
of. The bill came out of the committee
unanimously, and I  believe it should
be passed.
  Mr. BLATNIK. Mr. Speaker, I move
to strike out the last word.
  Mr.  Speaker, at  the outset may I
express my  appreciation  to the dis-
tinguished chairman of the committee,
the gentleman  from Arkansas  [Mr.
HARRIS], for the general legislation on
this  subject which involves the health
and  welfare of American consumers
of food.
  I appreciate the point raised by the
gentleman  from  Illinois   [Mr.
SPRINGER], which clearly  points out
that the public interest and the interest
of the Congress are  protected  very
precisely,  and by putting on another
time limit we also  put pressure  on
these companies to complete the work,
which, as has been  pointed  out, has
been pursued with diligence and ear-
nestness. There are some firms which
use nontoxic additives and chemicals
in their processing. They are compelled
or required to prove just what effects
they may or may not have.  In  some
250 instances they were not  able to
complete their work, and in  some of
these  cases  their work is  close to
completion.
  Let me cite the specific case of an
outstanding firm in my district, the
Chun  King Corp.,   a producer  of
Chinese  foods. They did not use an
additive  but a  chemical involved in
the growing of bean sprouts  which is
essential to their whole operation. If
they were to be prevented from using
this chemical they would be forced out
of business with  consequent  serious
unemployment.
  We are appreciative of the special
effort made by the chairman and by the
members on both sides of the committee
to give real consideration to the busi-
ness and industry people who do need
it, and who I am confident will comply
with the terms and  conditions of the
act.
       *   *    *    *    *
                         [p. 21598]
  The bill was ordered to be engrossed
and read a third time, was read the
third time and passed, and a motion to
reconsider was laid on the table.
                         [p. 21599]
l.lh (3) (b)   Sept. 25: Passed Senate, p. 22900
           [No Relevant Discussion on Pertinent Section]
        l.li   ORGANIZED CRIME CONTROL ACT OF 1969
           October 15,1970, P.L. 91-452, Title II, §204, 84 Stat. 928
   SEC. 204.  The second sentence of section 5 of the  Act entitled
 "An Act to regulate the marketing of economic poisons and devices,
 and for other purposes", approved June 25, 1947 (61  Stat.  168; 7
 U.S.C. § 135c), is amended by inserting after "section", the follow-
 ing language: ", or  any evidence which is directly or indirectly
 derived from such evidence,".
                                                             [p. 928]

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282                            LEGAL COMPILATION—PESTICIDES

     l.li (1)  SENATE COMMITTEE ON THE JUDICIARY
             S. REP. No. 91-617, 91st Cong., 1st Sess. (1969)
         ORGANIZED CRIME CONTROL ACT OF 1969
   DECEMBER 18 (legislative day, DECEMBER 16), 1969.—Ordered to be printed
       Mr. McCLELLAN, from the Committee on the Judiciary,
                     submitted the following

                          REPORT
                         together with

           INDIVIDUAL AND CONCURRING VIEWS
                       [To accompany S. 30]
    The Committee on the Judiciary, to which was referred the bill
  (S. 30) relating to the control of organized crime in the United
  States, having considered  it,  reports favorably on it,  with  an
  amendment in the nature of a substitute, and recommends that the
  bill as amended pass.

                         AMENDMENT
    Strike out all after the enacting clause and insert in lieu thereof
  the following:
    That this Act may be cited as the "Organized Crime Control Act
  of 1969."
                                                         [p.l]
    SEC. 204. The second sentence of section 5 of the Act entitled
  "An Act to regulate the marketing of economic poisons and devices,
  and for other purposes", approved  June 25, 1947 (61 Stat. 168: 7
  U.S.C. § 135  (c)), is amended by inserting after "section", the fol-
  lowing language: ", or any evidence which is obtained by the exploi-
  tation of information,".
                                                         [p. 8]
                 TITLE II: GENERAL IMMUNITY
    A grand jury subpoena can compel the attendance of a witness
  and the production of books and  records. Ultimately, however, the
  grand jury has no power as such to compel the witness to testify or
  to turn over the books and records. Securing the witness' testimony
  and having the books  and records turned  over involve the inter-
  action of the witness' duty to testify and his privilege against self-
  incrimination.

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STATUTES AND LEGISLATIVE HISTORY                          283

   The modern privilege against self-incrimination applies to any
question the answer to which would furnish a link in a chain of
evidence, which would incriminate the witness;  it need  not be
answered unless, as the Supreme Court put it in Malloy v. Hogan,
378 U.S. 1,8  (1964), "he chooses to speak  in the unfettered exer-
cise of his own will."  Only testimonial utterances fall  within its
scope. The privilege is personal; it may not be claimed to protect
another. In addition, it protects only natural persons; corporations
or unions may not claim its protection. The privilege may be waived
by the recitation of incriminating facts; the law requires its waiver
when an accused testifies in his own behalf at a criminal trial.
Generally, it must be asserted to be  claimed,  or  otherwise it is
waived. For the privilege is, as Dean Wigmore  put it, "merely an
option of refusal not a prohibition of inquiry."  28
   Nevertheless, like the duty to testify, the privilege against self-
incrimination is not an absolute. Should a witness refuse to testify
                                                        [p. 51]
before a grand jury, asserting his privilege, the inquiry need not be
ended. Under proper conditions, it  is possible  to displace the privi-
lege with a grant of immunity, thus removing the witness' privilege
not to answer. It becomes necessary, therefore, to turn to a consid-
eration of the immunity grant and the process whereby it may be
enforced.
   Congress first adopted a compulsory immunity statute in 1857.
Act of January 24,1857, ch. 19,11 Stat. 155. Legally, no attack was
successfully mounted upon it. The statute protected against pros-
ecution any matter about which any witness  testified before Con-
gress. This type of immunity is known as "transaction immunity."
It may be illustrated as follows: should an individual receive "trans-
action immunity"  in  a grand jury investigation  of narcotics in
which he discusses the murder of an informant, prosecution of that
individual for murder could not subsequently be undertaken, even
though an eyewitness  volunteered his testimony wholly indepen-
dent of the grand jury investigation. The operation of the statute
was automatic, it was not necessary to claim the privilege, and this
led to dissatisfaction with its operation. In its place, therefore, the
Immunity Statute of 1862 was  enacted. Act of January  24, 1862,
ch. 11,12 Stat. 333. The new statute, which was  limited to congres-
sional proceedings, did not grant  immunity from  prosecution; it
merely purported to protect the witness from having his testimony
directly used against him. This type of immunity is known as "use
immunity," but the "use" restriction was defective because it was
 28 Wigmore, Evidence § 2268 at 388 (3d ed. 1940).

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284                            LEGAL COMPILATION—PESTICIDES

limited to the testimony of the witness; no restriction was placed
on the derivative "use" of such testimony. True "use immunity"
may be distinguished from "transaction immunity" using the above
illustration by noting  that a subsequent prosecution for  murder
could be undertaken using the independent eyewitness testimony,
but that no direct or indirect use could be made of the individual's
testimony. Six years later the statute was broadened to cover judi-
cial proceedings, and the Statutory scheme finally reached  the Su-
preme Court  in 1892  in Counselman v. Hitchcock, 142 U.S. 547
(1892). The Court refused to uphold the defective "use" immunity
statute, however, noting that the statute to be upheld would have
to afford a protection coextensive  with the privilege. The Court
found the protection inadequate because it did not afford transac-
tion immunity, but merely offered use immunity limited to use of
the witness'  testimony. The Court observed: "It  could not, and
would not, prevent the use of his  testimony to  search out  other
testimony to be used in evidence against him . . ." 142 U.S. at 564.
  Congress responded to the Counselman decision with the Immu-
nity Act of 1893, Act of Feb. 11,1893, ch. 83.27 Stat. 443. This time
the statute granted immunity from prosecution, not merely from
use of the testimony. Once again the constitutional validity of the
immunity grant was presented to the Supreme Court. In Brown v.
Walker. 161  U.S. 591  (1896), the Court, by a closely divided vote,
sustained its basic constitutionality. The Court held that where
transaction immunity is granted and the criminality attaching by
law to the actions of the witness is removed by another law, the
privilege ceases to operate. The dissenters suggested that the priv-
ilege was intended to accord to the witness an  absolute right of
silence designed to protect not only from criminality but also dis-
grace or infamy, something no legislative immunity could  elimi-
nate. The majority, relying on English history rejected this propo-
                                                        [P- 52]
sition. Since  Brown v. Walker, the  basic principle of the immunity
grant has not been successfully challenged, and Congressional en-
actments extending the principle,  for example, to internal secur-
ity 29 and narcotics 30 investigations have been sustained.
   Today, however, Federal statutes grant immunity in only a lim-
ited number of classes of cases. Usually the witness must claim his
privilege, be directed to testify, and then testify before he  receives
immunity. Normally, the immunity will extend to all matters sub-
  20 18 U.S.C. { 3486, as amended, 18 U.S.C. 5 S486(c) (Supp. 1966), upheld in. VUman v. United
 States, 350 U.S. 422 (1966).
  30 is U.S.C. { 1406 (1864), upheld in, Retna v. United State*, 864 U.S. 507 (1960).

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STATUTES AND LEGISLATIVE HISTORY                         285

stantially related to any matter revealed in a responsive answer.
Nevertheless,  some Federal statutes grant transaction immunity
automatically on testimony without a claim of privilege. The danger
here of accidentally granting an individual an "immunity bath" is
substantial. Other Federal statutes require specific approval of the
Attorney General and a court order before the immunity attaches.
  Under Federal law, the case-by-case limitation on the power to
grant immunity has, however, constituted a major impediment to
the effective investigation of organized crime. This led the Presi-
dent's Crime Commission to recommend the enactment of a general
immunity statute in these terms:
       A general witness immunity statute should be enacted  at
     [the]  Federal  . . .  [level], providing immunity sufficiently
    broad  to  assure compulsion of testimony. Immunity should
    be granted only with the  prior approval of the jurisdiction's
    chief prosecuting officer. Efforts to coordinate Federal, State,
    and  local  immunity  grants should be  made to prevent inter-
    ference with existing investigations. (Report at 201.)
  Up until the recent decisions of the Supreme Court in Malloy v.
Hogan, 378 U.S. 1 (1964) and  Murphy v. Waterfront Commission,
378 U.S. 52 (1964)  the  proper scope of a constitutionally valid
immunity  statute seemed to  be transaction  immunity not use
immunity.  Apparently, this  approach is not required.
  Prior to  Malloy v. Hogan, the privilege was thought to protect
only against incrimination under the laws of the questioning sov-
ereign. Under present law, the privilege  protects against both
State and Federal incrimination. The Malloy decision could have
spelled the  end of valid State immunity statutes. Nevertheless, the
Supreme Court indicated in Murphy that State immunity statutes
were still valid. The Court found that the constitutional privilege
was adequately displaced if the witness  was protected against
direct or derivative use of his compelled testimony. Contrary to the
Counselman decision, the Court seemed to think that this was pos-
sible through the use of the "fruit of the poisonous tree" process of
derivative suppression, an analogy borrowed from fourth amend-
ment illegally  obtained evidence cases.
  If the underlying premise of Counselman that there is no way to
protect the witness  from the derivative use of his compelled testi-
mony has indeed been rejected, it seems that granting immunity
from proscution rather than use of testimony is no longer consti-
tutionally compelled on any level, State or Federal.  It is not neces-
                                                       [p. 53]

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286                             LEGAL COMPILATION—PESTICIDES

sary to give transaction immunity against State prosecution to give
a valid grant of Federal immunity.31
  That this change in constitutional theory has indeed occurred is
the square holding of People v.  La Bella, a decision  of the New
York Court of Appeals on April 24,1969.32 In a case where a police
officer was indicted  for bribery on independent  evidence, after
testimony before a grand jury, the court held that it was not con-
stitutionally  objectionable under the fifth amendment  that a State
immunity statute:
     . . . only bar [red] the use of the . . . [officer's]  testimony
     or any fruits thereof. Since the police officer's testimony
     [that was used to obtain the indictment]  was in  no way
     derived  from anything said by ... [the officer  indicted
     for bribery]  to the Grand Jury and  itself established a
     prima facie case of bribery, the indictment was, there-
     fore, based on sufficient and untainted evidence.33
  The reasoning of the Court with regard to Federal constitutional
immunity requirements was as follows:
       Time  has shown that this transaction immunity type of
     statute was unnecessarily broad, that it gives witnesses an
     immunity not required by the Constitution and that it has
     the  effect of giving an  unnecessary gratuity to crime.
     Where the people have a completely good case against a
     defendant without his testimony, there is not a single,
     sound policy  reason, nor  is there a constitutional  compul-
     sion, requiring that a grant of immunity gain a witness
     complete freedom from criminal liability for his wrong-
     ful acts simply because the acts were at some point men-
     tioned to the grand jury.  (People v. Laino. 10 N.Y. 2d 161,
     173). If he is protected from the use of his testimony or
     the fruits thereof, he loses nothing if he is then convicted
     on independent and untainted evidence.
       In our view, the Supreme Court's  decision in  Murphy
     v. Waterfront Comm.  (378 U.S.  52)  has finally  resolved
     the ambiguity raised  in Counselman  on the necessary
     scope of an immunity statute.  (See also Gardner  v. Brod-
     erick, 392 U.S. 273.)  Following Malloy  v. Hogan (378
     U.S. 1)  which made the  self-incrimination privilege ap-
     plicable to the States, the Supreme Court was immediate-
  si See generally Garrity v. New Jersey, 385 U.S. 493 (1967); Sperack v. Klein, 385 U.S. 511
 (1967); Gardner v. Broderick, 392 U.S. 273 (1968); Stevens v. Marks, 383 U.S. 234 (1966); and
 United States v. Blue, 384 U.S. 251 (1966).
  32249 NE 2d 412, 24 NY 2d 598 (1969); Accord, Bvers v. People, 6 Grim. L. Rptr 2022 (Cal.
 Sup. Ct. (9-16-69).
  33 Id. at 413.

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STATUTES AND LEGISLATIVE HISTORY                         287

    ly confronted with the problem of how to accommodate
    the possible conflicts among criminal  law enforcement
    agencies arising from our federal system. The Court in
    Murphy held that,  as  a consequence of its  holding in
    Malloy, the Federal authorities would be barred from any
    prosecutional use of State "compelled testimony and its
    fruits" where a witness is granted immunity after assert-
    ing his privilege (378 U.S., at  p. 79). No transaction
    immunity  was granted as the footnote to Justice  Gold-
    berg's opinion at this point makes patent: "Once  a  de-
    fendant demonstrates that he has testified, under a State
    grant of  immunity, to  matters  related to the  Federal
                                                        [p.54]
    prosecution, the  Federal authorities have the burden of
    showing that their evidence is not tainted by establishing
    that they had an independent, legitimate source for  the
    disputed evidence."34
  Title II of S. 30, as amended, is a general immunity statute that
affords "use,"  not "transaction" immunity. It is derived from
S. 2122, originally introduced by Senator McClellan for himself and
Senators Ervin and Hruska on May 12, 1969.35 Title II of S. 30, as
initially introduced, was a general immunity statute,  applicable
only in grand jury and court proceedings. During the course of the
hearings on S. 30, the National Commission on the Reform of Fed-
eral Criminal Laws recommended to the President  the adoption of
a general  immunity statute  that would reflect the developments
in the law, noted above, unify all present immunity provisions, and
be applicable in grand jury, court, legislative, and administrative
proceedings.36 The President in his message on organized crime of
April 23, 1969,  commended this proposal to the Congress in these
terms:"
       [We] need a new broad general witness  immunity law to
    cover all cases involving the violation  of a Federal  statute.
    I commend to the Congress  for its consideration the recom-
    mendations of the National Commission on Reform of Federal
    Criminal Laws. Under the Commission's proposal,  a  witness
    could not be prosecuted on the basis of anything he said while
    testifying, but he would not be immune from prosecution based
    on other evidence of his offense.  Furthermore, once the  Gov-
    ernment has granted the witness such  immunity, a refusal
 34 249 N.E. 2d at 414.
 35 115 Cong. Rec. S4913 (daily ed. May 12, 1969).
 36 Hearings at 287-90.
 37 Doc. No. 91-105. U.S. House of Representatives, 91st Cong. 1st Sess. at 6 (1969).

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288                             LEGAL COMPILATION—PESTICIDES

    then to testify would bring a prison sentence for contempt.
    With this new law, Government should be better able to gather
    evidence to strike at the leadership of organized crime and not
    just the rank and file. The Attorney General has also advised
    me that the Federal Government will make special provisions
    for protecting witnesses who fear to testify  due to intimi-
    dation.
  S. 2122  was introduced to implement these recommendations.
H.R. 11157, introduced by Congressmen Poff, Edwards, and Kas-
tenmeier on May  12,  1969, is the companion bill in  the House.38
Each of the congressional sponsors of this legislation is a member
of the National Commission  on  the Reform of Federal Criminal
Laws.  Congressman Poff,  its principal  draftsman,  is  the vice
chairman.
  At the suggestion of the Department of Justice,39 the provisions
of S. 2122 were substituted for the language of title II of S. 30, as
originally drafted. As now drafted, title II has the support  of the
Department of Justice. Its provisions also received the support of
the majority of witnesses who testified or submitted statements
for the consideration of the subcommittee, including various admin-
istrative agencies,40 whose present practice would  be affected by
its enactment,  although opposition was expressed to the proposed
                                                         [p. 55]
bill by the American Civil Liberties Union,41 which feels that it is
both unwise and unconstitutional; the union's position is essenti-
ally that of the dissenting Justices in Brown vs. Walker,*2  which
was rejected by the Supreme Court in 1896.
  Title II thus represents the best thinking of the committee in the
area of the grant of  immunity  from the privilege  against self-
incrimination. Its  provisions are  summarized above43 and analyzed
in detail in the section-by-section analysis below.44 As now drafted,
the committee recommends that  title II pass.
  38 115 Cong. Rec. H3539 (daily ed. May 12, 1969).
  39 Hearings at 370.
  40 Only the Federal Deposit Insurance Corporation objected to the proposed statute. Hearings
at 516. Its position, however, is "not in accordance with the program of the President." Ibid.
  41 Id, at 459-62.
  42 Brown v. Walker, 161 U.S. 691 (1896).
  43 Supra at 82.
  44 Infra at 144.

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 STATUTES AND LEGISLATIVE HISTORY                         289

           DEPARTMENT OF JUSTICE COMMENTS ON S. 30
     *******
                                                      [P. 101]
                      TITLE II—IMMUNITY
   Title II of S. 30, entitled "Immunity", would amend Chapter 1 of
 Title 18, United States Code, to add new Section 16, "Compelling of
 testimony and other evidence with respect to Federal offenses."
   This provision would authorize the United States Attorney, with
 the approval of the Attorney General or an Assistant Attorney
 General designated by him, to apply for a court order to compel
 testimony in a Federal grand jury or court proceeding involving a
 violation of any Federal law,  and  in return immunity for the wit-
 ness would result. While specific immunity provisions are presently
 scattered throughout the United States Code, this provision would
 for the first time provide for compelling testimony in proceedings
 involving any violation of Federal law.
   This provision, moreover, unlike most previous immunity provi-
 sions does not grant total immunity from prosecution with respect
 to matters testified to, but merely provides that the evidence given
 shall not directly or  indirectly be used in' any future prosecution.
   In Counselman v. Hitchcock, 142 U.S. 547  (1892), the Supreme
 Court  held that, an immunity statute which merely  provided that
 the evidence compelled could not be used against the witness in any
 criminal proceeding  was insufficiently broad to comply with the
 guarantee of the fifth amendment. The court reasoned that the
 testimony which was  compelled might  nevertheless be used "to
 search out other testimony" to be used against him in a criminal
 proceeding, 142 U.S. at 564. The court concluded that "no statute
 which  leaves the party or witness subject to prosecution after he
answers the incriminating question put to him, can have the effect
 of supplanting the privilege conferred by the Constitution of the
 United States," 142 U.S. at 585.
   Since Counselman, Federal immunity statutes have been phrased
 in terms which would bar any prosecution for or on account of any
 matter as to which testimony was compelled, see e.g. 49 U.S.C. §46.
 However, in two recent decisions,  Murphy v.  Waterfront Commis-
 sion, 378 U.S. 52, 79-80  (1964), and Marchetti v.  United States,
390 U.S. 39, 58-60 (1968), the Supreme Court has  indicated that
complete immunity from future prosecution is not  essential and
that a  witness'  privilege against self-incrimination  would not be
violated if he were compelled to testify under an assurance that the
evidence he gave could not be used against him either directly or

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290                            LEGAL COMPILATION—PESTICIDES

indirectly,  i.e., as an  investigative lead, in a  State  or Federal
prosecution.
  In view of the Court's expression in Murphy and Marchetti,  it
would seem that the use restriction concept contained in title II
furnishes all the immunity the Constitution requires.
  In his special message to the Congress of April 23, 1969, dealing
with organized crime, President Nixon stated the  need for a new
broad general witness immunity law to cover all cases involving vio-
lation of a Federal statute, and he commended to the Congress for
its consideration the recommendations  of the National Commission
on Reform of Federal Criminal Laws.  The National Commission's
proposed general immunity  statute, unlike the present proposal
which is limited to "any case or proceeding before  any grand jury
or court of the United States," would create  a single,  integrated
                                                       [p. 107]
immunity provision applicable to grand  jury-court proceedings;
formal administrative hearings by an independent agency or within
the executive branch; and congressional  investigations. Like the
present proposal, however, the protection offered the witness is a
restriction against use of incriminating disclosures or their fruits
in any criminal case rather than absolute immunity from prosecu-
tion.
  Under this proposal, in all three types of proceedings the Attor-
ney General  would receive notice of intent to  obtain an immunity
authorization. For grand jury-court proceedings the approval of
the Attorney General  is required upon a certification of need by
the U.S. attorney. For administrative  hearing matters, the public
interest assessment and power to issue a direction to  testify are
left with such agency  officials as may  be  specified by statute, and
notice must be given to the Attorney General at least 10 days prior
to the  direction to  testify. For  congressional investigations the
direction to testify is made by the U.S. district court upon applica-
tion by a duly authorized representative of either House of Con-
gress, and notice of the application must be served  on the Attorney
General at least 10 days prior to the time the application is made.
Upon request of the Attorney General the court  must defer the
direction to testify for no longer than thirty days from  the date of
such notice to the Attorney General.
   One of the obvious  merits of this proposal is its provision for
notice to a central law enforcement point,  the Attorney General,
as a means of attempting to insure  that the "public interest" being
promoted by one agency  will not subvert the "public interest"
being promoted by another agency.

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STATUTES AND LEGISLATIVE HISTORY                         291

  Accordingly, the Department of Justice recommends enactment
of the immunity proposal of the National Commission on Reform
of Federal Criminal Laws in lieu of the proposal contained in title II
of this bill.
                                                      [p. 108]
                           TITLE II
  Section 201.—This section amends title 18, United States Code,
by adding a new part V, entitled "Immunity of Witnesses."
  Section 6001 contains definitions.
  Subsection (1)  defines  "agency of the United States" to mean
any executive department or military department and certain inde-
pendent  agencies. The agencies enumerated are  those  having
immunity granting power under present law. Delegation of the
immunity power within the agency is intended to follow present
practice within the agency for the delegation of comparable powers.
                                                      [p. 144]
  Subsection (2)  defines "other information" to include books,
papers, and other materials. The phrase is used in contradistinction
to oral testimony. It would  include, for example, electronically
stored information on computer tapes. Its scope is intended to be
comprehensive, including  all information given as testimony, but
not orally. The phrase is also used in other sections of the proposed
Act. See title IV, proposed 1623 (a). The meaning is intended to be
the same throughout.
  Subsection (3)  defines "proceeding before an  agency of the
United States" to include proceedings characterized by  compul-
sory process designed to elicit testimony or other information.
  Subsection (4)  defines  "court of the United States" in all  em-
bracing terms.
  Section 6002 contains the basic immunity from self-incrimina-
tion  granting authorization.  Proceedings before or ancillary to
grand juries, courts, agencies of the United States, or before either
House of Congress, joint committees, committees or subcommittees
thereof are covered. A pretrial  deposition hearing,  for example,
would be "ancillary to" a court proceeding. (See Hearings at 409,
411.) The witness must claim his privilege to receive immunity.
The  proposed provision is not an "immunity bath." See  United
States v. Monia, 317  U.S. 424 (1943). Refusal to testify following
communication of the immunity order warrants contempt proceed-
ings. No oral testimony or other information secured from a witness
can be used against him in a criminal proceeding. This statutory
immunity is intended to be as broad as, but no broader than, the
privilege against self-incrimination.  (See Hearings at 326.)  It  is

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292                           LEGAL COMPILATION—PESTICIDES

designed to reflect the use-restriction immunity concept of Murphy
v.  Waterfront Commission, 378 U.S. 52 (1964) rather the trans-
action immunity concept of Counselman v. Hitchcock, 142 U.S. 547
(1892). The witness is also protected against the use of evidence
derivatively obtained. The statutory  language is phrased  in the
terms of present law. See Wong Sun v. United States, 371 U.S. 471,
488 (1963). The exception for perjury, false statements or other
failure to comply  with the order  is probably unnecessary. See
United States v. Monia, 317 U.S. 424  (1943). It is included out of
caution to insure  that  such immunity is  not given. See United
States v.  Orta, 253 F. 2d 312 (5th Cir.),  cert,  denied, 357 U.S.
905 (1958).
   Section 6003 sets out the procedure to be followed in court and
grand jury proceedings.  Immunity orders  may be obtained pros-
pectively. This  sets aside  the  result  that  obtained in In  Re
McElrath, 248 F. 2d 612 (D.C. Cir. 1957). The court's role in grant-
ing the order is merely to find the facts on which the order is pred-
icated. The statutory  language is "shall." Review that second
judges prosecutive discretion  is not  authorized.  Compare In Re
Bari, 304 F. 2d 631 (D.C. Cir. 1962).  With the approval of the
Attorney General, Deputy Attorney General or an Assistant At-
torney General  who is designated  by the  Attorney General, the
United States Attorney may seek a court order. He must be satis-
fied that the testimony is needed in the "public interest" and the
witness must have refused or  be likely to refuse to testify, claim-
ing self-incrimination.
   Section 6004 sets out the procedure to be followed in administra-
tive hearings. A 10-day waiting period must be followed from the
date the Attorney General is served with a notice of intention to
grant immunity until the grant is  made unless the Attorney Gen-
eral notifies" the agency otherwise sooner.  The Attorney General,
therefore, has 10 days to object informally to the grant of immun-
                                                      [p. 145]
ity, although approval should  be granted in less time in most sit-
uations. The Attorney General is not given a veto power. The agenr
cies' discretion to confer immunity  is subject  to  the  same test
applicable to the Attorney General, noted above. It is expected that
the Attorney General and the responsible agency, however, will be
able to work out any differences they might  have with regard to the
immunity grant. Court intervention is  not required.
   It is anticipated that,  upon enactment of the bill, the Attorney
General will take such steps as are necessary to insure that appro-
priate procedures are followed by each agency to  designate who

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STATUTES AND LEGISLATIVE HISTORY                         293

may issue immunity orders and in what circumstances they may be
issued. It is assumed that the Attorney General will take such other
steps as are necessary to insure that his office is familiar with the
immunity-granting procedures of each agency, in order that issu-
ance of such orders might be expedited and no orders will be issued
without authorization by any agency.
   Section 6005 sets out the procedure to be followed  in congres-
sional proceedings. A court order must be obtained based on an
affirmative vote of a majority of members present in a proceeding
before either House or a two-thirds vote  of  the members  of the
full committee in a proceeding before a committee. Ten days' notice
must be given to the Attorney General prior to seeking the order.
The court must defer issuance up to 20 days at the Attorney Gen-
eral's request.  As  in administrative proceedings,  however, the
Attorney General is not given veto power. Nor is the court given
any power to withhold the order if the factual prerequisites are
met.
      *******

   Section 204.—This section makes a conforming amendment to
the act of June 25, 1947. It makes the language of the act reflect
the use-restriction immunity concept, noted above. See proposed
§6005, above.                                          [p 146]

Federal  Insecticide, Fungicide, and Rodenticide Act  §5,  61
Stat.  168
   SEC. 5. For the purposes of enforcing the provisions of this Act,
any manufacturer, distributor, carrier, dealer, or any other person
who sells or offers for sale, delivers or offers for delivery, or who
receives  or holds any economic  poison or device subject  to this
Act, shall, upon request of any employee of the United States
Department of Agriculture or any employee of any State, Terri-
tory,  or  political  subdivision,  duly designated by  the  Secretary,
furnish or permit  such  person  at all reasonable  times to have
access to, and to copy all  records showing the delivery, movement,
or holding of such economic poison or device, including the quan-
tity, the date of  shipment and receipt,  and the  name  of the
consignor and consignee; and in the event of the inability of any
person to produce records containing  such information, all other
records and information  relating to such delivery, movement, or
holding of the economic  poison  or device. Notwithstanding this
provision, however, the specific evidence obtained under this sec-
tion, or any  evidence which is  obtained  by the exploitation of
information, shall not be used in a criminal prosecution  of the
person from whom obtained.                          r   17_,

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294                            LEGAL COMPILATION—PESTICIDES

    l.li  (2)  HOUSE  COMMITTEE ON THE  JUDICIARY
           H.R. REP. No. 91-1549, 91st Cong., 2d Sess. (1970)
        ORGANIZED CRIME CONTROL ACT OF 1970
SEPTEMBER 30, 1970.—Committed to the Committee of the Whole House on the
              State of the Union and ordered to be printed
  Mr. ROGERS of Colorado, from the Committee on the Judiciary,
                    submitted the following
                          REPORT
                         together with
  ADDITIONAL, INDIVIDUAL, AND DISSENTING  VIEWS
                       [To accompany S. 30]
  The Committee on the Judiciary, to whom was referred the bill
(S. 30)  relating to the control of organized crime  in the United
States, having considered the same, report favorably thereon with
an amendment and recommended that the bill as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert in lieu thereof the
following:
  That this Act may be cited as the "Organized Crime  Control Act of 1970."
 *******
                                                          [P.I]
  SEC. 204. The second sentence of section 5 of the Act entitled  "An Act to
regulate the marketing of economic poisons and  devices, and for other  pur-
poses", approved June 25,  1947 (61 Stat. 168; 7 U.S.C. § 135c), is  amended by
inserting after "section", the following language: ", or any evidence which is
directly or indirectly derived from such evidence.".
                                                          [p. 6]
                 TITLE II—GENERAL IMMUNITY
  Title II is a general Federal immunity statute that will afford
"use" immunity rather than "transaction" immunity when a wit-
ness before a court, grand jury, Federal agency, either House of
Congress, or a congressional committee or subcommittee, asserts
his privilege against self-incrimination. It is contemplated that the
title will enable effective displacement of the privilege against self-
incrimination  by  granting  protection  coextensive   with  the
privilege; that is, protection against  the  use of compelled testi-
                                                        [p. 32]
mony directly or indirectly against  the  witness,  in a criminal
proceeding.
  Title II has been revised so  as to add the District of Columbia

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STATUTES AND LEGISLATIVE HISTORY                         295

 Court of Appeals and the Superior Court of the District of Colum-
 bia to the definition of "court of the United  States"; to require
 the approval of the Attorney General for the issuance of immunity
 orders by U.S. agencies;  to effectuate a number of additional
 repeals and amendments made necessary by the recent enactment
 of the District of Columbia Court Reform and  Criminal Procedure
 Act of 1970  (Public Law 91-358), and to make a number of tech-
 nical amendments.
   A more detailed report on the immunity problem is contained in
 this committee's report to accompany H.R. 11157 (H. Kept. 91-
 1188, dated June 15,1970).
                                                       [p. 33]
   Section 204.—This section makes a conforming amendment to
 the act of June 25, 1947. It makes the language of the act reflect
 the use-restriction immunity concept, noted above. See proposed
 § 6005, above.
                                                       [p. 43]
 Title II
   Title II proposes to supplant the absolute immunity  granted to
 those forced to sacrifice their fifth amendment right to remain
 silent, for transaction, or use, immunity. This departure is pre-
 mised on the  views of  some  attorneys and  legal  scholars that
 Counselman v. Hitchcock, 142 U.S. 547 (1892)  (which set  the
 requirement at absolute immunity) has been overruled by Murphy
 v. Waterfront  Commission, 378 U.S. 52  (1964).
   Without arguing the merits  of the dispute concerning the rela-
 tionship of Counselman and Murphy, we seriously question  the
 wisdom  of legislative change in this field. The courts have  fash-
 ioned the rules concerning immunity, and we feel the changes being
 molded should continue to reside within their  purview.
   Moreover, we question whether due regard  has been given the
 constitutional protection of the fifth amendment in the fashioning
 of this title.
                                                      [p. 194]

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296
                      LEGAL COMPILATION—PESTICIDES
     l.li  (3)   CONGRESSIONAL RECORD VOL. 116  (1970)
l.li (3) (a)
852-853, 952
Jan. 21, 22, 23: Debated in Senate, pp. 587-588, 601,
  Mr. McCLELLAN.
     TITLE II—GENERAL IMMUNITY
     Mr. President, title II  of S. 30 is
a  comprehensive  immunity provision
designed to replace more than 50 im-
munity  statutes  now  in  operation.
When S. 30 was originally  introduced
its scope was limited to grand jury
and court proceedings. It was designed
to implement the recommendation  of
the President's Crime Commission that
such  a provision  not only  was neces-
sary  in the general administration  of
justice, but also was  essential in the
fight against  organized crime. During
the course  of the hearings, however,
the National  Commission on the Re-
form of Federal Criminal Laws issued
a  report  recommending that compre-
hensive reform  and codification action
be undertaken in this field.  According-
ly, title II was reexamined in this con-
text, and the decision was reached to go
forward and properly to treat the over-
all problem in  the administration  of
justice. Title II now provides for judi-
cial, administrative, and congressional
immunity grants, subject to carefully
framed safeguards for individual liber-
ties, where  information  which may  be
necessary for the public  interest  is
likely to be refused to be provided  on
the basis of the privilege against self-
incrimination.
   Mr. President,  the relation between
the  privilege against  self-incrimina-
tion and immunity grants has been ex-
amined by our courts  over  a consider-
able period of time. In Counselman v.
Hitchcock,  142  U.S. 547  (1892),  the
Supreme Court invalidated an immu-
nity statute which only prevented evi-
dence from being used  in  subsequent
court proceedings, where the evidence
had been compelled under an immunity
grant. The  court  stated:
                         It could not, and would not prevent the use
                       of his testimony to search out other testimony
                       to be used  in  evidence against him or his
                       property, in  a  criminal  proceeding in  such
                       court. (142 U.S. at 564.)
                         In  response  Congress  passed  a
                       "transaction immunity" statute, which
                       provided that the  person  compelled to
                       testify could  not be prosecuted, under
                       any circumstances, for the criminal ac-
                       tivities concerning which  he had testi-
                       fied, in Brown v. Walker,  161  U.S. 591
                       (1896), this  statute  was  upheld,  de-
                       spite  the argument  that  was made
                       that  the  principle  of  Counselman
                       should be  extended  to prevent self-
                       degradation as well as self-incrimina-
                       tion. The court  answered this conten-
                       tion:
                         The authorities are numerous  and very nearly
                       uniform to  the  effect that, if the proposed
                       testimony is material to the issue on trial, the
                       fact that the testimony may tend to degrade
                       the witness in public  estimation does not ex-
                       empt him from the duty of disclosure. A person
                       who commits a  criminal act is bound to con-
                       template the  consequences  of exposure to his
                       good name and reputation and ought not to
                       call upon the courts to protect that which he
                       has himself esteemed to be of such little value.
                       (161 U.S. at 605.)
                         The court also stated:
                         Every good citizen  is bound  to aid in the
                       enforcement of  the law, and  has no right to
                       permit himself,  under the pretext of shielding
                       his own good name to be made the tool of
                       ethers who are desirous of seeking shelter behind
                       his privilege. (161 U.S. at 600.)
                         Immunity  legislation  remained at
                       this point until  1964.  In that year, the
                       Supreme Court handed down Malloy v.
                       Hogan, 378 U.S. 1  (1964), and Murphy
                       v. Waterfront Commission, 378 U.S.
                       52  (1964). In order to make State im-
                       munity statutes valid, the court  held
                       that they  must also  protect against
                       Federal prosecution. Drawing upon re-
                       cently developed  criminal procedure
                       rulings on the derivative suppression
                       of evidence, the court stated:
                                                    [p. 587]

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STATUTES AND LEGISLATIVE HISTORY
                                                                                297
  We hold the  constitutional rule to be that
 a state  witness  may not be compelled to give
 testimony which may be incriminating under
 federal law unless the compelled testimony and
 its  fruits cannot  be used in any manner  by
 federal  officials  in connection with a criminal
 prosecution against him. (378 U.S. at 79.)

   In a footnote, Mr. Justice Goldberg
 went on to state:
  The federal authorities have the burden of
 showing  that tbeir evidence is not tainted  by
 establishing an  independent, legitimate  source
 for the  disputed evidence. (Id at n.  18)

   This is the use-restriction immunity
 that is embodied in title II. Under  it,
 once a  witness has testified, he can only
 be  prosecuted for the acts concerning
 which  he has been immunized if the
 prosecution  can  "establish  an  inde-
 pendent, legitimate source for the dis-
 puted evidence."
   The  President of the United States
 on April 23,  1969, in his Message  on
 Organized Crime, commended the basic
 concept  of title  II to  the  Congress,
 stating:
  I commend to the Congress for its consider-
 ation . . . [the  proposal under which] ... a
 witness  could not be prosecuted on the basis of
 anything he said while testifying, but he would
 not be immune from prosecution based on other
 evidence of his offense. (Doc. No. 91-105,  House
 of Representatives, 91st Cong., 1st Sess. at 5
 (1969).)

   Mr.  President, in a concurring  opin-
 ion in  Murphy,  Mr.  Justice White
 stated:

  Immunity  must be  as  broad  as,  hut  not
 harmfully and  wastefully  broader  than,  the
 privilege against self-incrimination.  (378 U.S.
 at 107.)

   This was but another way of saying
 that we ought not  tolerate anything
 which  gives, in the words of Mr. Jus-
 tice Holmes in Heike v. United States,
227 U.S. 131, 144  (1913), a  "gratuity
 to crime."
  Mr.  President,  since  Murphy, the
 trend in the laws of the States appears
 to be moving in escalating speed in the
 direction of "use-restriction" immuni-
 ty. New York and California embraced
 use-restriction  immunity in  1969. To-
 day's New York Times contains  a re-
                                            port of  a unanimous  decision of  the
                                            New  Jersey  Supreme Court,  which
                                            holds that the fifth amendment only
                                            requires  protection from  prosecution
                                            with regard to statements  made under
                                            immunity and from "fruits"  of com-
                                            pelled  testimony. This is the theory
                                            embraced in title II of  S. 30.
                                              Mr. President, I ask unanimous con-
                                            sent that the text of  The New  York
                                            Times  article appear at this  point in
                                            my remarks.
                                              There being no objection, the article
                                            was ordered to be printed in the REC-
                                            ORD, as follows:
                                              [From the New York Times, Jan. 21, 1970]
                                             JERSEY'S CRIME UNIT Is UPHELD ON RIGHT TO
                                                   FORCE WITNESSES TO TESTIFY
                                             TRENTON,  JANUARY 20.—The  power of  the
                                            State Commission of  Investigation to seek the
                                            indefinite  imprisonment of  witnesses who re-
                                            fuse to testify after  being  granted  immunity
                                            from prosecution  was unanimously upheld today
                                            by the New Jersey Supreme Court.
                                             The decision  by  the state's  highest court
                                            clears the way for  an ajl-out investigation of
                                            organized  crime  and  corruption and it  places
                                            three reputed Mafia  figures closer  to  prison
                                            terms on  civil contempt charges sought by the
                                            state last summer.
                                             The commission had been forced to hold off
                                            several new inquiries and the original  one it
                                            undertook  last year into charges of mob infil-
                                            tration and political  corruption in  the Mon-
                                            mouth  County   shore  community  of  Long
                                            Branch pending the outcome of  its legal chal-
                                            lenges to its most important power—its right
                                            to jail witnesses who refuse to talk after being
                                            assured that they would not be  prosecuted for
                                            any disclosures they made.
                                             The three reputed Mafia witnesses are Joseph
                                            (Joe Bayonne)  Zicarelli, believed to be rackets
                                            boss in Hudson County; Anthony (Little Pussy)
                                            Russo, allegedly Mafia leader in Monmouth  and
                                            Robert (Bobby Bastle) Occhipinti, said to be
                                            a  lieutenant in the Mafia  family headed by
                                            Simone Rizzo (Sam the Plumber)  DeCavalcante.

                                                      TROUBLE IS COMPOUNDED
                                             The court decision only compounds Zicarelli's
                                            problems with the law since he was indicted by
                                            the statewide grand  jury  for  conspiracy  to
                                            murder late last year. As for Russo, he is free
                                            on bail pending an appeal of a six-year prison
                                            sentence on a perjury conviction for lying to
                                           a Monmouth County grand jury.
                                             William  F. Hyland, the  investigation com-
                                           mission chairman, announced later that the full
                                           four-man  commission would convene here to-
                                           morrow.  Other  sources reported  that the com-
                                           mission would then  ask  Superior Court  Judge

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298
LEGAL COMPILATION—PESTICIDES
Frank J. Kingfield to enforce the contempt
citation ordered last summer and jail the three
witnesses.
  Although  the  lawyers  for  the  three  men
could  not  be reached  for  comment tonight,
commission sources said they expected the three
men to appeal the Supreme Court decision in
the Federal courts now that they had exhausted
every legal remedy in the state.
  The court's decision, which was delivered by
Chief Justice Joseph Weintraub, rejected every
argument made  in behalf of  the  three men,
including one in  which their lawyers contended
that  the commission  presented their  clients
with an impossible dilemma.
  If  their clients  talked, the  lawyers argued,
they faced certain  execution at the hands of
the mob. If they  did not talk, they faced prison
terms that could conceivably run for the rest
of their  lives. The  lawyers contended that such
a choice deprived  their clients of  due process
safeguards embodied in the Fourth  Amendment
to the Constitution.
  At  a   hearing  last  December,  the  courts
rejected  this argument as  "fantastic  beyond
belief," an affront to the court.

            ARGUMENT IS REJECTED
  As for the legal  argument that  witness im-
munity  violated Fifth  Amendment protection
against  self-incrimination, the court declared
that it did not and cited other similar rulings.
   "We are satisfied," the court said, "that the
Fifth Amendment does  not require immunity
from prosecution. An immunity of  that breadth
exceeds  the  protections of Fifth  Amendment
accords. More importantly, to find that demand
in the Fifth Amendment would  in practical
terms deny  state  government access to  facts
it must have to meet its duty to secure the well-
being of all citizens. We heretofore deemed the
Constitution  to  require immunity  against use
of testimony rather than immunity from prose-
cution."
   In essence, the court said the Fifth Amend-
ment protected the three witnesses from prose-
cution resulting  from anything they might say,
and  not  from prosecution entirely. The  court
also repeated the Federal  Court rule that states
that the "fruits" of any "compelled testimony"
may not be  used in connection with any Fed-
eral prosecution.
   Moreover  the  court  said, "The  role of the
S.C.I, is not accusatory and the rights accord-
ed to the individuals concerned are appropriate
and adequate in light  of the  agency's  mission
 and powers."
   Unlike grand juries  that  seek indictments
 and prosecutors who  seek convictions,  the In-
 vestigation Commission seeks to publicize crime
 and corruption  and report its findings to the
 public, the Governor and the Legislature.

   Mr. McCLELLAN. Mr. President, in
 light of present derivative-suppression
 techniques,  and  Supreme  Court  de-
 cisions, to refuse to enact use-immuni-
 ty legislation is to give a "gratuity to
 crime." In a society which  is besieged
 by organized crime, the U.S. Senate is
 in no position to hand out such gratu-
 ities. Title II would revoke the gratu-
 ity that the member of organized crime
 and others  now enjoy under present
 immunity  legislation and  substitute
 for it carefully drafted legislation that
 both reforms and codifies  the law in
 this field.
                                 fp. 5881
   Mr. HRUSKA.
 *****
   The  other procedural reforms con-
 tained in titles II through VII, dealing,
 respectively,  with  general immunity,
 recalcitrant witnesses, false  declara-
 tions, protected housing facilities for
 housing  Government  witnesses,  depo-
 sitions, litigations, and title X, dealing
 with dangerous  special offender sen-
 tencing, are all necessary complements
 of the  reinforced grand  jury powers.
 These provisions will insure the neces-
 sary quantity and quality  of  evidence
 sufficient for valid indictments and con-
 victions  of  organized crime  figures.
 They provide the imposition of appro-
 priate  sentences  for  such  convicted
 professional or organized crime offend-
 ers. These  long overdue remedies are
 indispensable legal tools for providing
 our law  enforcement  officials  with the
 evidence  necessary  to bring consis-
 tently  effective  criminal sanctions to
 bear on  the leaders and  participants
 of organized crime.
                                 [p. 601]
    Mr. YOUNG of Ohio.
 *****
    An example  of the flagrant flouting
  of  constitutional guarantees is con-
 tained in title II which establishes  a
  general immunity statute applicable to
  any Federal court,  grand jury,  or ad-
  ministrative proceeding, as well as con-
  gressional  proceeding. It replaces  a
  host of  carefully  drawn  and limited

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STATUTES AND LEGISLATIVE HISTORY
                                     299
specific immunity provisions and makes
inroads on the fifth amendment protec-
tion against self-incrimination which
are both undesirable  and unconstitu-
tional. Being a blanket provision, title
II obviously is not limited to organized
crime. Furthermore, the  bill  restricts
immunity to protection of an individ-
ual against use of  compelled testimony
or  documents but not against prosecu-
tion for matters as to which  a person
was compelled  to testify or  produce
documents.
   In 1892,  the Supreme Court held  a
similar immunity  statute unconstitu-
tional because it protected against use
of  evidence but  not  against  prosecu-
tion.  Since  that time Federal immu-
nity statutes have typically  provided
immunity against  prosecution  as well
as  use. This provision of the  bill is  a
serious erosion  of the  rights  guaran-
teed all Americans in the fifth amend-
ment to the  Constitution of the United
States.
*****
   Mr. President, the Washington office
of the American Civil Liberties Union
recently prepared a detailed analysis
of the manner in which the provisions
of the proposed bill run counter to the
law and spirit of the Constitution and
contain manifold possibilities for abuse.
I ask unanimous consent that this anal-
ysis be printed in  the  RECORD.
  There being no objection, the analy-
sis  was  ordered  to be printed in the
RECORD, as follows:
                                  [p. 852]
         TITLE II—GENERAL IMMUNITY
  Title II establishes a general immunity stat-
ute applicable to any federal court, grand jury
or administrative  proceeding,  as well as Con-
gressional  proceeding. It replaces  a host of
carefully drawn and limited specific  immunity
provisions  and  makes  inroads  on  the Fifth
Amendment  protection against self-incrimina-
tion which  are both undesirable and uncon-
stitutional.
  Being a  blanket provision, Title H obviously
is not limited  to  organized crime.  But there
are defects more striking than its unselective
breadth, particularly the restriction  of immun-
ity to protection  against use  of compelled
testimony or documents (or the "fruits" there-
of) against a person in a criminal  case, rather
than protection against prosecution for matters
as to  which a  person was compelled to testify
or produce documents.
  In  1892  the  Supreme Court held a  similar
immunity statute unconstitutional because it
protected only  against uae of evidence but not
against prosecution. Counaelman v. Hitchcock,
142 U.S. 547  (1892).  Since  then  federal  im-
munity  statutes  have typically  provided  im-
munity  as  to  prosecution,  not  only   use.
Counselman is still the law. See  Stevens v.
Marks, 383  U.S. 236,  244-46  (1966).  Only a
few years ago the Judiciary Committee reported
an  anti-racketeering  bill  (S.  2190) with  im-
munity against prosecution   rather than  just
use because of doubts that otherwise  the  law
would be unconstitutional. See  S. Kept.  No.
U9S, 89th Cong., 2d Sess. 19-20 (1966). Nothing
has happened since then to lessen those doubts.
  Title II may be of doubtful constitutionality
on  another  ground. It only gives protection
against the use of compelled testimony against
the witness  "in any criminal case." Although
the Fifth Amendment  is also framed in terms
of "any criminal  case" it has long been the
law that the Fifth Amendment offers protection
as to a variety of penalty or forfeiture pro-
ceedings.  Boyd v.  United States, 116 U.S.  616
(1886); c/.  One 1958 Plymouth Sedan v. Penn-
sylvania.,  380 U.S. 693 (1965). If  Title II is
intended to  apply to anything less than what is
covered by the  Fifth Amendment  it  is unconsti-
tutional, for the scope of the immunity must
at least equal  the scope of protection of  the
Fifth  Amendment. E.U-, Brown v. Walker,  161
U.S. 591 (1896).
  Title II has other defects. Although  a court
order  must  be  obtained in order to require a
witness  to  testify in  court  proceedings,  the
requirement is  a sham since  the court "shall"
issue  the order  if requested by  the  district
attorney,  and  therefore it has no discretion.
If he has the approval of the Attorney General,
the Deputy  Attorney  General or an Assistant
Attorney General, a  district  attorney  may
request such an order anytime he thinks a
person has  refused or is likely to refuse to
testify on  self-incrimination grounds   and if
he thinks the  testimony may be necessary to
the public interest. Such elastic standards leave
enormous uncontrollable leeway and possibility
for abuse.
  In addition, the power of the district attorney
to compel a witness to testify is  not even lim-
ited to cases in which the  government  is a
party. It is  apparently available in  any case in
a federal court, including civil actions between
private parties. The need for or propriety of
such power in  any civil proceeding, and par-
ticularly in  a non-governmental proceeding, is
highly questionable. This unjustifiable  breadth
—coupled with the lack of any effective court

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300
LEGAL COMPILATION—PESTICIDES
review or control, and the power granted under
Title III to incarcerate a witness who  refuses
to testify—compounds the potential for  abuse.
  Finally,  in  requiring  that a witness must
refuse to testify and specifically claim his Fifth
Amendment privilege, Title II creates unneces-
sary pitfalls for the unwary or unsophisticated,
particularly where the district attorney,  agency
or committee  has  already obtained or issued
an order compelling testimony. A naive or ill-
advised witness may well feel that there is no
point in claiming his privilege because  he can
be ordered to  testify, and for even the  fullest,
most incriminating testimony he would  receive
no immunity whatsoever.
                             [p. 853]
   Mr. THURMOND.
   Mr. President, I shall briefly review
 the  bill. Under title I, special grand
 juries to concentrate on criminal ac-
 tivities are provided for in major met-
 ropolitan  areas.  These grand juries
 will be empowered to  stay  in  session
 up  to 36  months,  can subpena wit-
 nesses,  compel  testimony  and issue
 public reports as well as bring indict-
 ments. Under title II, provisions are
 contained in the bill for expanding the
 granting of  immunity from  self in-
 crimination in legislative  and court
 proceedings in order to make better use
 of witnesses  in  criminal  proceedings.
 Under these provisions, immunity from
 the  use  of  testimony itself,  rather
 than from  prosecution itself is afford-
 ed. This will facilitate compelling wit-
 nesses to testify, as this immunity will
 prevent the use of the fifth amendment.
 Title  III provides  for  contempt  pro-
 ceedings without bail for recalcitrant
 witnesses in grand jury and court pro-
 ceedings.  Title III also makes  wit-
 nesses who avoid  State proceedings
 subject  to  Federal prosecution.  This,
 in conjunction with the previous title
 concerning immunity, will help prose-
 cutors in obtaining convictions where
 they have been in  the past hampered
 because  they  were unable to secure
 testimony. Title IV makes it easier to
 convict  witnesses of perjury.  Title V
 provides that the U.S.  Attorney Gen-
 eral can maintain witnesses and their
 families  under  Federal  protection
 when they testify in matters involving
 organized crime. Title VI provides for
 the taking of depositions of witnesses
 in criminal  cases in order to preserve
 their  testimony in  the  event they are
 unable to testify. Title V and  title VI
 should  be  most  beneficial in aiding
 Federal  prosecutors in securing  the
 testimony of witnesses against people
 involved in organized crime. The pres-
 ent difficulties in  gathering  evidence
 have been a substantial impediment to
 the effective prosecution of criminals
 involved in organized crime.
                              [p. 952]
 l.li (3) (b)   Jan. 23: Amended and passed Senate, p. 971,972
   Mr.  MANSFIELD. Mr.  President,
 sometimes I wish I were a lawyer. At
 other times I am very glad that I never
 entered that profession.
   We have now spent 3 days on this
 bill,  with the lawyers, by and large,
 arguing over the fine points of the pro-
 posed legislation which has been a year
 in the making.
   Undoubtedly there are bugs in this
 bill,  as there are in almost  any bill
 which the Senate  passes. But I  think
 the issue is so important that, insofar
 as the  bugs are concerned, we might
 well consider resolving our doubts  in
 favor of the legislation, so that we can
 attack  a menace which is becoming
 more and more difficult to cope with in
 this city and in this Nation.
    Therefore,  I  hope that  the Senate
 will go  on  record  today with a  solid
 vote of support for this legislation, so
 that we can indicate that we are ready
 to cope  with  the growing  criminality
 which is becoming  so prevalent and so
 hard to control throughout  the Nation,
 and do it with a big bang today.
    Mr. PASTORE. Amen.
    The  PRESIDING OFFICER. The
 bill having been read  the  third time,
 the question is, Shall it pass? On this
 question, the  yeas and  nays have been

-------
STATUTES AND LEGISLATIVE HISTORY
                               301
ordered, and the clerk will call the roll.
  The  assistant legislative clerk pro-
ceeded to call the roll.
                            [p. 971]
  The result was announced—yeas 73,
nays 1, as follows:
       *****
                                        So the bill (S.30) was passed.
                                                                 [p- 972]
l.li (3)  (c    Oct. 6, 7: Debated,  amended, and passed House, pp.
35191,  35196-35197,  35200,  35207-35208,   35012-35013,  35291,
35303-35304, 35313,  35321, 35335-35337, 35363-35364
  Mr. SISK. Mr. Speaker, by direction
of the  Committee on Rules, I  call up
House  Resolution 1235 and ask for its
immediate consideration.
  The  SPEAKER pro  tempore.  The
Clerk will report the resolution.
  The Clerk read the resolution.
  The  SPEAKER pro  tempore.  The
question is, Will the House now  con-
sider House Resolution 1235.
  The  question was taken; and (two-
thirds having voted in favor thereof)
the House  agreed to consider House
Resolution 1235.
       *****
  Title II of the bill is  a general im-
munity statute that will afford "use"
immunity rather than  "transaction"
immunity, in line with the provisions
of H.R. 11157 which was reported by
the Judiciary Committee on June 15th
of this year  and  is pending  on the
House calendar.
       *****
  Mr. Speaker, I  simply add the pur-
pose of this bill is to amend a number
of existing criminal statutes, with par-
ticular attention to the problems raised
by organized crime, in order to enable
local, State, and Federal law enforce-
ment officers  and  our  court systems
to deal more effectively with the prob-
lem of  organized crime in a number of
aspects.
  There are 12 different titles in  this
bill.
  In the interest of saving time and in
view of the fact that there are 3 hours
to discuss this and with the hope that
we  may adjourn  sine die before  No-
vember 3, Mr. Speaker, I will not go
into details on the explanation of the
bill.
  Mr.  Speaker, three members of the
Committee on the Judiciary filed addi-
tional  views and three members filed
dissenting views. The bill was reported
unanimously by the subcommittee and
as I understand it by a vote of 32 to 3
by the full committee.
                         [p. 35191]
  Mr. CELLER.
    TITLE II—WITNESS IMMUNITY
  Title II contains a general Federal
immunity statute that affords "use"
immunity rather than "transaction"
immunity when a witness  before  a
court,  grand  jury,  Federal agency,
either House of Congress, or congres-
sional committee or subcommittee as-
serts his  privilege against self-incrim-
ination. This title would  displace the
privilege against self-incrimination by
granting protection intended to be co-
extensive with the privilege; that is,
protection against the use of compelled
testimony directly or indirectly against
the witness in a criminal  proceeding.
                         [p. 35196]
  Mr. McCULLOCH.
  The  Committee on  the Judiciary
built upon the work of the other body.
The  first  10 titles still  retain their
basic thrust. The first five titles  are
designed to accomplish one simple pur-
pose: to get facts. Title I establishes
special grand juries which may exer-
cise  more  independence  in  fulfilling

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302
LEGAL COMPILATION—PESTICIDES
their, duties and may sit for a period
of time up to 36 months. In attempting
to find out the facts, the grand jury
may  summon  witnesses  and  compel
them to talk by granting them immu-
nity against the use of their testimony
against them—Title II. If they refuse
to talk, they may  be held in civil con-
tempts-Title III.  If they talk but do
not speak the truth, they may be tried
for perjury.  Title  IV eliminates medi-
eval rules of evidence which hobbled
prosecution for this crime. And if the
witness talks  and places his life in
jeopardy, title V  authorizes the Gov-
ernment to  protect him or  even to
relocate him.
                           [p. 35197]
       *****

   Mr. ST. GERMAIN.
   The major purpose of the legislation
under consideration today is to provide
the  criminal justice  system with the
necessary legal tools to get at organ-
ized crime. Titles  I through VII are
aimed at strengthening the  evidence
gathering process and insuring that
the evidence will then be available and
admissable at  trial. Briefly, title I in-
creases the powers and independence
of Federal grand juries investigating
organized  crime  cases; title  II con-
solidates  and  amends general  immu-
nity statutes with the purpose of  en-
couraging those implicated  in organ-
ized crime cases  to testify. Title  III
increases the  penalties  available  for
witnesses  who refuse to testify, and
title IV  would make perjury cases
easier to prosecute, in accordance with
 recommendations   of  the President's
Crime Commission. Title V  provides
for  protected facilities  for housing
 Government witnesses;  title VI  pro-
vides  for the taking of pretrial deposi-
tions in certain cases; and title VII is
 aimed at restricting within reason liti-
 gation concerning sources of evidence.
        *****
   Mr. POPF.
   Title II makes it possible to compel
 witnesses before the  grand juries or
 elsewhere to testify under a guarantee
 that neither  their  testimony nor the
 fruits of their testimony will be used to
 prosecute them.
                           [p. 35200]
   Mr. RYAN.
               TITLE II
   Title II proposes to supplant to abso-
 lute immunity granted to those forced
 to sacrifice their fifth amendment right
 to remain  silent, for  transaction, or
 use, immunity. I have previously ex-
 pressed my opposition to this departure
 in the law in my minority  views on
 H.R. 11157, the Federal Immunity of
 Witnesses Act, which has not come to
 the floor, but  which is incorporated
 into S. 30 as title II.
                           [p. 35207]
   Both  as  a matter of law  and  as a
 matter of policy, I believe title II raises
 serious questions. I am appending my
 views  on H.R.  11157—which is the
 same  as title II—in order that these
 questions may  be  thoroughly  expli-
 cated.
                           [p. 35208]

   Mr. BINGHAM.
    There seem to be many things in this
 bill that we  may  live to regret.  I  as-
 sume it will be passed, but I would like
 to commend  the three gentlemen who
 are members of the committee for their
 eloquent  and  courageous  separate
 views. I am most impressed with their
 views, as I am with the objections in
 the ACLU's letter.  The text  of that
 letter follows:
                            [p.35212]
       TITLE n—IMMUNITY OT WITNESSES
   Under the Fifth Amendment, no person may
  be compelled "in any criminal case to be a
  witness against himself."  Since 1892.  it has
  been the federal rule that in order to compel a
  person to testify, he must be "afforded absolute
  immunity  against  future prosecution for the

-------
STATUTES AND LEGISLATIVE HISTORY
                                  303
offense to which the question relates." Counsel-
man v. Hitchcock, 142 U.S. 547, 586  (1892).
Title II would greatly water down that protec-
tion, permitting the government to compel the
witness to testify in exchange only for a guar-
antee  that that specific testimony will  not be
used against him, directly or indirectly,  in a
future criminal trial.
  As we outlined in  our testimony  before the
House Judiciary Committee, this lowered stan-
dard is not a constitutionally adequate substi-
tute for the privilege against self-incrimination.
There are too  many  ways to make evidence
look as if it were independently obtained  even
though the compelled  testimony has really led
the  government to find it. Thus the defendant
will in fact  be compelled to contribute to his
own prosecution in direct violation of  a privi-
lege  which  the framers  of the Constitution
thought important enough to include  in the
Bill of Rights.
                            [p. 35213]

  Mr. POFF.
     TITLE II—GENERAL IMMUNITY
  Mr. Chairman, title II of S. 30 re-
places some 50 Federal immunity stat-
utes now in use with a single, compre-
hensive provision to be added to title
18 of the United States Code, to govern
grants of immunity in judicial, admin-
istrative, and congressional  proceed-
ings. As you know, the  President's
Crime Commission  recommended that
legislative action be  taken regarding
immunity  for grand jury  and  court
proceedings, and, at the suggestion of
the  National Commission  on the  Re-
form of Federal Criminal Laws, title
II has been  made to deal  comprehen-
sively with   the  overall problem  of
immunity grants to  facilitate the oper-
ations of the three branches of Gov-
ernment. The very fact that this highly
significant  subject   matter  is  to  be
treated in a  single part of the United
States Code, rather than  in 50-some
different   and  scattered  provisions,
should prove of considerable benefit.
  Title II marks a notable departure
from existing legislation on immunity.
Whereas existing legislation has gone
beyond the breadth  of the fifth amend-
ment privilege by granting transaction
immunity  — by  barring  prosecution
completely in respect to incriminating
testimony given — title II  creates a
restriction on the direct or indirect use
of the compelled testimony; such testi-
mony  may not be used in any way in
developing a prosecution of the witness
for any of his  past offenses—he will
not be forced directly or indirectly to
be a  witness against himself —  but
prosecution  itself will not absolutely
be barred.  You  will  recall that  the
President in his message on  organized
crime  commended to the Congress the
basic  concept of title II.  Specifically,
he said:
  I commend to the Congress for its considera-
tion . .  . [the proposal under which] a witness
could not be prosecuted on the basis of anything
he said while testifying, but he would  not be
immune from prosecution  based on other evi-
dence of his offense.
  I might add, Mr. Chairman, that the
use-restriction  immunity is  clearly
constitutional, taking note particularly
of two 1964  Supreme Court  decisions,
Malloy v. Hogan,  378  U.S.  1, and
Murphy  v.  Waterfront  Commission,
378 U.S. 52. On the subject of granting
immunity in general,  I  think  it very
fitting to repeat a comment made in
an 1896 Supreme Court opinion :
  Every good citizen is bound to aid  in the
enforcement of the law,  and has  no right to
permit himself, under the pretext  of  shielding
his own good name to be made  the tool of
others who are desirous of seeking shelter behind
his privilege (Brown v. Walker, 161 U.S.  591,
at 605).
  Mr.  Chairman, the Omnibus Crime
Control and Safe Streets Act of 1968
enlarged  the bases for grants of  im-
munity : they were to  be available in a
greater number of proceedings than
previously—proceedings  involving  a
greater number of offenses. But title
II of S. 30 is not limited to investiga-
tions involving any particular Federal
violations. Nonetheless, for the  De-
partment of Justice and the various
administrative agencies, the Attorney
General must approve use of the  im-
munity provisions, so that  this very
important matter of immunizing wit-
nesses will be  closely controlled.  No

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304
LEGAL COMPILATION—PESTICIDES
longer will any witness automatically
receive immunity under statutes that
title II will repeal; the  witness must
always claim his privilege against self-
incrimination before immunity will be
granted. This eliminates a danger that
a witness will  be immunized by some
oblique testimony relative to a crim-
inal transaction automatically—with-
out any claim of privilege—and hence
without forethought being given to the
matter by the Government. As Justice
White wrote in a  concurring  opinion
in Murphy  against Waterfront Com-
mission :
  Immunity must be as  broad as, but not harm-
fully and -wastef ully broader than, the privilege
against self-incrimination (at 378 U.S. 107).
  Where the witness  is before either
House of Congress, a grant of immu-
nity must be approved by a majority
vote  of the  Members  present,  and
where  the witness is before  a  joint
committee or a committee or subcom-
mittee of either House, an affirmative
vote of two-thirds of the full member-
ship of the committee is required. But
any such intention to seek an order to
compel testimony is to be brought to
the attention of the Attorney General
at  least 10  days before the order is
sought, and the title provides that the
district court shall defer the issuance
of  an order  up to  20  days  as  the At-
torney General may request. This pro-
cedure will allow for studied consulta-
tion and a weighing of the value and
possible consequences of immunizing a
particular witness, which procedure is,
 I believe, an appropriate means of pro-
tecting the overriding public  interest
 regarding grants of immunity.
   Mr. Chairman, title II of S. 30 arms
the Government with an ability, unique
 in  the history  of this  Nation, to crack
 the shell of secrecy surrounding orga-
 nized crime. While giving the witness
 all that is guaranteed him  under the
 Constitution, title II means that a wit-
 ness can no longer invoke  a privilege
 of  self-incrimination frivolously or in
 order to shield other parties and expect
 the Government to be impotent in the
 face of such conduct. Afforded the im-
 munity to which he has every right,
 the witness will have to discharge his
 civic responsibilities or face sanctions
 under title III of this legislation.
                           [p. 35291]
   Mr. RAILSBACK.
     TITLE II—GENERAL IMMUNITY
   A grand jury  subpena can compel
 the attendance of a witness and the
 production of books and records, but
 obtaining the witness' testimony  and
 inspection  of the books and  records
 cannot be accomplished at the expense
 of the privilege against self-incrimina-
 tion. In order to compel the testimony
 and not infringe upon the right to avoid
 self-incrimination, the concept of im-
 munity has arisen whereby the witness
 can be forced to testify and protected
 from having his testimony used against
 him. Historically two  types of immu-
 nity  have  been  recognized, one is
 "transaction" immunity and the other
 is "use"  immunity. Under the former,
 the  witness is protected from  any
 prosecution concerning the "transac-
 tion" no matter how much independent
 evidence unrelated to his testimony was
 uncovered for use against him. Under
 the "use" immunity, it is still possible
 to use unrelated evidence for a prose-
 cution so long as that evidence was not
 directly  or indirectly related  to the
 testimony given under immunity.
    In keeping with the recommendation
 of the President's Task Force, this leg-
 islation contains a general Federal im-
 munity statute. It provides "use" im-
 munity rather than "transaction" im-
 munity.
    Under recent court decisions, it  is
 anticipated that the "use" immunity is
 constitutionally sufficient. The cases of
 Malloy v. Hogan, 378 U.S. 1 and Mur-
 phy v.  Waterfront Commission, 378
                            [p. 35303]
 U.S. 52, 1964, seem to clearly sanction
 "use" immunity. A lengthy discussion

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STATUTES AND LEGISLATIVE HISTORY
                                305
of cases and the history of immunity
can be found in the Senate committee
report (S. Kept. 91-617)  at pages 51
et seq.
                           [p. 35304]
   Mr. PULTON.
       *****
   Title I of the measure provides for
grand jury procedures in high-crime
areas, providing the grand jury with
greater autonomy and permitting  its
convocations for a longer period  of
time.
   Title II provides for a uniform im-
munity statute in place of the 90 var-
ious  statutes  that  would presently
apply.
   Title III concerns the treatment of
recalcitrant witnesses, who under this
provision can be placed in jail during
the length of the grand jury meetings.
   Title IV  would  facilitate  Federal
perjury prosecutions  and  establish a
new false declaration provision.
   Title V would provide protected fa-
cilities  for  government witnesses  in
order to protect their safety.
   Title VI would authorize the govern-
ment to preserve testimony by the use
of depositions in criminal proceedings.
   Title VII would overrule Supreme
Court decisions concerning' the gather-
ing and usage  of electronic evidence,
thereby providing a balanced  law in
this area.
   Title VIII, a  multifaceted provision,
concerns itself with syndicated gam-
bling.
   Title IX  develops a new criminal
code chapter entitled  "Racketeer In-
fluenced and Corrupt  Organizations";
it provides an easier standard of proof
against organizations  believed  to  be
racketeer influenced.
   Title X authorizes special sentencing
for dangerous offenders, protecting so-
ciety from the criminal recidivist.
  Title XI regulates explosives, their
licensing, manufacture and sale.
   Title XII  establishes  a National
Commission on Individual Rights, em-
powered to  conduct a comprehensive
study and review of relevant Federal
laws.
  Title XIII  contains  a severability
clause.
                          [p. 35313]
  Mr. STRATTON.
       *****
  Although the House is voting basi-
cally on the measure that was passed
in the other body earlier this year, the
members and  staff of the House Judi-
ciary Committee are to  be commended
for the long hours of diligent work they
spent refining the  bill.  Some 50-odd
changes  were  made  and  over  50
amendments were offered. In  sum, al-
though I do not agree with all the pro-
visions of the  bill, I do think the com-
mittee's  efforts are  well worthy  of
support,  and I urge my colleagues to
approve the comprehensive proposals.
  The general terms  of the proposals
are as follows. The first five  titles of
the act are designed to accomplish one
simple purpose;  to  improve  present
fact gathering methods  in  criminal
proceedings. Title I establishes special
grand juries which may exercise more
independence in fulfilling their duties
and may sit for a period of time up to
36 months. In  attempting to ferret out
the facts, the grand jury may  summon
witnesses and  compel them to talk by
granting them immunity against  the
use of their testimony against them—
title II. If they refuse to talk, they may
be held in civil  contempt—title  III. And
if they give false evidence, they may
be tried for perjury. Title IV elimi-
nates medieval rules of evidence which
have hobbled the prosecution's ability
to cope with this special type of grand
jury witness. And if the witness talks
and by so  doing  places his life  in
jeopardy, title V authorizes the Gov-
ernment to protect him or even to re-
locate him.
                          [p. 35321]
  The  CHAIRMAN.  If there are no
further amendments to  title I,  the
Clerk will read.
  The Clerk read as follows:

-------
306
LEGAL  COMPILATION—PESTICIDES
      TITLE II—GENERAL IMMUNITY
  SEC. 201. (a)  Title 18, United  States  Code,
is amended by  adding immediately  after  part
IV the following new part:
      "PART V.—IMMUNITY OF WITNESSES
"Sec.
"6001. Definitions.
"6002. Immunity generally.
"6003. Court and grand jury proceedings.
"6004. Certain administrative proceedings,
"6005. Congressional proceedings.
"§ 6001. Definitions
  "As used in this part—
  "(1)  'agency  of  the  United States'  means
any executive department as defined in section
101  of title 5,  United States Code,  a  military
department as  defined in section 102 of title 5,
United States  Code, the Atomic Energy  Com-
mission,  the  China Trade Act registrar  ap-
pointed under 53 Stat. 1432 (15 U.S.C. sec. 143),
the  Civil  Aeronautics Board, the Federal com-
munications Commission, the  Federal  Deposit
Insurance Corporation,  the  Federal Maritime
Commission, the Federal  Power  Commission,
the  Federal Trade  Commission, the Interstate
Commerce  Commission, the  National  Labor
Relations  Board, the National Transportation
Safety  Board,  the Railroad Retirement Board,
an  arbitration  board established under  48 Stat.
1193 (45  U.S.C. sec. 157), the Securities  and
Exchange Commission,  the  Subversive Activi-
ties Control Board, or a board established under
49 Stat. 31 (15 U.S.C. sec. 7l5d) ;
  "(2)  'other information'  includes any  book,
paper,  document,  record,  recording, or  other
material;
  "(3)  'proceeding  before  an  agency of  the
United States'  means  any  proceeding before
such an  agency  with  respect  to which  it is
authorized to issue  subpenas and to take testi-
mony or receive other  information from wit-
nesses under oath; and
  "(4)  'court of the United  States'  means  any
of the following courts: the Supreme Court of
the  United States, a United States court of ap-
peals, a United States district court established
under chapter  5, title 28,  United States  Code,
the  District of Columbia  Court of  Appeals,
the  Superior Court  of the District of Columbia,
the  District Court of Guam, the District  Court
of the Virgin Islands, the United States  Court
of Claims, the United States Court of Customs
and  Patent Appeals, the  Tax  Court of  the
United States, the Customs Court, and the Court
of Military Appeals.
"§ 6002. Immunity generally
  "Whenever a witness refuses, on the  basis of
his  privilege against self-incrimination, to tes-
tify or provide  other information in a proceed-
ing  before or ancillary to—
  "(1)  a  court  or  grand  jury of the United
States,
  "(2) an agency of the United States, or
  "(3)  either House of Congress, a joint com-
 mittee of the two Houses, or a committee or a
 subcommittee of either House,
 and  the  person presiding over the proceeding
 communicates  to  the  witness an order  issued
 under this part, the witness may not refuse to
 comply with the order on the basis of his privi-
 lege against self-incrimitiation;  but no testi-
 mony or other  information  compelled under  the
 order (or any information directly or indirectly
 derived from such testimony or other informa-
 tion) may be used against the witness in any
 criminal case, except a prosecution for perjury,
 giving a  false statement, or otherwise failing
 to comply with the order.
 "§ 6003. Court and grand jury proceedings
   "(a) In the  case of  any individual who has
 been  or  may  be  called  to testify  or provide
 other  information at  any proceeding  before
 or ancillary to a court  of the United  States
 or a grand jury of the United States, the United
 States district  court for the judicial district in
 which the proceeding is  or may  be held shall
 issue, in accordance with subsection  (b) of this
 section, upon the request of  the  United  States
 attorney for such district, an  order requiring
 such  individual to give  testimony  or provide
 other information which he refuses to give or
 provide on the basis of his privilege against
 self-incrimination, such order to become effec-
 tive as provided in section  6002 of this part.
   "(b)  A United States attorney  may, with
 the  approval  of  the  Attorney  General,  the
 Deputy Attorney General,  or  any  designated
 Assistant Attorney  Genera], request an order
 under subsection  (a)  of this section when in
 his judgment—
   "(1) the testimony or other information from
 such  individual may be necessary to the public
 interest; and
   "(2)  such individual has refused or is likely
 to refuse to testify or provide other information
 on  the  basis  of his  privilege  against self-
 incrimination.
 "§ 6004. Certain administrative proceedings
   "(a)  In the case  of any individual who  has
 been or who may  be called  to testify or provide
 other information at any proceeding before an
 agency of the United States, the agency may,
 with  the  approval  of the Attorney  General,
 issue, in accordance with subsection  (b) of this
 section,  an  order requiring the individual to
 give  testimony or provide other information
 which he refuses to give or provide on the basis
 of his privilege against self-incrimination, such
 order to become effective as provided in section
 6002 of this part.
    "(b)  An agency  of the United  States  may
 issue an order under subsection  (a)  of  this
 section only if in its judgment—
   " (1)  the  testimony  or  other information
 from such individual may  be necessary  to  the
 public interest; and
    "(2) such individual has refused  or is likely
 to refuse or provide other information on  the

-------
  STATUTES AND LEGISLATIVE HISTORY
                                        307
  basis of his privilege against self-incrimination.
  "§ 6005. Congressional proceedings
    "(a) In the case of any  individual who has
  been or  may  be called  to  testify  or  provide
  other  information  at  any  proceeding  before
  either House of  Congress,  or any  committee,
  or any  subcommittee of either House, or  any
  joint committee of the two Houses, a United
  States district court shall issue,  in  accordance
  with subsection  (b) of this section, upon the
  request  of a duly authorized  representative of
  the  House of  Congress or the committee con-
  cerned,  an  order requiring  such  individual to
  give  testimony  or  provide  other information
  which he refuses to give or provide on the basis
  of his privilege against seJf-incrimination, such
  order to become  effective as  provided in section
  6002 of this part.
    "(b)  Before  issuing an  order  under  sub-
  section  (a)  of  this section,  a United  States
  district court shall find  that—
    "(1)  in the case of a proceeding before  either
  House  of Congress, the request  for such an
  order has been approved by  an affirmative vote
  of a  majority  of the Members present of that
  House;
    "(2)  in the case  of a  proceeding before  a
  committee or a  subcommittee  of  either  House
  of Congress or a joint committee of both Houses,
  the request for such an order has been approved
  by an  affirmative  vote of  two-thirds of  the
  members of the full committee ; and
    "(3)  ten  days or more prior to the day on
  which the request for such an order  was made,
  the  Attorney General  was  served with  notice
  of an intention to request the order.
    "(c)  Upon  application of  the Attorney Gen-
/era\, the United States  district  court shall defer
                                   [p. 35335]
  the issuance of any order  under subsection  (a)
  of this section for such period, not longer than
  twenty days from the date  of the request for
  such   order,   as  the  Attorney  General   may
  specify."
    (b)  The table of parts for  title  18, United
  States Code, is amended  by  adding  at the  end
  thereof the following :
  "V.  Immunity of Witnesses	  6001".
    SEC. 202. The third sentence of paragraph (b)
  of section 6 of the Commodity Exchange  Act
  (69 Stat. 160 ; 7 U.S.C.  15) is amended by  strik-
  ing  "49 U.S.C. 12,  46, 47,  48, relating to  the
  attendance  and  testimony  of witnesses,  the
  production of  documentary  evidence, and  the
  immunity of  witnesses"  and   by  inserting  in
  lieu  thereof the  following:  "(49  U.S.C.  § 12),
  relating  to the  attendance  and  testimony  of
  witnesses and  the production  of  documentary
  evidence,".
    SEC. 203. Subsection  (f) of section 17 of  the
  United States  Grain Standards Act (82  Stat.
  768 ; 7 U.S.C. § 87f(f)), is repealed.
    SEC. 204. The second sentence of section B of
  the Act entitled  "An Act  to regulate the mar-
keting  of  economic  poisons  and  devices,  and
for other  purposes",  approved June 25, 1947
 (61 Stat. 168; 7 U.S.C. § 135c), is amended by
inserting after "section",  the following  lan-
guage:   ", or  any evidence  which  is directly
or indirectly derived  from such evidence,".
  SEC. 205. Subsection  (f) of -section 13  of the
Perishable Agricultural Commodities Act, 1930
(46 Stat. 536;  7 U.S.C. §  499m(f)), is repealed.
  SEC. 206. (a) Section  16  of  the Cotton Re-
search  and Promotion Act  (80  Stat.  285;  7
U.S.C.  § 2115) is  amended  by striking  "(a)"
and by striking subsection (b).
  (b) The section  heading  for  such section 16
is amended by striking ": Self-Incrimination",
  SEC.  207. Clause (10)  of subsection   (a) of
section  7 of the Act entitled "An Act to estab-
lish a uniform system of bankruptcy through-
out the United States",  approved  July 1, 1898
(52  Stat.  847;  11  U.S C.   §  25(a)(10)),  is
amended by inserting after the first use  of the
term  "testimony" the following language: ", or
any  evidence   which  is  directly  or indirectly
derived from such testimony,".
  SEC. 208. The fourth sentence  of  subsection
(d)  of section  10 of the Federal Deposit  Insur-
ance Act (64 Stat.  882; 12 U.S.C.  §  1820 (d)),
is repealed.
  SEC. 209. The seventh  paragraph  under the
center heading "DEPARTMENT OF  JUSTICE"  in
the first  section of the Act of  February 25, 1903
(32 Stat. 904;  15 U.S.C.  §  32), is amended by
striking ": Provided,  That" and all that follows
in that paragraph and inserting in lieu thereof
a period.
  SEC. 210. The Act of June 30, 1906 (34 Stat.
798 ; 15 U.S.C. § 33), is repealed.
  SEC. 211. The seventh  paragraph  of section
9 of  the Federal  Trade  Commission Act (38
Stat. 722 ; 15 U.S.C. §  49),  is repealed.
  SEC. 212. Subsection  (d)   of  section  21  of
the Securities Exchange Act  of 1934 (48 Stat.
899 ; 16 U.S.C. § 78u(d)), is repealed.
  SEC. 213. Subsection  (c)  of  section  22  of
the  Securities  Act of  1933   (48  Stat. 86;  16
U.S.C. §  77v(c)), is  repealed.
  SEC. 214. Subsection  (e)  of  section  18  of
the  Public  Utility Holding  Company Act of
1935  (49 Stat.  831;  15  U.S.C. §  79r(e)), is
repealed.
  SEC. 215. Subsection  (d)   of  section  42  of
the Investment  Company  Act of  1940  (64
Stat.  842; 15 U.S.C. § 80a-41(d)),  is repealed.
  SEC. 216. Subsection (d)  of  section 209  of
the Investment Advisers Act of 1940 (54 Stat.
853; 15  U.S.C.  § 80b-9(d)), is repealed.
  SEC. 217. Subsection  (c)  of section   16  of
the China  Trade Act, 1922  (42 Stat. 963;  16
U.S.C. §  155(o)). is  repealed.
  SEC. 218. Subsection  (h)   of  section  14  of
the Natural Gas Act (62 Stat.  828; 16  U.S.C.
§ 717m(h)), is repealed.
  SEC. 219.  The first proviso of section  12 of
the Act entitled "An  Act  to  regulate the inter-

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308
LEGAL COMPILATION—PESTICIDES
state distribution  and sale of packages of haz-
ardous  substances  intended  or  suitable  for
household  use,"  approved  July  12,  1960  (74
Stat. 379; 15  U.S.C. § 1271), is amended by
inserting  after "section"  the  following  lan-
guage:  ", or  any evidence which ia  directly
or indirectly derived from such  evidence,".
  SEC. 220. Subsection  (e)  of section  1415 of
the Interstate  Land  Sales Full  Disclosure Act
(82 Stat. 596;  15 U.S.C. § 1714(e)), is repealed.
  SEC. 221. Subsection  (g)  of  section SOT of
the Federal Power Act (49 Stat. 856;  16 U.S.C.
§ 825f(g)), is repealed.
  S'EC. 222. Subsection  (b)  of  section 835 of
title  18,  United  States Code,  is  amended by
striking the third sentence thereof.
  SEC. 223. (a) Section 895  of title 18, United
States Code, is  repealed.
  (b) The table  of  sections of  chapter  42 of
such  title  is amended by striking the item re-
lating to section 895.
  SEC. 224. (a) Section  1406 of title 18, United
States Code, is  repealed.
  (b) The table  of  sections of chapter  68  of
such  title is  amended  by  striking  the  item
relating to section 1406.
  SEC. 225.  Section  1954 of  title 18, United
States Code, is amended by striking "(a)  Who-
ever" and inserting  in lieu  thereof "Whoever"
and by striking subsection (b) thereof.
  SEC. 226. The second sentence of subsection
 (b), section 2424,  title 18, United States  Code,
is amended by  striking "but no person" and all
that follows in that subsection and inserting in
lieu thereof: "but no information contained in
the statement  or any evidence which is directly
or indirectly derived from such information may
be used against any  person  making such  state-
ment in any criminal case, except a prosecution
for perjury,  giving a false statement or other-
wise failing to  comply with this section."
  S'EC. 227. (a) Section  2514 of title 18, United
States  Code,   is  repealed  effective four  years
after the effective date of this Act.
   (b) The table of sections of  chapter 119 of
such title is amended by striking the item re-
lating to section 2514.
  SEC. 228. (a) Section  3486 of title 18, United
States Code, is repealed.
   (b)  The table  of sections of  chapter 223 of
such title is amended by striking the item re-
lating to section 3486.
  SEC. 229. Subsection  (e) of section 333 of the
Tariff Act of  1930 (46 Stat.  699 ;  19  U.S.C.  §
 1333 (e) ), is amended  by striking  ":  Provided
That" and all that  follows in  that subsection
and inserting in lieu thereof  a period.
  SEC. 230. The first proviso  of  section 703 of
the  Federal Food, Drug, and Cosmetic Act, ap-
proved June 25, 1938 (52 Stat. 1057; 21 U.S.C.
§ 373), is amended by inserting after "section"
the  following  language:  ",  or any  evidence
which is  directly or  indirectly derived  from
such evidence,".
   SEC. 231. (a)  Section  4874 of the  Internal
 Revenue Code of 1954 is repealed.
   (b) The table of sections of part III of sub-
 chapter  (D) of  chapter 39  of such  Code  is
 amended by striking the item relating to section
 4874.
   SEC. 232. Section 7493 of the Internal Revenue
 Code of 1964 is repealed.
   SEC. 233.  The table of sections of part III  of
 subchapter  (E),  of chapter 76  of the  Internal
 Revenue Code  of 19B4 is amended  by striking
 the item relating  to section 7493.
   SEC. 234.  Paragraph (3) of section 11 of the
 Labor Management  Relations  Act,  1947  (49
 Stat. 465 ; 29 U.S.C. § 161(3) ), is repealed.
   SEC. 235. The  third sentence of  section 4  of
 the Act entitled  "An  Act to  provide that tolls
 on certain bridges over navigable waters of the
 United States  shall be just and reasonable, and
 for other purposes",  approved August 31, 1935
 (49 Stat. 671; 33 U.S.C. § 506), is repealed.
   SEC. 236.  Subsection (f) of  section 205 of the
 Social  Security  Act  (42  U.S.C. {  405  (f)  )
 is repealed.
   SEC. 237. Paragraph c of  section  161  of the
 Atomic Energy Act of 1954  (68 Stat. 948 ;  42
 U.S.C. § 2201 (c) ), is amended by striking the
 third sentence thereof.
   SEC. 238.  The last sentence of the first para-
 graph of subparagraph (h)  of  the paragraph
 designated "Third" of section 7 of the Railway
 Labor Act  (44 Stat. 582; 45 U.S.C. § 157), is
 repealed.
   SEC. 239. Subsection (c) of section 12 of the
 Railroad Unemployment Insurance Act (52 Stat.
 1107 ; 46 U.S.C. § 362(c) ), is repealed.
   SEC. 240. Section  28 of the Shipping  Act  of
 1916 (39 Stat. 737 ; 46 U.S.C. I 827), is  repealed.
   SEC. 241.  Subsection (c) of section 214 of the
 Merchant Marine Act, 1936  (49 Stat.  1991;  46
 U.S.C. § 1124(c)  ), is repealed.
   SEC. 242. Subsection (i) of  section 409 of the
 Communications Act of 1934  (48 Stat.  1096;  47
 U.S.C. § 409(1) ), is repealed.
   SEC. 243. (a) The second sentence of  section
 9 of the Interstate Commerce  Act (24 Stat. 382;
 49  U.S.C.  § 9), is amended by striking  "; the
 claim" and all that follows in that sentence and
 inserting in lieu thereof a period.
    (b) Subsection (a) of section 316 of the Inter-
 state Commerce  Act (54  Stat. 946; 49 U.S.C. §
 916(a) ),  is amended by striking  the  comma
 following "part  I" and by striking ", and the
 Immunity of  Witnesses Act  (34 Stat. 798;  32
 Stat. 904, ch. 755, sec. 1),".
    (c) Subsection (a) of section 417 of the Inter-
 state Commerce  Act (49 U.S.C.  § 1017 (a) ), is
 amended  by striking the comma  after "such
 provisions" and  by  striking  ", and of the Im-
 munity of Witnesses Act (34  Stat.  798  ; 32 Stat.
 904, ch. 756, sec.  1),".
    SEC. 244. The third sentence of section 3 of the
 Act entitled "An Act to further regulate Com-
 merce  with foreign  nations and  among  the

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STATUTES AND LEGISLATIVE HISTORY
                                    309
States", approved February 19, 1903 (32 Stat.
848; 49 U.S.C. § 43), is amended by striking
"; the claim" and all that follows in that sen-
tence down through and including  "Provided,
That the  provisions"  and inserting in  lieu
thereof ". The provisions".
  SEC.  245. The first paragraph of  the Act of
February 11, 1893 (27 Stat. 443; 49 U.S.C. § 46),
is repealed.
  SEC. 246. Subsection (i) of section  1004 of the
Federal Aviation Act of 1958 (72 Stat. 792 ; 49
U.S.C. § 1484(i) ), is repealed.
  SEC. 247. The ninth sentence of subsection (c)
of section 13 of the Internal Security  Act of
1950 (81 Stat. 768; 50 U.S.C.  § 792(c) ). is
repealed.
  SEC.  248. Section 1302 of the Second War
Powers Act  of 1942 (56 Stat. 185; 60 U.S.C,
App. § 643a), is amended by striking the fourth
sentence thereof.
  SEC. 249. Paragraph (4)  of subsection  (a) of
section 2 of the Act entitled "An Act to expedite
national defense, and for other purposes", ap-
proved  June 28, 1940 (54 Stat. 676 ; BO U.S.C.
App. §  1152(a) (4) ), is amended by striking the
fourth sentence thereof.
  SEC.  250. Subsection  (d) of section 6 of the
Export Control  Act of  1949  (63 Stat.  8;  60
U.S.C. App. § 2026 (b) ), is repealed.
  SEC. 261. Subsection (b) of section 705  of the
Act of  September 8, 1960,  to amend the  Tariff
Act of 1930 (64 Stat. 816; 50 U.S.C. § 2155(b) ),
is repealed.
  S'EC.  252. Section 23-545  of  the District of
Columbia Code is repealed.
  SEC. 253. Section 42 of the Act of  October 9,
1940, 54 Stat. 1082 (D.C. Code, sec. 35-1346), is
repealed.
                              [p. 35336]

  SEC.  264. Section 2  of the Act of June 19,
1934, 48 Stat. 1176  (section 35-802,  District of
Columbia Code), is repealed.
  SEC. 265.  Section  29 of the Act of March 4,
1922, 42 Stat. 414  (section 35-1129,  District of
Columbia Code), is repealed.
  SEC. 256. Section 9 of the Act of February 7,
1914, 38 Stat. 282, as amended (section 22-2721,
District of Columbia Code), is repealed.
  SEC. 257. Section 5 of the Act of February 7,
1914, 38 Stat. 281 (section 22-2717,  District of
Columbia Code),  is amended  by striking  out
"2721" and inserting in lieu thereof "2720".
  SEC. 258. Section 8 of the Act of February 7,
1914, 38 Stat. 282 (section 22-2720,  District of
Columbia Code),  is amended  by  striking  out
"2721" and inserting in lieu thereof "2720".
  SEC. 259. In addition to the provisions of law
specifically amended or specifically repealed by
this title, any other provision of law inconsistent
with the provisions of part V of title 18, United
States Code (adding by title II of this Act), is
to that extent amended or repealed.
  SEC. 260. The provisions of part V  of title 18,
United  States Code, added by title  II of this
Act, and the amendments and repeals made by
title II  of  this  Act, shall take effect on the
sixtieth  day following  the date of the  enact-
ment of this Act. No amendment  to or  repeal
of any provision of law under title  II of this
Act shall affect any immunity to which any in-
dividual is  entitled under such provision  by
reason of any testimony or other  information
given before such day.
   Mr. CELLER (during the reading).
Mr.  Chairman, I ask unanimous  con-
sent that  title II be considered as  read,
printed in  the RECORD, and  open  to
amendment at any point.
   The CHAIRMAN. Is there objection
to the  request of the gentleman  from
New York?
   There was no objection.
                              [p. 35337]
   The  CHAIRMAN. The question is
on the committee  amendment in  the
nature of a substitute.
   The  committee  substitute  amend-
ment was agreed to.
   The  CHAIRMAN. Under the  rule,
the Committee rises.
   Accordingly  the  Committee rose;
and  the Speaker having  resumed  the
chair,  Mr.  ROONEY  of  New York,
Chairman of the  Committee  of  the
Whole House on the State of the Union,
reported  that that Committee having
had under consideration the bill (S. 30)
relating  to the control  of  organized
crime in  the  United  States, pursuant
to House  Resolution 1235, he reported
the  bill back to the  House with  an
amendment adopted by the Committee
of the Whole.
   The  SPEAKER. Under  the  rule,
the previous question is ordered.
   The question  is on the amendment.
   The amendment was agreed to.
   The SPEAKER. The  question is on
the  engrossment and third reading of
the bill.
   The bill was ordered to be engrossed
and read  a third time,  and  was  read
the third time.
   The SPEAKER. The  question is on
the passage of the bill.
   The  question  was taken;  and the
Speaker announced that the ayes ap-
peared to have it.

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310
LEGAL COMPILATION—PESTICIDES
   Mr. GERALD R. FORD. Mr. Speak-
er, I object to the vote on the ground
that a quorum is not present, and make
the point of order that a quorum is not
present.
   The SPEAKER. Evidently a quorum
is not present.
   The Doorkeeper will close the doors,
the Sergeant-at-Arms will notify ab-
 sent Members, and the Clerk will call
 the roll.
   The question was taken; and there
 were—yeas 341, nays 26, not voting 63,
 as follows:
    So the bill was passed.
[p. 35363]

[p. 35364]
l.li  (3)  (d)   Oct. 12: Debated, Senate concurred in  House amend-
ment, pp. 36280-36283, 36293-36294, 36296
   ORGANIZED CRIME CONTROL
             ACT OP 1970
   Mr. McCLELLAN. Mr. President, I
ask the Chair to lay before the Senate
a message from the House of Repre-
sentatives on S. 30.
   The  PRESIDING OFFICER  (Mr.
SPARKMAN)  laid before the Senate the
amendment of the House of Represen-
tatives  to the bill  (S.  30)  relating to
the control of organized crime in  the
United  States which was to strike out
all  after the enacting clause, and in-
sert:

   That this Act may be cited as the "Organized
Crime Control Act of 1970."
         *****

                               [p. 36280]

     TITLE II—GENERAL IMMUNITY
   SEC. 201. (a)  Title 18, United States Code, is
amended by adding immediately  after part IV
the following new part:
     "PART V.—IMMUNITY OP WITNESSES
"SEC.
"6001.  Definitions.
 "6002.   Immunity generally.
"6003.   Court and grand jury proceedings.
 "6004.   Certain administrative proceedings.
 "6005.   Congressional proceedings.
 "§ 6001.   Definitions
   "As used in this part—
   " (1) 'agency of the United States' means any
 executive department as defined  in section 101
 of title 5. United States Code, a military depart-
 ment as denned in section 102 of title, 5, United
 States Code, the Atomic Energy Commission, the
 China Trade Act registrar appointed under 63
                               [p. 36281]
 Stat. 1432 (15 U.S.C. sec. 143), the Civil Aero-
 nautics  Board,  the  Federal  Communications
 Commission,  the Federal  Deposit Insurance
 Corporation, the Federal Maritime Commission,
 the Federal  Power Commission, the Federal
 Trade Commission, the Interstate  Commerce
 Commission,  the  National  Labor  Relations
 Board,  the  National  Transportation  Safety
 Board, the Railroad Retirement Board, an arbi-
 tration board established under 48  Stat. 1193
 (45 U.S.C. sec.  157), the Securities and  Ex-
 change Commission, the  Subversive  Activities
 Control Board, or a board established under 49
 Stat. 31 (15 U.S.C. sec. 715d) ;
   "(2)  'other information*  includes any book,
 paper,  document,  record, recording, or other
 material;
   "(3)  'proceeding before  an  agency of the
 United States' means  any  proceeding before
 such an agency with respect to which it is au-
 thorized to issue subpenas and to take testimony
 or receive other information  from  witnesses
 under oath; and
   "(4)  'court of the United States' means any
 of the following courts: the Supreme Court of
 the United States, a United States court of
 appeals, a United States district court estab-
 lished under  chapter B, title 28, United States
 Code, the District of Columbia Court of Appeals,
 the Superior  Court of the District of  Columbia,
 the District Court of Guam, the District Court
 of the Virgin Islands, the United States Court
 of Claims, the United States Court of Customs
 and  Patent  Appeals,  the  Tax Court of the
 United  States, the  Customs  Court,  and the
 Court of Military Appeals.
 "§ 6002. Immunity generally
   "Whenever a witness refuses, on the basis of
 his  privilege  against  self-incrimination, to
 testify or provide other information in a  pro-
 ceeding before or ancillary to—
   "(1) a court  or grand jury of the United
 States,
   " (2) an agency of the United States, or
   "(3) either House of Congress, a joint com-
 mittee of the two  Houses, or a committee or a
 subcommittee of either House,
 and the person  presiding over  the proceeding
 communicates to the witness an order issued
 under this part, the witness may not refuse to
 comply with  the order on the basis of his privi-
 lege against self-incrimination; but no testi-

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STATUTES AND LEGISLATIVE HISTORY
                                        311
mony or other information compelled under the
order (or any information directly or indirectly
derived from  such testimony or other informa-
tion) may be used against the witness in any
criminal case, except a prosecution for perjury,
giving a  false statement, or otherwise failing
to comply with the order.
"§ 6003. Court and grand jury proceedings
  "(a)  In the case  of  any individual who has
been or may be called to testify or provide other
information at any  proceeding before or  ancil-
lary to a  court of the United States  or a grand
jury of  the United  States, the United  States
district court for the judicial district in which
the proceeding is or may be held shall issue, in
accordance with  subsection (b) of this section,
upon the request of the United States attorney
for such district, an order requiring such indi-
vidual  to  give testimony or provide other infor-
mation which he refuses  to give or  provide  on
the basis of his privilege against self-incrimina-
tion, such order  to become effective as provided
in section 6002 of this part.
  "(b) A United States attorney may, with the
approval  of the  Attorney General, the  Deputy
Attorney General, or any designated Assistant
Attorney  General, request an  order  under sub-
section  (a) of this  section when  in his  judg-
ment—-
  "(1) the testimony or other information from
such individual may be necessary to the public
interest; and
  "(2) such individual has refused or is  likely
to refuse to testify or provide other information
on  the  basis  of his  privilege  against  se]f-
incrimination.
"§ 6004. Certain administrative proceedings
  "(a)  In the case  of  any individual who has
been or who may be called to testify or provide
other information at any  proceeding before  an
ag-ency  of the United States,  the  agency may,
with the  approval  of the Attorney General,
issue, in accordance with subsection  (b) of this
section,  an order requiring  the individual  to
give testimony  or  provide other  information
which he  refuses to give or provide on the basis
of his privilege against self-incrimination, such
order to become  effective  as provided in section
6002 of this part.
  "(b)  An agency  of  the United  States may
issue an  order  under  subsection  (a)  of this
section only if in  its judgment—
  "(1) the testimony or other information from
such individual may be necessary to the public
interest; and
  "(2) such individual has refused or is  likely
to refuse to testify or provide other information
on  the  basis  of his  privilege  against  self-
incrimination.
"§ 6006. Congressional proceedings
  "(a) In the case  of  any individual who has
been or may be called to testify or provide other
information at  any proceeding before  either
House  of Congress,  or any committee,  or any
subcommittee of  either  House,  or any  joint
committee of the  two Houses, a  United States
district court shall issue,  in  accordance with
subsection (b) of this section,  upon the request
of  a  duly  authorized  representative  of  the
House of  Congress or the committee concerned,
an  order  requiring  such  individual  to  give
testimony  or provide other  information which
he refuses to give  or provide on the basis of his
privilege against self-incrimination, such  order
to become effective as provided in section 6002
of this part.
  "(b) Before issuing an order under subsection
(a)  of this  section,  a  United  States  district
court shall find that—
  "(1) in the case of a proceeding before either
House of  Congress,  the request  for such  an
order has been approved by an affirmative vote
of a majority of the Members present  of that
House;
  "(2)  in the case of a  proceeding before a
committee or a subcommittee of  either House
of  Congress  or a  joint  committee  of  both
Houses, the request for such an order has been
approved by an affirmative vote of two-thirds of
the members of the full committee ; and
  "(3)  ten days or more prior to the  day on
which the  request  for such  an  order was made,
the Attorney General was served with notice of
an intention to request the order.
  "(c) Upon application of the Attorney Gen-
eral, the United States district court shall defer
the issuance of any order under subsection  (a)
of this section for such period, not longer than
twenty days from the date of  the request  for
such  order,  as  the  Attorney   General  may
specify."
  (b)  The table of parts for  title 18,  United
States Code, is amended by adding at the end
thereof the following:
"V.  Immunity of  Witnesses 	6001".
  SEC. 202. The third sentence  of  paragraph
(b) of section 6 of the Commodity Exchange
Act  (69 Stat. 160; 7  U.S.C. 15}  is amended by
striking "49  U.S.C. 12,  46,  47, 48, relating to
the attendance and testimony of witnesses,  the
production of documentary evidence, and  the
immunity  of witnesses" and  by  inserting in
lieu  thereof the following: "(49  U.S.C.  §  12),
relating  to the attendance and  testimony of
witnesses  and the production  of  documentary
evidence,".
  SEC. 203. Subsection (f) of section  17 of  the
United  States Grain Standards Act  (82  Stat.
768; 7 U.S.C. §  87f(f)),  is repealed.
  SEC. 204. The  second sentence of section 5 of
the Act entitled "An Act to regulate the mar-
keting of  economic poisons and  devices,  and
for other  purposes",  approved June 25, 1947
(61 Stat.  168; 7 U.S.C. § 135c), is amended by
inserting  after  "section",  the following lan-
guage:  ",  or any  evidence which is directly or
indirectly derived  from such evidence,".
  SEC. 205. Subsection (f) of section  13 of  the

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312
LEGAL COMPILATION—PESTICIDES
Perishable Agricultural  Commodities Act, 1930
(46 Stat. 636; 7 U.S.C. § 499m(f)), is repealed.
  SEC. 206. (a) Section  16  of  the Cotton Re-
search and Promotion  Act  (80  Stat.  285; 7
U.S.C. §  2115)  is  amended  by striking "(a)"
and by striking subsection (b).
  (b) The section  heading  for  such section 16
is amended by striking ": Self-Incrimination".
  SEC. 207. Clause (10)  of  subsection (a) of
section 7  of the Act entitled  "An Act to estab-
lish  a uniform system of bankruptcy through-
out the United States", approved  July  1, 1898
(52  Stat.  847; 11 U.S.C.   § 26(a)  (10)),  is
amended by inserting after the first use of  the
term "testimony"  the following language: ", or
any  evidence which is directly or indirectly  de-
rived from such testimony,".
  SEC. 208. The fourth  sentence of subsection
(d) of section 10 of the Federal Deposit Insur-
ance Act  (64  Stat. 882; 12  U.S.C. § 1820 (d)),
is repealed.
  SBC. 209. The  seventh paragraph under  the
centered  heading  "DEPARTMENT  OF  JUSTICE"
in the first section of the Act of February  25,
1903  (32 Stat. 904; 15 U.S.C. §  32), is amended
by  striking ":  Provided, That" and  all that
follows in that paragraph and inserting in lieu
thereof a period.
  SEC. 210. The Act of June 30, 1E06 (34 Stat.
798 ; 15 U.S.C. § 33), is repealed.
  SEC. 211. The  seventh paragraph of section
9 of the  Federal  Trade Commission  Act  (38
Stat. 722; 15 U.S.C.  § 49),  is repealed.
  SEC. 212. Subsection (d)  of section 21 of  the
Securities Exchange Act of 1934 (48 Stat. 899 ;
15 U.S.C. § 78u(d)),  is repealed.
  SEC. 213. Subsection (c) of section 22 of  the
Securities Act of  1933 (48  Stat. 86; 15  U.S.C.
§ 77v(c)), is repealed.
  SEC. 214. Subsection (e) of section 18 of  the
Public Utility Holding  Company  Act  of 1935
(49  Stat.  831; 15  U.S.C.  I 79r(e)), is repealed.
  SEC. 215. Subsection (d)  of section 42 of  the
Investment Company Act of 1940 (54 Stat. 842 ;
IB U.S.C. § 80a-41(d)), is repealed.
  SEC. 216. Subsection (d) of section 209 of the
Investment Advisers  Act of 1940  (64 Stat. 853 ;
IB U.S.C. § 80b-9(d)), is repealed.
  SEC. 217. Subsection (c)  of section 16 of  the
China Trade Act,  1922 (42 Stat. 953 ; IB U.S.C.
§ 165(c)), is repealed.
  SEC. 218. Subsection (h)  of section 14 of  the
Natural  Gas  Act  (52  Stat.  828;  15 U.S.C.  §
717m(h)), is repealed.
  SEC. 219. The  first proviso of section  12  of
the Act entitled "An Act to  regulate the inter-
state distribution  and sale  of packages of haz-
ardous  substances intended  or  suitable  for
household use,"  approved  July  12,  1960  (74
Stat. 379;  15  U.S.C. \  1271), is amended by
inserting   after "section"  the  following  lan-
guage: ", or any evidence  which is directly or
indirectly derived from  such evidence,".
  SEC. 220. Subsection  (e)  of  section  1415  of
 the Interstate Land Sales Full Disclosure Act
 (82 Stat. 696 ; 16 U.S.C. 5 1714(e)), is repealed.
   SEC. 221. Subsection (g) of section 307 of the
 Federal Power  Act (49  Stat. 866; 16 U.S.C.
 § 826f(g)),is repealed.
   SEC. 222. Subsection (b)  of section 836 of
 title  18, United States  Code, is  amended by
 striking the third sentence thereof.
   SEC. 223. (a)  Section 896  of title 18, United
 States Code, is repealed.
   (b)  The table of sections of  chapter 42 of
 such  title is  amended  by striking  the  item re-
 lating to section 895.
   SEC. 224. (a)  Section 1406 of title 18, United
 States Code, is repealed.
   (b) the table of sections of chapter 68 of such
 title is amended by striking the item  relating
 to section  1406.
   SEC. 225.  Section  1964 of  title 18, United
 States Code,  is amended by striking "(a) Who-
 ever" and inserting in lieu  thereof "Whoever"
 and by striking subsection (b) thereof.
                                   [p.36282]
   SEC. 226. The second sentence of subsection
 (b), section 2424, title 18, United  States Code,
 is amended by striking "but no person" and all
 that follows in that subsection and  inserting in
 lieu  thereof: "but no  information  contained in
 the statement or any evidence  which is directly
 or  indirectly derived  from such   information
 may be used against  any person making such
 statement in  any  criminal  case, except  a
 prosecution for perjury, giving  a false statement
 or otherwise failing  to comply  with this  sec-
 tion."
   SEC. 227. (a)  Section 2514 of title 18, United
 States Code,  is  repealed  effective four years
 after the effective date of this Act.
   (b)  The table of sections of chapter 119 of
 such title is amended by striking the item relat-
 ing to section 2514.
   SEC. 228. (a)  Section 3486 of title 18, United
 States Code, is repealed.
   (b)  The table of  sections of chapter 223 of
 such title is  amended by striking  the  item re-
 lating to section 3486.
   SEC. 229. Subsection (e) of section 333 of the
 Tariff Act  of  1930 (46  Stat. 699; 19 U.S.C.
 § 1333(e)), is amended by striking  ": Provided,
 That" and all that fallows in that subsection
 and inserting in lieu thereof a period.
   SEC. 230. The first proviso of  section 703 of
 the  Federal  Food,  Drug,  and  Cosmetic  Act,
 approved  June 2B, 1938 (52 Stat. 1057 ; 21 U.S.C.
 § 373), is amended by inserting after "section"
 the  following  language:  ",  or any  evidence
 which is directly or indirectly derived from  such
 evidence,".
   SEC. 231.  (a)  Section  4874 of  the  Internal
 Revenue Code of 1954 is repealed.
   (b)  The table of sections  of part III of  sub-
 chapter  (D)  of chapter 39 of  such  Code  is
 amended  by striking the  item   relating to
 section 4874.

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 STATUTES AND LEGISLATIVE HISTORY
                                         313
   SEC.  232.  Section 7493  of  the  Internal  Rev-
 enue Code of 1954 is repealed.
   SEC.  233. The table of sections  of part III of
 subchapter  (E)  of  chapter  76 of the Internal
 Revenue  Code of 1954 is  amended by striking
 the item relating to section 7493.
   SEC.  234. Paragraph (3) of section  11 of the
 Labor  Management Relations Act,  1947  (49
 Stat. 455 ; 29 U.S.C. § 161(3)), is  repealed.
   SEC.  235. The  third sentence of section  4 of
 the  Act entitled  "An Act to provide that tolls
 on certain bridges over navigable waters of the
 United States shall  be  just and reasonable,
 and for other  purposes",  approved August 21,
 1935 (49 Stat. 671: 33 U.S.C.  § 606), is repealed.
   SEC.  236.  Subsection  (f)   of section 205 of
 the  Social Security Act  (42  U.S.C.  § 406 (f) )
 is repealed.
   SEC. 237.  Paragraph c of  section  161 of the
 Atomic Energy Act  of 1954  (68  Stat. 948 ; 42
 U.S.C.  §  2201(c)), is amended by striking the
 third sentence thereof.
   SEC.  238.  The last  sentence   of  the  first
 paragraph of  subparagraph  (h)  of the  para-
 graph designating "Third" of section  7 of the
 Railway  Labor Act  (44  Stat. 582; 45 U.S.C.
 § 157),  is  repealed.
   SEC.  239.  Subsection  (c)   of  section  12  of
 the Railroad Unemployment Insurance Act (52
 Stat. 1107; 45 U.S.C. § 362(c)), is repealed.
   SEC.  240.  Section  28 of the Shipping Act of
 1916 (39 Stat. 737 ; 46 U.S.C. § 827), is repealed.
   SEC.  241.  Subsection  (c)  of section 214  of
 the Merchant Marine  Act, 1936 (49 Stat.  1991;
 46 U.S.C. § 1124(c)), is repealed.
   SEC.  242.  Subsection  (i)  of section 409 of
 the Communications Act of 1934 (48 Stat. Z096 ;
 47 U.S.C.  § 409 (1)), is repealed.
  SEC. 243.  (a) The second sentence of section
 9 of the Interstate Commerce Act  (24 Stat.  382 ;
 49 U.S.C. §  9), is amended by striking "; the
 claim"  and  all that follows in that  sentence
 and inserting in lien thereof a period.
   (b) Subsection  (a) of section 316 of the Inter-
 state Commerce  Act  (54  Stat. 946; 49 U.S.C.
 § 916(a)), is amended by striking the comma
 fallowing "part I" and by striking ", and the
 Immunity of Witnesses  Act  (34  Stat. 798 ; 32
 Stat. 904,  ch. 755, sec. 1),".
   (c) Subsection  (a) of section 417 of the Inter-
 state Commerce Act  (49 U.S.C. § 1017 (a)), is
 amended  by striking  the comma after  "such
 provisions"   and   by  striking ",  and  of  the
 Immunity Witnesses  Act  (34 Stat.  798; 32
 Stat. 904,  ch. 755, sec. 1),".
  SEC. 244.  The third sentence of section  3 of
 the Act entitled  "An Act to further  regulate
 Commerce with  foreign  nations  and  among
 the  States", approved February  19.  1903  (32
 Stat. 848 ; 49 U.S.C.  §  43), is amended by strik-
 ing " ;  the claim" and all that follows in  that
sentence  down through  and  including  "Pro-
 vided, That  the  provisions"  and  inserting in
lieu thereof ". The provisions".
   SEC.  245. The first paragraph  of  the  Act of
 February  11,  1893  (27  Stat.  443; 49  U.S.C.
 § 46), is repealed.
   SEC.  246.  Subsection  (i)  of section 1004 of
 the Federal Aviation Act of 1958 (72 Stat. 792 ;
 49 U.S.C. § 1484(i)),  is repealed.
   SEC.  247.  The  ninth  sentence of subsection
 (c)  of  section 13 of the Internal Security Act
 of  1950 (81  Stat. 768; 50 U.S.C. §  792(c)), is
 repealed.
   SEC.  248.  Section  1302 of  the Second  War
 Powers Act of 1942  (56  Stat. 185; BO  U.S.C.
 App. §  463a), is amended by striking the fourth
 sentence thereof.
   SEC.  249.  Paragraph  (4) of  subsection  (a)
 of  section 2  of the Act  entitled "An  Act to
 expedite national defense, and for  other  pur-
 poses",  approved June 28, 1940  (54 Stat.  676 ;
 50  U.S.C.  App.  §  1162(a) (4)), is amended by
 striking the fourth sentence thereof.
   SEC.  250. Subsection (d) of section  6  of the
 Export  Control Act  of  1949  (63 Stat.  8; 50
 U.S.C. App. § 2026 (b)), is repealed.
   SEC.  251.  Subsection  (b)  of  section  705 of
 the  Act of September 8, I960,  to  amend the
 Tariff  Act of  1930  (64  Stat.  816; 50  U.S.C.
 § 2155(b)), is repealed.
   SEC.  252.  Section  23-545  of the  District of
 Columbia Code is repealed,
   SEC. 253. Section 42 of the Act of October 9,
 1940, 54 Stat. 1082  (D.C. Code,  sec.  35-1346),
 is repealed.
  SEC.  264. Section  2 of the Act of  June 19,
 1934, 48 Stat.  1176  (section 35-802,  District of
 Columbia Code), is repealed.
  SEC.  255. Section  29 of the  Act of March 4,
 1922, 42 Stat. 414 (section 35-1129,  District of
 Columbia Code), is repealed.
  SEC. 256. Section 9 of the  Act of February 7,
 1914, 38 Stat. 282, as amended (section 22-2721,
 District of Columbia Code), is repealed.
   SEC. 267. Section 5 of the Act of February 7,
 1914, 38 Stat. 281 (section 22-2717,  District of
 Columbia  Code),  is  amended  by striking  out
 "2721" and inserting in lieu thereof "2720".
  SEC. 258. Section 8 of the Act of February 7,
 1914, 38 Stat. 282 (section 22-2720,  District of
 Columbia  Code),  is  amended  by striking  out
 "2721" and inserting in lieu thereof "2720".
  SEC. 259. In addition to the provisions  of law
 specifically amended  or specifically repealed by
 this title, any other provision of law inconsistent
 with the provisions of part V of title 18, United
 States Code (adding  by title II of this  Act), is
to that extent amended or repealed.
  SEC. 260. The provisions of part V  of title 18,
 United States Code, added by title II of  this  Act,
 and the amendments and repeals made by  title
 II of this  Act, shall  take effect on the sixtieth
 day  following the date of the enactment of this
 Act. No amendment to or repeal of any  pro-
 vision of law under  title II of this Act shall
 affect any  immunity to which any individual is
 entitled under such provision by  reason of any

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314
LEGAL COMPILATION—PESTICIDES
testimony  or other  information  given before
such day.
  Mr. McCLELLAN.
                        [p. 36283]
  Title II. General Immunity — creates
a single  uniform witness  immunity
statute which will enable the Govern-
ment in any court, administrative, or
legislative proceeding to obtain  the
testimony of a witness who otherwise
refuses to testify on the ground that
he might  incriminate himself. The im-
munity provided protects the  witness
from the  use against him of his com-
pelled testimony and its fruits in  any
prosecution   for  offenses  committed
                        [p. 36293]
prior to the time he testified, but does
not foreclose prosecution for his past
criminal  offenses upon  the basis of
entirely independent evidence.
       *****
  Mr. DOLE.
   This and the other titles in S. 30,
 ranging from special grand juries and
 a comprehensive immunity provision to
 a central attack on illegal  gambling
 and enhanced sentences for special
 dangerous offenders, has emerged with
 few significant changes by the House.
 We would dispense  with  the  time-
 consuming and unnecessary Senate-
 House conference. Instead  we should
 unanimously accept S. 30 as amended
 in  the House and send it directly to
 President Nixon for his signature.
   The PRESIDING OFFICER. The
 question  is on agreeing to the motion
 of the Senator from Arkansas.
   The motion was agreed to.
   Mr.  HRUSKA.  Mr.  President, I
 move to  reconsider the vote by which
 the motion was agreed to.
   Mr.  McCLELLAN. I move to lay
 that motion on the table.
   The motion to lay on the table was
 agreed to.
                         [p. 36294]
    l.lj  POISON  PREVENTION PACKAGING ACT OF 1970
               December 30,1970, P.L. 91-601, 84 Stat. 1670
(See "Pesticides 1.6—1.6a (4) (c)" for text and legislative history.)

 1.2  THE FEDERAL FOOD, DRUG, AND COSMETIC ACT AS
                             AMENDED
                        21 U.S.C. §§346, 346a, 348
                          Parallel Citations
        Statutes At Large §                   21 U.S.C. §
               406                                 346
               408                                 346a
               409                                 348

  § 346.  Tolerances for poisonous or deleterious substances in food;
      regulations
    Any poisonous  or  deleterious substance added to  any food,
  except where such substance is required  in the production thereof
  or cannot be avoided by  good manufacturing practice shall  be
  deemed to be unsafe for  purposes  of the application of  clause
  (2) (A) of section 342 (a)  of this title; but when such substance
  is so required or cannot be so avoided, the Secretary shall promul-
  gate regulations limiting the quantity therein or thereon to such

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STATUTES AND LEGISLATIVE HISTORY                          315

extent as he finds necessary for the protection of public health,
and any quantity exceeding the limits so fixed shall also be deemed
to be unsafe for purposes of the application of clause  (2)  (A)  of
section 342 (a) of this title. While such a  regulation  is in effect
limiting the quantity of any such substance in the case of any food,
such food shall not, by reason of bearing or containing any added
amount of such substance, be considered to be adulterated within
the meaning of clause (1) of section 342 (a) of this title. In deter-
mining the quantity of such added substance to be tolerated in  or
on different articles of food the Secretary1  shall take into account
the extent to which the use of such substance is required or cannot
be avoided  in  the production of each such article,  and the other
ways in which the consumer may be aifected by the same or other
poisonous or deleterious substances. (June 25,  1938, ch. 675, § 406,
52 Stat. 1049; 1940 Reorg. Plan No.  IV, §  12, eff. June 30, 1940,
5 F.R. 2422, 54 Stat. 1237; 1953 Reorg. Plan No. 1, § 5, eff. Apr. 11,
1953, 18 F.R.  2053, 67 Stat. 631; Sept. 6,  1958, Pub. L. 85-929,
§ 3(c), 72 Stat. 1785;  July  12,  1960, Pub.  L. 86-618, title  I,
§ 103(a)  (1),  74 Stat. 398.)
§ 346a.  Tolerances for  pesticide chemicals in or on raw agricul-
    tural commodities
(a)   Conditions of safety
  Any poisonous or deleterious pesticide chemical, or any pesticide
chemical which is not generally recognized, among experts quali-
fied by scientific training and experience to evaluate the safety  of
pesticide chemicals, as safe for use,  added to a raw agricultural
commodity, shall be deemed unsafe for the purposes of the appli-
cation of clause (2) of section 342 (a) of this  title unless—
       (1) a tolerance for such pesticide chemical in or on the raw
    agricultural commodity has been prescribed by the Adminis-
    trator  of  the Environmental Protection  Agency  under this
    section and the quantity of such pesticide chemical in or on
    the raw agricultural commodity is within the limits of the
    tolerance  so prescribed; or
       (2) with respect to use in or on such raw agricultural com-
    modity, the pesticide chemical has been  exempted from the
    requirement of a tolerance by the Administrator under this
    section.
  1 Functions of the Secretary of Health, Education, and Welfare under this section, together
with authority to monitor compliance with the tolerances, to review the effectiveness of surveil-
lance and enforcement, and to provide technical assistance to the States and conduct research
under this Chapter and Chapter 6A of Title 42, were transferred to the Administrator of the
Environmental Protection Agency, by Reorg. Plan No. 3 of 1970, § 2 (a) (4), eff. Dec. 2, 1970,
35 F.R. 1B623, 84 Stat. —.

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316                            LEGAL COMPILATION—PESTICIDES

While  a tolerance or exemption from tolerance is in effect for
a pesticide chemical with  respect to any  raw agricultural  com-
modity, such raw agricultural commodity shall not, by reason of
bearing or containing any added amount of such pesticide chemi-
cal, be considered to be adulterated within the meaning of clause
 (1) of section 342 (a) of this title.
(b)  Establishment of tolerances
  The Administrator  shall promulgate regulations  establishing
tolerances with respect to the use in or on raw agricultural  com-
modities of poisonous or deleterious pesticide chemicals  and of
pesticide  chemicals which are  not generally recognized,  among
experts qualified by scientific training and experience to evaluate
the safety of pesticide chemicals, as safe for use, to the extent
necessary to protect the public health. In establishing  any  such
regulation, the Administrator shall give appropriate considera-
tion, among  other relevant factors, (1) to the necessity for the
production of an adequate, wholesome, and economical food sup-
ply; (2) to the other ways in which the consumer may be affected
by  the same  pesticide  chemical or by other related substances
that are poisonous or deleterious; and (3) to the opinion submitted
with a certification of usefulness under  subsection  (I)  of  this
section. Such regulations shall be promulgated in the manner pre-
scribed in subsection (d) or (e) of this section. In carrying out
the provisions of this section relating  to the establishment of tol-
erances, the Administrator may establish the tolerance applicable
with respect to the use of any pesticide chemical in or on any raw
agricultural commodity at zero level if the scientific data before
the Administrator does not justify the establishment of a  greater
tolerance.
 (c)  Exemptions
  The Administrator shall promulgate regulations exempting any
pesticide chemical from the necessity  of a tolerance with  respect
to use  in or on any or all raw agricultural commodities when such
a tolerance is not necessary  to protect the public health.  Such
regulations shall be promulgated in the manner prescribed in sub-
section (d) or (e)  of this section.
 (d)  Regulations pursuant to petition; publication of notice; time
     for issuance; referral to advisory  committees; effective date;
     hearings
   (1)  Any person who has registered, or who has submitted an
application for the registration of, a pesticide under the Federal
Insecticide,  Fungicide,  and Rodenticide Act may file  with the

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STATUTES AND LEGISLATIVE HISTORY                        317

Administrator a petition proposing the issuance  of  a regulation
establishing a tolerance for a pesticide chemical which constitutes,
or is an ingredient of, such pesticide, or exempting the pesticide
chemical from the requirement of  a tolerance. The petition shall
contain data showing—
       (A) the name, chemical identity, and composition of the
    pesticide chemical ;
       (B) the amount, frequency, and time of application of the
    pesticide chemical;
       (C) full reports of investigations made with respect to the
    safety of the pesticide chemical;
       (D) the results of tests on the amount  of residue remain-
    ing, including a description of the  analytical  methods used;
       (E)  practicable  methods  for  removing  residue  which
    exceeds any proposed tolerance;
       (F) proposed tolerances for the  pesticide chemical if tol-
    erances are proposed; and
       (G) reasonable grounds in support of the petition.
Samples of  the pesticide chemical shall  be  furnished  to the
Administrator upon request. Notice of the filing of such petition
shall be published in general terms by the Administrator within
thirty  days after filing. Such notice shall include the analytical
methods available for the determination of the  residue of the pes-
ticide chemical for which  a tolerance or exemption  is proposed.
   (2)  Within ninety days after a certification of usefulness under
subsection  (I) of this section with respect to the pesticide chemical
named in the petition, the Administrator  shall, after giving due
consideration  to  the data submitted  in the petition or otherwise
before him, by order make public a regulation—
       (A) establishing a tolerance for the  pesticide chemical
    named in the petition for the purposes fcr which it is so cer-
    tified as useful, or
       (B)  exempting the pesticide chemical from the necessity
    of a tolerance for such purposes,
unless  within such ninety-day period the person filing the petition
requests that the petition be referred to an advisory committee or
the Administrator within such period otherwise deems such refer-
ral necessary, in  either  of which  events the  provisions  of
paragraph  (3) of this subsection shall apply in lieu thereof.
   (3)  In the  event that the person  filing the petition requests,
within ninety days after a certification  of usefulness under sub-
section (I)  of this section with respect  to the  pesticide chemical
named in the petition, that the petition be referred  to an advisory

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318                            LEGAL COMPILATION—PESTICIDES

committee, or in the event the Administrator within  such period
otherwise deems such referral necessary, the Administrator shall
forthwith submit the petition and other  data before him to an
advisory committee to be appointed in accordance with subsection
(g) of this section. As soon as practicable after such referral, but
not later than sixty days thereafter, unless extended as hereinafter
provided, the committee shall, after independent study of the data
submitted to it by  the  Administrator and  other  data before  it,
certify to the Administrator a report and recommendations on the
proposal in the petition to the Administrator, together with all
underlying data and a statement of the reasons or basis for the
recommendations. The sixty-day period provided for herein may
be extended by the advisory  committee for an additional thirty
days if the advisory committee deems this necessary. Within thirty
days after such certification, the Administrator shall,  after giving
due consideration to all data then before him, including such report,
recommendations, underlying  data, and statement, by order make
public a regulation—
       (A)  establishing a tolerance  for  the pesticide  chemical
    named  in the petition for  the purposes for  which  it is so
    certified as useful; or
       (B)  exempting the pesticide chemical from the necessity
    of a tolerance for such purposes.
   (4)  The regulations published under paragraph (2) or (3)  of
this subsection will be effective upon publication.
   (5)  Within thirty days after publication, any person adversely
affected by a regulation published pursuant to paragraph (2)  or
(3) of this subsection, or pursuant to subsection (e) of this section,
may file objections thereto with the Administrator,  specifying with
particularity the provisions of the regulation deemed objectionable,
stating reasonable grounds therefor, and requesting a public hear-
ing upon such objections. A copy of the objections filed by a person
other than the petitioner shall be served on the petitioner, if the
regulation was issued pursuant to a petition. The  petitioner  shall
have  two weeks to make a written reply to the  objections. The
Administrator shall thereupon, after  due notice, hold such public
hearing for the purpose of receiving evidence relevant and materi-
al to the issues raised by such objections.  Any report, recommen-
dations, underlying data, and  reasons certified to the Secretary by
an advisory committee shall be made a part of  the record of the
hearing, if  relevant and material, subject to the provisions  of
section 1006 (c) of Title 5. The National Academy of Sciences shall
designate a member of the advisory committee to appear and testi-

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STATUTES AND LEGISLATIVE HISTORY                        319

fy at any such hearing with respect to the report and recommenda-
tions of such  committee upon request of the Administrator, the
petitioner, or  the officer conducting the hearing: Provided,  That
this shall  not preclude any other member of the advisory commit-
tee from  appearing- and testifying at such hearing.  As soon  as
practicable  after completion of the  hearing, the Administrator
shall act upon such objections and by order make public a regula-
tion. Such regulation shall be based only  on substantial evidence
of record  at such hearing, including any report, recommendations,
underlying data, and reasons certified to the Administrator by  an
advisory committee, and shall set forth detailed  findings of fact
upon which the regulation is based. No such order shall take effect
prior to the ninetieth day after its publication, unless the Admin-
istrator finds  that  emergency  conditions  exist necessitating  an
earlier  effective date,  in  which event the  Administrator  shall
specify in the order his findings as to such  conditions.

(e)  Regulations pursuant to Administrator's proposals
  The Administrator may  at any time, upon his own initiative or
upon the request of any interested person, propose the issuance of
a regulation establishing a tolerance for  a pesticide chemical  or
exempting it from the necessity of a tolerance. Thirty days after
publication  of such a proposal, the Administrator may by order
publish a  regulation based  upon the proposal which shall become
effective upon publication unless within such thirty-day period a
person who has registered, or who has submitted an application
for  the registration of, an economic poison under the Federal
Insecticide,  Fungicide, and Rodenticide Act containing  the pesti-
cide chemical named in the proposal, requests that the proposal  be
referred to an advisory  committee. In the event of such a request,
the Administrator shall forthwith submit the proposal and other
relevant data before him to an advisory committee to be appointed
in accordance with  subsection (g)  of this section. As soon  as
practicable  after such  referral,  but not  later than sixty  days
thereafter, unless extended as hereinafter provided, the commit-
tee shall, after independent study of the data submitted to it by the
Administrator and other data before it, certify to the Administra-
tor a report and recommendations on the proposal  together  with
all underlying data and  a statement of the reasons or basis for the
recommendations. The sixty-day period provided for herein may be
extended by the advisory committee for an additional thirty  days
if the advisory committee deems this necessary. Within thirty  days
after such certification,  the Administrator may, after giving due
consideration to all data before him, including such report, recom-

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320                            LEGAL COMPILATION—PESTICIDES

mendations, underlying data and  statement, by  order publish a
regulation establishing a tolerance for the pesticide chemical named
in the proposal or exempting it from the necessity of a tolerance
which shall become effective upon  publication. Regulations issued
under this subsection shall upon publication be subject  to para-
graph (5) of subsection (d) of this section.

(f)  Data submitted as confidential
  All data  submitted to  the Administrator or  to  an  advisory
committee in support of a petition under this section shall be con-
sidered  confidential by the Administrator  and by such  advisory
committee until publication of a regulation under paragraph (2)
or (3) of subsection (d)  of  this section. Until such publication,
such data shall not be revealed to any person other than those
authorized by the Administrator or by an advisory committee in
the carrying out of their official duties under this section.

(g)  Advisory committees; appointment; composition; compensa-
    tion; clerical assistance
  Whenever the referral of a petition or proposal to an  advisory
committee  is requested under this section,  or the Administrator
otherwise deems such referral necessary the Administrator shall
forthwith appoint a committee of competent experts to review the
petition or proposal and to make  a report  and recommendations
thereon.  Each such advisory committee shall be composed of
experts,  qualified  in the  subject matter of  the petition and of
adequately diversified  professional background selected by the
National Academy of Sciences and shall  include  one  or more
representatives from landgrant colleges. The size of the commit-
tee shall be determined by the Administrator. Members of an
advisory committee shall receive compensation and travel  expenses
in accordance with subsection  (b) (5) (D) of section 376 of  this
title. The members shall not be subject to any other provisions of
law regarding the appointment and compensation of  employees of
the United States. The Administrator shall  furnish the committee
with adequate clerical and  other  assistance, and shall  by  rules
and regulations prescribe the  procedure to be followed by the
committee.

(h)  Right of consultation
  A  person who has filed a petition or who has requested the
referral of a proposal to an advisory committee in accordance with
the provisions of  this section,  as  well as representatives of the
Environmental Protection Agency, shall have the right to consult

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STATUTES AND LEGISLATIVE HISTORY                        321

with any advisory committee provided for in subsection (g) of this
section in connection with the petition or proposal.

(i)  Judicial review
   (1)  In a case of actual controversy  as  to the validity of any
order under subsections (d)(5), (e), or (I) of this section any
person who will be adversely affected by such order may obtain
judicial review by filing in the United States Court of Appeals for
the circuit wherein such person resides  or  has his principal place
of business,  or  in  the  United States Court of Appeals for the
District of Columbia Circuit, within sixty days after the entry of
such order, a petition praying that the order be set aside in whole
or in part.
   (2)  In the case  of a petition with respect to an order under
subsection (d) (5) or (e) of this section,  a copy of the petition
shall be  forthwith  transmitted  by  the  clerk of the court to the
Administrator, or any officer designated by him for  that purpose,
and thereupon the Administrator shall file  in the court the record
of the proceedings  on which he based  his  order,  as provided  in
section  2112 of Title 28. Upon the filing of such  petition, the
court shall have exclusive jurisdiction  to affirm or  set aside the
order complained of in whole  or  in part. The findings of the
Administrator with respect  to questions of fact shall be sustained
if supported  by substantial  evidence  when  considered on the
record as a whole, including any report and recommendation of an
advisory committee.
   (3)  In the case  of a petition with respect to an order under
subsection (I) of this section, a copy of the  petition shall be forth-
with transmitted by the clerk of the court to the Administrator, or
any officer designated by him for that purpose, and thereupon the
Administrator shall file in the court the  record of the proceedings
on which he based his order, as provided in section  2112 of  Title
28. Upon the filing of such petition, the  court shall have exclusive
jurisdiction to affirm or set aside the order complained of in whole
or in part. The findings of the Administrator with respect to ques-
tions of fact shall be sustained if supported by substantial evidence
when considered on the record as a whole.
   (4)  If application is made  to the court for leave to adduce
additional evidence, the court may order such additional evidence
to be taken before the Administrator and to be adduced upon the
hearing in such manner and upon such terms and conditions as to
the court may seem proper,  if such  evidence is material and there
were reasonable  grounds for failure to adduce such evidence in the
proceedings below. The Administrator may modify his findings as

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322                            LEGAL COMPILATION—PESTICIDES

to the facts and order by reason of the additional evidence so
taken, and shall file with the court such modified findings and order.
   (5)  The judgment of the court affirming or setting aside, in
whole or in part, any order under this section shall be final, subject
to review by the Supreme Court of the United States upon certio-
rari or certification as provided in section 1254 of Title 28. The
commencement of proceedings under this section shall not, unless
specifically ordered by the court to the contrary, operate as a stay
of an order. The courts shall advance on the docket and expedite
the disposition of all causes filed therein pursuant to this section.
(j)  Temporary tolerances
   The Administrator may,  upon the  request of any person who
has  obtained an experimental  permit  for  a pesticide chemical
under the Federal Insecticide, Fungicide, and Rodenticide Act or
upon his own initiative, establish a temporary tolerance for the
pesticide chemical for the uses  covered by the permit  whenever
in his judgment such action is  deemed necessary to protect the
public health, or may temporarily exempt such pesticide chemical
from a tolerance. In  establishing such a tolerance, the Adminis-
trator shall give due regard to the necessity for experimental work
in  developing  an  adequate, wholesome,  and  economical  food
supply and to the limited hazard to the public  health involved in
such work when conducted  in accordance with applicable regula-
tions under the Federal Insecticide, Fungicide, and Rodenticide Act.
(k)  Regulations based on public hearings before January 1,1953
   Regulations affecting pesticide chemicals in or on raw agricul-
tural commodities which are promulgated under the authority of
section 346 (a)   of this title upon the  basis of  public hearings
instituted  before January  1, 1953, in accordance  with section
371 (a) of this  title,  shall be deemed to be regulations under this
section and shall be  subject to amendment or repeal as provided
in subsection (m) of this section.
(1)  Pesticides under Federal Insecticide, Fungicide, and Rodenti-
     cide Act;  functions of Administrator of the Environmental
     Protection Agency; certifications; hearing;  time limitation;
     opinion; regulations
   The Administrator, upon  request of any person who has regis-
tered, or who has submitted  an application for the registration of,
a pesticide under the Federal Insecticide, Fungicide, and Rodenti-
cide Act, and whose request  is accompanied by a copy of a petition
filed by such person  under subsection (d) (1) of this section with
respect to a pesticide chemical which constitutes, or is an ingredi-

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STATUTES AND LEGISLATIVE HISTORY                        323

ent of,  such pesticide, shall, within thirty days or within sixty
days if upon notice prior to the termination of such thirty days the
Administrator deems it necessary  to postpone action  for such
period, on the basis of data before him, either—
       (1) certify that such pesticide chemical is useful for the
    purpose for which a tolerance or exemption is sought; or
       (2) notify the person requesting- the certification of his
    proposal to certify  that  the  pesticide  chemical does  not
    appear to be useful for the purpose for which a tolerance or
    exemption is sought, or appears to be useful for only some of
    the purposes for which a tolerance or exemption is sought.
In the event that the Administrator takes the action described in
clause (2) of the preceding sentence, the person requesting the
certification, within one week after receiving the proposed certifi-
cation, may  either  (A) request the Administrator to certify on
the basis of the proposed  certification; (B) request a hearing on
the proposed certification or the parts thereof objected to; or
(C) request both such certification and  such hearing. If no such
action is taken, the Administrator may by order make the certifi-
cation as proposed. In the  event that  the action described in
clause (A)  or (C)  is taken, the Administrator  shall by order
make the certification as proposed with respect to such parts there-
of  as are  requested. It1  the  event a hearing  is requested,  the
Administrator shall provide opportunity for a prompt hearing. The
certification  of the Administrator as the result of  such  hearing
shall  be made by order and shall be based only on  substantial
evidence of record at the hearing  and shall set forth  detailed
findings of fact. In no event shall the time elapsing between the
making of a request for a certification under this subsection  and
final certification by the Administrator  exceed  one hundred  and
sixty  days. The Administrator shall submit with any certification
of usefulness under this subsection an opinion, based on the data
before him, whether the tolerance or exemption proposed by the
petitioner reasonably reflects the amount of residue likely to result
when the pesticide chemical is used in the manner proposed for the
purpose for which the certification  is made. The Administrator,
after  due notice and opportunity for public hearing, is authorized
to promulgate rules and regulations for carrying out the provisions
of this subsection.
(m)  Amendment of regulations
  The Administrator shall prescribe by regulations the procedure
 1 So in original. Probably should read "In."

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324                            LEGAL COMPILATION—PESTICIDES

by  which regulations under  this section may be  amended or
repealed,  and such  procedure shall  conform  to  the procedure
provided in this section for the promulgation of regulations estab-
lishing tolerances, including the appointment of advisory commit-
tees and the procedure for referring petitions to such committees.
(n)  Guaranties
  The provisions of section 333 (c) of this title  with respect to the
furnishing of guaranties shall be applicable to raw  agricultural
commodities covered by this section.
(o)  Payment of fees; services or functions as conditioned  on;
    waiver or refund of fees
  The  Administrator shall by regulation require the payment of
such fees  as will in the aggregate, in the judgment of the Admin-
istrator, be sufficient over a reasonable term to provide, equip, and
maintain an adequate service for the performance of the Adminis-
trator's functions under  this section. Under such regulations,  the
performance of  the Administrator's  services or other functions
pursuant to this section, including any one or more of the following,
may be conditioned upon the payment of such fees: (1) The accept-
ance of filing of  a petition submitted under subsection (d)  of this
section; (2) the promulgation of a regulation establishing a toler-
ance, or an exemption from the necessity of a tolerance, under this
section, or the amendment or repeal of such a regulation; (3)  the
referral of a petition or proposal under this section to an advisory
committee; (4) the acceptance for filing of objections under sub-
section (d)  (5)  of this section; or (5)  the certification and filing
in court of a  transcript  of the proceedings and the record under
subsection (i) (2) of this  section. Such regulations may further
provide for waiver or refund of fees  in whole  or in part when in
the judgment of the Administrator such waiver or refund is equit-
able and not contrary to  the purposes of this subsection.  (June 25,
1938, ch.  675, §  408, as added July 22, 1954, ch. 559, § 3, 68 Stat.
511, and amended Aug. 28,1958, Pub. L. 85-791, § 20, 72 Stat. 947;
Oct. 30,1970, Pub. L. 91-515, title VI, § 601 (d) (1), 84 Stat. 1311;
1970 Reorg, Plan No. 3, § 2(a) (4), (8) (ii), eff. Dec. 2, 1970, 35 F.R.
15623, 84 Stat.—.)
§  348.  Food additives
(a) Unsafe food additives; exception for conformity with exemp-
     tion or regulation
   A food additive  shall, with respect to any particular use or
intended  use  of  such additives, be deemed to be unsafe for the

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STATUTES AND LEGISLATIVE HISTORY                        325

purposes of the application of clause (2) (C) of section 342 (a) of
this title, unless—
       (1)  it and its use or intended use conform to the terms of
    an exemption which is in effect pursuant to  subsection (i) of
    this section; or
       (2)  there is in effect, and it and its use or intended use are
    in conformity with,  a  regulation  issued  under this section
    prescribing the conditions under which such additive may be
    safely used.
While such a regulation relating to a food additive is in  effect, a
food shall not, by reason of bearing or containing such an additive
in accordance with the regulation, be considered adulterated within
the meaning of clause (1)  of section 342 (a)  of this title.
(b)   Petition for regulation  prescribing conditions of safe use;
    contents;  description of production methods  and controls;
    samples; notice of regulation
  (1) Any person may, with respect to any  intended use of a food
additive, file with the Secretary a petition proposing the  issuance
of a regulation prescribing the conditions under which such addi-
tive may be safely used.
  (2)  Such petition shall, in  addition to any  explanatory or sup-
porting data, contain—
       (A)  the name and all pertinent information concerning such
    food additive, including, where available, its chemical identity
    and composition;
       (B)  a statement of the conditions of the proposed use of
    such additive, including all directions, recommendations, and
    suggestions proposed for  the use of such additive, and includ-
    ing specimens of its proposed labeling;
       (C)  all relevant  data bearing on the physical or other tech-
    nical effect such additive is intended to produce, and the quan-
    tity of such additive required to produce such effect;
       (D)  a description  of practicable methods for determining
    the quantity of such additive in or on food, and any substance
    formed in or on food, because of its use; and
       (E) full reports  of investigations made with respect to the
    safety for use of such additive, including full information as to
    the methods and controls used in conducting such investiga-
    tions.
  (3)  Upon request of  the Secretary, the petitioner shall furnish
(or, if the petitioner is not the manufacturer of such additive, the
petitioner shall have the  manufacturer of such additive  furnish,

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326                            LEGAL COMPILATION—PESTICIDES

without  disclosure to the petitioner) a  full description  of  the
methods used in, and the facilities and controls used for, the pro-
duction of such additive.
   (4)  Upon request of the Secretary,  the petitioner shall furnish
samples  of the food additive involved, or articles used as  compo-
nents  thereof, and of the food in or on which  the  additive is
proposed to be used.
   (5)  Notice of the regulation proposed by the petitioner shall be
published in general  terms by the Secretary within thirty days
after filing.
(c)  Approval or denial of petition; time for issuance of  orders;
     evaluation of data; factors
   (1)  The Secretary shall—
       (A) by order establish a regulation (whether or not in
     accord with that proposed by the petitioner) prescribing, with
     respect to one or more proposed uses of the food  additive
     involved, the conditions  under  which such  additive may be
     safely used  (including, but not limited to, specifications as to
     the particular food or classes of food in or in which  such
     additive may be used, the maximum quantity which may be
     used or permitted to remain in or on such food, the manner
     in which such additive may be added to or used in or on such
     food, and any directions or other labeling or packaging require-
     ments for such additive  deemed necessary by him to assure
     the safety of such use), and shall  notify the petitioner of such
     order and the reasons for such action; or
       (B)  by order deny the petition, and shall notify the peti-
     tioner of such order and of the reasons for such action.
   (2)  The order required by paragraph  (1)  (A) or  (B)  of  this
subsection shall  be issued within ninety  days  after the  date of
filing  of the  petition, except  that the Secretary may (prior to
such ninetieth day), by written notice to the petitioner, extend
such ninety-day  period to  such time (not  more than one hundred
and eighty days after the date of filing  of the petition) as the
Secretary deems necessary to enable him to study and  investigate
the petition.
   (3)  No such regulation shall issue if a fair evaluation of the data
before the Secretary—
       (A) fails to establish that the proposed use  of the food
     additive, under the conditions  of use to be specified in the
     regulation,  will be safe:  Provided, That no additive shall be
     deemed to be safe if it is found to  induce cancer when ingested
     by  man  or  animal, or if it is  found, after tests which are

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STATUTES AND LEGISLATIVE HISTORY                        327

    appropriate for the evaluation of the safety of food additives,
    to induce cancer in man or animal, except that this proviso
    shall not  apply with respect to  the use of a substance as an
    ingredient of  feed for animals which  are raised  for food
    production, if the Secretary finds (i) that, under the conditions
    of use and feeding- specified in proposed labeling and reason-
    ably certain to be followed in practice, such additive will not
    adversely affect the animals for which such feed is  intended,
    and (ii) that no residue of the additive will be found (by meth-
    ods of examination prescribed or approved by the Secretary
    by regulations, which regulations shall not be subject to sub-
    sections (f) and  (g) of this section) in any edible portion of
    such animal after slaughter or in any food yielded  by or
    derived from the living animal; or
       (B) shows that the proposed use of the additive would pro-
    mote deception of the consumer in violation of this chapter or
    would otherwise  result in  adulteration  or  in misbranding of
    food within the meaning of this chapter.
   (4)  If, in the  judgment of  the Secretary, based upon a fair
evaluation of the data before him, a tolerance limitation is required
in order to assure that the proposed use of an additive will be safe,
the Secretary—
       (A)  shall not fix such tolerance limitation at a level higher
    than he finds  to be reasonably required  to accomplish  the
    physical or other technical effect for which such additive is
    intended; and
       (B) shall not establish a regulation for such  proposed use
    if he finds upon a fair evaluation of the data before  him that
    such data do not establish that such use would accomplish the
    intended physical or other technical effect.
   (5)  In determining, for the purposes of this  section, whether a
proposed use of a food additive is safe, the Secretary shall consider
among other relevant factors—
       (A) the probable consumption of the additive and of any
    substance formed in  or on food  because  of the  use of  the
    additive;
       (B) the cumulative effect of such additive in the diet of
    man or animals, taking into account any chemically or pharma-
    cologically related substance or substances in such diet; and
       (C) safety factors which in the opinion of experts qualified
    by scientific training and experience to evaluate  the  safety of
    food additives are generally recognized as appropriate for the
    use of animal experimentation data.

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328                            LEGAL COMPILATION—PESTICIDES

(d)  Regulation issued on Secretary's initiative
  The Secretary may at any time, upon his own initiative, propose
the issuance of a regulation prescribing, with respect to any par-
ticular use  of a food  additive, the  conditions under  which such
additive may be safely used, and  the reasons therefor. After the
thirtieth day following publication of such a proposal, the Secretary
may by order establish a regulation based upon the proposal.
(e)  Publication and effective date of orders
  Any order, including any regulation  established by such order,
issued  under subsection  (c) or  (d)  of  this section, shall be pub-
lished and shall be effective upon publication, but the Secretary
may stay such effectiveness if,  after  issuance of such order, a
hearing is sought with respect to such order pursuant to  subsec-
tion (f) of this section.
(f)  Objections and public hearing; basis and contents of order;
     statement
   (1) Within thirty days after publication of an order made pur-
suant to subsection (c) or (d) of this section, any person adversely
affected by such an  order may  file objections thereto with the
Secretary, specifying with particularity the provisions of the order
deemed objectionable, stating  reasonable  grounds  therefor, and
requesting a public hearing upon such objections. The Secretary
shall, after due notice, as promptly as possible hold such public
hearing for the purpose of receiving evidence relevant and material
to the issues raised by such objections. As soon as practicable after
completion of the hearing, the Secretary shall by order act upon
such objections and make such order public.
   (2)  Such order shall  be based upon a  fair  evaluation  of the
entire record at such hearing, and shall include a statement setting
forth in detail the findings and conclusions upon which the order
is based.
   (3)  The Secretary shall specify in the order the date on which
it shall take effect,  except  that it shall  not be made to take effect
prior to the ninetieth day after its publication, unless the Secretary
finds that emergency conditions exist necessitating an  earlier
effective date, in which  event the Secretary  shall specify in the
order his findings as to such conditions.
(g)  Judicial review
   (1)  In  a case  of  actual controversy as to the validity of any
order issued under subsection (f) of this section,  including any
order thereunder with respect to amendment or repeal of a regula-
tion issued  under this section, any person who will be adversely

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STATUTES AND LEGISLATIVE HISTORY                        329

affected by such order may obtain judicial review by filing in the
United States Court of Appeals for the circuit wherein such person
resides or has his principal place of business, or in the United
States Court of Appeals for the District of Columbia Circuit, within
sixty days after the entry of such order,  a  petition  praying that
the order be set aside in whole or in part.
   (2) A copy of such petition shall be  forthwith transmitted by
the clerk of the court to the Secretary, or any officer designated by
him for that purpose, and thereupon the Secretary shall file in the
court the record of the proceedings on which he based his order, as
provided in section 2112 of Title 28. Upon the filing of such peti-
tion the court shall have jurisdiction,  which upon the filing of the
record with it shall be exclusive, to affirm or set aside the  order
complained of in whole or in part. Until  the filing of the record
the Secretary may modify or set aside his order. The  findings of
the Secretary with respect to questions  of fact shall be sustained
if based upon a fair evaluation of the entire record at such hearing.
The court shall advance on the docket and  expedite the  disposition
of all causes filed therein pursuant to this section.
   (3)  The court, on such judicial review,  shall not sustain the
order of the Secretary if he failed to comply  with any requirement
imposed on him by subsection (f)  (2) of this  section.
   (4) If application is made to the court for leave to adduce addi-
tional evidence, the court may order such additional evidence to be
taken before  the Secretary and to be adduced upon the hearing in
such manner and upon such terms and conditions as to the  court
may seem proper, if such  evidence  is  material and there  were
reasonable grounds  for  failure to adduce  such  evidence in the
proceedings below. The Secretary may modify his findings  as to
the facts and order by reason of the additional evidence so taken,
and shall file with the court such modified  findings and order.
   (5) The judgment of the court affirming or setting aside, in
whole or  in part, any order under this  section shall be final, subject
to review by the Supreme Court of the United States upon certio-
rari or certification as provided in section 1254 of Title 28. The
commencement of proceedings under this  section shall  not, unless
specifically ordered by the court to the contrary, operate as a stay
of an order.

(h)   Amendment or repeal of regulations
  The Secretary  shall by regulation  prescribe the  procedure by
which regulations under the foregoing provisions of this section
may be amended or repealed, and such procedure shall conform to

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330                              LEGAL COMPILATION—PESTICIDES

the procedure provided  in  this  section for the  promulgation of
such regulations.
(i)  Exemptions for investigational use
   Without  regard to subsections  (b) to  (h),  inclusive, of  this
section, the Secretary shall by regulation  provide for exempting
from the requirements of this section any  food  additive, and  any
food  bearing  or containing  such  additive, intended solely  for
investigational use by qualified experts when in his opinion such
exemption is consistent with the public health. (June 25,  1938, ch.
675, § 409, as added Sept. 6,1958, Pub. L. 85-929, § 4, 72 Stat. 1785,
and amended June 29,1960, Pub. L. 86-546, § 2, 74 Stat. 255;  Oct.
10,1962, Pub. L. 87-781, title I, § 104 (f) (1), 76 Stat. 785, amended
Oct. 21,1972, Pub. L. 92-516, §27(3), 86 Stat. 998.)1

          1.2a   FOOD, DRUG, AND  COSMETIC ACT.
                 June 30, 1906, P.L. 59-384, 34 Stat. 768
                             AN ACT
  CHAP. 3915.—An Act For preventing the manufacture, sale, or transporta-
tion of adulterated or misbranded or poisonous or deleterious foods, drugs,
medicines,  and liquors,  and  for regulating traffic therein, and for other
purposes.
   Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That it shall be
unlawful for any person to manufacture within  any Territory or
the  District of  Columbia any article of food or drug  which  is
adulterated or misbranded, within  the meaning of this Act;  and
any person who shall violate any of the provisions of this section
shall be guilty of a misdemeanor, and for each offense shall, upon
conviction  thereof, be fined not to exceed  five hundred dollars or
shall be sentenced to one year's imprisonment, or both  such  fine
and imprisonment, in the discretion of the court,  and for each  sub-
sequent offense and  conviction thereof shall be fined not  less than
one thousand dollars or sentenced to  one year's imprisonment, or
both such fine and imprisonment, in the discretion of the court.
   SEC. 2.  That the introduction into any State or Territory or the
District of Columbia from any other State or  Territory or the
District of Columbia, or from any foreign country, or shipment to
any foreign country of any article of  food  or drugs which is adul-
  1A11 functions formerly vested in the Secretary of Health, Education, and Welfare concern-
 ing establishment of tolerances for pesticide chemicals under this section, together with author-
 ity to monitor compliance with the tolerances, to review the effectiveness of surveillance and
 enforcement, and to provide technical assistance to the States and to conduct research under
 this Chapter and Chapter 6A of Title 42, were transferred to the Administrator of the Environ-
 mental Protection Agency, by ReorK. Plan No. 3 of 1970, $ 2(a) (4), eff.  Dec. 2, 1970, 35 F.R.
 15623, 84 Stat.

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STATUTES AND LEGISLATIVE HISTORY                        331

terated or misbranded, within the meaning of this Act, is hereby
prohibited; and any person who shall ship or deliver for shipment
from any State or  Territory or the District of Columbia to any
other State or Territory  or the  District of Columbia,  or to  a
foreign country, or who shall receive in any State or Territory or
the District of Columbia from any other State or Territory or the
District of Columbia, or foreign country,  and having so received,
shall deliver, in original unbroken packages, for pay or otherwise,
or offer to deliver to any other person, any such article so  adulter-
ated or misbranded within  the meaning of this Act, or any person
who shall sell or offer for sale in the District of Columbia or the
Territories of the  United  States  any  such  adulterated  or mis-
branded foods or drugs, or export or offer to export the  same to
any foreign country, shall be guilty of a misdemeanor, and for such
offense  be fined  not exceeding two hundred  dollars for  the  first
offense, and upon conviction for each subsequent offense  not  ex-
ceeding three hundred dollars or be imprisoned not exceeding one
year, or both, in the discretion of the court: Provided, That no arti-
cle shall be  deemed misbranded or adulterated within the provi-
sions of this Act when intended for export to any foreign  country
and prepared or packed according to the specifications or directions
of the foreign purchaser when no substance is used in the prepara-
tion or  packing thereof in conflict with the  laws of the  foreign
country to which said article is intended to be shipped; but if said
article shall be in fact sold or offered for sale for domestic use or
consumption, then this proviso shall not exempt said article from
the operation of any of the  other provisions of this Act.
   SEC. 3. That the Secretary of  the Treasury, the  Secretary  of
Agriculture, and the Secretary of Commerce and Labor shall make
                                                       [p. 768]
uniform rules and regulations for carrying out the provisions  of
this Act, including the collection and examination of specimens of
foods and drugs manufactured or offered for sale in the District of
Columbia, or in any Territory of the United States, or which shall
be offered for sale in  unbroken packages in any State other than
that in which they shall have been respectively manufactured  or
produced, or which  shall be received from any foreign country,  or
intended for shipment to any foreign  country, or which  may be
submitted for examination by the chief health, food, or drug officer
of any State,  Territory, or the District of Columbia, or at  any
domestic or foreign port through which such product is offered for
interstate commerce,  or for export or import between the United
States and any foreign port or country.

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332                            LEGAL COMPILATION—PESTICIDES

  SEC. 4. That the examinations of specimens of foods and drugs
shall be made in the Bureau of Chemistry of the Department of
Agriculture, or under the direction and supervision of such Bureau,
for the purpose of determining from such examinations whether
such articles are adulterated or misbranded within the meaning of
this Act; and if it shall  appear from any such examination that
any of such specimens is adulterated or  misbranded within the
meaning of this Act, the Secretary of Agriculture shall cause notice
thereof to be given to the party from whom such sample was ob-
tained. Any party so notified shall be given an opportunity to be
heard, under such rules and regulations as may be prescribed as
aforesaid, and if it appears that any of the provisions of this Act
have been violated by such party, then the Secretary of Agricul-
ture shall at once certify the facts to the proper United States
district attorney, with a copy of the results of the analysis or the
examination of such article  duly authenticated by the analyst or
officer  making such examination, under the oath of such officer.
After judgment of the court, notice shall be given by publication
in such manner as may be prescribed by the rules and regulations
aforesaid.
  SEC. 5. That it shall be the duty of  each district  attorney to
whom  the Secretary of Agriculture shall  report any violation of
this Act, or to whom any health or food or drug officer or agent of
any State, Territory, or the District of Columbia shall present
satisfactory evidence of any such violation, to cause  appropriate
proceedings to be commenced and prosecuted in the proper courts
of the United States, without delay, for the enforcement of the
penalties as in such case herein provided.
  SEC. 6. That the term  "drug," as used in this Act, shall include
all medicines and  preparations recognized in the United States
Pharmacopoeia or National Formulary for internal or external use,
and any substance or mixture of substances intended to be used for
the cure,  mitigation, or prevention of disease of either man or other
animals.  The term "food," as used herein, shall include all articles
used for food, drink, confectionery, or condiment by man or other
animals, whether simple, mixed, or compound.
  SEC. 7, That for the purposes of this Act  an article shall be
deemed to be adulterated:
  In case of drugs:
  First.  If, when a drug  is sold under or by a  name recognized in
the United States Pharmacopoeia or National Formulary, it differs
from the standard of strength, quality, or purity, as determined by
the test laid down in the United States Pharmacopoeia  or National

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STATUTES AND LEGISLATIVE HISTORY                        333

Formulary official at the time of investigation:  Provided, That no
drug denned in the United States Pharmacopoeia or National For-
mulary shall be  deemed to be adulterated under this provision if
the standard of strength, quality, or purity be plainly stated upon
the bottle, box, or other container thereof although the standard
may differ from that determined by  the test laid down  in the
United States Pharmacopoeia or National Formulary.
                                                      [p. 769]
  Second. If its  strength or purity fall below the professed stan-
dard or quality under which it is sold.
  In the case of confectionery:
  If it contain terra alba, barytes, talc, chrome yellow,  or other
mineral substance or poisonous color or flavor, or other ingredient
deleterious or detrimental to health, or any vinous, malt or spiritu-
ous liquor or compound or narcotic drug.
  In the case of food:
  First. If any substance has been mixed and packed with it so as
to reduce or lower or injuriously  affect  its quality or strength.
  Second. If any substance has been substituted wholly or in part
for the article.
  Third. If any valuable constituent of the article has been wholly
or in part abstracted.
  Fourth. If it be mixed, colored, powdered, coated, or stained in a
manner whereby damage or inferiority is concealed.
  Fifth. If it contain any added poisonous or other added deleteri-
ous ingredient which may render such  article injurious to health:
Provided, That when in the preparation of food products for ship-
ment they are preserved by any external application applied in
such manner that the preservative is necessarily removed mechan-
ically, or by maceration in water, or otherwise,  and directions for
the removal of said preservative shall be printed on the covering or
the package, the provisions of this Act shall be construed as apply-
ing only when said products are ready for consumption.
  Sixth. If it consists in whole or in part of a filthy, decomposed, or
putrid animal or vegetable substance, or any portion of an animal
unfit for food, whether manufactured or not, or  if it is the product
of a diseased animal, or one that has died otherwise  than by
slaughter.
  SEC. 8. That the term "misbranded," as used  herein, shall apply
to all drugs, or articles of food, or articles  which enter into the
composition of food, the package or label of which shall bear any
statement, design, or device regarding such article, or the ingredi-
ents or  substances contained therein which shall be false or mis-

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334                            LEGAL COMPILATION—PESTICIDES

leading in any particular, and to any food or drug product which
is falsely branded as to the State, Territory, or country in which
it is manufactured or produced.
  That for the purposes of this Act an article shall also be deemed
to be misbranded:
  In case of drugs:
  First. If it be an imitation of or offered for sale under the name
of another article.
  Second. If the contents of the package as originally put up shall
have been removed, in whole or in part, and other contents shall
have been placed in such package, or if the package fail to bear a
statement on the label of the quantity or proportion of any alcohol,
morphine, opium, cocaine, heroin, alpha or beta eucaine, chloro-
form, canabis indica, chloral hydrate, or acetanilide, or any deriva-
tive or preparation of any such substances contained therein.
  In the case of food:
  First. If it be an imitation of or offered for sale under the dis-
tinctive name of another article.
  Second. If it be labeled or branded so as to deceive or mislead the
purchaser, or purport to be a foreign product when not so, or if the
contents of the package as  originally put up shall have been re-
moved in whole or in part and other contents shall have been placed
in such package, or if it fail to bear a statement on the label of the
quantity or proportion of any morphine, opium, cocaine, heroin,
alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate,
or acetanilide,  or any  derivative or preparation of any such sub-
stances contained therein.
                                                       [p.770]
  Third. If in package form, and the contents are stated in terms
of weight or measure,  they are not plainly and correctly stated on
the outside of the package.
  Fourth.  If the package containing it or its label shall bear any
statement, design, or device regarding the ingredients or the sub-
stances contained therein, which statement, design, or device shall
be false or misleading  in any particular: Provided, That an article
of food which does not contain any added poisonous or deleterious
ingredients shall not be deemed to be adulterated or misbranded in
the following cases :
   First. In the case of mixtures or compounds which may be now
or from time to time  hereafter known as  articles of food, under
their own distinctive names, and not an imitation of or offered for
sale under the distinctive name of another article, if the name be
accompanied on the same label or brand with a statement of the

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STATUTES AND LEGISLATIVE HISTORY                        335

place where said article has been manufactured or produced.
  Second. In the case of articles labeled, branded, or tagged so as
to plainly indicate that they are compounds, imitations, or blends,
and the word "compound," "imitation," or "blend," as the case may
be, is plainly stated on the package in which it is offered for sale:
Provided, That the term blend as used herein shall be construed to
mean a mixture of like substances, not excluding harmless coloring
or flavoring ingredients used for the purpose of coloring and flav-
oring only: And provided  further, That nothing in this Act shall
be construed as requiring or compelling proprietors or manufac-
turers  of proprietary foods which contain no  unwholesome added
ingredient to disclose their trade formulas, except in so far as the
provisions of this Act may require to secure  freedom from adul-
teration or misbranding.
  SEC. 9. That no dealer shall be prosecuted under the provisions
of this Act when he can establish a guaranty signed by the whole-
saler, jobber, manufacturer, or other party residing in the United
States, from whom he purchases such articles, to the effect that the
same is not adulterated or misbranded within  the meaning of this
Act, designating it. Said guaranty, to afford protection, shall con-
tain  the name and address of the party or parties making the sale
of such articles to such dealer, and in such case said party or par-
ties shall be amenable to the prosecutions, fines, and other penal-
ties  which would attach,  in due course, to the dealer  under  the
provisions of this Act.
  SEC. 10. That any article of food, drug, or liquor that is adulter-
ated or misbranded within the meaning of this  Act, and is being
transported from one State, Territory, District,  or insular posses-
sion  to another for sale, or, having been  transported, remains un-
loaded, unsold, or in original unbroken packages, or if it be sold or
offered for sale in the District of Columbia or the Territories, or
insular possessions of the United States,  or if  it  be imported from
a foreign country for sale, or if it is intended for export to a foreign
country, shall be liable to be proceeded against  in any district court
of the  United  States within the district where the same is found,
and seized for confiscation by a process of libel for condemnation.
And if such article is condemned as  being adulterated or mis-
branded, or of a poisonous or deleterious character, within the mean-
ing of this Act, the same shall be disposed of by destruction or sale,
as the said court may direct, and the proceeds  thereof, if sold, less
the legal costs and charges, shall be paid into the Treasury of the
United States, but such goods shall not be sold in any jurisdiction
contrary to the provisions of this Act or the laws of that jurisdic-

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336                            LEGAL COMPILATION—PESTICIDES

tion: Provided, however, That upon the payment of the costs of
such libel proceedings and the execution and delivery of a good and
sufficient bond to the effect that such  articles shall not be sold or
otherwise disposed of contrary to the provisions of this Act, or the
laws of any State, Territory, District, or insular possession, the
court may by order  direct that  such  articles be delivered to the
                                                      [p. 771]
owner thereof. The proceedings of such libel cases shall conform, as
near as may be, to the proceedings in admiralty, except that either
party may demand trial by jury  of any issue of fact joined in any
such case, and all such proceedings shall be at the  suit of and in the
name of the United States.
  SEC. 11. The Secretary of the Treasury shall deliver to the Sec-
retary of Agriculture, upon his request from time to time, samples
of foods and drugs which are being imported into the United States
or offered for import, giving notice thereof to the owner or con-
signee, who may appear before the Secretary of Agriculture, and
have the right to introduce  testimony, and if  it  appear from the
examination of such samples that any article of food or drug of-
ered to be imported  into the United States is adulterated or mis-
branded within the meaning of this Act, or is otherwise dangerous
to the health of the people of the United States, or is of a kind for-
bidden entry into, or forbidden to be  sold or restricted in sale in
the country in which it is made or from which  it  is exported, or is
otherwise falsely labeled in  any respect,  the said article shall be
refused admission, and the Secretary of the Treasury  shall refuse
delivery to the consignee and shall cause the  destruction of any
goods refused delivery  which shall not be exported by  the con-
signee within three months from the date of notice of such refusal
under such regulations as the Secretary of the Treasury may pre-
scribe : Provided, That the Secretary of the Treasury  may deliver
to the consignee such goods pending examination and decision in
the matter on execution of a penal bond for the amount of the full
invoice value of such goods, together with the duty thereon, and on
refusal to return such goods for any  cause to the custody of the
Secretary of the Treasury,  when demanded, for the purpose of
excluding them from the country, or  for any other purpose,  said
consignee shall forfeit the full amount of the bond: And  provided
further, That all charges for storage,  cartage,  and labor on goods
which are refused admission or delivery shall be paid by the owner
or consignee, and in  default of such payment shall contitute a lien
against any future importation made by such owner  or consignee.
  SEC. 12. That  the term "Territory" as used  in this  Act shall

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STATUTES AND LEGISLATIVE HISTORY                        337

include the insular possessions of the United States. The word "per-
son" as used in this Act shall be construed to import both the plural
and the singular, as the case demands, and shall include corpora-
tions, companies, societies and associations. When construing  and
enforcing the provisions of this Act, the act, omission, or failure
of any officer, agent, or other person acting for or employed by  any
corporation, company, society,  or association, within the scope of
his employment or office, shall  in every case  be also deemed to be
the act, omission, or failure of  such corporation, company, society,
or association as well as that of the person.
   SEC. 13. That this Act shall be in force and effect from and after
the first day of January, nineteen hundred and seven.
   Approved, June 30,1906.
                                                      [p. 772]

    1.2a  (1)  SENATE COMMITTEE ON MANUFACTURE
              S. REP. No. 8, 59th Cong., 1st Sess. (1905)
MANUFACTURE,  SALE,  ETC.,  OF ADULTERATED FOODS,
                            ETC.
              DECEMBER 14,1905.—Ordered to Be printed.
Mr. HEYBURN, from the Committee on Manufactures,  submitted
                        the following
                         REPORT
                      [To accompany S. 88.]
  The Committee on Manufactures, to whom was referred the bill
(S. 88) for preventing the manufacture, sale, or transportation of
adulterated  or misbranded or poisonous  or  deleterious foods,
drugs, medicines, and liquors, and for regulating traffic therein,
and for other purposes, have considered the same and recommend
the passage of the bill, with the following amendments:
  On  page 3, line 11, after the word "personally," insert "respon-
sible for such violation."
  In line 13, page 3,  strike out the word "each" and insert in lieu
thereof the word "the." In the same line, on page 3,  insert after
the word "corporation" the words "directly responsible therefor."
  In line 22, page 10, strike out the word "it" and insert the words
"such article."
                                                       [p.l]

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338                           LEGAL COMPILATION—PESTICIDES

1.2a  (2)   HOUSE   COMMITTEE  ON  INTERSTATE  AND
                   FOREIGN  COMMERCE
       H.R. REP. No. 2118 (parts 1 & 2), 59th Cong., 1st Seas. (1906)
                        PURE FOOD
                           Parti
MARCH 7, 1906.—Committed to the Committee of the Whole House on the state
               of the Union and ordered to be printed.
Mr. MANN, from the Committee on Interstate and Foreign Com-
                merce, submitted the following
                         REPORT
                      [To accompany S. 88.]
  The Committee on Interstate and Foreign Commerce, to whom
was referred the bills, H.R. 4527, 7018, 12071, 13859, and S. 88,
beg leave to report and recommend that the said House  bills be
laid on the table.
  H.R.  4527 is the bill known as the "Hepburn pure-food bill,"
and is similar  to the bill which was reported  to the House on
January 18,1904, and which was passed by the House.
  Your committee  has perfected  the Hepburn bill by  various
amendments and recommends that Senate bill 88  be amended by
striking out  all after the enacting clause and substituting the
Hepburn bill as perfected by the committee.  The  perfected Hep-
burn bill, offered as a substitute for the Senate bill, is set forth in
full at the end of this report.
  The bill as recommended for passage proposes to regulate to a
certain  extent  the traffic in drugs and foods in  the District of
Columbia, in the Territories, and insular  possessions, also when
imported into the  United States or intended for export,  and in
interstate commerce,  under rules and regulations to be made in
accordance with the provisions of the bill by the Secretary of the
Treasury, the  Secretary  of Agriculture,  and  the  Secretary  of
Commerce and Labor.
  It forbids the importation, or the shipment from one State to
another, or the offering for sale in the District of Columbia and
the Territories of articles declared by the act  to be adulterated
or misbranded.
     *******
                         DEFINITIONS
                                                        [P.I]

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STATUTES AND LEGISLATIVE HISTORY                        339

            WHEN NOT ADULTERATED OR MISBRANDED
  It is  provided, however, that an article of food shall not be
considered adulterated or misbranded if it does not contain  any
added poisonous or deleterious ingredients in the following cases:
  First. In the case of mixtures or compounds, known as articles
of food under their own distinctive names and not an imitation of
or offered for sale under the distinctive name of another article,
provided the label or brand shall contain a statement where the
article has been manufactured or produced.
  Second. In the case of articles labeled, branded, or tagged, so as
to plainly indicate that they are compounds, imitations, or blends.
And in this connection the bill describes the word "blend" as used
therein to mean a mixture of like substances, not excluding harm-
less coloring or flavoring ingredients.  It is  further provided that
manufacturers of proprietary  articles which contain no  unwhole-
some added ingredient shall not be required to disclose their trade
formulas except in so far as may be necessary to prevent adultera-
tion or misbranding.
                                                        [p. 3]
                      STANDARDS OF FOOD
  We realize that it is not possible for Congress  to determine the
wholesomeness or unwholesomeness of each food product, or to fix
by legislative act the standard which shall be accepted as comply-
ing with well-known names of food articles. We realize that in the
end the determination of the standard of a food article under a
given name may be one to be settled by the courts. It is,  however,
essential to the success and operation of any pure-food measure
that standards of food products shall be arrived at for the guidance
of the officials charged with the administration of the law  and
often for the information of the courts.
  One of  the principal objects of a national pure-food  law is to
obtain uniformity of food standards among the States, which are
supreme within their own borders. The intention  of the makers of
the Constitution and the founders of the Republic that commerce
between  the States should  be free and unhampered  has been
largely nullified as to food products by the varying requirements
as to standards  and labels in  different  States. In  one  State  one
standard may be required for a named  article and in the adjoining
State a different standard fixed; and where the same standard is
agreed upon in a group of States for precisely  the same article
different  labels  may be required in each  of  them, so  that  the
producer or manufacturer is compelled to not only have complete
knowledge of the various State laws, but under penalty is required

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340                            LEGAL COMPILATION—PESTICIDES

to carefully see to it that a package of goods intended to meet the
requirements of one State shall not by  error be sent into another
State. This has a tendency to prevent the development of small
jobbing and wholesale cities, because the small jobber perhaps can
not well afford to carry in stock what  in fact is the same article
properly labeled for a number of different States surrounding him.
  It is therefore provided in the bill that the Secretary of Agri-
culture shall fix the standard of food products when advisable, and
that to aid him in reaching just decisions, he is authorized to call
upon the  committee  on food standards  of the Association of
Official Agricultural Chemists and the  committee of standards of
the Association of State Dairy and Food Departments, and such
other experts as he may deem necessary.
                                                        [p. 4]
            NECESSITY FOR NATIONAL PURE-FOOD LAW
                                                        [p. 5]
    ******        *
     One of the hoped-for good  results of a  national law on the
subject of pure foods is the bringing about of a uniformity of laws
and regulations on the part of the States within their own several
borders. It is believed that the fixing of food standards through
the aid, in part, of the State food officials in collaboration with the
Agricultural  Department will have the happy result of final  uni-
form food standards and regulations in the different States.

             VARIOUS BILLS INTRODUCED IN CONGRESS
   Legislation regarding interstate commerce in foods has been
constantly before the Congress of the United  States for about
eighteen years. Senate bill No. 3991, introduced June 3,  1890, by
Mr.  Paddock, passed  the Senate about fourteen years  ago. Since
then the following pure-food bills have been introduced in the
Senate and the House:
                          PURE FOODS
   The purpose of the pending measure is not to compel people to
consume particular kinds of foods. It is not to compel manufactur-
ers to produce particular kinds or grades of food.  One of  the
principal objects of the bill is to prohibit in the manufacture of
foods intended for interstate commerce the addition of foreign
substances poisonous or deleterious to health. The bill  does  not
relate to any natural constituents of food products which  are
placed in the foods by nature itself. It is well known that in many

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STATUTES AND LEGISLATIVE HISTORY                        341

kinds of foods in their natural state some quantity of poisonous
or deleterious ingredients exists. How far these substances may be
                                                         [p. 6]
deleterious to health when the food articles containing them are
consumed may be a subject of dispute between the scientists, but
the bill reported does not in any way consider that question.  If,
however, poisonous or deleterious substances are added by man to
the food product, then the bill declares the article to be adulterated
and forbids interstate traffic.
  The question whether certain substances are poisonous or dele-
terious to health the bill does not undertake to  determine, but
leaves that to the determination of the Secretary of Agriculture
under the guidance of proper disinterested scientific authorities,
after most careful study, examination, experiment, and thorough
search.
  While the provisions  of the bill forbid the adulteration of food
products, they also attempt to give a measure  of protection to the
consumer by forbidding interstate traffic in falsely labeled  or
branded articles. The theory of the bill is that the consumer of
food products is entitled to consume whatever he may  wish, but
that he is also entitled, when he purchases an article purporting
to be  one thing, not to be cheated by having some inferior  or
different article passed off on him. The basis of the bill is to require
at least a fair degree of honest dealing.
  From a careful study of the data which have been considered by
the committee  through extensive hearings in this and former
Congresses,  it is certain that  there is  an immense amount  of
deception, fraud, and deliberate swindling practiced by the mis-
branding of food products. False and misleading claims are often
found  attached  as a part  of the label  to food  products.  False
statements of origin or of  the country in which the substance is
produced are often found. Where a particular State or locality has
managed to build up a reputation for its products and thereby
enhance their market value, it has become a  somewhat common
practice for  manufacturers in other sections of  the country to
steal the name of the favored State or locality and thereby endeav-
or to steal the benefit of an enhanced price. This is unfair, both to
the consumer and to the locality or State which  is named. The
pending measure forbids the entry into interstate commerce  of
such fraudulent  labels and  misleading descriptions.
  Under the term "food"  has been included not  only ordinary
foods,  but also drinks, confectionery, and condiments. It has been
shown by the researches of distinguished physiological chemists

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342                           LEGAL COMPILATION—PESTICIDES

that beverages generally contain food products which, by their
oxidation, furnish heat and energy, and also in many cases upbuild
tissues and restore waste. Therefore,  a food in liquor form may
be considered from the same standpoint as any other food. Condi-
ments are essential to modern food consumption and are, there-
fore, very properly included under the class of foods.
                                                        [p. 7]
                OFFICIALS TO CARRY OUT THE LAW
  The bill provides that the law shall be carried out under uniform
rules and regulations to be made by the Secretaries of the three
departments, to wit:  Treasury, Agriculture, and Commerce and
Labor. It is not designed to add a vast number of employees to the
Government service. If the bill  becomes a  law  no  additional
employees can  be added except as may be authorized  by appro-
priations  hereafter made by  Congress. Nor  will  there be any
considerable number of employees required in any  event. The
officials of the National Government having charge of the enforce-
ment of the  law will cooperate  with the  State  food, dairy, and
drug officials.
  The  prosecutions  which will  be commenced  by the national
authorities will be mainly directed against the manufacturers of
food products; or, if it be impossible to find  the manufacturer,
against the jobbers  and wholesale dealers. If the State officials
cooperate, they will call the attention of the national authorities to
the existence of adulterated and misbranded  articles within the
State borders.  These articles will be examined  under the direc-
tion of the  Bureau of Chemistry; and if found contrary to the
provisions of the act, then prosecutions will be commenced against
the manufacturer, who will be known by his guaranty.  There will
be no occasion for many officials  in the employ of the Government
and no occasion for great expense.
   It is not proposed by the bill to interfere in any way with the
power of the State officials  over local trade, but the purpose of
the bill is to give to State  officials the aid of the National Govern-
ment and to receive from the State officials their aid in the enforce-
ment of the national law.
   The passage of this bill  is  in the interest  of protecting the weak
from the powerful, the poor consumer from the rich manufacturer.
   The laboring man or artisan, who knows his  own trade, but who
may not be an expert in the quality of foods or their imitations or
adulterations,  is entitled  to the protection of the State to the
extent that when he purchases an article for the consumption of his
family he receives what he pays for, and further, to know that the

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STATUTES AND LEGISLATIVE HISTORY                           343

food which he buys and eats shall give  him  strength  and vigor
instead of  containing some harmful substance or poison which,
in the end, breaks down his health. What is true of such a man is
true of all the rest of us.  The public is entitled to protect itself
against those who would cheat and defraud it in those necessaries
of life where one can not tell the spurious from the genuine, either
by casual examination or by consumption.
   We think it is the duty of the State to  give to the public the
measure of protection offered by the provisions of the bill which
we have recommended for passage.

                      COMMITTEE AMENDMENT
   Amend the bill by striking out all after the enacting clause and
inserting in place thereof as a substitute the following:
      *******

                                                               [p. 9]
  SEC. 2. That the  Secretary of the Treasury, the Secretary of Agriculture,
and  the  Secretary  of Commerce and  Labor shall make uniform rules  and
regulations for carrying out the provisions of this act, including the collection
and examination of specimens of foods and drugs manufactured or offered for
sale  in the District of Columbia or in any Territory of the United States, or
which shall be offered for sale in unbroken packages in any State other than
that in which they shall have been respectively manufactured or produced, or
which shall be received from any foreign country, or intended for shipment to
any foreign country, or which may be submitted for examination by the chief
health, food, or drug officer of any State, Territory, or the  District of Colum-
bia, or at any domestic or foreign port through which such product is offered
for interstate commerce, or for export or import between the United States
and any foreign port or country.
  SEC. 3. That the examinations of specimens of foods and drug's shall be made
in the Bureau of Chemistry of the Department of Agriculture, or under the
direction and supervision of such Bureau, for the purpose of determining from
such examinations whether such articles are adulterated or  misbranded within
the meaning of this act;  and if it shall appear from any such examination
that any of such specimens is adulterated or misbranded within the  meaning
of this act the Secretary of Agriculture shall cause notice thereof to  be given
to the party from whom such sample was obtained. Any party so notified shall
be given an opportunity to be heard, under such rules and regulations as may
be prescribed as aforesaid, and if it appears that any of the provisions of this
act have been violated by such party, then the Secretary of Agriculture shall
at once certify the facts to the proper United States district attorney, with  a
copy of  the results of the analysis or the examination of such article,  duly
authenticated by the  analyst or officer making such examination, under the
oath of  such  officer. After judgment of the court notice  shall  be  given by
publication in such manner as may be prescribed by the rules and regulations
aforesaid.
     *******

                                                              [p. 10]

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344                              LEGAL COMPILATION—PESTICIDES

  SEC. 9. That it shall be the duty of the Secretary of Agriculture to fix stan-
dards of food products when advisable for the guidance of the officials charged
with  the administration of food laws and for the information of the courts, and
to determine the wholesomeness or unwholesomeness of preservatives and other
substances which are or may be added to foods; and to aid him in reaching just
decisions in such matters he is authorized to call upon the committee on food
standards of  the Association of Official Agricultural Chemists, and the  com-
mittee of standards of the Association of State Dairy and Food departments,
and such other experts as he may deem necessary. And upon request made to
the Secretary of Agriculture prior to reaching any decision as provided for in
this section, by any manufacturer or other person interested, asking for the
appointment  of a board to determine the wholesomeness or unwholesomeness
of any preservative or other substance which is or may be added to foods, and
concerning the use of which the person making the request has an interest, it
shall be the duty of the Secretary of Agriculture to appoint a board of disinter-
ested experts, which board shall consist of five members, one of whom shall be
an expert  toxicologist, one an  expert physiological chemist, one an expert
bacteriologist, one an expert pathologist, and one an expert pharmacologist,
which board  shall meet at the city of Washington,  B.C., or elsewhere, at the
call of the  Secretary of Agriculture, and pass upon such question after proper
notice and hearing granted to the  person making such request. The compensa-
tion  of the members of such board shall be fixed by the  Secretary of Agri-
culture.
                                                            [P. 12]
                           PURE FOOD
                               Part 2
MARCH 14,  1906.—Committed to the Committee of the Whole House on the
               state of the Union and ordered to be printed.
Mr. BARTLETT,  from the Committee on Interstate and Foreign
             Commerce, submitted the following as the
                  VIEWS OF THE MINORITY
                        [To accompany S. 88.]
   The undersigned members of the Committee on  Interstate and
Foreign  Commerce,  being unable  to  agree with the report sub-
mitted on Senate bill 88, respectfully submit the following reasons
why they can not concur in the report:
   The power of government to regulate the sale  of food products
and drugs, prohibit adulteration of the same, prescribe the man-
ner in which they shall be branded, and fix the size and weight of
of the packages in which such food products and  drugs shall be
contained is admittedly an  exercise  of  police power. We do not
understand or  believe,  from our conception  of the  powers  of
Congress contained  and  specified  in the Constitution  of  the
United States, that Congress has the power or authority to enact

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STATUTES AND LEGISLATIVE HISTORY                        345

police laws for the regulation of the manufacture, sale, or for the
prevention of the adulteration of food, except so far as such laws
may be made to apply to the District of Columbia, the Territories,
and those localities over which Congress has, under the Constitu-
tion, exclusive jurisdiction.
  While  we are in hearty accord with  all efforts  made for  the
purpose of having laws enacted to prevent the sale of impure or
adulterated foods, or to prevent frauds and impositions upon the
people by the sale of impure or adulterated foods, we believe that
the legislatures of the several States have full power and authority
to enact such laws and to  protect the people of  the various States
from fraud and imposition by the sale of impure or adulterated
food and drugs. Nearly all of the States have enacted laws on the
subject and are enforcing them. The power to  protect the people
of the  various States in health, in morals, and  general welfare is
inherent in the States—was reserved to the States by the Consti-
tution, was not delegated to the Congress of the United States,
and remains there to be exercised by  the States at the will and
pleasure of the legislatures of such States.
                                                        [p.l]
                      STANDARDS OF FOOD
  The bill provides that the standards of food which may be estab-
lished shall be fixed by the Secretary of Agriculture, aided by the
committee on food standards of the Association  of Official Agricul-
tural Chemists and the committee of standards  of the Association
of State Dairy and Food Departments. This provision, contained
in section 9 of the bill, will not accomplish the purpose intended,
because if the Secretary of Agriculture  should establish a standard
for  food  products, and  any State into which such food products
may be transported  should establish a different standard, as  the
State would have a right  to do, the standard fixed by the law of
the  State where the food is sold or offered for sale would control.
  In other words, the Congress of the United States can not, by this
bill enacted into law, establish a standard for food products which
will prevent  the States from enforcing compliance with such
standards for  food products as the legislatures  of the States may
prescribe for the several States. Therefore the purpose of the bill
—i.e.,  to have a  uniform  standard  for  food—will  fail.  As has
already been  stated, the Supreme Court  of the United States, in
the  case of Grossman v. Lurman (192 U. S., 189), decided that the
                                                       [P. 17]
standard for food products established by the legislature of New
York for the State of New York would prevail  over the standard

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346                              LEGAL COMPILATION—PESTICIDES

fixed for food products by the act of Congress, and that Congress
could not, by fixing a standard for food  products imported into
the  United States, deprive the States of their police  power of
regulating the sale of food products within the States.
  In that case the Supreme Court say:
  It is urged that, even although there was power in the State of New York to
legislate on the subject of adulteration  of food, such legislation ceased to be
operative as regards food products imported into the United States through the
channels of foreign  commerce after the passage of the act of  Congress
approved August 30,1890, "providing for the inspection of means for exporta-
tion, prohibiting the importation of adulterated articles of food or drink,  and
authorizing the President to make proclamation  in certain cases."  (26 Stat.,
414.) The second section of that act, it is insisted, does not exclude from impor-
tation adulterated food, but simply adulterated food which is mixed with  any
poisonous or noxious chemical, drug, or other ingredient injurious to health,
which it is urged was not the case with the coffee  in question. The language of
the section upon which this contention is based is as follows:
  "That it shall be unlawful to import into the United  States any adulterated
or unwholesome food or drug, or any vinous,  spirituous, or malt liquors,
adulterated or mixed with any poisonous or noxious chemical,  drug, or other
ingredient injurious to health."
  We think it unnecessary to determine whether the statute lends even color
to the proposition, since we think it is clear that its  effect, whatever be its
import, was not to deprive the State of its police powers to  legislate  for the
benefit of its people in the prevention of deception and fraud, and thus to
control sales made within the State of articles so adulterated  as to come
within the valid prohibition of the State's statute.
  If it be the law, as was stated in this last-mentioned case, that,
notwithstanding the fact  that  Congress had fixed a standard  for
food imported into the United States, and notwithstanding that the
officials of the  United States authorized to inspect the  food thus
imported had approved of such imported food  as having complied
with the law, the States have the right under their police power to
fix another and different standard, and that food when offered  for
sale or delivered  in the States should  come up to the standard
fixed by the State, then this bill which endeavors to fix  a  national
food standard  for all  food products  in  the United  States when
shipped from one State to another must fail in its purpose, because
whenever any of the States shall  fix or prescribe a different stan-
dard the manufacturers  of the food products must comply with
the  laws of the State where such  food is manufactured  or offered
for sale.
  Congress  has already by act approved June 3, 1902, authorized
the  Secretary of Agriculture to establish standards  of food and
food products, and to determine what are regarded as adulterations
therein for the guidance of the officials of the various States and

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STATUTES  AND LEGISLATIVE  HISTORY                         347

the courts of justice. And the Secretary in pursuance of that act
on November 21, 1903, issued a circular proclaiming standards for
purity  of  food products, together  with their definitions, as  the
official  standards of  these  food products  for the United States.
That proclamation is as follows :

     ORIGINAL PROCLAMATION OF STANDARDS AND LETTER OF TRANSMITTAL.
                  [Circular No. 10, Secretary's Office.]
  Whereas,  The Congress of the United States by an  act approved June 3,
1902, authorized the Secretary of Agriculture to establish standards of purity
for food products; and
  Whereas he was empowered by this act to consult with the Committee on
Food Standards of  the Association of Official Agricultural Chemists and other
experts in determining the standards; and
                                                           [p-18]
  Whereas,  he has in accordance with the provisions of the act availed him-
self of the  counsel and  advice  of  these  experts  and of the trade interests
touching the products for  which standards have been  determined and has
reached certain conclusions based on the general principles of examination and
conduct hereinafter mentioned;
  Therefore, I, James  Wilson, Secretary of Agriculture, do hereby proclaim
and establish the following standards for purity  of food products together
with their precedent definitions as the official standards of these food products
for the United States of America.
                                                   JAMES WILSON.
  WASHINGTON, B.C., November 21,1903.
  The various State  legislatures have in  many instances passed
laws to conform to these standards, and doubtless many more will
do so. In our opinion, this will be all the law necessary or proper
for Congress to pass on the subject.
  If anything at all is needed in the way  of legislation to enable
the States to effectually enforce their laws upon the subject of
food, food products and drugs, and to prevent the sale of impure
foods, or the fraudulent branding of food products or drugs, then
all that is needed is for Congress to enact a  law  which would
subject such  food products or drugs to the  police  laws of  the
various States whenever they are transported into the States for
sale or  use in the same  way that  the act of August 8, 1890,  made
spirituous liquors and beer subject to the laws of the States  when
transported therein for  use  or consumption, and, to that end, we
suggest that House bill No. 16248 would meet the present demands
for pure-food legislation.
  That bill is as follows:
             [H.R. 6248, Fifty-ninth Congress, first session.]
A BILL to limit the effect of the regulations of commerce between the several
      States and with foreign commerce in the case of foods and drugs.
  Be it enacted by the Senate and House of Representatives of the United

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348                              LEGAL COMPILATION—PESTICIDES

States of America in Congress assembled, That from and after the passage of
this act all articles of food or drugs transported into any State or Territory,
or remaining therein for use, consumption, sale,  or storage  therein, shall,
upon arrival in such State or Territory, be subject to  the operation of and
effect of the laws of such State'or Territory enacted in the exercise of its
police powers to the same extent and in the same manner as though such
food or drugs had been produced or manufactured in such State or Territory,
and shall not be exempt  therefrom by reason of being  introduced therein in
original packages.
  SEC. 2.  That the term  "food" as used herein shall include all articles used
for food, drink, confectionery, or condiment by man or other animals, whether
simple, mixed, or compound. That the term "drugs" shall include all medicines
and preparations recognized in the United  States Pharmacopoeia or National
Formulary for  internal  or external use, and any substance or mixture of
substances intended to be used for the cure,  mitigation,  or  prevention  of
disease of either man or  other animals.

   We therefore offer this bill as a substitute for both the Senate
bill and the House substitute, believing that if Congress shall enact
the same it will do all that Congress  is authorized to do under the
Constitution and will  fully protect the people of the  United States,
or at least will leave  to the people of the various States, through
their legislatures, the duty of protecting  the people of the States
from frauds and impositions in the matter of food products. This
is where the Constitution of the  United States places the power of
protecting the people of the States  in their health,  safety, and
morals,  and will not destroy the  powers of the States,  and will not
convert  Congress into a legislature  for the enactment of purely
police laws for the various States of the Union.
                                                           [p. 19]
           1.2a  (3)    COMMITTEE OF CONFERENCE
             H.R. REP. No. 5056, 59th Cong., 1st Sess.  (1906)

                       PURE FOOD  BILL
                 JUNE 27,1906.—Ordered to be printed.
Mr. HEPBURN, from  the committee of conference, submitted  the
                             following

                    CONFERENCE REPORT
                        [To accompany S. 88.]
   The committee of conference on the disagreeing votes of the two
Houses on the amendments of the House to the bill  (S. 88) entitled
"An act for preventing the manufacture, sale, or transportation
of adulterated or misbranded or poisonous or deleterious foods,
drugs, medicines, and liquors, and  for regulating traffic therein,

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STATUTES AND LEGISLATIVE HISTORY                        349

and for other purposes," having met, after full and free confer-
ence have agreed to recommend  and do  recommend  to  their
respective Houses as follows:
  That the Senate recede from  its disagreement to the  amend-
ment of the House and agree to the same with an amendment.
                                                       [p.l]
     1.2a  (4)  SECOND COMMITTEE OF CONFERENCE
            H.R. REP. No. 5096, 59th Cong., 1st Sess. (1906)
                     PURE FOOD BILL
               JUNE 27,1906.—Ordered to be printed.
Mr. HEPBURN, from the committee of conference, submitted the
                          following
                  CONFERENCE REPORT
                      [To accompany S. 88.]
  The committee of conference on the disagreeing votes of the two
Houses on the amendments of the House to the bill (S. 88) entitled
"An act for preventing the manufacture, sale, or transportation of
adulterated or misbranded or poisonous or Beleterious foods, drugs,
medicines, and liquors, and for regulating traffic therein, and for
other purposes," having met, after full  and free conference have
agreed to recommend and do recommend to their respective Houses
as follows:
  That the Senate recede from  its disagreement to the amendment
of the House and agree to the same with an amendment.
  Strike out all of said amendment and insert in lieu thereof the
following:
  That it shall be unlawful for any person to manufacture, sett, or
offer for sale within any Territory or the District of Columbia, or
deliver for shipment, or to cause to be delivered, shipped, or
transported  from  within  any State, Territory, or District of
Columbia  to any State, Territory, or  District  of  Columbia, or
foreign  country, any article of food, drugs, medicines,  or liquors
which is adulterated or misbranded, or which contains any poison-
ous or deleterious substance within the  meaning of this Act; and
any person who shall violate any of the provisions of this section
shall be guilty of a misdemeanor, and for each offense shall, upon
conviction thereof, be  fined not to exceed  five hundred dollars or
shall  be sentenced  to one year's imprisonment, or both such fine
and imprisonment, in the discretion of the  court,  and for each

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350                            LEGAL COMPILATION—PESTICIDES

subsequent offense and conviction thereof shall be  fined not less
than one thousand dollars or sentenced to one year's imprisonment,
or both such fine and imprisonment, in the discretion of the court.
  Sec. 2. That the introduction into any State or Territory or the
District of Columbia from any  other State or Territory or the
District of Columbia, or from any foreign country, or shipment to
any foreign country of any article of food or drugs which is adult-
erated or misbranded, within  the meaning of this Act, is hereby
                                                        [p.,1]
prohibited; and any person who shall ship or deliver for shipment
from any State or Territory or the District of Columbia to any
other State or Territory or the  District of Columbia, or to a foreign
country, or who  shall receive in any State or Territory or the
District of Columbia from any  other State or Territory or the
District of Columbia, or foreign country, and having so received,
shall deliver, in original unbroken packages, for pay or otherwise,
or offer to deliver to  any other person, any such article so adul-
terated or misbranded within the meaning of this Act, or any per-
son who shall sell or offer for sale in  the District of Columbia or
the  Territories  of the United  States any such adulterated or
misbranded foods or drugs, or export or offer to export the same
to any foreign country, shall be guilty of a misdemeanor, and for
such offense  be fined not exceeding two hundred dollars for the
first offense,  and upon conviction for  each subsequent offense not
exceeding three hundred dollars or be imprisoned  not exceeding
one year, or both, in the discretion of the court: Provided, That no
article shall be deemed misbranded  or adulterated within the pro-
visions of this  Act when intended  for  export to any foreign
country and prepared or packed according to the specifications or
directions of the  foreign purchaser when no substance is used in
the preparation or packing thereof in conflict with the laws of the
foreign country to which said article is intended to be  shipped;
but  if said article shall be in fact sold or offered for sale for
domestic use or consumption, then this proviso shall not exempt
said article from the operation of any of the other provisions of
this Act.
   Sec. 3. That the Secretary of the  Treasury, the Secretary of
Agriculture, and the Secretary of Commerce and Labor shall make
uniform rules and regulations for carrying out the provisions of
this Act, including the collection and examination of specimens of
foods and drugs manufactured or offered for sale in the District of
Columbia, or in any  Territory of the United States,  or which
shall be offered for sale in unbroken packages  in any State other

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STATUTES AND LEGISLATIVE HISTORY                        351

than that in which they shall have been respectively manufactured
or produced, or which shall be received from any foreign country,
or intended for shipment to any foreign country, or which may
be submitted for examination by the chief health, food, or drug
officer of any State, Territory, or the District of Columbia, or at
any domestic or foreign pert through which such product is offered
for interstate commerce, or  for export or import  between the
United States and any foreign port or country.
  Sec. 4. That the examinations of specimens of foods and drugs
shall be made in the Bureau  of  Chemistry  of the Department of
Agriculture, or under  the direction and  supervision of  such
Bureau, for the purpose  of determining from such examinations
whether  such articles are adulterated or misbranded within the
meaning of this Act; and if it shall appear from any such examin-
ation that any  of such specimens is adulterated or misbranded
within the meaning of this Act, the Secretary of Agriculture shall
cause notice thereof to be given to the party from whom such
sample  was obtained.  Any party so notified shall  be  given an
opportunity to be heard, under such rules and regulations as may
be prescribed as aforesaid, and if  it appears that  any  of the
provisions of this Act have been violated by such party, then the
Secretary of Agriculture shall at once certify the  facts to the
proper United States district  attorney, with a copy of the results
of the analysis  or the examination of such article duly authenti-
cated by the analyst or  officer making such examination,  under
                                                        [p. 2]
the oath of such officer. After judgment of the court, notice shall be
given by publication in such manner as may be prescribed by the
rules and regulations aforesaid.
  Sec. 5.  That  it shall be the duty  of each district attorney to
whom the Secretary of Agriculture shall report any violation of
this Act, or to whom any  health or food or drug officer or agent of
any State, Territory, or the  District of Columbia  shall present
satisfactory evidence of any such violation, to cause appropriate
proceedings to be commenced  and prosecuted in the proper courts
of the United States, without delay, for the enforcement of the
penalties as in such case herein provided.
  Sec. 6. That the term "drug,"  as used in  this Act, shall include
all medicines and preparations  recognized in the United States
Pharmacopoeia or National Formulary for internal or external
use, and any substance or mixture of substances intended to be
used for the cure, mitigation, or prevention of disease of  either
man or other animals. The term "food," as used herein, shall in-

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352                            LEGAL COMPILATION—PESTICIDES

elude all articles used for food, drink, confectionery, or condiment
by man or other animals, whether simple, mixed, or compound.
  Sec. 7. That for the purposes of this Act  an article  shall be
deemed to be adulterated:
  In case of drugs:
  First. If, when a drug is sold under or by a  name recognized in
the United States Pharmacopoeia or National Formulary, it differs
from the standard of strength, quality, or purity, as determined by
the test laid down in the United States Pharmacopoeia or National
Formulary official at the time of investigation: Provided, That no
drug  defined in  the United States Pharmacopoeia or National
Formulary shall be deemed to be adulterated under this provision
if the standard of strength, quality, or purity  be  plainly  stated
wpon the bottle, box, or other container thereof although the stan-
dard may differ from that determined by the test laid down in the
United States Pharmacopoeia or National Formulary.
  Second. If its strength or purity fall  below  the professed stan-
dard or quality under which it is sold.
  In the case of confectionery:
  If it contains terra alba barytes, talc, chrome yellow,  or other
mineral substance or poisonous color or flavor, or other ingredient
deleterious or detrimental to health, or any vinous, malt or spiritu-
ous liquor or compound or narcotic drug.
  In the case of food:
  First. If any substance has been mixed and packed with it so as
to reduce or lower or injuriously affect its quality or strength.
  Second. If any  substance has been substituted wholly or in  part
for the article.
   Third. If any valuable constituent of the article has been wholly
or in part abstracted.
   Fourth. If it be mixed,  colored, powdered, coated, or stained in
a manner whereby damage or inferiority is concealed.
   Fifth. If it contain any added poisonous or other added deleteri-
ous ingredient which may render such article  injurious to health:
Provided,  That when in the preparation of food products for
shipment they are preserved by an external  application applied
in such manner that the preservative is necessarily removed me-
chanically, or by maceration in water, or otherwise, and directions
for the removal of said preservative shall be printed on the cover-
ing or the package, the provisions of this Act shall be construed
                                                        [p. 3]
as applying only when said products are ready for consumption.
   Sixth. If it consists in whole or in part of a filthy, decomposed, or

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STATUTES AND LEGISLATIVE HISTORY                        353

putrid animal or vegetable substance, or any portion of an animal
unfit for food, whether manufactured or not, or if it is the product
of a diseased animal, or  one that has  died  otherwise  than by
slaughter.
  Sec. 8. That the term "misbranded," as used herein, shall apply
to all drugs, or articles of food, or articles which enter into the
composition of food, the package or label of which shall bear any
statement, design, or device regarding such article, or the ingredi-
ents or substances contained therein which shall be  false or  mis-
leading in any particular, and to any food or drug product which
is falsely branded as to the State,  Territory, or  country in which
it is manufactured or produced.
  That for the purposes of this Act an article shall also be deemed
to be misbranded:
  In case of drugs:
  First. If it be an imitation of or offered for sale under the name
of another article.
  Second. If the contents of the package as originally put up  shall
have been removed,  in whole cr in part, and other contents  shall
have been placed  in such package, or if the package fail to bear a
statement on the label of the quantity or proportion of any alcohol,
morphine, opium, cocaine, heroin, alpha or beta eucaine, chloro-
form, cannabis indica, chloral hydrate, or acetanilide, or any deriv-
ative or preparation of any such substances contained therein.
  In the case of food:
  First. If it be an imitation of or offered for sale under the dis-
tinctive name of another article.
  Second. If it be labeled or branded so as to deceive or mislead the
purchaser, or purport to be a foreign product when not so, or if the
contents of the  package  as  originally  put up  shall have  been
removed in  whole or in part and other contents shall have  been
placed in such package, or if it fail to bear a statement on the  label
of the quantity or proportion of any morphine, opium, cocaine,
heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral
hydrate, or acetanilide, or any derivative or preparation of any of
such substances contained therein.
  Third. If in package form, and the contents  are stated in terms
of weight or measure, they are not plainly and correctly stated on
the outside of the package.
  Fourth. If the package  containing it or its label shall bear any
statement, design, or device regarding the ingredients or the  sub-
stances contained therein, which statement, design, or device  shall
be false or misleading in any particular: Provided, That an article

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354                            LEGAL COMPILATION—PESTICIDES

of food which does not contain any added poisonous or deleterious
ingredients shall not be deemed to  be adulterated or misbranded
in the following cases:
   First. In the case of mixtures or compounds which may be now
or from time to time hereafter known as articles of food, under
their own distinctive names, and not an imitation of or offered for
sale  under the distinctive name of another article, if the name be
accompanied on the same label or brand with a statement of the
place where said article has been manufactured or produced.
   Second. In the case of articles labeled, branded, or tagged so as
to plainly indicate that they are compounds, imitations, or blends,
and  the word "compound," "imitation," or "blend," as  the  case
                                                        [p. 4]
may be, is plainly stated on the package in which it is offered for
sale: Provided, That the term  blend as used herein shall be con-
strued to mean a mixture of like substances, not excluding harmless
coloring or flavoring ingredients used for the purpose of coloring
and  flavoring only: And provided further,  That nothing in this
Act  shall be construed as requiring or compelling proprietors or
manufacturers of proprietary  foods which contain no unwhole-
some added ingredient to disclose their trade formulas, except in
so far as the provisions of this Act may require to secure freedom
from adulteration or misbranding.
   Sec. 9. That no dealer shall be prosecuted under the provisions
of this Act when he can establish a guaranty signed by the whole-
saler, jobber, manufacturer, or other party residing in the United
States, from whom he purchases such articles, to the effect that the
same is not adulterated or misbranded within the meaning of this
Act, designating it. Said guaranty, to afford protection, shall con-
tain the name and address  of the party or parties making the sale
of such articles to such dealer, and in such case said party or par-
ties  shall be amenable to the prosecutions, fines, and other penalties
which would attach, in due course,  to the dealer under the provi-
sions of this Act.
   Sec. 10. That any article of food,  drug, or liquor that is adulter-
ated or misbranded within the meaning of this Act, and is being
transported from one State, Territory, District, or insular posses-
sion to another for sale,  or, having been transported, remains
unloaded, unsold, or in original unbroken packages, or if it be sold
or offered for sale in the District of Columbia or the Territories,
or insular possessions of the United  States, or if it be  imported
from a foreign country for sale, or if it is intended for export to a
foreign country, shall  be liable to be proceeded  against in any dis-

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STATUTES AND LEGISLATIVE HISTORY                        355

trict court of the United States within the district where the same
is found, and seized for confiscation by a process of libel for con-
demnation. And if such article is condemned as being adulterated
or misbranded, or of a poisonous or deleterious character, within
the meaning of this Act, the same shall be disposed of by destruc-
tion or sale, as the said court may direct, and the proceeds  thereof,
if sold, less the legal  costs and charges, shall  be paid into  the
Treasury of the United States, but such goods shall not be sold in
any jurisdiction contrary to the provisions of this Act or the laws
of that jurisdiction: Provided, however, That upon the payment of
the costs of such libel proceedings and the execution and delivery
of a good and sufficient bond to  the effect that such articles shall
not be sold or otherwise disposed of contrary to  the provisions of
this Act, or the laws of any State,  Territory,  District, or insular
possession, the court may by order direct  that such  articles  be
delivered to the owner thereof. The proceedings of such libel cases
shall conform, as near as may be, to the  proceedings in admiralty,
except that either party may demand trial by jury of any  issue of
fact joined in any such case, and all such proceedings  shall be at
the suit of and in the name of the United States.
  Sec. 11. The Secretary of the Treasury shall deliver to the Secre-
tary of Agriculture, upon his request from time to time, samples of
foods and drugs which are being imported into the United States
or offered for import, giving notice thereof to the owner or con-
signee, who may appear before the Secretary of Agriculture, and
have the right to introduce testimony, and if  it appear from  the
examination  of such samples that any article  of food or drug
offered  to be imported into the  United States is adulterated  or
misbranded within the meaning of this act, or is otherwise  danger-
                                                         [p. 5]
ous to the health of the people of the United States, or is of a kind
forbidden entry into, or forbidden to  be sold or restricted in sale
in the country in which it is made or from which it is exported, or
is otherwise falsely labeled in any respect,  the said article shall
be refused admission,  and the  Secretary of  the  Treasury shall
refuse delivery to the consignee and shall cause the destruction of
any goods refused delivery which  shall not be exported  by  the
consignee within  three months  from the date of notice  of such
refusal  under such regulations as the Secretary of the Treasury
may prescribe: Provided, That the Secretary of the Treasury may
deliver  to the  consignee  such goods pending examination and
decision in the matter on execution of a penal bond for the  amount
of the full invoice value of such goods, together with the duty

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356                           LEGAL COMPILATION—PESTICIDES

thereon, and on refusal to return such goods for any cause to the
custody of the Secretary of the Treasury, when demanded, for the
purpose of excluding them from the country, or for any other pur-
pose, said consignee shall forfeit the full amount of the bond: And
provided  further, That all charges for storage, cartage, and labor
on goods  which are refused admission or delivery shall be paid by
the owner or consignee, and in default of such payment shall con-
stitute a  lien against any future importation made by such owner
or consignee.
  Sec. 12. That the  term "Territory" as used in this Act shall in-
clude  the insular possessions of the United States. The word "per-
son" as used in this Act shall be construed to import both the plural
and the singular, as the  case demands, and shall include corpora-
tions, companies, societies, and associations. When construing and
enforcing the provisions of this Act,  the act, omission, or failure
of any officer, agent, or other person acting for or employed by
any corporation, company,  society,  or association, within the
scope of his employment or office, shall in every case be also deemed
to be  the act, omission,  or failure of such corporation,  company,
society, or association as well as that of the person.
  Sec. 13. That this Act shall be in force and effect from and after
the first day of January, nineteen hundred and seven.
  That the House recede from its amendment to the title and agree
to the title as passed in the Senate.
                                       W. P. HEPBURN,
                                       JAMES R. MANN,
                                       W. H. RYAN,
                         Managers on the part of the House.
                                       W. B. HEYBURN,
                                       P. J. MCCUMBER,
                                       A. C. LATIMER,
                         Managers on the part of the Senate.
                                                        [p. 6]

       STATEMENT OF MANAGERS  ON PART  OF THE  HOUSE
   The conferees on the  part of the House on the bill (S. 88)  for
preventing the manufacture, sale, or transportation of adulterated
or misbranded or poisonous or deleterious foods, drugs, medicines,
and liquors, and for regulating traffic therein,  and for other pur-
poses, submit the following statement:
   The House struck out all  of the Senate bill after the enacting
clause and inserted in  lieu  thereof, as one amendment,  an  act
complete in itself. There was, therefore, but one amendment as a

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STATUTES AND LEGISLATIVE HISTORY                        357

whole to be considered by the conferees. The conferees accepted
the House amendment as a basis and modified the same as herein
explained by striking out all of the House amendment and insert-
ing in lieu thereof the same matter as amended in conference.
  The following statement is in explanation of the bill as reported
by the conferees :
  Section 1 is substantially section 1  of the Senate bill and pro-
hibits manufacture of adulterated and misbranded foods and drugs
within the Territories or District of Columbia.
  Section 2 is substantially section 2  of  the Senate bill and  sec-
tion 1 of the House amendment.
  Section 3 is substantially section 3 of the Senate bill and section
2 of the House amendment.
  Section 4 is substantially section 4 of the Senate bill and section
3 of the House amendment.
  Section 5 is substantially section 5 of the Senate bill and section
4 of the House amendment.
  Section 6 is substantially sections 6, 7,  and 8 of the Senate bill
combined and section 5 of the House amendment.
  Section 7  is  the  one defining adulterations and contains  the
provisions  of the House amendment and the  Senate bill on  the
same matter in somewhat different  arrangement. This  section
deals with adulterations. The conferees struck out the provision
in the House amendment  giving the definitions of adulterations
of drugs and adopted the definitions  in  section 9  of the Senate
bill. The remainder of the section is the same as the remainder
of section  6 of the House amendment, which is  substantially
the same as provisions in the Senate bill in section 9, except
that in the fifth subdivision in section  6 of the House amendment
there is inserted, after the word  "otherwise," line 14, page 6,  the
following:  "and directions for the removal  of said  preservative
shall be printed on  the covering or the package," so that said
subdivision will read as follows:
  "Fifth. If it contain any added poisonous or other added delete-
rious ingredient which may render such article injurious to health:
                                                        [p. 7]
shall be printed on the covering or the package, the provisions of
this act shall be construed as applying only when said products
are ready for consumption."
  Section 8 is substantially the  same as section 7 of the House
amendment, with the following amendments:
  Strike out of the first paragraph of the section numbered "Sec-
ond" the following words at the end of the paragraph, to wit:

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358                            LEGAL COMPILATION—PESTICIDES

  "Provided, however, That it may be proven as a complete de-
fense to any accusation or prosecution  for failure to  state the
quantity or proportion of alcohol as above required that  the quan-
tity or proportion of alcohol contained in any package does not
exceed the quantity or proportion prescribed by the United States
Pharmacopoeia or the National Formulary as a solvent or preserva-
tive of the active necessary constituents of the medicine  or prepa-
ration in such package."
  And by amending the third paragraph, marked "Second," by
inserting after the word "blends" the words "and the word 'com-
pound, imitation, or blend,' as the case may be, is plainly stated on
the package in which it is offered for sale," and inserting after the
word "ingredient" the words "used for the purpose of coloring and
flavoring only," so that said paragraph will read as follows:
  "Second. In the case of articles labeled, branded, or tagged, so as
to plainly indicate that they are compounds, imitations, or blends,
and the word 'compound,' 'imitation,' or 'blend,' as the case may be,
is plainly stated  on the package in which it is offered for  sale: Pro-
vided, That the term blend as used herein shall be construed to
mean a mixture of  like substances, not excluding harmless color-
ing or flavoring ingredients used for the purpose of coloring and
flavoring only: And provided further, That nothing in this act shall
be construed as requiring or compelling proprietors or manufac-
turers of proprietary foods which contain no unwholesome added
ingredient to disclose their trade formulas, except in so  far as the
provisions of this act may require to secure freedom from  adulter-
ation or misbranding."
   This section  includes the  provision requiring the labeling of
habit-forming drugs by declaring any drug to be misbranded "if
the package fail to bear a statement on the label of the quantity or
proportion of any alcohol, morphine, opium, cocaine, heroin, alpha
or beta eucaine, chloroform, cannabis indica,  chloral hydrate, or
acetanilide, or any derivative or preparation of any such substances
contained therein."
   And the same requirement is made as to foods containing any of
such narcotics.
   Section 9 is the same as section 10 of the Senate bill and section
8 of the House amendment, and relates to the giving of a guaranty
by the seller to the purchaser.
   Section 10 is the same as section 13 of the Senate bill and section
13 of the House amendment.
   Section 11 is the same as section 14 of the House amendment, for
which there is no corresponding section  in the Senate bill.

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 STATUTES  AND LEGISLATIVE HISTORY
                                                               359
    Section 12 is section 15 of the House amendment.
    Section 13 declares that the act shall be in force and effect from
 and after the 1st day of January, 1907.
    Omitted from the bill, as reported by the conferees, is section 9
 of the House amendment relating to the fixing of standards of food.
 Also omitted is section 10 of the House amendment. Section 10 of
                                                             [p. 8]
 the House amendment required any person to sell to a Government
 agent an article of food or drug which might be used against him
 in prosecution. Omitted is also section 11 of the House amendment
 providing for penalty for violation of the preceding section omitted,
 and providing for additional costs and expenses to be put against
 a defendant as part of the penalty. Omitted is also section 12 of the
 House amendment,  providing that the articles complying with the
 provisions of the act shall not  be interfered with by the several
 States so long as they remain in original unbroken packages.

                                           W. P. HEPBURN,
                                           JAMES R. MANN,
                                           W. H. RYAN,
                                 Managers on part of the House.
                                                            [p. 9]
     1.2a (5)  CONGRESSIONAL RECORD, VOL. 40 (1906)
1.2a (5) (a)  Jan. 10, 16,  17, 18, 23, Feb. 2, 19, 20, 21:  Debated and
passed Senate, pp. 894-898,1129-1135, 1216-1221, 1414-1417, 2643-
2644,  2654-2658,  2662-2666,  2719-2722,  2728-2729, 2747-2748,
2755-2758, 2761-2763, 2766-2767, 2773
                                  plishes what this body desires to ac-
                                  complish. It is  merely a  question as
                                  to whether its provisions  are fair to
                                  all of the people, those who manufac-
                                  ture, those who sell, and  those who
                                  use the ordinary commodities of life.
                                  Committees of  this body  have been
                                  endeavoring for  many  years to reach
                                  a conclusion and to formulate a bill
                                  that  would accomplish  this purpose,
                                  and we  sincerely hope that we have
                                  reached that point.
                                    It has seemed to the committee in
                                  presenting  this  bill that the first
                                  consideration was to prevent the man-
                                  ufacture of articles that were dele-
                                  terious to  health and to prevent the
                                  combination of articles that would de-
                                  ceive  and  defraud  the public.  That
          PURE-FOOD BILL.
  Mr. HEYBURN. I now  renew my
motion that the Senate proceed to the
consideration of the bill (S.  88) for
preventing the  manufacture,  sale, or
transportation of adulterated or mis-
branded  or poisonous or deleterious
foods, drugs, medicines, and liquors,
and for regulating traffic therein, and
for other purposes.
  The motion was agreed to;  and the
Senate, as in Committee of the Whole,
proceeded to consider the bill.
  Mr. HEYBURN. Mr. President, I
submit that this  bill is one  of very
great interest to all the people of the
country in  their homes and home life.
I think it  is only a question in this
body as  to whether this bill accom-

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  360
LEGAL COMPILATION—PESTICIDES
was the primary object of the  com-
mittee in preparing this bill.
  Mr. President, I shall  occupy but a
few moments of the Senate's time in
stating the  general  features of  this
bill. It has not been read, and perhaps
it will not be necessary to  take the
time needed  to read it, inasmuch as it
will be considered practically by sec-
tions.
  The first section of the bill provides
that it shall be unlawful to manufac-
ture forbidden or prescribed articles.
It prescribes a fine and imprisonment
against the manufacturer of such arti-
cles; it provides that for the first of-
fense the party  shall be fined not to
exceed  $500, or shall be sentenced to
one year's imprisonment or both such
fine and imprisonment, in the  discre-
tion of the court, and for each subse-
quent offense on conviction he shall be
fined not less than $1,000 or sentenced
to one year's imprisonment or both, at
the  discretion  of  the court. That ap-
plies to the manufacturer who makes
and sells such articles.
  SECTION  2  of  the  bill  provides
against the  introduction of forbidden
articles from one State or Territory or
district or insular possession into an-
other   jurisdiction,   and  prescribes
practically the same  fine for the intro-
duction of the articles as it does for
the manufacture of them.
  Then there is a new feature to this
bill  that has not  been heretofore em-
bodied in any bill that has been intro-
duced, so far as I know, in regard to
the  manner  of the  execution  of the
law. Section  2, on page 3, provides:
  That in the case of any  violation of the provi-
sions  of the foregoing  two  sections by any
corporation, the fines and penalties  imposed
therefor may be enforced against  the officers
of such corporation personally responsible for
such violation,  and any violation of any of the
provisions of this act by  any corporation shall
be deemed to be the act  of the officer of such
corporation directly responsible therefor, and
such officer may be punished for such violation
as though such violation  was  the personal act
of such officer.
  That is a new feature in bills of this
 kind.  It was intended  to  obviate  the
 possibility of escape by the officers of
 a corporation under a plea, which  has
 been more than once made, that they
 did not know that this was being done
 on the credit of or on the  responsibil-
 ity of the corporation.
   There  is   another  innovation,   or
 rather a new feature, in the beginning
 of section  3,  which provides  a   dif-
 ferent method for  the collection  of
 specimens from which  to  make a  de-
 termination  as  to the character of  the
 article.  Heretofore  it  was  provided
 that this should  be done  under rules
 and regulations made by the Secretary
 of Agriculture;  but  we  find,  as  a
 practical matter,  that  the Secretary
 of Agriculture cannot  make  and  en-
 force rules in the other coordinate  bu-
 reaus of  the  Government.  So it is
 provided here—
   That the Secretary of the Treasury, the Secre-
 tary of Agriculture, and the  Secretary of Com-
 merce and Labor shall make  uniform  rules and
                              [p. 894]
 regulations for the collection and examination
 of specimens of foods, drugs,  medicines,  and
 liquors manufactured or offered  for sale in the
 District of Columbia, or in any other district,
 Territory, or insular possession of the United
 States, or which shall be offered for sale, etc.
   It provides that those three Depart-
 ments—the Treasury, Agriculture,  and
 Commerce   and  Labor—shall make
 rules  jointly covering the manner of
 collecting specimens for determination.
 That  became  necessary from  a  con-
 sideration of the application  of those
 several  Departments to  the  subject-
 matter of this bill. We find that  the
 Treasury  Department  must make its
 investigations  at  the  custom-houses
 and other branches particularly under
 its  control;  and it would be  neither
 right nor proper that any  Department
 of the Government should undertake
 to make rules  to be executed  by  an-
 other Department of the  Government.
 So that the Secretary of the  Treas-
 ury, cooperating  with  the Secretary
 of Agriculture and the Secretary of
 Commerce and Labor, will make rules

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STATUTES AND LEGISLATIVE HISTORY
                                361
sufficient for the execution of the pur-
poses of this act so far as the collec-
tion of specimens is concerned. That
was the object of requiring  the joint
action of these three Departments of
the Government. It did not appear that
any other Departments  of  the  Gov-
ernment than  those three would  be
necessarily  involved in the  collection
of these specimens.
  Then it is provided that, after such
specimens are collected,  the determina-
tion shall be made by  the Bureau of
Chemistry of the Department of Agri-
culture. While we have  minor bureaus
of chemistry under the  Government,
yet  the  combination of  accommoda-
tions for that  purpose  is in the  De-
partment of Agriculture.  The peculiar
functions of that Department require
a more thorough equipment than that
of any other Department of the Gov-
ernment.  So that  after  these speci-
mens  are  collected,   they  are  all
submitted to the determination of the
Bureau of Chemistry in  the Depart-
ment of Agriculture.
  Another new feature in this bill is
that we  have separated liquors from
foods. Heretofore  the proposed mea-
sures  have  denominated all liquors,
wines, and so forth as food. It did not
appear to  the  committee reporting
this bill that they should be  so classi-
fied. Liquor  is not  a food necessary
for the maintenance or sustenance of
the human frame. If anything, it is a
luxury. But, however much difference
of opinion there  may  be upon  that
subject,  it was eminently unfair  to
that great portion  of the people who
do not believe that liquor is a neces-
sity, to classify liquors with foods in
determining a great question of this
kind. So we have separated them, and,
as an independent part  of  this bill,
provided for a  method appropriate to
the determination  of the  standard  of
purity and helpfulness of liquors.
  Those are the new features of this
proposed legislation. The  spirit of the
bill is crystalized—if that is an  ap-
propriate term—in the responsibility
that is primarily placed upon the man-
ufacturer of these forbidden articles.
The first intendment of the bill is to
prevent the making of them. Of course,
we cannot presume that  the bill if
enacted  would be entirely  successful
in accomplishing that  purpose.  So we
have  provided that, if they are made
and put upon the market,  they may
be  detected and be driven from  the
market or excluded from sale.
  As to  the necessity for this legisla-
tion,  I think it  would be a waste of
time to do more than suggest it. Nearly
every State in the Union, Mr.  Presi-
dent, has a pure-food law. The States
have  undertaken to legislate upon this
subject,  with, I believe,  but  one  or
two exceptions. Some of the laws upon
the subject are very meager; some of
them are very  local;  some of them
are adapted to  the peculiar local in-
terests of the people of the  particular
State, but, as  a  rule, the States have
enacted  intelligent  and  appropriate
legislation upon this question.  Their
difficulty, which  has been made plain
to the committee, is that they can en-
force the law only to the extent of the
impure and adulterated products that
are sent in unbroken packages within
their  borders from other States. There
are a number of  fraudulent articles
that are under  the ban of  this legis-
lation, not a pound or ouncs of which
is offered for sale in the State in which
they are manufactured, because they
are provided against by the legislation
of that  State; but they are manufac-
tured in  one State and sent to another
in unbroken packages  under the rule
of law that is  now established, per-
haps  forever.  So that the State into
which they are sent is helpless against
the flood of these impure articles sent
in unbroken packages  under the pro-
tection of that rule of law and then
offered for sale  upon the retail mar-
ket.
  It is  impossible for a  State effec-
tively to  enforce  a  pure-food law with-

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362
LEGAL COMPILATION—PESTICIDES
out the  cooperation  of the General
Government.  It  is obvious  that it is
only the General Government that can
protect us from  the influx of deleteri-
ous and poisonous articles from foreign
countries. That  must be done  at  the
port of entry. There we stop such  im-
portations. There has been  a law  for
this purpose on the statute book since
1848.  That law is enforced, I believe,
fairly  and, perhaps,  as efficiently  as
it  can  be under  existing statutes and
rules, but the proposed legislation for-
tifies the law of 1848 in providing a
better  method and more efficient  co-
operation between the branches of the
Government in carrying out the spirit
and intent of that law.
  Then,  again,   the  distribution   of
ports  of entry in the United States is
now such that a port of entry may be
far inland, and to these ports come
goods  from  foreign  ports  manufac-
tured  in foreign countries that are in
violation not only of every  principle
of common honesty and fairness and
against the safety and protection  of
the people, but in violation of the law
of  our land.  These importations  go
far inland to ports of entry  in  un-
broken packages; there the lid is ta-
ken off and these deleterious articles
are abroad in the land.
  To what extent does this affect  the
efficiency and the ability  to execute
the law of a State having  good laws
on  this subject? There  are ports  of
entry in the West in States that pro-
hibit the manufacture or sale  01 dis-
tribution of these impure articles and
do so  efficiently,  except as against out-
side interference. There is the point
of necessity for  the cooperation of the
General  Government with  the States
in  the enforcement of this class  of
legislation. It  is merely  a question
whether or not Congress will extend a
helping hand  for the enforcement of
the laws of the  States in the interest
of  the people so far as this class of
imposition is concerned.
   I will not at this time undertake to
 enumerate  the  frauds  perpetrated
 upon the people further than to state
 that, according to  a statement which
 I have before me, received this morn-
 ing, which is from an official source,
 in  some of  the  great  neighboring
 States more than  60 per cent of all
 the drugs that are  offered on the mar-
 ket  are  fraudulent,  and  not only do
 they not possess the qualities for which
 the  drug is distinguished, or should
 be, but they are actually adulterated
 to such  an  extent  that they are dan-
 gerous to be used.
   Perhaps during the consideration of
 this bill the details in regard to this
 matter may become necessary to be
 discussed; but at this time, assuming
 that it is obvious, that it is conceded,
 if the  States of the Union have under-
 taken  to protect their people against
 this kind of imposition, that Congress
 cannot do  less  than to  meet  them
 halfway  and  to  protect the  States
 against  the importation  within  their
 borders  of foreign  articles  against
 which they deem  it  wise  to  protect
 their people, I do not consider it nec-
 essary to enter into that discussion
 now.
   The bill has been on the Calendar
 for some time, and there  have been no
 amendments proposed to  it other than
 one or two immaterial or small com-
 mittee amendments.  It  is  doubtless
 true that some Senators  will  have
 amendments to propose,  but I  think
 that with this opening  statement I
 will submit for this  time the bill to
 the consideration of the Senate.
   Mr. GALLINGER. Mr. President,
 before the  Senator takes his  seat—I
 am on the committee that reported the
 bill, but, unfortunately, was  not able
 to  attend the meetings  of  the com-
 mittee—I will ask  the Senator if in
 any amendments that have been made
 to  the bill  the provision that was so
 strongly opposed,  as I remember, by
 the late Senator  from  Connecticut,
 Mr. Platt, which, it was said, imposed
 hardships upon retailers of food and

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  STATUTES AND LEGISLATIVE HISTORY
                                363
drugs, making them  amenable to the
law for selling what, in the very na-
ture of things,  they could not know
were adulterated products—I will ask
the Senator  if any change  has  been
made in the  Bill that places upon the
manufacturer the onus and penalizes
him rather than the innocent retailer,
who may not really have been at fault?
I have  not  had time to examine the
bill, Mr. President, I will say, and that
is the reason I make the inquiry.
  Mr. HEYBURN. I will say to the
Senator that  I think we have amply
provided against  that.  The bill pro-
vides  that where a  retailer or any
person  other  than the  manufacturer
can produce  a  certificate  from  the
manufacturer that the  article is not
adulterated  it would be evidence  of
his  having  purchased in good faith,
and that he  shall not be prosecuted,
provided that he discloses the source
from  which  he  received  the  goods.
Then the bill provides that  the prose-
cution shall be against  the party pri-
marily responsible,
  Mr.  GALLINGER. Which  is  the
manufacturer?
  Mr. HEYBURN. Which is the man-
ufacturer.  The  provision was intro-
duced to cover that point, and, I think,
does adequately cover it.
  Mr. SPOONER. Mr. President-
  Mr. HEYBURN. If the Senator will
pardon me a moment—it also provides
that the contents  shall be  disclosed
upon the package.
  Mr. SPOONER. Mr. President—
  The  PRESIDING OFFICER  (Mr.
CLAY in the chair). Does the Senator
from Idaho yield to the Senator from
Wisconsin?
  Mr. HEYBURN. With pleasure.
                            [p. 895]
  Mr. SPOONER. I desire  simply to
ask a question. What different provi-
sion is made in this bill from the pro-
vision contained in the bill of last year
as to imported articles?
  Mr. HEYBURN.  The provision is
redrawn. The Senator refers to medi-
cines and drugs?
   Mr. SPOONER. Yes.
   Mr. HEYBURN.  The bill contains
all that was contained in the bill of
last session with some additional pro-
visions or  restrictions. But I  would
say to the Senator—
   Mr. SPOONER. If the bill contains
all-
   Mr. HEYBURN.  It  contains  the
spirit of that bill.
   Mr. SPOONER. If the bill contains
all that was in the bill of last session,
I think there is objection to it.
   Mr. HEYBURN.  Well, it may be ob-
jectionable to the Senator—
   Mr. SPOONER. I  want to  be fair.
I  wish the  Senator  would  indicate
briefly, if he  can,  first, whether  the
structure of this bill and the theory
upon which it is drawn are the same
as the bill of last year, and how far it
differs from  that bill in four  or five
particulars in which  it was criticized
by the then  Senator from Connecti-
cut, Mr. Platt,  and  found  objection-
able by some of the rest of  us. The
Senator  will  remember  the  things
which troubled us.
   Mr. HEYBURN.  I should be glad if
the Senator would direct my attention
to the particular part  of  the bill  to
which he refers.
   Mr. SPOONER. It would oblige me
to  direct the Senator's attention  to
pretty much the whole bill. I  thought
he  might state  briefly  the  difference
between this bill and the bill  of last
year.
   Mr. HEYBURN. I should be very
glad to enter into a comparative anal-
ysis of the bills, but  I would  suggest
to the Senator  that unless there  is
some particular  point in  his mind
with  reference to the present bill it
would be rather a fruitless thing.
  Mr. SPOONER. My recollection, for
instance, is that the old bill, so far as
it related to imported articles, made
it dangerous for a merchant residing
in the interior who had imported or

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364
LEGAL COMPILATION—PESTICIDES
who had purchased goods from an im-
porter to  rely  upon the fidelity  and
utility of  the investigation made un-
der the Agricultural Department and
by its agencies into this very matter
of purity  before the admission of the
articles into the  commerce  of  this
country. That was one point.
  Mr. HEYBURN. That would go to
the penal  clause of the bill.
  Mr. SPOONER. The whole bill went
to penal clauses.  The bill was one of
penalties,  as I presume this bill is,
and as every  bill  upon the  subject
must  be. The objection there was that
it imposed a penalty which under cer-
tain circumstances was an unjust pen-
alty.  Suppose,  under  this  bill, I im-
port  a box  of  drugs  from a foreign
country, which I understand  is exam-
ined  under existing law at the point
of entry by the agents of the  Agricul-
tural  Department—
  Mr. HEYBURN. Of  the Treasury
Department.
  Mr. SPOONER.  Of  the Treasury
Department, with reference to its pu-
rity.  Would  I, under this bill, have
any  protection  against the  penalty
there, having based my subsequent ac-
tion upon a belief that the agents of
the   Government  had  honestly  dis-
charged their duties, and that the fact
that  the  article  had been permitted
to leave the port of entry  or the cus-
tody  of the Government officials, so as
to come to me to be put into  the com-
merce of  the  country,  gave  me good
warrant,  without liability  of punish-
ment, to put it on the market?
   Mr. HEYBURN. I will  answer the
Senator that  in  order  to  cover  just
such  cases this bill differs from the bill
of last session in that in line 22, page
2, it uses  the word "knowingly" as ap-
plied to just such cases.
   Mr. SPOONER. That is one of the
questions I wanted the  Senator to an-
swer  and which he had not answered,
but now has. That is a great  improve-
ment.
   Mr. HEYBURN. Yes. The commit-
 tee has been  somewhat  criticized for
 inserting the word  "knowingly," but
 it was done  to  meet the  objections
 made  by the Senator on the former
 consideration of this bill.
   Mr. SPOONER. But there is a dis-
 tinction  as to the  use  of  the  word
 "knowingly"  in  that  connection  and
 the use of the word "knowingly"  in so
 far as it relates  to the use  of a prod-
 uct manufactured in this country.
   Mr. HEYBURN.  We  only use the
 word  "knowingly"  as applied to re-
 ceiving within the Territories, States,
 etc.
   Mr. SPOONER. But there is a dis-
 tinction  between goods received  from
 abroad, which have already been ex-
 amined,   or  at  least  for  which the
 Government has paid to have an ex-
 amination made, and goods going from
 one  State into another  State, which
 have  not  been  subjected  to govern-
 mental examination. There  a different
 rule might very well apply.
   Mr. HEYBURN.  With the permis-
 sion  of  the Senator I  will read the
 provision.
   Mr. LODGE. I suggest—
   The PRESIDING OFFICER.  Does
 the  Senator from Idaho yield to the
 Senator from Massachusetts?
   Mr. HEYBURN.  Certainly.
   Mr. LODGE. If it would not inter-
 rupt the Senator, I suggest that the
 whole bill had better be  read after the
 Senator  has called attention to the
 clause he has in mind.
   Mr. HEYBURN. It  has not been
 read. I did not ask that  it be read.
   Mr. LODGE. It will have to be read
 some time.
   Mr.  SPOONER.  The  Senator
 understand me ; I am not asking these
 questions out of  any hostility  to the
 bill.
   Mr.  HEYBURN.  I thoroughly un-
 derstand that, and I am glad to have
 the attention of  the Senate directed
 to these provisions in order that they
 may be made perfectly plain.

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  STATUTES AND LEGISLATIVE HISTORY
                                 365
   I read from the provision beginning
in line 18 on page 2 :
  And any person, association of persons, or
corporation who shall ship or deliver for ship-
ment from any  State,  Territory, district, or
insular possession to any other State, Territory,
district, or insular possession, or shall export—
   There is no "knowingly" there. A
man is bound to know what he himself
does. The  word  "knowingly" is  not
used. The responsibility is upon every
man to know  that he  is not going to
injure his neighbor. But take the next
sentence:
or offer to export the same to a foreign country,
or who shall  knowingly receive in any State,
Territory, district, or insular possession of the
United States from any other State, Territory,
district, or insular possession of  the United
States, or from any  foreign country, or who,
having received—
   "Knowingly." "Knowingly" is not in
there,  but  the  "knowingly"  I  have
used relates to the whole sentence—
shall deliver in original, unbroken packages, or
shall offer to deliver to any other person, per-
sons, or corporation any such article, shall he
guilty of a misdemeanor and upon conviction
for such offense shall be fined, etc.
   That was intended to meet  the  ob-
jection which was urged against inno-
cent parties being  made the  victims
of this legislation, and  the distinction
was drawn  clearly between the person
whom the law presumes to know and
the person who might be imposed upon.
  Mr.  GALLINGER.   I  suggest  in
line  1,  page  3, the insertion  of the
word "knowingly;"  so as to read, "or
who having  knowingly received." I
think that is very important.
  Mr. HEYBURN.  If the word is not
carried  clear through the  sentence it
might be well to repeat it, but  I think
on  technical  examination it will be
found   that  the  word  is   carried
throughout  the sentence.
  Mr. LODGE. It would  do no harm
to put it in.
  Mr.  HEYBURN. No;  and  I  shall
not object  to its insertion, because it
is intended to be there.
  Mr. SPOONER. Of course in a stat-
ute  which  carries  penalties against
the  citizen,  and plenty  of them,  we
ought not to be so economical in the
use of words as to engender the slight-
est possible doubt.
   Mr. HEYBURN. Yes;  I will move
to amend it by inserting in line 1, on
page 3, after the word "having," the
word "knowingly."
   The PRESIDING  OFFICER.  The
question is  on agreeing to  the amend-
ment proposed by  the  Senator from
Idaho.
   The amendment was agreed to.
   Mr. HEYBURN.  In reference to the
importation  of  goods, I will say that
our  present  law, so far as drugs  and
medicines  and  that class  of articles
are concerned, is a very good law, and
it is enforced through the  Treasury
Department.  The  Treasury  Depart-
ment cooperates with the  Bureau of
Chemistry in the performance of  its
work,  although  it  is  equipped  to  a
certain extent for the performance of
independent work.  I have  not deemed
it necessary, in drawing  this bill, to
go  beyond  the  necessities  outside of
the provisions of existing law.
   Mr. LODGE. I desire to offer three
amendments  to the  bill,  all to  be
printed on  one  sheet, and  I ask to
have them printed in  the RECORD also.
Then let  them  go  over,  so that  they
may be considered when the bill shall
be voted on.
  The PRESIDING  OFFICER. The
amendments will be printed and lie on
the table.
  The amendments  submitted by  Mr.
LODGE are as follows:
  Insert on page 8, end of line  9: "Provided
further. That when in the preparation of food
products for shipment they are preserved by an
external application applied in  such manner
that  the preservative is necessarily removed
mechanically or by maceration  in  water or
otherwise, the provisions of this act shall be
construed as applying only when  said products
are ready for consumption."
  On page 9, line 2, and after the word "charac-
ter," insert "and the amount of alcohol, if any,
contained in them."
                             [p. 896]

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366
LEGAL COMPILATION—PESTICIDES
  On  page 10, end of line 6,  after the word
"imitation," insert "and to show the amount,
if any, of alcohol, contained in them."

  Mr.  SPOONER. I  suggest that the
bill be incorporated in the RECORD.
  Mr. HEYBURN. Yes.
  Mr. LODGE. It ought to be read.
  Mr.  SPOONER. It is not  up for
action.  Let  the bill be printed  in the
RECORD as amended.
  The  PRESIDING   OFFICER. The
Senator from  Wisconsin  asks that the
bill  be printed in tomorrow's RECORD.
Is there  objection?  The  Chair  hears
none, and the bill will be  printed  in
the RECORD.
  The bill is  as follows:
  Be it enacted, etc.. That it shall be unlawful
for any person,  association of persons,  or cor-
poration within  any  Territory,  District,  or
insular  possession  of the  United  States,  to
manufacture, sell, offer for sale, or deliver for
shipment, or to  cause to be delivered, shipped,
or transported from within any State, Territory,
District,  or insular possession to  any  State,
Territory, District, insular possession, or foreign
country any article of food, drugs, medicines,
or liquors which is adulterated or misbranded,
or which contains any poisonous or deleterious
substance within the meaning of this act; and
any person, association of persons,  or corpora-
tions who shall violate any of the provisions of
this  section shall be guilty of  a misdemeanor,
and  for each  offense shall,  upon  conviction
thereof, be fined  not to exceed $500, or shall be
sentenced to one year's imprisonment, or both
such fine and imprisonment, in the discretion
of the court,  and for each subsequent offense
and  conviction thereof shall be fined  not less
than $1,000, or sentenced  to one year's  impris-
onment,  or both such fine and imprisonment,
in the discretion of the court.
  SEC. 2. That the introduction into any State,
Territory, District,  or insular possession, from
any other State,  Territory, District, or insular
possession, or  from any foreign country, or the
shipment to any  foreign country or any article
of food or drugs which is adulterated or mis-
branded, deleterious or poisonous, within the
meaning of this  act,  is hereby prohibited;  and
any person, association of persons, or corpora-
tion who shall ship or deliver for shipment from
any  State, Territory, District, or insular pos-
session to any other State, Territory,  District,
or insular possession  or  shall  export  or offer
to export the same to a  foreign  country, or
who shall knowingly receive In any State, Ter-
ritory, District,   or insular possession  of the
United States  from any other State, Territory,
or District, or insular possession of the United
 States, or from any foreign country, or  who,
 having  knowingly  received, shall  deliver  in
 original unbroken packages, or shall offer  to
 deliver to any other person, persons, or corpor-
 ation any  such article,  shall be guilty  of  a
 misdemeanor and upon conviction  for  such
 offense shall be fined  not  exceeding  $500 for
 the first offense,  and upon conviction of  each
 subsequent offense shall be  fined not exceeding
 $500 or be imprisoned not exceeding one  year,
 or both, in the discretion of the court.
   That in the case of any violation of the pro-
 visions of the  foregoing two sections by any
 corporation,  the  fines and  penalties imposed
 therefor may be enforced  against the  officers
 of such corporation  personally responsible for
 such violation, and any violation of any of the
 provisions of this act by any corporation  shall
 be deemed to be the act of the  officer of  such
 corporation  directly responsible therefor, and
 such officer may be punished for such violation
 as though such violation was the personal act
 of such officer.
   SEC. 3. That  the  Secretary of the Treasury,
 the Secretary of Agriculture, and the Secretary
 of Commerce and Labor shall  make uniform
 rules and  regulations for the  collection and
 examination of  specimens of foods, drugs, medi-
 cines, and liquors manufactured or offered for
 sale in the District of Columbia, or in any other
 district, Territory, or insular possession of the
 United States, or which shall be offered for sale
 in unbroken  packages  in any State other  than
 that in which they shall  have been respectively
 manufactured or produced,  or which shall  be
 received from any foreign country, or intended
 for shipment to any foreign  country, or which
 may be submitted for examination by the  chief
 health officer of any State, Territory, District,
 or insular possession,  and  at any domestic or
 foreign port through which  such  product  is
 offered for interstate commerce or for export
 or import between  the United  States and any
 foreign port or country.
   SEC. 4.  That  the examinations of specimens
 of foods, drugs, medicines,  and liquors shall be
 made in the Bureau of Chemistry of the Depart-
 ment of Agriculture, or under the direction and
 supervision  of such Bureau, for the purpose of
 determining  from such  examinations whether
 such article  is adulterated  or  misbranded,  or
 contains any poisonous or other substance de-
 leterious  to  the health of human  beings  or
 domestic animals; and if it shall appear  from
 any such  examination that such specimens are
 adulterated or misbranded or contain any added
 poisonous or deleterious substance or Ingredient
 Injurious  to human health  when  used in the
 prescribed or  usual  manner of use of  such
 article, the Secretary of Agriculture shall  cause
 notice thereof to be given  to the parties  from
 whom such samples were obtained, and public
 notice of the facts shall be given by publication
 in such manner as the rules and regulations may
 prescribe  to all  other persons, association of

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STATUTES  AND LEGISLATIVE HISTORY
                                        367
persons, or  corporations  in  whose  possession
like articles may be found or known to be that
such article is within the provision of this act;
and shall give such party as may be charged
with violation of this act an  opportunity to be
heard, under such rules and regulations as may
be  prescribed  as aforesaid, and  if after such
hearing it is  found that any of the  provisions
of this act have been violated by such parties,
then the Secretary of Agriculture shall at once
certify the facts to the proper United  States
district attorney, with a copy of  the  results of
the analysis or the examination of such article,
duly authenticated  by the analyst   or  officer
making1 such examination, under the oath of
such officer.
  SEC. 6. That it shall be the duty of each dis-
trict attorney to whom the Secretary of Agri-
culture shall  report any  violation of this act,
or to whom any health officer or agent of any
State,  Territory, District, or insular  possession
shall present satisfactory evidence of any such
violation,  to  cause appropriate proceedings to
be  commenced  and prosecuted in the proper
courts of  the United States, without  delay, for
the  recovery of the fines and the enforcement
of the penalties as in such  case herein provided.

                 DEFINITIONS
  SEC. 6. That the term  "drug" as used in this
act shall include all medicines and preparations
recognized In the United States Pharmacopoeia
or National Formulary for internal and external
use; also any substance intended to be used for
the cure,  mitigation, or prevention of disease.
  SEC. 7. That the term "food" as used herein
shall include  all articles  used for food, drink
(other than malt, spirituous, or vinous liquors),
confectionery, or condiment by man or domestic
animals, whether simple, mixed or compound.
  SEC. 8. That the term "liquor" as used herein
shall include  all malt, vinous,  alcoholic,  and
spirituous  liquors  and  combinations  of  them
used or intended to be used as beverages.

       ADULTERATIONS AND MlSBRANDlNG
  SBC. 9. That for  the purpose of this act any
article shall be deemed  to  be  adulterated:
  In case of drugs:
  First. If, when a drug is sold under or by a
name recognized in the United States Pharma-
copoeia or National Formulary, it differs from
the standard of strength, quality, or  purity, as
determined by the test laid down in the United
States Pharmacopoeia or  National Formulary
official at the time of investigation:   Provided,
That no drug not defined in the United States
Pharmacopoeia or National Formulary shall be
deemed to be adulterated under this provision if
the standard of strength, quality, or  purity be
plainly stated upon the bottle, box, or other con-
tainer  thereof as originally packed.
  Second. If its strength or purity fall  below the
professed  standard or quality under  which it
is sold.
   That such drug shall be deemed to be mis-
branded :
   First. If it be an imitation of or offered for
sale under the  name of another article.
   Second. If the package containing it, or ita
label, shall  bear any  statement regarding the
ingredients or the substances contained therein,
which statement shall  be false or misleading in
any particular, or if the same is falsely branded
as to the  country, State, or Territory, or place
therein, in  which it is manufactured or pro-
duced, or  if the contents of the original package
shall have been removed, in whole or in part,
and other contents  shall have  been  placed in
such package.
   In the case of confectionery  an article shall
be deemed to be adulterated:
  If it contain  terra alba, barytes,  talc, chrome
yellow,  or other mineral substances  or poison-
ous  colors or flavors, or other ingredients dele-
terious  or detrimental to health.
  In the case of food an article  shall be deemed
to be adulterated:
  First. If any substance or substances has or
have been mixed  and  packed with it so as to
reduce  or lower or injuriously affect its quality
or strength.
  Second. If any substance or substances has or
have been substituted wholly or in  part for the
article.
  Third.  If  any  valuable  constituent  of  the
article has been wholly or in part abstracted.
  Fourth. If it contain any added poisonous or
other ingredient which may render such article
injurious to human health: Provided, That goods
intended for export shall not be deemed mis*
branded or  adulterated  when  prepared  and
packed  in  accordance  with  specifications  of
the  foreign  purchaser,  provided no  substance
is used  that  is  in conflict with the laws of the
country to which  the goods are to be shipped,
when such country having laws upon the sub-
ject does  not prohibit such process  of prep-
aration.
  Fifth. If it consists  in whole or in  part of a
filthy, decomposed, or  putrid animal or vege-
table substance,  or any portion of an  animal
unfit for food, whether manufactured or not, or
if it is the product of  a diseased animal or one
that has died otherwise than by slaughter.
  An article  of food shall be deemed to be mis-
branded :
  First. It it is to be offered for sale under the
name of  another article: Provided,  That  the
term "distinctive name" shall not be construed
as applying  to any  article sold or  offered for
sale under a name that has come into general
use to indicate the class or kind of the article if
the name  be accompanied on the same label or
brand with a statement of the place where said
article has been manufactured or produced.
  Second.  If  it  be mixed, colored, powdered, or
stained  in a manner whereby  damage or infer-
iority is concealed, so  that such product when
sold or  offered  for sale shall deceive or tend to

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368
LEGAL COMPILATION—PESTICIDES
deceive the purchaser or uaer thereof.
  Third.  If it be  labeled or branded so as to
deceive or mislead the purchaser or user, or
purport to be a foreign product  when  not BO,
or is an  imitation, either in package or label,
of another substance of a previously established
name, or  which  has  been  trade-marked  or
patented.
  Fourth. If the package containing it or its
label shall bear any statement, design, or device
regarding the ingredients or the substances con-
tained therein,  which statement,  design,  or
device shall be false or misleading in any par-
ticular, or if the same is falsely branded as to
the State, Territory,  or  place  in which  it is
manufactured or produced.
  Fifth. An article of  food which does not con-
tain any added poisonous or deleterious ingredi-
ents shall  not be  deemed to be adulterated or
misbranded in the case of  mixtures or  com-
pounds which may be now, or from time to time
hereafter, known as articles of  food sold under
their own distinctive names and not included in
definition  first of misbranded articles of food in
this section, or in  the case of  articles labeled,
branded, or tagged so as to plainly indicate that
they  are  mixtures, compounds,  combinations,
imitations, or blends:  Provided, That the same
shall be labeled, branded, or tagged so as to show
that they  are of such  character:  And provided
further. That nothing  in this act shall be con-
strued as  requiring or compelling  proprietors
or  manufacturers of proprietary goods  which
contain no unwholesome added ingredients to
disclose their formulas of production except in
so far as the provisions of this act may require
to  secure   freedom  from  adulteration  or
imitation.
  In  the  case of liquors, an  article shall be
deemed adulterated if it contain  any  added
ingredient of a poisonous or deleterious char-
acter.
  Such liquors shall be deemed misbranded:
  First. If it is blended or rectified, or consists
of an admixture of different grades of the same
liquor, or  contains, or  is mixed with, other sub-
stances, and such fact is not plainly stated on
the package in which  such liquor is offered for
sale, or if the  label or any written or printed
statement accompanying the package in which
such  liquor is kept or sold contains any false
statement as to the character of the contents of
such  package,  or  represents such liquor to be
the product of any other country than  that in
which it was actually produced.
  SBC. 10. That  no dealer shall be  convicted
under the provisions of this act when  he can
establish a guaranty signed by the wholesaler,
jobber, manufacturer, or other party residing
in the United States, from whom he purchases
such articles, to the effect that  the same is not
adulterated or misbranded within the meaning
of this act, designating such article. Said guar-

                                    [p.897]
anty, to  afford protection,  shall contain the
 name and address of the party or parties mak-
 ing the sale of such articles to such dealer, and
 in such cases said party or parties shall be amen-
 able to the prosecutions, fines, and other penal-
 ties which would attach,  in due course, to the
 dealer under the provisions of this act.
   SEC. 11. That  every  person,  association  of
 persons,  or corporation  who manufactures  or
 produces and delivers for interstate or  foreign
 shipment or transportation, or who  receives
 from  any State,  Territory,  district, or insular
 possession  or foreign  country  other than  the
 State, Territory,  district,  or insular possession
 in which it is produced, and any person, associ-
 ation  of persons,  or  corporation who  sells  or
 exposes for sale  in any Territory, district,  or
 insular possession any article of food, drug, or
 liquor, shall furnish, within business hours and
 upon  tender and  full  payment of the selling
 price, a  sample of such drug,  article of food,
 or liquor, to any person duly authorized by the
 Secretary of Commerce and Labor to receive the
 same, and in any Territory, district, or insular
 possession, to any officer or agent of such Terri-
 tory, district, or insular possession, respectively,
 charged with the inspection of food or drugs in
 such jurisdiction who shall apply to such manu-
 facturer, producer, or person or association of
 persons,  or corporation selling  or exposing for
 sale as aforesaid such drug, article of food, or
 liquor for such sample in sufficient quantity for
 an analysis of any such article or articles in his
 or their or its possession.
   SBC. 12. That any manufacturer, producer, or
 dealer who refuses to comply upon demand with
 the requirements of section 11 of this act shall
 be guilty of a misdemeanor, and upon conviction
 shall be  fined not exceeding $100 or imprison-
 ment not exceeding one hundred days,  or both.
 And any person, association  of persons,  or
 corporation, found guilty of manufacturing or
 offering  for sale, or  selling,  any  adulterated,
 impure, or misbranded article of food, drug, or
 liquor in violation of the  provisions of  this act
 shall be  adjudged to pay,  in  addition to  the
 penalties  hereinbefore  provided  for,  all  the
 necessary costs  and expenses  incurred in In-
 specting and analyzing such adulterated articles
 which said person may have been found guilty
 of manufacturing, selling, or offering for sale.
   SBC. 13. That any  article of food, drug, or
 liquor that is adulterated  or misbranded within
 the meaning of this act, and is being transported
 from  one State, Territory, District, or insular
 possession, to another for sale, or, having been
 transported,  remains unloaded,  unsold, or in
 original unbroken packages, or  if it be Bold or
 offered for sale in the District of Columbia or
 the Territories, or insular possessions of  the
 United States, or if it be imported from a for-
 eign country for sale, or if it is intended for
 export to a foreign country, shall be liable to be
 proceeded against in  any district court of the
 United  States  within the  district  where  the
 same  is found, and seized for confiscation by a

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 STATUTES AND LEGISLATIVE HISTORY
                                  369
 process of libel for condemnation. And if such
 article is condemned as being adulterated or
 misbranded, or of a poisonous or deleterious
 character, within  the meaning of this act, the
 same shall be disposed of by destruction or sale,
 as the said court may direct, and the proceeds
 thereof, if sold, less the legal costs and charges,
 shall be paid into the Treasury of the United
 States, but such goods shall not be sold in  any
 jurisdiction contrary to the laws of that juris-
 diction: Provided,  however. That upon the pay-
 ment of the costs of such libel proceedings  and
 the execution and  delivery  of a good and suffi-
 cient bond to the effect that such  articles shall
 not be sold or otherwise disposed of contrary to
 the provisions of this act,  or the laws of  any
 State, Territory, District, or Insular possession,
 the court may by order direct  that such articles
 be delivered to the owner thereof. The proceed-
 ings of such libel cases shall  conform, as near
 as may be, to the proceedings in admiralty,
 except that either party may demand trial by
 jury of any issue of fact  joined  in any such
 case, and all such proceedings shall be at  the
 suit of and in the name of the United States.
  SEC. 14. That this act shall not be construed
 to interfere with commerce wholly internal in
 any State nor  with the exercise of their police
 powers by the  several States.
  SEC. 16. That the provisions of this act shall
 not apply  to common carriers  as such, or to
 their servants,  agents, or employees, acting for
 said common carriers.
  SEC. 16. That this act shall take effect and be
 in force from  and after the  1st day of July,
 1906.

  Mr. GALLINGER.  Mr.  President,
 I feel that as. a member of the Com-
mittee on Manufactures,  from which
this bill  was reported,  I  owe myself
the duty of  very critically examining
it before it is finally passed  upon.
  I  only  rise now for the purpose of
saying that I am exceedingly gratified
to know  that  the committee has  in-
serted the word  "knowingly" in sec-
tion 2. That was one of the  points
which led me during  the  last session
of Congress to feel that  I  could not
vote for the bill in the form in which
it then appeared. I think the chairman
of the committee and the committee
have done a great  public service  in
removing from  the minds of some  of
us,  at least,  an objection that seemed
insurmountable. I presume the bill has
in other respects been   so  carefully
guarded that those of  us who want to
support  a bill of this  character, who
 believe  in  pure food  and pure drugs
 and have no sympathy whatever with
 those who  are adulterating them, will
 find  that they can  give  it  their sup-
 port.
   At  any  rate, Mr. President, I feel
 more  sanguine than I have ever felt
 before that we will be able to pass a
 bill covering this very important sub-
 ject, which will be of great and lasting
 benefit to the people  of  this country.
 That is all  I care to say at the present
 time.
   The  PRESIDING  OFFICER.  The
 Chair desires to  know from the Sen-
 ator  from  Idaho whether any  motion
 is  pending  before  the Senate in  re-
 gard to this bill?
   Mr.  HEYBURN.  There  are  only
 certain  amendments which  have been
 submitted by the Senator from Mass-
 achusetts,  and while  I am  not  thor-
 oughly familiar with all  of them, so
 far as I am advised they are amend-
 ments which the committee would be
 inclined to  accept,  and it may be  we
 can progress with the  bill  further
 than  we anticipated.
   Mr.  LODGE. I  think  my  amend-
 ments had  better be  printed and  go
 over  until tomorrow, so that the Sen-
 ator can have an opportunity to look
 at them. There are two others besides
 the one I spoke of  to the Senator. I
 do not want to delay the bill  in the
 least. I shall be ready to  vote upon it.
   Mr. SPOONER. I hope the Senator
 from Idaho will not attempt to press
 the consideration of the bill.
   Mr. HEYBURN. That is not my
 intention at all.
   Mr. SPOONER.  It is  a bill which
 requires, of course, careful examina-
 tion, and no one not connected with  its
 preparation has had any  opportunity
 to examine  it carefully.
   Mr. HEYBURN.  I  will say  to the
 Senator that  I rose to  state  that I
 have  no further remarks to make  to-
 day, and that I thought,  inasmuch as
 it was proposed that the bill  should
be  printed   in  the  RECORD and  the

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370
LEGAL COMPILATION—PESTICIDES
amendments  be printed,  that it go
over until tomorrow.
  Mr.  LODGE. Let it  go over until
tomorrow.
  The  PRESIDING OFFICER. With-
out objection, the bill will go over un-
til tomorrow.
                             [p. 898]
           PURE-FOOD BILL.
  The  Senate, as in Committee of the
Whole, resumed consideration  of the
bill (S. 88)  for preventing the manu-
facture,  sale,  or transportation of
adulterated  or  misbranded or poison-
ous or deleterious foods, drugs, medi-
cines, and liquors, and for regulating
traffic  therein, and for other purposes.
  Mr.  HEYBURN. Mr.  President, the
matter that has been taken up by the
Senate is one  of  more than  passing
importance, and I suggest the absence
of a quorum.
  The  PRESIDING OFFICER.  The
Senator from Idaho suggests the ab-
sence of a quorum. The  Secretary will
call the roll.
  The  VICE-PRESIDENT.   The
amendments  will  be  stated in their
order.
  The  SECRETARY. The  Committee on
Manufactures  report,  in  section  2,
page 3, line 13, after the word "per-
sonally,"  to  insert  "responsible for
such violation;" so as to  read:
  That in the case of any violation of the provi-
sions of the foregoing two  sections by any
corporation, the fines and penalties  imposed
therefore may be enforced against the officers
of such corporation personally responsible for
such violation, etc.
  The amendment was agreed to.
  The  next amendment was, in sec-
tion 2, page 3, line 15, before "officer,"
to strike out the word "each" and in-
sert "the;" so as to read:
and any violation of any of  the provisions of
this act by any corporation shall be deemed to
be the act of the officer of such corporation, etc.
   The amendment was agreed to.
  The next amendment was, in sec-
tion 2, page 3,  line 16, after the word
"corporation,"  to insert  the  words
 "directly responsible  therefor;" so as
 to read:
 the officer of such corporation directly respon-
 sible therefor, and such officer may be punished
 for such violation as though such violation was
 the personal act of such officer.
   The amendment was agreed to.
   The VICE-PRESIDENT. Those are
 all the committee amendments.
   Mr. HEYBURN. There are certain
 other  amendments which  have  been
 offered other than committee amend-
 ments.
   The VICE-PRESIDENT.  The first
 is the amendment offered by the Sen-
 ator from Massachusetts [Mr. LODGE].
   The SECRETARY. On page 8, at the
 end of line 9—
   The VICE-PRESIDENT. Are there
 further amendments?
   Mr. McCUMBER.  I  should like to
 know what was done with that amend-
 ment.
   Mr. HEYBURN.  I did  not under-
 stand it.
   The VICE-PRESIDENT. The Chair
 understands that it has not been for-
 mally offered from  the floor. It was
 submitted to be printed.
   Mr. HEYBURN.  I understand the
 amendments  offered  by the  Senator
 from  Massachusetts, three  of them,
 have been printed and that they are
 on the table for consideration.
   The VICE-PRESIDENT. They have
 been printed and are on the table, but
 the Senator  has not  offered  them.
 They are proposed amendments at the
 present stage.
   Mr. HEYBURN. The Senator from
 Massachusetts is not present. I desire
 to  proceed with this measure, and if
 no Senator wishes to  discuss it fur-
 ther  I desire that we shall proceed to
 dispose  of the  proposed amendments
 and dispose of the bill.
   The VICE-PRESIDENT. The Chair
 will entertain the amendments if they
 are offered by  any Senator  from the
 floor.
   Mr. HEYBURN. I do not want the
 Senator  from  Massachusetts  to  be

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STATUTES AND LEGISLATIVE HISTORY
                                 371
treated in a discourteous manner, but
I do not know that anyone can  speak
for him, he having offered the amend-
ments and not being present,  although
he was in the Chamber a moment ago.
  Mr. ALLISON. Let the amendments
be read and let us see  what they are.
  The   VICE-PRESIDENT.   The
amendments will be read for the in-
formation  of the Senate. The  first
amendment proposed by the Senator
from Massachusetts [Mr. LODGE] will
be stated.
  The SECRETARY. In section 9, page 8,
of the bill, at the end of line 9, after
the word "preparation," insert the fol-
lowing additional proviso:
  Provided further. That when in the prepara-
tion of food products for shipment they are
preserved by an external application applied in
such manner that the preservative is  necessarily
removed mechanically or  by maceration  in
water or otherwise,  the provisions of this act
shall be construed as applying only  when said
products are ready for consumption.
  Mr.  HEYBURN. Mr.  President, the
provision covered by that amendment
is already in the  bill in sufficient  form,
in the judgment of the committee.
  Mr.  McCUMBER. I  wish to say a
word so that there may  be no mistake
about the matter. It is the bill so far
as it relates to exports.
  Mr.  ALLISON. Where is it in the
bill?
  Mr.  McCUMBER. On  page  8, begin-
ning in line 3; and it reads as follows:
  Provided, That {roods intended  for  export
shall not be deemed  misbranded or adulterated
when prepared and packed in accordance with
specifications of the foreign purchaser, provided
no substance is used  that is in conflict with the
laws of the country to which the goods are to be
shipped, when such country having  laws upon
the subject does not prohibit such process of
preparation.
                            [p. 1129]

  The amendment itself is  not in the
bill, but the point to which the amend-
ment is directed  is covered by the bill
so far as it relates to exports.  I under-
stand from the author of the bill, in a
short discussion concerning the provi-
sion that it was  intended to cover the
matter of packing meats in  borax.
That is a thing that it is said  can be
washed off and that it does not perme-
ate the hams. They are  packed and
covered with  borax, and the packing
industries  of the  country,  I  under-
stand, desire that that provision be re-
tained in the bill.
  Now, why was the provision  placed
in the bill so far  as exports  are con-
cerned? Most of  the  hams that  are
shipped out of this country are shipped
to Great Britain. There  is no prohibi-
tion in the food laws of  Great Britain
against the use of borax as a packing
ingredient.  In addition to that,  the
orders for the most part,  as I am in-
formed, which come from Great Brit-
ain, request that the hams be packed
in borax, for the reason  that this par-
ticular process protects  the goods in
transit across the water. To meet that
condition we provided that the  meats
might be  packed  in accordance with
the request of foreign  consumers to
meet the requirements of that demand.
  That might bring up the question as
to whether the packing in borax  is
necessarily deleterious. That would be
a question under the bill, of course, for
the courts to determine,  if  the bill
should become a law.  I  can only cite
the report  made by the  food  commis-
sioner of my own State upon that sub-
ject, if it  is of any value to Senators.
Does any Senator desire it?
  Mr.  SPOONER.  As  I  understand
the Senator,  that  question would not
arise as to an exported  article  unless
prohibited by  the laws of the country
to which it was consigned.
  Mr.  McCUMBER. Certainly.
  Mr.  McCUMBER. No law covering
it.
  Mr.  SPOONER. Or unless they had
no law on the subject.
  Mr.  SPOONER. Unless they had no
law covering this matter.
*       *         *        *        *
  I am glad it does not.  If it related
clear back it would be abominable, and

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372
LEGAL COMPILATION—PESTICIDES
relating back only to line 17 it is toler-
ably abominable, if there is any such
thing as degree in that.
  Now, it would read this way: That
these things, although not permitted in
the interest of human health—women,
children, and men—to be dealt in, to
be transported from State to  State, to
be knowingly sold by anybody to any-
body in any of the States or Territor-
ies  of  the United  States,  may  be
shipped abroad, provided  some  scoun-
drel over  there  asks  that  they  be
shipped to him and there is no law
there to punish him for secretly selling
to people what we will not permit our
people to use in this country. That is
put in for the  benefit of the packers
primarily,  but it would not be limited
in its  application to the packers.  It
applies to  every  manufacture and  to
all drugs, to all foods, to every eatable
and  potable  thing,  does  it  not,  for
which  there  might  be a  demand  in
other countries?
  Now, I want to say  a  word  to  my
friend who has this bill in charge. He
spoke about pushing it to  a vote this
afternoon.  The bill has not been long
at this session before the Senate. It is
a bill which  I  presume few  Senators
                            [p.1130]
have had time to study. I have had no
time to study it for one. It is a bill the
purpose of which is  good, and I think
it is an improvement undoubtedly  on
the bill considered at the last session.
But it is a measure which every Sen-
ator ought to have an opportunity to
read carefully.  I suggest to the Sena-
tor that as no one wants to delay the
bill beyond a reasonable time for de-
bate, he ask  the  Senate to fix a time
for a vote on the bill and amendments,
say a week hence, or something of that
sort.  Every Senator will have notice
then that he must study the bill and be
ready  with his  amendments or  the
discussion, for at a certain time it will
be voted upon.
  Mr. HEYBURN.  It was my inten-
tion before having the bill laid aside
 to-day  to  do just what  the  Senator
 has suggested, to ask that a time be
 fixed.
   Mr.  SPOONER.  I  had  no idea I
 could suggest a thing to the Senator
 he had not already thought of.
   Mr.  HEYBURN. But,  Mr.  Presi-
 dent, we have  had this bill  on the
 Calendar since  the beginning of the
 present session  of Congress, and, of
 course, due notice that the bill at the
 proper  time would be called  up for
 consideration.
   Mr. SPOONER. Oh, of course.
   Mr. HEYBURN.  The consideration
 seems to be rather in the nature of
 criticism of the bill. In legislation crit-
 icism should naturally be followed by
 proposed amendments.  If that provi-
 sion should be out of the bill it should
 be attacked through the means of an
 amendment or a motion to strike it out.
 Objection to the bill in general terms
 does not result in making any progress
 in the consideration of a bill.
   I should like to make a suggestion in
 response to the  criticism  of the Sena-
 tor from Wisconsin as to that provi-
 sion  of the  bill.  In  legislating  we
 naturally take into consideration the
 conditions under  which we legislate.
 The committee spent weeks and months
 in the  consideration of this  measure
 at this  and other sessions of Congress,
 and we have inquired into the condi-
 tions to which  this  legislation  was
 directed.  That  provision   was  not
 incorporated  into  the  bill  until  it
 became apparent  that  there was a
 certain class of our export trade that
 did business, with the consent of the
 laws of the countries  under  which
 those live with whom they did business,
 with people who do not entertain the
 same views as are entertained in this
 country in regard to  what  may be
 necessary to preserve human health.
   In other words, we ship from this
 country vast quantities of horse meat
 to be used in certain foreign countries.
 We do  not use it at  home at all.  A
 dealer  in the State of Oregon told me,

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 STATUTES AND LEGISLATIVE HISTORY
                                373
 having been in the business, as he said,
 five years,  that not one single  pound
 of  that commodity had been used or
 consumed in this country, but that he
 found a market for it in the countries
 of  Europe.
   Now, if those people want that kind
 of  a commodity, if they are presumed
 to  be  intelligent enough to determine
 what they want and what is conducive
 to their health or destructive of it, and
 are convinced that they have no objec-
 tion  to that  class  of  commerce or
 commodity, there is no reason why we
 should constitute ourselves the guard-
 ian of their health. It is not for us to
 say—except it would not be permitted
 to go beyond a certain line, and neither
 do  we  in this bill—that those people
 shall  not,   in  the  exercise  of their
 judgment, consume a  certain class of
 articles.
    *****
  Mr. HEYBURN.  As to the use of
 the term "poisonous," let me state that
 everything  which contains poison is
 not poison.  It depends on  the  quan-
 tity and the combination. A very large
 majority of the  things consumed by
 the human  family   contain,  under
 analysis, some kind of poison, but it
 depends upon the  combination,  the
 chemical relation  which  it  bears to
 the body in  which  it  exists  as to
 whether or not it is dangerous to take
 into the human system.
  Mr.  SPOONER.  But this bill pro-
 vides for a  detrimental and diabolical
 combination.
  If it contain any added  poisonous or other
 ingredients which may render such article in-
 jurious to human health.
  Mr. HEYBURN. The word "added"
 is a word of limitation there. The word
 "added" simply means that  nothing
 shall be added to the poisons already
existing in  the substance. Take  any
substance. Poisons may be extracted
from  fruit,  from  the  kernel of  the
peach, from acids contained in fruits.
The word "added" is  a word of limi-
 tation. In other words, after providing
 carefully against poisons, recognizing
 the fact that poisons exist independent
 of  any human action in  certain com-
 modities, we  have provided  that no
 added poisonous  or other  ingredient
 which may render such  article inju-
 rious to  human health shall be deemed
 to  be  adulterated. That is under the
 definitions of  adulterated articles.
  Mr.  SPOONER. "Added"  poison.
 That implies  that it is  an additional
 poison.
  Mr. HEYBURN. Let  me  make  a
 suggestion to  the Senator.
  Mr. SPOONER. If the Senator will
 be  permit  me, he misapprehends me.
 I  am  not troubled about  the  word
 "added." I am troubled about the con-
 clusion here that  it is an article thus
 constituted injurious to human health.
 The Senator would not give or  sell to
 me, knowingly, an article injurious to
 human health.
  Mr.  HEYBURN. It is forbidden by
 the terms of this bill.
  Mr.  SPOONER. Would he give it to
 a Frenchman?
  Mr.  HEYBURN. No; and this does
 not permit that it shall be given to  a
 Frenchman.
  Mr. SPOONER. Yes; it permits that
 it may be sent anywhere in the world
 if  some  rascally merchant  asks that
 it be sent to him and there happens to
 be no law to prohibit it.
  Mr. HEYBURN. But the  committee
 inquired  as to the existence  of laws
 in   foreign countries, and  there are
 other words of limitation in this clause
 that I think  the Senator  has over-
 looked.
  Mr. SPOONER. Very likely. I have
 not carefully read the section.
  Mr. HEYBURN. For instance, this
 is the limitation:
 Provided no substance ia used that  is  in con-
 flict with the laws of the country to which the
 goods are to be shipped.
  The  fact is  that foreign countries
with which we do business have more
stringent laws than we have, and I am

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374
LEGAL COMPILATION—PESTICIDES
sorry to say  that  in  some  instances
they are engaged in the special manu-
facturing of articles of commerce for
the American market that they are not
allowed to sell in the country where
the articles are  made, and we  here
have undertaken to be more generous
in our treatment of them. If their laws
forbid it, we do not allow our people to
violate  their laws  in  the  interest of
commerce.
  Mr. SPOONER. What I should like
to inquire is  this: If the Senator is
correct  in  saying that their laws are
more stringent than  ours in this re-
spect,  what  is  the  object  of this
proviso? What do the packers want it
for?
  Mr. HEYBURN. The packers who
do  business  with  countries  having
these laws are in exactly the  same
position as the man who manufactures
a bogus article in one of our States
for the purpose  of finding a surrep-
titious market for it in another State.
That is the position they  are in, and
we put  them in that position. This bill
does  not  undertake  to  prevent the
manufacture  of these articles, but  it
undertakes to prevent the circulation
of  them and  we urge as one of the
strongest reasons for the enactment of
this legislation  the protection of the
State into which it shall be sent. We
are recognizing the same  principle in
dealing with  these foreign countries,
because we realize that in the case of
these goods, either in violation of their
law or in violation of this law, once
they are out of the jurisdiction where
they are made and landed  in unbroken
packages  in  a  foreign  jurisdiction,
whether it be  in a State or beyond the
waters, it is a dangerous thing to have
them in   a community,   and makes
trouble for foreign countries just as it
makes trouble for States here. One of
the highest functions performed by the
legislation proposed by this bill is that
it protects  the States against  imposi-
tion  from  other  States  and  that  it
protects the foreign market, which is
 constantly a critic of our country and
 our  commerce,  by  preventing  our
 people from interjecting such an arti-
 cle  into  the  foreign  market  under
 conditions where it  might become  a
 contraband  article  and  might  not,
 according to whether  it was discov-
 ered. It places our people  and foreign
 people upon the same status  in  that
 regard.
                            [p. 1131]
   Mr. McCUMBER. The  word "pre-
 pared," as I have stated,  covers  the
 method of protecting  the article.  It
 may be packing; it may be a prepara-
 tion to make ready for packing.
   Mr. SPOONER. What does the word
 "adulterated" mean, then?
   Mr. McCUMBER.  We certainly un-
 derstand  the word "adulterated."  It
 shall not  be deemed to be adulterated,
 as applied in this particular case, by
 the mere preparation  of something
 over it which is in accordance with the
 laws and not against the  laws of the
 State or  country to which  it is  con-
 signed.
   Mr. LODGE. Mr. President, I wish
 to call the  attention of the  Senator
 from  Wisconsin  to  an  amendment
 which I have offered  to that section as
 an additional provision, which I think
 would cover it as a substitute:
   That when in the preparation of food prod-
 ucts for shipment they are preserved by an
 external application applied in  such manner
 that the preservative is necessarily  removed
 mechanically or  by  maceration in  water or
 otherwise,  the provisions of this act shall be
 construed as applying: only when said products
 are ready for consumption.

   Mr.  SPOONER.  What particular
 Massachusetts product does the Sena-
 tor have  in mind?
   Mr. LODGE.  I have no particular
 Massachusetts  product in mind any
 more than I suppose the Senator from
 Wisconsin has Wisconsin products in
 mind in opposing the bill.
   Mr. SPOONER. I am  shooting at
 the flock.
   Mr. LODGE. It is needless to say I
 have in mind fish; but it  applies to a

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 STATUTES AND LEGISLATIVE HISTORY
                                375
 great  many other articles. Salt fish
 are widely distributed not only in this
 country, but there is a very large West
 Indian trade.
   Mr. SPOONER. I must say that the
 amendment proposed  by the Senator
 from Massachusetts  seems to be ad-
 mirably adapted to the object which he
 has in view, and is  not susceptible to
 the objection which  I  have been mak-
 ing to the other provision.  Is it satis-
 factory to the Senator who  has charge
 of the bill in place of the proviso?
   Mr. HEYBURN. I  think the Sena-
 tor has overlooked the fact that by the
 provisions that are   under criticism
 under the head  of "definitions" the
 proviso does not relate to the  process
 of preparing goods for the market or
 to the sale or the  disposition of them.
 It is  a limitation under the head of
 "definitions" which begins  at line 22,
 page  5.  There the bill undertakes to
 give the definitions of the various sub-
 jects of the provisions of the bill. The
 Senator has read at the top of  page 8,
 under the head of "Fourth. If it con-
 tain  any added  poisonous or other
 ingredient which  may render  such
 article injurious  to  human  health."
 That  is simply one of the  definitions,
 and there are many  definitions, cover-
 ing three pages.
                            [p.1132]
  The VICE-PRESIDENT.  The
 amendment  proposed  by the Senator
 from Massachusetts will be read.
  The SECRETARY. On page 8, line 9,
after  the word  "preparation,"  insert
 the following additional proviso:
  Provided further. That when in the prepara-
 tion of food products for  shipment they are
 preserved by an external application applied in
 such manner that the preservative is necessarily
 removed mechanically or by maceration in water
 or otherwise, the provisions of this act shall be
 construed as applying only  when said  products
 are ready for consumption.
  Mr.  LODGE.  Mr.   President,  that
affords a  perfectly ready test on  any
article  of  that   sort.  The  officers
charged with this duty will have noth-
ing to do but to take  a  specimen of
 that kind and treat it as  it would be
 treated if prepared for consumption.
 If after that  treatment they still find
 that it contains poisonous substances,
 it becomes obnoxious to all the clauses
 of the bill. But if it  is found not to
 contain such substances after its prep-
 aration  for  consumption,  then,  no
 matter what  the external application
 was, it is held to  be  wholesome  and
 unadulterated.
  There are  certain  products  which
 have to be protected by applications or
 by  wrappings, which  inevitably con-
 tain matters which  in  themselves are
 deleterious to  human health, but which
 are entirely disposed  of  the moment
 the article  is  prepared for  consump-
 tion. This amendment does not remove
 the  control  over  those   articles  or
 exempt them.  It simply provides that
 they shall be tested in a certain way—
 that is, after  the external application
 has been removed—in  order  to give a
 fair test. It seems to me that it is not
 an unreasonable proposition.
  Mr.  McCUMBER. Mr.  President, I
 think the Senator will find  a certain
 defect  in  this  amendment, which  un-
 doubtedly may be covered by  a further
 amendment. I  will  take an example, so
 that it will  be made clear to him. Let
 us take this question  of the packing
 of hams, ribs,  etc., in borax.  That is a
 common method of packing  them for
 shipment for interstate commerce. The
 amendment which  the Senator  pro-
 poses provides that if  the things that
 are used for an application to preserve
 them, though  they may be poisonous
 and injurious  in themselves, can  be
 separated by washing—by maceration
in water—then those   goods  may  be
 shipped.
  Now, let us  take the  simple illustra-
tion we have  had  of the shipping of
hams.  You  therefore provide by law
that no matter how poisonous the in-
gredient, or whatever you may call it,
is used for  an application it shall  be
allowed free transportation from one
 State  to  another.  It   is  under  that

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376
LEGAL COMPILATION—PESTICIDES
guard, that protection, until it is sold
in original packages, we will say, and
enters into the property  of a  State.
After it enters into the general  prop-
erty of the State we have no further
control over it. There is nothing that
compels the consignee of the goods to
use this  macerating process,  but he
sells it out as he does to-day. Now, let
me give  the  Senator an  example of
that.
  Mr.  LODGE. If the Senator will
pardon  me  for interrupting  him, I
think he  misapprehends  the  precise
point of the amendment, which is that
the act shall be construed as applying
only when said products are ready for
consumption.  That is when the  man
authorizes  these  articles  and  tests
them at the  manufactory,  where, I
suppose,  all the tests are  to be made,
they are not to be tested until  these
external   applications  are  removed.
Then if they show poisonous ingredi-
ents they are,  of course, prohibited. If
they do not show them, then it is dem-
onstrated that the  poisonous substance
is confined to  the wrapper or  some
external application.
  Mr. McCUMBER. But, Mr.  Presi-
dent, who will test them?
  Mr. LODGE. How are you going to
test anything?
  Mr. McCUMBER. We must test
them before  they  reach  the  foreign
country to which they are consigned.
  Mr. LODGfE. That is precisely what
I mean the test shall be.  This is only
denning the nature of the test.
  Mr. HEYBURN. I suggest that they
are not within our jurisdiction. That
is the trouble. When they are  ready
for use they have passed beyond our
jurisdiction.
  Mr. LODGE. I  am quite aware of
that. This is only  denning the method
of the test. The test is to be made at
the time and  place that the bill pro-
vides for. This only says when that
test is made the articles shall be tested
not as they are prepared for shipment,
 but as they are prepared for consump-
 tion.
   Mr. HEYBURN. As  they will  be
 when ready for the consumer?
   Mr. LODGE.  As they will be when
 ready for the consumer.
   Mr. HEYBURN.  Then  they will
 have passed out of our jurisdiction.
   Mr. LODGE. No; what will prevent
 the testing  officer  from testing  the
 article when ready for consumption?
   Mr. HEYBURN.  Because it will be
 necessary, when it reaches the store,
 for the retailer  to remove.
   Mr. LODGE. Does the Senator mean
 that  the testing  officers are  to test
 every can that goes out?
   Mr. HEYBURN. No;  but the Sena-
 tor is taking a case where the articles
 are deleterious to health by reason of
 the process of preparation. When they
 pass out of the unbroken package into
 the general channel of business  we
 have lost jurisdiction  of  them—this
 bill has lost jurisdiction of them.
   Mr. LODGE.  I quite see that.
   Mr. HEYBURN. And a provision as
 to what conditions would then  exist is
 not a protection.
   Mr. LODGE.  No; but at what point
 is the test made?
   Mr. HEYBURN. Well, if the test is
 made at the manufactory you simply
 determine what condition would exist
 if certain things  were  done; but  you
 do not protect the person into whose
 hands the commodity finally passes.
   Mr. LODGE.  But I am taking some
 article now that does not involve a
 question of external application. How
 are you going to test any  article,  and
 where?
   Mr. HEYBURN. This bill provides
 that you may  test  the article on the
 shelf of the retailer.
   Mr. LODGE. Very well. This does
 not interfere with that in the least.
   Mr. HEYBURN. Then  it is in the
 hands of the householder.
   Mr.LODGE. Not at  all. It is quite
 possible to remove the  external appli-

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STATUTES AND  LEGISLATIVE  HISTORY
                               377
cation and put it in water and test it
and put it back.
  Mr.  HEYBURN. Then it  is to be
done by the consumer?
  Mr. LODGE. Not necessarily.
  Mr. HEYBURN. Some one goes to a
store  and buys a ham nicely wrapped
and prepared  and takes it home. The
merchant himself does not remove this
deleterious condition at all, but it does
depend on the consumer as to whether
he will remove it. Suppose he is not
learned enough in what is necessary
to preserve his health to do it and it
is not removed and his health suffers,
where  is the protection this bill would
afford  him?
  Mr.  LODGE. That opens up a very
extensive question. As  I  understand
it, the  Senator expects that every indi-
vidual ham on the shelves of a retailer
is to  be examined by  a Government
officer.
  Mr. HEYBURN. No.
  Mr. LODGE. Then if it is not,  he is
going to test some hams.
  Mr. HEYBURN. The wisdom of this
bill becomes   apparent.  We  prevent
men from doing that which can ulti-
mately  result  in  injury to the unin-
formed. That is provided by the bill.
  Mr.  LODGE. No; but what I  want
to get  at is where the test is applied.
The Senator says it is to be  done on
the shelves of  the retailer. I take it at
any point.
  Mr. HEYBURN. At the factory.
  Mr.  LODGE. Well,  at the  factory.
Does  the  Senator  propose   to  have
every ham that goes out of the factory
tested before it goes out?
  Mr.  HEYBURN. No;  but  we pro-
pose to place a responsibility upon the
manufacturer, under which he will not
dare to violate the provisions of this
law or of the State law.
  Mr.  LODGE. Very well; that is all
I want; and  I  do not see  how my
amendment interferes  with  that the
least in the world.
  Mr. HEYBURN. As I understand it,
if the Senator  will pardon me, it would
allow the manufacturer to surround
the  commodity with  conditions that
would depend as to whether they were
injurious or not upon the intelligence
of the consumer.
  Mr. LODGE. But you propose to al-
low  him to  do  that to the foreigner,
and  a great deal more than that.
  Mr. HEYBURN. No; we simply say
that goods for foreign trade shall con-
form to foreign laws.
  Mr. McCUMBER. Let  me  give  an
example.
  Mr. LODGE. I am still unable to see
why it  is not fair.  Take candy, for
example. There may be  any number
of poisons in the box or whatever the
candy is wrapped in. There  may be
any  number of deleterious substances
in it. That is the wrapper. That is the
external application  in  that  candy.
Now, is that to be  shut out of the
market  on account of that? How is he
to test it? Of course he tests the candy
as it is consumed, not  as it  is not
consumed.
  Mr. HEYBURN. Mr. President, the
                           [p.1133]
principle of  the bill is to prevent the
manufacture of the forbidden  things
and the placing of them on the market.
At the last session of Congress  one of
the  objections that  appeared  to me
most reasonable to the  bill proposed
then was that it went to the consumer
or the retail dealer rather than the
manufacturer. In this bill we have un-
dertaken to see, so far as the legislation
could do it, that there is no manufac-
turer to put upon the market and send
out these things. That is what we have
undertaken.  If we relax to the  extent
of the  suggestion  in  the Senator's
amendment by allowing the manufac-
turer to  do  something  admittedly
wrong in the hope that the wrong may
be cured at  some period between the
mill  and the mouth,  then you have
defeated the purpose of the measure.
  Mr. LODGE. I deny absolutely that
it  is admittedly wrong.  There  is  an
immense number of articles—the Sen-

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378
LEGAL COMPILATION—PESTICIDES
ator has mentioned  them, hams  and
things of that sort—that require ex-
ternal applications  which  in  them-
selves  are  deleterious.  This amend-
ment  of mine is borrowed  from the
House bill that came to  us  and is in
the exact language of the bill  which
passed the other House. It is only here
that it has been discovered that  it was
going to lead to such abuses; it is only
here that  objection  is made to that
carefully guarded amendment of mine,
which simply prescribes the method of
the test and defines it, providing that
nothing in  the article itself shall be
poisonous. That is objected to in a bill
which contains a clause  which, in so
many words, permits us to sell adulter-
ated goods to foreigners.
  Mr. President, it seems to me that
is hardly fair. I am not  proposing in
this amendment any strange or  new
thing. The  other House  adopted it. I
merely copied it from their bill. It is
only here that it has been eliminated.
  Mr. McCUMBER. Mr.  President, I
think we may take a little illustration,
and we shall then be pretty well en-
abled to understand the  real effect of
the amendment  of  the Senator from
Massachusetts   [Mr. LODGE].  Now,
bearing in mind that the  object of the
bill is to prevent the manufacturer or
anyone else sending goods into inter-
state   commerce  which,   when  they
arrive in the store of the  retailer or in
the home, are poisonous or injurious—
if that is a good object of the bill, the
next  question,  then, is  whether the
amendment of the Senator is diamet-
rically opposed to that object.
  Let us follow it out in its applica-
tion.  I will take the Chicago packing
houses. They make  an external appli-
cation of borax upon their hams. They
use great quantities of it. That borax
permeates the meat to a certain extent.
Now, we will admit that  it is removed
by  maceration in water or that other-
wise you may eliminate entirely all of
the boracic  acid  that is  absorbed by
these  meats  in  the  process—we  will
 admit that to be true. That entitles it
 to shipment. Then it goes to my State
 or to any other state in the Union. It
 goes  into the hands  of the dealer in
 meats or the  grocer.  There is no  law
 on  earth to compel the grocer or  the
 dealer in meats to use that macerating
 process  to  remove the boracic acid.
 The chances are nine out of ten that
 he will not touch it, that it will go  out
 to the consumer just exactly  in  the
 condition it was when it left the pack-
 ing house  in  Chicago. Therefore  the
 object of the bill, so far as that partic-
 ular kind of food is concerned, would
 be entirely destroyed. That must nec-
 essarily  be the effect of  the amend-
 ment.
  Mr. LODGE. Will the Senator allow
 me to ask him a question?
  Mr. McCUMBER. Certainly.
  Mr. LODGE. Then, do I understand
 that the consumer eats the ham with-
 out cooking it?
  Mr. McCUMBER. I did not say that.
  Mr. LODGE. I ask  the Senator, does
 not the  consumer soak the ham  and
 cook  it before he  eats it, or  does he
 eat it just as it comes from the grocer?
 I supposed  hams were almost always
 soaked and cooked before being eaten;
 but  that may be  the result  of  my
 ignorance.
  Mr.  McCUMBEK.  The  consumer
 does not know anything about the ham
 containing borax.
  Mr. LODGE.  Hams,  as I  under-
 stand, are always soaked and cooked
 before being eaten.
  Mr. HEYBURN. Ninety per cent of
 the consumers take the hams as they
 come from the grocer and cook them.
  Mr. LODGE. I understand the Sena-
 tor from Idaho [Mr. HEYBURN] to say
 that  90 per cent of the consumers eat
 them as they come in the covering from
 the grocer.
  Mr. McCUMBER.  The  Senator  has
 a very vivid  imagination to get that
 understanding.
  Mr. LODGE. I did not  say the Sen-
 ator  from  North Dakota  said so;  but

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STATUTES AND LEGISLATIVE HISTORY
                                379
I understood the Senator from Idaho
had  said so.  I  think he made the re-
mark about 90  per cent doing that.
  Mr.  McCUMBER.  He  said 90  per
cent, but I  did  not  understand  the
Senator from Idaho to make the re-
mark that they were  not  cooked.  I do
not understand that the mere process
of cooking will materially affect  the
boracic acid  that is contained  in  the
meat.
  Now, let  me  give  the  Senator an
example. I have before me the report
of the food commissioner of my  own
State.  He examined very thoroughly
the hams that came  from the great
packing houses of Chicago and Omaha.
The  result of his investigation proved
it to be a fact  that every pound that
was  inspected by him contained from
10—never  less  than  10—up  to  20
grains of boracic acid. When given for
medicinal  purposes,  from  5  to  10
grains is the dose that is given in a
day.  So that if one would consume ]
pound  of these  hams packed in borax,
and thoroughly impregnated with bor-
acic acid, he would consume about four
times the average dose that would be
given in any case where  that acid is
given for medicinal purposes. I simply
suggest this  as a reason why there
should be at least some modification of
the Senator's amendment.
  I will say to the Senator here that I
agree with him perfectly that if borax
is absolutely  necessary and is the only
preservative, and it can be eliminated
by the use  of  a little washing with
water, possibly it is best that it should
be used; but, from such  information
as I can obtain, it is not necessary,
execept to preserve those meats which
are already  tainted  or injured to a
certain extent. I mean for  inland com-
merce. In  crossing the   ocean it  is
impossible to keep  such  meats from
absorbing a  great deal of  moisture,
and it  has been stated—I think it was
stated  before our committee—that it
is almost essential, so far as the for-
eign  trade is concerned, to pack them
in borax. As I understand—I will not
be certain—where they are so packed,
under the laws of Great Britain, this
must be removed before they go into
the market  generally. If that is true
there is absolutely good  protection  to
the consignee of such goods so packed.
But there is absolutely no protection
under this amendment for the consum-
er of goods  which have been adulter-
ated, or at least so packed that they
become  injurious to health.
  I shall be glad to have an amend-
ment made in some way so that it will
be  reasonable,  but I  really  think  it
would be unreasonable as the Senator
has framed it.
  Mr. LODGE. Mr. President, I do not
want to break  the bill  down  by any
amendment.  That is not my purpose. I
do not think, however, that we want
to make a bill to be used as a means  of
oppression and  which  could  be used
as against honest traders and  honest
manufacturers,  as  this  undoubtedly
could be as it now stands.
  I had supposed—and I thought the
amendment  covered that point—that
submersion in water  was a necessary
part of cooking or preparing hams for
the table. I have been so informed on
what I  thought was good  authority,
but I am told now that it is not.
*****
  I do not want to oppose the  bill, but,
on the contrary, I am heartily in favor
of it. I do not, however, think it  is
desirable to make it oppressive  and  to
make it so that  it will interfere with
reasonable trade or prevent men from
trading who have only an honest pur-
pose in view.
  In the matter of fish,  about which
the Senator from Wisconsin asked me,
I  will say that fish are preserved by
salting,  to begin with. As I understand
the packing that  is  put around the
packages when the fish are prepared
                           [p. 1134]
in what is known as  the  "shredded
form" is simply to keep them  in the

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380
LEGAL COMPILATION—PESTICIDES
package. To interfere with that would
interfere  enormously with  trade in
every  direction,  both  foreign  and
domestic.
  Mr. McCUMBER. Mr. President, I
do not think the Senator will find any-
thing in the bill that will in the slight-
est degree tend to do an injustice; on
the contrary, I can not conceive of a
law  being drawn with greater care
and   throwing   greater   safeguards
around the defendant in any criminal
prosecution  than  is found  in  this bill.
  We have no provision for an inspec-
tor, and my opinion is that these cases
will  be determined by the court when
they come up. They must be deter-
mined by the court. There is no law
requiring, and there is nothing in this
bill requiring, that a shipper  shall not
use borax, and all of it that he desires;
but if it were  found that the use of
borax  as a packing  for  meat  was
absolutely deleterious as  it is usually
used by people, then in a case before
the courts that question would  come
up  and it would be determined,  and
determined, of course, in that case
only, but that would be a precedent
for other cases.
  I can not see that any person has a
valid right to use any such packing on
any meat as would be injurious to the
public, and if depriving  him of the
right to so pack meats is injurious to
him it is depriving him  only of an
opportunity  to  do  a  wrong to the
public.
     The Senator has  spoken several
times about the method of preparing
hams. I do not myself pretend to be a
cook, and I do not know what informa-
tion of  a  specialized character the
Senator from Massachusetts may have
upon the  subject, but I do know that
if you take  the ordinary smoked ham,
or the sugar-cured ham, or whatever
you  may call it, as it comes  from the
manufacturer it is boiled without first
being soaked;  certainly is  not  first
soaked in water, whether it is fried or
otherwise. There may be cases in which
 it may be soaked to take out the extra
 amount of saltpeter or salt that is in
 it, but not as it is used in the ordinary
 household. There is no occasion for it,
 unless they think that there is  some-
 thing in it that is improper. I say that
 the public has not got that knowledge
 generally.
   The VICE-PRESIDENT. The ques-
 tion is on the amendment of the Sena-
 tor from  Massachusetts [Mr. LODGE.]
   Mr. HALE. It is getting  a little late,
 and there is a desire that  we have an
 executive session.
   Mr. HEYBURN.  Will the  Senator
 yield to me for a  moment?
   Mr. HALE. I yield to the Senator.
   Mr. HEYBURN.  Mr. President, I
 ask  at this time that a date be  fixed
 for taking  a vote on this bill.  I ask
 that on Monday, January  22, the bill
 and the amendments  may be consid-
 ered and disposed of.
   Mr. McCUMBER. I would suggest
 to the Senator that he give a longer
 time  than that.  I want to see  every
 amendment Senators may  have to of-
 fer properly considered, and I want
 them to have plenty of time to read
 the bill. I hope the Senator  will not ask
 that  a time prior to February,  and
 possibly prior to the middle of Febru-
 ary, be fixed. I think we can get a vote
 on the bill by that time.
   Mr. HALE. Mr.  President, I would
 suggest to the Senator that we are just
 beginning the consideration of the bill:
 Important amendments have been of-
 fered  that have  not yet been consid-
 ered, and I suggest to the Senator that
 he does not try to-day to fix a time for
 a vote on the bill. The Senator knows
 that  he will have no difficulty in  get-
 ting  some reasonable time fixed, but
 there  are other  matters that are im-
 portant, and I hope the Senator will
 not  at this time  attempt to secure an
 agreement for a  final vote.
   Mr. HEYBURN.  My suggestion as
 to a date for a vote was tentative only.
 I am not inclined to ask that the time
 for the consideration  of the bill shall

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 STATUTES AND LEGISLATIVE HISTORY
                                 381
 be shortened beyond reason. The 1st of
 February would be a reasonable time,
 but, inasmuch as the attendance at this
 particular time is somewhat meager,
 if the Senate is not ready to consider
 the matter now, I will give notice that
 to-morrow at  the conclusion of  the
 morning business  I shall ask the  Sen-
 ate to fix a time to take the final vote
 on this bill. I will  leave it in that way.
                            [p.1135]
           PURE-FOOD BILL.
  Mr. HEYBURN.  I  ask unanimous
 consent that  the Senate proceed to the
 consideration of Senate bill 88, being
 what is known as  the "pure-food bill."
  There  being no objection, the  Sen-
 ate,  as in Committee  of  the Whole,
 resumed the  consideration of the bill
 (S. 88)  for  preventing  the  manufac-
 ture, sale, or transportation of adul-
 terated or misbranded or poisonous or
 deleterious  foods, drugs,  medicines,
 and  liquors,  and for regulating traffic
 therein, and  for other  purposes.
  Mr. KEAN. Do I understand, Mr.
 President, that we are  proceeding with
 the Calendar under Rule VIII?
  The  VICE-PRESIDENT.   Under
 Rule  VIII.   The  question  is  on  the
 amendment  heretofore submitted by
 the Senator from  Massachusetts [Mr.
 LODGE] , which will be stated.
  The SECRETARY. On  page  8, line 9,
 after  the word "preparation,"  it  is
 proposed to insert the following addi-
 tional proviso:
  Provided further, That when in the prepara-
 tion of food products for  shipment they are
 preserved by an external application applied in
 such manner that the preservative is necessarily
 removed mechanically or by maceration in water
 or otherwise, the provisions of this act shall be
 construed as applying  only when said products
 are ready for consumption.
  Mr. McCUMBER.  Mr.  President,
we had that amendment under consid-
eration the day before yesterday, but
it was not disposed of. I desire, how-
ever,  at this time not to speak further
especially upon that amendment, but
more  particularly upon  the general
 phase of the entire bill. I shall take
 but a short time, however.
   Mr. President, this  bill  has now
 been, since I have been more or less
 interested in it, before the Senate for
 about five years. It  has passed the
 other House twice, not exactly in the
 same form as the pending bill, but in a
 similar condition. It  has heen almost
 impossible to secure  any attention  to
 or consideration  of it  in the Senate. I
 feel, however, that the remarks which
 have been made in  the Senate upon
 the bill,  and which have finally been
 taken into consideration by the public
 press  of the country,  have  at  last
 awakened a sentiment and have inten-
 sified that sentiment into  an impetus
 on the part of the press and the public
 that this bill should have consideration
 —an impetus which is naturally hav-
 ing very good results.
   Mr. President,  a great number of the
 leading magazines of the country have
 devoted  considerable  time and atten-
 tion to the consideration of this matter.
 I believe the time has now  arrived
 when we at least may  call  upon the
 Senate to give  it that consideration
 which I  feel—and which I feel after
 long study—it is  entitled to.
  I  am  not  going to make another
 speech upon this pure-food bill. There
 are  two   reasons that justify me  in
 this.  The first is that I  have spoken
 two  or three times and gone particu-
 larly into every  feature of what was
 practically the same  bill.  Another  is
 that  I am impelled to  be somewhat
 careful in my remarks on account  of
the  kindly  and  generous suggestion
that was made  by the Senator from
 Massachusetts [Mr. LODGE] as to why
 the bill had not received greater con-
 sideration near  the close  of  the last
 session of Congress.
  There  are  certain principal objects
 of this bill that ought to be considered
generally. The first object is to supple-
ment the  efforts of the States. Nearly
every State in the Union already has a
pure-food law or a code pertaining to

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382
LEGAL COMPILATION—PESTICIDES
the introduction of pure food. The food
commissioners  of  the  several  States
have been busily engaged in attempt-
ing to eradicate  the evil of  impure
food, but they are  met, Mr.  President,
at every point by the rules of inter-
state commerce and are  brought face
to face with a condition over which the
State itself has no control. This bill is
intended to supplement the laws of the
several States so that they may reach
the entire subject.
  The  next object  is to reach the root
of the evil  itself—the manufacturer.
The  moment  that we strike at  the
manufacturer of  unwholesome,  unfit,
adulterated, or misbranded articles of
food, we have reached the evil in such
a way that we may be able to control
it. As I have stated, inasmuch as about
95 per cent of all of the impure and
improper foods are consumed in States
other than  those  in  which they  are
manufactured, it  is  quite  necessary
that the authority having control over
interstate  commerce should  be  the
authority that should deal with  the
subject of the manufacture of those
products for the purpose of transmit-
ting them into other States.
   Another reason, is  to protect  the
honest  manufacturer   and   dealer.
Every honest manufacturer  in  the
United States is pleading for this bill,
because he  says that if  he manufac-
tures his goods in  accordance with the
pure-food laws of  the several States
or Territories, it is impossible for him
to compete justly  and fairly with the
bogus articles that are put in competi-
tion with those manufactured by him.
No elaborate discussion of that feature
of the  case is needed.
   Another object is to prevent the evil
of diverse rulings of the several com-
missioners of the  States having pure-
food laws.  For instance, there  is  a
manufacturer  using  certain  dyes in
order to make his goods appear more
presentable.  There is a  rule in Iowa
which  requires certain statements to
be made and to appear on the can; in
 another State they are made in an-
 other way;  while in other States they
 have no rule upon the subject. Even
 those States that have similar rules or
 laws will, through  their food commis-
 sioners, give  dissimilar constructions.
 One of the  objects of this  bill  is to
 assist the honest dealer in this charac-
 ter of goods to meet the requirements
 of all of the States.
   We  well know, Mr. President, that
 the  moment we do  pass a general law
 upon this subject, by virtue of that law
 covering ninety-odd per cent of all of
 the commerce in impure products, that
 law must become the dominant law;
 and, if there is  any difference, the
 State laws will soon accommodate and
 modify themselves  in conformity with
 the national legislation.
   Another object is  to  promote hon-
 esty and fair dealing and decency in
 the  sale and barter of food  products;
 but,  above   all, to  shield the  public
 themselves, Mr. President, against not
 only the use of poisonous articles, but
 especially to protect them against de-
 ceit or imposition of any character in
 the  matter of purchasing their food.
   Now, what is  it that this bill does
                            [p. 1216]
 not  do? I want to state, first, that it
 adds no new machinery whatever. We
 already have  in  the Department of
 Agriculture a chemical division. That
 chemical division  has   already  the
 authority, and we are appropriating
 money year  by year for the  very pur-
 pose that is indicated in this bill.
   The VICE-PRESIDENT. The Chair
 will state that the consideration of the
 bill  is proceeding under Rule  VIII,
 which  limits speeches to five minutes
 on the  part of any Senator. If there is
 no objection, however, the senator may
 proceed.
   Mr.  LODGE. I ask unanimous con-
 sent that  the  Senator  from  North
 Dakota may be  permitted to proceed
 without regard as the limit of the rule.
   The  VICE-PRESIDENT. Without

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 STATUTES AND LEGISLATIVE HISTORY
                                383
 objection, the Senator from North Da-
 kota will proceed.
   Mr. McCUMBER. I want to correct
 here, Mr. President, a wrong impres-
 sion, an impression which we seem not
 to  have been  able, even  during the
 four years of discussion on this floor,
 to entirely dispel, and that is the im-
 pression that we by this bill, or by any
 bill  that has  been reported by  the
 Committee  on Manufactures  of  the
 Senate,  have attempted  to grant the
 power of fixing a standard of food and
 drug products in  any Department or
 in any person whatever. There was a
 section in  the  House bill  as it twice
 passed the House, which provided for
 the fixing  of standards of food  and
 drugs  by the Secretary of Agriculture.
 In  both  instances  where we have
 passed upon  bills from the House that
 section 7 has  been absolutely elimi-
 nated. There is no standard whatever
 provided by  this  bill, or attempted to
 be provided by it. The only standard
 is that which is fixed by the definition
 of  adulterated and misbranded arti-
 cles. Any article that will measure up
 to that standard  has free access into
 any State in the Union. In this we have
 followed as nearly as possible the laws
 of the States. The definition conforms
 almost strictly to the definitions which
 have been adopted by the State pure-
 food laws of the State of Kentucky.
  This bill  does  not determine,  Mr.
 President, what a man shall eat. He
 can eat  anything that he desires. It
 does not determine what a man shall
 ship.  He can ship anything that he
 desires. All that it does require is that
 the article shipped, if it be adulterated
 or misbranded, shall bear the evidence
 of such  adulteration or misbranding
 upon  the cask or other  container  of
 the article that is shipped. I do  not
 think that  anyone can object  to that
 requirement.
  Mr.  GALLINGER. Mr.  Presidents
  The  VICE-PRESIDENT. Does  the
 Senator  from North Dakota yield to
the Senator from New Hampshire?
   Mr. McCUMBER. With pleasure.
   Mr. GALLINGER. My attention was
 attracted by a remark the Senator has
 just made that this bill  does not pre-
 vent any person from eating what  he
 may please, but that it requires arti-
 cles of food to be sold for just what
 they are. I do not know whether the
 article I have in my hand is authentic
 or  not, but it is an article from the
 National Druggist of October, 1905,
 from which it appears that the pure-
 food  commissioner of Minnesota—of
 course he is a State official—has placed
 Lea & Perrin's Worcestershire sauce,
 which most of us have been using for
 a great many years, absolutely  under
 the ban, and has prevented its impor-
 tation and sale within the limits  of
 the State of Minnesota. Perhaps the
 Senator  has seen this  article. If such
 a thing has been done, I think it rather
 a despotic exercise of power by a State
 official, and  if this bill is going  to
 put in the hands  of the Government
 corps  of  so-called "scientists," which
 exists  in  the Department of Agricul-
 ture, many of them looking for  some-
 thing to do day by day and  not finding
 it—if  it is to put into the hands  of
 those young men  the power to  abso-
 lutely  prohibit the  importation and
 sale of an article in this  country  as
 well established as is Lea  & Perrin's
 Worcestershire sauce, I think it is an
 extraordinary power.
  I want to vote for this  bill, and  I
 presume I shall vote for it, but I hope
 it will be so  guarded in its terms—I
 have read it casually,  but not very
 carefully—that  no  such  power  as
 seems  to have been exercised  by this
 State official  will be exercised in the
 Department of  Agriculture through
 those  young scientists who, of course,
 will be anxious to do something to at-
 tract attention.
  Mr.  McCUMBER. Mr. President,  if
 the Senator—
  Mr.  NELSON.  Will  the Senator
from North Dakota permit me a mo-
ment?

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384
LEGAL COMPILATION—PESTICIDES
  Mr.  McCUMBER.  I wish first  to
answer that, and then I will yield  to
the Senator.
  Mr.  NELSON. I want to answer  it.
  Mr.  McCUMBER.  I will give the
Senator an opportunity a little  later.
I desire to say that if the Senator from
New Hampshire [Mr. GALLINGER] had
even casually read the bill he would
find that no such possible power as  he
has indicated is vested in any man  or
body of men by this bill, but that it is
impossible that  such power should  be
so exercised in the State of Minnesota
or in  any  other State, provided the
Worcestershire  sauce  referred  to  by
the Senator is all that he claims for  it.
The Senator  must  understand  that
there is  only one way and one  final
method of deciding any  question  of
purity or impurity, of adulteration  or
nonadulteration,  of  misbranding  or
want of  branding of any article, and
that is in the usual form, in the courts
of the  United States. Those courts will
determine all questions of that char-
acter.  No head of a  Department  or
anyone else can finally determine that
question. The Secretary of Agriculture
in  collaboration with  the  heads  of
other branches will ascertain whether
or  not, in his  judgment,  certain in-
gredients or certain foods or  drugs
that are sold measure up to the stan-
dard which is required in the bill itself
in the shape of definitions. If those
definitions  are  not correct, then let  us
modify them until we  make them cor-
rect. I think, however, there will  be
little objection  to the definitions them-
selves.
   Mr.  SPOONER. Mr. President-
   Mr.   McCUMBER.   Then,   as  to
whether the goods measure up to that
standard will  be a question  for the
courts and  not for the Secretary  of
Agriculture,  or for a chemist or for a
number of chemists, or anyone else. I
now yield to the Senator from Minne-
sota [Mr. NELSON], and then will glad-
ly yield to the Senator from Wisconsin
[Mr. SPOONER].
   Mr.  NELSON.  Mr.  President,  I
 only rose for the purpose of making a
 brief  reply  to  the remarks of  the
 Senator from New  Hampshire. I am
 not aware of the fact that the pure-
 food  commissioner of Minnesota  has
 made any such decision. I do not think
 he has, because I have not found that
 there has been any practical embargo
 on the use of that sauce. So far as I
 know  we have  had the  privilege of
 using it right along.
   But  I  want to say, in connection
 with  this matter, to the  Senator from
 New  Hampshire, assuming  that  the
 commissioner of  Minnesota has taken
 that view of the case, this would not
 cure that matter. It could not cure  it
 otherwise  than  that  this would  be
 paramount and controlling so far as it
 affected interstate commerce.  If  the
 commissioner of  Minnesota made  a
 mistake and has gone too far, certainly
 this bill would not affect that matter
 otherwise than to afford relief so far as
 it pertained to interstate commerce. If
 any injustice has  been done by  the
 commissioner  of  Minnesota,  relief
 against that must be obtained either
 from the authorities of  Minnesota or
 from the State or Federal courts. This
 legislation  can  certainly not  affect
 that  matter, except in the manner I
 have indicated.
   The good effect of this law, assuming
 it to be true, as the Senator from New
 Hampshire has stated is that this gen-
 eral  doctrine of the  government in-
 grafted in the bill will, wherever there
 is a conflict between the  State law and
 this  law, leave  this  law controlling
 and be the  means  of equalizing  and
 doing justice to  all parts of the coun-
 try, instead of having the difficulties
 we  now encounter in  many  of the
 States.
  Mr.  McCUMBER. Of  course,  the
 Senator understands well that we can
 not interfere with what the pure-food
 commissioner in the State of Minne-
 sota  may do in matters  that purely
 affect the police power of that State,

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STATUTES AND LEGISLATIVE HISTORY
                                385
after the goods have been sold there.
  Mr.  GALLINGER.  Mr.  President,
I must  have been unfortunate in the
statement  I  made  or  the  Senator
would not raise that question. I raised
the question merely for  the  purpose
of making the suggestion  that I trust-
ed no such  power was placed in the
hands of the Secretary of Agriculture
in this bill as seems to  have been exer-
cised by this State official in the State
of Minnesota.
  Now,   concerning  the  Minnesota
matter,  I have only the authority of
the National  Druggist, which is one
of the most reputable  drug papers in
the country. This article says that an
edict has gone forth from this  State
official putting this  particular article
under the ban and prohibiting its im-
portation into the State of Minnesota.
If that be so, of course  we can not help
it, but it is  an extraordinary exercise
of power, it  seems to me.
  Mr. McCUMBER. I doubt if  that
statement can be regarded as correct,
for the reason that the State official of
Minnesota could not prevent, by order
or  otherwise, the  shipment  of   any
proper and pure article into the State,
nor could he  even  prevent the  ship-
ment into the State of an adulterated
article  unless it  was  absolutely  and
unquestionably of so poisonous or  unfit
a character  that  it could not be con-
sidered  as a  commercial  product. Un-
der the  construction of the interstate-
commerce clause  of the  Constitution
goods other  than those which I  have
mentioned may be shipped into a State
contrary to  the laws of the  State  and
may be  sold in the original unbroken
packages in that State.
                            [p. 1217]
  Mr. GALLINGER.  Mr. President,
notwithstanding that,  it  is just  pos-
sible this official may have gone beyond
his powers  in that regard.  At  any
rate,  I  have every reason to believe
that the statement made  by  this rep-
utable publication is correct in a gen-
eral way. What  I wanted to guard
against or to have the Senators who
have this  bill in charge guard against
is the possibility of putting a power of
that kind  in the hands of the Depart-
ment of Agriculture.
  Mr. McCUMBER. I believe the com-
mittee has been as careful as the Sen-
ator would have been to see that  no
such power is placed in the  hands  of
any person or any Department. I be-
lieve, Mr.  President, that all questions
of that kind  should be decided by the
courts. That is what they are for. This
bill simply determines that they shall
be so decided by the courts and not  by
the Agricultural Department or any
other Department.
  Mr.  GALLINGER. I am very glad
to know that, Mr. President. I think
that is a  very wise provision, and I
presume under that provision the citi-
zen will  have  ample  protection. My
only anxiety  about the bill this year,
as it was last year, is to have it a fair
and reasonable bill, a bill that will not
be oppressive so  far as  the citizen is
concerned and yet will be protective so
far as the interests of  the public are
concerned.
  Mr.  McCUMBER. That is  the end
we  seek to attain.
  Mr. GALLINGER. I will say, if the
Senator will permit me, that  I am not
so  much  exercised about these  mis-
branded and so-called "poisonous" sub-
stances as some Senators are. I think
we  are running amuck on that matter
to a very  considerable extent. Human
life is being lengthened  in  place  of
being shortened decade by decade, not-
withstanding  all the  terrible  things
that are read of, notwithstanding the
microbes and  the germs and the bacilli,
and all that sort of thing. Of course, if
we  believed  all  that  these  scientists
say, these  young fellows in the Depart-
ment of Agriculture, we would not dare
breathe, eat, or drink. But I do not be-
lieve it. So I  am not as much alarmed
as some. And yet I want to vote for a
reasonable bill, and  I hope this is a
reasonable bill.

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386
LEGAL COMPILATION—PESTICIDES
  Mr. McCUMBER. I think what the
Senator wants,  and what all of us
want more particularly than anything
else, is that when we go into the mar-
kets to buy an article of food or a drug
to be used in the family we shall get
what we call for.
  Mr.  GALLINGER. And  what we
pay  for. That is right.
  Mr. McCUMBER. And what we pay
for. That is the principal feature to be
considered.
  The  Senator  has alluded to the in-
crease in the length of the life of the
people. I think the Senator, however,
will  agree with  me that the increase
has not been so much possibly on ac-
count of the food we have now being
better than the food we  used to have
as it has  been  on account of  the ad-
vance of  science, medicine, and  sur-
gery in the protection of the lives of
children, and also in the home, in the
greater comforts, and the lessening of
the  troubles we were  afflicted  with
when people had not the means  they
have at the present time to care for
themselves. I believe those have  been
the potent factors in the longevity of
the human race, at least in the United
States. It  has been  demonstrated that
since they  have sterilized  the  milk
that is  required to be  sold,  for in-
stance, in  certain cities, or since  they
have cared for  it,  there has  been a
wonderful  decrease in the percentage
of the  deaths of children using  that
milk. I believe that  much has been ac-
complished in that way, and much has
also been  accomplished  in the matter
of better foods.
  Now, Mr. President, who are those
who desire this bell? So far as  I know,
every reputable manufacturer  in the
United  States  wishes  a  bill  of this
kind. So far as I know, every  reputa-
ble  manufacturer  of  drugs  and of
liquors, as well  as  food products, de-
sires a  bill of  this character to be
passed. The people  who  have been de-
frauded, those  whose  families  have
 been murdered, also join in the re-
 quest. The  percentage  of the impure
 and adulterated  foods  in the United
 States is today becoming simply enor-
 mous as compared with twenty, thirty,
 or forty years ago.
   Now, who are those who oppose this
 measure? There are a few classes. I do
 not  know of any  reputable manufac-
 turer who opposes it,  but  there are,
 first, the whiskey blenders. I had  a
 letter a short time ago, and "which, I
 think, I presented here before,  from
 the  National Association of Liquor
 Dealers, which they  sent out to  their
 trade, and  by which they  desired to
 raise the sum of $250,000. In that cir-
 cular letter they declare that they, by
 their efforts alone, had  succeeded in
 preventing  the  consideration of this
 measure in the  Senate.  I believe that
 to be wholly false. It was simply used
 as a method of securing subscriptions
 from the trade to carry on the crusade
 against a national law.
  Now, why are they  opposed to it?
 Simply because  instead of blending
 two or three different brands of  good
 spirituous  liquors, such as  will  stand
 the  test that  is required by the  Gov-
 ernment, they use a number of differ-
 ent  kinds of oils and flavors, and sim-
 ply  change the poorest liquor to  some
 other character or quality by the  infu-
 sion of these ingredients, and then sell
 it for the best character of whiskies.
                            [p. 1218]
 Mr. McCUMBER.
 *****
   The provisions of this bill, Mr. Pres-
 ident, are practically the same as they
 have been  for  the  last four years.
 There is  substantially  no  difference
 whatever. There are  some slight  addi-
 tions and modifications. I think when
 Senators  commence  to  study it out,
 while I have  no doubt  many of  them
 will consider that it ought to be modi-
 fied, those who have had the bill in
 charge  will cheerfully  agree to  such
 suggestions as they may make with the

-------
 STATUTES AND LEGISLATIVE HISTORY
                                 387
 intent to secure such  a bill as will be
 satisfactory, and it will result in  the
 final  passage of  a bill that will meet
 the purpose desired. It is not drastic in
 any of its provisions.          -,oim
                            LP- 1^19J
 *****
   It was upon the word "knowingly."
 We may look over the pure food bills
 of most of  the  States — I will take
 Kentucky, for instance, as the stan-
 dard, because I believe that the people
 of Kentucky have a  better food law
 than  any  other  State in  the Union,
 taken as a whole.
   The word "knowingly"  is not gen-
 erally used  in these  prohibitions. I
 have  heard of no dire effects because
 of the omission of that word in nearly
 all of the  food  laws  of  the States.
 I  desire to say freely to the Senator
 from Wisconsin that  I am afraid  the
 result of the  insertion of the word
 "knowingly" into the  section in which
 I  believe  it was inserted the other
 day  will open wide   the  gates   for
 any person almost to escape; that it
 throws  a  shield  around  the person
 who would  desire to disobey  the  law
 as it  would finally be in this bill.
   Now,  what is  the necessity of  the
 word "knowingly," as  applied, we will
 say, to the retail dealer? Of course,
 it will  be  claimed that  he  has  no
 knowledge of  the  inferiority, of  the
 misbranding,  or  of the adulteration
 of the  articles  that  he  uses, and,
 therefore, that he should be protected
 by the use of  the word "knowingly."
 But if the  Senator wiil  look at the
 whole bill it  will  be  seen that  ,the
 retail  dealer is absolutely protected,
 because from the wholesale houses or
 the  manufacturers with  whom  he
 deals  he may  secure, as a condition
 precedent to his purchase, a simple
guarantee  in writing  that the goods
 conform to the laws  of the  United
 States and particularly to this act.
 When he has done that he is absolute-
 ly  protected   without any  possible
 question.
   Mr. GALLINGER.  On that point—
   The  PRESIDING  OFFICER  (Mr.
 KEAN in the chair). Does the  Senator
 from North Dakota yield to the  Sen-
 ator from New Hampshire?
   Mr. McCUMBER.   With pleasure.
   Mr.  GALLINGER.  How  is  the
 guaranty from the wholesaler to  pro-
 tect the retailer if he is found guilty
 and is fined and imprisoned according
 to the terms of this bill?
   Mr. McCUMBER. According to the
 terms of the bill he can not be found
 guilty and  imprisoned if he has  that
 guaranty.
   Mr. GALLINGER.  I am not  sure
 about that.
   Mr. McCUMBER.   That is certain-
 ly the provision of the bill.
   Mr.  HEYBURN.  Section  10.
   Mr.  SPOONER.  Mr.  President—
   The PRESIDING  OFFICER.  Does
 the  Senator from North Dakota yield
 to the Senator from Wisconsin?
   Mr.  McCUMBER.  With pleasure.
   Mr.  SPOONER.  I  appreciate the
 force of the argument of the Senator
 from North Dakota as to the  danger
 of an improper use of the word  "know-
 ingly" in a bill of this  kind. The Sena-
 tor  entirely misapprehends  my atti-
 tude if he  thinks that I intended to
 advocate  that  qualification  every-
 where in his proposed statute. I sug-
 gested one  place in  which the com-
 monest  kind of justice to the people
 of the United States seemed to me to
 require that that word should be in-
 serted, and  it  arose out of this provi-
 sion to which  the Senator from Idaho
 refers in section 10:
  That no dealer shall be convicted under the
 provisions of this  act when he can establish a
 guaranty signed by the wholesaler, jobber, man-
 ufacturer, or other party residing in the United
 States, from whom he purchases such articles,
 to the effect that the same is not adulterated or
 misbranded within the meaning of this act,
 designating such article.
  Mr. McCUMBER.  I will say to the
 Senator I did not understand that the
word "knowingly" was limited  to that
particular condition.

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388
LEGAL COMPILATION—PESTICIDES
  Mr. SPOONER. Let me finish:
  Said guaranty,  to afford  protection, shall
contain the name and address of the party or
parties making the sale of such articles to such
dealer, and in such case said party or parties
shall be amenable to the prosecutions, fines, and
other penalties which would attach, in  due
course, to the dealer under the provisions of this
act.
  Under that provision of the bill  the
domestic dealer, the  dealer in  the
United States, may protect himself by
the guaranty of a domestic manufac-
turer, but what about  the dealer who
purchases  from  a  foreign  manufac-
turer?  He  is  not  protected by  the
insertion   of   the   qualifying  word
"knowingly," and yet  he is the man
above all others who should have  the
protection carried by that word thrown
around  him. Why?  We have laws  un-
der  which  the Department, so large
that I do not know how fitly to char-
acterize it  in respect to almost every-
thing that  is going on in this country
— the Agricultural Department — in-
vestigates  many things and certifies
as to the healthfulness of many things.
The Treasury   Department  also  has
many functions of that sort. Now, I
ask  the Senator if it be not true that
no imported food, liquor, or the third
article mentioned here, can be released
from the custody of the custom-houses
until the  Government  officials have
analyzed it, or a  sample of it,  and
found it to conform to the law or to
be  free from  poisonous ingredients,
and so forth? That is true, is it not?
   Mr.  McCUMBER.  That  is the  law
as it stands today.
   Mr. SPOONER. Very well. Now, Mr.
President,  every citizen of the United
States has a right to assume that the
men at tide water, at  the ports of
entry, paid by the United States to
make  examinations and analyses of
these  imported  articles,  have done
their duty, and it is a travesty on law,
on  good administration, on decency,
that a  man who buys and sells, be-
lieving  that the Government officials
at the  custom-houses have  done their
 duty under their oaths, shall be held
 down under penalty of imprisonment
 or fine  if they  shall not have done
 their duty, while men who buy from
 domestic manufacturers are protected
 immediately by a guaranty.
   So I said  to my friend from Idaho
 that I thought the amplest justice to
 our people (for this bill is full of pit-
 falls for the unwary as  almost  any
 bill of the kind must be)  required us
 to protect those who act in good faith
 as far as it is possible; and I suggest
 to my friend that as to  the  dealers
 who put upon the market articles im-
 ported which had already passed the
 scrutiny of  the  Government officials,
 he ought to insert the qualifying word
 "knowingly." I  thought he agreed to
 that.
   Mr. HEYBURN. Mr. President-
   Mr.  McCUMBER.  I  yield  to  the
 Senator from Idaho.
   Mr. SPOONER. That is the only in-
 stance.
   Mr. HEYBURN. I wish to call the
 attention of the Senator from Wiscon-
 sin to the fact that the bill  as  re-
 ported contains the word "knowingly,"
 page 2, line  22, and the  controversy
 the other day was  simply as  to how
 far that word was  applicable  to an-
 other provision  of  the bill.
   Mr. SPOONER. I  had not read the
 bill, and I asked the Senator whether
 it had been incorporated.
    Mr. HEYBURN. It was in  the bill
 as reported.  It  was merely a gram-
 matical distinction.
   Mr. SPOONER.  So the Senator
 from North Dakota understands just
 what I  meant by the insertion of the
 word "knowingly."
   Mr. McCUMBER. I have no objec-
 tion to  the word "knowingly," as ap-
 plied to those cases. I considered  that
 the  domestic retailer was sufficiently
 protected under the provisions of the
 guaranty, and the other was  already
 in the bill.

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STATUTES AND LEGISLATIVE HISTORY
                                389
  Mr.  SPOONER. It was  not in  the
bill last winter.
  Mr.  McCUMBER.  It is in this bill.
  Mr.  SPOONER. I asked the  Senator
from Idaho,  who has charge  of  the
bill, the  other day whether it was in
the bill now. He said it was, and I was
satisfied; but some question arose as
to whether it ought not to be again
inserted  in order to  apply  more fully
to the  case I am stating.
  Mr.  McCUMBER.  I have no objec-
tion to its being inserted at that par-
ticular place,  but my objection  was
urged  against the insistence not only
as I understood in the debate the other
day, but as  I  know  in  the   debate
which  took place at the close of  the
last session, that the word "knowing-
ly" should be inserted as a protection
against all the retailers.
  There  is a law  against selling adul-
terated milk. No  one ever heard  of
our  insistence that the word  "know-
ingly" should be inserted. If that were
done, as  I said,  it would open the gate
for the escape  of almost everyone of
these dealers. We have in  our State,
as  I said, a  prohibitory law  against
the  sale  of intoxicating  liquors.  To
meet that law nearly  all the great
brewers   have   manufactured what
they call "Pabst's malt" or somebody
else's malt.  A  few bottles are taken
to the  saloons—where we  have them
in our state. I  admit that we have
them, but there are very few of them.
Then  immense   quantities  of  beer,
purely  intoxicating  liquors,  are
shipped  to  the  same  vendor; and,
while  he may  have  this  malt upon
his shelf, the great bulk of his sales,
and practically  all his sales, are noth-
ing more than the ordinary beer that
is brewed at those great breweries.
  Now, when he  is arrested, charged
with the sale  of these intoxicating
liquors, he always falls back upon  the
proposition that he understood it  was
all this malt  and he  did not know he
was selling  any  real beer whatever;
he did not know that it was intoxicat-
ing.
  We have our proposed law so framed
that that excuse cannot be made, and
I know of no reason, Mr.  President,
why you  should open wide the  gates
for fraud of that character. If we use
the word "knowingly" in  all cases  of
that kind in  our statutes  against
offenses  of this  character, then  prac-
tically all the defendant  would have
to do would be to substitute the  crime
of perjury for the crime  of which he
was charged,  and he would go scot-
free.
  The  VICE  PRESIDENT. The hour
of 2 o'clock having arrived, the  Chair
lays before the Senate the unfinished
business, which will be stated.
  The  SECRETARY. A  bill  (S.  529)  to
promote  the national  defense, to cre-
ate a naval reserve, to establish Amer-
                           [p.  1220]
ican ocean mail  lines  to foreign mar-
kets,  to   promote  commerce,  and  to
provide revenue from tonnage.
  Mr.  MALLORY. How much longer
does the  Senator from North Dakota
desire to  speak?
  Mr.  McCUMBER. I shall not com-
plete my remarks to-day, but I should
like to spend  about three minutes  in
one explanation, and then I will close.
  Mr. MALLORY. Very well.
  The  VICE-PRESIDENT. Without
objection, the unfinished business will
be  temporarily  laid  aside  until the
Senator from North Dakota concludes
his remarks.
  Mr. McCUMBER. Mr. President, the
remark of the  Senator from Wisconsin
[Mr. SPOONER] a  few moments ago
was to the effect that this bill is full
of pitfalls for the unwary.  I wish to
say candidly to the Senator from Wis-
consin  that I do not believe he  could
make or  conceive  of  a bill that was
intended  to accomplish a  certain ob-
ject that  is more  carefully drawn to
protect the innocent or unwary.  Now,
how is this done? In the first place,

-------
390
LEGAL COMPILATION—PESTICIDES
every  offense must be tried by  the
court.  How does it get to the court?
The  Secretary of Agriculture may
make  an examination of the chemi-
cal, he may make  examination of  the
drugs  and the foods and the liquors
that are manufactured for  interstate
commerce. If he himself concludes that
any food or  any drug does not mea-
sure up to the standard that is required
in these  definitions — and  they  are
standards based upon common  sense
and common judgment — he does  not
immediately  direct the arrest  of  the
manufacturers, but he  is required to
give them notice that in his opinion,
and upon a  chemical examination of
their  products, they do not comply
with the law. A hearing is then given
to the manufacturers and  the  testi-
mony taken;  and if the manufacturers
themselves satisfy the Department that
their products are  pure, that they  are
wholesome, that they are not adulter-
ated,  that they are  not misbranded,
that is the end of it.
  If they seriously  differ,  then  the
testimony is  simply submitted to  the
United States  district  attorney,  and
there  a  second  safeguard  is thrown
around it. The United States district
attorney  does not need to act even
upon  the advice of the Secretary of
Agriculture,  but  he  investigates  the
subject himself and determines in his
own mind whether or not it is a case
that ought to be prosecuted.  If he finds
and  believes that  in a court he  can
establish beyond any reasonable doubt
that the manufacturers are guilty of
the offense, he may then institute  the
proper proceeding. Then it  has  to go
before the grand jury, and they again
will  have to act upon the same sub-
ject. Even then, if it be found that he
is selling an  unwholesome or adulter-
ated article,  he must still produce in
court  this little  guaranty  from  the
party from which he purchased, which
would  be a complete  defense.
  If anyone  can possibly conceive of
 any  method  by  which  an innocent
 manufacturer or dealer may be more
 fully protected than is contained in
 the provisions of this bill, I certainly
 should like to hear from him.
                            [p. 1221]

            PURE-FOOD BILL
   The VICE-PRESIDENT.  The Cal-
 endar is in order.
   Mr. HEYBURN.  I ask unanimous
 consent  to call up the bill (S. 88) for
 preventing  the  manufacture, sale, or
 transportation of adulterated or mis-
 branded  or  poisonous  or deleterious
 foods, drugs, medicines,  and liquors,
 and for  regulating traffic therein, and
 for other purposes.
   There being no objection, the Sen-
 ate, as  in  Committee  of the  Whole,
 resumed the consideration of the  bill.
   Mr. HEYBURN. I yield to the Sen-
 ator from North Dakota [Mr. McCuM-
 BER], who desires to submit some re-
 marks.
   Mr.  McCUMBER.  Mr. President,
 when I  was last  discussing this sub-
 ject, the Senator from  New  Hamp-
 shire  [Mr.  GALLINGER],  who  I  am
 sorry to see  is not now present, re-
 ferred to a certain  publication in the
 National Druggist  with  reference to
 the action  of the food commissioner
 of the  State of  Minnesota, and de-
 clared his hope that this bill was not
 so drawn that it would  allow  such
 offenses  as  had  been committed in
 that State. He referred to the National
 Druggist as a magazine published, I
 would say,  in the interest of patent
 medicines, etc., as a reputable  publi-
 cation.  The  Senator from Minnesota
 [Mr. NELSON] felt called  upon to de-
 fend the action of  the food commis-
 sioner  of that  State.  I  wish  to  say
 simply a word with reference  to  this
 publication  and the  influence it should
 have upon  the  Senate of the  United
 States or the members of the Senate
 in the consideration of this most im-
 portant  bill.

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 STATUTES AND LEGISLATIVE HISTORY
                                  391
   I do not desire to challenge to any
 extent the  good reputation  of  this
 particular  publication.   I  prefer to
 leave every person to exercise his own
 judgment upon what is  reputable and
 what is not reputable. It is apparent
 from the  publication itself  that it is
 the champion of wide-open adultera-
 tions and frauds  in the matter of food
 and drug products; that it is the enemy
 of all good pure  food and drug legis-
 lation; and, if I  may judge from its
 advertisements, that it is a purveyor
 of all vile and fraudulent alleged reme-
 dies. One can not  but  be impressed
 with the truth of this if he will take
 up one by one the pages  of advertise-
 ing matter and then take up some of
 the  investigations  into  those  things,
 that are  advertised as worthy of the
 consideration  of  the public, found in
 the  public documents of  the State of
 Massachusetts. I will place side  by
 side  this journal  and the declarations
 made by the  chemists  of the  State
 of Massachusetts, appointed or chosen
 for that purpose, and will let the Sen-
 ate  itself decide,  or anyone else who
 is interested  in pure-food legislation,
 which is the most reputable.
   But that we may understand fully
 another force  which is at work  today
 against this  character of legislation
 and at the  same  time understand the
 animus of this publication against all
 pure-food legislation, I desire to  call
 attention to page 204 of the number
 for July, 1905, and we will understand
 from this  the object of  a certain or-
 ganization  which  is now  in the city
 and whose efforts  are  to defeat the
 legislation  which  we are seeking to
 have enacted.  On page 204 I find this
 heading: "How to fight pure-food leg-
 islation." It goes on to say:
  About fifty  representatives of food products
 met at the Waldorf Hotel in New York a week
 or two ago and formed a National Food Manu-
facturers' Association. The object of the associa-
tion, as set forth  in the call that was issued, is
to obtain the cooperation of the various food
and drug industries  of the country  "in an
endeavor to secure a  national  food law at the
 next Congress, which law shall be one that will
 protect the public from unwholesome and adul-
 terated foods and drugs, and at the same time
 conserve the rights and legitimate interests of
 the food  and drug industries of the  United
 States."
               for the  organization  was
               . Thomas E. Lannen, of Chi-
  That is said to be the object of this
organization.
  The necessity
summed up by Mr.
cago, who said:
  "There will be a
Congress. Of that
we must decide is,
manufacturers or
                food law enacted at the next
               there can be no doubt. What
              , shall it be a food law of the
               of the food commissioners?"
   Now, knowing the constituent  ele-
 ments  of that association,  reduced to
 simple English it means this: Will it
 be  such  legislation  as  the  States
 themselves have  seen fit to  adopt in
 declaring that certain adulterated  and
 misbranded  goods  shall  not be sold
 within the borders  of the State,  or
 will it be  such legislation as will  en-
 able the manufacturers  of  jellies and
 preserves  and other such products to
 use aniline dyes,  to use coal-tar  prod-
 ucts, in the preservation of their par-
 ticular products, and also to substitute
 any other food product  for the  prod-
 uct which is advertised  by  them  as
 the  particular thing which they  are
 selling ? That to  me, Mr.  President,
 is what the real issue is in  a nutshell.
   Now,  how is  this  to  be  accomp-
 lished ? By certain amendments which
 this organization is to supply Members
 of Congress with from  time to time
 and also by a separate bill if possible.
   While the National Druggist agrees
 with  them in much of what they  are
 doing, so far as their attempt to pre-
 vent  any legislation  is  concerned, it
 goes on to say:
                             [p. 1414]
  In spite of all this, however, we believe that
 it is the part of wisdom to fight  the proposed
legislation on principle, to make no compromise
whatever with the scamps who are behind it,
and to refuse to treat  with them on any kind of
terms.
  Speaking then  of  this Congress, it
 says:
  So far, their opposition has been effectual in

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392
LEGAL COMPILATION—PESTICIDES
forestalling such legislation altogether, and the
grafters who have been endeavoring to obtain
it will probably agree to any measure that may
be proposed if it will secure the cooperation of
those who have hitherto stood in the way and
foiled their designs.

  Again it says:
  Therefore, as we have said, it seems to us that
the wisest course  is to oppose all laws which
have  for their aim  the regulation of private
enterprise, under  whatever pretext they  may
be urged.

  And again:
  There is no demand whatever for such legisla-
tion from the general public, who are supposed
to  be suffering so  much from impure  and
adulterated foods  and drugs. Then why should
Congress concern itself  with an  evil about
which those whom it is supposed to affect so
injuriously make no complaint?

  Yet it is said that this is a reputable
magazine,  a magazine which declares
that so long as  the  people  submit to
crime  and  injustice, no matter how
apparent it may be, neither Congress
nor any other  legislative body should
interfere with  them in  the slightest
degree in perpetrating such injustice.
  This  journal also  attacks all pure-
food officials as  criminal grafters.  I
call attention to the National Druggist
of July, 1905, page 205.
  The Senator himself, of course, says
that  he sees  no  particular dangers
from  the food products that are gen-
erally in use; and  yet, Mr.  President,
one can not look over the United States,
viewing the great army of physicians,
viewing the hundreds of thousands of
drug  dispensaries, viewing  the  great
number of advertisements  in  every
magazine  and in every  paper in the
United States,  declaring the wonder-
ful medicinal qualities of an  innumera-
ble character  and  kind of cure-alls,
without becoming  convinced that the
health  of  the people themselves is a
material thing  that should  be looked
after by legislators.
  Mr. President, we are coming more
and   more  to  understand  that  our
health  depends more upon  the  char-
 acter  of food  we consume than  upon
 the medicines  that  are given to  allay
 and destroy diseases.  We are coming
 more  and more to  understand that a
 proper diet, varied  to  meet the condi-
 tions  of  each  individual, is not only
 the greatest panacea for, but also the
 greatest  preventive against the evils
 with  which humanity  seems  to  be
 afflicted.
   If that  be true,  I insist  that  there
 is a moral duty resting upon the Gov-
 ernment  to insure, so  far as  it  is
 possible to do it, the health and  com-
 fort of every  citizen constituting the
 public. How may it  do  this ? It can not
 prescribe  a dietary course for every
 individual. It   can  not  declare  what
 this person  or that person shall con-
 sume. But, Mr. President, what it can
 do,  and what  it morally ought to  do,
 is  this: It ought to protect the  indi-
 vidual against all character of impo-
 sition and fraud, so that entering into
 the markets he may  purchase  those
 things without fear which he knows
 to be  conducive to his health and com-
 fort, and above all  that he  may  avoid
 those  things  which he  knows to  be
 detrimental.
   But, Mr. President, at this age no
 man  can possibly   prepare his own
 food or his own drugs. He is therefore
 at  the mercy  of his fellow-men. His
 life is threatened  at  every point by
 the greed and  the avarice of the manu-
 facturers  of  drugs and many  kinds
 of food products.
   Mr. President, has food adulteration
 and  drug adulteration  reached  such
 proportions  in the  United States that
 it demands national consideration and
 a national  attempt to  eradicate it?
 The very fact that  nearly every  State
 in   the  Union has  passed  pure-food
 laws,  the very fact that their  com-
 missioners are working night and day
 to  check the great  evil of misbranded
 and adulterated articles of food which
 are pouring over the  border lines  of
 the States,  and the fact that organi-

-------
 STATUTES AND LEGISLATIVE HISTORY
                                393
 zations are formed everywhere in the
 United States to check this great evil,
 seem to be proof conclusive not  only
 of its existence but also of its  danger.
   Mr. President, several years  ago the
 Secretary of Agriculture  desired  to
 make an estimate  of  the  proportion
 of adulterated  and misbranded foods
 that were sold  in the  United  States.
 He called to his aid the food commis-
 sioners of the  several States  having
 food laws; and, in addition to his own
 investigation, he  showed as a result
 that about 30 per cent in value of all
 the food products in the United States
 were either adulterated or misbranded.
 In order to be  conservative,  he  cut
 that in  two;  he  brought it down to 15
 per cent, and  even at  those  figures
 the amount  of  adulterated  and mis-
 branded articles which went into com-
 merce every year was  $1,175,000,000.
 Today it is  safely  estimated  that it
 is more than $3,000,000,000 per  an-
 num. Just think of it!  The American
 people pay out every year for fraudu-
 lent and for adulterated articles of food
 a sum sufficient to pay the entire  ex-
 penses of the civil war; they pay out
 enough  every year, Mr. President, to
 pay the national debt three times over,
 and all  for these adulterated and mis-
 branded articles.
   Now, if we will bear in  mind that
 from 50 to 60  per cent of  our food
 products  consists of flour,  potatoes,
 fresh vegetables, eggs, and a little
 fresh meat, we will  see that of all the
 remaining many hundreds of articles
 of food the greater proportion of them
 are either adulterated  or misbranded
 articles.
   I referred  heretofore,  Mr.  Presi-
 dent, to  the report of the commissioner
 of food  of my own State. He made an
 examination of hams and other meats,
which were imported into the State,
 and found that every  ham  or rib—
 which had been  imported—which was
 examined contained from  25  to  45
 grains of boracic acid.  I have  stated
 before  that when given for  medicinal
 purposes from  five to ten grains of
 that  drug constitute a daily dose. He
 examined the potted chicken and pot-
 ted turkey put up in cans and shipped
 into  the several States, and he  could
 not  find  a single can in the  entire
 State which  contained the slightest
 amount of either chicken or turkey. As
 I have said before, it may be that calf
 neck  and  pig jaw are just  as good;
 that  they are just as wholesome as
 chicken  or turkey;  but what I insist
 upon is that  it is not what the pur-
 chaser  thinks he is buying,  and that
 he is  entitled to have for his  good dol-
 lar good meats  that he thinks he is
 purchasing, and not counterfeits. That
 is all that those who stand by this
 proposed pure-food law insist shall be
 done.
  Let me give another case, one which
 I cited before, and it brings us back to
 this  question of food. Perhaps one of
                            [p. 1415]
 the most common of all the dangerous
 diseases in this country is  diabetes.
 We know that physicians prescribe for
 this ailment  a diet—a  diet of gluten
 flour. A physician prescribes that for
 his patient. The patient goes to any of
 the stores in the city of Washington or
 in any of the great cities and calls for
 gluten flour. He gets a package of 5 or
 10 pounds, which is marked "gluten
 flour." He takes that, and he follows
 out the prescription of his physician.
 In a short time he dies. The physician
 does not understand why his  prescrip-
 tion  has  not  had better results. He
 examines the contents of this package
 which is marked  "gluten flour," and
finds  that there  is  no gluten  flour
whatever in  it.  Is this true?  Doctor
 Bigelow  went  around the city  of
 Washington  a  short  time  ago and
 called at  thirteen different stores  to
purchase thirteen packages of gluten
flour,  and  out  of the entire thirteen
but two  or  three  contained  gluten

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394
LEGAL COMPILATION—PESTICIDES
flour  at  all.  All  the  remainder were
frauds.
  If I take the reports of Massachu-
setts—as good a  State as that is, and
where they attempt to enforce their
laws, as  I have  shown here  already
this morning—I  find that there  is
scarcely  a drug in the market that is
not adulerated, scarcely a can  of fruit
or a can of preserves or canned goods
of any kind where a large proportion
of them  is not adulterated. Mr. Presi-
dent, it seems to me that this is suffici-
ently  serious  to  challenge the atten-
tion of the American people.
  Now, let me give an illustration of
why we  need national legislation. To
do  that  I borrow from a  statement
made by one of the pure-food commis-
sioners,  or, rather,  the  secretary  of
the State of Kentucky. He states that
in March, 1901, while standing in front
of  a  grocery  store in Morgansville,
Ky., a woman and her litle child came
in with a basket and purchased a num-
ber of articles of food for their table,
consisting of lard, of sirup, of  jelly, of
sausages. The price amounted to $1.80.
She gave the grocer all she had—$1.57
—and went away indebted  to  him 23
cents.  Mr. Allen  immediately  pur-
chased a quantity of each of those
articles and analyzed them. He found
the sirup was 70 per cent glucose, that
the jelly contained nearly everything
but fruit juice and was colored  with
coal-tar  dye, the sausage contained an
antiseptic and the lard consisted of
beef stearin and cotton-seed oil mixed.
Had  she gone into the  market and
bought those articles for what  they
were, at the very highest retail prices
they would not have  cost her over 90
cents, and she would have gone away
with 67 cents in her pocket, instead of
being indebted to the grocer 23 cents;
and this, Mr. President,  independent
of  the  fraud that  was  perpetrated
upon her, independent of the  coal-tar
dyes,  which her children were  com-
pelled unconsciously to consume.
   I know our  opponents say, "You
 have got pure-food laws in about two-
 thirds of the States and you have got
 commissioners to enforce them; why,
 then, do they not exterminate these
 evils?"  That can be easily explained
 by taking the very case which has been
 mentioned. The  lard which was pur-
 chased from  the retailer in Kentucky
 was  manufactured  in  St. Louis, the
 jelly was manufactured in Indiana, the
 sirup was manufactured in Ohio, the
 sausage  was  manufactured  in Chi-
 cago. Every one of these articles was
 manufactured in a State outside of
 the State of their consumption. So, if
 you got after any man in the State of
 Kentucky,  you  would get after the
 innocent retailer. So it is the manufac-
 turer that must be reached.
   I have already explained  that in
 the construction of the interstate-com-
 merce law it has been declared that
 the term "commerce" not only covers
 an article in its transit from one State
 to another, but it protects and shields
 that article until it is sold in original
 packages in the State of its consump-
 tion; and then  if you can find it you
 can punish the innocent retail dealer
 for selling it, even if he was  innocent
 of knowledge of its  impurity.
   It will be seen, therefore, Mr. Pres-
 ident,  that  the root of the evil  is
 planted in that territory over which
 the State  has  no  control and over
 which Congress has complete control
 —that is, the jurisdiction over inter-
 state  commerce.
   There is  another reason  which  I
 desire  to urge here, and that is the
 very moral reason that was suggested
 by the Senator from New Hampshire
 [Mr. GALLINGER] the other day. I want
 to  say,  Mr.  President,  that  you
 can not  for years surround  a people
 with crime and  deceit and imposition
 on every side without in time unconsci-
 ously affecting the moral  character
 of the  people.  Constant association
 with crime and deceit soon dulls our

-------
 STATUTES AND LEGISLATIVE HISTORY
                                395
senses of offenses  of  that  character.
Mr. President, for that reason alone I
think it becomes a moral duty for the
nation itself to take hold of this ques-
tion. Why? Does it not create an abso-
lute disrespect for  all law when we
severely punish a person for a breach
of what is right in  one respect while
on the other hand we do not  attempt
in the slightest degree  to punish per-
sons guilty of other offenses?  What
right, Mr. President, has the  Govern-
ment to send me to the penitentiary
for five or ten years for trading, we
will say, a silver dollar which is one-
half lead to  a vender of sirup who
gives me "pure maple  sirup" which
consists  almost  entirely of  glucose,
with a little of what is called "maple
flavoring?"  If I should be punished,
Mr. President, by imprisonment of ten
years for passing a dollar which was
50 per cent good, then I would ask in
reason why a man should not be pun-
ished twice the length of time for giv-
ing  me something  which  was  abso-
lutely a fraud from beginning to end?
  The American people have submitted
to this. They generally submit to fraud
and imposition for a great while before
they awake to it. They  have  been so
used to being  defrauded in what they
purchase in drugs and foods that they
for years have thought  there was no
possible remedy, and they would take
it as a matter of course, but they  are
waking up to the imposition. The fact
that the reputable  magazines  in  the
country and the reputable newspapers
in the country are insisting upon some
character of action  seems to me to be
the  strongest proof that the  people
have made up their minds  that they
will  no longer submit  to this impo-
sition.
  Mr. President, that is all I desire to
say today upon the general features of
the bill. We desire to get a bill through
here that every Senator can feel will
bring about the very best results with
the  least possible injury to any person
or to any business; but if we  stand
back and say that we will not pass a
bill  that interferes  with  fraudulent
businesses of any kind, then we shall
never  in the world  get any bill
through.
   As to the association to which I have
referred, I can not but feel that while
it sails  under a banner which  pro-
claims its desire to  get a good pure-
food  law through Congress, the real
intent and purpose,  or at least  the
effect of  its  action,  would be to pre-
vent pure-food legislation of any char-
acter whatever. I can cite one example,
and that is an amendment which says
that they shall file  the ingredients of
the composition which they sell to the
public with the Secretary of Commerce
and Labor, and that the secrecy of that
shall be entirely inviolate. Therefore
they  can  call their  goods anything
they  may have a mind to,  under  a
trade name,  and that would  prevent
any State official from in  any  way
interfering with them in the first in-
stance and preventing their  sale  in
the  State. Under an amendment  of
that kind they can  simply use all  the
coal-tar  dyes they  desire;  they can
take  a  little  timothy  seed,  they can
take a pail of glucose, they can color
it to represent the strawberry color,
give it a little flavoring, throw in tim-
othy  seed  to  give it  a little  appear-
ance of strawberry,  a little clover seed
if they  want to  make raspberry jelly
out of it, and if they file the  composi-
tion with the Secretary of Commerce
and  Labor no one can  question their
right to import that into any State.
  This bill seeks not, Mr. President,
to interfere with any legitimate busi-
ness,  but it does seek to  protect the
public, and we sincerely hope that if
there is  a prospect  now of bringing
this  matter to a vote before  the Sen-
ate action may be taken, and that the
careful  and conscientious attention of
every Senator who desires  to get  a
good pure-food law through Congress
may be directed to  that end.
  Mr.  HEYBURN.  Some days ago,

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396
LEGAL COMPILATION—PESTICIDES
Mr.  President, I gave  notice that I
would at an early day ask that a time
be fixed  to  vote upon this bill. This
morning I ask unanimous consent that
the bill may be taken up for the con-
sideration of the amendments of the
bill,  and  that that consideration shall
continue  on the 2d day of February
until the bill is disposed of.
  The VICE-PRESIDENT. The Sena-
tor from Idaho asks  unanimous con-
sent that the  bill  before  the  Senate,
together  with  the  amendments then
pending, may be voted upon on the 2d
day of  February next? Is there
objection?
  Mr. LODGE. I have  no desire per-
sonally to make any objection to fixing
a time that is agreebale to other Sen-
ators;  but  the  Senator from  Maine
[Mr. HALE], who is detained at home
by illness, before he left asked me to
say that he was very much interested
in this bill,  and that he  hoped no time
would be fixed until he  could have an
opportunity to come back  and further
examine  and discuss the bill. I person-
ally have no objection to fixing a time
to vote, but, in his absence, I hope the
Senator will not ask that a day be fixed
now, and that he  will communicate
with the Senator from Maine before
he does ask  it.
  Mr.  HEYBURN. Mr. President, I
had  not  observed,  when I asked for
unanimous  consent, that the  Senator
from Maine was not present. I think it
might  be said that I had an under-
standing with the Senator from Maine
that I would  not ask in  his  absence
that a time be fixed for a vote on the
bill. I  will  withhold  the  request for
unanimous consent  at this time.
  Mr.  SPOONER.  Mr.  President	
  The  VICE-PRESIDENT. Does the
Senator  from Idaho yield to the Sena-
tor from Wisconsin?
  Mr.  HEYBURN. Does  the  Senator
desire to speak on the pending bill?
                           [p. 1416]
  Mr. SPOONER. I do desire to speak
on  the  bill, but unless the  Senator
 desires to proceed with its discussion,
 I thought I would venture to address
 the Senate briefly on another subject.
   Mr. HEYBURN. If the Senator will
 indulge me a few moments, then I will
 yield.
   Mr. SPOONER. I can as well speak
 on this bill as on any other.
   Mr. HEYBURN.  The bill  is before
 the Senate, and I do not want to have
 it laid aside for a few  moments yet.
   Mr. President, as the consideration
 of this bill proceeds new objections are
 raised from  day to day by  different
 Senators—of  course in  good faith—
 which it seems wise to consider with-
 out  waiting  for the final discussion
 upon the bill.
   It has been suggested  that this pro-
 posed legislation partook too much of
 the paternal in character and that it
 was not necessarily one of the func-
 tions of Congress to determine what
 may be designated as the small details
 of the public interest as it affects pri-
 vate  individuals. I believe that one of
 the primary and most sacred duties of
 a legislative body governing and mak-
 ing  laws for  a country such as ours
 is the consideration of private inter-
 ests  relating to the welfare  of  the
 individual. Of course, it seems to be
 more  of a  legislative  function upon
 casual glance to deal with internation-
 al affairs, with great financial prob-
 lems,  with high-sounding legislative
 terms, but we are here primarily,  Mr.
 President, for the  individual  people.
   The word "government" is continu-
 ally  misapplied. The  people are  the
 government.  The people govern them-
 selves. Sometimes Congress  conceives
 the idea that  Congressmen govern the
 people; sometimes the Executive would
 seem, from the acts of the Executives
 —and I do not refer especially to the
 present  head  of the executive depart-
 ment  of the  Government—but, I re-
 peat, sometimes the executive depart-
 ment  of the Government would seem
 to consider that it  governed the peo-
 ple. Sometimes it might appear that

-------
 STATUTES AND LEGISLATIVE HISTORY
                                397
the  other  coordinate  branch  of the
Government, the judiciary, thought it
governed the people. Neither of these
coordinate  branches of the Govern-
ment governs  the people. They are
only  the voice  that speaks and the
hand that  writes the law.  It is the
people,  speaking through  these bran-
ches of the Government, that  govern
the people themselves,  and when the
voice of the people is raised  in behalf
of a  measure  of legislation, we can
not,  as  the authorized representatives
of the people, ignore that voice.
  Now, I appeal to Senators,  has there
ever been in the history of this coun-
try a more universal demand for ac-
tion  upon the part  of Congress  than
the demand that has gone up  from one
end  of  the country , to  the  other in
regard  to  legislation upon the pure-
food  question?  It affects  the  people
more than the river and harbor bill; it
affects the people more than the public
land  question;  it affects  the  people
more than  the relations between this
country  and  some  foreign  country,
because, unless  the  people are safe-
guarded in  their  individual  rights,
they care but little  for  the  questions
which are sometimes considered to be
of larger importance. So  I  feel this
morning like  invoking  that earnest,
prompt  consideration and  determina-
of this question which befits  the deal-
ing with a question so near  to the
people as is this.
  Mr. President, I have  not gone into
details as to the specfic articles  that
are foisted upon the public because of
the want of protection at the hands of
the National Government. The Sena-
tor from North Dakota [Mr. McCuM-
BER]  has given a very excellent exposi-
tion  of  the evils that this legislation
is sought to remedy. I class  the  man
who  foists  a bogus or an  adulterated
drug or  medicine upon the market with
the man who poisons the  spring out
of which the unknown  public drinks.
He does not know who  his victim is
going to be when he does it.  He man-
ufactures it for individual gain  and
selfishness;  but when  the  physician,
standing  at the bedside  of the sick,
diagnosing the case, knowing from his
education in the science  of medicine
that a certain drug will  bring  relief,
writes a  prescription, with  instruc-
tions that that certain drug be pro-
cured, contemplating it in its purity,
measuring  its effect  because of his
knowledge of it in a pure  state,  and
that prescription is taken to the drug
store, and, instead of being compound-
ed of the drugs that the physician had
in mind when  he wrote the prescrip-
tion, it is compounded of  a substitute,
either an absolute fraud  or a delete-
rious composition that will  produce
exactly the  opposite result  from that
contemplated  by the physician when
he wrote the prescription, what is the
effect? The  medicine is taken to the
bedside of the helpless sick. It  is ad-
ministered by the nurse  in the hope
that  it may  accomplish the result
which the-physician  had in mind; but,
on the contrary, because of the fact
that it is a fraudulent substitute for
the real  panacea for  the ill,  the pa-
tient dies. Can you imagine a condition
of affairs crying louder for a remedy
than that?
  Aside from the question of  fraud
from a financial standpoint, aside from
the question of substituting  a  medi-
cine that, perhaps,  does not cost one-
tenth what  the  real substance  would
cost,  aside  from  the fraud  that is
based upon  the gain in price  between
the real  and the bogus  article,  the
effect upon human life is  as serious a
question as  could be presented in the
consideration of a public measure ask-
ing for relief through legislation at
the hands of Congress.  Is that  too
small a question for Congress to deal
with?
  Only last  Sunday I picked up one of
the great journals of this country that
ranks among the very best, and I found
a very excellent little editorial com-
mending   pure-food  legislation, com-

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398
LEGAL COMPILATION—PESTICIDES
mending the  regulation and restraint
of these hogus articles, and then in the
same paper I counted sixty-two patent-
medicine advertisements,  and adver-
tisements of the  worst frauds  that
could be imagined.  I appeal to  the
newspaper  fraternity  of the country
to assist us in  a real and  substantial
manner in settling this question.
  The  Post-Office  Department could
exclude from the  mails these papers
that carry upon their pages the tempt-
ing  inducements to those who  have
real or imaginary ills to invest their
money in these poisonous, deleterious,
and fraudulent substances.  That is
one way to reach them.
  Congress  alone  can make effective
the laws of the several States prohib-
iting the manufacture or  sale of this
class of articles. The States are help-
less under the law. Under  the Consti-
tution, as it has been construed by the
Supreme Court  of the United States,
these goods may go from one State to
another in  unbroken packages, and it
is not until the package is broken that
the jurisdiction of the State attaches.
The State laws  are helpless. There is
a cry from every State in the Union—
I think I may say that I have within
my possession a demand from nearly
every  State  in  the Union—that  the
Congress of the United States should
supplement their legislation and afford
relief  against the impositions that
come from one State to another.
  Seldom are these forbidden articles
sold in the State of their manufacture.
Seldom do they bring themselves within
the  law of  the State which would
regulate them.  What higher duty can
Congress perform  than that of assist-
ing  the  State  governments  in  their
local self-government in a matter which
affects the people so closely?
  This principle of self-government to
which  I  have referred begins in  the
home.  It begins with the individual,
and it  rises through the home and the
local community and the various poli-
tical governments until it reaches here,
 and we are the last arbiter and should
 be the first to afford relief.
   Mr. President, I do not intend unduly
 to abbreviate the consideration of this
 measure. So long as any Senator de-
 sires to speak upon it, I am more than
 content that is should rest in the con-
 sideration of this body; but  when the
 hour arrives that it is evident that no
 Senator desires to speak further upon
 it, which is evidence that they have no
 further  consideration to a<}d to the
 wisdom  of this body  in disposing of
 it, I do hope the Senate will  promptly
 take a vote  upon it,  and say to the
 people that we have time to  attend to
 their wants, we are here to aid not
 only the individuals but the States,
 representing the individuals, which can
 legislate for themselves only within a
 limited scope. I hope  the Senate  will
 act promptly upon this matter, and I
 say now that  at  a  very  early  day I
 shall again  ask the Senate to fix  a
 time for the final consideration  and
 determination of this question.
                            [p. 1417]
           PURE-FOOD BILL
   Mr. HEYBURN. Mr.  President, I
 should like at this time to call the at-
 tention of the Senate to the considera-
 tion of Senate bill 88. I ask that it be
 laid before the Senate.
   The VICE-PRESIDENT. The Sena-
 tor  from Idaho asks that Senate bill
 88, the title of which will be stated,
 be now laid before the Senate.
   The SECRETARY. A bill (S. 88) for
 preventing the  manufacture, sale, or
 transportation of adulterated or mis-
 branded  or  poisonous or deleterious
 foods, drugs, medicines,  and liquors,
 and for regulating traffic therein, and
 for other purposes.
   Mr. HEYBURN. Mr.  President, I
 shall not undertake again to present
 primarily the  questions  involved in
 Senate bill 88, but there have been sev-
 eral amendments proposed to the bill,
 and the time for its final determina-
 tion being near at hand, it seems to

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 STATUTES AND LEGISLATIVE HISTORY
                               399
 me that,  in  the  interest  of  avoiding
 any haste in the  consideration or dis-
 position of those amendments, it would
 be well to take them up for such con-
 sideration as may be given them dur-
 ing  the  remainder  of the  morning
 hour.
   Mr. President,  there was some con-
 fusion when  I rose to  ask unanimous
 consent for the consideration of the
 bill  (S. 88)  for preventing the manu-
 facture,  sale,  or transportation of
                           [p. 2643]
 adulterated  or misbranded or poison-
 ous or deleterious foods, drugs, medi-
 cines, and liquors, and for regulating
 traffic therein, and for  other purposes,
 and  I do  not know that the record is
 plain in that regard. Therefore  I ask
 that the bill may be formally taken up.
   The VICE-PRESIDENT. The Sena-
 tor from  Idaho asks unanimous  con-
 sent for the  present consideration of
 the bill named by him. Is  there objec-
 tion.
   There being no  objection, the Sen-
 ate, as in  Committee of the Whole, re-
 sumed the consideration of the bill.
   Mr.  HEYBURN. Now, Mr. Presi-
 dent,  I will resume.
   It is  my purpose  this  morning to
 take up for brief consideration  some
 of the amendments that have been sug-
 gested, in order that any Senator who
 has proposed an  amendment or who
 desires to propose one may,  if he so
 choose, have it taken up for considera-
 tion  at this  time in  order  that the
 consideration of amendments  may not
 be crowded into the last hours of the
 consideration of this measure.
  Mr. FORAKER. Mr. President	
  The VICE-PRESIDENT.  Does the
 Senator from Idaho yield to the Sena-
 tor from Ohio?
  Mr. HEYBURN. Certainly.
  Mr. FORAKER. If it will not inter-
 rupt the  Senator—and I  presume it
will not, for  I understand he desires
to know what amendments are to be
offered to the bill—I will say that  I
have been requested by a great many
 of my constituents to offer an amend-
 ment which I will send to the desk in
 order that it may be read.
  The  VICE-PRESIDENT. The
 amendment intended to be proposed by
 the Senator from Ohio will be stated.
  Mr.  LODGE.  Mr. President, I rise
 merely to make  an inquiry. Is not  the
 amendment that I offered to be bill on
 page 8 now the pending amendment?
  The VICE-PRESIDENT. The Chair
 understands that it is.
           *****
  Mr.  LODGE. I see the language as
 the Chair quotes it,  but  certainly the
 understanding was that that  day was
 to be devoted to the bill, to the discus-
 sion of the bill and amendments, and
 that we were to vote  upon it before
 adjournment.  As it  is  worded, the
 strict letter of the agreement  would
 require that we begin to  vote immedi-
 ately  after the routine morning
 business.
           *****
  Mr.  HOPKINS. I desire to ask if
 the construction  of the unanimous-
 consent agreement would not be that
 after the morning hour the bill  is to
 be taken up, and  we are to proceed to
 discuss  the amendments  and  vote  on
 them, and there is no limitation  as to
 when  the final vote shall  be taken?
 Will not that continue until  there is
 full debate on each  amendment, and
 then the vote will  come on  the bill
 itself	
                          [p. 2644]
           *****
  Mr. MONEY.  Bills of  this charac-
 ter, as I remarked a while ago,  have
 been going to the Committee on Agri-
 culture.  Since this  new  Department
 was organized they have gone to the
 Committee on Manufactures, operat-
 ing in connection with that  Depart-
 ment. There is no necessity that I can
 see why this bill should go to the Com-
mittee  on  Manufactures  unless  the
whole subject is  transferred  to  that
 Department, I know that  the way this

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400
LEGAL COMPILATION—PESTICIDES
matter has been conducted heretofore
has been that the chemist of the Agri-
culture  Department, in  conjunction
with those appointed by the Secretary
to assist him, have never made, as far
as I could ever learn, any quantitative
analysis of foods, drinks, or medicines
or anything else. They have made a
qualitative analysis, and  under  that
a great many evils have been done and
great losses  have  been incurred by
manufacturers   who  were  perfectly
honest in the preparation of their food
products.
   For instance, in undertaking to ana-
lyze a food product, the chemist  desires
naturally  to find whether there  is any-
thing whatever  of  a trace  of certain
articles usually  used in the prepara-
tion of food  products and in their
preservation—not so much in their
preparation as in their preservation—
boracic acid, salicylic acid, sulphurous
acid—not sulphuric acid—and a large
number of  others  which  have  been
used simply in the quantity necessary
to preserve, but  not in a quantity gen-
erally  that  would  injure anybody.
Whenever it is used in that quantity it
becomes the province of the chemist to
determine it, but no such  attempt has
been made up to this time by the Chem-
ist of the Agriculture Department, so
far as I have learned—that is, by quan-
titative analysis to find out what was
the proportion of the preserving arti-
cle to the whole product.
   For instance, you can not, so  I am
informed, put up meat,  especially sau-
sages and articles of that kind, with-
out a small trace of boracic acid; and
my substitute fixes the quantity be-
yond which they can  not go without
incurring the  penalties  of the  law,
which are fine  and imprisonment. It
permits them to use a very small per-
centage of preservative to the whole
product, a percentage of which can do
no harm to anybody taken in the quan-
tity that is used for the preservation.
   Now, a case in point happened where
a carload of sausages went to Pennsyl-
 vania from Chicago. An analysis was
 made, and it was found that there was
 a trace of boracic acid. The Pennsyl-
 vania authorities said, "Boracic acid
 is a poison." Therefore it was stamped
 "poison," and  that carload  was sent
 back to the shipper  at his expense.
 Profiting by that experience, a rival in
 business sent a carload of sausages not
 preserved by boracic acid or anything
 else and it was rejected because it con-
 tained ptomaine poison. Ptomaine, you
 know, is an alkaloid—it is a cadavaric
 alkaloid.  It is a product of the decom-
 position of meat and also in one sense
 of particles of  the structure of the hu-
 man frame. So  the one carload was
 condemned for containing boracic acid
 (and if a man  had  eaten  the  whole
 carload  of sausage the boracic acid
 would not  have hurt him) and  the
 other carload was rejected because the
 manufacturer  could not preserve  his
 meat  without  subjecting him to  the
 penalty  of the Pennsylvania law  and
 his  meat  was condemned because it
 contained ptomaine. Here is the injury
 inflicted, with no attempt, however, to
 determine how much  could be  taken
 with impunity  or with  safety.
   My bill proposes to limit the amount.
 I say "my bill;" I introduced it at  the
 request of these gentlemen.  Here  is a
 proportion, a percentage, that can be
 used of certain preservatives, and  the
 best chemists  in the  world say that
 they are not injurious.
   There  is also  a method by which it
 can  be  decided  whether or not  the
 manufacturer  or producer or deliverer
 of these goods has done any thing which
 would  be deleterious to the general
 health. In the first place, the officers of
 the law will take three samples, which
 he is authorized to purchase. In that
 matter  it follows the laws of  pretty
 nearly every  State in the  Union  as
 well as those of Great Britain. Massa-
 chusetts and other States have  such a
 law. Three samples shall be taken, one
 of  which shall  be analyzed  by  the
 chemist, not an agricultural chemist,

-------
STATUTES AND LEGISLATIVE HISTORY
                                401
but a hygienic chemist, the chemist in
the division  of chemistry  of  the  hy-
gienic laboratory of the Public Health
and  Marine-Hospital  Service, whose
business it is to analyze things con-
cerning health and  life, and not an
agricultural  chemist  merely,  nor an
analytical chemist merely. Before any
action can be taken against a man the
analysis must be shown him. He is
permitted then by his  own chemist to
make an analysis, and then he can go
to the court and  appeal, and there he
has his hearing; and the third package
is there for analysis,  if  it is deemed
necessary by  the court, the  reports be-
ing  submitted  from  the  two  other
chemists — the  Government   chemist
and the chemist of the manufacturer
or the  preparer  of  these foods.  So
there is no danger of a man's business
being broken up  before he has had a
hearing, as there  was under the origi-
nal bill, which I  am glad  to  see has
been amended in that particular.
  It is  not necessary  to go into any
general statement about the desirabil-
ity of something being done. The only
thing is to do it  so as to protect  the
rights of everybody.  Heretofore  there
has been an indifference manifested as
to proprietary drugs, medicines, food
products, etc.
  The Senator from  Idaho  objected
that there was nothing here that men-
tional  patent medicines.  I use  this
language, "Drugs, medicines, etc.,  ac-
cording to  the standard of  the  Na-
tional Pharmacopoeia  and the United
States  Formulary."  They  are   the
authorities  to fix standards  in  this
country. I do not know of  any other,
and I  do not presume anybody else
knows of any other. The standards are
to be  so fixed. We must go  to them to
learn  exactly what is pure and  what
is impure. You can not expect the pro-
prietor of a medicine that  is proprie-
tary—that means an exclusive use and
monopoly, a patent, etc.—to put on a
label,  tag, or  anything  else  that is  go-
ing to disclose the secret of the compo-
sition, in which he is secured by the
patent laws. Those laws do not simply
grant a monopoly, but, to use the lan-
guage of the Constitution, they are to
secure the right of his invention. It is
the granting of a monopoly to secure
the right which already inheres in the
discovery, or invention, or whatever it
is, that he may have invented, discov-
ered, or compounded, and is not in any
strict sense a monopoly; but the exclu-
sive right is secured  for  the purpose
of encouraging invention.
  There is another thing in the  bill
that  I  have  offered  as  a substitute.
Whenever there is a well-known arti-
cle  of food  which has been  used we
admit it as a lawful component part of
a preparation under its trade-mark or
name. I have in mind right now Lea &
Perrin's Worcestershire  sauce, which
has a world-wide use and reputation,
and has had for a hundred years  or
more. That, under some ruling of your
commisssion, whatever  it may be  in
future, has been rejected, because the
ingredients were not  printed in their
proportion upon  the  labels, or some-
thing of that sort. Some of the States
require  these  to be printed;  some do
not. Some require that in the prepara-
tion of jelly the word "jelly" must be
used; others do not.  So what is good in
one State is bad in  another. A manu-
facturer sending his  goods from one
State to  another  without knowing
what States they are going to or what
sort of  a  label is to be put on, finds
that what is  perfectly acceptable  to
one State will be objectionable to the
next State.
  Mr. HOPKINS. Mr. President	
  The VICE-PRESIDENT.  Does the
Senator from  Mississippi  yield to the
Senator from Illinois?
  Mr. MONEY. Certainly.
  Mr. HOPKINS. The Senator  was
speaking about having a formula for
the use  of boracic acid in the preser-
vation of meats. I understand his bill
provides for a certain percentage.
  Mr. MONEY. Yes;  no  formula, but

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402
LEGAL COMPILATION—PESTICIDES
simply a percentage.
  Mr. HOPKINS. I should like to hear
from the Senator on that point, as to
how that is superior to the bill under
consideration.  As  I  understand  the
pending bill, it does not prohibit the
use of boracic acid in the preservation
of meats, but leaves it for the court to
determine on complaint as to whether
a larger quantity than is healthful to
be used is used or not.
  Mr. MONEY. That, as I understand,
is the amendment  which  has been of-
fered. It was not in the  original  bill,
and I have been addressing  myself to
that.
  Mr.  McCUMBER. I do not  under-
stand the  Senator. The original bill
simply provides that a person may use
anything.  He may use strychnine,  if
he  wants, as a preservative; but the
                           [p. 2654]
courts must determine whether or not
the quantity that is used is injurious
to health;  nothing more and nothing
less. That has been in the bill which I
reported time and again, and  it has
not been changed. It is in the bill pend-
ing today.
  Mr. HOPKINS.  With that explana-
tion I should like to hear from the Sen-
ator from Mississippi on the point as
to whether  the formula provided by
him is better than the bill as presented
by the committee.
  Mr.  MONEY. There is no formula
provided.  It is simply a per centum.
That would be determined by the best
chemists who have been engaged in the
chemical work of these  great  manu-
factories.
  Mr.  McCUMBER.  If  the Senator
will allow me	
   Mr.  HOPKINS. Is  it not better not
to have that in the bill at all, because
under the present bill, as I understand
from the reading of it, and as explained
by  the Senator from North Dakota,
that amount of boracic  acid can be
used without subjecting the user of it
to the penalties provided in the bill?
   Mr.  MONEY. Well, the advantage
 of  mine  is  that  the  manufacturer
 knows exactly what to put in and is
 not  subject  to any  inquiry  by  the
 courts.
   Mr.  HOPKINS.  But  the  trouble
 with that, to my mind, is  that  if it
 should be found that a fraction  over
 that amount is used, then the person
 becomes liable to the fines and penal-
 ties  of the bill.
   Mr. MONEY. Certainly.
   Mr. HOPKINS.  It  might  be  that
 upon chemical analysis the proportion
 that was used might not be deleterious
 to health,  and under the present bill
 it would not subject the user to the
 penalties of the bill.
   Mr. SPOONER.  Then,  if the Sena-
 tor  will pardon me—
   Mr. MONEY. Certainly.
   Mr. SPOONER.  Will  we not  have
 different standards applied in differ-
 ent  parts of  the country—
   Mr. MONEY. Of course.
   Mr. SPOONER.  Whenever the Fed-
 eral courts happen to become  involved
 in a trial of  the question?
   Mr. HOPKINS.  I wish to  ask the
 Senator if we have experienced chem-
 ists who will be called upon on trial to
 determine  it, and they say that it is
 not  deleterious to health, is that any
 objection?
   Mr.  MONEY.  I will  answer the
 Senator by saying  these cases may be
 tried in any  number of courts and tes-
 timony may be given  by any number
 of chemists.  According to my opinion,
 the  manufacturer has  his chemical
 analysis and the Department can have
 the  analysis of the Division of Hygi-
 enic Chemistry  here,  the Bureau of
 Quarantine  and Public  Health,  and
 then the court can have an  analysis
 if necessary. But here is a standard
 fixed,  and  the  manufacturer knows
 that if he goes beyond a limit he has
 made himself liable to investigation
 and to the branding of his goods in a
 way which will destroy  his trade. He
 does not have to wait until  he  goes
 before  a court under arrest  charged

-------
STATUTES AND LEGISLATIVE HISTORY
                               403
with a penal offense and subject to fine
and  imprisonment;  but when he  is
preparing his goods he knows that if
he puts in more than one-tenth per-
cent of one or one-half percent of an-
other,  and so on,  that  very  fact has
carried him beyond the true  line and
he is subject to  these penalties.
  Mr.  McCUMBER. Mr.  President—
  The  VICE-PRESIDENT. Does the
Senator from Mississippi yield to the
Senator from North Dakota?
  Mr.  MONEY. Certainly.
  Mr.  McCUMBER. Then, as I under-
stand the  Senator, he would have Con-
gress fix the  standard. The committee
thought it best  not to allow even the
Secretary of  Agriculture or his corps
of chemists to fix the standard.
  Mr.  MONEY. I think myself it  is
better  that they should not.
  Mr.  McCUMBER.  They  did  not
think it safe for any  man or set  of
men to fix a standard,  and  therefore
they have eliminated  any  provision
that would indicate that  any person
might  fix  a standard.  Under  the bill
as it is now reported there is no stand-
ard except the standard the court and
jury  shall  determine.  Suppose  the
court and jury should  determine that
twice the amount of boracic acid would
not  be injurious,  ought  the person
then to be convicted for using it, even
though it was greater than the amount
that is stated in the Senator's amend-
ment?  I do not believe there is a Sena-
tor here  who knows what should be
a standard, but we can  all agree that
the courts shall determine with a jury
what is injurious to health when used
in large quantities.
  Right here, if the Senator will allow
me,  I  would refer to the statement
made by the  Senator from Wisconsin.
We do not propose to say what per-
centage of alcohol there  shall be  in
beer, for  instance, to  determine  its
intoxicating  qualities,  and   yet   in
every State—
  Mr.  MONEY.  You would be wise if
you did.
  Mr.  McCUMBER.  In every  State
which  has a  prohibition law or  in
every county where it may not be pro-
hibited in the whole  State,  the  ques-
tion is submitted to the court and the
jury whether or  not the particular
ingredient which was sold was intoxi-
cating or  whether  it  was  not.  Of
course each jury might find a differ-
ent standard.  That is true  in almost
every matter under  the criminal law
where it  is not fixed absolutely by the
statute itself.  It would be impossible
for us, it seems to me, who know noth-
ing  about  these chemicals, to  fix  a
standard; it would be even worse than
giving it to the  Secretary of Agricul-
ture.
  Mr.  MONEY. Of  course I listen
with pleasure always to the deliberate
judgment of the Senator, but I do not
understand  yet  how a jury  is  any
more competent to  tell  how  much
boracic acid or sulphuric acid or any
other acid shall go into the composi-
tion for the public use than Congress
is, with its unlimited means of getting
information
  Mr. McCUMBER. I will answer the
Senator.
  Mr. MONEY. One moment.  At last
the jury  must depend upon the chem-
ist; the court  must depend  upon the
chemist;   and  the  provision  makes
three chemists testify as to the quality
of the goods, whatever it may be. By
chemical  processes  it  has  been defi-
nitely ascertained  that the amounts
named in the  substitute bill, or they
would never have  been named in it,
were not injurious to health, but pre-
servative of the  food that was offered
to the public.
  It is a  fact that it is the qualitative
analysis  that has governed  the  prac-
tice of the Department up to this date.
We know that in  one of the  States,
and I believe, if I am not mistaken in
the State of the Senator who is the
sponsor of this bill, the commissioner
there declared that canned fruit from
California had a trace of boracic acid

-------
404
LEGAL COMPILATION—PESTICIDES
and he  condemned  it.  The firm that
packed  the goods declared that they
never had put boracic  acid in it, and
his reply was  that he did not care
whether they had put it or whether
God  Almighty  had  put it in, it had
boracic  acid  in it,  and  boracic acid
was a poison, and he did not want it,
and therefore he condemned the whole
business.
  As a matter of fact, it is pretty well
known,  I believe, to everybody that
when you get away beyond the Mis-
sissippi  River  in what is called the
"alkali  country," and  to  the  Pacific
coast,  all the  fruit, notably  apples,
have a large  trace of boracic  acid;
and  in  the preparation of apples, in
the main, as in making jellies  or any-
thing of that sort, one  may always
find a trace of boracic acid. There was
a lot of goods absolutely pure and free,
with not enough boracic acid  to hurt
anything, just what nature itself had
placed  there  and,  according  to the
Senator from Idaho, nature never put
anything in the wrong place,  and yet
they were condemned.
  Now, it is intended to avoid  these
things and to enable the manufacturer
plainly to see his duty, not to violate
the law, and at the same time to put
in a sufficient quantity of these con-
demned  substances, as they ought to
be, to preserve his meats.
  Mr.  McCTJMBER. May I  ask the
Senator a question  right there?
  Mr. MONEY. Certainly.
  Mr.   McCUMBER.  The  Senator's
opening statement  was  that  his bill
would  not interfere with the police
power of the State.
   Mr.  MONEY. I say that yet.
   Mr.  McCUMBER. He  said it was
carefully guarded  for  that  purpose.
Now, as a matter  of fact, unless  my
ability   of  construction  is   entirely
wanting, that is exactly what it does
do and what the Senator's argument
leads to. Take the action of the State
chemist of the State of North Dakota.
North Dakota may  have a law that no
 goods containing boracic acid shall be
 sold in that State. Now, the  Senator's
 bill is aimed against that  law,  and
 provides that if it has not  to exceed
 one-half of 1 percent it may be  sold
 i^ that State. The effect of such a law
 is directly in opposition and  infringes
 upon the laws of the State itself.
   There is scarcely a  State  in the
 Union that has  not got a positive law
 against the use  of any one of the pre-
 servatives that  are mentioned here. It
 is clear to me that the  object of the
 Senator's bill is  to override those State
 laws which prohibit  the use of those
 articles and to allow them  to go in.
   I want to call the Senator's atten-
 tion to the fact that there are nearly
 seven pages out of the whole number
 of pages of his amendment directed
 simply to the  matter how  you  may
 obtain samples, and  it so guards the
 use of the samples  that no one on
 earth could ever get into court  with
 one of those samples. You apply a new
 rule  for  the courts  in the  trial and
 determination of the matter.
   The Senator  finds fault  with any
 standard that a jury may fix. The jury
 will have the chemist before them. The
 chemist will be before the court. The
 chemist will examine those particular
                            [p. 2655]
 articles.  The chemist  can  be  cross-
 examined  before a  court,  which he
 can not be before a Department. So
 it  throws every possible  safeguard
 around the man who is  accused, and
 he must be convicted by evidence that
 will establish his guilt beyond a rea-
 sonable doubt. Now, I can not imagine
 how he could be more safely guarded
 than by a provision of that character.
   Mr. MONEY.  Mr.  President, the
 Senator floated off on the tide of his
 own talk and got away from his orig-
 inal  proposition entirely, which was
 that according to his interpretation of
 the Constitution this infringes  upon
 the State law, and  then he adduced
 the instances. It is perfectly clear to
 my mind that it does not, just as clear

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STATUTES AND LEGISLATIVE HISTORY
                               405
as obviously the contrary is clear to
the very  clear mind,  I  will  say,  of
the Senator from North  Dakota. This
applies  only to shippers in original
packages. The  tag  or  label or brand
is plain; it is  easily discerned; it is
fixed to each one of them; and under
the interstate-commerce  law and  un-
der the decision of the  Supreme Court
of the  United  States  that original
unbroken  package,  perfectly within
the control  of  Congress  and the Na-
tional Government, can  go  anywhere
where the Constitution prevails. When
it gets into the  State, if it is contrary
to the State law, then when that pack-
age is broken  the   State authorities
seize upon the  contents  of that orig-
inal  package broken,  and then they
punish the men who infringe the State
law. If they can follow  the tag back
to the shipper or the deliverer of  the
original package and show that he has
violated the national law, for instance,
taking either one of these bills, then
it goes to the court and he is punished.
  I want to say to  the Senator, what
he seems to have overlooked, that here
comes in the chemist, whose business
it is to consider questions affecting life
and health—the chemist of the divi-
sion of hygiene in this bureau of pub-
lic health. He is the officer to whom it
comes first. Then a package  goes to
the manufacturer and he can employ
his  chemist. Both these  analyses can
be produced before the jury; and  in
addition a third package, according to
my bill, is reserved for the court chem-
ist — anyone who may be selected by
the court — so  the  three can be com-
pared,  and  the jury  will  have  the
benefit of all that.
  Mr. HEYBURN.  Mr. President	
  The VICE-PRESIDENT. Does  the
Senator from Mississippi yield to  the
Senator from Idaho?
  Mr. MONEY. Certainly.
  Mr. HEYBURN.  I wish to  suggest
to the Senator that a serious objec-
tion to the fourth provision, on page
13 of his bill, is that it fixes a stand-
ard  that  is  not  in accord with  the
standard in most of the States. Most
of the States would not permit  the
sale of articles containing the  per-
centages  mentioned  in  that  fourth
paragraph.  It would result  in  the
Government  permitting  a  manufac-
turer to  ship  into the  State goods
that would  be contraband under the
State law.  That is not fair to  the
State. It is the object of the pending
bill to aid the States in the enforce-
ment of pure-food  laws. It should be
elastic enough in its provisions to con-
form always to the limitations of the
State law. If you were to undertake
to ship into our State goods containing
the percentages named in that fourth
paragraph, they would be contraband
when they arrived in the State and
the packages were broken.  Now, it
defeats the purpose of national legis-
lation to do that kind of thing, does
it not?
  Mr. MONEY. The  Senator did  not
do me the honor to listen to  what I
had to say in the beginning or he has
easily forgotten. I said that one of the
principal objects was to make so rea-
sonable  a bill  that the  State  would
conform to it as near as possible, and
we would have a uniform system of
pure-food  laws throughout the United
States,  the  States  getting  together
around the  national legislation as a
sort of nucleus, or being supplemental
to it, for convenience of local admin-
istration and having the right of local
administration. There is not  anybody
here or elsewhere who would stand up
more stoutly and more persistently for
the right  of every State  to  regulate
its police matters than I.  That is my
disposition. I am antagonizing all  the
time every  effort  to centralize  this
Government  and endeavoring  to  re-
tain within the several States all that
power which was reserved to them in
the ninth and tenth  amendments of
the Constitution.
  Mr. HEYBURN. But I would sug-
gest to the Senator  that nearly all the

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406
LEGAL COMPILATION—PESTICIDES
States have pure-food laws.
  Mr.  MONEY.  I understand  that.
The Senator must not infer that I am
entirely ignorant. This is  no kinder-
garten, but the United States Senate.
  Mr.  HEYBURN.  My  suggestions
were based upon that  condition  of
facts; I am not attempting to criticize
the Senator or to impeach his knowl-
edge.
  Mr. MONEY. As I remarked before,
the  Senator's  State,  under  his  own
State  law, rejected  apples coming
from California,  because they  had
boracic acid and  because boracic  acid
is poison, and the law says  anything
poisonous shall be stamped  "poison."
The reply to the sworn statement that
there was nothing in it whatever was
that  he  did  not care  whether  the
manufacturer  or  God Almighty  put
boracic acid in it, it could not go there.
The object is to correct just  such leg-
islation as that,  not by the power of
Congress, because we have none,  but
by  the persuasive  power of national
legislation in  protecting  the  public
health and at the same time giving an
opportunity to the  manufacturer of
those products to eliminate  anything
hurtful and harmful, and to punish
those who willfully transgress, so far
as  the Federal arm  can reach them,
and haul  them to court and, with the
proper  processes,  confronting  them
with witnesses and having the  three
chemists to examine into the prepara-
tion and determine its character.
  Now,  then,  the original  package
must be labeled or branded or tagged
so  that it can be traced.  It must be
legible and discernible when it comes
into the State, then  it is broken  and
the State law comes in, as it should.
Both Senators know very well  that
all the time original packages are be-
ing sent into States that have absolute
prohibition  of  the sale.  What about
your liquor law and original packages
going into  a  prohibition State? Can
you stop them from going in? Yet with
the perfect right in your police power,
 regulating health and morals, you can
 say, "You shall not distribute and sell,
 because then you come under the pro-
 vision of  our law."
   Now, I  respect the sentiments of the
 prohibition  States, although I want to
 say I do  not think a general prohibi-
 tion  law  ever effects its  object. We
 have in my State what I consider  a
 great deal better, and that is the local-
 option law, enabling each county to
 determine for  itself what it will sell
 and drink and use. And I want to say
 that out of  seventy-six counties in the
 State only nine of them sell any kind
 of spirits.  All the  others  are called
 "dry" counties. In all my experience
 as a voter  I  have never yet voted  a
 "wet" ticket.  I have never signed in
 my life a license or a petition for  a
 license for  a grocery or a saloon, and
 I have set the example of being a tem-
 perance  man. I am  not temperate,
 though, because  I have determined to
 be temperate  and  have  sworn some-
 where to  be temperate and wear a blue
 ribbon, but because  I  simply  have
 enough control of myself without any
 such assistance as is associated with
 ribbons and buttons to  keep myself
 from being a brute. In the first place,
 I do not  care  anything  about any of
 those things, never having learned the
 use,  and  if I  had I have enough con-
 fidence in  my own self-control  and
 resolution to  know  that I could quit
 any habit I might have contracted. As
 far as that  is concerned, I do not  know
 that I have a habit  in the world, good
 or bad. I  act every day just as I please,
 and  I generally please  to  do  that
 which I think  is right, and I take the
 consequences.  I  have never charged
 the devil yet with any  of my sins. I
 have not  done anything because he has
 tempted  me, but because I wanted to
 do it myself.
   Now, the agency for the application
 of this law is, I think, properly in the
 Department of Commerce and Labor.
 It comes  distinctively under that De-
 partment. The only thing we are con-

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STATUTES AND LEGISLATIVE HISTORY
                               407
cerned with particularly is the trans-
portation  question. We are doing all
that we are doing today in any propo-
sition that has been made here by way
of bill,  substitute, or amendment, be-
cause we  have the power under  that
clause of  the Constitution which  en-
ables us to regulate commerce with
foreign countries,  among the States,
and  with  the  several Indian  tribes.
That is the narrow ground on which
we   stand. Here  is  a   Department
specially  organized  to take care of
commerce  and  transportation  and
manufactures. That is the proper De-
partment  to put in force these laws,
whatever they may be, as we consider
them and  pass them.  The  Secretary
of Agriculture is a man whom I have
known for thirty years, a very honor-
able, industrious,   and indefatigable
worker. He is the best Secretary I
have ever  known there,  I think,  and
there is no doubt but  what he would
want to do his duty.
  But the  Secretary can be deceived
as well as anybody else.  He has  the
particular  line of  work which  is  the
duty engaging  all of his  attention. I
can  not understand why the Depart-
ment of Agriculture, devoted to  the
product, the  raw  stuff,  and nothing
else,  should  be  invested  with   the
authority   and  power  to administer
laws which relate to the transporta-
tion  of manufactures. I do not see the
harmony of the thing.  It is incongru-
ous.  It does not belong to that Depart-
ment, and why should it be insisted on
that  the   Secretary  of  Agriculture
shall discharge those duties?
  Mr.  HOPKINS.  Will  the Senator
allow me to interrupt him right there?
  Mr. MONEY. Certainly.
  Mr. HOPKINS. Take the subject of
meats. Under laws that exist at  the
present time  meats  are  inspected by
agents of that Department.
  Mr. MONEY. I know that.
                           [p. 2656]
  Mr.  HOPKINS.  Would  it  not be
in harmony  to have  these chemical
inspections  proceed  also  from the
same Department? All  of  our food
products that go abroad must have the
stamp of  the  Agricultural Depart-
ment.
  Mr. MONEY. I understand that
that is  true  as to  the raw  product;
but we are dealing now  with articles
in transportation, not with  the  raw
product.  The bill does not propose to
cover the raising of cattle.  It has no
reference whatever, if the Senator will
pardon me, to  the meat  product, but
to meat on the  car, and that is where
we  get in — on the transportation of
the meat product from  one place to
another.
  The States themselves have legis-
lated very well  to a certain  extent on
this subject.  I  have  a  list  of such
States here, and I have the State laws
also. I had them copied, and I  could
read them if I had the eyesight, which
I have not, but I shall ask consent to
put them into  the  RECORD that they
may be there for the information of
Senators  who  have  not taken the
trouble to look  into this matter for
themselves.
  Mr.  ALLISON. I  suggest to the
Senator  to ask permission  to  insert
them  all.
  Mr. MONEY. I shall ask to put into
the RECORD such matter  as I consider
of value toward the  explanation of
this subject.
  The Secretary  of Agriculture, as I
have said, is  a  very useful  and effi-
cient  administrative officer. I believe
he will always  do his level best; and
yet we see his  inability as we should
see  the inability  of any  other  Secre-
tary to cover his whole  Department.
He has a vast one. He has eight or ten
laboratories;  he has a great corps of
scientific men  who are  working for
the wages of day laborers,  and less,
simply in the cause of science—gradu-
ates of scientific institutions—some of
them  working  for  as low as  $40  a
month, men who have  graduated from
American and  also from  European

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408
LEGAL COMPILATION—PESTICIDES
universities,  speaking  half a  dozen
languages, and yet working for from
$40 to $50 a month in the cause of
science. In spite of the spirit of com-
mercialism today and the great desire
of people  to accumulate,  there are
quite  a number of people who pursue
an intellectual pursuit, not for gain,
but simply for the satisfaction which
it gives them to make  discoveries for
the use of mankind.
  That sentiment is prevalent around
the German  universities,  where any
man who has studied to become a lec-
turer on a certain topic or a certain
science or a  certain  subject and who
has become  familiar with  it,  works
for a very small salary, which would
be contemptible in  this  country, devot-
ing his  entire  intellectual research
and knowledge to the elucidation of
that  question of science,  philosophy,
or whatever  it may be. If one of that
number should  leave  that circle to
engage in any business and devote his
great talents to mere  money making
he would  incur the sneers  of his for-
mer  companions. We have  also such
people over here, but notwithstanding
this the Secretary  has great difficulty.
His duties are every day extended as
we increase and diversify our agricul-
tural  industries, particularly in stock
raising.
  I have the  honor of being a member
of the Committee  on Agriculture and
Forestry, to which these bills uniform-
ly came until the last two Congresses,
and  I know  something of  what the
Agriculture Department does. I know
something of the requirements and
duties in that Department, and I know
we are always overloading  it. The De-
partment  of Commerce and Labor was
established for the purpose of unload-
ing several of the other Departments
of the Government. We take a bureau
from  one Department and a bureau
from  another and  a division from an-
other, and we are getting  under the
Department of Commerce  and Labor
those things which legitimately belong
 to  that Department, and here is  one
 of  the things which, as  much as  any
 other thing, belongs there, because it
 is  a matter of transportation alone,
 which brings it within Federal control
 and gives us jurisdiction because it is
 the product of labor, manufacturing
 labor generally.  "Manufacturing la-
 bor" I say in general terms. The word
 "manufacture," of course, as literally
 construed, means made  by hand,  but
 it  has  now come to mean made by
 machinery. At  any rate, this is a busi-
 ness that legitimately comes under the
 consideration of that Department  and
 is  included in these bills and these
 amendments. It is  impossible for me
 to  think that the Department of Agri-
 culture can conduct  this business as
 satisfactorily as  can the Department
 of  Commerce and Labor for the reason
 I have just stated.
   In the  amendment that I had  the
 honor to produce here every provision
 is  made to guard the rights  of  the
 States, which are not to be infringed
 and can not be under the amendment.
 I asked a  gentleman to indicate to
 me where this intereferes with State
 rights.  A distinguished lawyer and an
 ex-Senator went over it very carefully
 as  to  the constitutional question be-
 fore I  overlooked it myself,  and he
 was satisfied that it did not.
   Mr. McCUMBER. Mr. President	
   The VICE-PRESIDENT. Does the
 Senator from Mississippi yield to the
 Senator from North Dakota?
   Mr. MONEY.  Yes; I  will hear the
 gentleman.
   Mr.  McCUMBER.  I  thought  the
 Senator said — I did  not understand
 him thoroughly—that he saw nothing
 in  the amendment which he introduced
 here that  would interfere with  the
 rights  of  the  States. Am I correct
 about that?
   Mr. MONEY.  Yes; that  is what I
 said.
   Mr.  McCUMBER. May I  call  the
 Senator's attention right here to page
 3 and read a little portion of it?

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STATUTES AND LEGISLATIVE HISTORY
                                  409
   Mr. MONEY. Yes; read it.
   Mr. McCUMBER. Commencing with
line 6 on page 3, I find the following:
  And no person, firm, or corporation shall be
convicted under the provisions of this act for
having received in any State or Territory, the
District  of Columbia,  or insular possessions,
from any other State or Territory, the District
of Columbia, insular possession, or from a for-
eign country, and delivered in original unbroken
packages—

   I call  attention to that portion—
original unbroken packages, for pay or other-
wise, any article of food or drugs adulterated or
misbranded within the meaning of this act, if
said article is  labeled, branded, or  tagged  in
manner and form as required aforesaid—

   That  provides that  they  shall all
be  tagged,  showing  the name  of the
manufacturer—
at the time of  so receiving and delivering said
article.

   Then  follows:
  Provided, That any person, firm, or corpora-
tion who shall receive in any State or Territory,
the District of  Columbia, or insular possession,
from any other State or Territory, the District
of Columbia, insular possession, or from a for-
eign country, any article of food or drugs not
labeled, branded, or tagged, in the manner and
form as required herein,  shall label, brand,  or
tag said article with their correct  name and
address, before delivering the same, for pay or
otherwise, in the original unbroken package.
   It seems to me that the real  mean-
ing of that  section is that as  to the
person  receiving,  even  if  the  State
provides, as  it may provide, against
the sale  of adulterated or misbranded
articles  in  original  packages if they
are a fraud — and  adulteration and
misbranding is a fraud—or if  they are
poisonous, and therefore not commer-
cial, it may  strike the goods  in the
original unbroken packages with those
two exceptions.
   Under the provisions of this amend-
ment,  if the retailer  will  put the
wholesaler's  name on the  article he
shall  not be  punished, no matter what
the State laws may be.  I can get no
other construction  out of that section;
and if I  am in  error, the Senator, I
know, of course,  will be pleased to
correct me.
   Mr. MONEY. Yes; I think the  Sen-
ator  is in error. He started  out  with
one  idea and  got  onto  another. He
started out with the idea that I was
infringing  upon the  rights  of  the
States and  then he undertook to show
that  it was an  infringement upon the
rights of the Government.
   Mr. McCUMBER.  No;  the State
may  punish while the  article  is in the
original  package; but this amendment
provides that the State shall  not  pun-
ish — that  no  punishment   shall be
had—if the article  is  in  original  un-
broken packages, though it be a fraud
and though it be absolutely poisonous.
I do  not  understand the  construction
of the interstate-commerce law as to
original  packages to mean  that you
can  ship anything else  but  what is
known as a "commercial article;" and
that is not a commercial article which
is a  fraud, such as adulterating or
misbranding or which  is  not  commer-
cial  by  reasoji  of its  putrescence or
other  reasons.  The  State can reach
them  there in  the  original unbroken
packages; but  no matter how great
the fraud, under this  amendment the
State can not touch the article while
in the original package.
  Mr. MONEY.  The  State  can  not
touch the article in the original pack-
age,  it is true, but it can  touch it
whenever that package is  broken; and
it can not be used by the citizens until
the package is broken. That is where
the State steps  in, when  it  comes to
its sale and distribution.  Now, I have
to say to the  Senator,  while this mat-
ter is up, that I have endeavored in
my amendment  to  protect the retail
dealer in  the  State, who has been the
object of a great many objurgations
in connection  with  the sale  of adul-
terated  foods,  by  leaving  him  out
entirely,  because we know  that the
small dealer can not examine all  the
food in the packages that  come to him.
He orders by  the half dozen  or  five
dozen or gross, or whatever it may be,
and he can  not stop  to  inquire  into

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410
LEGAL COMPILATION—PESTICIDES
everything that is sent him. Therefore
I intended to make the original com-
pounder  or  preparer  of  that food
responsible entirely, because it is  im-
possible to hold the retailer respons-
ible when  he  has not  the ability to
correct any of these frauds.
  Mr.  McCUMBER.   The  point  I
wanted to make with  the Senator was
that his amendment did advance Fed-
eral law over the police power of  the
State and nullify the police  power to
that extent.
                            [p.2657]
  Mr. MONEY.  Well,  that  is a  dif-
ferent thing—
  Mr. McCUMBER. That is  the point
I desired to  make. The Senator said
his amendment did not interfere with
the State police power.
  Mr. MONEY. I want to say to  the
Senator  that  there are very learned
judges  of the  Supreme  Court  who
differ upon the same state  of facts,
upon the same law,  upon  the  same
arguments, and  the  same  Constitu-
tion. So  it is  not at  all strange that
two men  with antagonistic  views on
this floor should differ a  particle  up-
on  a proposition. The  Senator holds
to his view and I hold to mine. I think
that is satisfactory to me at  any rate.
  Mr. President, I  do not know that
I am able to continue this debate, be-
cause I am suffering with a very se-
vere physical disability. My old enemy,
a neuralgic headache, has possession
of  me as usual, and I shall for  the
present  conclude by  asking  unani-
mous consent  to incorporate  in  the
RECORD,  as an  appendix  to my  re-
marks, certain provisions taken from
the food  laws of Great Britain,  and
acts of  the  British  Parliament  and
of several States in regard to a num-
ber of matters  that  come up in  the
consideration of  my substitute. There
are  also  a number  of other things
here that I should like to have printed.
I will ask to have them all printed in
the RECORD.
   Mr. CULBERSON. Mr. Presidents
   The VICE-PRESIDENT.  Does the
 Senator from Mississippi yield  to the
 Senator from Texas ?
   Mr. MONEY. Certainly.
   Mr. CULBERSON. Mr.  President,
 it has not been practicable for me to
 give the  subject of this bill and the
 substitute the  attention I should like.
 I should  be glad, if it would not  in-
 convenience the Senator from Missis-
 sippi, if in  brief  words  he  woujd
 explain the difference between the bill
 and the  substitute  which he has  of-
 fered on the relative jurisdiction of
 the State and the Federal authorities.
 In other words, if  either the bill it-
 self or the substitute of the Senator
 from  Mississippi  provides  for  the
 regulation  of  merely manufacturing
 establishments  within  a State, irre-
 spective  of transportation  from one
 State  to  another  or  between  the
 States and Territories of the country,
 I should like to know that, because,
 as I understand, there is no authority
 on the part of  the Federal Govern-
 ment to regulate manufactures in that
 sense.  So far  as the purpose  of my
 present statement is concerned, it is
 only  when  those  manufactures are
 being shipped within the meaning of
 the interstate-commerce clause of the
 Constitution that the Federal authori-
 ties  or the Congress  of  the United
 States have any authority to regulate
 or control them. As I stated, not hav-
 ing  much  opportunity  to  look  into
 these matters with reference to that
 question, if it would  not  inconveni-
 ence the Senator from  Mississippi,  I
 should be  glad if  he  would explain
 the  difference in  that respect  be-
 tween the  bill itself  and  his sub-
 stitute.
   Mr. MONEY. I am very sorry that
 I am not able  to go into it any fur-
 ther.  But I will say to the Senator
 that the substitute which  I have of-
 fered provides only that the Govern-
 ment  of  the  United  States  shall

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STATUTES AND LEGISLATIVE HISTORY
                                411
interfere in the matter of transporta-
tion; and  if any shipper or consignor
or deliverer of goods shall purchase
goods  in  the  vehicles of transporta-
tion from  another State,'he can  do
that under the  Federal law, but  he
must  tag or brand or label them  so
plainly that you can trace them back
to the shipper or  manufacturer,  who
will then  be liable to the penalty  of
fine or imprisonment  if  the  articles
that he  has  transmitted,  delivered,
or shipped, or transported in  original
packages,  contain  anything  that  is
fraudulent or deleterious to the pub-
lic health. After the package has been
received the State law operates in its
breakage and distribution.
  I want  to say, Mr.  President,  that
what  the  Senator  said about punish-
ment  for  the infringement  of State
laws is incorrect. He said that under
this act it  can not be done.  The State
laws can  proceed. This bill provides
that the  dealer can  not be punished,
under  the  provisions  of  this act,  if
the goods are labeled  or tagged with
the name  of the manufacturer. They
can punish just as they could, and  as
they have  a right to do,  no matter
whatever legislation we enact.
  I regret, Mr. President, that I can
not proceed any  further;  but I  will
ask the liberty to  have the matter I
have referred to inserted as an ap-
pendix to  my remarks. I may later
get into  the  debate  under  the  ten-
minute rule.
  The  VICE-PRESIDENT.  Without
objection,  the matter  referred to by
the Senator from  Mississippi will  be
printed in the RECORD  as an appendix
to his remarks.
  The  matter referred to is as follows:
                            [p. 2658]
   *****

  Mr. McCUMBER. The Senator from
Mississippi  says  that  his  substitute
has been  carefully constructed;  that
it has  been carefully provided for  in
all its details. Mr. President, that is
absolutely true. It has been carefully
prepared for the object for  which it
has been given to the world. What is
that object? First, to prevent,  if pos-
sible, the enactment of  any pure-food
law; and, second, if that is impossible,
to secure the enactment of a food law
which will enable those manufacturers
to enter the States out  of which they
would be  kicked today. It is  an at-
tempt, on their part, to get into the
State, notwithstanding the particular
laws of that State.
  There was an association meeting
in Atlantic City, N. J.,  from the 12th
until  the  14th  of this  month. That
association consisted  of the  Western
Canned Goods Association and the At-
lantic States  Packing  Association.
They formed the two associations that
met  at Atlantic  City on the  12th  to
the 14th of February. The packers of
canned vegetables and fruits of all the
States east  of the Rocky Mountains
and north of the Gulf States, with the
exception of the Pacific coast  States,
were  represented in  this body, and
while they  were not members  of this
association,  California   and  Oregon
had  representatives  at  this  meeting.
They are the manufacturers of  canned
goods.
  Mr. O.  L. Deming, of Chicago, is
president of the National Association
of Pure Food  Manufacturers,  which,
as I  say, is opposed entirely  to the
Hepburn bill, and is in favor of over-
riding all State laws.  He desired to be
heard before this association  at At-
lantic City,  N. J. Here is the state-
ment that is given to me by the presi-
dent of that association, who presided
during this  meeting.  During those
deliberations they passed  a resolution
in favor of these pure-food laws. Mr.
Deming,  of  Chicago, wished  to  be
heard, as I stated, on the floor of the
convention  in the interest of what is
known as the "Lannan  bill," which is
the same  as the  amendment  of  the
Senator  from   Mississippi.  This  is
what  Mr.  Fraser, president  of  the

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412
LEGAL COMPILATION—PESTICIDES
Western  Canned  Goods Association,
says:

  T, as presiding officer, stated to him that if
he would give me the names of the members of
his association, and if they were  reputable
manufacturers or packers of canned vegetables
or fruits, that notwithstanding the fact that he
was not a member of either of the associations
comprising the convention, he could speak in
the interests of these reputable food manufac-
turers or canners. He stated to me that he would
not divulge the names of their membership. He
did mention the name of one manufacturer, but
would not mention the others. I  stated to him
that so long as he would not divulge their names
he could  not speak. He refused absolutely to do
so, and consequently was not given a hearing.
   It is  proper for me at this stage to
state who the  president of this asso-
ciation  was. He says of  himself:
  I, in common with all canners in the State of
Wisconsin, pack almost exclusively green peas
in hermetically sealed cans. We use in our pack-
ing no other ingredients than sugar, salt,  and
water, in addition to the vegetables themselves.
We sterilize our goods and cans  by the use of
heat. It costs the company that I represent from
$5,000 to $10,000 for the sugar we use. In plac-
ing our goods on the market in other States they
come  into  competition  with  peas  packed
where saccharine  has been used  as sweetener.
Saccharine is  a coal-tar product entirely,  and
in comparison with the price of  sugar is very
much cheaper. For instance,  where the cost of
sugar in our season's output is $10,000, in round
numbers, it would cost  the packer  in other
States where saccharine is used about $750. At
the annual joint convention of the two associa-
tions above referred to resolutions were unani-
mously adopted indorsing pure-food legislation,
this being  done after a thorough discussion of
the matter with Doctor Wiley.  A rising  vote
was called for, and every man in the room got
on his feet.  Upon the noes being  called for
every one remained in his seat, so that it was a
unanimous vote.  While no  particular bill is
mentioned in these resolutions, they were meant
to apply to the measures now before Congress.
   Mr. MONEY. Will the Senator per-
mit me to  interrupt him right there,
as I must leave the Chamber?
   The  VICE-PRESIDENT. Does  the
Senator  from  North Dakota yield to
the Senator from Mississippi?
   Mr.   McCUMBER.   Always, with
pleasure.
   Mr.  MONEY. The  Senator says
that he does not know  the name of a
single  one  of the  people composing
this  association, and he  ventures to
 say that  I do  not  and  that nobody
 else does, and then he proceeds to read
 this  statement.  Here  [exhibiting] is
 the list of membership. I never heard
 before  that there  was  any  secrecy
 about  it;  I never heard before  that
 any man  had ever made an effort to
 get the names of the members of this
 association and had failed to get them.
 Here they are by the page, and I will
 ask the Secretary to read them, if the
 Senator will  permit  me  in his  time,
 and the Senator will see  who the men
 are composing  this association.
   Mr.  McCUMBER. I  do  not  know
 how long the list is, but if the Senator
 has the names, they  can  be printed
 probably.
   Mr.   MONEY. There  is  plenty of
 time.
   Mr.  SCOTT.  Would it not do to have
 them  printed in the  RECORD?
   Mr.  MONEY. I suppose it would do
 some  people just as  well, but I have
 permitted my  time  to  be  absorbed
 since I have been on the floor by other
 Senators.  I made no objection to that
 because I want all the light possible.
   Mr. McCUMBER. I  have no objec-
 tion to the Senator taking all the time
 he wants.
   Mr. MONEY.  Oh, yes; the Senator
 has  made a  positive statement here
 that I did not know the name  of a
 solitary man composing the  associa-
 tion;   that he did not  know one,  and
 that nobody else did. Now, it is time to
 hit the nail when it is in. Let us hit
 it right now.
   Mr.  McCUMBER. Let me ask  the
 Senator  how  many  pages  he  has
 there?
    Mr. MONEY. Well, there are a good
 many. The  members of the  associa-
 tion are  all put  down there by  name,
 their numbers  are given, their streets,
 their  cities, and their  States.
   Mr.  McCUMBER.  If the  Senator
 will not take the time now, the list of
 names can be  printed  in the RECORD.
 It would  take  about half  an hour to
 read them, according to his statement.

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STATUTES AND LEGISLATIVE HISTORY
                                 413
I do not wish to keep the Senate wait-
ing  half an hour. But if the  names
are printed in the RECORD we can all
get  at them  in  the morning.  That
would do just as well.
  Mr. MONEY.  I  find there is no
economy of my time and a great  deal
of economy of the time of the Senator
from North Dakota. Of course, if he
does not permit me to have the names
read, I shall have to ask that they be
printed in the RECORD.
  Mr. McCUMBER. I  will  object at
this time.
  Mr. MONEY. I think on the spot is
a pretty good  time to have the names
read, but I am willing to have them
printed, if the Senator objects to their
being read.
  Mr. McCUMBER. I will simply ob-
ject at this time. If the Senator wishes
to put  them  in after I have  gotten
through,  all right.
  Mr. MONEY. I ask  that the list of
the  members  of  the  National  Food
Manufacturers' Association be printed
in the RECORD as an appendix to my
speech.
  The VICE-PRESIDENT. In the ab-
sence of objection, the list referred to
by  the Senator from Mississippi  will
be printed as requested.
  Mr. MONEY.  I  should have  pre-
ferred to have it read  now  if  it had
suited the  Senator from North  Da-
kota.
  [The list of names referred to will
be  found  in  the  appendix  to  Mr.
MONEY'S remarks on another page of
today's RECORD.]
  Mr. McCUMBER.  I will  say  that
I should be very glad to get the names
of  those manufacturers,  and  I wish
I could  get out  also what  they  are
manufacturing, before we get through
with this debate.
  Mr. President, I want to take up
the  substitute itself, and while I will
not take  up all of the sections, I will
call attention  to  just a few of them.
I stated some days ago that this would
no  more prohibit the  introduction of
fraudulent and spurious goods in any
State than a  sieve would hold water,
and  I  say that today, and I will  at-
tempt to establish it by the instrument
itself.  Every section will assist me in
proving  that  simple proposition. Let
us take  section 2:
  That every person, firm, or corporation who
shall ship  or transport, or deliver for shipment
or transportation, from any State or Territory,
the District of Columbia, or insular possession,
to any other State or Territory, the District of
Columbia, or  insular possession, for  pay or
otherwise, any article of food or drugs, shall
securely attach, in a conspicuous place, to every
such article of food or drugs, in the form In
which  it  is thus shipped or transported, or
delivered for shipment or transportation as
aforesaid  (whether such  form be as one indi-
vidual article, package,  crate,  or  bundle of
packages), a durable label, brand, or tag, upon
which shall be printed or written in the English
language, so as to be easily discernible, the cor-
rect name and address, in some State or Terri-
tory, the District of Columbia, or insular pos-
session, of the  person,  firm, or  corporation
shipping or transporting the same or delivering
the same for shipment or transportation.
                             [p. 2662]
  You will see  that all the  section
provides for is that the shipper shall
label his goods;  that if  they will label
where the goods come from, they  are
not compelled to do anything else with
reference to them; and the section re-
quires that there be  securely attached
in a conspicuous place "a durable label,
brand,  or tag, upon which  shall be
printed or written in the English lan-
guage,  so as  to  be  easily  discernible,
the correct name and address, in some
State or Territory, the District of Co-
lumbia,  or insular possession, of  the
person, firm,  or corporation shipping
or transporting  the  same  or deliver-
ing the same for shipment or transpor-
tation."  The  retailer,  after he  has
broken the bundle,  may destroy this
entirely, and may sell all of the goods
or articles in smaller packages with-
out even that showing.
  Then it provides :
  And no  person, firm, or corporation shall be
convicted under the provisions of this act for
having received in any State or  Territory, the
District of Columbia, or insular possession, from

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414
LEGAL COMPILATION—PESTICIDES
any other State or  Territory, the District of
Columbia, insular possession, or from a foreign
country,  and  delivered in  original unbroken
packages, for  pay or otherwise, any article of
food or drugs adulterated or misbranded within
the meaning of this act, if said article is labeled,
branded,  or tagged, in manner  and form as
required  aforesaid, at the time of so receiving
and delivering said articles.
   In other words, all that  it is  neces-
sary for the manufacturer of the spur-
ious article  to do is to brand his  goods,
showing  the  manufacturer  of  them,
and then  they may be  sold in original
unbroken packages in any State in  the
Union.  After they have been so sold
and have become  scattered  so that
they can become a part of the mass of
the property of the State,  then  if you
can root them out you can do so. But
he is careful to see that they shall be
sold  before  they  can possibly   be
reached, and with nothing but his bare
name upon them.
   It  goes  further, following  right
along:
  Provided, That any person, firm, or corpora-
tion who shall receive in any State or Territory,
the District of Columbia, or insular possession,
from any other State or Territory, the District
of Columbia, insular possession, or from a  for-
eign country,  any article of food or drugs not
labeled, branded, or  tagged  in the manner  and
form as  required herein shall label, brand, or
tag said article with  their correct  name  and
address before delivering the same, for pay or
otherwise, in the original unbroken package.
   In  other  words, if the seller  of  the
articles, knowing them to be spurious,
shall simply put upon  them the brand
of the manufacturer he may sell them
in  the State,  notwithstanding   the
State has laws absolutely  prohibiting
their sale in that State. It looks to  me
as though the attempt and  desire of
this measure was to enable the  manu-
facturer  of questionable  products to
ship  his  goods  into  a State,  whose
laws would prohibit the  introduction
or the  sale of  those articles in that
State, and to prevent any punishment
whatever, if they are  in original,  un-
broken  packages bearing the name of
the manufacturer.
   I come now to section 3:
  That the Secretary of Commerce and Labor
 shall organize in the Department of Commerce
 and Labor a bureau to be known as the Bureau
 of Foods and Drugs; and it shall be the duty of
 the Secretary of Commerce and  Labor to en-
 force the provisions of this act  through the
 said Bureau of Foods and Drugs.
   How is  any bureau  to  enforce  the
 provisions  of a criminal statute? How
 is  the bureau to determine what  evi-
 dence the court shall receive and what
 it shall not receive  in a criminal case ?
 What has  the bureau to do with  the
 prosecution or the  enforcement of the
 law in any way other than the mere
 fact of  securing samples and analyz-
 ing them?
   The  measure that has  been intro-
 duced here and which has the support
 of the  Committee  on  Manufactures
 simply provides that the Secretary of
 Agriculture shall assist in  ascertain-
 ing what  misbranded  or  fraudulent
 goods are  shipped from one State to
 another, and if he finds that there are
 such goods being shipped, he does not
 enforce the provisions of the  law. He
 gets the goods in  any  way he has a
 mind to and  analyzes them, and if he
 finds that  they do  not conform to the
 requirements  of the  law,  the manu-
 facturer may be notified, and he  can
 show, if he sees fit, that the specimens
 examined  were not manufactured by
 him, or had been tampered with since,
 or that the  analysis is an  incorrect
 one, or  anything else in defense  that
 he can  establish. Then, if the Secre-
 tary of Agriculture is not satisfied, he
 may still report the matter to the  dis-
 trict attorney of the proper  district,
 and say, "If you feel that you can  con-
 vict  this   man  beyond a  reasonable
 doubt of the  commission  of a crime,
 you  may  proceed  to  prosecute  the
 case." It is left finally in the hands of
 the  district   attorney.  Certainly  no
 manufacturer  could  object  to  having
 all those safeguards thrown around.
   This section of the  substitute  pro-
 vides for a Bureau of Foods and Drugs
 in the office of the Secretary of Com-
 merce  and Labor. Tell me  why  it

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STATUTES AND LEGISLATIVE HISTORY
                                415
should be  taken away from  the  De-
partment of Agriculture.  Mr. Presi-
dent, I am perfectly willing, so far as
I am concerned, if it is necessary, to
change  from the Bureau of Analysis
of the Department of Agriculture to
this other  Bureau, but as  yet I have
not  heard  a solitary  reason  why it
should be so changed. We already have
a law that the Secretary of Agricul-
ture  shall  examine the imports into
this country, and if he finds they are
fraudulently  branded,  that they  are
adulterated or misbranded  as to  the
place where they were manufactured,
he may exclude them.
  Has anyone heard  any  complaint
about the  enforcement  of  this law?
The only complaint that could be made
is that it has been enforced, and justly
and rightly enforced. Those who have
suffered  from  the  enforcement of it
have in no instance suffered unjustly,
and they are the ones who  would take
away this duty from the Department
of Agriculture.
  Again, the Agricultural Department
to-day has the examining  of all arti-
cles that pertain to food products. The
Secretary of Agriculture has his Bur-
eau  of  Chemistry  for that purpose.
We  have had a provision in every ap-
propriation bill, I  think, since I have
been here appropriating a certain sum
of money for the use of the Secretary
of Agriculture  to determine what  are
proper  standards   of  food products.
Has anyone heard of that power hav-
ing  been abused in the slightest  de-
gree ? Has  it not been beneficial to the
country? He determines what is  the
best character of  flour, that  it shall
contain so much of starch,  so much of
gluten, and so much of other ingredi-
ents. There is nothing in the provision
that makes it a standard.
  I for one, Mr. President,  stand firm-
ly against any man or set of men  fix-
ing a. standard of food until we know
more than  we do to-day, by chemical
analysis or otherwise,  with  respect to
the value of foods and the real effect
of any food upon the  system.  There
are too many stomachs to be affected
by a particular kind of food  for us to
safely say what this individual or that
individual may have, or what shall be
excluded  from commerce and  what
shall  be  included   in  commerce.  It
seems to me that it is  proper for the
Secretary of Agriculture  to attend to
the analyses of these foods.
  Now, I come to section 4, which pro-
vides  that—
  Any  inspector, agent, officer, or other person
authorized by the Secretary  of Commerce and
Labor to procure samples, as aforesaid, shall,
at the time of the taking thereof—
  That is, of samples—
notify the person or firm.
  I wish Senators would  listen a mo-
ment  to the red tape that one must go
through in order  to get a sample that
can be used in the courts;  and implied-
ly there is  a refusal on  the part of
Congress  to  allow  the courts to re-
ceive  anything else  except  a sample
that is  obtained in the  manner which
it requires seven pages of  literature
to determine. They are  to be taken and
then  analyzed under  the provisions
of section 4.
  Then notice is  to be  given, and be-
fore you can even purchase an article
at a store for the purpose of examin-
ing it you must send for the manufac-
turer and he or his agent must be pres-
ent while you are purchasing that ar-
ticle. Then it is to be divided into two
or three or  four  parts, and  they are
sent here and there. Then the manu-
facturer's agent  analyzes  his  part,
somebody else analyzes the other part,
•and then a third  person is to analyze
another part, and  when it comes before
the court the court must receive these
ex parte analyses  before it can proceed
practically with the trial of the action.
  How  does  the  bill we have recom-
mended provide ?  The Secretary of Ag-
riculture can go into any store in this
city, in any  city,  in any State, and he
can buy 500  articles of canned goods

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416
LEGAL COMPILATION—PESTICIDES
from a certain  manufacturer in 500
different  cities if  he wishes. He can
have them analyzed. He can  give no-
tice to  the manufacturer that out  of
the  500 analyses  he  finds  all of the
goods  adulterated or misbranded. All
those 500 cans may be used, or any
number of cans, in the court and any
new analyses  be introduced, and the
court would take  testimony the  same
as  it would  in  any  other case. But
under the provisions of this  measure
we determine  what  evidence shall  be
received  and what evidence shall not
be received. We make rules  for the ad-
mission of evidence  and then deter-
mine the weight of that evidence. We
say that  the ex parte analysis in the
criminal case shall be prima facie evi-
dence of  its  correctness, and the anal-
ysis by another person shall also  be
prima facie evidence, and then if those
two disagree, before  you  can go  on
with the trial, you  must get a third
person to analyze the  third portion of
the can.  You can not go  and get a
dozen other cans  from as  many dif-
ferent places and analyze them.
   That it is  not the worst of it. Before
you get through with  this matter you
provide another thing:
  Provided, That at any time after any pro-
ceedings have  been commenced under any of
the provisions of this  act in any  United States
court the defendant shall have the right to re-
ceive from said district attorney  a copy of  the
results of any examination or analysis which
will be offered in evidence against said defendant
in said proceedings.
                              [p. 2663]
   In other words, before the defendant
goes upon  the stand  in any way  he
will be entitled to have not only what
evidence  will be used against him, not
only  what   witnesses  will  testify
against him,  but he  must  have  the
result  of that testimony,  so that  he
may be able to  meet  it in a criminal
case in a trial  in one of the district
courts  of the  United States.  Is  not
that an unheard-of provision?
   Now, again, Mr. President:
  SEC. 9. That the Secretary of Commerce  and
 Labor may publish from time to time, in like
 manner as other publications of his Department,
 bulletins  of the  work done  in  enforcing
 this act, and such other information regarding
 the same as he may deem proper, to be distrib-
 uted as public  documents  in  like  manner  as
 other publications of his Department: Provided,
 That the name of  any brand, or the name of
 any manufacturer,  person, firm, or corporation,
 shall not be published in connection with exam-
 inations or analyses, or results of examinations
 or analyses, of articles of food or drugs found
 to comply with the provisions of this act: And
 provided  further.  That the examinations  or
 analyses, or results of examinations or analyses,
 of articles of food or drugs found to be adulter-
 ated or misbranded within  the meaning of this
 act shall not be published, nor the names of
 any person, firm, or corporation. In connection
 therewith, until the person, firm, or corporation
 so violating the provisions  of this act has been
 regularly convicted.
   We would have no  objection to the
 second  proposition, but  why should
 you  prohibit the  publication  of the
 fact that goods are pure; that goods
 which have been submitted to the Sec-
 retary  of Commerce   and Labor the
 analysis shows are pure; that the re-
 sult of  that  analysis  shall be  held  in
 abeyance  and the  public  shall never
 know anything, except the  fact  that
 the  products  have been questioned,
 and no one who is producing an abso-
 lutely pure article shall have the right
 to say, "This article  has been  ques-
 tioned; the  Secretary of  Agriculture
 has  found that it is unquestionably
 pure." But he can not have  that mat-
 ter published. The object of  it is this:
 So that we can get good goods, which
 would  naturally  interfere  with and
 compete against  poor goods, exactly
 on  the same level with the poor  or
 adulterated  goods. In  other words,
 that  the  fact of purity being estab-
 lished,  which would  enable them  to
 compete  against  the  poorer articles,
 shall not be made public  and the pub-
 lic shall not have any knowledge of it.
 It can  have no other meaning. It can
 have no other  or further result.
    There  are a great many of these
 provisions. I  will call attention now to
 a definition in  section II, I think it is.

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STATUTES AND LEGISLATIVE HISTORY
                                  417
It is under the definition of "adultera-
tion":
  Fourth. If it contains any substance or ingre-
dient, whether added or otherwise, which, in
any quantity in which it might reasonably or
advantageously be used  in food or drink, will
injure health, or contains any substance or
ingredient which, by chemical combination or
otherwise, renders such article of food un-
wholesome or injurious to the health of the
consumer.
  I wish the Senator from Mississippi
would explain what he means by  "ad-
vantageously   used."  If  it  can be
advantageously used  in  any food or
drug,  then  any  of these  ingredients
may be used under this  section.  I do
not understand the meaning of it, and
I do not know whether or  not anyone
else can explain it.
  Again,   commencing   on  line   25,
page 12:
  Second. An article  of  food shall  not  be
deemed adulterated or unwholesome by reason
only of being artificially colored with harmless
coloring matter,  if it is plainly  stated on the
label that said article is colored.
  What is the necessity, then,  if col-
oring is harmless, to state on the label
that the product is colored?  What is
the use of this article? It adds noth-
ing. There is  nothing now in the law
to  prevent  the use of  any  coloring
matter which  is not harmful.
  Again:
  Third. An article of food shall not be deemed
adulterated or unwholesome by reason only of
the  addition of a harmless preservative, or by
reason of the addition  of any substance for
legitimate purposes.
  What is a  legitimate purpose? In
other words,  it shall not  be deemed
adulterated if the   preservative  is
harmless,  and  it shall not be deemed
adulterated, though it is harmful, if
it is for a legitimate purpose of pres-
ervation.
  That, Mr. President, is just exactly
what the manufacturers  of preserves,
who use boracic  acid, salicylic acid,
and a hundred other kinds of ingredi-
ents to preserve and to color, wish to
prevent. In other words, they do not
want to have  the State itself enforce
its laws  against a  food article,  pro-
vided  they themselves think the  pre-
servative  has the legitimate  purpose
of  preservation,  or because the  sub-
stance  might be  added for  the legiti-
mate  purpose  of coloring, so as  to
make it appear more attractive to the
eye.
   Again  I call  attention  to  another
portion of section 4:
  Fourth. That the following preservatives shall
not be  permissible in greater quantities than
the following amounts: Boric acid, one-half of
1 per cent, or its equivalent in borax; sulphurous
acid, one-twentieth of 1 per cent, or its equiva-
lent in  sodium sulphites;  salicylic acid, one-
tenth of 1 per cent, or its equivalent in sodium
salicylate; benzoic acid, one-fifth of 1  per cent,
or its equivalent in sodium benzoate; saltpeter,
one-fourth of 1 per cent.
   The  substitute allows  the  use  of
every  one of those preservatives  not-
withstanding the fact that Michigan,
Kentucky,  Illinois,  Missouri,  North
Dakota, South Dakota, and  a dozen
other  States I might mention, abso-
lutely  prohibit by their laws the use of
several of these ingredients  in food
products, claiming  that it  is not  nec-
essary, but that it  is  done  for  the
purpose of deceiving and that in most
instances they are poisons.  None of us
here knows how much of one of these
preservatives can be safely used.  But
they can even avoid this by a provision
found  on the very next page. It says:
  Provided further. That in stating  the name
of any added substance it shall be in compliance
herewith if the trade name only of any proprie-
tary preparation which has been added to food
is plainly stated on the label of such article, if
said trade name of said proprietary preparation,
together with the formula of said preparation,
has been placed on file with the  Secretary of
Commerce and Labor.
  In other words,  they can use  any
amount of boracic acid. They  can use
any amount of salicylic acid. They can
use any other poisonous dyes  or coal-
tar dyes  provided they will give  it a
proprietary  name;  and  then the sub-
stitute provides that after the proprie-
tary name is given, the Secretary  of
Commerce and Labor shall under no
circumstances divulge the secret con-

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418
LEGAL COMPILATION—PESTICIDES
stituents  of  the  proprietary  article.
It might  be wholly  salicylic  acid  or
boracic acid, but  the public shall get
no knowledge whatever of its contents.
  The whole object of this substitute
carries out what was stated  in  the
committee by  a  number  of  these
people who I  believe  constitute this
new  association.  They presented  to
the Committee  on Manufactures this
proposition. They said: "Certain coal-
tar dyes and certain  other ingredients
used  for preservatives in our opinion
are not harmful, but the  people of the
States believe  they are harmful.  We
say that  glucose  is  better and more
wholesome than honey or sirup,  but
the people have  a  prejudice  against
glucose as a  substitute for honey or
for  sirup,  and,  therefore,  as their
prejudice is unfounded, we have a per-
fect right to deceive them.  In other
words, the people have  no  right to
allow their simple prejudices  to pre-
vail against our foods, and if  we put
in  salicylic acid, and we  know that
that acid, in the amount we use, is not
injurious to health,  then  the people
of  the State  have  no right,  acting
upon their prejudice, to know what we
put in our preserves." That  is being
carried out to  perfection in  the sub-
stitute. Again I call  attention to  sec-
tion 13:
  That this act shall not be construed by any
specific standards for food not incorporated
herein.
   If  it is not  to  be  measured by  any
standard of foods I  do not know how
on earth  you are going to measure it.
It seems  to be a mere negative clause
intended  to destroy  the  effect of  any
good to the people or of any danger
there might be in the substitute to this
particular class of manufacturers.
   I come again to section 14:
  That the term "drug," as used in this  act,
shall mean all  drugs, medicines, and prepara-
tions intended for medical purposes and recog-
nized  in the United  States Pharmacopoeia or
the National Formulary as drugs or medicines
for internal or external use-
   There they  stop. In other words, it
 would  not touch  any  of  the patent
 medicines. It would not affect any of
 the frauds. It is perhaps true that 95
 per cent  of  the  drugs  sold in  the
 United States consist of patent medi-
 cines  or  proprietary medicines.  It is
 perhaps also true that  95  per cent of
 the patent medicines are frauds, and
 thus they would  leave  this substitute
 as applying simply to about 5 percent
 of the articles that  are  sold in  the
 drug stores under prescription.
   I call attention to section 17:
   That for the purposes of this act an article of
 drugs shall be deemed to be misbranded:
   Second.  If it, or any package, bottle, or
 receptacle  containing it, shall, by label, brand,
 or tag, or otherwise, be deceptive as to its
 weight or measure.
   That is pretty important. They have
 determined   in  this  good  measure,
 which the Senator says has not in the
 slightest  degree imposed upon  him,
 that if a receptacle which purports to
 contain  a  quart contains only nine-
 tenths of a quart  it shall be deemed
 misbranded,  and the same is true of
 the goods. They seem to desire to con-
 centrate the  energies and the thought
 of the Senate and of Congress upon a
 matter of weights  and measures,  and
 they are perfectly  satisfied  that Con-
 gress shall provide that if any article
 of food or drug or liquor does not con-
 tain the weight or  quantity that is
 stated on the bottle it shall be deemed
 misbranded and adulterated.
   There  is  not,   perhaps,   a   single
 manufactured article, drugs or  other-
 wise, that does say  it contains  one
 quart or it contains one pint or any-
 thing of the kind. So if they were even
 attempting to reach that part of what
 might be  considered  an  abuse, they
 would not do it. Everyone knows, out-
 side of those of us  who live in the pro-
 hibition  States, that every champagne
 bottle has a false  bottom which runs
 pretty near  up to  its neck, so that it
 does not hold more than about a pint,

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STATUTES AND LEGISLATIVE HISTORY
                                419
while it appears upon the outside to
                            [p. 2664]
be  a  quart bottle. There  is  nothing
which  requires the  manufacturer  of
this champagne to say that the bottle
contains one quart, but if he does  put
that on it and it does not contain a
quart, then he shall be guilty of mis-
branding  and  of  adulterating.
  Mr. President, I have gone very has-
tily over the provisions of the substi-
tute bill, not as thoroughly as I should
like, but I will submit to any Senator
who will read  it carefully what I stat-
ed in  the  beginning.  It is proposed by
those manufacturers whose goods  are
under the ban of the food laws of  the
several States. It seeks to prevent any
pure-food law. If it can not prevent
that,  it seeks  then to have Congress
pass a law which  will nullify the effect
of the laws of the several States so far
as it is possible.
  In reading a little from the National
Druggist, which  is a magazine pub-
lished  in the  interests  of the drug
trade and especially in the interest, as
I would judge, of the manufacturers
of proprietary and patent medicines,
there is a heading, "How  to defeat
pure-food  legislation." Then  it pro-
ceeds to state  the fact of this organi-
zation, which is the National Associa-
tion of Pure Food Manufacturers. It
raises  them as the standard bearers
of the attempt to prevent  pure-food
legislation.  But  it gives them some
wholesome advice.  It  says the only
way to deal with  this question is to go
right at the throat of the rascals who
are trying to  perpetuate a pure-food
law upon  the States, and not to do it
in any  such underhand  way as  this
national association  seems  to wish to
carry out its project.
  Now, Mr. President, I want only to
say in closing that the bill which has
been introduced by the Senator from
Idaho  [Mr. HEYBURN]  is  practically
the same one that we have introduced
for the past three or four years. It
has for its object only supplementing
the laws of the several States in their
attempt to prevent the importation of
misbranded and impure articles  of
food. It  makes  no  standard of foods
by  anyone. It simply declares what
shall de  deemed  misbranded,  what
shall be  regarded as adulterated, and
no one can object to those definitions.
Then it further declares that neither
misbranded  nor  adulterated  goods
shall be  transported  from  one State
to another.
  The remedy  is not by  a  pure-food
commissioner  saying upon  his  own
opinion that this food contains boracic
acid and  it shall  not be sold  in  the
State of North Dakota or in the State
of Wisconsin,  but  the  Secretary  of
Agriculture can say to the  persons
manufacturing it,  "We do not  believe
that your  food  product comes  within
the definitions  prescribed in the law;
you  may have  your  hearing." They
have their hearing. Then  he  is  not
compelled  to report anything, but if
he thinks they have not made out a
defense or if they refuse to change the
character of the ingredients, then  he
may say to the district attorney of the
proper district, "Go ahead and prose-
cute your case if in your judgment it
is proper."
  Not only that,  Mr. President, but
I can  go into  a store here and buy
canned goods,  and if I  find what is
said to be  potted chicken is composed
of pig's jaw and calf's neck I  can  go
to the prosecuting attorney  myself
and  present that case and ask  him to
investigate it.
  If we enact a criminal law we ought
to make  it so that any person can
make his complaint, whether it is  the
Secretary of Agriculture, whether it
is the food commissioner of any State,
or anyone else who thinks that he has
a grievance and ask that the law shall
be enforced.  To do that we do  not
want to have  ten or fifteen pages  of
red tape and  conditions  under which
we can get a  sample,  and  then only
to be used in certain cases, and never

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420
LEGAL COMPILATION—PESTICIDES
to be used six weeks, I think, after it
has been procured. This red-tape busi-
ness, Mr. President, what you have to
do after you get hold of your sample,
will take a longer time to go through
than the  statute  of limitations  as is
provided  in  the  bill,  and  after  the
lapse of sixty days, I think it is, the
evidence could not be used at all.
  I  say, Mr.  President, with all  due
deference to  the views of the Senator
from Mississippi [Mr. MONEY] I  think
these cases should be  prosecuted  the
same as any  other case in  a criminal
court.  If  we  find  that a  defendant
willfully and maliciously imposes  up-
on  the  public and  a jury  of twelve
men with  all the evidence that either
the  prosecution or  the  defense  can
bring before them ascertain that he is
willfully disobeying the law, then he
is to be convicted; and nothing more
and nothing less ought to be in a  law
of this  character.
  Mr. NELSON. Mr. President, dur-
ing  the  early part  of  the  debate on
this bill the Senator from New Hamp-
shire  [Mr. GALLINGER] took occasion
to refer to an article from the Ameri-
can Druggist, I believe it is called, the
trade paper,  about  the action of the
Minnesota Pure Food Commission in
excluding  Lea  & Perrin's  Worcester-
shire sauce from that State. I told the
Senator at the time he quoted  from
the  paper that I thought  there  was
some mistake about it.  I had no facts
at my  command, but I was  not aware
of the fact that that sauce had been
excluded from our State.
   Since then  I  have ascertained the
facts in the  case, and I desire to have
the Secretary read first  an  article
from  the Minneapolis  Tribune  and,
second, two letters from the manufac-
turers  of this sauce  explaining  the
whole thing.
   The   VICE-PRESIDENT. Without
objection,  the Secretary  will read as
requested.
   The  Secretary read as follows:
            A BOOMERANG ATTACK.
   The enemies of pure-food legislation are busy,
 and are especially active now in discrediting
 pure-food laws  and officials, because  of  the
 fight that is on at Washington for  national
 pure-food legislation. A sample of the literature
 being scattered  abroad is the pamphlet headed
 "An example of the despotism of pure-food
 laws," reprinted from the  National Druggist.
 It attacks the Minnesota dairy and food com-
 missioner viciously for enforcing  the  law
 against a largely used proprietary food product,
 found to contain salicylic acid.
   As Mr. Slater's interview in the  Journal
 shows,  the whole incident is misstated  in the
 pamphlet. The  product was  not barred from
 Minnesota, and  no man waa injured  in his
 business. The manufacturers were merely in-
 formed that  their article was  illegal  in  this
 State and must not be  sold after  January  1
 unless it could be made without salicylic acid as
 a preservative. The manufacturers complied at
 once. They  found  that the product could be
 made to keep without  any preservative,  and
 they are now making it in  strict conformity
 with the law.
   If the enemies of pure-food regulation  can
 not find better  cases than  the Minnesota  one,
 they would help their cause by keeping still. The
 law barring  salicylic acid from food  products
 is based on  the  fact that its continued use is
 injurious to  the health. Without confiscating
 any goods or injuring anyone, Mr. Slater has
 caused the manufacturers to reform their prac-
 tice, and the consumers are no longer com-
 pelled to take doses of  salicylic acid with  this
 particular preparation.
   The poor, injured manufacturer is given al-
 together too much sympathy by these defenders
 of personal liberty. The public health  is a  big-
 ger thing than a maker's  profits. The  law
 against preservatives is plain, and there is no
 excuse  for breaking it.  As  the case  in point
 shows,  there is a good  deal of humbug in the
 claims  that bottled and tinned food  products
 will  not keep  without preservatives.  If they
 will not keep in a natural state, the public will
 be better off  without them,  but the fact is  that
 with careful  and clean methods in the factory,
 nearly everything put up will remain unchanged
 without chemicals.
   Our  State  law is a great protection to the
 consumers and should be supported by a strong
 national law and a staff of experts to enforce it.
  (Minneapolis Tribune, January 13, 1906.)

                 EXHIBIT A.
               NEW YORK, December 6. HOB.
 E. K. SLATER, Esq.,
     Dairy and Food Commissioner, St. Paul,
     Minn.
   DEAR SIR:  Since our  consulting chemist, Dr.
 Francis Wyatt, had the pleasant interview with
 you  regarding  Lea & Perrin's Worcestershire
 sauce, when  you gave us permission  to use a

-------
 STATUTES AND LEGISLATIVE HISTORY
                                   421
 small amount of  benzoic  acid, and we subse-
 quently  sent  you some samples, which  you
 passed as legal, we are pleased to tell  you that
 we have gone on  experimenting, and  find that
 we can eliminate  this preservative.
  We are sending you by express, charges paid,
 one bottle of sauce from our new makings. This
 is absolutely free  from all  preservatives, and is
 the sauce we are  now issuing, not only to your
 State, but throughout the  entire country.
  You will  remember that by your suggestion
 we put  a special mark on  the wrapper and
 direction label of each bottle containing benzoic
 acid; so, in order to avoid confusion,  we have
 retained the red star and  simply added a dash
 below, viz.  "	." We inclose a wrapper for
 your inspection.
  We assure you  that should you find any il-
 legal sauce on your market it will be old stock,
 and that any stock now shipped by us will be
 absolutely free from all preservatives. We thank
 you for  your courtesy and leniency shown  to
 us, and trust that the pleasant relations now
 existing will always continue.
  If you feel that you  can give us an analysis
 pronouncing the sample free from preservatives
 and legal in your State, we  would greatly  ap-
 preciate  it, and we need  hardly say  that an
 announcement in  your monthly bulletin would
 be of great benefit to us.
  We beg to remain, dear sir,
      Yours, very truly,
                   JOHN DUNCAN'S SONS.
                EXHIBIT  B.
              NEW YORK, January 11, 1906.
 EDWARD K. SLATER, Esq.,
    Commissioner, Dairy and Food Department,
    St. Paul, Minn.
  DEAR SIR: We are in receipt of your  esteemed
 favor of the 8th instant, regarding an  editorial
 which recently  appeared in  the pages of the
 National Druggist, of St. Louis. You are quite
 right in assuming that we did not instigate any
 criticism in the work of your department. This
 article only came  to our attention a short time
 ago. We assure you that  we are in  no way
 responsible for its publication, and had nothing
 whatever to do with it; this was published with-
 out our knowledge or sanction.
  We can only  express our regrets, that after
 the very fair treatment you have accorded us
 any parties should have made use of the name
 of Lea & Perrins  to write such an article. We
 were as much surprised and grieved to  see it as
 you would have been yourself.
  Thanking you for giving ua this opportunity
 of explaining our position in the matter,  we
 remain, dear sir.
      Yours, very sincerely,
                   JOHN DUNCAN'S SONS.

  Mr.  GALLINGER.  Mr.  President,  I
desire simply  to make a  very  brief
observation concerning the papers the
 Senator  from  Minnesota  sent to  the
 desk.  In the first place,  the editorial
 from  the Minnesota  newspaper  talks
 about what the  enemies  of pure-food
 legislation are trying  to do,  and  of
 course I am placed in  that category.
 The editor will be better able to judge
                               [p. 2665]
 when  this debate is through and when
 the  vote  is taken  whether I  am  an
 enemy of pure-food legislation or not.
   Again, Mr.  President, it will be  ob-
 served   that   this   commissioner   of
 Minnesota,  finding  salicylic  acid  in
 Lea & Perrin's sauce (he does not say
 whether it was  in poisonous quanti-
 ties or  not)   in his discretion  per-
 mitted it to be  sold  in the State for
 a  certain length  of time  after which
 it was  to be  barred—that is, under
 his  administration of  the  pure-food
 laws of Minnesota  the people of that
 State  could poison  themselves by us-
 ing this sauce for two or three months,
 and they must  cease to   do  so after
 that  time  had expired.  I think  that
 simple suggestion shows  the  absurd-
 ity of the entire proceeding.
   I think I may take occasion before
 the debate closes to  show that while
 salicylic  acid  and  boracic  acid  are
 perhaps  poisonous  in  the  concrete
 sense, yet they can be used in minute
 quantities, as  salicylic  acid has  been
used in minute quantities  in this par-
ticular preparation, without any harm
whatever to the human system.
   That is all  I care to  say about the
matter at present.
   Mr. NELSON.  Mr. President, I am
surprised at  the statement  of  the
Senator from  New Hampshire. He  in-
timates in his statement that the dairy
and food authorities having that mat-
ter  in charge concluded  to  let  the
people of the  State use poison for a
brief time. That is a very unfair state-
ment.  The facts  were that  they had
a  lot of goods manufactured contain-
ing  certain preservatives which  our
State authorities said were not proper,

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422
LEGAL COMPILATION—PESTICIDES
and not to treat them harshly, in or-
der that they might manufacture the
product in a  different  way, they did
not change the rule  immediately. That
the Senator criticizes and  finds fault
with, while, in  the  first instance,  he
called attention to the arbitrary con-
duct  of the dairy and  food  commis-
sion  of  Minnesota  in  excluding1  the
sauce, when, as a matter of fact, they
never absolutely excluded it.
  Mr. ALLISON.  Mr.   President,  I
now renew the  suggestion I  made at
an earlier hour today  respecting the
arrangement  concerning  the  debate
on the pending bill. I  ask that it be
read.
  The VICE-PRESIDENT. The  Sen-
ator  from Iowa offers the following,
which will be read.
  The Secretary read as follows:
  In lieu of the  unanimous-consent agreement
of February 13,  1906: It is agreed by unani-
mous consent that on to-morrow. Tuesday, Feb-
ruary  20, at S o'clock p.m., and on Wednesday,
February 21, immediately upon the conclusion
of the routine  morning business, the Senate
will proceed to the consideration of the bill S. 88
"for preventing: the manufacture, sale, or trans-
portation  of  adulterated  or misbranded or
poisonous or deleterious foods, drugs, medicines,
and liquors, and for regulating traffic therein,
and for other purposes;" that debate shall pro-
ceed under the ten-minute rule; that for this
purpose the unfinished  business  shall be tem-
porarily laid aside  on Wednesday; and that at
5 o'clock on said  day (Wednesday, February 21,
1906)  the  Senate  will  begin voting without
further debate upon the amendments pending
or then to be offered, and will vote upon the bill
itself before adjournment.

  Mr. HEYBURN.  I will inquire of
the Senator from Iowa if he did not
intend to include the amendments in
the portion of the unanimous-consent
rule he offered, when he proposes that
the   Senate  shall  proceed  with  the
consideration of the bill. It should be
"the  bill  and amendments." It is the
amendments,  I understand,  that are
to be considered under the ten-minute
rule.
  Mr. ALLISON. The bill and amend-
ments. I do  not object  to  that, of
course. We can not consider the bill
 without considering the  amendments
 that are offered.
   Mr.  HEYBURN.  What I want  to
 get at is, Does the Senator intend that
 only the bill itself shall be proceeded
 with under the ten-minute rule ?
   Mr. ALLISON. Well, the bill	
   Mr. HEYBURN. The Senator's sug-
 gestion this  morning  was  that the
 amendments should be considered.
   Mr.  ALLISON. I think you would
 eliminate  the ten-minute rule if you
 should discuss the  bill  without con-
 sidering  amendments.  I think  it  is
 necessary now that at  3 o'clock  to-
 morrow the  debate shall be confined
 to the amendments.
   Mr. HEYBURN. That is what I un-
 derstood this morning.
   Mr. ALLISON. Therefore I  provide
 for general discussion of the  bill be-
 tween  the conclusion  of  the morning
 business and 3 o'clock.
   Mr.  HEYBURN.  I wish to  make a
 suggestion.  As I understand the pro-
 posed agreement, in proceeding under
 the  ten-minute   rule  those  having
 charge of the bill would only  be per-
 mitted to  speak ten  minutes  on the
 bill  itself.  That  is all  right as  to
 amendments.  Ten  minutes is  quite
 sufficient  time,   I  think,  on  each
 amendment,  but  as to the bill itself,
 those having charge of it would per-
 haps want  to occupy more than ten
 minutes.
   Mr.  ALLISON. If the Senator  de-
 sires  to  occupy  more than ten min-
 utes he will have no trouble in  doing
 so.
   Mr. HEYBURN. I do not know that
 those having the bill in charge would
 want more  than  ten minutes to reply
 to  any attack that might be  made
 upon it, but this is different from the
 proposition made this morning.
   Mr.  ALLISON.  The  Senator will
 see that I provide for general debate
 until 3 o'clock tomorrow and that af-
 ter 3 o'clock the  debate  shall continue
 under  the ten-minute rule, and that

-------
STATUTES AND LEGISLATIVE HISTORY
                               423
continues during Wednesday. It is in
lieu  of the former  agreement,  which
would have required us to begin vot-
ing on Wednesday  immediately after
the conclusion  of the  morning busi-
ness.
  Mr. HEYBURN. I am in entire sym-
pathy with the proposed rule except
I want to be protected  in having time
enough to answer such attacks as may
be made on us.
  Mr. ALLISON. I should think be-
tween  the morning hour  tomorrow
and 3 o'clock would be time enough.
  Mr. HEYBURN.  But it is difficult
to tell what will be  done after that in
the way of attack on the bill.
  Mr.  LODGE. Nobody  can  speak
jnore than ten minutes  after 3 o'clock.
  Mr. HEYBURN.  I may not be able
to speak at all. I should like to have
the opportunity to  meet such an at-
tack as may  be made  upon  the bill.
I might want to reply to it; that is the
idea.
  Mr.  HOPKINS.   I suggest to  the
Senator to make an  additional request
that he be given twenty minutes to
reply.
  Mr. SPOONER.  The Senator need
not be afraid of anything unfair.
  Mr. HEYBURN.  I am  not afraid
of  anything   unfair;  only  circum-
stances might arise.
  The  VICE-PRESIDENT.  Is  there
objection to the request of the Senator
from Iowa?
  Mr. HEYBURN.  I have  no  objec-
tion.
  The VICE-PRESIDENT. The Chair
hears none, and it is  so ordered.
  Mr. HEYBURN.  I am advised that
the copies of the bill are exhausted,
and I would  ask unanimous consent
that, say, 250 copies  be printed.
  Mr. KEAN. Let us have a reprint
with  the  amendments  agreed   to
printed in italics.
  Mr. GALLINGER. And the amend-
ments offered printed in brackets.
  Mr. HEYBURN.  I have  no  objec-
tion.
  Mr.  KEAN.  Then we can readily
understand what  the bill really is or
what it is proposed to make it.
  The  VICE-PRESIDENT. The  Sen-
ator from Idaho asks that 250 copies
of the bill, with the pending amend-
ments in brackets, be printed	
  Mr.  KEAN. With the amendments
that have been agreed to in italics
and  the amendments  that have been
offered in brackets.
  The  VICE-PRESIDENT. With  the
amendments offered in  brackets,  and
the amendments already agreed to in
italics. Is there objection to the re-
quest? The  Chair hears none, and it
is so ordered.
  Mr.  GALLINGER.  I  offer certain
amendments  which  I  ask  may  be
printed and lie on the table.
  The   VICE-PRESIDENT.   The
amendments will  be printed and  lie
on the table.
                           [p. 2666]
          PURE-FOOD BILL
  The VICE-PRESIDENT. The morn-
ing business is  closed, and the Calen-
dar under Rule vm  is in order.
  Mr. MONEY. Before  going to that
business, I should  like to have consent
to have  printed  250 copies of  the
amendment I offered to what is known
as the  "Heyburn bill." The copies are
exhausted, I am informed,  and there
is a demand  for additional copies.
  The  VICE-PRESIDENT. The Sen-
ator from Mississippi asks  that  250
copies of his amendment to Senate bill
88, commonly known as the "pure-food
bill," be printed. Is  there objection to
the request?  The Chair hears  none,
and it  is so ordered.
  Mr. HEYBURN. Mr. President, un-
der  the  unanimous-consent rule  of
yesterday  it  was  agreed that at 3
o'clock today Senate bill 88  should
come up under the ten-minute rule.
I suppose that agreement  was  not
intended  to  preclude  it from  being
taken up before that  time under  the
general rule for consideration.

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424
LEGAL COMPILATION—PESTICIDES
  The VICE-PRESIDENT.  The Sen-
ator can have the bill taken up now
by unanimous consent.
  Mr. KEAN. I think it was distinctly
understood that it was  to  come  up
immediately after the routine  morn-
ing business today.
  The VICE-PRESIDENT.  But  the
unanimous-consent agreement applied
only to the time after 3 o'clock.
  Mr. HEYBURN.  I have  risen  for
the purpose of asking unanimous con-
sent that  the Senate proceed to  the
consideration of Senate bill 88.
  There being no objection,  the Sen-
ate, as in Committee of the Whole,
resumed the consideration of the  bill
(S. 88)  for preventing the  manufac-
ture,  sale,  or  transportation of  adul-
terated  or  misbranded  or  poisonous
or deleterious foods, drugs, medicines,
and liquors, and for regulating traffic
therein, and for other purposes.
  Mr. HEYBURN. I have understood
from the Senator from Massachusetts
[Mr.  LODGE] that he desires to take
up  the amendment offered by him at
this time. However, I do  not see him
in his seat.
  I desire this morning to offer a com-
mittee amendment of which I gave no-
tice when I first called up the bill for
consideration. It is for the purpose of
perfecting the language  in  the latter
part  of section 4.
  The  VICE - PRESIDENT.  The
amendment proposed by  the Senator
from Idaho will be stated.
  The  SECRETARY.  On page  5  of  the
reprint, line 3, after the  word "and"
and before the word "public," insert
the words  "after final judgment;" on
page  5, line  4, strike out  the word
"the," at  the beginning  of  the  line,
and insert the word "such;" on page 5,
line 4, after the word "as,"  insert the
words  "may  be  prescribed  by;"  on
page 5, line 5, after the word "regula-
tions," insert "by the Department of
Agriculture;"  and  strike out,  after
the word "Agriculture," in the  last
 amendment, down to the beginning of
 line 9.
   The  VICE-PRESIDENT.  The
 amendment proposed by the  Senator
 from  Idaho will be printed and lie on
 the table.
   Mr. HEYBURN.  I will ask, while
 the Senator  from  Massachusetts  is
 otherwise  engaged,  that  the  letter
 which I send to the desk may be read.
   The VICE-PRESIDENT. The Sen-
 ator from  Idaho requests the reading
 of a letter. Without objection, the Sec-
 retary will read it.
   The Secretary read as follows:
           ATLANTA, GA., February H, 1906.
 Hon. ME. HEYBURN, Washington, D.C.
   MY DEAR SIB: Would you kindly have forward-
 ed to Mr. John A. Green, president National
 Retail  Grocers' Association, of Cleveland, Ohio,
 a copy of the Heyburn Senate bill. No. 88,
 introduced December 14, 1905?
   As chairman of the pure-food committee of
 the National Retail Grocers' Association, I wish
 to inform you that your bill meets my hearty
 approval and indorsement. We have requested
 the retail distributors of food  products through-
 out the United States to write their Representa-
 tives in Washington, urging them to support
 the passage  of this measure. Our committee
 stands  in readiness to go to Washington at any
 time, should our services be required.
       Yours, very truly,
                A. W. PAELINGEK,
        Chairman Pure Food Committee,
        National Retail Grocers' Association.
    Mr. HEYBURN.  I  desire  also  to
 send  to the desk for reading a resolu-
 tion bearing upon this  question.
    The  VICE-PRESIDENT.  Without
 objection,  the Secretary will read  as
 requested.
    The Secretary read as follows:
   As the Heyburn bill (S. 88) has been reported
 on favorably by a special  committee of the
 national legislative council  of the American
 Medical Association,  and as we daily see the
 necessity of legislation against fraudulent foods
 and drugs in order that the  public health may
 be preserved, and as such legislation has been
 annulled in previous sessions, owing to hostility
 in the  United States Senate: Therefore, be it
   Resolved,  That  we,  the  members of the
 Omaha-Douglas County Medical Society, will,
 individually  and collectively, do  all in our
 power, both morally and politically, to support
 this measure and also that  our Senator, Mr.
 MILLARD, be strongly urged to give this bill his

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STATUTES AND LEGISLATIVE HISTORY
                                     425
support and that a copy of this resolution be
sent to Senator MILLARD.
  [SEAL.]
           WARREN H. SLABAUQH, President
           JOSEPH M. AIKIN, Secretary
OMAHA, NEBR., February It. 1906.
  Mr.  HEYBURN. I  will state  that
that  was sent  to me by the  Senator
from Nebraska  [Mr. MILLARD], and I
have taken the liberty on his reference
to use it.
  Mr. President, while waiting for the
Senator  from Massachusetts  to  take
up  his amendment I desire to call the
attention of Senators  to  section  4 of
this proposed act.
  Mr.  McCUMBER.  If  the  Senator
from Idaho  will  yield  to me for  just
a moment, as he is—
  The  VICE-PRESIDENT. Does the
Senator  from Idaho yield to the  Sen-
ator from North Dakota?
  Mr. HEYBURN.  Certainly.
  Mr. McCUMBER. As the Senator is
introducing resolutions, I simply desire
also to introduce a resolution in refer-
ence  to this  subject and have it read.
I will  say,  in the  first instance,  that
the resolution is one on behalf  of the
National  Retail  Grocers'  Association
of the United  States,  and represents
an immense body.  It is  a letter written
to Mr.  Barrett, editor of the American
Grocer, who requested that it should be
presented to me. I ask that it be  read
in connection with the resolution  that
has just been read.
  The  VICE-PRESIDENT.  Without
objection the Secretary will read it.
  The  Secretary read as follows:
           ATLANTA, GA., February 14,1906.
  EDITOR AMERICAN  GROCER,  NEW YORK: In
reply  to your favor of recent  date would beg
to say that I agree with you  and that  I am
very much disappointed at the action of our
convention in laying on the  table the resolution
indorsing the  Heyburn Bill.  This bill and this
bill  only embraces  all points  that the  retail
grocers of the United States have been contend.
ing  for during the  past  twenty years. We
have in this bill the protecting clause for which
we so strenuously contested, and surely  every
retail  distributor of food products would  pro-
tect himself by taking  a  guaranty  from the
manufacturer  or  jobber from  whom he pur-
chases. What more could we ask?
  President John A. Green has appointed me
chairman of the pure-food committee of the
National Retail Grocers' Association for the
ensuing year, and I can assure you that our
committee will  continue to work in the future
as we have in  the past, concentrating our ef-
forts  upon  the only  fair,  honest bill,  a bill
which has been before Congress for the past
                                 [p. 2719]
five years, a bill which is indorsed by the hon-
est manufacturer, and  there are thousands of
them, a bill which  has been  indorsed several
times by the National Retail Grocers' Associa-
tion,  a bill which  is  indorsed by  Secretary
Wilson,  of the Department of  Agriculture, and
which meets the approval -of  the President of
the United States, and the only bill which has
a shadow of hope of passing. I can assure you,
Mr. Editor,  and I reiterate our efforts will  be
concentrated upon this, and I trust the influence
of the National Association will sustain us in
working for the Heyburn bill,  known as Senate
bill No. 88, and now before the Senate of the
United States.
  I trust that through the editorial columns of
the American Grocer, as well  as the editorial
columns of all the trade papers throughout this
nation, we may have one strong appeal made to
the retail distributors of food products in every
State  and Territory of the Union to at once
wire  and write their Representatives, urging
them  to support this measure. This bill will
pass  during the present session if the retail
grocers of this country concentrate their efforts
and do their full duty. I commend your efforts
in the past and trust that in the future you
will cooperate with us in one  concentrated ef-
fort for the passage of this equitable and im-
portant bill. Should this bill  pass during the
present  session of Congress  the grocers will
have a prestige in the nation that they never
dreamed of. We are battling for the  right and
the right always wins.
      Yours, most sincerely,

                A, W. FARLINGER,
        Chairman Pure Food Committee,
         National Retail Grocers' Association.

  Mr.  HEYBURN. I desire to send to
the  desk  another  resolution  to have
read.
  The  VICE-PRESIDENT. The  Sec-
retary will read it.
  The  Secretary read as  follows:
     HOMOEOPATHIC MEDICAL SOCIETY
              OF THE COUNTY OF KINGS,
             Borough of Brooklyn, New York,
                        February 17, liOS.
   Resolution adopted by the Homoeopathic
    Medical Society of the County of Kings,
            February 13, 1906.
  Whereas the  prosperity and happiness of  a
nation depend more on the health of the people

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426
LEGAL COMPILATION—PESTICIDES
than any other factor, and the health of the
people is vitally dependent upon the purity of
the food products and medicinal agents: There-
fore, be it
  Resolved, That we, the members of the Hom-
oeopathic Medical  Society of  the County of
Kings, do hereby pledge ourselves to  do all in
our power to arouse public  interest  in the
Heyburn pure-food bill, which is now before
the United States Senate; and be it further
  Resolved, That  we urge our Senators and
Representatives to use their influence  in every
way to secure the passage of this bill; also, that
copies of this resolution  be forwarded to the
Senators from this State and  Representatives
from Kings County and to Senator HEYBURN.
                RALPH I. LLOYD, Secretary.

   Mr. HEYBURN. I send to the desk
and desire to have read an article from
a  Chicago paper.
   The  VICE-PRESIDENT. Without
objection, the  Secretary will  read  as
requested.
   The Secretary read as follows:
  FOB THE PURE-FOOD BILL—RESOLUTIONS  PASSED
   BY THE NATIONAL EXHIBITORS AT CHICAGO.
               CHICAGO, February 17.1906.
  Resolutions urging Congress to pass the Hey-
burn pure-food bill, now pending in the Senate,
were adopted unanimously at  a meeting held
under the auspices of the National Dairy and
Pure-Food Show interests yesterday.
  The meeting was the first in a series of pure-
food symposiums  to  be held  during  the con-
tinuance of the exhibit,  and  each of the six
speakers strongly emphasized  the urgent ne-
cessity of national legislation which will afford
citizens protection against food products adul-
terated with aniline and coal-tar dyes.
  It  was declared  that nothing short of a na-
tional law would be an adequate remedy against
unscrupulous  manufacturers  and dealers  in
adulterated products, and it  was urged that
the public, especially the women of the country,
make themselves acquainted with the nature of
the goods  they buy,  and that they  purchase
nothing but the purest goods.
  The  resolutions  were  introduced  by Paul
Fierce, superintendent of the Government's ex-
hibit at the show, who was made chairman of
the meeting.
  Nearly 200  persons, many of whom were
women,  attended  the  meeting.  The  speakers
were G.  Edward Fuller; Prof. J. M. Trueman,
of the University of Illinois; Edward K. Slater,
food commissioner of Minnesota; J. D. Miller,
commissioner of health; Charles J. Whalen, and
A. Hanby Jones, food commissioner of Illinois.

   Mr. HEYBURN.  Mr.  President,  I
believe the  Senator  from Massachu-
setts [Mr. LODGE]  desires to take the
 floor at  this  time on  the amendment
 heretofore offered by  him, and  I will
 yield to him.
   Mr.  LODGE.  My  amendment,  on
 page 8,  is pending.  I  hope  it will be
 adopted by the Senate  when  it is voted
 on. It simply provides that the test of
 food products shall be  made when they
 are in the condition  in which they are
 actually consumed, and not in the con-
 dition in which  they  are necessarily
 transported.  The   amendment   was
 drafted by Doctor Wiley. I do not mean
 to say that it is his amendment in any
 sense, but he drafted  it in order that
 it  might be put in proper  form.  It
 simply provides that where a preserv-
 ative is used, which it is necessary to
 remove  mechanically or by maceration
 in water or otherwise, the provisions
 of this proposed act  shall be construed
 to apply only when  such products are
 ready for consumption. That seems to
 me a perfectly reasonable proposition.
 It does  not affect the bill  at all.  It
 simply prescribes the  condition as to
 which the terms of the bill shall apply.
 It relates directly to the preservatives
 used for meats and fish.
   Mr.  HEYBURN.  Mr.  President, if
 it were confined to the class of articles
 to  which  the  Senator  from Massa-
 chusetts has referred, there  might be
 no objection, but the amendment is in
 general terms. There are some articles
 which  might  safely, for the purpose
 of  transportation,  be surrounded by
 conditions such as  are anticipated by
 this amendment, while there  are other
 articles that could  not be. If it were
 simply  applied to  the wrappings of
 fish  and  meat  for  the  purpose of
 protecting them  in  shipment or  pre-
 serving them under the  conditions of
 shipment,  it  might be  that  if   the
 conditions were limited  to that class
 of  articles it would do no harm; I am
 not sure. It would depend on how far it
 was  carried.
   I understand that  the packers of

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STATUTES AND LEGISLATIVE HISTORY
                                427
meat and fish  desire to inclose those
articles in wrappers that are saturat-
ed with or in some way contain these
preservatives which are not supposed
to penetrate the articles which they in-
close. Now,  if  the provision was so
guarded that this wrapping was of
such a character as would  not injure
the articles  of  food, it would do no
harm, but the  amendment  is couched
in general terms. There are a great
many things  that would be permanent-
ly injured by   reason  of  coming in
contact  with these preservatives.  For
instance, if the preservative was con-
fined to the wrapper alone, so that it
might  not penetrate the  substance,
but if it was rubbed in and could only
be removed by a process of  soaking or
boiling or washing, then, of course, it
would be at the mercy of the care that
was taken to remove it  by those who
were preparing it for use.
  Mr. LODGE.  Does  the Senator sug-
gest to limit  the provision to fish  and
meat products?
  Mr. HEYBURN. Just let me refer
to the provision.  It  is on  page 8, I
believe.
  Mr. LODGE.  On page 8.
  Mr. McCUMBER.  Mr. President, I
will  suggest to  the Senator  from
Massachusetts  an  amendment to his
amendment which would contain these
words:
  Provided. That the package or wrapper con-
taining it shall  also contain directions for re-
moving such preservative.
  Mr. LODGE.  I have no objection to
that, of course.
  Mr. McCUMBER. That, it seems to
me, would at least afford a remedy.
  Mr. LODGE. That, I think, would
cover the objection of the Senator from
Idaho [Mr. HEYBURN].
  Mr. HEYBURN. I will  make this
suggestion;  I think this is necessary
in order to  cover my objection; The
word "application," in line 22, is of an
indefinite and rather elastic  scope. The
"application" might be in the wrapper,
but  it might be a saturation of the
article itself. Now, if instead of saying
"by  an application,"  say "by an ex-
ternal wrapper"—
  Mr. LODGE. Oh,  no.  That  would
destroy  the  whole  purpose  of  the
amendment.
  Mr. HOPKINS. The amendment of-
fered  by  the Senator  from  North
Dakota  will,  I  think,   remove  the
objection.
  Mr. LODGE. I think so.
  Mr. McCUMBER.  I  simply  made
that  as  a suggestion. The Senator's
amendment provides:
  Provided further, That when in the prepara-
tion of food products for shipment they are
preserved by an external application  applied
in such manner that the preservative is neces-
sarily  removed mechanically or by maceration
in water or otherwise, the provisions of this act
shall be construed as applying only when said
products are ready for consumption.
  I propose to leave out  the  latter
part  after the word "otherwise,"  and
add:
  Provided, That the package  or wrapper con-
taining it shall also contain directions  for re-
moving such preservative.
  Mr. LODGE. The Senator proposes
to insert that language after the word
"otherwise," in line 24?
  Mr. McCUMBER. Yes. My  point is
simply this: You may use boracic acid.
It may be in the wrapper, and it may
penetrate a very little, if any, into the
ham.  Otherwise  it could  be  washed
off; and  if that direction was on the
wrapper  itself, or the cloth covering
the ham, the people would be protected,
as they should be.
  Mr. LODGE. Mr. President	
  The VICE-PRESIDENT. Does the
Senator from Idaho yield to the  Sena-
tor from  Massachusetts ?
  Mr. HEYBURN. Certainly.
  Mr. LODGE.  I  will accept  the
                           [p.2720]
amendment of the Senator from North
Dakota [Mr. McCUMBER], and modify
my amendment by inserting, after the
word  "otherwise," on page 8, in  line

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428
LEGAL COMPILATION—PESTICIDES
24, where it reads "the preservative is
necesssarily removed mechanically or
by maceration in water or otherwise"
—to insert at that point:
  And when the package or wrapper containing
it shall  contain directions for removing such
preservative or application.
  The  VICE-PRESIDENT. The Sen-
ator's  proposed modification  to  his
amendment  will be stated at the desk.
  Mr. LODGE. Of course, I suppose I
am at liberty to make the modification
so that the question on the amendment
will be put in that modified form ?
  The  VICE-PRESIDENT. That is
the right of the Senator. The  modifi-
cation  of the amendment will be stated
at the desk.
  The  SECRETARY. On page  8, line 24,
in the  new print of  the bill, after the
word "otherwise,"  it  is proposed to
insert:
  And when the package or wrapper containing
it shall  contain directions  for removing such
preservative or application.
  The   VICE-PRESIDENT.  The
amendment as modified will be ordered
to be printed and lie on the table.
  Mr.  LODGE. If  the Senator from
Idaho  is ready  to accept the  amend-
ment,  I shall be very glad  to  have a
vote upon it. I do not want to  modify
it any further  in view of the  amend-
ment I have accepted.
  Mr.  HOPKINS. It would not be in
order  to  vote  upon the amendment
now.
  Mr.  HEYBURN.  I do not  think I
would  be  at liberty to accept  the
amendment, Mr. President.
*****
  Mr.  President, when  I yielded to
the Senator from Massachusetts [Mr.
LODGE] I was proceeding to consider
section 4 of this bill.  I feel it due to
the conditions to make a statement in
regard to the particular provisions of
this section, because the newspapers,
at least to some extent, and those who
are  opposing this bill generally, are
charging that by these provisions the
 power is placed  in  the hands of one
 man—namely, the Chief  Chemist, or
 head of  the Bureau of Chemistry—to
 determine standards,  and  that  it is
 within his power, under the provisions
 of  this  bill, to  proscribe articles of
 commerce and denounce them in such
 manner  as to seriously affect or injure
 the trade in them. If there is anything
 that  this bill, and especially that this
 section of it, does not provide, it is for
 the fixing of standards by anybody. If
 there is  anything that is  not provided
 for or permitted under this bill, it is
 that  the Chief Chemist,  or the Chief
 of the Bureau of  Chemistry, shall have
 power to denounce anything under any
 circumstances  or to place a ban  upon
 anything or, as I stated yesterday, to
 place the ban of  disapproval  upon
 anything. He is  given no such power.
 He is simply the agent of the courts
 to  gather testimony upon these  ques-
 tions for the purpose of being used at
 the trial in  the  court room  and no-
 where else.
   He publishes no bulletins in regard
 to  his labors  or  his investigations of
 such articles  as  may  come under his
 charge for that  purpose; he takes no
 proceeding; he exercises  no authority
 either to denounce  an article, to stop
 commerce in  it, or  in  any way to
 affect it. I feel it due to this bill and
 to  the subject to make this statement
 at  this time in order that if any Sen-
 ator can find anything in  this bill upon
 which to base a different interpreta-
 tion, he  may  have the opportunity of
 doing so, and in order that the country
 may understand  that this bill must not
 be  confused with bills which have been
 introduced in this and in other branch-
 es  of the legislative department of this
 Government to provide for the fixing
 of  standards.  This  bill fixes  no  stan-
 dard upon anything;  it authorizes no
 officer to fix any standard. It provides
 that the courts,  and the  courts alone,
 may determine  whether or  not an
 article is contraband under the provi-
 sions of this act. The object in avoid-

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STATUTES AND LEGISLATIVE HISTORY
                                429
ing  any  possible  construction  that
might be held to be fixing a standard
was that the bill might never come in
conflict with the pure-food legislation
of the various States. The States have
established  different standards,  and
they have a right to do so. Inasmuch
as those standards vary, it would be
impossible for  an act of Congress,  a
general law,  to avoid  some conflict
with some of those  State laws if  you
should undertake to fix  standards.
  The substitute offered by the  Sena-
tor  from Mississippi  [Mr.  MONEY]
undertakes to fix standards and pre-
scribe  what per cent of this  or what
per cent of  the  other may be permis-
sible or may be forbidden. We can not
accept that substitute because it would
violate  the  underlying  principle,  one
of the strongest principles of this bill;
it  would attempt  to fix standards or
authorize someone to do so.
  The amendment offered by the  Sena-
tor from Washington [Mr. PILES] in
regard  to condensed milk  undertakes
to fix a standard as to the percentage
of solids, the butter fats that may be
contained in  that product.  That is
obnoxious to the spirit and the prin-
ciple of this bill which  seeks to  avoid
that. The percentage of alcohol or the
percentage of any other article  to be
found in a substance subject to exam-
ination under the  provisions of this
bill  is  avoided.  I repeat the  Chief
Chemist and   the  agencies  of  the
Department  of Agriculture, of  the
Department of Commerce and Labor,
and  of the  Treasury Department of
the United  States are  mere agencies
for the purpose  of gathering informa-
tion  throughout the country  through
the  present existing  machinery  of
those Departments, without the crea-
tion  of any  new Department, without
the creation of any board, without the
creation of  any additional machinery
of Government to gather these speci-
mens for test, and that test simply
consists in determining  the existence
or nonexistence of a fact.
  Mr. GALLINGER.  Mr.  President
  The VICE-PRESIDENT.  Does the
Senator from Idaho yield to the Sen-
ator from New Hampshire?
  Mr. HEYBURN. Certainly.
  Mr. GALLINGER. The Senator is
so well  informed on this  subject that
I want  him to give me a little  infor-
mation, which, no doubt, he can do. It
has been suggested that in the Depart-
ment of Agriculture they are engaged
in the matter  of fixing standards.  I
know nothing about it.  If the Senator
will turn to page 6—I presume this is
entirely  explainable—on  line  22, he
will find the bill speaks of "the stan-
dard of strength, quality, or  purity to
be plainly  stated  on the box, bottle,"
and so forth; and in lines 24 and 25,
"if  the  strength or purity fall  below
the  professed   standard  or quality
under which it is sold." I presume the
Senator can explain that in conformity
with the statement he has just made
that there is to be no standard.
  Mr. HEYBURN. Mr. President,  I
think I  can explain it.  The professed
standard is fixed by the manufacturer
or  the  seller.  The  language of  the
measure is—
it differs from the standard of strength, quality,
or purity, as determined by the test laid down
in the United States Pharmacopoeia or National
Formulary.
  That is not the fixing of a  standard
within the  scope of the criticism that
has been urged against this bill, be-
cause that  is a  standard fixed by the
recognized   dictionary  or   scientific
work, and is recognized as the rule by
which the whole country is  governed.
  Mr. GALLINGER. That relates to
drugs.
  Mr.  HEYBURN. That relates to
drugs. Those are recognized  works of
determination, the  result  of  analyses
and of experience combined. The other
limitation to which the Senator  has
called my attention is:
  Provided. That no drug not  denned in the
United States Pharmacopoeia or National Form-

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430
LEGAL COMPILATION—PESTICIDES
ulary shall be deemed to be adulterated under
this provision if the  standard of strength,
quality, or purity be plainly  stated upon the
bottle, box, or other  container thereof as orig-
inally packed.
  There the   manufacturer  himself
states the standard.  This  bill'  only
requires him to tell the truth about it.
In  general aspect this bill  might be
termed "an act to compel the telling
of the truth in regard to the business
in which men are engaged."
  Mr. GALLINGER.  I  assume  that
that proviso  refers more particularly
to so-called "proprietary  medicines."
                            [p. 2721]
  Mr. HEYBURN. Yes; it is intended
to cover the'm undoubtedly.
  Mr. GALLINGER.  They  are com-
pounds, and  I  do not  see  how  the
manufacturers can really  state  the
standard  of  a package  if  they have
got four or five or six or seven differ-
ent ingredients in the mixture;  they
may be good or bad—I think they are
generally bad—but how they can state
the standard of  the  package or  the
purity of it is beyond  me. I think they
may  show the  different  ingredients
are pure, but just what  standard they
can fix I cannot  comprehend.
   Mr. HEYBURN. Well, if they  can
not do it,  then they ought not, under
any conditions, to be permitted to put
their nostrums upon the market. If  a
man can not tell the public what he is
offering them, he ought not to be al-
lowed to offer it to them.
   Now,  referring to the   clause  to
which the Senator has called my atten-
tion, on page  7, line 5:
  Second. If its strength or purity fall below
the professed standard or quality under which
it is sold.
   Mr.  McCUMBER. Mr.  President
   The VICE-PRESIDENT. Does the
Senator from Idaho yield to the Sena-
tor from North Dakota?
   Mr. HEYBURN. Certainly.
   Mr. McCUMBER.  Let  me  call at-
tention here  to the fact  that  that
 provision  would  not  affect  a  case
 where they  do not have  a professed
 standard,  and, therefore, that would
 answer  the  question of the  Senator
 from  New  Hampshire.  If they  sell
 these  articles without any professed
 standard,  then, of course, they would
 not be liable for misbranding, if they
 did not  measure up  to that standard.
   Mr. GALLINGER. If the  Senator
 from Idaho will permit me, I think the
 Senator from North Dakota does not
 quite  comprehend   this  proviso.  It
 provides that any drugs not defined
 by the  United States Pharmacopoeia
 or the National Formulary, which are
 the established 'and recognized author-
 ities on  this subject, shall have stated
 on the box or bottle or container the
 standard  of strength,  quality,  or
 purity.  I do not see  that there is any
 exemption, and the  Senator's sugges-
 tion that  if they have not established
 a standard, they will not be required
 to do  it, it seems to me, does not meet
 the objection.
   Mr. McCUMBER. The Senator does
 not hold that the construction of that
 sentence would be that,  if they did not
 place  the  standard upon it or did not
 state the standard of strength, quality,
 or purity, it would follow  that it was
 adulterated?
   Mr. GALLINGER. I do hold to that
 because the proviso reads as follows:
   Provided, That no drug not denned in the
 United States Pharmacopoeia or National Form-
 ulary shall be deemed to be  adulterated under
 this provision  if the standard  of strength,
 quality, or  purity be plainly stated upon the
 bottle,  box,  or other container thereof as orig-
 inally packed.
   So  if the standard  is  not plainly
 stated upon  it I  think  it would come
 under the  ban.  That  would  be my
 opinion.
   Mr. McCUMBER. I  do not think
 that it  is so intended, and that is not
 my understanding of it.
   Mr. HEYBURN.  I think it should
 be so  construed, because I do not think
 any unnamed nostrum  should be sold
 upon  the  market as  a professed curer

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STATUTES AND LEGISLATIVE HISTORY
                                431
of disease. I do not think  any person
should be permitted to offer upon the
public market a medicine for professed
relief  against disease that  had  no
statement as to what the medicine was.
So that is a matter which  I think the
court will take care of.
  Mr. GALLINGER. But,  Mr.  Presi-
dent, the difficulty is that the Senator
by  indirection  is  going   to  utterly
destroy the  so-called "patent-medicine
business." If  that  is  the  purpose of
this  bill,  why not state  it?  That is
what this provision will do, according
to my interpretation of it. I am not
here to defend that class of people. I
have  very  little confidence in their
preparations,  but  they have  rights
under the law as it now exists,  and if
their business is to be destroyed, let us
state it specifically, so that everybody
will understand it.
  Mr. HEYBURN. It would  only de-
stroy those  who are unable, because
of the  facts, to state the strength,
quality, or purity of their articles.
  Mr. GALLINGER. And  the  stand-
ard.
  Mr. HEYBURN. And the standard.
  Mr. GALLINGER. They can not do
it.
  Mr. HEYBURN. If they can  not do
it, if they can not name  the article,
they ought not to be permitted  to sell
it.
  Mr. GALLINGER. It is  not a ques-
tion  of naming the  article.  In the first
place, it  is a very serious question
whether we are going to  require the
druggists  of  this  country who have
compounds,  some  of which are  not
public, to disclose exactly  what their
formula may be;  and in  the second
place, the difficulty is in establishing
a standard where there are two, three,
four, five  or six different  ingredients
in the so-called "medicine." I  do not
see how that can be done.  I think the
word "standard" at least ought to be
eliminated from that proviso.
  Mr. McCUMBER.  I think we  can
remedy that  by inserting after the
word "the," at the end of the second
line, the word "professed;" so that it
will read as follows:
  Provided, That no drug not denned in the
United  States  Pharmacopoeia  or  National
Formulary shall be deemed to be adulterated
under this provision if the professed standard
of strength, quality, or purity be plainly stated
upon the bottle, box, or other container thereof
as originally packed.
  Mr.  GALLINGER. I do not think
that covers it at all.
  Mr.  McCUMBER.  If it has no pro-
fessed standard, they will not be liable.
  Mr.  HEYBURN. We have absolute-
ly provided against  the charge that
this would require the publication of
the formula upon the bottle. In another
section of  the bill we have provided
especially that the formula need not
be printed.
  Mr.  GALLINGER.  Well, then,  will
the Senator state—because I am seek-
ing  light  on  this subject—what  he
would  expect these people  to place on
the bottles under this proviso?
  Mr.  HEYBURN.   Of course, that
would  be as variable as the  remedies.
There  is such infinite variety of these
nostrums that the  standards  would
vary according to the character of the
mixture.
  Mr.  GALLINGER. If they simply
state that this remedy is of a proper
standard, that the quality is good, and
it is  pure,  would   that  fulfill  the
requirements?
  Mr.  HEYBURN.  No;  they  would
have to conform to the  particular
medicine. I am not enough of a drug-
gist, I do not know enough  of the
technicalities  of  medicine,  to enable
me to analyze that and say just exactly
what would be required in each par-
ticular case; but  I  do say that that
provision has  been submitted to  and
approved by the medical board of the
Medical  Society  of the United States
and  by  innumerable minor  medical
associations, and I have had read from
the  desk  this  morning  from  both
schools of medicine,  the  unqualified
approval of that provision.

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432
LEGAL COMPILATION—PESTICIDES
  Inasmuch as  we of necessity went
to those sources  for  information  in
framing a  measure  of this kind, I
assume, the National Medical Associa- ,
tion,  the  National   Association   of
Druggists, the national associations of
both schools of medicine having ana-
lyzed that provision, that there must
be a  plain  and easy  solution of  the
matter.  I  doubt  if,  outside  of  the
Senator from New Hampshire, who is
learned  in  the science of  medicine,
there is a member of  this body who
could analyze.
  Mr. GALLINGER.  But the  physi-
cians who have examined this bill may
not  have had their  attention  called
directly  to  this provision. I am  not
going  to  oppose it beyond  repeating
what I  have just said,  that,  in  my
judgment, reading it  as I  do here
today, if that proviso remains  in  the
bill as it is now it will make it utterly
impossible for  the so-called "patent
medicine" dealers to continue in busi-
ness. If they  are required to establish
a standard, they can not do it.
  It is impossible for them  to  do it.
If the  Senator thinks that provision
ought to remain in the bill,  I have no
particular objection  to it, because I
think  these  men  will  find  a remedy
somehow. The Senator does not require
them, in another provision of the bill,
to disclose  their formulae.  I think a
bill  passed one branch  of  the New
Hampshire legislature last winter re-
quiring them to do that thing. It did
not become a law.  There is a great deal
of contention in certain quarters that
they  ought to do that for the  benefit
of the public. I do not know whether
or not that would be good legislation.
But this bill specifically excludes them
from  disclosing their formulae,  and
yet it requires them, before their goods
can enter into interstate commerce, to
state a standard on the box, bottle, or
container, and  to  make some sort of
declaration  about the  strength  and
purity. It is  not  enough  to  say it is
 pure.  I  confess  I  do not know what
 they will do  under the provisions of
 this section.
   Mr. HEYBURN.  I confess  I  am
 curious  to know  what the  patent-
 medicine people  will say on behalf of
 their nostrums. I have the same degree
 of curiosity  as that expressed  by the
 Senator. I will await with much inter-
 est  the  declaration  these gentlemen
 will make on behalf  of  their  admix-
 tures.
   Mr. GALLINGER. Yes; but that is
 not in controversy. It is not the ques-
 tion of nostrums, so called—the patent
 medicines put on the market. That it
 not the question  at all. These men have
 rights under  the law today. The Sen-
 ator himself  does not  ask  them to
 disclose  their formulae,  but  in  my
 judgment here is a provision that  will
 absolutely prevent them from entering
 interstate commerce with their goods,
 and I do not  believe we ought to legis-
 late in that way.
                             [p. 2722]
   Mr. GALLINGER. I ask to take up
 three or  four  amendments  which  I
 offered yesterday, which are  identical,
 except that  they  appear in  different
 portions of the bill. On page 4,  line 19,
 I think the first  occurs.
   The VICE-PRESIDENT.  The  first
 amendment proposed by the  Senator
 from  New Hampshire [Mr. GALLIN-
 GER] will be stated.
   The SECRETARY. In section 4,  page 4,
 line 19, after the word "substance," it
 is proposed  to  insert "in  sufficient
 quantity to be;" and in line 24, before
 the word "injurious," to insert "in
 sufficient quantity to  be;" so  that if
 amended it will read:
   SEC. 4. That  the  examinations of specimens
 of foods,  drugs, medicines, and iiquors shall be
 made in the Bureau of Chemistry of the Depart-
 ment of  Agriculture, or under the  direction
 and supervision of such Bureau, for the purpose
 of determining from such examinations whether
 such article is  adulterated or misbranded, or
 contains  any poisonous or other substance in
 sufficient quantity to be deleterious to the health
 of human beings or domestic animals; and if it
 shall appear from  any such examination that

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STATUTES AND LEGISLATIVE HISTORY
                                 433
such specimens are adulterated or misbranded
or contain any added poisonous or deleterious
substance or ingredient in sufficient quantity to
be injurious to human health when used in the
prescribed or usual manner  of  use of such
article, etc.
  Mr. GALLINGER. I trust the Sena-
tor from  Idaho  will observe  what  I
have to say. I will occupy but a few
moments. I hope, after I have present-
ed my views very briefly, the Senator
will accept this amendment.
  The question of what  is deleterious
to human health is a very broad one.
We will take,  as an illustration, the
matter that was up for discussion yes-
terday—Lea  &  Perrin's  Worcester-
shire sauce—in which there was found
salicylic acid.  It is  not  stated  how
much salicylic acid  was found in it,
though  it  presumably was  an  infini-
testimal quantity, so far as the amount
that is  usually  consumed  at table  is
concerned.  Salicylic  acid and  boracic
acid as well are drugs which are used
in medicine. The  usual dose of both of
those  acids is  IVz  grains—500 milli-
grams. That is not either the minimum
nor the maximum dose,  but it is the
usual dose. Physicians are in the habit
of giving 15 grains of salicylic acid in
the treatment of rheumatism, and,  a
patient taking it day after  day for  a
considerable length of time, no harm
is presumed to come from  it. Fifteen
grains of salicylic acid would probably
be as  much as would be put into  a
gallon,  more or  less, we will say, of
Lea & Perrin's Worcestershire sauce;
and half the teaspoonful, more or less,
that is consumed at table as an addi-
tion to  the  fish, certainly  could do no
harm to the human system; but if this
bill remains in its present  form any
amount of salicylic  acid or  boracic
acid, or any similar  drug, found  in  a
food supply would make  it contraband
and bring it under the ban of the law.
So it seems to me there can be no harm
in inserting the words  "in sufficient
quantity to be" before the words  "de-
leterious to health."  That is a matter
that can be determined by the scien-
tists  who  will  have  charge  of the
administration of this  bill  should  it
become a law, and they will have some
leeway  in  the determination  of the
matters that will come to their atten-
tion. I will ask the Senator if he does
not think this is a very proper amend-
ment?
  Mr. HEYBURN.  Mr. President,  I
should like to have the benefit of  a
suggestion  from  the  Senator  from
New  Hampshire. In  his   judgment
would this apply to preservatives in-
jected into meat?
  Mr. GALLINGER: I think not.
  Mr. HEYBURN. I have been  study-
ing the language of the bill for the
purpose of determining just how far
the scope of the amendment would go.
  Mr. GALLINGER. The provision is:
  SEC.  4. That the examinations of specimens
of foods, drugs, medicines, and liquors  shall be
made in Bureau of Chemistry of  the  Depart-
ment of Agriculture, or under the direction and
supervision of such Bureau, for the purpose of
determining from such examinations  whether
such article is  adulterated or misbranded,  or
contains any poisonous or other  substance in
sufficient quantity to be deleterious to the health
of human beings or domestic animals, etc.
  Mr. HEYBURN.  "Article" relates
to all classes of food, and it would be a
question of  how  much boracic  acid
might be  injected into meat for pre-
servative purposes or how  much for-
maldehyde or any of those substances,
embalming fluids—and it was a very
active question during the late Span-
ish war as to whether or not embalm-
ing fluid that had been injected into
meat  was in  sufficient quantity  to
affect the human stomach and destroy
the digestive powers. If this  were con-
fined  to poisons, as used in drugs,  I
should feel differently about it; but it
is a question in my mind as to how far
this proposed amendment would go.  I
do not know whether the Senator from
New  Hampshire has considered it  in
all  its  possible phases or  not.  For
instance,  we  demonstrated  recently
here in the case of hams that the mod-

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434
LEGAL COMPILATION—PESTICIDES
era process of curing ham consisted in
injecting with  a syringe boracic acid
once into the bone and once into the
very heart of the meat of the ham for
the purpose of preserving it. Of course
that acid could not be removed, and  it
would be very difficult for us to deter-
mine  just  what  quantity was in the
ham.
  Mr. GALLINGER.  I  quite  agree
with  the  Senator on that point, but,
per contra, under the terms of the bill,
if an infinitesimal quantity of boracic
acid  is found, it immediately places
the article under the ban of the law.
There may be a little difficulty, per-
haps,  in  the line suggested by the
Senator, but  I think it would be much
less than it would be under the terms
of the bill. I feel sure that we do not
mean to legislate so as to make a man
who  uses in  the preparation of  any
article of food a quantity of drug so
small that it has no appreciable effect
on the human system amenable to the
law and that his goods shall be placed
under the ban and denied the privilege
of interstate commerce. I do not think
there will be  the least earthly difficulty
in the matter if the bill is amended as
I suggest.
   Of course the scientists  who  will
have  charge, in the first place, of the
administration  of  this proposed law
and  in  determining these  questions
will be fully competent to determine
whether or not the quantity of  adul-
terant, if it may be so called, is suffi-
cient to do  any harm. On the other
hand, if they are not given the privi-
lege  of  so determining  the question,
they  will be held to a determination
adverse  to the  manufacture  of the
goods if the least possible portion  is
found in the  goods. Is not that correct?
   Mr. HKYBURN. If the Senator will
permit me,  I  should like to call his
attention to the limitation placed upon
this very provision, commencing on line
25, at the  bottom of page 4. The limi-
tation was intended to  cure or meet
 the objection of the Senator from New
 Hampshire without throwing the door
 wide open to the use of such quantity
 as might in the judgment of the pack-
 er be safe. The limitation is contained
 in these words:
  And if it shall appear from any such exam-
 ination that such  specimens are adulterated or
 misbranded or contain any added poisonous or
 deleterious substance or ingredient in sufficient
 quantity to be injurious to human health when
 used in the prescribed or usual manner of use
 of such article.
  Those are the  words of limitation,
 and I felt at the time that it was  as
 far  as we ought to go without chanc-
 ing  the  throwing open of  the door  to
 just such conditions  as exist in refer-
 ence to the method of preserving meat
 in warm weather by those very drastic
 and radical processes that were gen-
 erally   condemned   throughout  the
 country.
  If we say "in sufficient quantity  to
 be deleterious  to  the health of human
 beings," then  it  will leave it to the
 packer primarily to  determine; and I
 do not think it will protect him at all.
 I think  the  words  of limitation  to
 which I have  called the attention  of
 the  Senator are perhaps safer for both
 parties and will effectuate the purpose
 to be accomplished;  but there is some
 danger  in the amendment offered  by
 the  Senator  from   New  Hampshire.
 There would not be, however, if it were
 confined to drugs.
   Mr. GALLINGER. No.
                             [p. 2728]
   Mr. HEYBURN. There would be  no
 danger  if confined to drugs, but con-
 fined  to preservatives used in  the
 embalming processes of meats there is
 no  little danger. I  do not like  that
 provision.
   Mr.  GALLINGER.  I do not quite
 understand the phraseology of the bill
 which the Senator quoted :
  And if it shall  appear  from any such exam-
 ination that such  specimens—
   That is, drugs, medicines, liquors, or
 foods—

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STATUTES AND LEGISLATIVE HISTORY
                                  435
are adulterated or misbranded or contain any
added poisonous or deleterious  substance or
ingredient injurious to human health  when
used in the prescribed or usual manner of use
of such article.
   Does the  Senator mean  used medi-
cinally?
   Mr.  HEYBURN.  Well,  of  course,
that limitation applies  not  only  to
medicines and drugs,  but  it  applies
also to articles of food.
   Mr.  GALLINGER. Yes; certainly.
   Mr. HEYBURN.  So the  use would
be determined by the character of the
article.
   Mr.  GALLINGER. The  Senator is
aware, as I suggested a  moment  ago,
that medicinally 15 grains  of salicylic
acid is frequently administered and no
special  harm comes.  This provision
says "injurious to human health when
used in the prescribed or usual manner
of use  of  such articles."  Does  the
Senator mean in the medicinal quan-
tity—that a man can take  an article
of food and  eat it at a meal if it  does
not  contain more than 15  grains  of
salicylic acid?
   Mr. HEYBURN. I would suggest to
the Senator that to obviate the objec-
tion which  I see in  it,  can  not the
amendment  be limited to drugs?
   Mr.  GALLINGER.  I  think so.  I
think that would be very wise.
   Mr. HEPBURN. Then  it would be
clear of controversy.
   Mr. GALLINGER. Will the Senator
take that into prayerful consideration?
   Mr.  HEYBURN. Yes; and  if the
Senator between now and the time the
amendment  comes up will  just incor-
porate a limitation there  making  it
apply only to drugs, I shall have no
objection to  it.
   Mr. GALLINGER. Very well.
*****
            PURE-FOOD BILL
   The Senate, as in Committee of the
Whole, resumed  the consideration  of
the  bill  (S. 88) for preventing the
                              [p. 2747]
manufacture,  sale,  or transportation
of   adulterated  or   misbranded   or
poisonous or deleterious  foods,  drugs,
medicines, and liquors, and for regu-
lating  traffic  therein, and for other
purposes.
  Mr.  HEYBURN. Mr.  President,  I
desire  this morning to present some
resolutions bearing upon  the bill.  I
send to the  desk for  reading, first,  a
letter from the chairman  of the Amer-
ican Medical Association.
  The  VICE-PRESIDENT.  Without
objection, the  Secretary will read it.
  The SECRETARY read as follows:
        AMERICAN MEDICAL ASSOCIATION,
         Cincinnati, Ohio,  February 20. 1906.
  MY DEAR SIR: The American Medical Associa-
ation  by unanimous petition  of the medical
profession from each of over 2,000 counties of
the  United  States, reaffirmed by the recent
action of its legislative  council, respectfully
asks  you to vote for the "Heyburn pure food
and drug bill." Such action on your part  will
receive the gratitude of over 135,000 physicians
of the country.
      Very respectfully,
           CHARLES A. L. REED, Chairman.
Hon. WELDON B. HEYBUHN,
United States Senate, Washington, D.C.
  Mr. HEYBURN. I send  to the desk
an  accompanying document, and  ask
that it  be read.
  The  VICE-PRESIDENT.  Without
objection, the Secretary will read it.
  The SECRETARY read as follows:
 ACTION OF THE AMERICAN MEDICAL ASSOCIATION
  ON THE HEYBURN PURE FOOD AND DRUG BILL.
To the Senate and House of Representatives in
Congress assembled:
  The American  Medical Association, through
its legislative council in session at Washington,
D.C., January 9, 10, and 11, 1906, unanimously
adopted the following:
  "Your committee appointed  to consider  leg-
islation for honest foods and pure drugs begs
leave to report that it has  considered the sug-
gestions of the chairman and has examined in
detail the provisions of the Heyburn  and Hep-
burn bills, and finds nothing in these bills,
which, in the opinion of the members of  the
committee, would injuriously affect any legiti-
mate business  concerned in the manufacture
and sale of foods, liquors,  or drugs, and  that
the bills, or either of them, would afford ade-
quate protection  to honest manufacturers of
and  dealers in such  products,  and  security

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436
LEGAL COMPILATION—PESTICIDES
against  imposition, fraud, or  danger to  the
buyer.
  "Furthermore, your  committee  respectfully
recommends that the remarks of the chairman,
Doctor Reed, be considered and transmitted to
Congress as a part of this report."
  REMARKS OF THE CHAIRMAN, DR. CHARLES A. L.
 REED, RELATIVE TO THE PURE FOOD AND DRUG BILL.
  After  reviewing  the previous history of  the
Heyburn pure  food and drug bill, and calling
attention to the fact that it had been made the
subject of a general referendum to the medical
profession, with the result that over 2,000 peti-
tions from aa  many  counties  in  the United
States had been received and forwarded to Con-
gress, the chairman, Doctor  Reed,  added:
  "It is  probably unnecessary for  you again to
make it—the Heyburn pure  food and  drug bill
—the subject of a  general referendum, as  the
petitions and correspondence previously sent to
Senator  HEYBURN  are being  utilized before the
present Congress. It is important, however, that
the  medical profession,  and, for  that matter,
the  public should be informed of the character
of  the  opposition  which was  aroused by  the
measure before the last  Congress. This opposi-
tion was active, insistent, persistent, and judg-
ing  from the results, as well  as from its boasts,
was effective. An analysis of the proceedings in
committee shows that the antagonism was de-
rived from the manufacturers of blended and
otherwise adulterated liquors, from the fabri-
cators of foodless  foods, from importers  of
foods  and  medicines  so  worthless  as  to  be
denied  a market   in Europe where  they  are
made, from the makers and purveyors of worth-
less, dangerous  and enslaving drugs—interests
which,  in the aggregate, and  judged by  the
character of their  business,  can not go clean-
handed into any court of justice or command
an honest footing  before  any legislative com-
mittee or legislative body  in the country.
   "The interest of the medical profession in this
measure  is aroused from the special  and  inti-
mate knowledge possessed by physicians of the
influence of impure food on the public health,
but  more particularly'of the disastrous results
arising not only from the widespread consump-
tion of mere nostrums, but from the dispensing
of  medicines,  many of which  fall below  the
pharmaceutical standard. As a  matter of fact,
while  the Pharmacopoeia  assumes to establish
a certain standard of drugs there is at present
no national law, nor, so far as  I am informed,
any State law to enforce that  standard. As a
consequence,   manufacturing   establishments,
some of them enjoying a high grade of commer-
cial respectability, openly acknowledge that they
manufacture  pharmaceutical preparations  of
varying degrees of  purity. They  plead, in exten-
uation, that this is to meet the  demands of the
market.  The better druggists—those enjoying a
high-class trade—are presumed  to  dispense the
purest  of the preparations.  Those located in
middle-class  localities take  the  second-grade,
 while the lowest, or third grade, is sold to public
 health departments, hospitals, eleemosynary in-
 stitutions, and  country  drug stores, but more
 especially to the country practitioners who dis-
 pense their own medicines.  That there should
 be any  but  one grade, and that the highest
 grade of pharmaceutical  preparations, is an
 idea  so  repugnant to every sense of honesty,
 decency, and  common humanity that the pres-
 ent situation becomes  revolting.  If, then, we
 go a step further and  consider  that class  of
 copyrighted preparations that are dispensed by
 physicians—the so-called "professional proprie-
 taries"—we  discover that the  trade  interests
 are absolutely "without other restrain than that
 which is presumed to  come from the  effects,
 assumed  or  demonstrated,  of  such  medica-
 ments on the patients  to whom they  are ad-
 ministered. In  this class of remedies there is
 not even theoretically a pharmaceutical stand-
 ard,  save as  it applies to  the  ingredients  of
 compounds, and there is now no low  that will
 hold  the manufacturers of  such  remedies  to
 the standard which  they assume to  establish
 for themselves.
   "To meet this condition the American Medical
 Association has established  a council  on phar-
 macy and chemistry, which is doing voluntarily,
 in a purely  advisory way,  what ought to  be
 done  by  the  National  Government—namely,
 analyzing and  testing  these preparations for
 the purpose of  advising the  medical profession,
 and,  for that matter, the public, of their true
 character.  It is  obvious, however,  that this
 movement, salutary as  it is, can not be suffi-
 ciently far-reaching to keep  our interstate com-
 merce from being loaded down with  prepara-
 tions, many of  which are essentially fraudulent
 in character. Under these circumstances, I feel
 that  it  is important that the council  reaffirm
 its previous  action,  and by such means as it
 may  select to express its  high  appreciation of
 the service which has already been rendered by
 Senator HEYBURN, chairman of the Senate Com-
 mittee on Manufactures, and by Mr. HEPBURN,
 chairman of the House Committee on Interstate
 and  Foreign  Commerce, in  endeavoring to se-
 cure the passage of these salutary laws."
                      C. S. BACON, Secretory.

    Mr.  HEYBURN. I desire to send  to
 the  desk a  resolution to be read.
    The VICE-PRESIDENT.  The Sec-
 retary will read it, without objection.
    The SECRETARY read as follows:
   Resolutions of the New York Young Friends'
   Association relative to the Heyburn pure-food
                     bill.
 To the  honorable Senators  from the State of
 New York—Messrs.  CHAUNCEY M.  DEPBW and
     THOMAS C. PLATT.
    GENTLEMEN: As secretary of the New York
 Friends' Association, I  am directed to forward

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STATUTES AND LEGISLATIVE HISTORY
                                 437
to you copies of the following resolutions, viz:
  Whereas the  prosperity and happiness of a
nation depends largely upon  the health of the
people, and the health of the people is vitally
dependent upon the purity of the food products
and medicinal agents:  Therefore, be it
  Resolved, That we, the members of the Young
Friends' Association of New  York and Brook-
lyn, assembled in regular meeting on the llth
day of the  second month, 1906, do earnestly
advocate the passage of the bill known as the
"Heyburn pure-food bill/' which is now before
the United States  Senate; and be it further
  Resolved,  That we urge the Senators from
this State to use their influence in  every way
to secure the passage of this bill; and it is fur-
ther
  Resolved,  That copies of this resolution be
forwarded to Senator DEPEW, Senator PLATT.
and Senator HEYBURN.
  Dated New York, February 11, 1906.
     Respectfully,
        PERCY RUSSELL, D. D. S., President
          HENRY M. HAVILAND, Secretary.

  Mr. PENROSE rose.
  Mr. HEYBURN. I yield to the Sen-
ator from Pennsylvania.
  Mr.  PENROSE.  Mr.  President,
there seems  to be some misapprehen-
sion, or at least I am laboring under a
misapprehension, regarding the status
of the two amendments  offered by the
Senator from Ohio [Mr. FORAKER] day
before yesterday. I desire to have the
matter clearly  denned before the Sen-
ate as to the status  of those amend-
ments relative  to the blended-whiskey
question. I understand the junior Sen-
ator from North Dakota [Mr. McCUM-
BER] offered an amendment, which was
accepted by the Senator from Ohio [Mr.
FORAKER] , and there was some sugges-
tion made at the time that the amend-
ments  offered  by  the   Senator from
Ohio should be  withdrawn. I hope that
is not the case, as I am  informed that
the amendment  suggested  as a com-
promise  does not  meet the require-
ments of the situation, and in order to
have the purposes carried out of those
who object  to  the bill in its  present
form it is necessary to  adhere to  the
original amendments  of the  Senator
from Ohio and endeavor to have them
inserted in the bill.
  Mr.  FORAKER.  Mr. President,  I
will have in  a moment what was said
on  that  subject  by  looking  at  the
RECORD.  Another  Senator will find it
for me. My recollection is that I offered
the amendment which appears  in the
reprint of the bill on page 11, to strike
out in line 8  the word  "added;" and to
strike out lines 13, 14, and 15, as indi-
cated, and to insert what follows in
caps, printed in lines 15,16,17, and 18.
  It was suggested to me during the
progress  of  the  discussion that  the
purpose  of the amendments I had of-
fered  would be  better accomplished
by striking out the word "goods" after
the word "proprietary"  in line  25,  on
page  10  of  the  bill, and  inserting
thereafter "foods, drugs,  or liquors,"
so as to read "proprietary foods, drugs,
or liquors," the purpose of the amend-
ment being to make it unnecessary to
put the formula by which these liquors
were blended or mixed on the label.
                            [p. 2748]
*****
  All I mean, Mr. President, and  all
this comes to, if it comes anywhere, is
that there must be standards and that
there must be somewhere authority to
establish  standards, or there is  the
gravest possible  danger that the bill,
full  of penalties, full  of possible  mis-
constructions, will prove unworkable.
  Mr. President, public opinion has
taken great  strides in  the  States  in
perfecting pure-food   laws  and  in
administering with very great efficien-
cy pure-food laws. I think there is  no
State in the  country  today in  which
pure-food laws  are more  efficiently
administered than in Wisconsin. Other
States have taken very  great interest
in it. It is so with Minnesota; it is so
with  the  Dakotas.  But  when  this
                            [p. 2755]
Federal  law  shall have been passed,
the danger is  that there will be  so
great  reliance in the  accuracy  and
fidelity and administration of the Fed-
eral machinery in keeping out  of the
States all misbranded  and adulterated

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438
LEGAL COMPILATION—PESTICIDES
foods, poisons,  and  the  like  as  to
weaken the administration of the State
laws.
  The  necessity for  standards has
been  recognized by  Congress  hereto-
fore.  For the last five years in  every
agricultural  appropriation act  there
has been an appropriation made con-
taining this language:
  To enable the Secretary of Agriculture to  in-
vestigate the character of food preservatives,
coloring matters, and other substances added
to foods, to determine their relation to digestion
and to health, and to establish the principles
which should guide their use; to enable the
Secretary of Agriculture to investigate the char-
acter of the chemical and physical tests which
are applied to  American food  products  In
foreign countries—

  Learning more  as to what should
constitute  a standard—
and to inspect before shipment, when desired by
the shippers or owners of these food  products.
American food products Intended for  countries
where chemical and physical tests are required
before said food  products are allowed to  be sold
in the countries mentioned, and for all  necessary
expenses connected with such inspection and
studies of methods of analysis in foreign coun-
tries;  to enable  the Secretary of Agriculture,
in collaboration with the  Association of  Official
Agricultural Chemists—

   Whatever that is—
and such other experts aa he  may deem neces-
sary, to establish standards of purity for food
products and to determine what are regarded
as adulterations  therein.

  In  every act but  the  last one that
was  added for the guidance of the
officials  of the  various States and  of
the courts of  justice. It was omitted in
the last appropriation act.
   Mr. HEYBURN. Mr.  President	
   Mr. SPOONER. If the Senator will
permit me just to finish this sentence.
There have been established standards
under this law by  the  Agricultural
Department or its Bureau of Chemis-
try. There have been by the national
association of State food officials, es-
tablished standards  of  food products.
I am told that in some respects they
are not in harmony.
   Mr. HEYBURN.  Now, Mr. Presi-
dent, if the Senator will permit me	
   Mr. SPOONER. Very well.
   Mr. HEYBURN.  The  standards to
 which the Senator refers and the legis-
 lation to which he refers are  purely
 educational. The violation of them is
 not enforced by any penalty. They are
 simply laws for the assistance in the
 way  of  education of the State pure-
 food  bureaus, that is all, and there is
 no provision for punishing anyone for
 violating  the rule  of  the  standard.
 Now, we are seeking to pass a law for
 protection, not for education.
   Mr.  SPOONER.  Ah,  the Senator
 misses the point. Of course   I  am
 obliged to admit (and I am not attack-
 ing the  bill at all)  that  there  are no
 penalties  connected  with this legisla-
 tion,  but  the power is given  to  the
 Bureau  of Chemistry,  the same Bur-
 eau exactly to which is committed all
 the power under this bill, to establish
 food  standards.
   Mr. HEYBURN. But not  to enforce
 them.
   Mr. SPOONER. This  bill does  not
 propose to enforce them.
   Mr. HEYBURN. Yes; it proposes
 to enforce a conformity to the stand-
 ards  that are prescribed in  general
 terms, and not specific standards as to
 each article.
   Mr. SPOONER. But, Mr.  President,
 that  is  just  the  point.  There  is  no
 power in the bill for the establishment
 of standards except as to the Pharm-
 acopceia.
   Mr. HEYBURN. When the  Senator
 has reached a point where he can yield
 I will answer that proposition.
   Mr. SPOONER. I yield to the Sena-
 tor now.
   Mr.  TILLMAN.  Will  the  Senator
 from Idaho allow me?
   Mr. HEYBURN. Certainly.
   Mr.   TILLMAN.  Mr.   President,
 without some yardstick  by which to
 measure the degree of criminality as
 shown by the adulteration, I  would
 feel  unwilling to trust to the Bureau
 of Chemistry of the Agricultural De-
 partment, or any other bureau,  the

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 STATUTES AND LEGISLATIVE HISTORY
                                439
promulgation of rules and regulations
left to them arbitrarily. If  they have
been already  investigating,  as  the
Senator from  Wisconsin has shown, I
think they ought to be able to furnish
the  Senate a  simple  description  of
what constitutes a wholesome, healthy
article of commerce, such as  is com-
monly sold, and we will lay that down
in the law and then say that anything
which does not come  up to  that is
adulterated, and punish  the  persons
who make it.
  I  want  to suggest to the  Senator
something that has occurred to  me
since this debate began. This bill is too
crudely drawn  and  it  is  too loose
jointed.  There  is  too   much power
placed here in  the hands of a bureau
for  Congress  to enact  it, and I  am
going to move  sometime or  other—or
at least I have a very strong  inclina-
tion that way—to recommit the bill to
the  committee  in  charge to get  this
exact  information  which has been
sought by the Bureau of Chemistry for
the last five years, we furnishing  the
money. Let the basis of criminal action
be laid down in the law and let us  not
leave it to regulations promulgated by
Dr. Wiley or the Secretary of Agricul-
ture or anybody else.
  Mr.  HEYBURN. Mr. President,  I
am quite certain if such a thing should
occur, and we were to bring in a  bill
fixing the standards, the Senate would
never agree to  it.  We  have  avoided
fixing standards in this national legis-
lation because	
  Mr. TILLMAN rose.
  Mr. HEYBURN. I ask the  Senator
just to have patience with  me for a
moment.  He was not here yesterday
when we discussed this point. We have
avoided fixing standards because near-
ly every State  in the Union has stand-
ards  of  its own,  and  it would  be
absolutely impossible to steer clear of
a  conflict  with some of the State
standards.
  Mr. TILLMAN.  Right there, if  the
 Senator will permit me, that is a very
 queer condition.
   Mr. HEYBURN. It exists.
   Mr.  TILLMAN. Then what differ-
 ence will it be? As soon as we put this
 power in the hands of the Secretary of
 Agriculture or in his subordinates and
 he fixed standards  arbitrarily, with
 the right to confer  with the  States,
 would you  not have the same trouble.
   Mr.  HEYBURN. Will the Senator
 just allow  me right there to say  he
 has been reading the wrong print  of
 the bill.
   Mr. TILLMAN. I have been reading
 the print which is  on the  desks  of
 Senators.
   Mr. HEYBURN. The bill  does not
 put the power to fix standards in the
 hands of any Department or bureau.
 It specifically does not. The only power
 that is authorized to  fix standards
 under the bill is vested in the courts
 of the  United States, there, and only
 there. The Department, against which
 much has been said, simply collects the
 testimony. The three  Departments  of
 the Government that are especially
 equipped for this service  are author-
 ized to collect the facts and to  report
 their work to the United States attor-
 ney, and if in  the judgment  of the
 United States attorney those facts are
 sufficient upon which to base a  prose-
 cution, he for the first  time  puts the
 machinery  of the law in operation.
 That  machinery of the  law  is the
 courts of the  United  States, and the
 standard will  depend upon the inter-
 pretation which the judge of the court
 sitting with a jury shall  place upon
 the act committed.
   Now,  I have no doubt at all that  in
 administering  this law the judge of a
 United  States  court  in the district
from which the Senator from  South
 Carolina comes  would  conform  as
nearly as possible to the rule of stand-
ards existing  in the  community, be-
cause every man is primarily supposed
to govern his conduct by  the  recog-
nized  standard  of  uprightness and

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440
LEGAL COMPILATION—PESTICIDES
honesty and fairness of the community
in which he lives. He is of course sub-
ject to the governing force of the law
of the country, but locally the courts
would enforce this law according to the
standard of morals represented by the
State law.
  In  other words, there  is  a certain
rule of interpretation that has always
been  observed  by  the  courts,  and
wherever the State  law  and the na-
tional law  can  be harmonized  the
courts will endeavor to do so.
  The difference  between  standards
is not so wide as to constitute a crime
under the laws of one State that would
not be  a crime  under another.  The
difference is  not  so great as to result
in  that  unfortunate condition. They
differ in detail. For instance, in the
State of Washington alcohol  must be
branded with a mark upon  the pack-
age showing the percentage of alcohol.
It is  a criminal offense to vary from
that requirement—that is, to sell  alco-
hol below a certain  standard. In this
District here there is no requirement.
When you buy a bottle of alcohol here
it does  not  appear upon  the  package
what  the  percentage  of alcohol  is.
Other States have an 85 per cent  rule,
and so on.
   Mr. BAILEY. Will the  Senator per-
mit me to ask him a question?
   Mr. HEYBURN. Certainly.
   Mr. BAILEY.  Then does  the Sena-
tor mean to say that under  the provi-
sions of  this  bill  a  man   could  be
prosecuted in the Federal courts for
having sold alcohol contrary to the law
of Washington and be convicted there,
and he could not be convicted in the
District of Columbia or in the State of
Virginia, we will say, in order to make
it apply to a State, although he sold
alcohol under precisely the same cir-
cumstances?
   Mr. HEYBURN. He can be convict-
ed  under the rule that the court  shall
hold to pertain, and if  the court says
that,  taking  the conditions in  this
country  generally into consideration,
 this alcohol is not up  to the standard
 of purity because it does not conform
 to the recognized rule—that is, in the
 absence of a rule	
   Mr. BAILEY. As a matter of fact,
                            [p.2756]
 I  understand there is  no rule  estab-
 lished, according to the Senator, and it
 is left somewhat to the opinion, or we
 will say to the conscience, of the judge.
   Mr. HEYBURN. It would  not be
 under this proposed law, because  it
 describes of what adulterations shall
 consist; and if a man took alcohol and
 put  25 per cent of water into it, I do
 not  think the judge would hesitate to
 instruct the jury that the alcohol was
 adulterated.
   Mr. BAILEY. I understood the Sen-
 ator from Idaho to say that this bill
 has  established no standard, but left
 the  standard  to be established by the
 court upon the trial of the case.
   Mr. HEYBURN. Under the general
 definition, under the statute.
   Mr. BAILEY. Under  the general
 definition. But I understood  the Sena-
 tor  to illustrate by saying that in the
 State of Washington there was one
 requirement as to the sale of alcohol,
 while no  such requirements existed,
 to use his own instance in the District
 of Columbia.  I rose to inquire if the
 Congress was asked to pass a law, a
 Federal  law,  which is  supposed to be
 uniform in its operation, under which
 a citizen could  be convicted upon a
 given state of facts in the State of
 Washington, but could not be convicted
 under the same  state of facts  in the
 State of Virginia?
   Mr. HEYBURN. I will answer that
 question  by  inquiring of the Senator
 what he would do if he were sitting as
 a judge on the bench  in the District
 of Columbia and a party were charged
 with selling  adulterated alcohol, and
 it should be  shown that it  was  only
 75 per cent alcohol? Would he find any
 embarrassment in that simply because
 the  statute had not fixed the standard,
 when it says  in terms that the offense

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STATUTES AND LEGISLATIVE HISTORY
                                 441
shall consist of adding any ingredient
which deteriorates the standard of the
alcohol?
  Mr. BAILEY. Mr. President, judges
might  differ as to adulteration. For
instance, I think the more good water
that is  put  into whisky the less  harm
it is apt to do; and if  I  were on the
bench I am not perfectly sure, unless
I was required to by a plain rule of
law to convict and imprison a man for
putting good water into  bad  whisky,
that I would ever pronounce judgment
against him. That is just exactly what
I complain of.  If the rule is to  be as
stated by the Senator, this measure of
justice  is as variable as the judge's
conscience, and I  will give no  judge
the right to imprison any man  or to
fine any  man  except in accordance
with the fixed rule of law.
  When it conies to the facts,  they, of
course,  are of  infinite variety, but the
law ought to be certain. I believe that
Blackstone once observed that  the cer-
tainty of the law is of more importance
than the justice of the law, an opinion
which I do not myself accept,  and yet
that so great an authority should have
uttered  it must give it great weight.
  Mr.  HEYBURN.  Mr.  President,  I
agree with  the Senator  from Texas
that one of the most valuable  attri-
butes of any law is that it shall be cer-
tain, or that there shall be the  element
of certainty in the law—certainty of
interpretation,  certainty of execution.
That represents the highest form  of
government, an exact measure  of a
man's right, an exact  determination of
how far he may go in this direction or in
that. This bill is within that rule. This
bill is absolutely certain in its defini-
tion as to what shall constitute a viola-
tion of its provisions. The Senator from
Texas knows as well as I do that in the
end, recognizing that element and its
value, the  administration of the law
depends in a large measure upon the
conscience and intelligence of the judge
who presides at the trial and upon the
  intelligence and conscience of the jury
  which assists at the trial.
    When I made the remark that I did
  that this proposed law would probably
  be interpreted  within  the measure of
  the spirit of the local statute, I meant
  that the men who were accustomed to
  an existing law that was  enacted  by
  themselves in their own neighborhood
  would probably estimate and measure
  the  national law  according to  that
  standard. I was not saying that that
  should be the rule or  that under this
  proposed law there was no other way
|  of proceeding. I was merely comment-
  ing on the disposition of human nature
  as represented  by the  judges and the
  juries of the country.
    Mr. BAILEY.  Mr. President, I see
  that the Senator is seeking to assimi-
  late  the rule in civil cases to this crim-
  inal  procedure. In civil cases the  Fed-
  eral  judges are supposed to administer
  the local law, but not so in criminal
  cases. There is no crime against the
  Government of the United States ex-
  cept  such  as is made  so by Federal
  statute, and I would marvel at a sys-
  tem   under  which  the Federal  rule,
  which is  supposed to  be  one  every-
  where, should vary according to local
  conditions.
    Now, the Senator from Idaho must
  know that  down in North  Carolina—
  with  the pardon  of my friend from
  that State—it is not supposed to be a
  very  grievous  sin  against  God or a
  crime against the Government to make
  moonshine whisky. Surely the Senator
  would not be willing to see a Federal
  judge sitting in  the State of  North
  Carolina adopt the morals of the moon-
  shine mountaineer.  In the mountain
  district of the good old State of Ken-
  tucky, many people there—and good
  people in their  way, too—believe that
  the Federal Government has no right
  to impose upon them a tax for making
  out  of  their own corn what  pleases
  their own  spirits; and it never has
  been possible to thoroughly enforce the
  law  in any  of those mountainous dis-

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442
LEGAL COMPILATION—PESTICIDES
tricts where illicit distilling  is  con-
ducted. According to the Senator's the-
ory of this bill when the Federal judge
reaches the district where the moun-
taineers live—who  are said always to
be free, and it might be added also that
they are never very obedient to author-
ity—he shall adopt the code of morals
prevailing in that community; and just
across the line, down in the blue-grass
region, where my distinguished friend
from  Kentucky   [Mr.  BLACKBURN]
lives, and where they always obey the
law, he will punish them, while up in
the other  region, so close to his home,
they go scot-free, though guilty of the
same offense. That  is new, and, I may
be permitted to say, it is a dangerous
as well as a  novel doctrine.
  Mr. HEYBURN. Mr. President	
  The VICE-PRESIDENT. Does the
Senator from Texas yield to the sena-
tor from Idaho?
  Mr. BAILEY. I  do.
  Mr. HEYBURN. The Senator's keen
faculty for reasoning and drawing de-
ductions  has led him far  afield from
the question out of which this discus-
sion arose.  I can readily see  how his
mind has run along  gracefully and
glibly to  the discussion of a question
of that kind, and I would not  differ if
I had the time to follow him.
  I was addressing my remarks when
this diversion occurred to  the reasons
why the committee had not undertaken
in this bill to prescribe standards, and
I had proceeded so far as to suggest
that one of the prime reasons was be-
cause of the diversity of  State enact-
ments upon these  various questions. I
suggested, merely  in passing, that it
might be  that the courts would be able
to accommodate a  general law based
upon general rules of interpretation of
general application to the  local condi-
tions in the States; but I was proceed-
ing to say that each State has a right
under the  Constitution  to  regulate
business  within its own  jurisdiction,
and if that State, in the wisdom of its
legislation,  has seen fit to  enact a law
 requiring  certain standards in  com-
 mercial products and business affairs
 we  should  not make any law  that
 would enable  a manufacturer  or  a
 common carrier to deliver within the
 jurisdiction of the limits of that State
 any goods or articles that were in con-
 travention of the laws of the State.
   Mr. FULTON. Mr. President	
   The VICE-PRESIDENT.  Does the
 Senator from Idaho yield to the Sena-
 tor from Oregon?
   Mr. HEYBURN. Yes.
   Mr. FULTON: I desire to ask the
 Senator from  Idaho  what advantage
 would there be in the enforcement of
 this law, so far as  liquors are con-
 cerned—and I understand that is the
 matter under  discussion—if a stand-
 ard were  established?  The  introduc-
 tion of any article containing ingredi-
 ents  of  a poisonous or deleterious
 character  is prohibited,  it makes  no
 difference what the percentage of  al-
 cohol in it may be. It does not seem to
 me that it makes it any more difficult
 to enforce the law in the absence of
 some standard by which you would test
 the value of the whisky as an article
 or commodity.
   Mr. HEYBURN. I  thoroughly agree
 with the Senator. The establishment of
 a standard  would perform no  good
 office in the administration of this law
 or in the protection of the people under
 it. It might be convenient, if no  State
 had a law on the subject establishing
 standards, for Congress to enter upon
 that very elaborate performance.  I call
 it "elaborate" because articles of com-
 merce are of infinite variety, and I can
 imagine no  greater undertaking that
 this body could impose upon itself than
 that of attempting to sift down the
 right and at what point we should stop
 in fixing this standard.  Why, the fix-
 ing of freight rates  is not to be con-
 sidered for a moment as a  gigantic
 undertaking in comparison.
   Mr. FULTON. Mr. President	
   The VICE-PRESIDENT. Does the

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STATUTES AND LEGISLATIVE HISTORY
                               443
Senator from Idaho yield to the Sena-
tor from Oregon?
  Mr. HEYBURN. Yes.
  Mr. FULTON. I wish merely to ask
the Senator a question for  informa-
tion. I ask if any  of the States have
established a standard  of purity  as to
intoxicating beverages  of any  char-
acter?
  Mr.  HEYBURN.  Yes;  many  of
them.
  Mr. FULTON. Do those standards
fix the percentage of alcohol?
                           [p. 2757]
  Mr. HEYBURN. They vary;  some
of them do, and some do not.
  Mr. FULTON. Take  blended whis-
kies, for instance. Are these standards
as to blended whiskies?
  Mr. HEYBURN. I am unable to an-
swer that question as  to whether or
not there are  standards for blended
whisky.
  Mr. FULTON. I do  not pretend to
say that there are not, but it is a diffi-
cult problem for me to understand how
there could be, for blended whisky is
a compound, a  mixture, as  I under-
stand.  I  can see that  there  is  some
difficulty in the application  of  that
word  "added," as  suggested  a while
ago by  the Senator  from Wisconsin
[Mr. SPOONER], in the  case of a com-
pound. It seems to me that there might
be language framed that would  more
clearly carry out and express the idea
of the committee and of the friends of
the bill  than  the word  "added."  I
imagine we all know what is meant by
that. The idea is that there  shall be
excluded from this mixture,  from the
liquor or the straight whiskey or from
the blended whisky, any poisonous in-
gredient that does  not  inhere in  some
one of its constituents,  in some one of
the ingredients entering into it.
  Mr.  HEYBURN. I will assist the
Senator there by an illustration. You
can extract poison from tea  or  from
coffee; you can  extract poison  from
any grain; you can extract poison from
many fruits; you can  extract poison
from the pits of almost any fruit.
  Mr. FULTON. I understand that.
  Mr. HEYBURN. That is one of the
poisons  existing in  nature's composi-
tion.
  Mr. FULTON. And  yet  it may be
sold.
  Mr. HEYBURN. You can not add to
them. You  make an  ordinary  dish of
any vegetable  that is in common  use.
The  poison  is  in that  vegetable,  but
not in a poisonous state; it is not an
active poison;  it is simply a condition
out of which a poison can be produced.
Now, suppose  you would say that be-
cause you can  extract  fusel oil from
the grain of your breakfast food that
you eat  every morning, they should be
permitted to add some  other poison to
it! Suppose you would  say  if there is
poison in it already it can not do much
harm to put in  more!  Suppose commer-
cial cupidity should tempt someone to
add to the dormant poison that is in a
hundred things that we consume every
day,  are they to be permitted to do it?
This bill says they shall not do it.
  Mr. FULTON. Mr. President	
  The VICE-PRESIDENT. Does the
Senator from Idaho yield to the Sena-
tor from Oregon?
  Mr. HEYBURN: Certainly.
  Mr. FULTON. I am not hostile to
this measure, as the Senator knows. It
has no stronger friend than I. I intend
to vote  for it. I should regret  very
much were it  re-referred, but is it a
fact that every ingredient that enters
into a compound is added?
  Mr. HEYBURN. Yes; but there are
words of limitation in the bill.
  Mr. FULTON. It may be merely an
assembling  of  certain  elements  and
certain  ingredients into one whole.
  Mr. HEYBURN. Yes; but there is a
limitation on the word "added." It does
not prevent you from adding ingredi-
ents  to  combinations or to single sub-
stances; it prevents you from adding
poisons  or  deleterious  ingredients;

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444
LEGAL COMPILATION—PESTICIDES
that is all. Those  are the words  of
limitation.
  Mr.  BAILEY.  Mr. President,  I  do
not desire to interrupt the Senator, but
when he is through—
  Mr. HEYBURN. I will yield the floor
to the Senator from Texas.
  Mr.  BAILEY. Mr.  President, this
bill is not an attempt to regulate com-
merce  between the States  or  with
Indian tribes  or with foreign nations
under  any proper  definition  of that
term. It is an  attempt, so understood
by the authors of it and so understood
by  the gentlemen who support it, to
protect the people of the several States
against deceptions in trade and against
deleterious articles of food and drink.
If it were an attempt in good faith to
regulate commerce, there could be  no
doubt  as to the power of the Federal
Government  over it; but as it is  in-
tended, understood, and supported for
the purpose  of protecting the people
of the several States against injurious
articles of  food and  drink, it is purely
and only  an  exercise of the  police
power, and therefore  not within the
power of the Federal Government.
  Mr. HEYBURN.  Will the Senator
permit me to interrupt him?
  The VICE-PRESIDENT.  Does the
Senator from Texas yield to the Sena-
tor from Idaho?
  Mr. BAILEY. I do.
  Mr. HEYBURN. In the light of that
interpretation of the commerce clause
of the Constitution, how does the Sen-
ator justify the laws that are in  force
in  regard  to  shipping diseased cattle
from one State to another—the quar-
antine laws?
  Mr. BAILEY. I  will  come to that.
The  Senator  knows  that  the  court
originally  held the law of Missouri
forbidding the shipment of cattle into
that State from below the quarantine
line invalid.  The Senator also knows
that the court has  very plainly inti-
mated  that  it was mistaken in  the
decision reported in 95 United States.
It says, in the Kansas case, I  believe,
 involving a  regulation of that kind,
 that  the facts were not presented to
 the court in  the Missouri case. It held
 the law of Missouri invalid because it
 provided that no cattle from below this
 quarantine  line,  or the infected  dis-
 trict,  should be  brought within that
 State between March and November,
 we will say.  There was no attempt to
 prove that cattle from below the quar-
 antine line carried with them under all
 circumstances  the  fever  curse,  but
 after a larger knowledge had been ac-
 quired of the conditions which relate to
 cattle below the  quarantine line,  and
 after it had been  established that with-
 in certain seasons of the year they can
 not  be brought  from a tick-infested
 district into  another without communi-
 cating disease, then  the  court very
 properly  stated  in the Kansas case
 that the facts had not been before it in
 the Missouri case.
   The Senator from Idaho knows that
 the Supreme Court has said more than
 once that every State in this Union has
 the inherent, original, and ample power
 to protect  its people against  decep-
 tions  in trade and against injurious
 articles of food.
   We now and then hear some Senator
 suggest that the States can not protect
 their  people against the sale of those
 injurious articles in the original pack-
 age. The Senator nods as if  he believes
 that is the law.  The Senator  from
 Idaho does not subscribe to that state-
 ment of the law, does he?
   Mr.  President, that arises from the
 fact that the Senator does  not distin-
 guish between the decision of the court
 in the liquor cases and the  decision of
 the court in the food cases.
   In  the Plumley case the supreme
 court of Massachusetts sustained  the
 conviction of a man who had sold oleo-
 margarine   manufactured  in Illinois
 and  shipped to  the State  of Massa-
 chusetts, where it was sold in the orig-
 inal  package.  The agent who sold it
 was indicted under the laws of Massa-
 chusetts, convicted in the lower court,

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STATUTES AND LEGISLATIVE HISTORY
                               445
and appealed to the supreme court of
that State, where the conviction was
affirmed. The case was then brought to
the Supreme  Court  of  the  United
States to test the  constitutionality of
the Massachusetts statute. The  Su-
preme Court  of  the  United  States
affirmed the judgment of the court be-
low, and held that it was competent
for any State in this  Union to pass a
law prohibiting the sale in the original
package of any article injurious to the
health of its citizens.
  Mr. HEYBURN. Mr. President	
  The VICE-PRESIDENT. Does  the
Senator from Texas yield to the  Sena-
tor from Idaho?
  Mr. BAILEY. I do.
  Mr. HEYBURN. That was  held to
be a police regulation'7
  Mr. BAILEY. Certainly.
  Mr.  HEYBURN.  And  on   that
ground.
  Mr.  BAILEY.  That  is  precisely
what  you are providing for in your
bill here.
  Mr. HEYBURN. If the Senator will
permit the interruption, in this bill we
have provided the line of contact at the
unbroken package, the jurisdiction of
the Government  existing so long as
goods remain in the unbroken package,
and the jurisdiction of the State recog-
nized  over it immediately when  the
package  is broken. This bill provides
for that.
  Mr. BAILEY:  The State does  not
need that provision, because the State
has full jurisdiction over it before the
package  is broken without this  legis-
lation.
  Mr. HEYBURN. This bill attempts
neither to enlarge nor to diminish the
rights of the State.  We are not con-
cerned in the rights of the State, ex-
cept in  considering that we may  not
trespass  upon  them. We  have gone
no further.
  Mr. BAILEY. Mr. President, let us
test that. Let us  suppose that  every
State in the Union  had an  efficient
pure-food law, and  I certainly hope
that every State in the Union will soon
have one, because there is no Senator
in this Chamber who abhors the rascal
that cheats the consumer more  than I
do.  I believe that he ought to be sub-
jected to a fine, and I believe that the
man who will sell to the  women and
children  of this  country  articles of
food calculated to impair their  health
is a public enemy and ought to be sent
to prison.  No  Senator  here is more
earnestly  in   favor  of   legislation
against adulterated  meat  and  drink
than I am, but I insist that such legis-
lation belongs to the  States and not to
the General Government, because with
the States  is left the right to control
and the  power to control the  health
and morals of  their people. If  every
State  in this Union had  an efficient
pure-food law, there would be no prop-
osition of this  kind  in  Congress, be-
cause  it is not  that  the  article  is
shipped
                           [p. 2758]
from one State to  another—that does
no  harm—it is when the  article  is
sold within a State  for consumption
by its people that the damage begins.
  Mr. HEYBURN. Mr. President—
  The  VICE PRESIDENT. Does the
Senator from Texas yield to the Sena-
tor from Idaho?
  Mr. BAILEY. I do.
  Mr. HEYBURN. I do not desire to
catechise the Senator but I should like
to inquire as to his views in regard to
the national quarantine laws—whether
or not they  would  come  within the
same prohibition as he suggests in re-
gard to this law.
  Mr. BAILEY. Mr. President, so far
as a quarantine law relates to regula-
tion in good faith of the foreign com-
merce of this country undoubtedly the
power of the General Government pre-
vails, but whenever, under the guise of
regulating  foreign or interstate com-
merce, the  Federal  Government  at-
tempts to enact a public health law it
invades the rights and dominion of the
States.

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446
LEGAL COMPILATION—PESTICIDES
  Mr. HEYBURN. I should like to in-
quire under  what provision  of  the
Constitution a quarantine law  enacted
by  Congress may be upheld  if  not
under the provision with which we are
now dealing?
  Mr. BAILEY. Under the interstate-
commerce provision?
  Mr.  HEYBURN.  It  is under  the
police power.
  Mr. BAILEY. I will simply, as the
easier way, and probably the shorter
way to  answer, refer the Senator to
the repeated decisions of the court. The
Supreme  Court of the  United States
has  stated over and over again that a
State, under the guise of regulating
its  police  affairs, can  not interfere
with or  interrupt commerce among1 the
States.  I  accept that, and I maintain
that the  Federal  Government, under
the guise of regulating interstate com-
merce,  can not take charge  of  the
health or  morals  of  the  people  of a
State.
  Mr.  HEYBURN.  I would  ask  the
Senator if, under the  provisions of the
Constitution authorizing  Congress to
regulate commerce between the States,
it is not competent for Congress to en-
act a law  for the purpose of protecting
any one  State against imposition at
the hands of another?
  Mr.   BAILEY.  What  kind of  an
imposition?
  Mr.  HEYBURN.  For  instance, to
enact a law preventing the shipping
of poisons from one State to  another,
or of gun cotton, or dynamite, or dis-
 eased clothing, or  any other thing that
involves a threat against the life or
the  health of the people.  Does not the
 Senator think that that is commerce—
that it is as much commerce as is a
lottery  ticket?
   The VICE-PRESIDENT. The Chair
would suggest  to Senators that the de-
bate is  proceeding  under  the  ten-
minute rule. The Chair  has  liberally
construed that rule during the course
 of  the  debate to-day.  The  Senator
 from Texas has exceeded the  ten min-
 utes, but,  without objection,  he may
 proceed.
   Mr. BAILEY.  Mr. President,  the
 Supreme Court  has said—and it is
 received as  a wise saying by every
 lawyer—that, as you approach the line
 that separates the interstate commerce
 power  of  the  General  Government
 from the police power of the several
 States, there is some difficulty in  dis-
 tinguishing  between  the  two. Well,
 back from that line there is  no diffi-
 culty. In certain cases it is easy to say
 this is a police regulation and there-
 fore within the province of the State,
 and that is a commerce regulation be-
 tween the States and therefore com-
 mitted to the Federal Government. But
 as we go from  the  acknowledged  and
 palpable exercise of this power by each
 government  and approach   the  line
 that separates  the  two,  it is not al-
 ways easy to mark that line.
   Mr.  HEYBURN. It  is  a  belt of
 indecision.
   Mr. BAILEY. It must be largely a
 matter of conscience with a  Senator.
 To  illustrate what  I mean by saying
 it is sometimes  a matter of conscience
 with a Senator, let  me state a case. A
 law is proposed in Congress levying a
 tax upon a given article. No man ques-
 tions  the power of Congress to raise
 revenue to  support the  Government,
 and yet if instead of voting for the bill
 for the sake of revenue  a  Senator
 votes for it for the purpose of regulat-
 ing or suppressing  within a State the
 manufacture of a given article, I  sub-
 mit that he  evades, to put it mildly,
 the Constitution.
   Or, again, if a Member of the House
 of Representatives chooses to introduce
 a bill imposing a tax of 25 cents per
 yard  upon every piece of goods manu-
 factured  principally  of  cotton  and
 partly of wool, commonly called "shod-
 dy," any Member who supported that
 tax for the purpose of raising revenue
 would be well within  his oath to  sup-
 port  the Constitution; but if instead
 of supporting that tax for the purpose

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STATUTES AND LEGISLATIVE HISTORY
                               447
of raising revenues I really desired to
suppress the manufacture of shoddy
in the State of Massachusetts I would
be violating my oath to support  the
Constitution, though I would  be doing
it in a manner which precluded a judi-
cial inquiry into the question.
  In the one case I would be perform-
ing a plain function of the Government
to raise revenue. In the other  case I
would be  controlling  the question of
manufacture in  a sovereign  State of
the Union, which Congress is  not com-
petent to do, according to all  the deci-
sions of the  Supreme Court. That doc-
trine did  not begin with the Knight
case. The old case of Coe against Errill
is, in my judgment,  as strong or a
stronger case than  that of the United
States  against  the Knight Company.
In the Coe against Errill case the court
went so far as  to  say  that  notwith-
standing the logs were cut in one State
for the  purpose of shipment  into  an-
other State, they did not become  the
subject  of interstate commerce until
they had been delivered to the depot of
the common carrier.
  Mr. HEYBURN. Mr. President-
  Mr. BAILEY. Does the Senator now
understand that the purpose for which
a Senator supports a bill  may, and fre-
quently does, determine whether or not
he ought to support it at  all?
  Mr. HEYBURN. I think it usually
does.
  Mr. BAILEY. Then-
  Mr. HEYBURN. But  I should like
to say to the Senator—
  Mr. BAILEY. Then let me put this
to the Senator:  Is the purpose of this
bill to regulate commerce? If so, it is
within  the power  of Congress. Or is
the purpose of this bill  to protect  the
health  of the people of the several
States? If so, that is a question for the
States and not for the Congress.
  Mr. HEYBURN. I should like to  call
the attention of the Senator to the pro-
visions of the bill. Its provisions do not
attach until the goods are delivered to
the carrier. That  takes  it out  of  the
Coe case. Its provisions do not attach
until the goods are delivered for ship-
ment. The provisions of the bill do not
apply so long as the goods are in the
hands of the manufacturer or factory,
but only after they are actually deliv-
ered for shipment, which is a  part of
the process of shipment.
  Mr. BAILEY. No bill could apply
while the goods were in the hands of
the manufacturer.
  Mr. HEYBURN. Certainly not.
  Mr. BAILEY. Because they  are not
then commerce.
  Mr. HEYBURN. Certainly not.
  Mr. BAILEY. The Senator attaches
the power of the Federal Government
as quickly as he can.
  Mr. HEYBURN. That is proper.
  Mr. BAILEY. Therefore he need not
assume  that he has made any conces-
sion to the States on  that score.
  The harm  does not  come from the
shipment of  the goods. If they were
shipped  and  never sold or consumed,
no harm would be done. Therefore  if
the  Federal  Government can only
control  the question  of shipment, the
Federal Government has no  evil to
eradicate, because the evil is after the
goods reach  the State, and I repeat
that is  an  evil completely  within the
power of the  State to control.
  Mr. HEYBURN. It is complete on
the line  of the States. That line of de-
marcation is  so fine  that you  can not
define it.
  Mr. BAILEY. It is, in the minds of
some people,  but in the minds  of some
of us the line that separates the States
of this Union is as broadly marked as
is the duty of a Senator.
  Mr. HEYBURN. In sentiment, yes;
but I am talking about geographical
lines.
  Mr. BAILEY. In practice they are
not, I regret to say.
  Mr. HEYBURN. Part of the cargo
on the train  may be  in one State and
a part in another, in crossing the State
line.
  Mr. BAILEY. The Senator knows—

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448
LEGAL COMPILATION—PESTICIDES
I assume the Senator knows—that the
court has decided that a State can
meet what we call contraband goods,
if you please, at its border and forbid
them to enter.  One of the cases was
where the court decided that a bale of
goods that might bring infection to the
people  of the State could be forbidden
to enter the State and could be burned
at the  water's edge under the  power,
sovereign, inherent, original, and com-
plete—
  Mr. MONEY. And inalienable.
  Mr. BAILEY. And inalienable, as the
Senator  from Mississippi adds. The
Supreme Court gives the Senator war-
rant for his statement.  It says that
this power of the  State to protect the
health  of its people not only against
injurious food articles, but to protect
them against deception in trade, was
one originally possessed by the States
and was  never surrendered  to the
Federal Government by them, and is
one which the Federal Government can
not exercise. What is the inspiration of
this bill? More than once I have heard
it stated in private conversation that
the States will  not pass these pure-
food laws.  If it does  not please the
people of the State of Idaho to protect
themselves, they ought not to appeal
to the  people of Texas, because when-
ever the people of Texas assert their
right to interference with the matter
of health and morals  in the State of
Idaho, they must concede the right of
the people of Idaho to interfere in the
matter of the health and morals in the
State of Texas.
                            [p. 2759]
   My own opinion is that the people of
every  State in this Union can best be
left to take care of their own morals
 and their own health, because they are
 incomparably more interested in their
morals and in their health  than are
 their neighbors in distant  States.
   Mr. HEYBURN. Mr. President	
   Mr. BAILEY. Let me carry that
 idea one step further.
   Mr. HEYBURN. Certainly.
   Mr. BAILEY. Some States do  not
 punish murder with the same prompt-
 ness  and exactness that  they  ought,
 but shall we say that there ought to
 be a Federal law on that subject? Some
 States witness public  lynchings upon
 regrettable  occasions.  Shall that be a
 sufficient warrant for the Federal Con-
 gress to legislate on that  subject?
 Some States do not punish kidnaping.
 Perhaps the Senator from Idaho would
 like to amend the laws of  Nebraska so
 that  hereafter  kidnapers would  pay
 the penalty of their crime.
   Mr. HEYBURN. Mr. President	
   The VICE-PRESIDENT.  Does  the
 Senator from Texas yield to the Sena-
 tor from Idaho?
   Mr. BAILEY. I  do.
   Mr. HEYBURN. I  certainly would
 not  repeal  the  extradition law which
 would enable Idaho to assist any State,
 whether it  be Nebraska or any other,
 in apprehending a guilty  criminal  and
 bringing him to justice.
   Now, in regard to the State of Idaho,
 to which the Senator has referred, I
 would say that Idaho has  a most excel-
 lent  pure-food law  and that it  is
 enforced by a  very intelligent officer,
 and  if  the State of Idaho can be
 protected by the assistance of the Gen-
 eral  Government against  the introduc-
 tion  of articles that are contraband in
 Idaho the laws of  Idaho  will be much
 more effective  in  their  results,  and
 that is the  object of this  bill.
   Mr. BAILEY. The State of Idaho
 does  not need  the assistance  of  the
 Federal Government, because the State
 of Idaho has complete and ample pow-
 er to protect herself.
   Mr. HEYBURN. Yes; but she is
 much embarrassed under  existing  con-
 ditions by the introduction in unbroken
 packages and large shipment of goods
 that are contraband under the laws of
 Idaho, and it  impossible to surround
 any  State with guards and stop every
 train at the border and inspect the
 contents of its cargo. Therefore much
 expense  is added  in the  maintenance

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.STATUTES AND LEGISLATIVE HISTORY
                                449
of  our government  and the  enforce-
ment of our laws by reason of the in-
troduction of these contraband articles.
  Mr. BAILEY. The senator from
Idaho unconsciously betrays one of the
reasons which actuate many Senators
in supporting this measure. They think
to  make the Federal  Government to
bear the expense, but they  deceive
themselves. After all,  the Federal
Government has no money to pay these
expenses except what it  collects from
the people  of the States;  and as it
generally costs  the  Federal  Govern-
ment more to perform a  given service
than it does the States, the people are
merely taking more money  out of one
pocket than they are putting back into
the other, and thus the sum of it all in
the end will be  an actual loss. If the
prosecuting attorneys in the State of
Idaho will  do their duty,  in twelve
months there will not be the sale of an
illegal or prohibited article  of food in
that State.
  And here, Mr. President, is  the
miserable condition to which we have
come. We are no longer willing to pass
criminal laws, and to stop with laying
upon the evil disposed the command
"Thou shalt not," adding to that com-
mand  the sanction of a penalty. That
used to be sufficient to insure obedience
to the law, but is not in this day; and
we  now feel that we must organize a
bureau and subject everybody's busi-
ness to its inquisitorial power in order
to hedge men about that they can not
commit a crime, and thus relieve in-
competent or indifferent public officials,
who are unable or unwilling  success-
fully to prosecute them when  they do
commit a crime.
  What we need in this country is not
more bureaus to supervise the business
of  the people;  we need prosecuting
attorneys who will put criminals, both
great and small, in the pentitentiaries
of  the land. That is what we need.
Give  me an efficient pure-food law in
any State with capable State attorneys
and it will be impossible  for people to
violate it very long. Put one manufac-
turer of poisoned food in the peniten-
tiary and  the  others  will hasten  to
obey the law. One conviction  is worth
more than  a bureau like this.
  Begin this way and what will come?
Another Post-Office  Department. Mr.
President, I doubt if there is a despot-
ism on the  earth to-day that holds any
single man in its dominion, with the
same power over  the  business of its
citizens, as the United States vest  in
the Postmaster-General of this  coun-
try.  He can close  any man's business
by simply saying that in his opinion it
is fraudulently conducted. A clerk, upon
an insufficient examination, can  order
a man's mail discontinued, interrupt
the current  of  his  correspondence,
destroy  his standing in  the  business
community, and the citizen is absolute-
ly without access to the courts to right
the wrong. His business  can be de-
stroyed, his reputation can be ruined,
his profits  can be diverted to his com-
petitors; and yet  he is powerless  to
appeal,  except to the same officer un-
der whose  order he  has suffered this
great wrong.
  Now,  undoubtedly  it is true that the
Government of  the United States
ought not to allow its service to be em-
ployed by  scoundrels and cheats, but
this way of lodging in the hands of one
man the power to destroy the business
of many men is un-American. You
deny the man whose business is thus
assailed resort  to the courts  of this
country. If you take his horse, even for
a public purpose, without making him
just  compensation, he  can call you  to
the bar of justice; but a single individ-
ual, responsible to nobody but his own
conscience,  can  destroy a man's busi-
ness, injure or ruin his good name, and
drive him  into  poverty and disgrace,
from a business that he has built up by
his industry and sagacity, leaving him
without a remedy in the courts. Thus
it is  that bureau after bureau is built
up, and we vest them with such extra-
ordinary power,  until the American

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450
LEGAL COMPILATION—PESTICIDES
Republic will become a bureaucracy in-
stead  of a  democracy—a government
in which the bureaus and not the peo-
ple rule.
   If the Federal Government  has the
power to pass an  act regulating the
use  of  adulterated, misbranded,  and
deleterious food, it  ought to stop when
it writes upon the statute books that it
shall be a crime to  commit such a com-
modity  for  shipment between  the
States or to foreign nations, and leave
it to the integrity and efficiency of its
judicial  officers to  vindicate  the au-
thority of its law.
   Mr. MONEY. Mr. President, in some
remarks which I  submitted  day before
yesterday I stated  that the  convention
of certain canning  associations at At-
lantic  City  declined to pass a  resolu-
tion indorsing the  Heyburn bill.  That
was controverted by a  written  state-
ment  made by the president  of that
convention, which was submitted to the
Senate by the  Senator from North Da-
kota  [Mr. McCuMBER.] This morning
I  have had handed me  a  statement
which I  desire to have read as a part
of my remarks.
   The VICE-PRESIDENT. The Sec-
retary will read as  requested.
   The Secretary  read as follows:
  In view of  the statements made by Senator
McCt/MBER in debate on the pure-food bill,  on
Monday, February 19,  in which reference was
made  to the recent convention of the  various
canning associations,  held at Atlantic  City,
N. J.,  I wish  to correct any possible misinter-
pretation  that might have resulted  from the
Senator's argument.  I am the president of the
National Food Manufacturers' Association, am
a newspaper man by profession, and have been
intimately connected  with the canning trade for
the last twenty  years.  I attended the conven-
tion at  Atlantic City unofficially,  so far as my
relationship to the National Food Manufactur-
ers' Association was concerned. I did not attend
the convention for the purpose of securing any
resolutions favoring the amendment offered by
Senator MONEY  in the  Senate, and which our
association indorses.
  Contrary to the statement purporting to have
been made by ex-President Frazier,  I am  an
honorary  member of each association  repre-
sented  at  Atlantic City, and  entitled to the
floor, if desired.
  The following morning after arriving in At-
 lantic  City President Frazier, in his address,
 asked for a resolution indorsing the  Heyburn
 bill, and all his official and private utterances
 were to the effect that a  resolution should be
 passed favoring the Heyburn bill. Doctor Wiley
 was requested to address the association, in
 order,  if possible, to win over any of those -who
 might  be wavering in their convictions regard-
 ing the Heyburn bill.
   Shortly after President Frazier's address I
 learned that  an  attempt  was to be  made by
 President  Frazier to  railroad  a resolution
 through favoring the  Heyburn bill and cut off
 all debate by  promptly adjourning the meeting
 thereafter. I at once went to President Frazier
 and told him that such a resolution could not
 pass and gave as my  reasons for such a state-
 ment, first, that the canners did  not know the
 provisions  of the Heyburn  bill,  which would
 mean a continuation of the miscellaneous  con-
 demnation of  their product without any hearing
 or conviction, which  would  mean commercial
 suicide to their brands and reputations as man-
 ufacturers of legitimate food products. On the
 basis of  this  statement I interviewed  as many
 of the members of the  association as possible
 in the  short time that was at my disposal,  with
 the result that a resolution was  passed, which
 was framed at my dictation, and  which favored
 no specific bill, notwithstanding Doctor Wiley's
 presence, and the attitude of President Frazier
 of the Western Packers'  Canned Goods Asso-
 ciation. The canners of the United States stand
 absolutely and unequivocably for  pure-food leg-
 islation, but the resolution as passed is a strik-
 ing indication of the feeling of the canners of
 the  United States toward the Heyburn bill. I
 wish to add still further that Doctor Frazier did
 not come before Congress with  any  authority
 from either  association  in  the  matter,  and,
 further,  that he is no longer an officer in the
 association of which he was formerly president.
                            O. L. DEMINO.
   Mr. MONEY. Mr. President, as I
 said,  I  received that  statement   this
 morning, and I have had  it read be-
 cause of the fact that the statement I
 made  previously  was   derived  from
 newspaper sources  and of course  you
 can not always tell whether they are
 exactly correct or  not. When my friend
 the Senator from North Dakota  read
 the statement of Doctor Frazier, I ac-
 cepted  Doctor Frazier's  statement as
 being substantially cor-
                                [p. 2760]

 rect, but I  received this statement  this
 morning, and I wanted to put it  into
 the RECORD,  in order that those  who
 have  read the other statement  may

-------
STATUTES AND LEGISLATIVE HISTORY
                                451
read this, which entirely contradicts it.
  Mr.   McCUMBER.  I  wish   very
briefly  to  answer  the  Senator from
Texas [Mr. BAILEY].
  Mr.  President,  the Senator  from
Texas  has promulgated  a legal doc-
trine here that I confess I have  never
before  heard stated as a proposition
relating to the limitation of the power
of the  Government under that clause
of the Constitution relating to com-
merce between  the  States. The propo-
sition of the Senator from Texas is
simply that under the Constitution we
can regulate commerce, but we can not
regulate commerce  for the very pur-
pose of protecting  the  people of the
several  States against fraud and im-
position by the manufacturers of other
States. That proposition, I am  ready
to declare, can  find no support in any
of the  decisions rendered by the  Su-
preme Court of the United States. On
the contrary, one of the prime objects
in reference to  the  power of Congress
over interstate  commerce  is to protect
the people—not only to  protect their
pocketbooks, but to  protect their lives;
not only to protect them against in-
juries to the person, but also to protect
them against fraud of any character.
  Let us take the case as it affects the
matter  of  competition.  We  prohibit
any two lines of railroads from enter-
ing into an agreement whereby they
destroy competition between the differ-
ent States. For what purpose? Simply
because it  is an imposition upon the
people  of those States. It is  to pro-
tect  the pocketbooks  of the  people
against the  imposition  of  improper
charges. We justify the power of Con-
gress to appoint a  body that shall fix
rates by railroads  in interstate com-
merce  upon  the  ground  that it will
protect the people of the several States
against improper charges, against un-
just discrimination, against rebates.
Every one  of them  is an element that
affects the people themselves.
  Now, that is  carried out in  every
decision that has been given by the
Supreme Court  upon the question  of
the limitation  of the power of the
Government over interstate commerce,
and I say not a  single decision can  be
found that says or even intimates that
we can not regulate commerce between
the States for  the  very purpose  of
protecting the individuals of the  State
against fraud sought to be perpetrated
by the individuals of another State.
  We go further than that.  We even
go into the State of Ohio or into the
State of West Virginia and we say  to
the coal  operators  there, "You have
made an agreement whereby you are
to fix the prices of coal in the several
States  of  the Union." Under the au-
thority of Congress over the interstate
commerce of this nation we  will con-
demn that. "Why?" "Because it inter-
feres with free competition." "What
harm does that do?" "Because it inter-
feres with  free competition,  and thus
injures the people of the States of Illi-
nois  and  Ohio  and Wisconsin, where
those goods are to be shipped." So the
very spirit, the whole soul of the power,
is for  the  purpose of protecting the
people  against  any  character of im-
position.
  The  Senator  says give him a good
prosecuting attorney in any of the
States, under the authority of the law
that  may  exist in any State, and  he
can prevent the importation  of spuri-
ous drugs, etc.  I agree entirely with
the Senator from Texas upon the lim-
itation of interstate commerce at the
dividing line of original packages.
  The  State can seize  the original
package the moment it lands, provided
that  it is a fraud or is not a commer-
cial article. There  is  the  distinction
that  they make. If it is a commercial
article, then the  State can  not touch
it until it has  been  disposed of for
sale and has passed under the State's
jurisdiction.
  But  the  police power  of  the  State
can take oleomargarine that is colored
as yellow butter and sold  for yellow
butter. It  does  not  need  to wait until

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452
LEGAL COMPILATION—PESTICIDES
the original  package  is broken,  be-
cause it is designed as a fraud upon
the public, and therefore  the police
power can reach it.
  But let us see what the Senator will
do, Mr.  President, with his  district
attorney. I will take a State like  the
State of Ohio, with its hundreds  of
thousands  of  freight  trains passing
through and across it from all sections
of the  country,  every freight train
loaded with box after box, with nothing
but the name of the  consignee upon
a box.
  This package is dropped off  at this
city, this package is dropped off at the
next  station, and 10,000, aye, 100,000
of those packages are dropped off daily
and scattered all  over  the State. They
do not  show upon the face  of them
that they are frauds. I  admit the State
can get hold  of them after they have
arrived there, but it may be that two-
thirds of them, or 90 per cent of them,
are fraudulent goods  imported from
one State to another State. If the Sen-
ator had all  the  State attorneys and
every county attorney busy in the State
of Ohio, he could not reach 1 per cent
of the entire  amount  of frauds  that
could be uncovered in  a single day in
that State.
  Thus we desire, Mr. President, to
supplement the power of the State. All
of the States have their pure-food laws.
All of them say "we do not want these
articles;"  but under  the  interstate
commerce—the commerce from all over
the country—these articles  are drop-
ping  in and scattering over our State,
so that an army of  State officials could
not in any possible way meet them.
  Now, how do we supplement it? We
come right back to the manufacturer.
We  say to the manufacturer: "You
can  not import  those goods  into  a
State." That is a power that we have
got. We can say to every manufacturer
and to every railroad: "You shall not
take any fraudulent product into any
State," the same  as we can say to the
authorities the Senator has  spoken of
 in reference to the Post-Office that no
 fraudulent tickets shall pass from one
 State to the other.
   Mr.  President,  the Senator would
 limit this authority to allowing every
 State to seize the article after it has
 been scattered daily over 10,000 cities
 or stations within the State. I can not
 conceive for one single moment that it
 is against the power of Congress to so
 regulate interstate commerce between
 the  States that the very object shall be
 the  protection of the people of that
 particular State.
   I  have but one word, Mr. President,
 to say  in reference to the amendment
 offered by  the  Senator from Missis-
 sippi [Mr.  MONEY].  I know the high
 character and the integrity of the Sen-
 ator, I  know his good judgment, and I
 do not  want him to think for a  single
 moment that I fail to place upon those
 qualities the highest appreciation. But
 notwithstanding that I may have the
 reverence for the Senator from Mis-
 sissippi that I might have for Isaac of
 old, I know the hand that reaches out
 from that  association of manufactur-
 ers  is the  hand of Esau.  I  know the
 voice that  speaks from that amend-
 ment prepared from that association
 of manufacturers is the voice of Jacob,
 and it is the voice of deception.
   The VICE-PRESIDENT. The Sena-
 tor's time has expired.
                            [p. 2761]
   *******
   Mr. BAILEY. I am sincerely anxious
 that each  State in this Union  shall
 regulate its  own  domestic concerns
 without interference  or  suggestion
 from the outside, and when each State
 does that,  and all the States do that,
 we  have a harmonious system;  we
 have the system contemplated and or-
 dained by  our fathers,  a  great num-
 ber  of local  governments concerning
 themselves  with local  affairs, and a
 great government over them  all  at-
 tending to those concerns which affect
 them all. Thus, and thus only, can we

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 STATUTES AND LEGISLATIVE HISTORY
                                453
preserve the ideal created by the found-
ers of this Republic.
  When you  invade the right  of  a
State on one occasion it is followed by
an  inevitable invasion on another, and
as you increase the power of the Fed-
eral Government to do what the States
ought to do,  the States, becoming un-
accustomed to the  exercise of  their
powers, finally become  unfit to  exer-
cise them. It  is as true of a State as it
is of an individual that long disuse of
a power destroys  that  power,  and if
the  Federal  Government in progres-
sive encroachment upon the  rights of
the States  is to finally deny them the
right to  safeguard  the  health  and
morals of their people, pray, Mr. Pres-
ident, what  place  have they in our
system even as it exists today?
                            [p. 2762]
  Mr. PILES. I wish to ask the Sen-
ator a  question.  If,  as  he says, the
object of my amendment is indirectly
covered by the provision on page 8 of
the bill, what objection would he have
to making explicit the statement on
that point?
  Mr. McCUMBER. The objection is
to the  fixing of  a standard. I do not
know whether the standard should be
25  per  cent butter fat  or  whether it
should not  be; and I do not know that
anyone  else here  knows absolutely as
to that. But  the  object of the bill is
simply to prevent fraud by extracting
butter fat or anything else, and I sup-
pose the cream or milk, as long  as it
is pure, can be sold in the market.
  I desire  to  say  one other word in
reference to the authorities that  were
sent to the  desk to be read by the Sen-
ator from  Texas [Mr.  BAILEY]. The
authorities he cites there do not in any
way, as I  understand, contravene in
the  slightest degree the statement  I
have made. There is no question but
that Congress can not reach over into
the  States and attempt to perform the
police powers of the States. The only
proposition that I desire to stand upon
is that Congress has the power to pro-
vide for conditons affecting interstate
commerce, so that it may  assist the
States  in the  police power of those
States.   It  does  not  exercise their
powers  in the slightest degree. It sim-
ply exercises the power  of Congress
over interstate commerce; and if that
power is beneficial to the  States or as-
sists the States in any way in carrying
out the  provisions of their own police
powers,  it certainly cannot be objec-
tionable for that reason.
  Mr.  BAILEY.  Mr.  President,  the
Senator misunderstands  the  purpose
for which I  referred to  those cases,
and for which  I had them read, if he
supposes that I intended  to argue in
any  way for the abridgment of the
interstate-commerce power of the Fed-
eral  Government. I referred  to  the
Plumley case for the purpose of sup-
porting   my  statement  that  a State
could protect its people against a de-
ception  in trade and against unwhole-
some articles of food or drink; and I
sought to establish the conclusion that
as the power of the State in  that re-
spect was plenary, it  could  not  be
necessary for the Federal  Government
to pass any law on the subject.
  I had the other extracts read for the
purpose  of  showing that the courts
have uniformly held that the police
power is with the States and not with
the Federal  Government.  If it be re-
ceived as true that the  general police
power belongs now, originally, and al-
ways, with  the  governments  of  the
States,  then no part of  it can be pos-
sessed or exercised by the  Government
of the United States. That argument I
made simply for the purpose of  sub-
mitting  to each  Senator's conscience
whether he voted for this  bill to regu-
late interstate commerce or  to protect
the health and morals of the people in
his State, conceding  freely that if the
purpose be to regulate interstate com-
merce,  it is  a valid exercise  of  the
power of Congress. I insist that if the
purpose  is to  protect the  health  or
morals of the people, then it is a mat-

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454
LEGAL COMPILATION—PESTICIDES
ter that belongs to the States and not
to the  Federal Government;  and that
the only way to  defend  the  bill is to
contend that it is a regulation of. com-
merce, when we know it is designed as
a protection of health.
  Mr.  McCUMBER. What I insist up-
on, Mr. President, is that we have the
right to say that this is a regulation of
commerce, but for the purpose of pro-
tecting the  citizens of the  States
against the  imposition of certain arti-
cles. Now, while the State may exercise
its own power absolutely within its own
jurisdiction and not without  its terri-
torial  boundaries, the Congress  may
exercise  its  power that will exactly
supplement  or fit in with the  power of
the State, provided it keeps within its
own jurisdiction, and that is the juris-
diction of interstate commerce. Some-
times there may  be a conflict even in
the  State itself.  Thus in the  Liquor
cases,  Congress has the right, and not
the State—the primary  right—to de-
termine what  is a proper article of
commerce. The State of Iowa  may say,
as a police regulation, that beer is in-
jurious to her people and that it shall
not be sold  in the State  of Iowa; but
the Supreme Court comes in  and says
that whenever a question of that char-
acter arises—that is, whether an arti-
cle is a commercial article—Congress
must determine that and  not the State.
Thus in those cases the Supreme Court
held the State could not prohibit it,
that the police power of the State could
not be exercised over the case of beer
in the original package, although the
State should declare it to be  unfit for
consumption in that State.
                            [p. 2763]
  Mr.  BAILEY. These  interruptions
and colloquies have not been altogether
useless at  least.  The  Senator from
North Dakota admits that the Federal
Government can not pass police regula-
tions to operate within the State—or
for the State, as he  expresses  it. Of
course the Senator could have broad-
ened that statement and said that the
 Federal Government has no general
 police power.
   I  want  to  bring that principle to
 apply at this time as a supreme test,
 and I tell  the Senator there is hardly
 a line in this bill which, under every
 accepted definition, is not a matter of
 police  regulation.  If this bill  were
 pending in the legislature of any State
 in the  Union and its provisions were
 assailed for lack of authority to pass
 it, the authority would be found in the
 general police  power  of the  State.
 That is the argument which  supports
 it here. It is purely and only a police
 regulation;  and  the  Senator  from
 North  Dakota,  with a  subtlety that
 does his ingenuity more credit than it
 does his candor, continually asserts
 that it  is  a regulation  of commerce
 intended to assist the States  in order-
 ing  their  police  affairs. Now, it is a
 rather  remarkable circumstance that
 a regulation of  Congress is  going to
 settle the  police  affairs  of a  State. If
 it is a police affair within the State it
 is a  police affair under the Federal law.
   Another trouble that the Senator
 from  North  Dakota has,  and that
 really explains  his ardent support of
 this bill, is that he is afraid that the
 frauds  are too  multitudinous for the
 States to deal with. He said that in the
 State of Ohio there were 10,000 cities.
 There are  not that many in the whole
 United States. But the Senator need
 have no fear of that. There are 90,-
 000,000 people in the  United States, or
 nearly  that number, and most of them
 are  honest men. If they are all going
 to violate the law, you can not enforce
 it. In the  first place, there would not
 be enough prosecuting attorneys; and
 if there were the rascals would consti-
 tute a  majority of the jury and could
 turn each  other loose. The  extent of
 the  frauds need not  give the Senator
 any  alarm. While crime is  prevalent
 and cheating is in progress, it is not so
 widespread as that.
   I  think the merchants and manufac-
 turers  are hardly as bad as  they are

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STATUTES AND LEGISLATIVE HISTORY
                                455
painted here. It will need only a little
while to put the bad ones in jail, and
make the others  honest as a matter
of interest.
  The  Senator  from  North  Dakota
need have no fear that the States  of
this Union will not preserve the health
and morals  of their people. If they  do
not, this system is a failure; and what
I reprobate  is that  every time justice
seems  to  miscarry  in  a State, they
appeal to the Federal  Congress  for a
law. A few great scoundrels in New
York,  as officers of insurance compa-
nies, stole trust funds, and straight-
way the people come petitioning Con-
gress for a  law to regulate insurance
throughout  the  United States;  and
that, too, in the face of the fact that
                           [p. 2766]
the Supreme Court, in a well-consid-
ered opinion, concurred in by all the
justices, and repeatedly  indorsed  in
subsequent decisions, has expressly de-
cided that insurance is  not for Federal
regulation. Three or four men stole  or
dissipated trust funds.  That was  a
crime which ought to have been pun-
ished. Those men, perhaps, ought to  be
wearing stripes  and living in prison
instead of wearing purple and fine
linen and living in palaces. But because
a State allows some great rascal  to
escape is no reason why we should call
upon   the  States  to  abdicate  their
powers to the Federal Government.
  That is the vice of all these evil
times.  When something happens in a
State  not  exactly  according to the
trend of public sentiment, the people
rush to Congress, until it will happen
after a while that Congress will have
so much to  do that it  will do nothing
well.  We have  nearly reached that
time now.
  Mr. McCUMBER. Mr. President, the
Senator from Texas has discussed  in
his last address both the legal proposi-
tion and the propriety of the legisla-
tion. I wish  to say but  a word further
upon  the legal  proposition, and we
come right back to a question which I
direct to the Senator from Texas.
  Under the  authority  of Congress
over interstate commerce, can we, by a
law, declare that any dynamite trans-
shipped from one State to another shall
have affixed to the box the word "dyna-
mite?" If we  have that power, what
power is it? Is it a police power or is
it a regulating power? If it is a regu-
lating  power,  what  is  the   purpose
of the regulation? The purpose mani-
festly must be the  preservation  of
human life; but the preservation  of
human  life comes within the police
power. The preservation of human life
is governed by the laws  of  all the
States. Yet we may enact,  in my can-
did opinion,  a  law regulating com-
merce  in  dynamite,  providing that
every box  containing dynamite shall
be marked "dynamite," and that would
be done for the very purpose  of pro-
tecting  the  people  of  the   States
through which the dynamite is about
to pass. It is not an exercise of the po-
lice power.  It is the exercise of a regu-
lating power, though its object may  be
and its intendment may be for the pro-
tection of human  life in the  several
States, and it may operate to a certain
extent as a police power would operate.
  As to the merits of the case, as the
Senator from  Texas has  spoken  on
that subject, I will submit only a few
remarks. The  Senator says:  "Punish
some of the persons who are vending
these articles in the States, and then
there will be no  more of it." Take the
State of North Dakota.  I  have here,
or  did  have,  a large  list, covering
many pages of a daily paper, showing
the different  articles that were mis-
branded or adulterated in  that State.
They  come from  all sections of the
United States.
  Many of  them come from the manu-
facturers who are mentioned  in this
organization  which  is  fighting the
pure-food bill.  Now,  suppose  you do
prosecute one  of these retailers. He
sends into Ohio or  Chicago and orders
some maple sirup.  He  is  entitled  to

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456
LEGAL COMPILATION—PESTICIDES
get maple  sirup. He gets an adulter-
ated article, and when  he  sells  it for
maple  sirup  he  has  committed  no
moral offense. Punishing him will not
help. You are punishing the innocent
for the crime  of the guilty.
  The  best legislation to  deal  with
crime is legislation that will get right
at the root of the crime, and if the root
of all of  this evil  is planted in that
territory  over  which  Congress  has
exclusive  jurisdiction — the realm of
interstate  commerce —  though   its
branches reach over into and drop its
spurious fruit into every  State, the
best legislation  is the legislation that
can reach  at  it directly and not the
legislation that can reach  at it indi-
rectly.
*****
  Mr.  SPOONER. Mr. President, of
course the  Senator from  Idaho  and
the Senator from  North Dakota must
be  anxious — and  I know they  are
anxious;  I know  their good  faith—•
that the bill shall have as  much con-
sideration as shall be needed to render
its validity as certain as we may ren-
der things of  the  sort certain.
  I  am  persuaded  that  the  lack of
standard  provided by law, in connec-
tion with  the offenses denounced in
the bill  and  punished  by  the  provi-
sions of  the bill, is very dangerous to
it.  Of course,  the  fundamental  sec-
tions, the jurisdictional sections of the
bill, are the first and the second. The
first section punishes by a  very  severe
penalty—none too severe,  probably—
persons who "manufacture, sell, offer
for  sale,  or deliver for shipment, or
cause  to  be  delivered,  shipped,  or
transported from  within  any  State,
etc., to another State, Territory,  etc.,
any article of food, drugs, medicines,
or liquors which is adulterated or mis-
branded, or which contains any poison-
 ous  or  deleterious  substance within
 the meaning of this act." The second
 section is substantially the same.
   No lawyer will challenge the propo-
 sition  for a moment that there is an
 utter lack  of  standard,  except it be
 supplied  in the bill  thereafter,  and
 that there  is no standard supplied in
 the bill thereafter except as to drugs.
 Whether an article is deleterious or
 not is a question  of fact to be deter-
 mined by a jury. All through the bill
 there are questions of fact to be deter-
 mined by a jury. There is no standard
 rendering  definite  the offense.  There
 is nothing putting a man on notice in
 advance of a  standard  to which he
 must live and  toward which and in
 obedience to which he must shape his
 business.
 *****
                            [p. 2767]
   The VICE-PRESIDENT. The ques-
 tion is on  agreeing to the substitute
 submitted by the Senator  from Mis-
 sissippi.
   The  substitute was rejected.
   The bill was reported to the Senate
 as amended, and the amendments were
 concurred in.
   The bill was ordered to be engrossed
 for a third reading, and  was read the
 third time.
   The VICE-PRESIDENT. The ques-
 tion is, Shall the bill pass?
   Mr. HEYBURN. On that I ask for
 the yeas and nays.
   The  yeas and  nays were ordered,
 and the  Secretary  proceeded to call
 the roll.
 *****
   The roll  call having been concluded,
 the  result  was  announced—yeas  63,
 nays 4, not voting 22, as  follows:
 *****
                             [p.2773]

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STATUTES AND LEGISLATIVE HISTORY
                                                                       457
1.2a (5) (b)   May 7, June 21, 22, 23: Debated, amended and passed
House, pp. 6464-6467, 8889-8915, 9005, 9048-9052, 9068-9070, 9075
                                         Mr.  Speaker,  during this time  a
                                       great many bad things have been de-
                                       veloped in the hearings. There is not
                                       a solitary case ever developed that  is
                                       not punishable by local authorities  if
                                       the local  authorities  will  do   their
                                       duty.  I want to say another thing;
                                       there  are  two or  three  features  in
                                       that bill that are not only foolish, but
                                       vicious also.
      PRIVILEGE TO CERTAIN BILLS
  Mr.  HEPBURN.  Mr.  Speaker, I
move to suspend  the rules  and pass
the following order.
  The  SPEAKER.  The  gentleman
from Iowa moves to suspend the rules
and  pass the following order.
  The Clerk  read  as  follows:
  Ordered, That the privilege granted to bills
reported from committees having the right to
report at any time, be, and is hereby,  granted
to the following bills:
  S. 88: "For preventing the adulteration or
misbranding of foods or drugs, and  for  regulat-
ing traffic therein, and for other purposes."
  H.E. 18673: "To regulate the immigration of
aliens into the United States."
  Ordered further. That the bill (H.E. 17984) to
provide a code  of penal  laws for  the United
States be, and hereby is, made  a special con-
tinuing order for consideration at evening ses-
sions of the House, whenever the  House shall
by vote take a  recess from the  usual  hour of
adjournment until 8 p.m., the said evening ses-
sions not to continue after 10:30 p.m.
                            [p. 6464]
  Mr.  ADAMSON.
  As to the other proposition, my dear
friend the gentleman from  Iowa [Mr.
HEPBURN], chairman of our  Commit-
tee  on Interstate  Commerce, has  in-
herited what  he calls the  "pure-food
bill." It is not of his origination.  An-
other  man fomented it,  and worked
on  it,  and the gentleman from  Iowa
took it up. Instead of pure food, Mr.
Speaker,  it ought to be  called  "pure
foolishness."  That is what  it  ought to
be named. [Laughter.]
  It is a proposition  to abolish  all
legal responsibility;  it is a proposition
to  take  up one industry  and  damn
another. We have for  eight years, in
my experience in Congress, had hear-
ings, and the whole  output  of the  en-
tire investigation has been with refer-
ence to prostituting the Federal Gov-
ernment, with its power and its money,
to uphold one enterprise and destroy
another.
                                         There is one section in that bill that
                                       would fill this country with morphine
                                       and  opium fiends. Read that section.
                                       It is a  provision that  any  druggist
                                       may supply the customers  with a con-
                                       coction  containing 2  grains of opium
                                       or one-quarter of a grain of morphine
                                       to each ounce whether fluid  or solid.

                                         More than  that, Mr. Speaker, the
                                       bill contains  a proposition to go into
                                       the regulations of the State  and say
                                       whether or not you shall put  so many
                                       ounces  into  a package.  It  proposes
                                       that if  you sell a pound package and
                                       it is less  than a pound  the Federal
                                       Government will  undertake to correct
                                       that crime. It is  not  only  foolish, but
                                       illegal.  I believe habeas corpus would
                                       discharge  any man   arrested under
                                       that provision,

                                         I tell you,  Mr.  Speaker,  the system
                                       of this Government as propounded by
                                       its founders is that people  shall sweep
                                       in front of their  own doors;  that the
                                       Federal  Government  shall  not  be
                                       loaded  down  with  all the  domestic
                                       affairs,  and you know it. The Federal
                                       Government was  not  created for the
                                       purpose of cutting your toe  nails or
                                       corns. We ought to do our  duty to the
                                       Government  and  State.  There is not
                                       in this entire bill  a proposition to pun-
                                       ish any crime that your own State can
                                       not punish, if it  will do its duty. All
                                       lawyers know it is  the duty of the
                                       State and the right of the  State to
                                       perform that  part of the functions of
                                       government involving police duty. We

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458
LEGAL COMPILATION—PESTICIDES
all know that a venue has to be laid
and proved, and if the Federal judges
are as honest as the State judges the
same requisites are necessary to con-
vict  a  criminal.  Is  not that  true?
There  is not in all the  hearings for
eight years on this  pure-foolishness
bill a case cited that  we can not con-
vict in Georgia or in  Pennsylvania or
any other State.
  I will  yield to the  gentleman from
Georgia [Mr. BARTLETT].
  Mr.  THOMAS  of  North Carolina.
Mr.  Speaker,  a  parliamentary  in-
quiry?
  The SPEAKER. The gentleman will
state it.
  Mr.  THOMAS of  North Carolina.
I understand these  propositions  are
tied together. We have got to vote for
consideration of all of them or against
consideration of all of them.
  The SPEAKER. The  motion is in
that form.
  Mr.  THOMAS of  North Carolina.
These  three propositions to be consid-
ered under the proposed order are the
pure-food bill,  the bill restricting im-
migration, and the penal code.
  The SPEAKER. That is true unless
the motion is modified, and it can only
be divided by unanimous consent.
  Mr.  THOMAS of  North Carolina.
So that we are put in a position we
must either vote for  consideration of
all of them or against consideration of
all of them?
  The SPEAKER. The gentleman will
see that; the motion speaks for  itself.
  Mr. WILLIAMS.  Mr. Speaker,  a
parliamentary  inquiry.
                            [p. 6465]
  Mr.  BARTLETT.
*****
  As for the other bill, known as the
"pure-food bill," I do not deem it to
be worthy of the consideration of the
House as these other bills are. The
bill proposes from its very title  to the
very last line  written in it that the
Congress of the United  States  shall
 enact purely police laws to govern the
 trade in certain foods and drugs. The
 phrase   "interstate  commerce"  no-
 where occurs in  the title, so the  bill
 itself is  nothing  more  than a bill to
 enact police laws of the United States
 for the States of the Union—a thing
 which in my judgment Congress ought
 not and can not do. What the purpose
 of joining these two meritorious meas-
 ures with the one  which in my judg-
 ment  is  not  meritorious,  one  that
 should  not  receive the sanction and
 approval  of this House is, I do not
 know. This I do know; I am not in
 favor of, and I trust that this side of
 the House at  least  will  not permit the
 joining of these two meritorious meas-
 ures of which most of us are in favor,
 and I hope that the House  will  not
 permit this rule to be passed dragging
 along with these meritorious measures
 as  it does the other bill which I  do
 not believe  we ought to consider  or
 vote for—I mean the pure-food bill, at
 least not without ample debate. This
 bill  known as the "pure-food bill,"
 inaugurates  here  in   Washington  a
 bureau, another  bureau in the Agri-
 cultural Department, for the purpose
 of enabling the Bureau of  Chemistry
 of  the Agricultural  Department  to
 declare what  is adulterated and what
 is not adulterated  food, and to estab-
 lish standards of  foods for all  the
 States. It strikes down with one  fell
 blow all the laws of the States of the
 Union that have been  enacted in be-
 half and  in the interest of pure food
 and  the enforcement  of  pure-food
 laws. I do not care to  further detain
 the House,  Mr. Speaker. I  apprehend
 all of those Members who have given
 the matter  attention are fully aware
 of the provisions of the alleged pure-
 food bill. I desire  to  state this fact,
 that  the  committee from  which this
 bill comes has not yet  completed con-
 sideration of some amendments that
 have been suggested. There are some
 amendments that are very serious and
 of  great importance  that  are still

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STATUTES AND LEGISLATIVE HISTORY
                               459
pending  before that committee  with
a view of reporting them to the House
and having them made a part of the
bill as committee amendments. We ex-
pected to have further consideration
in order  that the bill, if it  shall  pass,
may be perfected in many particulars.
       *****
  Mr.  RICHARDSON  of  Alabama.
Mr.  Speaker,  as  I  understand, the
effect of this  proposition,  so far  as
the pure-food  bill  is concerned,  is to
restore it to the position of privilege
it  lost a  few days since. I desire to
call the  attention of  the  House  to
the remarks made by  the  gentlemen
from  Georgia  [Messrs. BARTLETT and
ADAMSON]  in criticism  made upon the
pure-food bill. This House, Mr. Speak-
er, has become accustomed during the
Fifty-seventh, Fifty-eighth, and Fifty-
ninth  Congresses to  just such  criti-
cisms  as  those gentlemen have passed
upon the pure-food bill.
                           [p. 6466]
  Mr.  ADAMSON. Will the gentle-
man from Alabama, who has lost his
bearing on this question, yield?
  The SPEAKER. Does the gentle-
man from Alabama yield?
  Mr. ADAMSON. I ask that he  have
order  and a respectful  hearing.
  The SPEAKER. The  House will be
in order.
  Mr. RICHARDSON  of Alabama. I
say, Mr.  Chairman, that these worthy
and  distinguished gentlemen simply
repeat the misapplied  theories  of
States rights  to the  pure-food bill.
There is  an express reservation found
in section 12 of  the bill that it  shall
not be  construed  to  interfere  with
commerce wholly internal in any State
nor with the exercise of their police
powers by the  several States, etc.
  Mr. ADAMSON. Mr.  Speaker	
  Mr.  RICHARDSON  of  Alabama.
No; I can  not yield to  my friend  at
this moment.
  Mr. ADAMSON. Just for	
  Mr.  RICHARDSON  of  Alabama.
I have  but five minutes allowed me
and I regret that I can not yield fur-
ther to  the gentleman from  Georgia
[ME. ADAMSON].
  The SPEAKER. The gentleman de-
clines to yield.
  Mr. ADAMSON. Just a minute.
  Mr.  RICHARDSON  of  Alabama.
The pure-food bill has been before the
House  certainly through the Fifty-
seventh,  Fifty-eighth and Fifty-ninth
Congresses, and at last the Senate,
that has heretofore taken  but little,
if  any, notice of any  bills that have
been passed by the House, have passed
a bill, and  it has come to the House,
and we  have perfected—if  I may  be
allowed  to  say—that into one of the
best  bills probably that we  have ever
had before  the  House  from the Inter-
state Commerce Committee, notwith-
standing the objection made by  the
two distinguished Georgians.  A pure-
food bill passed  the House in the Fifty-
seventh  and Fifty-eighth Congresses,
and, with a part of the minority  of
the members of the Interstate Com-
merce  Committee,   I  have  been  an
earnest  advocate of the passage by
Congress of this legislation.
  Mr. WILLIAMS. Mr.  Speaker	
  The  SPEAKER.  Does the  gentle-
man from Alabama [Mr. RICHAKDSON]
yield to  the gentleman from Missis-
sippi?
  Mr.  RICHARDSON  of  Alabama.
I yield with pleasure to the gentleman
from Mississippi.
  Mr.  WILLIAMS. The question  I
wanted  to  ask the gentleman from
Alabama was  this:  Even supposing
his position is perfectly correct in re-
gard to the pure-food  bill—assuming
that now for the sake of argument—
does he  think that  that would justify
coupling three  or four bills together
in  one order, so as to logroll the sup-
port of  each in support of all? Does
he think that this  parliamentary de-
vice is  one  which can be indorsed by
any of us?
  Mr.  RICHARDSON  of  Alabama.

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460
LEGAL COMPILATION—PESTICIDES
I do not agree to that. I do not think
they ought  to be coupled together.  I
am in  favor  of giving  the right of
way to  the pure-food bill and the im-
migration bill, but  I  do  not desire to
couple with them the bill for the revi-
sion of  laws.
  Mr.  WILLIAMS.  Very well  then.
I hope  to have the gentlemen under-
stand that we are placed by this order
in the parliamentary attitude  that if
we vote against one of these bills we
are bound to  vote  against the  consid-
eration  of all.
  Mr.   EICHARDSON  of  Alabama.
I would like  to see  them considered
separately,  if the  gentleman  desires
to know my view in regard to it. If I
had my way, I  would strike out the
bill for the  revision of laws and give
the  other two bills  the  privilege of
being called up.
  Mr. Speaker, we were  talking about
the pure-food bill and its merits, as
I understand it. I desire the House to
understand  that we  had  uncontra-
dicted  and  reliable  testimony before
the Interstate and Foreign  Commerce
Committee  on this one  article that
there were 60,000,000 gallons of whis-
ky made in  the State  of  Kentucky
annually, and that  only 15,000,000 of
it was  pure. The  rest  is  altogether
adulterated. This is  but a  sample of
the adulteration of  various  other food
products.  Yet  gentlemen   will  say
there ought to be no legislation on so
important a  subject as  that  of the
purity  of our food. This bill does not
interfere with the  honest  dealer or
manufacturer. And yet the fact re-
mains,  Mr.  Speaker,  that in many of
the States where they have undertaken
by statutes to regulate  the adultera-
tion of food  it  has totally  and  abso-
lutely failed to accomplish the desired
end. Why has it been a  failure? It  is
simply  because, as was so well de-
scribed  before  the  Interstate  Com-
merce Committee, as was done by a
gentleman from Michigan, that he had
to  prepare  different  brands or labels
 for different States where he sold his
 goods having  practically  the  same
 statutes, because different State com-
 missioners of food had given different
 constructions to really the same stat-
 ute, and this gentleman had to make
 his cans and his preparations comply
 with  the different constructions made
 by different State commissioners. What
 the commerce  of the country  desires
 is uniformity  in our food standards.
 This can only be accomplished by Fed-
 eral legislation.
   The  SPEAKER. The gentleman's
 time  has expired.
   Mr.  RICHARDSON  of Alabama.
 Mr.  Speaker,  I ask three  minutes
 longer from the gentleman from Iowa
 [Mr.  HEPBURN].
   Mr.  HEPBURN.  Mr.  Speaker,  I
 yield three minutes more to the gen-
 tleman.
   Mr.  RICHARDSON  of Alabama.
 I  say, Mr.  Speaker, that it is utterly
 impossible  to  enforce   the  different
 statutes of the different States on ac-
 count of the difference of standards in
 the different States; hence arises the
 absolute  necessity  of  legislation  by
 Congress for the government  of this
 matter. There  are  too many different
 constructions given in  the  different
 States  to make it  practicable  to give
 the   public  the  protection   against
 fraud,  deception, and misrepresenta-
 tion so generally resorted  to through-
 out the country  in the matter of the
 sale  of  our food products.  This bill
 that we have does  not legalize in any
 improper or dangerous  way the sale
 of opium or morphine or  any of that
 nature of  poisonous and  destructive
 medicines,  as  has  been charged. It
 merely provides, in that  important
 feature, that the quantity or  propor-
 tion  of opium or morphine need not
 be stated on the label unless the pro-
 portion contained in an article is more
 than the Pharmacopoeia provides; but
 wherever cocaine is used  at all, it is
 required to be put upon the label. We
 know that soothing sirups and a great

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STATUTES AND LEGISLATIVE HISTORY
                                461
many innocent medicines of that kind
that enter into daily domestic use have
a  certain  amount of  morphine  or
opium in them.  Would anyone be so
unreasonable as  to require that to be
labeled  when it  complies  with  the
Pharamacopoeia, as prescribed by the
medical fraternity and by the phar-
macists,  who  professionally prescribe
these quaitities? It would be  a vexa-
tious and unnecessary requirement in
opposition to the aim and end of the
bill.
  Mr.  ADAMSON. Mr. Speaker	
  The SPEAKER. Will the gentleman
from  Alabama  [Mr. RICHARDSON]
yield to the gentleman from Georgia?
  Mr. ADAMSON. I think I am with-
in the rule when I ask the gentleman
to yield to me one minute.
  Mr.  RICHARDSON  of  Alabama.
I will yield.
  Mr. ADAMSON. I want to ask the
distinguished  gentleman  from  Ala-
bama, whom I love and honor as much
as any Member  of this House, if he
can  not  discriminate  between  the
rights of  States  and the duties of
States?
  Mr.  RICHARDSON  of  Alabama.
Oh,  yes,  I have  been  taught,  Mr.
Speaker, just as  thoroughly as my
friend from Georgia,  what  are the
rights of  States;  and I have been
taught at  the  same time  that  the
Federal  Government, in the exercise
of its lawful and constitutional func-
tions, has  some rights also.  I  have
already referred to the section of this
bill that  provides  that this  bill  shall
not be construed as interfering with
any of the  police rights of the States.
I look at this matter in entirely a dif-
ferent light  from  my  distinguished
friend from Georgia [Mr. ADAMSON].
Constitutionally  no law can be passed
by Congress that usurps the positive
and reserved rights of the States, but
Congress can  pass a law tending to
aid and  help  the  States  that desire
protection  from  unwholesome,  un-
healthy, adulterated foods by bringing
about uniformity of rules and stand-
ards by which the public can be more
efficiently protected.  Mr. Speaker,  I
have  taken occasion to say  on  this
floor  before that I am just as much
imbued with the sanctity of rights of
the States as  anyone  on  this floor.
I do not  concede to anyone  a  greater
love and  respect than I possess for the
rights of the  State. I believe in and
uphold  the exercise  of  the   fullest
rights of the  State. I believe  in  the
power of the State as to the enactment
of its criminal laws and the  punish-
ment  of its criminals. I believe in the
power of  the  State  to  protect  its
people and the lives  of its  people in
the matter of health. I believe in  the
right  of  the State to preserve order.
All of these questions, it seems to me,
are easily understood and applied and
can be exercised without conflict with
the Federal Government. If the State
is unable by reason of impracticable
conditions  to make  efficient its  own
laws,  then the Congress of the United
States has the  constitutional right to
so legislate as to help the State. This
bill, if it becomes a law, will not  hin-
der or prevent  any State from enact-
ing and  enforcing the most  drastic
laws for  the regulation of the sale of
adulterated food products. Why, then,
should our States rights friends com-
plain?
  Mr. HEPBURN. I yield to the gen-
tleman   from   Pennsylvania   [Mr.
MOON].
  Mr.  MOON  of  Pennsylvania.  Mr.
Speaker, I rise for the purpose of cor-
recting a misapprehension   as  to  the
length of the bill embracing the penal
code of the United States. The impres-
sion seems to exist here that this bill
includes an entire
                           [p. 6467]
           PURE-FOOD BILL
  The committee resumed its  session.
  Mr. ADAMSON. Mr.  Chairman,  I
desire to make a  request for  unani-
mous  consent. The  print of the minor-

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462
LEGAL COMPILATION—PESTICIDES
ity report is exhausted. I do not know
whether we want more prints or not.
The  gentleman from  Georgia  [Mr.
BARTLETT], who is absent,  drew  the
minority report, and I ask unanimous
consent that it may be printed in  the
RECORD tomorrow morning, in order
that Members may see it.
  The  CHAIRMAN.  The gentleman
from Georgia asks unanimous  consent
that the views of the minority may be
printed in the RECORD tomorrow morn-
ing.  Is there objection?
  Mr.  HEPBURN. Mr. Chairman, is
it competent to do that in the com-
mittee ?
  The  CHAIRMAN. The Chair thinks
that strictly it  should be ordered in
the House.
  Mr.  ADAMSON.  Mr.  Chairman,
then I shall withdraw the request and
make it in the House.
  Mr.  HEPBURN. Mr.  Chairman,  I
yield such time as he may desire to
my  colleague  on the  committee,  the
gentleman from Illinois [Mr. MANN].
[Applause.]
  Mr.  MANN.  Mr. Chairman, I wish,
first, to  say that  although  there  has
been considerable criticism — at least
outside of this Chamber—over the de-
lay in  the consideration of this bill in
the House, that, as a  matter of fact,
since the bill was reported into  the
House and  was  first given a privi-
leged position in the House no bill  has
been considered by the House  except
appropriation  bills,  bills under sus-
pension  of  the rules, by unanimous
consent, or bills on the Private Calen-
dar, except the one bill which was then
a continuing order—the bill in regard
to naturalization; so that the delay in
the consideration of this bill has been
caused on account of the  unwritten
rule of all legislative bodies, I believe,
that appropriation bills,  when ready
for consideration, as a general thing,
                           [p. 8889]
are  disposed  of ahead  of  all  other
legislative propositions.  But dur-
ing  all this time,  Mr.  Chairman,  I
 wish to say in justice to the House
 that  I  have been constantly assured
 by leaders of the House that  the pure-
 food bill would have  its day in court,
 would have its  chance for considera-
 tion by the House before the final ad-
 journment of Congress for this session.

    COMPARISON OF SENATE BILL AND
          HOUSE  SUBSTITUTE
   Mr.  Chairman,  Members  of  the
 House are interested  to know not only
 what the pure-food bill does, but to
 know what the  difference  is between
 the propositions submitted  by the Sen-
 ate and the propositions submitted by
 the House committee.
   The Senate passed a bill, No.  88,
 which  came to  the  House,  and  the
 Committee  in Interstate and Foreign
 Commerce have  reported that bill to
 the House, striking out all  after the
 enacting clause and inserting a substi-
 tute  by way  of amendment,  and in
 order that the Members of the House
 may  compare the two bills  you  will
 permit  me to make a short statement
 in  reference to  the  so-called "House
 bill," or  rather between  the House
 amendment and  the  Senate  bill.
   Section  1 of the Senate bill makes
 it unlawful to manufacture  or offer
 for sale  within  any Territory, Dis-
 trict,  or  insular possession  of  the
 United   States   adulterated   or  mis-
 branded foods or drugs,  or to  ship
 from any State, etc., to any State, etc.,
 such articles, under penalty  of  fine
 and imprisonment.
   Section 2 of the Senate  bill prohib-
 its the  introduction  into  any State,
 etc., from another State, etc., of adul-
 terated  or  misbranded   foods   and
 drugs,  and provides  that  any person
 who shall ship or deliver for shipment
 such goods from a State,  etc., or  ex-
 port the same  to a foreign country
 from a State, etc., to a State, etc., or
 export  the  same to a foreign country,
 or who shall  knowingly receive such
 goods in a State, etc., shall  be guilty
 of a misdemeanor, etc., and provides

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STATUTES AND LEGISLATIVE HISTORY
                                463
that violations of sections 1 and 2 by
a corporation may be enforced against
the officers of the corporation person-
ally responsible for the violation.
  Section 1 of the House  amendment
covers sections 1 and 2 of the Senate
bill and provides that the introduction
of adulterated or misbranded foods or
drugs into any State or Territory, etc.,
from  any other  State  or  Territory,
etc., or shipment or receipt of such
goods to or  from any foreign country
is  prohibited,  and  that  any  person
who shall ship from one State or Ter-
ritory  to  another State  or Territory,
or to a foreign country, or receive in
one State from another, or who shall
offer for  sale in the District  of Co-
lumbia  or the Territories  adulterated
or misbranded foods or drugs, shall be
guilty  of a  misdemeanor and be fined
$200 for  the  first  offense,  and for a
subsequent offense not exceeding $300
or one  year's imprisonment, or  both,
containing a proviso, however, that a
person shall not  be liable  to the pen-
alty of imprisonment unless he  know-
ingly committed  the  offense charged,
and  containing  the  further proviso
especially intended for the preparation
of certain articles for export, such as
meats,  that  an  article  shall not  be
deemed  misbranded  or   adulterated
when  exported and prepared accord-
ing to the specifications of the foreign
purchaser.
  Section 2 of the House bill is almost
identical with section 3 of the  Senate
bill, and provides that the Secretaries
of Treasury,  Agriculture,  and Com-
merce and Labor shall make rules and
regulations  for carrying out the pro-
visions  of the act and for the collec-
tion and examination of specimens of
foods and drugs which may be offered
for sale in  the  District of Columbia
or any Territory,  or offered  in  un-
broken  packages in any  State where
not produced, or  received from a for-
eign country or intended for shipment
to a foreign country  or submitted for
examination by the health or food offi-
cers of any State.
  Section 3 of the House bill is almost
the same as  section 4  of  the  Senate
bill, and  provides that the  examina-
tions of specimens of foods  and drugs
shall be made in the Bureau of Chem-
istry, or under its supervision, and if
it shall appear from examination that
any specimen is  adulterated or mis-
branded, the  Secretary of Agriculture
shall cause notice to be given to the
party from whom the sample was ob-
tained, and such  party  shall be given
an  opportunity to be heard, and if it
then appears that any of  the provi-
sions of the act have been violated, the
Secretary of  Agriculture shall at once
certify the facts to the  proper  United
States  district attorney, with  a  copy
of the  analysis  or examination,  and
after judgment  of  the court notice
shall be given by  publication.
  Section 4 of the House bill is almost
the same as  section 5  of the  Senate
bill, and provides that it shall be the
duty of each district attorney to whom
the Secretary of Agriculture shall re-
port any violation of the  act, or to
whom any health or food or drug offi-
cer or agent  of any State,  Territory,
or the District of Columbia shall pre-
sent satisfactory  evidence of such vio-
lation to commence prosecution.
  Section 5 of the House bill and sec-
tions 6, 7, and 8 of the Senate bill con-
tain definitions.   The Senate bill de-
fines  the  term   "drug,"   the   term
"food,"  and  the  term  "liquor." The
House bill includes all under the two
terms "drug" and "food," and  defines
the term "drug" as including all medi-
cines and preparations  recognized in
the pharmacopoeia or national formu-
lary for  internal  or external use, and
also any  substance or mixture of sub-
stances  intended  to be used for the
cure, mitigation or prevention  of dis-
ease of  either man or  other animal.
The term "food"  is defined  as  includ-
ing all articles used for food, drink,
confectionery, or  condiment  by human

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464
LEGAL COMPILATION—PESTICIDES
beings or  domestic animal, whether
simple, mixed, or compound.
  Section 9 of the  Senate bill  defines
what shall be considered as adultera-
tion or misbranding of drugs,  confec-
tionery, foods, and liquors.
  Section 6 of  the  House bill  defines
what shall be   deemed  adulterations
under the  act,  and provides  that  a
drug shall be deemed  adulterated if
when sold  under the standard recog-
nized in  the  pharmacopoeia it differs
from the standard as laid down there-
in,  or  if  sold under any other  pro-
fessed standard or  quality it  differs
from the professed standard.
  Confectionery shall be deemed adul-
terated if it  contain terra alba, bary-
tes, talc, chrome yellow, or other  min-
eral substance  or poisonous color or
flavor, or other  ingredient deleterious
or detrimental to health.
  Food which includes  both food  and
drink shall be deemed  adulterated if
any  substance has been mixed  with it
so as to lower its quality or strength,
or has been  substituted wholly or in
part for the article, or if any valuable
constituent has  been removed,  wholly
or in part, or if it be mixed,  colored,
powdered, coated, or stained in  a man-
ner to conceal damage or inferiority,
or if it contain  any added poisonous
or other added  deleterious ingredient
which may render such article  injuri-
ous to health, or  if it consists, in whole
or in part, of  filthy,  decomposed, or
putrid animal or vegetable substance,
or is the product of a diseased animal.
  This section contains a proviso that
if food prepared for shipment  is pre-
served  by  an  external  application
which is necessarily removed in prepa-
ration for  use,  the condition  of the
food at the time when  ready for con-
sumption  shall be the test under the
act.  This is the provision urged by the
gentleman  from Massachusetts  [Mr.
GARDNER]  as necessary to prevent the
destruction of the codfish industry. It
may be  considered somewhat doubtful
whether the proviso has any practical
 value  or  effect  either one way or the
 other, as it is  doubtful whether any
 preservative can be used in such man-
 ner that  it shall  be necessarily re-
 moved in preparing the food for con-
 sumption.
   The provision against adulteration
 of confectionery  might  properly  be
 extended  so as  to prohibit the use of
 spirituous liquors  or  alcoholic  com-
 pounds or  narcotic  drugs in confec-
 tionery in any shape.
   Section 7 of the House bill relates
 to the subject of "misbranding" and
 is the section the provisions of which
 have given  rise to the greatest contro-
 versy. It  provides that the term  "mis-
 branded" shall  apply to  all drugs or
 articles of food, or articles which en-
 ter into the composition of food, which
 bear any statement,  design, or device
 on the package or label regarding the
 ingredients   or  substances  contained
 therein,  or  the article as  a whole,
 which shall  be  false  or misleading in
 any particular;  and to any food or
 drug product falsely branded as to the
 State, Territory, or country in which
 it is manufactured or produced; that
 also a drug shall be deemed  "mis-
 branded" if it be an imitation  of or
 offered for  sale under the name of
 another  article, or if the  contents of
 the original package  have been re-
 moved in whole or in part and  other
 contents  substituted, or  if  it fail to
 bear a statement on  the label of the
 quantity  or proportion of alcohol, or
 of opium, cocaine, or other  poisonous
 substance contained therein.
   It is proposed  to  offer an  amend-
 ment to this provision, which in  effect
 will provide that the quantity of alco-
 hol  or narcotic need  not be  stated
 upon  a  pharmacopoeia remedy pre-
 pared in accordance with the pharma-
 copoeia formulary, but that on  other
 preparations of drugs the amount of
 alcohol and of opium, morphine, co-
 caine, heroin, alpha and beta eucaine,
 acetanilid,  and chloral hydrate shall
 be stated, so that people  may  be in-

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STATUTES AND LEGISLATIVE HISTORY
                                465
formed who purchase  prepared medi-
cines whether they are  taking  habit-
forming drugs or alcoholic compounds.
  "Food" shall be considered as adul-
terated if it  be an  imitation  of  or
offered for sale under the distinctive
name of another article, or if  labeled
or branded  so  as to deceive the pur-
chaser, or falsely purport to be a for-
eign product,  or, if in package form
the  quantity of  the  contents  of  the
package be  not plainly  and correctly
stated in terms of weight and measure
on the outside  of the package.
  An amendment will be offered to the
package provision  somewhat modify-
                            [p. 8890]
ing the arbitrary provision, but still
protecting the purchaser and the hon-
est  manufacturer from  the fraud  of
those who wish to cheat and swindle
by short weight or measure.
  It ought  also  to  be considered  as
misbranding of food if the contents of
the  original package shall have been
removed in whole or in part and other
contents placed in  the package, or if
the package fails to bear a statement
on the label of the quantity or propor-
tion of any of the narcotic drugs.
  The section provides that an article
of food not containing added poison-
ous  or deleterious ingredients shall
not  be deemed adulterated or mis-
branded in a case of mixtures or com-
pounds known as articles of food un-
der  their own  distinctive names and
not imitations,  if the name be  accom-
panied on the label with a  statement
of the place where the article has been
manufactured or produced, and also
that food  shall  not be deemed adulter-
ated or misbranded in case of articles
labeled, branded, or tagged  so as  to
plainly indicate they are compounds,
imitations, or  blends, provided that
the  term "blend" as used therein shall
be construed to  mean a mixture  of
like substances  not excluding harmless
coloring or flavoring ingredients.
  Many of the provisions in the House
bill  and the  Senate bill are very simi-
lar in reference to  misbranding  and
adulterations, but  there  are various
differences.  The package  provision in
the House bill is not contained in the
Senate bill in any form. The provision
in the House bill requiring the amount
of alcohol and of habit-forming drugs
to be stated in medicinal preparations
is not in the Senate bill at all.  The
Senate bill  contains the  provision in
reference to liquors — that a  liquor
shall  be  deemed misbranded  if it be
blended or rectified, or consists of an
admixture of different grades of  the
same liquor, or  contains  or is  mixed
with  other  substances, and the word
"blended," "rectified,"  or  "mixed," as
the case  may be, is not plainly stated
on the package  in  which such  liquor
is offered for sale,  or if  the  label or
any written  or  printed statement ac-
companying  the  package in which the
liquor is  kept  or sold contains  any
false  statement  as to the character of
the contents of the package, or repre-
sents the liquor to  be the product of
any other country than that in  which
it was actually produced.
  The provision in  the  House  bill
which covers the subject  of  liquor,
as well as other articles  of food  and
drink, is that an article shall not be
deemed   misbranded   when  labeled,
branded, or  tagged  so as  to plainly
indicate that it  is a  compound, imita-
tion, or blend, provided that the term
"blend" as used therein shall  be con-
strued to mean a mixture of like sub-
stance, not  excluding harmless  color-
ing or flavoring  ingredients.
  Section 8  of the House bill is very
similar to section 10 of the Senate bill,
and provides that no dealer shall be
convicted  when able  to prove  a  guar-
anty  of  conformity  with  the  act,
signed by the manufacturer  or parties
from  whom  he   purchased, but  the
guarantor must  be  a resident of  the
United States. In such case the guar-
antor shall be amenable to the penal-
ties provided for the dealer.
  Section 9 of the House bill makes it

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466
LEGAL COMPILATION—PESTICIDES
the duty of the Secretary of Agricul-
ture from time to time to fix standards
of food products for the guidance of
the officers charged with the adminis-
tration  of the food laws and for the
information of the courts and to de-
termine the wholesomeness  of preser-
vatives  and other substances added to
foods; and to aid him in reaching just
decisions authorizes the Secretary to
call upon the committee on food stand-
ards of the Association of Official Ag-
ricultural Chemists and the committee
of  standards  of the  Association  of
State Dairy and Food  Departments,
and  such other  experts as he  may
deem  necessary;  and further provides
that any person interested in the ques-
tion as to the wholesomeness of a pre-
servative or  other  substance to  be
added to food may require  the Secre-
tary to  appoint a board of disinterest-
ed experts of five members to consider
investigate,  and  report to the Secre-
tary as to the wholesomeness of  such
articles. The provisions in section 9 of
the House bill are not contained in the
Senate bill.
  Section 10 of the House bill is simi-
lar to section 11  of the Senate bill, and
provides that any  person dealing in
foods or drugs covered by the act  shall
furnish, within business hours, at the
ordinary price, a sample to the person
duly authorized by the rules and regu-
lations in sufficient quantity for analy-
sis.
  Section 11 of the House bill and sec-
tion 12  of the Senate bill are the same,
and provide that any person refusing
to sell a sample in compliance with the
section  of the  act requiring it shall be
fined  or imprisoned. This section also
contains the provision that any person
guilty  of manufacturing or  selling
adulterated or misbranded  articles in
violation of the act may, in addition to
the penalties provided be adjudged to
pay the costs  and expenses of inspec-
tion analysis.
  Section 12 of the House bill provides
that the act shall not be construed to
 interfere with commerce wholly inter-
 nal  in a State nor with the exercise
 of  police powers by the  States, but
 foods and drugs fully complying with
 its provisions  shall not be interfered
 with by  State authorities so long as
 they remain  in  original  unbroken
 packages, except  as  otherwise pro-
 vided by the United  States statutes.
   Section 13 of the House bill and of
 the  Senate bill  provides  for  seizing
 and confiscating  adulterated or mis-
 branded articles by process of libel for
 condemnation.
   Section 14  of the act  proposes to
 put in  permanent statute the  provi-
 sions which have been carried in the
 agricultural appropriation bill for sev-
 eral years, authorizing examinations
 to  be  made of  imported articles of
 food and drugs and directing the Sec-
 retary of the Treasury to refuse entry
 and delivery when found to be adulter-
 ated or  misbranded.
   Mr. PADGETT rose.
   The CHAIRMAN. Will the gentle-
 man from Illinois [Mr. MANN]  yield
 to the gentleman from Tennessee [Mr.
 PADGETT]?
   Mr. MANN. I yield.
   Mr. PADGETT. The gentleman was
 speaking  a  moment   ago of  mixed
 foods, and I wanted to ask a question
 for  information.  There is a class of
 flour that is  calld "mixed  flour," in
 which a portion of corn meal is added
 to the wheat flour. Would that be pro-
 hibited,  if it  is  known to be so, and
 was published? A great many mills in
 the  country make that class of flour.
   Mr. MANN. They make it under a
 special   statute of the  United States.
   Mr. PADGETT. Would it be pro-
 hibited under this bill?
   Mr. MANN. It would not be prohib-
 ited if  they  marked  it  correctly. It
 would  be prohibited   to  be sold  as
 wheat flour.
   Mr. PADGETT.  If it  is correctly
 indicated in the sale,  it would not be
 prohibited?
   Mr. MANN. That is true. The term

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STATUTES AND LEGISLATIVE HISTORY
                                467
"misbranded" shall apply to all drugs
or  articles  of food which  have any
false statement, design,  or  device on
the package or the label regarding the
ingredients, and to any food misbrand-
ed as to State, Territory, or  country
in which it is manufactured, and will
apply if it be an imitation of or offered
for  sale under the name of  another
article,  etc.  There are various provi-
sions in  reference  to  misbranding.
One of  the  provisions is  in reference
to the weight and measure of the con-
tents of  the  packages, which has
given rise to considerable controversy,
and which I hope to explain more fully
later on. A committee amendment will
be offered to the provision of the  bill
which we think, while modifying  the
arbitrary provision  of  the  House
amendment, will still  protect the pur-
chasers and  the honest manufacturer
from the frauds of those who wish to
cheat and defraud by short  weight or
measure.

      PROVISIONS AS TO WHISKIES
  Another  provision which  has given
rise to considerable  controversy, at
least out of  the  House, is the one
which affects whisky. We found that
there were two antagonistic interests
involved in  the whisky question.  One
was those who wished all whisky sold,
as far as possible, to be the whisky as
it came from the still  after being
aged; the other was the interest which
wished to drive out of business, prac-
tically, the pot distilleries, and would
require  the  whisky in the market to
be made by so-called "rectification" or
other processes, out of ethyl  alcohol,
pure alcohol  with the addition of col-
oring or flavoring matter. The  com-
mittee did not take a decided stand
in favor of  either  of these interests
against the  other,  but leaves each to
stand upon  its own foundation,  upon
its own merits, but requiring that the
so-called  "rectified"  whiskies  shall
bear upon  their  label the statement
that they are imitation,  compounded,
or blended, so that the purchaser may
know when he buys that class of goods
that he is not obtaining whisky as it
came from  the pot  still, simply by
aging in barrels or otherwise. We were
asked on one side to adopt an amend-
ment which  would have put out of
business the  straight-whisky  manu-
facturers; and we were asked on the
other side to adopt  an amendment
which would have put out of business
those who  mix or blend the  whisky.
We did  not  recommend and have not
recommended a proposition upon  that
point as either side requested, think-
ing it was not the duty of the commit-
tee to recommend to Congress legisla-
tion  which   would  determine  what
people should  either eat or drink, but
rather to recommend legislation which
would permit people to know  what
they  are eating  or  drinking.  [Ap-
plause.]
                           [p. 8891]
       PURE-FOOD LEGISLATION
  Mr. BENNET of  New York.  Mr.
Speaker, I ask unanimous consent to
print in the RECORD an opinion of the
attorney-general of the  State  of New
York on pure-food legislation.
  The SPEAKER. Is there objection
to the request of the  gentleman from
New York?
  There was no objection.
  The opinion is as follows:
                           [p. 9005]
*****
           PURE-FOOD  BILL
  The SPEAKER. Under the special
order of the House is in the Commit-
tee of the Whole House on the  state
of the Union for the further consider-
ation of the pure-food  bill,  and the
gentleman from New Hampshire [Mr.
CURRIER] will take the chair.
  Mr. CURRIER took the chair.
  Mr. MANN. Mr. Chairman, I offer
the following  amendment.
  The CHAIRMAN.  The  gentleman
from  Illinois  offers  an amendment,
which the Clerk will report.

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468
LEGAL COMPILATION—PESTICIDES
  The Clerk read as follows:
  Amend page 16, line 5, by striking out the
word  "all"  and  inserting  in lieu thereof
"any of."
  Mr. MANN.  Mr.  Chairman,  'that
amendment is  offered at  the  sugges-
tion of the gentleman from Missouri
[Mr.  DE ARMOND] to correct  what
might be an  ambiguity  in the  text.
I ask for a vote.
  Mr. KEIFER. Do I understand the
gentleman   has  concluded   offering
amendments  at the  instance  of the
committee?
  Mr. MANN. Well, I have  another
amendments  at the  instance  of the
the committee, I will say to the gen-
tleman.
  Mr. KEIFER. I  just wanted to be
sure about that.
  The CHAIRMAN. The question  is
on  agreeing to the  amendment.
  The question was taken;  and the
amendment was agreed to.
  Mr. MANN. I offer the following
amendment.
                            [p. 9048]
  The CHAIRMAN. The Clerk  will
report the amendment.
  The Clerk read as follows:
  Amend page 27 by adding at the end of sec-
tion IB: "The word 'person' as used in this act,
shall be construed to import both the plural and
the singular, as  the case demands,  and shall
include corporations, companies, societies, and
associations.  When construing and  enforcing
the provisions of this act the act, omission, or
failure of any officer, agent, or other person
acting for or employed by any corporation,
company,  society, or  association within the
scope of his employment or office shall in every
case be also deemed to be the act, omission, or
failure of such corporation, company, society,
or association, as well as that of  the person."

   Mr. MANN. Mr. Chairman,  that
amendment simply  defines the  word
"person" in the act, so as to  include
corporations,  companies,  associations,
etc., and also that the officer, agent, or
other person acting for the corporation
shall be guilty within the scope of his
employment as well as the corporation
itself.
   Mr. BARTLETT. Mr.  Chairman, I
 desire to ask the gentleman to inform
 me what part of the bill this amend-
 ment proposes to amend?
   Mr. MANN. This is to amend at the
 end of section 17; to insert at the end
 of section 15, page 27.
   Mr. BARTLETT. May I ask to have
 the amendment read again?
   The  CHAIRMAN.  Without  objec-
 tion, the amendment  will  be   again
 reported.
   There was no objection.
   The amendment was again reported.
   Mr. BARTLETT, Mr. Chairman, the
 gentleman from Illinois [Mr. MANN]
 has just offered an amendment which
 proposes to extend the scope of this bill
 in the way  of creating additional ob-
 jects for criminal prosecution  in the
 Federal  courts. While  very innocent
 looking, this amendment will furnish
 full opportunity for the hundreds of
 inspectors and spies that are to be em-
 ployed under this act to harass, annoy,
 and persecute the people of  this coun-
 try.
   Mr. Chairman, I oppose this amend-
 ment, because it is an effort on the part
 of the  General Government to  under-
 take to enforce police laws, a power
 which the General Government does not
 possess  except in the  District  of Co-
 lumbia  and the  Territories; and in
 those portions of the  territory of the
 United  States over which the  States
 have exclusive jurisdiction the  United
 States has no police power to be  exer-
 cised in the States. Of  course, what I
 say in reference to that may with equal
 force be applied to the main provisions
 of this bill,  and, in fact, might be ap-
 plied to the entire bill, except that part
 of the  bill  which  proposes to make
 crimes and  offenses in the District of
 Columbia and the Territories.
   Congress  has no power or authority
 to seek to enforce police regulations
 within the States; the duty of protect-
 ing all its citizens in the enjoyment of
 equality of rights;  to impose restraints
 and burdens upon persons and proper-
 ty in the conservation of public health,

-------
 STATUTES AND LEGISLATIVE  HISTORY
                                   469
 good order, and prosperity was orig-
 inally assumed  by the  States,  and it
 remains there; it always belongs to the
 States;  this  power of the States was
 not surrendered to the General Govern-
 ment, and is essentially  exclusive  in
 the States.
   The  views  of the minority  of  the
 Committee on Interstate  and Foreign
 Commerce of this House were present-
 ed by myself on  March  14  last, and
 have been printed in the RECORD  of yes-
 terday. In those views I have collected
 and cited the numerous decisions of the
 Supreme  Court of the United States,
 and quoted  in full from  those  which
 fully sustain  the propositions I have
 stated. This bill, as it comes from the
 committee, is based upon the idea that
 because the police laws of the  States
 may  not  be  satisfactory, or because
 they may  not be forced to  the satisfac-
 tion of all, therefore  the  Congress  of
 the United  States should invade the
 States  and do that which, up to this
 hour, it has  never been able to do—
 enact laws to prevent frauds, imposi-
 tions, and adulterations of foods in the
 States; a  power which Congress does
 not possess, never possessed, and one
 that this act will prove futile to  estab-
 lish.  This duty belongs  exclusively  to
 the States, and from the evidence pro-
 duced before our committee the  States
 are performing this  duty efficiently,
 and those  who chiefly seek this legisla-
 tion are the food manufacturers who
 have  been compelled to obey the State
laws  on   the  subject  of  pure   food.
 These manufacturers clamor  for a na-
tional law which  shall be "uniform,"
 and which will permit them to override
 and annul the various State laws on
 this subject. I do not believe that Con-
gress can so  legislate as to  prevent
 the States from protecting the people
of  the States from frauds or imposi-
tion in the matter of foods, and  being
 of that opinion I can not support this
bill.
  That  I  may  not be regarded  as
having made a statement which  is un-
 supported  by  authority,  I  will call
 attention to some of the decisions of the
 Supreme Court of the United States.
 *        *        *         *        *

   The first is the case  of Plumley v.
 Massachusetts (155 U. S., p.  461). The
 opinion of the court was delivered by
 Justice Harlan, in which there was  a
 dissenting  opinion read  by the Chief
 Justice,  Justice   Field,  and  Justice
 Brewer.

   I quote from the opinion:
   If there be any subject over which it would
 seem the States ought to  have plenary control,
 and the power to legislate in respect to which  it
 ought not to be supposed was intended to be
 surrendered to the General Government, it is the
 protection of the people against fraud and de-
 ception in the sale of food products. Such legis-
 lation may, indeed,  indirectly or  Incidentally
 affect trade in such products  transported from
 one State to another State.
  But that circumstance  does not show that
 laws of the character alluded to are inconsistent
 with the power of Congress  to  regulate com-
 merce among the States.  For, as said by this
 court in Sherlock v. Ailing (93 U. S., 99, 103):
 "In conferring upon Congress the regulation of
 commerce it was never intended to cut the States
 off from legislating on all subjects relating to
 the health, life,  and  safety of their citizens,
 though the legislation might indirectly affect the
 commerce  of  the country.  Legislation, in  a
 great variety of ways, may affect commerce and
 persons  engaged in  it without constituting  a
 regulation of it within the meaning of the Con-
 stitution. And it may be said generally that the
 legislation  of the State not  directed  against
 commerce or any of its regulations, but relating
 to the rights, duties, and  liabilities of citizens,
 and only indirectly and remotely affecting  the
 operations of commerce, is of  obligatory force
 upon citizens  within its territorial jurisdiction,
 whether on land or water, or engaged in com-
 merce, foreign or interstate,  or  in any other
 pursuit."

   In the case of Grossman v. Lurman
 (192 U. S.)  the Supreme Court of the
United States, without  dissent from
any  judge,  while Chief Justice Fuller
and Justice Brewer were still upon the
bench and participated in the hearing
and decision, upheld the case of Plum-
ley v. Massachusetts  (155 U.S.).

  In the opinion we find the following:
  The power of the State  to impose restraints
and burdens upon persona and property in the

-------
470
LEGAL COMPILATION—PESTICIDES
conservation of  the public health, good order,
and prosperity is a power originally and always
belonging to the States, not surrendered by them
to the  General  Government,  nor directly re-
strained by  the Constitution  of the  United
States, and essentially exclusive. It is not to be
doubted that the power  to make the ordinary
regulations of police remains with the individ-
ual States, and can not be assumed by the Na-
tional Government.

   The court also said:
that legislation forbidding the sale of deceitful
imitations of articles of food among the people
does not abridge any privilege secured to citi-
zens of the United States, nor in a just sense
interfere with the freedom of commerce among
the several States. It is legislation which can be
most advantageously exercised  by the States
themselves.
                                  [p. 9049]

   The court cite the  Plumley case with
approval, and said:
  Indeed, every  contention here urged to show
that the law of  New York is repugnant to the
Constitution of the United States was fully and
expressly considered and negatived by the deci-
sion of  this court in Plumley v. Massachusetts,
supra.  In  that  case  the law of the State  of
Massachusetts forbidding the sale of oleomar-
garine,  which was artificially colored, was ap-
plied to a sale in Massachusetts of an original
package of that article which had been manu-
factured in and  shipped from the State of Illi-
nois. In the course of a full review of the pre-
vious cases relating to the subject, it was said,
page 472:
  "If there be any subject over which it would
seem the States ought to have  plenary control,
and  the power to legislate in respect to which
it ought not to be supposed  was intended to be
surrendered to the General Government, it  is
the protection of the people against fraud and
deception in the sale of food products.  Such
legislation may, indeed, indirectly or incidentally
affect trade in such products transported from
one  State to another State. But that circum-
stance does not show that laws of the character
alluded  to are inconsistent with the powers of
Congress  to  regulate  commerce among  the
States.  For, as said by this court in Sherlock  v.
Ailing (93 U.S., 99, 103): 'In conferring upon
Congress  the regulation of  commerce it was
never intended to cut the States off from legis-
lating on all subjects relating to the health, life,
and safety of their citizens, though the legisla-
tion might indirectly affect the commerce of
the country. Legislation, in a great variety of
ways, may affect commerce and persons engaged
in it without constituting  a regulation of  it
within  the meaning of the  Constitution.
   " 'And  it  may  be said generally that the
legislation  of a State not directed against com-
merce or any of its regulations, but relating  to
 the rights, duties, and liabilities of citizens, and
 only  indirectly and remotely affecting the oper-
 ations of commerce, is of obligatory force upon
 citizens within its territorial jurisdiction,
 whether on land or water,  or engaged  in com-
 merce, foreign  or interstate, or in any other
 pursuit.' "
   Again it was said, page 478:
   "And yet it is supposed that the owners of a
 compound which has been put in a condition to
 cheat the public into believing  that it is a par-
 ticular article of food in daily use and eagerly
 sought by people in every condition of life are
 protected by the Constitution in making a sale
 of it against the will of  the State in which it is
 offered for sale,  because of the circumstance
 that  it is an original package and has become a
 subject of ordinary traffic. We are unwilling to
 accept this view. We  are of opinion that it is
 within the power of a State to exclude from its
 market any compound manufactured in another
 State which has been artificially colored or adul-
 terated so as to cause it to look like an article
 of food in general use,  and the sale of which
 may, by reason of such  coloration  or adultera-
 tion, cheat the  general  public  into  purchasing
 that  which they  may not  intend to buy. The
 Constitution of the  United States does  not
 secure to anyone the privilege of defrauding the
 public."

    Most  of  the  States have  enacted
 pure-food   laws   and   enforce   them.
 There is no  necessity existing,  even if
 the plea of necessity could justify Con-
 gress in  endeavoring  to  enact  police
 laws for the States.
    As  proof of this  assertion  I call  at-
 tention to  the  testimony before  the
 committee  on that  subject.  I   quote
 from the hearings:
   Mr. BARTLETT. Most of the States, if not all,
 have what they call pure-food laws, and most
 of them have commissioners—how many of the
 States?
   Doctor WILEY. Nearly  all  the States have food
 laws, and about twenty,  or perhaps a few more,
 of them have Provided for the enforcement of
 those laws. The others  are just laws  without
 any  methods of enforcement; and in so far as
 I  know, in  those  States  the  laws  are  not
 enforced. But  where  the law  provides for  a
 machinery to enforce the law, in  most States
 it is enforced very rigidly.  That is  all  brought
 out in this statement.
   Mr. BARTLETT.  That is what I want.  So you
 say that where they  have adopted these food
 laws and appointed food commissioners or offi-
 cers  to watch the enforcement of them, they are
 enforced very properly?
   Doctor WILEY. Yes: very efficiently, as far as
 the State can go. And I will say this, Mr. Chair-
 man, that in every State, I believe, where the

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STATUTES AND LEGISLATIVE HISTORY
                                   471
an act of the legislature, I believe in every other
case these standards have been adopted by the
food commissioners in toto.

  This witness is  the  Chief  of  the
Bureau of Chemistry of the  Depart-
ment of Agriculture and has had more
influence in bringing  about this legis-
lation probably than  any one man, he
in fact aiding in drafting  the House
bill we are now considering.
  Mr. Chairman, I  am not  authorized
to speak for  any other State, but I do
know  that the  State  of  Georgia  has
enacted laws for the protection of her
people  in  the matter  of foods; and I
assert that we have enforced those laws
in the past and will continue to do so
in the  future without the  assistance,
interference, or aid of the Federal Gov-
ernment. We claim  the right reserved
to our  State to protect  the  health of
the people of Georgia by our own State
laws and to enforce those laws in  our
own courts against everyone whether
they be citizens of the State  or wheth-
er they reside in other States. On an-
other occasion I referred  to the laws of
Georgia on  this  subject, and  I now
repeat what I then said :
  The State of Georgia has a number of laws
upon her statute books in  the interest of pure
food  and against the selling of falsely branded
goods, adulterated goods, or impure food.
  These laws can be found, commencing with
section 450 of the Criminal Code of Georgia, of
1895, in article  16 down to and including sec-
tion 480 of article 17.
  It may not be amiss to call attention to some
of these provisions in the Georgia  Code.
  Section 466 prohibits the sale or offering for
sale of any  unclean, impure, unwholesome, or
adulterated milk.
  Sections 457, 458, and 469 prohibit the sale of
imitations of butter and cheese as butter and
cheese.
  Sections 459 to 465 prohibit the  sale of any
article designed  to be used as  a substitute for
food  products, except as they  shall be marked
and branded as such substitutes.'
  Sections 446  to 468 punish the  sale  of
unwholesome provisions, unwholesome bread,
drink, or pernicious and adulterated liquor.
  And it is made the duty of the  grand juries
in the several counties to specially inquire into
all the violations of these laws and make pre-
sentments against the violators of these laws.
  The whole of article  17, containing section
 470  and  sections following to  484, inclusive,
 prohibits the sale of  adulterated and impure
 drugs, and prescibes penalties for the violations
 of these provisions.
  Upon an  investigation  of these laws   of
 Georgia, as contained  in these sections, it will
 be seen that the State of Georgia baa made
 ample provision for the protection of its people
 from imposition and injury from the sale  of
 impure food, adulterated food,  food products,
 and  adulterated drugs. The grand juries of the
 State courts  in  Georgia  are intelligent and
 upright men, and can be depended  upon  to
 indict violators of the  law;  and  the trial juries
 are  intelligent and honest, and as  efficient  in
 the enforcement of the law as the juries in the
 Federal courts. So far as Georgia is concerned
 there is no necessity for this bill.
   Mr. Chairman, I had intended when
 this  bill was  up  for  general  debate,
 had I been present, to  undertake, even
 though it might have been a futile and
 useless undertaking, to call the atten-
 tion of the House  to  the reasons why
 the  bill should not become a law, ex-
 cept as it  may affect  the  District of
 Columbia,  the Territories, and those
 places  over which the United States
 has  exclusive jurisdiction. I was absent
 necessarily. I  do not intend now, even
 if the  committee was kind and gra-
 cious enough to permit me to do so, at
 this stage  of the session or this stage
 of the consideration of this bill to de-
 tain the committee with those views. I
 have very decided views upon the sub-
 ject. I have undertaken to  put them in
 the  minority report that was present-
 ed, and the House has had them print-
 ed.  Even at the risk,  Mr. Chairman,
 of being laughed at  or scoffed at for
 making the statement  that many  of
 the  provisions of this bill in my judg-
 ment violate the fundamental  law of
 the land, I  will repeat  that statement,
 which I have endeavored to sustain by
 the decisions of the courts, even at the
 risk of being criticised and held up to
 the House and the country as  a  consti-
 tutional lawyer,  a claim which I no-
 wise make—I  will  insist that this bill
 violates the Constitution of the United
 States. But I console myself, Mr. Chair-
man, when that  criticism is  made
 upon those  of us who  assert  that the

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472
LEGAL COMPILATION—PESTICIDES
Congress of  the  United States can
and does, and has many times enacted
laws—
  The CHAIRMAN.  The time  of the
gentleman has expired.
  Mr. BARTLETT. Mr. Chairman, I
ask for five minutes more.
  Mr. ADAMSON. Mr. Chairman, I
ask that the gentleman may have per-
mission to conclude his remarks.
  The CHAIRMAN.  The gentleman
from  Georgia [Mr.  ADAMSON] asks
that his colleague [Mr. BARTLETT] may
have time to conclude his remarks. Is
there objection?
  Mr. PAYNE. There  are  other im-
portant amendments, and we have to
debate some of them. I object.
  Mr.  ADAMSON.  Mr.  Chairman,
then I ask that my colleague may have
fifteen minutes.
  Mr. BARTLETT. No, sir; I  am a
member of  this committee  which re-
ported this bill. I do not ask any in-
dulgence. I  was absent  from the gen-
eral debate necessarily—the first time
I have been  absent from the  House
in years.
  Mr. ADAMSON. Mr. Chairman, I
think  the gentleman ought to have
time.
  Mr. KIEFER. Mr. Chairman, it  is
outside of the limitation of time.
  Mr. BARTLETT.  I  do not  desire
any indulgence either from the gentle-
man from Ohio [Mr. KEIFER]  or the
gentleman from New York [Mr.
PAYNE] .
  Mr. PAYNE. Mr. Chairman, I ask
that the gentleman have five minutes.
  The CHAIRMAN. The Chair would
state that at ten minutes of 4  o'clock
the committee must rise and report the
bill to the House.
  Mr. MANN.  Mr.  Chairman, I will
ask the gentleman from Georgia how
much time he desires.
  Mr.  ADAMSON. Will the gentle-
man from Illinois [Mr. MANN] allow
me one suggestion?
  Mr. BARTLETT. I will consume but
five minutes more.
   Mr. MANN. Mr. Chairman, I move
 that the gentleman from Georgia may
 have ten minutes.
   Mr. BARTLETT. I want  but  five
 minutes.
   The  CHAIRMAN.  The  gentleman
 from Illinois [Mr.  MANN] asks unani-
 mous consent that  the gentleman from
 Georgia may have five  minutes. Is
 there objection?
   There was no objection.
   Mr. BARTLETT. Mr. Chairman, I
 have served some years in this House.
 I  have never been  absent in a debate
 on any great question, or any question
 at all, at  any time, except  when  it is
 impossible for me  by reason of physi-
 cal disability of some  kind  to be here.
 And I appreciate the  courtesy of my
 friend from Illinois [Mr. MANN] who
 asked permission for me to speak for
 five  minutes longer, and I  appreciate
 the  courtesy of the gentleman from
 New York   [Mr.  PAYNE]  who   has
 objected.
                           [p. 9050]
   Mr. Chairman, as I  started to  say,
 it does not affright me at all because
 gentlemen may  criticise those of us
 who  stand  up  and assert that  the
 United States Congress has its powers
 limited by the Constitution and  that
 there is legislation it  can  not enact.
 Those  who  occupy  the  position of
 critics  and  carpers at us  who  thus
 believe, and who criticise us as consti-
 tutional lawyers, do not affect my opin-
 ions. I might retort,   Mr.  Chairman,
 that  some of those who make those
 assertions are neither constitutional
 lawyers nor any other kind of lawyer.
 [Applause on  the Democratic side.]
 But, Mr.  Chairman, fortified as I am,
 or as I believe I am, in my opposition
 to some of  the provisions  of this bill
 by the decisions of the  Supreme Court
 of the  United States, I make bold to
 place  my  feeble  opinion  and  vote
 against the current of hysteria which
 seems to be sweeping all over the coun-
 try  and which has for its  purpose in
 its wild moments the destruction abso-

-------
STATUTES AND LEGISLATIVE HISTORY
                                 473
lutely of the powers of the State gov-
ernments and of all government except
that  asserted to be possessed by the
United States Congress; and I  shall
oppose this endeavor, unlawfully as I
maintain, to carry out that purpose to
centralize  all  power in  the  Federal
Government.
  I hold in my  hands the decisions of
the court in reference to the subject of
food and food products, in reference to
the power of the States to protect the
health of the States and the morals of
the people  of  the  States; which  de-
clare that the States are supreme and
no power of Congress can take away
that supremacy or destroy it; nor can
Congress assume to enact and enforce
within the States laws which are sole-
ly the exercise  of the  police powers.
The General Government has no police
power within the  States, and all  ef-
forts  to confer  such power must fail,
else we have arrived at that  period in
the history of this confederated Repub-
lic when  all power has been  federal-
ized in one  single  government, when
the old-time idea  of independent  and
sovereign States are but a memory of
the past.
  For myself I  do  not desire to inter-
fere or to take them away, these rights
of the States, and  I will not  be found
joining with those  who  desire to  de-
stroy them.
  Before  I conclude I want to call the
attention  of this House to a statement
made by the Speaker of this  House in
a speech delivered by him at the begin-
ning of this year to a Republican club
in the  city  of  Philadelphia.  Coming
from  the sage statesman who fills that
chair, a man  of  long  experience in
public affairs  and  in this  House, I
desire to put it  in  the RECORD so that
the country may know the views that
he has upon this  subject and the  ef-
forts  now being made to centralize all
power in  the Federal Government. I
quote  from  that  speech. Said  Mr.
CANNON :
        REPUBLIC'S GREATEST DANGER.
  In my judgment the greatest danger to the
Republic cornea from the citizen  who refuses
or neglects to participate in governing in local,
State, and national affairs and seeks protection
from the government to which he does not con-
tribute according to his ability or means. In
my judgment the danger now to us is not the
weakening of the  Federal  Government,  but
rather the failure of the forty-five sovereign
States to exercise, respectively, their function,
their  jurisdiction, touching all  matters  not
granted to the Federal Government. This danger
does not come from the desire of the Federal
Government to grasp power not  conferred by
the Constitution, but rather from  the desire of
citizens of the respective States to  cast upon
the Federal Government the responsibility and
duty that they should perform.
  If the Federal Government continues to cen-
tralize we will soon find that we will have a
vast bureaucratic government, which will prove
inefficient if not corrupt.  [Loud applause.]

  I  commend the wise  words of  our
distinguished  presiding officer to  Re-
publicans and Democrats alike. Let us
aid him in  halting the onward march
to centralization and bureaucracy—let
us  preserve our Republic from ineffi-
ciency and corruption.
  In  vain will  those who assert  the
doctrine search the pages of the Con-
stitution find one word that  authorizes
the Congress  of the United States to
exercise police powers within  the do-
main of the State. Equally  futile will
be  the effort to find a decision to au-
thorize it.
  Mr. Chairman, the States of this
Union, the most of them, have enacted
pure-food laws, and they enforce them,
at  least to the  satisfaction  of their
citizens. From the evidence  before the
Committee  of Interstate and  Foreign
Commerce, of which I am a member, it
appears these laws are being enforced
in the States; and to the States under
the Constitution is granted the power,
and not to the General Government, to
protect its  people  in  its health,  its
morals, and general welfare.  Against
the  prostitution of  the Constitution
which would  rob the States of this
power, or usurp it, I enter my sincere
and earnest protest  [Loud applause.]

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474
LEGAL COMPILATION—PESTICIDES
  The  CHAIRMAN.  The  question  is
on agreeing to the amendment.
  Mr. BARTLETT. Mr. Chairman, I
ask  permission to extend my remarks
in the RECORD.
  There was no objection.
  Mr. HINSHAW. Mr.  Chairman, we
have in our State a law  on the subject
of food, but it is not a very perfect
statute. The history of the country and
all  our experience to-day  shows  that
Federal supervision of all matters that
pertain to  the  entire people of  the
country and to  all the  States  is  far
superior in its efficiency to any single
State supervision. It is the experience
in our own  State, where  we  have  a
food commissioner, whose duties  are
largely to attend to the sanitary condi-
tions of butter and cheese, cider, and
a few  other products. Our food com-
missioner  recently issued  a  bulletin.
After an examination of forty-five dif-
ferent products,  he found  that  only
twenty of the products which he exam-
ined were pure, the other  twenty-five
being adulterated. In  his bulletin Mr.
Redfern, our food commissioner, says:
  Particular  attention has been  paid
to the spices found on  the market.
  I  was interested in the statement of
the gentleman from Illinois on the sub-
ject of spices the other day.
  The Omaha World-Herald says:
  Twenty pure food products  have been discov-
ered by Deputy Food Commissioner Redfern  in
the forty-five samples he has analyzed during
the last three months. The  other  twenty-five
samples were found  to  be  adulterated  and,
colored with such delectable substances as gyp-
sum, sulphites, borax, glucose, coal tar, sacchar-
ine,  and aniline dyes. The  following is Mr.
Redfern's bulletin:
  "In the present bulletin of the  commission
some attention has been paid to the condition of
spices  found on  the market. It ia  surprising
that gypsum is used in such large quantities as
an adulterant; in one case as much as 16 per
cent was used. Ginger and cayenne pepper seem
to have more of  this  inert substance added  to
them than any of the other  spices. Turmeric,
one of the ingredients of curry powder, is nearly
always used with gypsum in  gingers, owing  to
the fact that its  intense yellow color will hide
the presence of the gypsum, which would other-
wise give the ginger a pale, suspicious color.
   "A few samples of canned meats were ana-
 lyzed and all found to contain borax or sulphites
 or both.  Sulphites are  injurious, and of borax
 Doctor Wiley, of the United States Department
 of Agriculture, says: 'Borax when  continuously
 administered in small doses for a long period or
 when given in large  quantities  for a short
 period creates disturbances of appetite, of diges-
 tion, and health.' Of the fruit products analyzed
 the  majority were found to be imitation pro-
 ducts, colored to represent the fruit, and com-
 posed of starch and glucose. In a sample of
 pineapple preserves  glucose formed the bulk
 of the product, with  saccharine  added  as  a
 sweetener. This artificial sugar  is made  from
 aniline, and  as  it is  from 300 to 500 times as
 sweet as cane sugar, it is often used as a substi-
 tute. It has no food  value, and passes through
 the  body unchanged. A sample  of strawberry
 pop  was  found  to be colored with analine dye
 and  sweetened with this saccharine. The drink-
 ing of such mixtures should be discouraged.
   "Out of six samples of cream of tartar bought
 on the market three were found to  be composed
 of a large percentage of starch and phosphates.
 These mixtures  sold for the same  price as the
 pure tartar. Such practices are certainly fraudu-
 lent, for when the consumer calls for cream of
 tartar the law should see that he gets it and not
 a cheap mixture of tartar, starch, and phospate
 of lime. A deplorable condition was  found in the
 case of the cayenne pepper. Out of eight sam-
 ples, six were  colored with analine dye  and
 adulterated with gypsum. It is hoped that our
 next legislature will  see fit to pass a law that
 will stop such wholesale adulterations or at least
 compel  the  articles of food to  be properly
 labeled, so that the consumer will know what he
 is buying.  The pure-food question  has  been
 taken up by many of the women's clubs through-
 out  the  State,  and it is desired  that they ask
 their representatives and senators to the coming
 legislature to support a law which  will give the
 State jurisdiction over all classes of food pro-
 ducts, many of  which at the present are badly
 adulterated."

   The   history  of all  these  matters
 shows  that   the  State  is  never  able
 properly to control the adulteration of
 food products designed  for  interstate
 commerce, and that  the great arm of
 the Federal Government alone will be
 able to  supervise the manufacture and
 sale of those food products in  all  of
 which  we  are  so vitally  interested.
 [Loud applause.]
   Mr.   GAINES  of  Tennessee.  Mr.
 Chairman,  I want to make  a few re-
 marks about the purposes of this bill
 and discuss the power of Congress to
 control  interstate  and  foreign  com-

-------
 STATUTES AND LEGISLATIVE HISTORY
                                475
merce and the power of the States to
control local  or  State  commerce.  I
shall vote for this bill,  amended the
best we can, because it is the best that
we can  now  pass,  and  certainly,  I
think, something  should  be done  to
help the cause of pure food and to aid
the  States  in enforcing their pure-
food laws.
   If  Congress prohibits the  shipping
into a State  or Territory of  impure
foods, it will lessen the burdens of and
aid the States and Territories in en-
forcing their  pure-food  laws.  It will
prevent the evil, to a large extent, from
coming into the State and Territory,
and thus the  State  and  Territorial
laws  can  be more easily and perfectly
enforced.  With this view  in mind,  I
shall support this bill and try to make
the pending  bill  a better  one  as we
proceed.
   Congress has complete power, "ple-
nary  power,"  as the Supreme Court
has  repeatedly held, notably  in  the
Addyston  Pipe Trust  Company,  to
"prohibit" obnoxious interstate  or for-
eign commerce. We prohibited foreign
commerce by the embargo acts in the
days  of Jefferson and at  other times.
We prohibited whisky being shipped to
the  Indians.  We  prohibited a great
many  objectionable  products  being
shipped  from  one State  to another
under laws based  on the commerce
clause of the Constitution. We prohibit
monopolies in Federal commerce.  We
prohibit  contracts  made  in Federal
commerce, by  which obnoxious trusts
and  combinations  are made, and  the
Supreme  Court passed on this very
question  in the Pipe case.  My  under-
                           [p. 9051]
standing  is that  this bill has been
based as completely as possible  on this
commerce clause, which gives to Con-
gress the  right to  "prohibit" or regu-
late Federal commerce, which includes
the right  to cause it to be prepared to
be shipped in its pure and proper state
from one State to another, etc.
  I  do not disagree  with a  single
proposition  of the law, that I recall,
announced by my friend  from Texas
[Mr. HENRY] yesterday.
   I think he misapplied the law to the
particular  case now in hand, to wit,
this bill. Local,  domestic, or  State
commerce is completely under the con-
trol of  the  several  States.  Federal
commerce—that is, interstate and for-
eign commerce—when Congress  does
not act, may be curtailed by the States,
in so far as it is obnoxious to the police
laws of the  States; but  where Con-
gress takes  complete  control  of  the
Federal commerce, the States  can not
take charge of and control that same
commerce and why? Because Congress
has taken  complete  control; the two
authorities are then in conflict,  and,
by the very words of the Constitution,
the Federal law is the supreme law of
the land. The Congress may abuse this
power. So may the States.  These pow-
ers exist, but should be wisely exer-
cised always.
  Now,   Mr. Chairman,   I  shall  not
quote any  law. I have not the time
nor has the committee the time for me
to do that.  I shall content myself with
referring the House to a  very perti-
nent opinion of the Supreme Court of
the United  States,  reported  in  154
United  States Reports, page  209,  in
the case, Covington  Bridge Company
v. Kentucky, where the commerce pow-
ers of  Congress  and the  States  are
fully discussed by Mr. Justice Brown.
In that case the  court distinctly  de-
clares, first, that  the State commerce
is controllable by the States only,  ex-
cept, of course, such incidental inter-
ference  as  is absolutely  necessary to
execute  some express grant of power
given to Congress; the second  class of
commerce is that Federal commerce
which may be obnoxious to the morals
and  health  of the  State  which  the
States can police when Congress has
failed in part or entirely to take charge
of and regulate, and the third  class is
where Congress takes complete control
of the  Federal commerce and regu-

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476
LEGAL COMPILATION—PESTICIDES
lates it. It is these three classes that
are alluded to by Mr. Justice Brown in
this very elaborate opinion.
  Mr. GARRETT. Will my colleague
allow me to ask him a question?
  Mr.  GAINES  of Tennessee.  Cer-
tainly.
  Mr. GARRETT. Do you think it will
aid the States to enforce  the police
power to provide expressly  that they
shall  not interfere  with a  package
branded according to the rule set up
by the Department in this case?
  Mr. GAINES of Tennessee. I made
an  inquiry about that yesterday,  be-
cause I did not fully understand that
provision; but, my dear sir, we can  not
make a perfect law the first time we
try. I think the provision goes too far,
but the gentlemen in charge  of the  bill
do not think so. We can try  to change
that. We should make this law now as
perfect  as we can,  and in the  next
session of Congress or soon  hereafter
we  can  perfect it. I know of no  one
who will do his part better or more
intelligently than my colleague  from
Tennessee. I  am  against the impure
and dirty thing,  whether it is  in a
State commerce or commerce between
the States or wherever  it is. If there
are State laws to  crush the evil in
local or State commerce, I  want  the
Federal  Government to  join hands
with the State authorities and to pre-
vent noxious foods and products being
transported from one State to another.
Do  that  and you aid the States and
help save the  people from these evils
in a great measure.
  Mr. Chairman, I am happy to  see
the great moral wave that is sweeping
all  over this country. There is reform
going on in everything throughout the
United States. In all of the States  the
people are getting into the saddle, and
in another year the man with unclean
hands will not be  permitted to hold
office and the unclean thing will not be
permitted, and the guilty ones will be
published, whether rich  or poor.
  Mr. HENRY of Texas. You say  you
 want the Federal Government to join
 hands with  the  States  and  aid  the
 States in enforcing the law?
   Mr. GAINES of Tennessee. Exactly.
   Mr. HENRY of Texas. There are a
 number  of States that prohibit  the
 sale of  intoxicating  liquors and  the
 importation of intoxicating liquors—
 States like Iowa and Kansas.
   Mr. GAINES of Tennessee. Yes.
   Mr. HENRY of Texas. Now, instead
 of passing the Hepburn-Dolliver bill,
 are you  not in favor  of passing a bill
 preventing the shipment of intoxicat-
 ing liquors into those States?
   Mr. GAINES  of Tennessee. Wher-
 ever a State has a prohibition  law I
 think the  United States  Government
 should aid the State  in enforcing it.
 This  discourages the whisky evil and
 builds up the State.
   Mr. HENRY of Texas. Are you in
 favor of aiding the States by passing
 a law that will prevent  the shipment
 of intoxicating liquors into the States?
   Mr. GAINES  of Tennessee. I want
 the Federal  Government to  help  the
 States to do that very thing, and also
 stop the sending of deleterious products
 into the  States, thus  aiding local laws
 and upbuilding States rights. We are
 striking  now that way at an  evil the
 States can not or have not controlled.
 Let Congress aid the  States to control.
   The CHAIRMAN.  The time of the
 gentleman from Tennessee has expired.
   Mr. GAINES  of  Tennessee.  I  ask
 unanimous  consent   to print  in  the
 RECORD  two brief newspaper  extracts
 on this subject.
   The CHAIRMAN.  Is  there  objec-
 tion to the request  of the gentleman
 from Tennessee to extend his remarks
 in the RECORD?
   Mr. PAYNE. The gentleman did not
 ask to extend  his remarks generally,
 and I do not want him to print in the
 RECORD  any indictments or court rec-
 ords, as  he suggested this morning.
   Mr. GAINES of Tennessee. I am not
 talking  about that now. These news-
 paper extracts show  that the  authori-

-------
 STATUTES AND LEGISLATIVE HISTORY
                                   477
 ties  of  the  State  of  Pennsylvania
 condemned  3,842  pounds of bad beef
 yesterday and found 104 impure sam-
 ples  of  food out  of  a  total  of  120
 samples.
   The  CHAIRMAN.  The  gentleman
 from Tennessee  asks unanimous con-
 sent to print in the RECORD the  news-
 paper extracts to which he refers. Is
 there objection?
   There was no objection.
   The matter referred  to is as follows:
 ALL BAD BEEF BARRED  NOW	3,842  POUNDS CON-
   DEMNED BY HEALTH INSPECTORS LAST WEEK
  Director Coplin yesterday completed  bis re-
 port that will be made to the board of health
 next Tuesday  concerning the meat  inspection
 conducted  recently by the inspectors  of the
 health department. He said he felt satisfied that
 none but good meat was  coming into the city,
 because shippers were alarmed at the rigid in-
 vestigation made by the meat inspectors.
  The shippers, according  to information r*~
 ceived by Director Coplin, are now shunting all
 cars containing any but the best meat to nearby
 towns, to prevent any poor meat getting  into
 our market.
  The report of the inspection will show that
 for the week ending on June  16, 3,842 pounds
 of meat  were condemned, and  that 800 inspec-
 tions were made of city slaughterhouses.
  There  were 60 slaughterhouses condemned as
 unfit.  Of 41 live animals inspected, 12 were
 killed and the meat condemned.
ARRESTS IN PURE-FOOD WAR	104  OUT OF 120
       SAMPLES SHOWED ADULTERATION.
  The state dairy and food commission, under
the direction of Dr. Benjamin H.  Warren, has
taken steps to  prosecute dealers  selling  adul-
terated produce and meats. Two cases for selling
adulterated  "knackwurst," a  kind of sausage,
were brought before Magistrate Benton yester-
day. They were  Leo Zimmerman, of  717 North
Second street, and Abraham Cohen, of 212 South
street.  The  former was fined $57.50 and the
latter was held  in $600 bail for court.
  Doctor Warren asserts that  the investigations
of his  department have shown that there is
much adulterated food sold, and that action will
be taken against several dealers shortly. (Phila-
delphia Ledger,  June  23, 1906.)

  Now,  if Congress  had  prevented
these bad  foods being sent into Penn-
sylvania,  the State  of  Pennsylvania
would not have had this trouble  and
expense. This bill proposes to do that.
  The CHAIRMAN. The question is
 on agreeing to the amendment.
   The amendment was agreed to.
                              [p. 9052]
            PURE-FOOD BILL
   The committee resumed its session.
   Mr. BURGESS. Mr. Chairman, it is
 impossible  in five  minutes to satisfy
 anybody on the question of the power
 of Congress to exclude from the chan-
 nels  of  interstate  commerce  impure
 food. For myself I have no doubt that
 the power exists under  that clause of
 the Constitution which gives Congress
 the power to regulate commerce. I have
 no doubt of the  wisdom of the exercise
 of that power. I have no doubt that the
 power to inspect the  food is a neces-
 sary  power  in  the execution of  the
 power  conferred. I voted  upon  that
 principle for the meat-inspection law
 recently  in  this session  of  Congress.
 But, Mr. Chairman, this power has its
 clear limitations—as  definite  as  the
 power itself; and I voted against the
 quarantine bill, because  I  conceived
 that section 7 of that law carries the
 Federal power beyond its just limita-
 tions ; and I conceive that section 12 of
 this bill is far more vicious and subject
 to the contention made then on section
 7 of the quarantine law.
   Now,  gentlemen who have not read
 this—and doubtless there  are  many
 who have not—I invite your attention
 to section 12, and I  invite your atten-
 tion to  the  word "but" and the words
 following, and I invite your attention
 to the word  "except" and  the words
 following  as  a  limitation  upon  the
 character of  the declaration  in the
 words of the first three lines. After the
 first three  lines declaring that "This
 act shall not be  construed to interfere
with commerce wholly internal in any
 State nor with the exercise of their po-
lice  powers by  the  several  States,"
there is a limitation.
   But—
   Says these other lines—
  But foods and drugs fully complying with all
the provisions of this act shall not be interfered
with by the authorities of the several States

-------
478
LEGAL COMPILATION—PESTICIDES
when transported from one State to another so
long as they remain in original unbroken pack-
ages, except as may be otherwise denned by
law or provided by statutes of the United States.
  This asserts the  direct proposition
that if any article begins an  interstate
journey that such package transported
and  delivered  and its carriage termi-
nated as an interstate-commerce trans-
action may, because of its  form and
size  and its color  or its weight, be still
hedged  about  by the  Federal power
and the police  power of the State abso-
lutely suspended  so long as  the condi-
tion of the package is not changed. I
say that is illogical, contrary to every
theory of  our  Government, and  ought
not to get into this bill; and I am not
saying this now as a captious objector
to pure-food legislation, because I am
in favor of the main provisions of this
bill.
  More than that, the words  beginning
with  the  word   "except" assert  the
power of  Congress  to legislate in the
future over such unbroken  packages
within a State and destroy and nullify
the  State's  authority  in such  cases.
This is a  monstrous doctrine, subver-
sive of all the decisions of the Supreme
Court  of  the  United States and de-
structive  of the police powers of the
States. I  can  not support the bill if
this language  remains in it.
   [Here the hammer fell.]
  Mr. MANN. Mr. Chairman, I shall
be very brief. The  gentleman says he
opposes this provision for  the same
reason that he opposed the  provisions
of  section 7  of  the quarantine bill,
which  passed  the House  by an over-
whelming majority of both  sides. The
same reason  for the  quarantine  bill
applies to this provision. As amended
by the amendment  offered by the gen-
tleman  from  Iowa,  it unquestionably
does not affect the whisky trade or the
oleomargarine trade between  States,
and I can see no objection to it, except
the old bugbear of States rights, which
some of my genial friends from Texas
have not  received by instruction, but
by inheritance.
   I ask for a vote.
   Mr. WILLIAMS. Mr.  Chairman, I
 hope that the amendment  offered by
 the gentleman from Texas  [Mr. BUR-
 GESS] will be adopted. There are some
 of us here who may have old-fashioned
 ideas, but whether  we have  or have
 not, we can  and will vote for this bill
 if this amendment is adopted, and we
 can not vote for it if it is not adopted.
   The gentleman draws an  analogy
 between this provision which  we wish
 to strike out and that in the quaran-
 tine bill. There is positively none. The
 quarantine bill provided  that after a
 train had been inspected  and  found to
 be free of disease, and the commodi-
 ties and passengers upon it had been
 inspected, that it could be  carried on
 through and beyond a State which had
 State quarantine  laws against  yellow
 fever into a  State that had none; and
 this bill  provides that  this  original
 package may be carried into the State
 and landed  there, regardless of the
 laws of the State, whatever they may
 be.
   Mr. BURGESS. I do not wish the
 gentleman  to misunderstand  me. I
 agree with him that  there was room
 for disagreement  among Democrats as
 to section 7, but there is no room  for
 difference as to this section.
   Mr. WILLIAMS.  I am  answering
 the  argument made by the  gentleman
 from Illinois [Mr. MANN] . The gentle-
 man from Illinois said that the provi-
 sion  in  the  quarantine  bill  was  the
 same as this.
   Mr. BURGESS. That is not the case.
   Mr. WILLIAMS. And he said there
 was the same reason for it.
   Mr. MANN. The  gentleman from
 Illinois stated that the gentleman from
 Texas [Mr.  BURGESS] was  opposed to
 this provision for the same reason that
 he was opposed  to  section  7  in  the
 quarantine bill.
   Mr.  WILLIAMS.  Then  allow me,
 who on this  floor  defended section 7 of
 the  quarantine bill  to the best of my
 poor ability  as perfectly constitutional

-------
STATUTES AND LEGISLATIVE HISTORY
                                479
and  within  the power of the Federal
Government, to say  that it bore no
sort  of analogy to this provision, and
that whereas that was, in my opinion,
constitutional, this is, in my opinion,
obnoxious to the charge of violating
the spirit if not the letter of the Fed-
eral  Constitution.
  The Federal Government has a right
to regulate interstate  commerce. It has
no right to land  anything1 in a  State
which is  contrary, in the opinion of
the  State  authorities, to the  public
health, the public morals, or the public
policy in that State. The difference be-
tween the two is this:  The Federal
Government has absolute and plenary
power in  connection  with the  regula-
tion  of interstate commerce up to, but
not beyond the point where  it strikes
the  reserved police   powers  of the
States. In the quarantine bill nothing
was  attempted to be done  except to
protect a train engaged  in interstate
commerce transit across a State until
it got to a  State that  had no law
against its stopping.  This undertakes
to protect the  article itself in being
landed in the State;  and I sincerely
hope that the  amendment offered by
the gentleman from Texas  [Mr. BUR-
GESS] can prevail, if for no other rea-
son  than  the old one our  ancestors
gave when they first passed the law
for  the  toleration of religion,  "out
of regard  for  tender   consciences."
[Applause.]
  Mr. BENNET of  New York.  Mr.
Chairman	
  The CHAIRMAN.   An amendment
is not in order at this  time. There is an
amendment pending.
  Mr. CRUMPACKER.  I  make the
point of order that debate on the pend-
ing amendment is exhausted.
  Mr. MANN.  I  ask  for a vote; but
wish to say that if  this amendment
should be adopted it would prevent, for
instance, the city of  St. Louis  from
furnishing southern Illinois	
  The CHAIRMAN.   Did the  Chair
understand  the gentleman from Indi-
ana to make the point of order?
  Mr.  CRUMPACKER.  I  make the
point  of  order that  debate  on  this
amendment is exhausted.
  The CHAIRMAN.  The point of or-
der is sustained.  The  question is on
agreeing to the amendment.
  The question being taken, on a divi-
sion  (demanded  by  Mr. WILLIAMS)
there were—ayes 42, noes 90.
  Accordingly the amendment was re-
jected.
  Mr.  SOUTHARD. I offer the amend-
ment which I send to the Clerk's desk.
  The Clerk read as follows:
  Page  22, add a new paragraph, after line 6,
as follows:
  "Provided, that  goods sold under an estab-
lished distinctive or descriptive term shall not
be deemed  misbranded if label correctly and
fully and plainly describes the goods.
                            [p. 9068]
  Mr.  SOUTHARD. Now, Mr. Chair-
man, this is a bill to prevent the manu-
facture and  sale or transportation of
adulterated  or  misbranded or poison-
ous or deleterious  foods, drugs, medi-
cations, and liquors,  etc. This bill  is
not intended to  interfere  with  any
legitimate industry, is not intended to
prevent or  interfere  with long-estab-
lished  trade  conditions where they do
not result in any injury, deception, or
fraud  on or against the public,  and
I want to call your attention to one or
two paragraphs of this bill.
  Section 7  provides  that  the  term
"misbranded" used herein shall  apply
to all drugs or articles of food or arti-
cles which enter into the composition of
food,  the package  or  label of  which
shall  bear any statement  regarding
the  ingredients or  substances  con-
tained in such article, which  state-
ment shall be false and misleading in
any particular.
  Now, on the next page, beginning at
line 13, it says:
  "In the case of mixtures or compounds which
may be now or from  time  to time hereafter
known as  articles of  food, under their own
distinctive  names,  and not  an imitation of or
offered for sale under  the distinctive name of

-------
480
LEGAL COMPILATION—PESTICIDES
another article, if the name be accompanied on
the same label or brand with a statement of the
place where said article has been manufactured
or produced."
  Now I want to call your attention to
the situation where a great wrong may
be  done  if  this amendment  is  not
adopted. It is this: There are a large
number of articles manufactured and
sold under distinctive names and titles
where no fraud or injury is occasioned
by such manufacture and sale. To give
one instance or illustration, here is an
article called "cold cream." It has been
manufactured for more than twenty
years under that name of "cold cream."
Everybody knows, every  lady in  the
land who has perhaps used more  or
less  of it knows, that it is not cream,
and  yet "cold cream" is the distinctive
name of this manufactured article,  I
say  everybody  knows;  almost every-
body knows that that is so. Now, gen-
tlemen know that no fraud is  possible
by the sale of  this article under the
name. Everybody that uses it knows it,
and nobody can use it without knowing
it. The trade has been established for
twenty years or more, perhaps. This
name has become the property of the
men who manufacture it. It is as much
their property as anything they own.
And yet the manufacturer will be re-
fused,  he will be denied, hereafter the
use  of this name as  applied to this
article, provided this  bill is passed in
its present shape.
  This proposed amendment,  which  I
will read again—
  Provided, That the goods sold under an estab-
lished, distinctive  term shall not be deemed
misbranded if the  label  correctly,  fully, and
plainly describes the goods—
would  allow this, article and  articles
of a similar nature to be  sold under
their distinctive names.
  This bill is for the purpose of pre-
venting fraud  and deception  in  the
manufacture and sale of goods so far
as we have jurisdiction to do it under
the provisions of the Constitution un-
der which we are operating.
   With this amendment it will be im-
 possible for any fraud or deception to
 be practiced, because upon the label it
 must be  shown correctly, fully,  and
 plainly what the goods are. I know the
 gentleman from Illinois will say that
 you  might sell potted lamb for potted
 ham. That is probably true, but if any-
 body undertook to sell potted lamb for
 potted ham, and the ingredients of this
 package  containing the potted lamb
 were plainly marked on the package,
 I  venture to say that there  would be
 a  very slow sale for potted lamb—such
 a  case may be conceivable, but in prac-
 tice  it would never happen.
   Take another illustration. We  will
 say  a man has sold for twenty years
 and  has built  up a business in "High-
 land cream," or any other article  sold
 under a distinctive name which might
 be considered misleading as to the in-
 gredients  of  which  it  is  composed.
 Cream may  not  be the predominant
 element of its manufacture, and might
 be considered objectionable  under the
 provisions of this bill. It would be false
 in that particular, as described in one
 of these sections, and yet no fraud has
 been intended, none has  been  com-
 mitted, and, under the  provisions of
 this   amendment,  if  adopted,   none
 would be possible.
   The CHAIRMAN.  The time of the
 gentleman from Ohio has expired.
   Mr. MANN.  Mr.  Chairman,   this
 amendment is in the interest of a par-
 ticular brand of  condensed cream. It
 was  presented to  the committee,  and
 it  was at one  time agreed upon by the
 committee  because at first it looked
 somewhat harmless.
   Mr. SOUTHARD. If  the gentleman
 will  allow me, I do not understand  him
 to say that I am presenting this amend-
 ment in the interest of any particular
 firm or person.
   Mr. MANN. I did not say the gen-
 tleman presented  it in the interest of
 anybody. The amendment is  not new;
 we  have  been familiar with it  for

-------
 STATUTES AND LEGISLATIVE HISTORY
                                481
 months. It was at one time agreed up-
 on by the committee.
   But when we began to see the scope
 of the amendment, we saw that if that
 amendment went into the bill you might
 as well not pass the bill. I give this
 one illustration which I gave the gen-
 tleman but he did not give it correctly.
 I  did not say that  potted lamb might
 be sold for potted ham; but I said that
 potted lamb was  sold for potted chick-
 en, and that by  his amendment  they
 could continue to sell potted lamb for
 potted chicken, putting on one side in
 large letters "potted chicken" and on
 the back of the package,  in letters so
 small  that you can hardly see them
 "This article is made out of good qual-
 ity of lamb."
   Mr.  SOUTHARD. Will the gentle-
 man yield for a question?
   Mr.  MANN. Yes.
   Mr.  SOUTHARD. Does not  this
 amendment provide that the  labels
 shall state correctly, fully, and plainly
 the contents?
   Mr.  MANN. Why certainly, it pro-
 vides that you can say one thing on the
 package and then turn around and say
 that that is false. What is the use of
 telling one thing on the package and
 saying in another place that it is false?
 That is what the amendment provides.
   The  CHAIRMAN. The question is
 on agreeing to the amendment offered
 by the  gentleman  from Ohio.
   The  question was taken; and  the
 amendment was rejected.
   Mr.  WILLIAM W. KITCHEN. Mr.
 Chairman I offer the following amend-
 ment,  which  I send to  the desk and
 ask to have read.
   The  Clerk read  as follows:
  After  the word "receive," in line 3, page 15,
 insert the words "for commercial purposes."
   Mr.  WILLIAM W. KITCHIN. Mr.
 Chairman,  if the committee will  give
me its attention  I  think  I  can show
that this  amendment  ought  to be
adopted. The object of this legislation
is to protect the consumers of the coun-
try against impure and  misbranded
foods and drugs as made by manufac-
turers and as handled by dealers. As
this first section is now written in the
bill, if  a  constituent of mine should
order a bottle of medicine from another
State, or should order a case of canned
goods for his  own use, and he should
receive them in my State, if such med-
icine or goods  are misbranded or im-
pure under this bill, then the consumer
who gets them, not for the purpose of
trade, not for the purpose of sale, but
for his  own use, is guilty of a misde-
meanor and indictable under this first
section. I do not object to  punishing
the  manufacturers  of impure  and
fraudulent goods.  I do not object to
punishing the dealers  who knowingly
handle them; but why should you  pun-
ish a consumer who buys for himself,
for his own use, and not for the  pur-
poses of trade, such articles from an-
other State?
   In this day, when the magazines and
newspapers advertise  so many foods
and drugs,  and when  the individual
consumers  buy so many articles  of
that character from distant cities, why
should you make the innocent victims
of impositions guilty of misdemeanor?
As this section now reads, anyone who
"shall receive  in any State or Terri-
tory, or the District of Columbia, from
any other State or Territory," etc., is
guilty of  a misdemeanor.  I propose,
after "receive," to put "for commercial
purposes."
   Mr. MANN. Mr. Chairman, I do not
see any objection  to the gentleman's
amendment.
   The  CHAIRMAN. The question is
on agreeing to the amendment offered
by the gentleman from North Carolina.
   The  question  was taken;  and  the
amendment was agreed to.
   Mr.  CRUMPACKER. Mr. Chair-
man, I offer the following amendment,
which I send to the desk  and ask to
have read.
  The Clerk read, as follows:
  Strike out the words "and for the information
of the courts," in line 22, page 22.

-------
482
LEGAL COMPILATION—PESTICIDES
  Mr.  CRUMPACKER.  Mr.  Chair-
man, section 9 provides that it shall be
the duty of the Secretary of Agricul-
ture to fix standards of food products
when  advisable for guidance  of  the
officials in charge of the administration
of the  food laws and for the informa-
tion of the courts, and  to  determine
the  wholesomeness or  unwholesome-
ness of preservatives and other  sub-
stances which are  or may be added to
the foods. The objection I have is to the
language "and for the information of
the courts," which would seem to imply
that the standards fixed by the  Sec-
retary of Agriculture shall  constitute
the basis for indictment and criminal
prosecution;  that  they  shall be  the
basis for the penal provisions of  the
law. I  do not believe that any officer of
this Government  ought to  have  the
power, by rules and regulations, to en-
act penal and  criminal statutes,  and
that must be the effect of this provi-
sion. Why should the section say "and
for the  information  of  the courts?"
The court is not composed of the judge
as  an  individual. It is  an institution
composed of the judge and the jury, if
it be a  jury case, while sitting officially
for the discharge of judicial  functions,
and the only meaning that can be given
to this phrase in the section is that it
shall be the basis upon which the ques-
                            [p. 9069]
tion of crimes under the statute shall
be determined.
  If an individual is charged with hav-
ing violated the provisions of the law,
the question is not open for him,  the
question  of fact,  to be  tried by  the
jury; but if the Secretary of Agricul-
ture has certified  that certain things
are not  up to  the standard fixed  or
certain things are not wholesome,  the
whole question  of fact is foreclosed. It
is not  open for determination by  the
court or jury.
  Mr. HINSHAW. The gentleman does
not believe that the certificate of  the
Secretary of Agriculture could be in-
 troduced  in  evidence as such and be
 conclusive as to the crime?
   Mr. CRUMPACKER. This section
 undertakes to make it the basis of the
 crime. We have many bills pending,
 and we have passed some, authorizing
 the  heads of  Departments  to  make
 rules and regulations  and  imposing
 penalties, fines, and imprisonment up-
 on any person who violates  the rules
 and regulations.  This  comes within
 that same class of legislation. ^ do not
 believe under the Federal Constitution
 that any  Department officer has  the
 right to  prescribe regulations which
 shall be the basis of penal prosecu-
 tions, but this section  undertakes to
 confer that right.  I do not  see what
 other  purpose  this  language  could
 serve in the bill. If it were for the in-
 formation of the United States attor-
 ney, it would be proper, but it is not.
 It is for the information of the courts.
 How can the court be informed? It
 fixes the basis practically for the court
 to determine whether the man on trial
 is guilty  or  innocent, and it violates
 every proper conception  of criminal
 statutes.
   Mr. MANN. Mr. Chairman, I think
 the  gentleman from  Indiana miscon-
 strues the intent  or  meaning of  the
 language. Under the proposition which
 we present it is desirable to have  the
 same standard, if  practicable, used in
 Maine that is used in California, and
 the same  standard for Louisiana that
 we have  in  New   York. There  is  no
 reason why the standard  as far  as
 practicable  should not be the  same.
 Now, we provide that the Secretary of
 Agriculture shall fix  standards in ac-
 cordance with the definitions and pro-
 visions of the act;  and his act in fixing
 the  standards  shall be  given for  the
 information of the courts. That does
 not bind a defendant as to	
   Mr. PERKINS rose.
   Mr. MANN. If  the gentleman will
 pardon  me for a  moment. That does
 not bind a defendant as to whether it
 is an adulteration  or misbranding, but

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STATUTES AND LEGISLATIVE HISTORY
                                483
the court has before it, as  it ought to
have, the national  standard,  so that
the court understands the standard
that has been fixed  in the opinion of
the Secretary -of Agriculture, which
they are attempting to have enforced
throughout the country, but the court
is the final arbiter as to whether it is
adulterated  or  misbranded under  the
act. Now I yield to the gentleman.
   Mr. PERKINS. How can the court
be informed in any way except by legal
evidence. The court has no business to
go outside of the evidence presented in
the trial to find out what the facts are,
and if this certificate is produced why
is it not  evidence?  Why  do you not
make the opinion of the Secretary of
Agriculture evidence for the court to
consider?
   Mr. MANN. Because it is not neces-
sary to do that. A certified copy of that
can be introduced  in evidence if  this
provision is put in the law.
   Mr. PERKINS.  What is  the effect
of it?
   Mr. MANN. Simply that in the opin-
ion of the Secretary of Agriculture the
standard shall be so and so.
   Mr. PERKINS. Then the opinion of
the Secretary becomes evidence wheth-
er or not a man has violated the law?
   Mr. MANN. It becomes evidence of
the opinion  of the  Secretary of Agri-
culture as to the standard of the arti-
cle, not  whether the  man has violated
the law. This does not give the opinion
of the  Secretary upon the particular
thing at all. This gives information to
the court as to the standard. Whether
the article complied with the standard
or not is a matter  for the  court to
determine, and  whether the standard
is correct or not is  a  matter  for the
court to determine.
  The CHAIRMAN. The question is
on agreeing to the amendment.
  The question was taken;  and the
amendment was rejected.
                           [p. 9070]
  The CHAIRMAN.  Under the special
order of the House the committee will
now rise.
  The  committee accordingly  rose;
and the Speaker having resumed the
chair,  Mr. CURRIER,  Chairman of the
Committee of the Whole House on the
state  of the Union, reported that that
committee had had  under considera-
tion the bill S.  88,  and  had directed
him to report the same  back with a
substitute  and  sundry  amendments
thereto, with the recommendation that
the amendments  to  the substitute be
agreed to,  that  the  substitute,  as
amended be agreed to, and that the bill
amended do pass.
  Mr.  MANN. A parliamentary  in-
quiry, Mr. Speaker.
  The SPEAKER. The gentleman will
state it.
  Mr.  MANN. As I understand the
rule which was  adopted in reference
to this bill, it is not necessary to ask
for the previous  question in order to
shut off further debate. Is that correct?
  The SPEAKER. The rule says that
a vote shall be immediately taken. The
question is on agreeing to the amend-
ments to the substitute. Is a separate
vote demanded on any of the amend-
ments? If not, the vote will be taken
on  the amendments  to the substitute
in gross.
  No separate vote was demanded.
  The  question   was  taken  on the
amendments to the substitute in gross;
and they were agreed to.
  The SPEAKER. The question is on
agreeing to the substitute as amended.
  The  question was taken;  and the
substitute as amended was agreed to.
  Mr.  BURGESS.  A  parliamentary
inquiry, Mr. Speaker. It is in order to
move  to recommit this bill with in-
structions?
  The  SPEAKER. The Chair's recol-
lection is, and his recollection is re-
enforced, that under the special order
a motion to recommit is not in order.
  The bill was ordered to a third read-
ing; and it was  accordingly read the
third time.

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484
                                     LEGAL COMPILATION—PESTICIDES
  The SPEAKER. The question is on
the passage of the bill.
  Mr. HENRY of Texas. I call for the
yeas and nays.
  The yeas and nays were ordered.
                                        The question was taken; and there
                                      were—yeas  241,  nays  17,  answered
                                      "present" 9, not voting 112, as follows:
                                                                 [p. 9075]
1.2a (5) (c)  June 27: First conference report submitted to Senate,
pp. 9379-9381

           PURE-FOOD BILL              each subsequent offense and conviction
                                      thereof shall be fined not less than one
                                      thousand dollars  or  sentenced to one
                                      year's imprisonment, or both such fine
                                      and imprisonment, in the discretion of
                                      the court.
                                        "SEC. 2. That the  introduction into
                                      any State or Territory or the District
                                      of Columbia from any other State or
                                      Territory or the District of Columbia,
                                      or from any foreign country, or ship-
                                      ment to any foreign country  of any
                                      article  of food or drugs which is adul-
                                      terated  or  misbranded, within the
                                      meaning of this  act, is hereby pro-
                                      hibited ; and any person who shall ship
                                      or deliver for shipment from any State
                                      or Territory or the District of Colum-
                                      bia to any other State or Territory or
                                      the District of Columbia, or to a for-
                                      eign  country, or who shall receive in
                                      any State or Territory or the District
                                      of Columbia from any other State or
                                      Territory or the District of Columbia,
                                      or foreign country, and having so re-
                                      ceived, shall deliver, in  original un-
                                      broken packages, for pay or otherwise,
                                      or offer to deliver to  any other person,
                                      any such article so adulterated or mis-
                                      branded within  the  meaning  of this
                                      act, or  any person who  shall sell or
                                      offer for sale in the District of Colum-
                                      bia or  the Territories of the  United
                                      States  any  such  adulterated or mis-
                                      branded foods or drugs, or export or
                                      offer to export the same to any foreign
                                      country,  shall be  guilty of a misde-
                                      meanor, and for such offense be fined
                                      not exceeding two hundred  dollars for
                                      the first offense,  and upon conviction
                                      for each subsequent offense not exceed-
                                      ing three hundred dollars or be impris-
                                      oned not exceeding one year, or both, in
  Mr. HEYBURN submitted the fol-
lowing report:
  The committee of conference  on the
disagreeing votes of the two Houses on
the amendments  of the House  to the
bill (S.  88)  entitled  "An act for pre-
venting   the  manufacture,  sale,  or
transportation of adulterated or mis-
branded  or  poisonous or deleterious
foods, drugs, medicines, and liquors,
and for regulating traffic therein, and
for other purposes," having met, after
full and free conference have agreed
to recommend and  do recommend to
their respective Houses as follows:
  That the Senate recede from its dis-
agreement to the amendment  of the
House, and agree to the same with an
amendment as follows: Strike out all
of said  amendment and insert in lieu
thereof the following:
  "That it shall  be unlawful for any
person to manufacture, sell, or offer
for sale  within  any Territory  or the
District  of  Columbia, or deliver for
shipment  or to cause to be  delivered,
shipped,  or  transported from  within
any  State, Territory, or District of
Columbia or foreign country any arti-
cle of food, drugs, medicines, or liquors
which is  adulterated  or misbranded,
or which contains  any poisonous or
deleterious substance within  the mean-
ing of this act;  and  any person who
shall violate  any of the provisions of
this  section shall be  guilty  of  a mis-
demeanor, and for each offense shall,
upon conviction thereof, be fined not to
exceed five hundred dollars or shall be
sentenced to  one year's imprisonment,
or both such fine and imprisonment, in
the discretion of the court, and for

-------
STATUTES AND LEGISLATIVE HISTORY
                                485
 the discretion of the court: Provided,
 That no article shall be deemed mis-
 branded or adulterated within the pro-
 visions  of this act when intended for
 export to any foreign country and pre-
 pared or packed according to the speci-
 fications or directions of the foreign
 purchaser when no substance is used in
 the preparation or packing  thereof in
 conflict with the laws of the foreign
 country to  which said article  is  in-
 tended to be shipped; but if said article
 shall be in fact sold or offered for sale
 for domestic use or consumption, then
 this proviso shall not exempt said arti-
 cle from the operation of any of the
 other provisions of this act.
   SEC.  3. That  the  Secretary of the
 Treasury, the  Secretary of Agricul-
 ture, and  the Secretary  of  Commerce
 and  Labor  shall make  uniform  rules
 and  regulations for  carrying out the
 provisions  of this act, including the
 collection  and  examination of  speci-
 mens of foods and drugs manufactured
 or offered for sale  in the  District of
 Columbia, or in any  Territory of the
 United  States, or which shall be offered
 for sale in unbroken  packages in any
 State other than that in which they
 shall have been  respectively manufac-
 tured or produced,  or which shall  be
 received from any foreign country, or
 intended for shipment to any foreign
country, or  which may be  submitted
 for examination by  the  chief health,
 food, or drug officer of any State, Ter-
 ritory, or the District of Columbia, or
 at  any domestic  or  foreign   port
through which such product is offered
for interstate commerce, or  for export
or import between the  United States
and any foreign  port or country.
  "SEC. 4.  That the  examinations  of
 specimens of foods and drugs shall be
made in the Bureau  of Chemistry of
the Department  of Agriculture, or un-
der the direction and supervision  of
such  Bureau, for the purpose of de-
termining  from such  examinations
whether such articles are adulterated
or misbranded within the meaning  of
this act; and if it shall appear  from
any such examination that any of such
specimens   is  adulterated  or  mis-
branded within the meaning of this
act, the Secretary of Agriculture shall
cause notice thereof to be given to the
party from whom such sample was ob-
tained. Any party so notified shall be
given an opportunity to be heard, un-
der such rules and regulations as may
be  prescribed as aforesaid,  and  if  it
appears that  any of the provisions of
this act have been  violated  by  such
party, then the  Secretary of Agricul-
ture shall  at once certify the facts to
the proper United States district attor-
ney, with a copy of the results of the
analysis or the  examination of  such
article, duly authenticated by the an-
alyst or officer making  such  examina-
tion, under the  oath of such officer.
After  judgment  of the  court notice
shall be given by publication in  such
manner as may  be prescribed by the
rules and regulations aforesaid.
  "SEC. 5.  That it shall be the duty of
each  district  attorney  to whom the
Secretary of Agriculture shall report
any violation  of  this  act, or to whom
any health or food or drug  officer or
agent of any  State, Territory, or the
District of Columbia, shall present sat-
isfactory evidence of  any such viola-
tion, to cause  appropriate proceedings
to be commenced and prosecuted in the
proper  courts  of the  United  States,
without delay, for the enforcement of
the penalties  as  in such case herein
provided.
  "SEC. 6.  That  the term "drug,"  as
used in this act, shall  include all medi-
cines and preparations recognized in
the United States  Pharmacopoeia  or
National Formulary  for Internal  or
External Use, and any substance  or
mixture of substances intended to  be
used for the cure, mitigation, or pre-
vention of disease  of either  man  or
other animals. The term  "food,"  as
used herein, shall include all articles
used for food, drink, confectionery, or
condiment by  man  or other  animals,

-------
486
LEGAL COMPILATION—PESTICIDES
whether simple, mixed, or compound.
  "SEC. 7. That  for  the purposes of
this act an article shall  be deemed to
he adulterated:
  "In case of drugs:
  "First, If, when a drug is sold under
or by a name recognized  in the United
States  Pharmacopoeia  or  National
Formulary,  it  differs from the stan-
dard  of strength, quality, or  purity,
as determined by the test laid down in
the United  States Pharmacopoeia or
National  Formulary   official at  the
time of investigation: Provided, That
no  drug defined in the United States
Pharmacopoeia or National  Formu-
lary shall be deemed to be adulterated
under  this provision  if  the  standard
of  strength,  quality,  or  purity  be
plainly stated upon the bottle, box, or
other  container thereof,  although  the
standard may  differ from that deter-
mined  by the  test laid  down  in  the
United States  Pharmacopoeia or Na-
tional  Formulary.
  "Second. If  its strength or  purity
fall below the professed standard  or
quality under which it is  sold.
  "In the  case  of confectionery:
  "If   it contain  terra alba, barytes,
talc, chrome  yellow,  or other mineral
substance  or poisonous color  or flavor,
or other ingredient deleterious  or det-
rimental  to  health, or  any vinous,
malt, or spirituous liquor or compound
or narcotic drug.
  "In the  case of food:
                            [p. 9379]
  "First.  If  any substance has been
mixed  and packed with it so as to re-
duce or lower or  injuriously  affect its
quality or strength.
  "Second. If any substance  has been
substituted wholly or in  part for  the
article.
  "Third.  If any substance constituent
of the article  has been  wholly or in
part abstracted.
  "Fourth.  If it  be  mixed,  colored,
powdered, coated, or stained in a man-
ner whereby damage  or  inferiority is
concealed.
   "Fifth. If it contain any added poi-
 sonous  or  other  added  deleterious
 ingredient which may render such ar-
 ticle  injurious  to health:  Provided,
 That when  in the preparation of food
 products  for  shipment they are  pre-
 served by  any  external  application
 applied in such manner that the  pre-
 servative is necessarily removed  me-
 chanically, or by maceration in water,
 or  otherwise, and directions  for the
 removal of  said preservative shall be
 printed on  the covering or the pack-
 age, the  provisions of  this  act  shall
 be  construed  as applying only when
 said products are ready for  consump-
 tion.
  "Sixth. If it consists in  whole or
 in  part of a  filthy, decomposed, or
 putrid animal or vegetable substance,
 or any portion of an animal unfit for
 food, whether  manufactured  or  not,
 or if it is the product of a  diseased
 animal, or one that has died otherwise
 than by slaughter.
  "SEC. 98.  That the term  "misbrand-
 ed," as used herein, shall apply to all
 drugs, or articles of food, or  articles
 which enter into  the  composition of
 food, the package or  label  of which
 shall bear any  statement,  design, or
 device regarding such article, or the
 ingredients  or  substances contained
 therein which shall be false or mis-
 leading in any particular,  and to any
 food or drug product which  is falsely
 branded as  to the State, Territory, or
 country in  which it is manufactured
 or produced.
  "That for the  purposes  of this act
 an  article shall also be  deemed to be
 misbranded—
  "In  case of drugs:
  "First. If it be  an imitation of or
 offered for sale under the name of an-
 other article.
  "Second. If the contents of the pack-
 age  as originally put up  shall  have
 been removed, in whole or in part, and
 other contents  shall have been placed
 in such package,  or if the  package
 fail  to bear a  statement on the  label

-------
STATUTES AND LEGISLATIVE HISTORY
                                487
of the quantity or proportion of any
alcohol,  morphine,  opium,  cocaine,
heroin, alpha or beta  eucaine, chloro-
form, cannabis indica, chloral hydrate,
or acetanilide,  or  any derivative or
preparation  of any  such substances
contained therein.
  "In  the case of food:
  "First. If  it be  an  imitation  of or
offered for sale under the distinctive
name  of another article.
  "Second. If it be labeled or branded
so as  to deceive or mislead the pur-
chaser, or purport to be  a foreign
product when not so, or if the contents
of the package as originally put up
shall have been removed in whole or
in part and  other contents shall have
been placed  in such package, or if it
fail  to bear  a statement  on the label
of the quantity or proportion of any
morphine, opium,  cocaine, heroin, al-
pha  or beta  eucane, chloroform, can-
nabis indica,  choral hydrate, or  ace-
tanilide,  or any derivative or prepara-
tion  of any  of such  substances  con-
tained therein.
  "Third. If  in package form, and the
contents are  stated in  terms of weight
or measure,  they are  not plainly and
correctly stated on the outside of the
packaged
  "Fourth. If the  package containing
it or its label shall bear any statement,
design, or device regarding the  ingre-
dients  or  the  substances  contained
therein, which statement, design, or
device  shall be false or misleading in
any  particular: Provided, That an ar-
ticle of food  which does not contain
any  added poisonous or deleterious in-
gredients shall  not be deemed  to be
adulterated or misbranded in the fol-
lowing cases:
  "First. In  the case  of  mixtures or
compounds which may be now or from
time to time hereafter known as ar-
ticles of food, under their own distinc-
tive  names, and not an imitation of or
offered for sale under the distinctive
name of another article, if the name
be accompanied on the same  label or
brand with a statement  of the  place
where said article has been manufac-
tured or produced.
   "Second.  In  the case  of  articles
labeled, branded,  or tagged so as to
plainly indicate  that  they are  com-
pounds, imitations, or  blends, and the
word 'compound,' 'imitation,' or 'blend,'
as the case may be, is plainly stated
on the package in which it is offered
for  sale:  Provided,  That the  term
'blend' as  used herein shall  be con-
strued to mean a mixture of like sub-
stances, not excluding  harmless color-
ing  or flavoring  ingredients used for
the purpose of coloring and flavoring
only:  And provided  further,  That
nothing in  this act shall be construed
as requiring or compelling proprietors
or manufacturers of proprietary foods
which contain no  unwholesome added
ingredient  to disclose their trade for-
mulas, except in so far as the provi-
sions of this act may require to secure
freedom  from adulteration  or  mis-
branding.
  "SEC. 9.  That  no  dealer  shall  be
prosecuted under the provisions of this
act when he can establish a guaranty
signed by the wholesaler,  jobber, man-
ufacturer,  or  other party residing in
the United States, from whom he pur-
chased such articles, to the effect that
the same  is not  adulterated  or  mis-
branded  within the meaning of this
act,  designating it. Said guaranty, to
affored protection, shall  contain the
name and address of the party or par-
ties  making the  sale of such articles
to such dealer, and in such case said
party or parties shall  be  amenable to
the prosecutions,  fines, and other pen-
alties  which  would attach,  in  due
course, to the dealer under the provi-
sions of this act.
  "SEC. 10. That any article  of food,
drug, or liquor that is adulterated  or
misbranded within  the   meaning  of
this act, and is being transported from
one State, Territory, District,  or insu-
lar possession to  another  for  sale, or,
having been transported,  remains un-

-------
488
LEGAL COMPILATION—PESTICIDES
loaded, unsold, or in original unbroken
packages, or if it be sold or offered for
sale in the District of Columbia or the
Territories,  or  insular  possessions of
the United States, or if it be imported
from a foreign country for sale, or if
it is intended for export to a foreign
country, shall be liable to be proceeded
against in any  district court  of  the
United  States  within  the  district
where  the same is found, and seized
for confiscation  by a process  of  libel
for condemnation. And if such article
is condemned as being adulterated or
misbranded, or of a poisonous or dele-
terious character, within the meaning
of this act, the same shall be disposed
of by destruction or sale, as the said
court may  direct,  and the  proceeds
thereof, if sold,  less  the  legal costs
and  charges, shall be  paid  into  the
Treasury  of the United  States,  but
such goods  shall not be sold in  any
jurisdiction contrary to the provisions
of this act or the laws of that juris-
diction: Provided, however, That upon
the 'payment of the costs of such libel
proceedings  and the  execution   and
delivery of a good and sufficient bond
to the effect that such articles shall not
be sold or otherwise  disposed of con-
trary to the  provisions of this act, or
the laws of any  State, Territory, Dis-
trict, or insular possession, the court
may by order direct that such articles
be delivered to the owner thereof. The
proceedings of such  libel  cases shall
conform,  as  near  as  may be, to  the
proceedings in admiralty, except that
either party may demand trial by jury
of any issue of fact joined in any such
case,  and all such proceedings shall
be at the suit of and in the name of
the United States.
  "SEC.  11.  The  Secretary  of  the
Treasury  shall deliver to  the Secre-
tary of Agriculture, upon  his request
from  time to time, samples of foods
and  drugs which are being imported
into the  United States or offered for
import, giving notice  thereof  to  the
owner or  consignee,  who may appear
 before the  Secretary of Agriculture,
 and have the right to introduce testi-
 mony, and  if it  appear from  the  ex-
 amination of such samples  that  any
 article  of food  or drug offered to be
 imported into the  United  States is
 adulterated or misbranded within  the
 meaning  of this act, or  is  otherwise
 dangerous to  the health of the people
 of  the United States, or is  of a kind
 forbidden entry  into, or  forbidden to
 be  sold  or  restricted in  sale in  the
 country  in  which it  is made or from
 which it  is exported, or  is  otherwise
 falsely labeled in any respect, the said
 article shall be refused admission, and
 the Secretary of the Treasury shall
 refuse delivery to the consignee and
 shall cause the  destruction  of  any
 goods refused delivery which shall  not
 be  exported by the  consignee within
 three months from the date of notice
 of  such refusal under such regulations
 as  the Secretary of the Treasury may
 prescribe: Provided, That the Secre-
 tary of  the Treasury may  deliver to
 the consignee such goods  pending  ex-
 amination and decision in the matter
 on  execution of a  penal bond  for  the
 amount  of  the full  invoice value of
 such goods, together with  the duty
 thereon, and on refusal to return such
 goods for any cause to the custody of
 the Secretary of  the Treasury, when
 demanded, for the purpose of exclud-
 ing them from the country, or  for any
 other  purpose,  said  consignee  shall
 forfeit the  full amount of the bond:
 And provided further, That all  charges
 for storage,  cartage,  and  labor  on
 goods which are refused admission or
 delivery shall be paid by the owner or
 consignee, and in default of  such pay-
 ment shall  constitute a  lien  against
 and future  importation made by such
 owner or consignee.
  "SEC.  12. That the term  'territory'
 as  used in  this  act  shall include  the
 insular  possessions  of  the  United
 States. The word 'person' as  used in
 this act  shall be construed  to import
 both the plural and the singular, as

-------
 STATUTES AND LEGISLATIVE HISTORY
                               489
the  case demands,  and shall include
corporations, companies, societies, and
associations. When construing and en-
forcing the provisions of this act, the
act,  omission, or failure of any officer,
agent, or other  person  acting for  or
employed by  any  corporation, com-
pany,  society, or  association, within
                           [p. 9380]
the scope of his employment or office,
shall in every case  be also  deemed to
be the act, omission, or failure of such
corporation, company,  society, or  as-
sociation as well as that of the person.
  "SEC. 13. That this act shall be  in
force and effect from  and after  the
first  day of January, nineteen hun-
dred and seven."
   That the  House recede from its
 amendment to the title and agree to
 the title as passed in the Senate.
            W. B. HEYBURN,
            A. C. McCuMBER,
            A. C. LATIMER,
 Managers on the part of the Senate.
            W. P. HEPBURN,
            JAMES R. MANN,
            W. H. RYAN,
 Managers on the part of the House.
  Mr. HEYBURN. I move that the re-
 port be printed in the RECORD, printed
 as a document, and that it be printed
 as a bill in bill form.
   The  motion was agreed to.
                          [p.9381]
 1.2a (5) (d)  June 27: First conference report submitted to House,
 p.9417
            [No Relevant Discussion on Pertinent Section]
 1.2a (5) (e)  June 28: First conference report withdrawn in Sen-
 ate p. 9459
             [No Relevant Discussion on Pertinent Section]
 1.2a (5) (f)  June  28, 29: Second conference report submitted and
 passed Senate, pp. 9472,9474,9495-9496
  Mr.  HEYBURN submitted  the fol-
 lowing report:
 *****
                          [p. 9472]
  Mr.  HEYBURN. Mr. President,  I
would  say that the conference report
was withdrawn this morning merely
for the purpose  of transposing and
correcting certain language  in it that
was found to be  duplicated  in two
sections.  It is now in correct  form.
I ask that the Senate agree to the re-
port.
  Mr. BAILEY.  Mr. President, I did
not understand the motion or  request
of the  Senator from Idaho.
  Mr.  HEYBURN. It was that the
Senate agree to the report of the com-
mittee of conference.
  Mr. BAILEY.  And that passes the
bill?
  Mr. HEYBURN. Yes.
  Mr. BAILEY. I will ask the Sena-
tor to let the conference report lie over.
  Mr. HEYBURN. Let it lie over for
the present?
  Mr. BAILEY. Yes. I would like to
have an opportunity to look at it.
  Mr. HEYBURN. Very well. I will
call it up later.
                          [p. 9474]
  Mr. HEYBURN. I ask that the con-
ference report on the pure-food bill be
laid before the Senate  for considera-
tion.
  The VICE-PRESIDENT. Is there
objection? The Chair hears none, and
the Chair lays before the  Senate the
conference report on the bill (S. 88)
for preventing the manufacture, sale,
or transportation  of  adulterated or
misbranded or poisonous or deleteri-
ous foods, drugs,  medicines, and li-

-------
490
LEGAL COMPILATION—PESTICIDES
quors, and for regulating traffic there-
in, and for other purposes. The ques-
tion  is on agreeing to the report,
                           [p. 9495]
  Mr. McCUMBER.  Mr.  President,
the Senate has already passed a pure-
food bill. The House then, instead of
passing its own bill, which had been in-
troduced in the House, took the Senate
bill and amended it. They amended it
by striking out all after the  enacting
clause and inserting in  lieu thereof a
wholly  new   bill.  It   so  happened,
though,  that  the provisions  of the
House bill differed in only a very few
respects  from the  provisions of the
Senate bill, and those differences were
mainly in separate  sections. So when
the  conference  committee met they
took  the  House  amendment  as the
basis, and  as any  Senator will see,
after reading the bill over, the Senate
conferees accepted those portions of
the House amendment which were sub-
stantially the same as the Senate bill,
and  the House receded  from  portions
in their  bill  which  differed from the
Senate bill.  So  practically we have
back  before us,  although not  in the
same form, in substance almost wholly
the Senate bill as it passed the Senate.
At least there is nothing extending the
force of the bill. There is nothing mak-
ing it broader or protruding it over
State lines in any manner.
  We sought in the Senate bill to keep
clearly within the provisions of inter-
state commerce and to avoid going in-
to the State and coming  in  conflict
 with the police power of the State. We
 have retained  every  provision practi-
 cally the same as it was in  the bill
 when it passed the Senate.
   Now, what have we eliminated from
 this bill? Senators will remember that
 the  House measure provided  for the
 fixing of standards,  and  it called to
 the assistance of the Secretary of Ag-
 riculture certain experts who  were to
 aid him in determining what the stan-
 dard should be, and also provided that
 the  standards  so established by them
 should  be for  the  guidance  of  the
 court.  The Senate  has  always  con-
 tended that the power to fix standards
 should not be given to any man, and
 the  House conferees receded from
 that portion of the House amendment,
 and it goes out.
   The next provision in  the House
 amendment was one which  provided
 for obtaining  samples and compelling
 those who deal in interstate commerce
 in  certain food and drug articles to
 furnish  upon  payment  the  articles
 which they were selling, for the  pur-
 pose of  having them analyzed. That
 provision is also stricken  out, *  * *.
 *****
   I can assure the Senator from  Tex-
 as that he will find that the bill is now
 no broader in reference to the powers
 granted to deal with  food products as
 it comes from  the conference than it
 was when  the  Senate passed  the bill,
 and in  some respects it is limited to
 a considerable extent.
                           [p. 9496]
1.2a (5)  (g)   June 29:  Second conference report  submitted  and
passed House, pp. 9735, 9737-9738,9740
  Mr. MANN.  Mr. Speaker, a privi-
leged report. I desire to present a con-
ference  report  on  the bill  S. 88—the
pure-food bill — and  ask unanimous
consent  that the statement be read in
lieu of the report.
  The  conference  report and  state-
ment are as follows:
                           [p. 9735]
  Mr. MANN. Mr.  Speaker,  in  pre-
senting the conference report  on the
pure-food bill I ask the indulgence of
the House  for a few moments  in ref-
erence to the bill as  agreed upon in
conference.

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STATUTES AND LEGISLATIVE HISTORY
                                491
   I may say to the House that the bill
as reported by  the conferees is  sub-
stantially  the  bill as  passed by the
House, with  a  few  exceptions.  We
struck out  in conference the section
requiring the Secretary of Agriculture
to determine the standards  of  food.
We struck  out in conference the sec-
tion which  required a man to sell ar-
ticles  of  food which  might be used
against him in  evidence, or made it
a  misdemeanor if he refused to sell—
a  provision which, in my  judgment
and in the judgment of most members
of the House and Senate, ought never
to have  been in  any bill, and which
was unconstitutional and might have
made the  whole bill unconstitutional.
This provision was in both the Senate
and  House  bills  in  identically  the
same language. The conferees thought
that so far as the parliamentary situ-
ation was concerned they had author-
ity to strike it out, it being part of the
House amendment, and that upon its
                             [p. 9737]
merits the provision ought to go  out;
and  I  think nobody here  desires it to
remain in.
   We  struck out the provision which
affected the question of States' rights
and the control of the Federal Govern-
ment over original packages, leaving
the law as it stands without regard to
this bill.
  Mr.  POLLARD. I believe the gen-
tleman made the statement that the
conference  struck  out  the   House
provision that the Secretary of Agri-
culture  should  determine  what  the
standards should be?
  Mr.  MANN. That section goes out
entirely in the conference report.
  Mr.   POLLARD.  Was  there  any
change made in  the provision of the
House, wherein  we provided  that  a
board  of five  inspectors should be se-
lected to pass upon the wholesomeness
or deleteriousness of the foods?
  Mr.  MANN. That provision was in
section  9,  directing the Secretary of
Agriculture  to  determine  standards,
and the entire section goes out.
  Mr. POLLARD. If that is the case,
who determines  whether a preserva-
tive that is used is poisonous or dele-
terious  to  health?
  Mr.  MANN.  Mr.  Speaker,  as  I
stated to the House when the bill was
before  the House,  it  is  the  courts
which must  determine in  the end as
to the question of the wholesomeness
or the deleteriousness of preservatives
or  of any article  of  food. The  only
object in having that provision in the
bill, requiring the Secretary  of Agri-
culture  to determine  standards,  was
for the  purpose of governing  prosecu-
tions and provide uniformity and give
to producers in advance of prosecution
knowledge of the requirements insist-
ed upon by the officials in charge; but
the Senate conferees were  unalterably
opposed  to that provision, and as  it
was not an essential provision of the
law we  gave way on that provision in
order to save the rest of the bill prac-
tically intact as the  House  had en-
acted it.
  Mr. COOPER of  Wisconsin. From
such study as I have been able to give
the bill it seems to me a good measure;
but I should like to put to the gentle-
man  one  question in  line with the
question that was  asked by the  gen-
tleman from  Nebraska [MR. POLLARD],
and that is on the matter of the stan-
dards. In the report submitted by the
Committee on Interstate Commerce on
this bill I find this clause on page 4:
  It is, however, essential to the success and
operation of  any pure-food measure  that stan-
dards of food products shall be arrived at, for
the guidance of the  officials charged with the
administration of  the law  and often for the
information of the courts.
  And a little later it says:
  It is therefore provided in the bill that the
secretary  of  Agriculture—
  And so  forth. That report  states
that it is essential for  the success and
operation of any  pure-food   law to
have standards established by  the  Sec-

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492
LEGAL COMPILATION—PESTICIDES
retary. Now, I presume that the con-
ferees have reached a conclusion,  in
view of some provisions of the bill,
that will justify a  reversal  of that
opinion, and I should like to hear from
the gentleman from Illinois on that
subject.
  Mr. MANN. Mr. Speaker, when the
report on this bill in the House was
written, I did say in the report that
it was  essential to the success of a
pure-food bill. It is essential  to the
best success of a pure-food bill that
the Secretary of Agriculture or some
other official shall determine the stan-
dards ; but the gentleman from Wiscon-
sin  certainly has enough understand-
ing of language to know that nothing
in the world is absolutely "essential"
in legislation.  We do not have the bill
exactly as we wanted  it, but,  so far
as  the vital features of the bill are
concerned, we have them contained in
the bill as it comes back to the  House.
I may say to the House further that,
under the law as it now stands in the
agricultural  appropriation bill, the
Secretary  of  Agriculture  is  autho-
rized to fix standards of foods; and
while I do not believe that is sufficient
legislation, and while for one I never
 would be  willing to consent that the
 Secretary of Agriculture should have
 the arbitrary power to determine what
 is adulterated or misbranded  food, I
 do  think that the  provision that the
 House committee  brought into the
 House as section 9, as amended in the
 House at  my suggestion, was, on the
 whole, the most perfect provision upon
 the subject of fixing standards which
 has ever been before  the House, and
 the committee owe  quite largely the
 perfection of that  section to the gen-
 tleman from Wisconsin  [MR.  ESCH]
 and  the  gentleman from  Michigan
 [MR.  TOWNSEND] ; and I regret exceed-
 ingly that we met a stone wall  on that
 section of the bill  in  the determined
 opposition of  the  Senate conferees.
 The existing law, however, is entirely
 sufficient for the operation of the pure-
 food  law.
                          [p. 9738]
  The SPEAKER  pro tempore [Mr.
 WATSON]. The question is on agreeing
 to the conference report.
  The question was taken; and the
 conference report was agreed to.
  On  motion of Mr. HEPBURN, a mo-
 tion to reconsider  the last vote was
 laid on the table.          [p. 9740]
      1.2b FEDERAL FOOD, DRUG, AND COSMETIC ACT
                 June 25, 1938, P.L. 75-717, §406, Stat. 1049

         TOLERANCES FOR POISONOUS INGREDIENTS IN FOOD AND
             CERTIFICATION OF COAL-TAR COLORS FOR FOOD

    SEC. 406 (a) Any poisonous or deleterious substance added to
  any food, except where such substance is required in the produc-
  tion thereof or cannot be avoided by good manufacturing practice
  shall be  deemed to be  unsafe for purposes of the application of
  clause  (2)  of section  402 (a) ;  but when such substance is so
  required or cannot be so avoided, the Secretary  shall  promulgate
  regulations limiting the quantity therein  or thereon to  such extent
  as he finds necessary for the protection of public health, and  any
  quantity exceeding the limits so fixed  shall also be deemed to be
  unsafe for  purposes of the application  of clause (2)  of section
  402 (a). While such a regulation is in effect limiting the quantity

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STATUTES AND LEGISLATIVE HISTORY                         493

of any such substance in the case of any food, such food shall not,
by reason of bearing or containing any added amount of such sub-
stance, be considered to be adulterated within the meaning of
clause (1) of section 402  (a). In determining the quantity of such
added substance to be tolerated in or on different articles of food
the Secretary shall take into account the extent to which the  use
of such substance is required or cannot be avoided in the produc-
tion of each  such article, and the other ways in which the con-
sumer may be affected by the same or other poisonous or deleteri-
ous substances.
   (b) The Secretary shall promulgate regulations providing for
the listing of coal-tar colors which are harmless and suitable for
use in food and  for the certification of batches of such colors, with
or without harmless diluents.
      1.2b (1)  SENATE  COMMITTEE ON COMMERCE
             S. REP.  No. 91, 75th Cong., 1st Sess. (1937)

            FOODS,  DRUGS, AND COSMETICS
           FEBRUARY 15,1937—Ordered to be printed
      Mr. COPELAND, from the Committee on Commerce, submitted
                         the following
                         REPORT
                       [To accompany S. 5]

  The Committee on Commerce,  to whom was referred the bill
 (S. 5) to prevent the adulteration, misbranding, and false adver-
tisement of food, drugs, devices, and  cosmetics, in interstate,
foreign, and other  commerce subject to the jurisdiction of the
United States, for the purposes of safeguarding the public health,
preventing deceit upon the purchasing public, and for other pur-
poses, having considered the same, report thereon with certain
amendments, and as so amended, recommend that the bill do pass.
The amendments are incorporated in the bill as reported.
  This bill has been prepared with three basic principles in mind :
First, it must not  weaken the  existing laws; second, it must
strengthen and extend that law's protection of the  consumer; and,
third, it must impose on honest industrial enterprise no hardship
which is unnecessary or unjustified in the public interest.

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494                            LEGAL COMPILATION—PESTICIDES

  This bill meets these three principles. It has been prepared after
many and extensive conferences with the enforcement agencies of
the Government and with representatives of various consumer
groups or associations, professional groups, and the industries to
be regulated.
  Separately called meetings were held with representatives of the
food,  drug, and cosmetic industries. Letters inviting  suggestions
were sent to many persons known  to be interested in the subject.
Several volumes of suggestions have been received from persons in
the groups just mentioned. These suggestions have been carefully
studied; many of them rejected; some accepted; some accepted in
part or in effect. The hearings which have been held by committees
of the Senate and House of Representatives  on previous  bills in
former sessions of the Congress have been reviewed and studied to
take advantage of the information and discussions contained in
them.
                                                         [P.I]
  The legislative effort to secure a better law on this subject began
in June 1933, with the introduction of S.  1944. Since that time
there have been many bills and many revisions of bills. There have
been numerous hearings by committees of the Congress. The sub-
ject has  been debated  on  the  floors  of- Congress,  in the press,
throughout the industries, and by the public. This study has gone
on over a period of 3Vi years.  In  the preparation of the  present
bill there has been an earnest, painstaking effort to take advantage
of what light has been shed from these various courses.
  This bill is presented with the confident assurance that, insofar
as it is possible, all the known facts have been utilized, and that the
measure  is capable of accomplishing the purposes declared for it.
And it is a fair  bill which will enable honest business to be carried
on without interference, except such as is necessary to safeguard
the public health.
     *******
  The bill has been made shorter  and less verbose  than previous
bills. That has been done without deleting any effective provisions.
It has been done by avoiding unnecessary repetitions which existed
                                                         [p. 2]
in previous bills, and by consolidating at a single place in a few
lines what appeared heretofore at several different places.
                                                         [p. 5]
  That was  also  accomplished by eliminating  some provisions
which, while lending nothing to the strength of the bill, presented
the possibility of confusion in enforcement and perhaps raised the

-------
STATUTES AND LEGISLATIVE HISTORY                        495

issue of  its constitutionality. For instance, the requirement that
claims for drug products should be supported by medical opinion
was deleted. Great difficulty always has  been found in defining
"medical opinion." In one State, certain practitioners are licensed
and their opinions would be considered medical opinion, whereas
in another State such practitioners would not be licensed. Further-
more,  as  shown,  in  the previous discussions, it would  often be
impossible to determine what the state of medical opinion is on
controversial subjects.
   When those considerations were added to the possibility that the
guilty might escape through the uncertainties of such ar provision,
and the strong likelihood that courts would invalidate a statute
making medical opinion the criterion of truth and the gage of
criminal offense, the provision was deleted. The bill is stronger for
the deletion. Medical testimony can and  will be adduced in enforc-
ing the law. It will be received as evidence. But, the bill will avoid
the danger of making it a legal standard,  usually undeterminable,
the violation of which incurs criminal penalties.
     *******
   There  has been controversy as to  whether the Food and Drug
Administration or the Federal Trade Commission should enforce
the bill's provisions on advertising. On the premise that advertise-
ments of foods, drugs and cosmetics are nothing more than exten-
sions of the labeling, this bill proposes that the control be vested in
the Food and Drug Administration which enforces the provisions
on adulteration and labeling.  But, it does not have the  effect of
depriving the Federal Trade Commission of its jurisdiction to pro-
ceed against false advertising in such form as to make it an unfair
method of competition.  The bill specifically provides that it shall
not be construed  as impairing or diminishing the powers of the
Federal Trade Commission.
                                                         [p. 3]
                            FOODS
   2. Provides for the promulgation of standards of identity and a
reasonable standard  of quality for food. (A standard of quality is
authorized by the present law for canned food only.)
   3. Requires the labeling of unstandardized food to disclose the
ingredients by name.
   4. Prohibits traffic in food which is dangerous to  health. (The
present law permits regulation of dangerous food only in the event
that the poison is added.)
   5. Prohibits addition  of poison. If it cannot be avoided in pro-

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496                           LEGAL COMPILATION—PESTICIDES

duction or manufacture, when it reaches the consumer the product
must be safe for human use.
  6. Eliminates the "distinctive  name" proviso  of  the  existing
law under which the sale of products, the labels of which are mis-
leading, are now permitted sale.
  7. Requires fully  informative  labeling of infant and invalid
food.
  8. Requires label declaration of artificial colors  and artificial
flavors in food.
  9. Forbids traffic in confectionery containing metallic  trinkets
and other inedible substances which have been found to be a men-
ace to the welfare of children.
  10. Authorizes emergency license control of food that might be
dangerous by reason of contamination with micro-organisms. Such
licensing is limited to operations in which the public health cannot
be protected otherwise.                                   r   _,
                                                        Lp- 5]
                           GENERAL
  20. Prohibits the use of poisonous containers for food, drugs,
and cosmetics.
  21. Requires that food, drugs,  and cosmetics be prepared  and
handled under conditions of reasonable cleanliness.
  22. Forbids the use of uncertified and impure coal-tar  in food,
drugs, and cosmetics.
  23. Prohibits slack-filling and the use of deceptive containers for
food and drugs.
  24. Provides for factory inspection and the procurement of  rec-
ords needed to prove Federal jurisdiction.
  25. Provides increased penalties for violations.
  26. Authorizes the Federal courts to enjoin violations.
                                                        [p. 6]
      1.2b  (2)  SENATE COMMITTEE ON COMMERCE
             S. REP. No. 152, 75th Cong., 1st Sess. (1937)
             FOODS,  DRUGS, AND  COSMETICS
                MARCH 8,1937.—Ordered to be printed
Mr. COPELAND, from the Committee on Commerce, submitted, in
            lieu of Senate Report No. 91, the following
                    AMENDED  REPORT
                       [To accompany S. 5]
  The Committee on Commerce, to whom was referred the bill
(S. 5) to prevent the adulteration, misbranding, and false adver-

-------
STATUTES AND LEGISLATIVE HISTORY                        497

tisement of food, drugs, devices,  and cosmetics,  in  interstate,
foreign,  and other commerce subject  to the jurisdiction of the
United States, for the purposes of safeguarding the public health,
preventing deceit upon the purchasing public, and for  other pur-
poses, and which  was heretofore reported  with certain amend-
ments, submit herewith an amended report and recommend that
the bill, as amended, do pass. The amendments are incorporated in
the bill as reported.
  This bill has been prepared with three basic principles in mind:
First, it must  not weaken the  existing  laws; second,  it must
strengthen and extend that law's protection of the consumer; and,
third, it must impose on honest industrial enterprise no hardship
which is unnecessary or unjustified in the public interest.
                                                        [P-l]
                            POODS
  2. Provides for the promulgation of standards of identity and a
reasonable standard of quality for food. (A standard of quality is
authorized by the present law for canned food only.) In providing
a standard of identity for citrus fruit, it is intended that such will
be a standard of maturity only.
  3. Requires the  labeling of unstandardized food to disclose the
ingredients by name.
  4. Prohibits traffic in food which is  dangerous to health.  (The
present law permits regulation of dangerous food only in the event
that the poison is added.)
  5. Prohibits addition of poison. If it cannot be avoided in produc-
tion or manufacture, when it reaches  the consumer the product
must be safe for human use.
  6. Eliminates the "distinctive name" proviso of the existing law
under which the sale of products, the labels of which are mislead-
ing, are now permitted sale.
  7. Requires fully  informative  labeling of infant and  invalid
food.
  8. Requires label declaration of  artificial  colors and artificial
flavors in food.
  9. Forbids traffic in  confectionery containing metallic tririkets
and other incredible substances which have been found to  be a
menace to the welfare of children.
  10. Authorizes emergency license control of food that might be
dangerous by reason of contamination with micro-organisms. Such
licensing is limited to operations in which the public health cannot
be protected otherwise.
                                                        [p. 5]

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498                             LEGAL COMPILATION—PESTICIDES

 1.2b (3)  HOUSE COMMITTEE ON INTERSTATE AND  FOR-
                      EIGN COMMERCE
             H.R. REP. No. 2139, 75th Cong., 3rd Sess. (1938)
             FOOD,  DRUG, AND COSMETIC ACT
 APRIL 14,1938.—Committed to the Committee of the Whole House on the state
                 of the Union and ordered to be printed
 Mr. LEA, from the Committee on Interstate and Foreign Commerce,
                     submitted the following
                          REPORT
                        [To accompany S. 5]
   The Committee on Interstate and Foreign Commerce, to whom
 was referred the act (S. 5) to prevent the adulteration, misbrand-
 ing, and false advertising of food, drugs, devices, and cosmetics in
 interstate, foreign, and other commerce subject to the jurisdiction
 of the United States, for the purposes of safeguarding the public
 health, preventing deceit upon the purchasing public, and for other
 purposes, report favorably theron with an amendment and recom-
 mend that the act do pass.
   The committee amendment strikes out all of the Senate bill and
 inserts in lieu thereof a substitute which appears in the reported
 bill in italic type.
   The act herewith reported is the culmination of more than  5
 years of study by your committee.
                       GENERAL PURPOSES
   This act seeks to set up effective provisions against abuses of
 consumer welfare growing out of inadequacies in the Food and
 Drugs Act of June  30, 1906, as amended (U. S. C., title 21, sees.
 1-15). That act is popularly known as the Wiley pure-food law,
 because that great pioneer in pure food and drug legislation,  Dr.
 Harvey W. Wiley, led the  fight for its enactment.
   While the old law has been of incalculable benefit to American
 consumers,  it contains serious loopholes and is not sufficiently
 broad in its scope to meet the requirements of consumer protection
 under modern conditions.
                                                         [p-1]
                IMPROVEMENTS OVER EXISTING LAW
   The measure contains substantially all the features of the old
 law that have proved valuable in promoting honesty and fair deal-
 ing.  But it amplifies and  strengthens the provisions designed to
 safeguard the public health and prevent deception,  and it extends

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STATUTES AND LEGISLATIVE HISTORY                         499

the scope of the law to include cosmetics, therapeutic devices, and
certain drugs that now escape regulation.
  The principal respects in  which the measure differs from the
present law are:
     *****        *        #
  Foods that are dangerous because of naturally contained poisons
rather than added poisons are brought under regulation. The addi-
tion of poison to foods is prohibited except where such addition is
necessary or cannot be avoided; and  in such cases tolerances are
provided limiting the amount of added poison to the extent  neces-
sary to safeguard the public health.
  Where the other  provisions of the measure are  not effective to
control danger to health arising from bacterial contamination of
food, temporary license restrictions can be imposed until the diffi-
culty is corrected.
  Definitions and standards of identity are provided under  which
the integrity of food products can be effectively maintained.
                                                         [p. 2]
  Section 305 provides that the accused be given a hearing before
a criminal proceeding is instituted. This merely requires continua-
tion of a practice that has been followed in the enforcement  of the
present law. The language has been changed from that of the Sen-
ate provision  (sec.  7) to make it clear that the kind of hearing
contemplated is an  informal  one, and is not to be formal prelim-
inary trial of the case before the Secretary. The Senate provision
directing the Secretary to certify the facts to the United States
Attorney and  prescribing that the  report should be accompanied
by authenticated findings of appropriate officers has been delected
as unnecessary.
  Section 306 authorizes the settlement  of minor violations  by
suitable written notice or warning where the public interest will be
adequately served by such settlement. Its  tendency is to  avoid
encumbering court  dockets with trivial or unnecessary litigation.
This specific statement will give definite legislative sanction  to the
procedure.
                                                         [p. 3]
  Section 406, in subsection  (a), provides for a fairer and more
effective control of  the addition of  poisons to food than does the
present law. This subsection  first prohibits the unnecessary addi-
tion of poisons. Where such additions  are necessary, the establish-
ment of tolerances is authorized, based upon the practical necessi-
ties for the use of poisonous substances. It is well recognized that
an adequate fruit and vegetable supply could  not  be brought to

-------
500                            LEGAL COMPILATION—PESTICIDES

maturity without the use of toxic insecticides and fungicides. But
the situation is made extremely complex by the number of poison-
ous substances used  for different crops in different localities, and
by contaminations which unavoidably occur in many manufactur-
ing processes. The purpose of the subsection is to insure that the
total amount of poisons the consumer receives will not be sufficient
to jeopardize health. The needs of each branch of the  food-pro-
ducing industry can be met and the public health can be adequately
protected.
  Subsection (b) of this section specifically authorizes the listing
of harmless coal-tar  colors for use in food and the certification  of
batches of the listed  colors which are found to be sufficiently free
from impurities to be safe. This continues in effect a system  of
certification which has been followed almost from the beginning of
the enforcement of the  old food and drugs law in order to  make
available to the food-manufacturing industries adequate supplies
of colors of established safety and purity.
                                                         [P-6]
   PROCEDURE GOVERNING FORMULATION AND JUDICIAL REVIEW OF
                         REGULATIONS
  Section 701 (e), (f),  and (g) of the committee amendment set
forth the procedure governing the formulation and judicial review
of certain regulations to be issued by the Secretary. These regula-
tions include those with respect to the following matters: Estab-
lishing definitions and standards of identity, standards of quality,
and standards of fill of container for foods (sec. 401) ; information
on label concerning  vitamin, mineral, and dietary properties  of
foods (sec. 403 (j» ; limitations on quantity  of added poisonous
or deleterious substances whose presence cannot  be avoided  by
good  manufacturing practice (sec.  406  (a)) ; issuance of tempo-
rary permits governing manufacturing, processing, or packing  so
as to prevent contamination with micro-organisms (sec. 404  (a)) ;
prescribing appropriate tests on methods of assay to determine
                                                         [p.  9]
strength, quality, or purity of drugs  (sec. 501  (b)) ; designation
of drugs as habit-forming (sec. 502 (d)) ; directions on  label  as
to use of drugs (sec. 502  (f)) ; statements on label as to precau-
tions necessary by reason of liability of drug to deterioration (sec.
502  (h)) ; and listing of harmless coal-tar colors and certification
of batches  thereof for foods, drugs, or cosmetics (sees. 406 (b),
504, and 604).
  Such regulations  are not  merely interpretive. They have the
force and effect of law and must be observed. Their violation may

-------
STATUTES AND LEGISLATIVE HISTORY                         501

result in the imposition of criminal penalties, or in the confiscation
of the goods involved if shipped in interstate commerce, or in their
exclusion from the country if imported.
  Hearings.—A proposal to issue, amend, or repeal any such regu-
lation is to be made by the Secretary of Agriculture on his own
initiative, or by the interested industry or a substantial portion
thereof, and the Secretary is required to set the proposal for hear-
ing. The proposal is to be set forth in general terms so that the
Secretary will be free to frame the precise language of the regula-
tion or amendment or repeal in the light of the evidence developed
at the hearing.
  As a result of the hearing  on the proposal the Secretary may
determine to issue, amend, or repeal the regulation, or not to do so.
In either case, however, he is required to issue and make public an
order specifying the action taken. This will prevent the pocketing
of proposals to issue, amend, or repeal a particular regulation  and
eliminate application of the "negative order" doctrine which denies
court relief where the executive officer merely  fails to take  any
affirmative action.
  If as a result of the hearing on any proposal the Secretary deter-
mines to issue, amend, or repeal the regulation, the action  taken
may be based only on substantial evidence of record at the hearing.
Similarly, the action of the Secretary in failing to carry into effect
any proposal for issuance, amendment, or repeal of a regulation
set for hearing must rest on a like basis. In either instance detailed
findings of the facts on which  the action of the Secretary is  based
are required to be made public as a part of  his order. It follows
that if the order of the Secretary is to be valid, the Government
must have placed in the record at the hearing its evidence in sup-
port of the action taken and thereby afford opportunity for persons
affected to controvert viva voce the Government's evidence. While
common  law or jury trial rules  of evidence need not be enforced
at such a hearing, nevertheless it is essential to such a hearing that
all  the evidence on which the administrative officer acts be  dis-
closed at the hearing and that  the right to controvert viva voce be
accorded. Cf. Ohio Bell Tel. Co. v. Public Utilities Comm. of Ohio
(1937) 301 U. S. (preliminary print)  292.
  The order of the Secretary is  to take effect not earlier than 90
days after it is issued and made public, except that if the Secretary
finds that emergency conditions so  require,  and specifies in  the
order his findings as to such conditions, then the order may take
effect at an earlier date.
  Judicial review.—Judicial review of the order of the Secretary

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502                            LEGAL COMPILATION—PESTICIDES

with respect to any proposal for the issuance, amendment,  or
repeal of a regulation may be had in a district court of the United
States.
  Such  review may  be had  on the initiative of any individual or
business organization by instituting the special review proceedings
                                                        [p. 10]
provided in the committee amendment within 90 days after issu-
ance of the Secretary's order.  The complainant can institute the
proceedings only in a case of actual controversy as  to the validity
of the order, thereby meeting  the constitutional requirement for
vesting  in the Federal courts jurisdiction only of "cases" or "con-
troversies."
  Such  review proceeding is to be instituted by filing a complaint
in the district court for the district where the complainant resides
or has his principal place of business. 'The new Rules of Civil Pro-
cedure for the District Courts of the United  States which will take
effect following the  present session of Congress, will govern the
form of complaint, service of summons, and the  like. There is one
exception. Personal service on the Secretary may be had anywhere
in the United States even though he is without the territorial limits
of the State in which the court is held.
  In such special review proceeding the court will have jurisdiction
to enjoin the Secretary from enforcing the order if it is invalid and
may also compel him to issue an order providing for such regula-
tion, amendment, or repeal as will be in accordance with law if
justice requires that such  affirmative action be taken.
  Further opportunity for review of a regulation placed in effect
by the Secretary will occur in criminal, injunction, libel  for con-
demnation, exclusion of imports, or other proceedings instituted by
the Government under the bill, in which the defendant is charged
with violating the regulation (see sees. 302,  303,  304, and 801). If,
through prior review proceedings, there has been a final determina-
tion of  the validity of the regulation or order in question by the
Supreme Court of the United States, or the circuit court of appeals
for the particular circuit, then the question of validity would likely
have become stare  decisis. If, however, this is  not the case, the
validity of the regulation or  order could  be inquired  into and
determined in  such  criminal, injunction, libel for  condemnation,
exclusion of imports, or other proceeding.
  There is also saved as a method to review a regulation placed in
effect by the Secretary whatever rights exist to initiate a historical
proceeding in equity to enjoin the enforcement  of the regulation,

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STATUTES AND LEGISLATIVE HISTORY                         503

and  whatver rights exist  to initiate a  declaratory  judgment
proceeding.
  The special type of review above outlined, where the proceedings
are instituted by the individual or business organization affected,
will permit an early determination of the validity of the Secretary's
action with respect to any proposal for a regulation, amendment, or
repeal, and make for prompt certainty as to legal rights.
  In  each  of the types of review proceeding above outlined the
transcript  of the record and proceedings before the Secretary on
the proposal resulting  in the order, may become  a part of the
evidence in the court. In the special review proceedings the Secre-
tary is required to certify and file the transcript in the court. In
the other cases, a certified copy of the transcript is required to be
furnished by the Secretary and is admissible  in court. The special
review provisions also  specifically provide that the court is to
permit the  private individual or concern to supplement the evidence
in such transcript by adducing  additional evidence (which the
Secretary may rebut) bearing  on the validity of the order, but only
on a  showing that such additional evidence  is material and that
                                                       [P. 11]
there were reasonable grounds for failure to adduce it before the
Secretary.  While this right to adduce additional evidence inheres
in the criminal and libel proceedings originating in court, specific
provision is made for it in  the committee amendment in connec-
tion with the special review proceedings. The additional evidence
could be taken before the court or a master, or, in the case of the
special review proceeding, the court may remand the case to the
Secretary for the taking of such evidence or its technical character,
or in  order to permit the Secretary to amend his order in the light
of such additional evidence, or for any other reason.
  The committee amendment is silent as to any limitations on the
court in holding invalid the order of the Secretary. The court is thus
left free to  exercise its right of review to the full extent that it may
constitutionally do so. A regulation would, of course, be invalid if
the Secretary failed  to observe the procedural requirements as to
hearing, notice, and the like, or if the order, as specifically required
by the committee amendment, was not based on substantial evi-
dence of record at his hearing, or went beyond or was contrary to
the Secretary's own finding, or to constitutional or jurisdictional
limitations. Furthermore, the order would be invalid if for any
other reason it was not in accordance with law. The court can take
into consideration the additional  evidence, if any, adduced before
it, and to the extent that it may constitutionally do so, weigh the

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504                            LEGAL COMPILATION—PESTICIDES

combined evidence, and hold the order invalid if in the light of such
evidence it appears that the findings on which the Secretary based
the order are not true in fact or that the order is unreasonable,
arbitrary, or capricious.                                 r
                                                       Lp.
            FOOD, DRUG, AND COSMETIC ACT
                APRIL 21,1938.—Ordered to be printed
Mr. CHAPMAN, from the Committee on Interstate and Foreign
               Commerce, submitted the following
                     MINORITY VIEWS
                       [To accompany S. 5]
  The undersigned, members of the Committee on Interstate and
Foreign  Commerce, submit the following minority views  with
respect to one of the most important features of the bill, namely,
provisions for court review of regulations of section 701  (f).
  It is our view that the bill, if enacted with this review provision,
will not afford any substantial improvement in consumer protection
over the terms of the present law.  In  fact, in some respects it
represents an impairment of the consumer-protective features of
the present law.
  Section 701 (f) sets up a method of court review of regulations
that is wholly unprecedented. It is specifically provided that this
method of review is in addition to, and not in substitution for, other
methods of review provided by law, such as equity proceedings and
proceedings under the Declaratory Judgment Act.
  Regulations subject to this new form of review relate to the
identity and quality of food; to requirements for informative label-
ing of special dietary  food, such as that used by infants  and
invalids; to food contaminated with disease organisms where dis-
tribution might result  in serious  epidemics; to the addition of
poisons  to food; to the  certification  of  coal-tar colors for use in
foods, drugs, and cosmetics; to establishing adequate laboratory
tests  for important official drugs; to the listing of narcotic and
habit-forming drugs; to label warnings against probable misuse of
dangerously potent drugs; and to label directions for the preserva-
tion of potent drugs liable to deterioration.
  These provisions constitute the very heart of any worthy food
and drug legislation. If the public health and  welfare  are to be
adequately safeguarded, regulations putting these provisions into
effect should be promptly and effectively enforceable and certainly
should be subject to no greater restrictions and delays in  review by

-------
STATUTES AND LEGISLATIVE HISTORY                         505

the courts to determine their validity than regulations authorized
                                                        [p. 1]
by other Federal laws which deal with economic questions rather
than the vital questions of public health concerned in this legislation.
  Section 701 (f) permits any person who will be adversely affected
by one of the regulations listed above to file, any time within 90 days
after the regulation has issued, a complaint in the district court
for the district where such person resides or has his principal place
of business to enjoin the Secretary of Agriculture from enforc-
ing the regulation. For example, if a regulation is issued requiring
label warnings against probable and dangerous misuse of a certain
class of patent medicine, then each manufacturer of that class of
medicines and each dealer who profits by the sale of the medicines
may file a complaint in his local district court to enjoin  the enforce-
ment of the regulation. If  a single  district judge could be found
who would issue an injunction against such enforcement, the regu-
lation could not be  enforced at any place in the United  States, even
though  every other district judge in the country had refused to
issue an injunction. The provision would therefore clothe each and
every district judge with authority  to block the enforcement of a
regulation throughout the United States. This is an extraordinary
extension of jurisdiction and an extraordinary grant of power
never heretofore seriously advanced in the entire history of the
country. As suggested in the letter of the Secretary of Agriculture,
a copy of which is  hereto attached, if there is to be an exploration
into new forms of court  review of administrative  regulations
specifically authorized by congressional enactment,  it is our con-
viction that such experimentation should be made in  fields other
than those of vitally important health laws.                 r   0,
                                                        LP- £\
  If this bill is enacted into law with section 701  (f), the court-
review section, in  it, as reported by a majority of the committee,
what started  out as an effort on the part of the advocates of a more
adequate food and drug law to enlarge the scope of the existing law,
to fill in the loopholes in it, and to put more teeth into it, will end
with having accomplished the directly opposite result and years of
earnest  effort will have gone for worse than naught.
                                       VIRGIL CHAPMAN,
                                       JERRY J. O'CONNELL,
                                       CARL E. MAPES,
                                       CHAS. A. WOLVERTON,
                                       JAMES WOLFENDEN,
                                       PEHR G. HOLMES,
                                                        [p. 5]

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506                           LEGAL COMPILATION—PESTICIDES

         1.2b (4)  COMMITTEE  OF CONFERENCE
            H.R. REP. No. 2716,75th Cong., 3rd Sess. (1938)
            FOOD, DRUG,  AND  COSMETIC ACT
               JUNE 11,1938.—Ordered to be printed
Mr. LEA, from the committee of conference, submitted the following
                  CONFERENCE  REPORT
                      [To accompany S.5]
  The committe of conference on the disagreeing votes of the two
Houses on the amendment of the House to the bill (S. 5) to prevent
the adulteration, misbranding, and  false advertisement of food,
drugs, devices, and cosmetics in interstate, foreign,  and other
commerce subject to the jurisdiction of the United States,  for the
purposes of safeguarding the public health, preventing deceit upon
the purchasing public, and for other purposes, having met, after full
and free conference, have agreed to recommend and do recommend
to their respective Houses as follows:
  That the Senate recede from its disagreement to the amendment
of the House and agree to the same with an amendment as follows:
  In lieu of the matter proposed to be inserted by the House amend-
ment insert the following:
                  CHAPTER I—SHORT TITLE
  SECTION 1. This Act may be  cited as the Federal, Food, Drug,
and Cosmetic Act.
     *******

                                                       [p-1]
TOLERANCES FOR POISONOUS INGREDIENTS IN FOOD AND CERTIFICATION
                  OF COAL-TAR COLORS FOR FOOD
  SEC. 406 (a) Any poisonous or deleterious substance added to
any food, except where such substance is required in the production
thereof or cannot be avoided by good manufacturing practice shall
be deemed to be unsafe for purposes of  the application of clause
(2) of section 402  (a); but when such substance is so required or
cannot be so  avoided, the  Secretary shall promulgate regulations
limiting the quantity therein or thereon to such extent as he finds
necessary for the  protection of public  health, and any quantity
exceeding the limits so fixed shall also be deemed to be unsafe for
purposes of the application of clause (2)  of section 402 (a). While
such a regulation  is in effect limiting the quantity of any such

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STATUTES AND LEGISLATIVE HISTORY                         507

substance in the case of any food, such food shall not, by reason of
bearing or containing any added amount of such substance,  be
considered  to be adulterated within the meaning of clause (1)  of
section 402 (a). In determining the quantity of such added sub-
stance toJte tolerated, in or on different articles of food the Secre-
tary shall take into account the extent to which the use  of such
substance is required or cannot be avoided in the production of each
such article, and the  other ways in which the consumer  may  be
affected by the same or other poisonous or deleterious substances.
   (b) The Secretary shall promulgate regulations providing for
the listing  of coal-tar colors which are harmless and suitable for
use in food and for the certification of batches of such colors, ivith
or without harmless diluents.                              [p. 10]
      CHAPTER VII—GENERAL ADMINISTRATIVE PROVISIONS
                  REGULATIONS AND HEARINGS
  SEC. 701. (a)  The authority to  promulgate regulations for the
efficient enforcement of this Act, except as otherwise provided  in
this section, is hereby vestedin the Secretary.
   (b) The Secretary  of the Treasury and the Secretary of Agri-
culture shall jointly prescribe  regulations for the efficient enforce-
ment of the provisions of section 801, except as otherwise provided
therein. Such regulations shall be promulgated in such manner and
take effect at such time, after due notice, as the Secretary of Agri-
culture shall determine.
   (c) Hearings authorized or required by this Act shall  be con-
ducted by  the Secretary or such  officer or employee as  he may
designate for the purpose.
   (d) The definitions and standards of identity promulgated  in
accordance with the provisions of this Act shall be effective for the
purposes of the enforcement  of this Act, notwithstanding such
                                                        [p. 16]
definitions  and standards as may be contained in other laws of the
United States and regulations promulgated thereunder.
   (e) The Secretary, on his own initiative or upon an application
of any interested industry or substantial portion  thereof stating
reasonable grounds therefor,  shall hold a public hearing  upon a,
proposal to issue, amend, or repeal any regulation contemplated  by
any of the  following sections  of this Act: 401, 403, (j), 404 (a),
406 (a) and (b), 501 (b), 502 (d), 502 (h), 504, and 604. The Secretary
shall give appropriate notice of the hearing, and the notice shall
set forth the proposal in general terms and specify the time and
place for a public hearing  to be held thereon not less than thirty
days after the date of the notice, except that the public hearing  on

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508                            LEGAL COMPILATION—PESTICIDES

regulations under section 404 (o>) may be held within a reasonable
time, to  be  fixed by the Secretary, after notice thereof. At the
hearing any interested person may be heard in person or by his
representative. As soon as practicable after  completion  of the
hearing,  the Secretary shall by order make public his action in
issuing, amending, or repealing the regulation or determining not
to take such action. The Secretary  shall  base  his order  only on
substantial evidence of record at the hearing and shall set forth as
part of the  order detailed findings of fact on which the order is
based. No such order shall take effect prior to the ninetieth day
after it is issued, except that if the Secretary finds that emergency
conditions exist necessitating an earlier effective date, then the
Secretary shall specify in the order his findings as to such condi-
tions and the order shall take effect at such earlier date as the
Secretary shall specify therein to meet the emergency.
   (f)  (1) In a case of actual controversy as to  the validity of any
order under subsection (e), any person who  will  be adversely
affected by such order if placed in effect may at any time  prior to
the ninetieth  day  after such order  is issued file a petition  with
the Circuit  Court  of Appeals of the United States for the circuit
wherein  such person resides or has his principal place of business,
for a judicial review of such order. The summons and petition may
be served at any place in the United States. The  Secretary, prompt-
ly upon service of the summons  and petition, shall certify and file
in the court the transcript of the proceedings  and the record on
which the Secretary based his order.
   (2) If the  petitioner applies to the court for leave to adduce
additional evidence, and shows to the satisfaction of the court that
such additional evidence is material and that there were reasonable
grounds for the failure to adduce such evidence in the proceeding
before the Secretary, the court may order such  additional evidence
(and evidence is rebuttal thereof) to be taken before the Secretary,
and to be adduced upon the hearing, in such manner and  upon
such terms  and conditions as to the court may seem proper. The
Secretary may modify his findings as to the facts,  or make new
findings, by reason of the additional evidence so taken, and he shall
file such modified or new findings, and his recommendation, if any,
for the modification or setting aside of his original order, with the
return of such additional evidence.
   (3) The  court shall have jurisdiction to affirm the order,  or to
set it aside  in whole or in part, temporarily or permanently. If the
order of the Secretary refuses to issue, amend, or repeal a regula-
tion and such order is not in accordance with  law the court shall

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STATUTES AND LEGISLATIVE HISTORY                        509

by its judgment order the Secretary to take action, with respect to
such regulation, in accordance with law. The findings of the Secre-
tary as to the facts, if supported by substantial evidence, shall
be conclusive.                                         [p. 17]
   (4)  The judgment of the court  affirming  or setting aside, in
whole or in part, any such order of the Secretary shall be final,
subject to review by the Supreme Court of the United States upon
certiorari or certification as provided in sections 239 and 240 of the
Judicial Code, as amended.
   (5) Any action instituted under this subsection shall  survive
notwithstanding any change in the person occupying  the office of
Secretary or any vacancy in such office.
   (6)  The remedies provided for in this subsection shall be in addi-
tion to and not in substitution for any other remedies provided
by law.
   (g) A certified copy of the transcript of the record and proceed-
ings under subsection (e) shall  be furnished by the Secretary to
any interested party at his request, and payment of the costs thereof,
and shall be admissible in any criminal, libel for  condemnation,
exclusion of imports, or other proceeding arising under or in
respect  to this Act, irrespective  of whether proceedings with
respect to the order have previously been instituted or become final
under subsection (f).                                  [p. 18]
  And the House agree to the same.
  That the Senate recede from its disagreement to the amendment
of the House to the title and agree to the same.
                               CLARENCE F. LEA,
                               VIRGIL CHAPMAN,
                               WILLIAM P. COLE, Jr.,
                               SAMUEL B. PETTENGILL,
                               HERRON PEARON,
                               CARL E. MAPES,
                               B. CARROLL REECE,
                               CHARLES A. HALLECK,
                          Managers on the part of the House.
                               ROYAL S. COPELAND,
                               JOSIAH W. BAILEY,
                               BENNETT CHAMP CLARK,
                               ERNEST W.GIBSON,
                               A. H. VANDENBERG,
                               CHAS. L. MCNARY,
                               HATTIE W. CARAWAY,
                          Managers on the part of the Senate.

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510                           LEGAL COMPILATION—PESTICIDES

    STATEMENT OF THE MANAGERS ON THE PART OP THE HOUSE
  The managers on the part of the House at the conference on the
disagreeing votes of the two Houses on the bill (S. 5) to prevent
the adulteration,  misbranding, and false advertisement of food,
drugs, devices, and cosmetics in interstate, foreign, and other com-
merce subject to the jurisdiction of the United  States, for the
purposes of safeguarding the public health, preventing deceit upon
the purchasing public, and for other purposes, submit the follow-
ing statement in explanation of the effect of the action agreed
upon  by the conferees  and recommended in  the  accompanying
conference report:
  The bill as agreed to in conference is substantially  the same  as
the amendment of the House  to the Senate bill.  The important
changes from the House amendment are as follows:
  Injunctions to restrain violations.—The bill as agreed to in con-
ference permits injunctions to restrain violation of the act in the
following respects in which the House amendment did not provide
for injunctions:
   (1) Manufacture within any Territory  (including the District
of Columbia) of any food, drug, device, or cosmetic that is adulter-
ated or misbranded.
   (2) Tampering with the labeling of, or doing any other act with
respect to, a food, drug, device, or cosmetic, if such act is  done
while the article is held for sale after shipment in interstate  com-
merce and results in such article being misbranded.
   (3)  Using, on the labeling of a drug or in advertising  a drug, a
representation  that an  application  with respect to such drug is
effective under the "new drug" section, or that such drug complies
with the provisions of such section.
  Permission for multiple  libels.—Under  the  House amendment
multiple libels  in cases  of  misbranding are permitted when the
Secretary has probable cause to believe that the misbranded article
is dangerous to health or that the labeling of the misbranded article
is, in a material respect, false or fraudulent. Under the conference
agreement such libels are permitted when the Secretary from facts
found, without hearing, by him or any officer  or employee of the
Department  of Agriculture,. has probable cause  to  believe  that
the misbranded article is dangerous to health or that the labeling
of the misbranded article is fraudulent,  or would be in a material
respect misleading to the injury or damage of the purchaser  or
consumer.
   Change  of venue  when  only  one libel  permitted.—Under the
House amendment where the number of libels for misbranding is

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STATUTES AND LEGISLATIVE HISTORY                         511

limited to one proceeding, such proceeding shall on application of
the claimant seasonably made be removed for trail to a district in
a State contiguous to the State of the claimant's principal place of
business; such district to be  stipulated between the parties, or, if
they cannot agree, to be designated by the court to which the appli-
cation is made. Under the conference agreement the  change of
                                                       [p.22]
venue is to any district agreed provide the consumer with adequate
information as to its identity within the meaning of certain pro-
visions of the Federal Alcohol Administration Act. This provision
is omitted by the conference agreement.
  Variations in strength, quality, and purity of official drugs.—
The House amendment denned drugs recognized in official compen-
dia as adulterated if they differ in strength, quality, or purity from
the official standard, but permitted difference in strength on condi-
tion that the difference from the standard be plainly stated on the
label. The conference agreement permits, on the  same condition,
differences also in quality and purity.
  Identity of  drugs.—Under the House amendment a  drug or
device which does not purport  to be and is  not represented as a
drug  recognized in an official compendium is considered  adulter-
ated if its identity differs from that which it purports or is repre-
sented to possess. This provision is  omitted under the conference
agreement as  surplusage since in the case of these drugs  and
devices, as well as in the case  of drugs  recognized in an official
compendium, if the identity differs from that which it purports or
is represented to  possess, they would either be considered to be
adulterated  under section 501  (d)  or misbranded under section
502, or both.
  Drugs or devices dangerous to health when used in accordance
with  the label.—The conference agreement transfers from  the
adulteration section to the misbranding  section the provision of
the House amendment relating to drugs and devices  which  are
dangerous to health when used in the dosage or with the frequency
or duration prescribed, recommended, or suggested in the labeling.
  Label disclosure of ingredients of drugs.—The House  amend-
ment and the bill  as agreed to in conference requires the label of
all drugs, except those recognized in official compendia, which are
made with two or more active  ingredients, to bear the names of
each  active  ingredient, unless  exempted by regulations  on  the
ground that compliance is impracticable. The conference agree-
ment omits a provision of the House amendment which exempted
all drugs from this requirement, except with respect to alcohol, if

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512                            LEGAL COMPILATION—PESTICIDES

their composition had been disclosed to the Secretary, but adds a
provision, not  found in the House amendment, also requiring
label disclosure of the name and quantity or proportion of  any
bromides, ether,  chloroform,  acetanilid,  acetphenetidin,  amido-
pyrine, antipyrine, atropine, hyoscine, hyoscyamine, arsenic digi-
talis, digitalis glucosides, mercury, cuabain, strophanthin, strych-
nine, thyroid,  or any  derivative or preparation  of any  such
substances.
  Warnings  against misuse  of drugs and  devices.—Under the
House amendment  a drug or  device is  considered misbranded
unless its labeling bears such warnings against use in pathological
conditions or by children where its use may be dangerous to health
or against unsafe dosage or methods or duration of administration
or application,  in such  manner and form as the Secretary finds
necessary for the protection of users and by regulations prescribes.
Under the conference agreement a drug or device  is considered
misbranded  unless its labeling bears such adequate warnings in
the cases specified in the House amendment as are necessary for
the protection of users.
  Packing  of drugs.—Under  the House  amendment an article
purporting to be a  drug the name of which is recognized in an
                                                       [p. 24]
official compendium is deemed  misbranded if not packaged  and
labeled as prescribed in the compendium. The  conference agree-
ment permits the method of packing to be modified with  the con-
sent of the Secretary.
  Judicial review of regulations.—Judicial review of the Secre-
tary's order putting into effect a regulation under section 701 (e)
under the conference agreement is  had in  the circuit court of
appeals of the circuit of the residence or principal place of busi-
ness of the person aggrieved. Under the House amendment review
is in the United States district court.
  The conference agreement gives the court jurisdiction to affirm
or set aside  the order, in whole or in part, and the order may be
set aside temporarily or permanently. The conference agreement
also gives the court the express power to require the Secretary to
take action in accordance with law when there is error in an order
of the Secretary which refuses to issue, amend, or repeal a regula-
tion of the Secretary. The findings of the Secretary, as to facts, if
supported by substantial evidence, are conclusive on the court.
  The type  of  judicial  review  provided in  the agreement is as
broad as the Constitution permits in  the case of review by a con-
stitutional court. It is to be noted that the function of the Secretary

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STATUTES AND LEGISLATIVE HISTORY
                                                             513
 in making regulations and orders to carry them out is legislative
 in character. The bill as agreed to in conference retains the provi-
 sions of the House bill in section 701 (e) which lays down the rules
 under which the regulations may be formulated and issued. Notice,
 hearing, and findings are required, and the Secretary must base an
 order only on substantial evidence of record. Judicial review of the
 Secretary's action to determine if there has been compliance with
 such  requirements, whether or not there was  substantial  evidence
 to support the finding, and, of course, upon  constitutional  ques-
 tions, may be had.
  Under the conference agreement additional  evidence  is to be
 taken before the Secretary.  The provision in the House amend-
 ment for an alternative of taking such evidence before the court or
 a master is omitted.
  Express provision is made under the conference agreement, for
 review by the Supreme Court of the United States upon certiorari
 or certified questions.
  The provision of the House amendment under which the reme-
 dies provided for are in addition to, and not  in substitution for,
 other legal remedies, is retained.
                                CLARENCE F. LEA,
                                VIRGIL CHAPMAN,
                                WILLIAM P.  COLE, Jr.,
                                SAMUEL  B.  PETTENGILL,
                                HERRON PEARSON,
                                CARL E. MAPES,
                                CHARLES A.  HALLECK,
                                B. CARROLL REECE,
                            Managers on the  part of the House.
                                                        [p. 25]
           1.2b (5)  CONGRESSIONAL RECORD
1.2b (5) (a)  VOL. 81 (1937), March 8, 9: Debated, amended and
passed Senate, pp. 1962, 2010,2013-2014,2016,  2018-2019
                               mote the welfare of the human family
                               —the standard of  quality is author-
                               ized for canned food only. The pend-
                               ing bill proposes that there  shall be a
                               standard of identity for all  foods and
                               a standard of  quality.
                                                       [p. 1962]
                                 The next amendment was,  under the
                               subhead "Tolerances for poisonous in-
                               gredients  in food and certification of
                               coal-tar colors for food", in section 15,
  Mr. COPELAND.
  We come then to the matter of food.
The new bill provides for the promul-
gation of standards of identity and a
reasonable  standard of  quality for
food. Under  the  present law, the
McNary-Mapes  Act—the only  far-
reaching and useful enactment on this
subject which has  done much to pro-

-------
514
LEGAL COMPILATION—PESTICIDES
paragraph  (a), page 26, line 14, after
the word "Any", to strike out "conta-
minating" and  the comma and insert
"contaminating"; in line 22, after the
word "health",  to  insert  "and  any
quantity exceeding the limits so fixed
shall also be  deemed to be unsafe for
purposes of the application of section
11 (a)"; and in line 25, after the word
"the", to strike out "quality" and in-
sert "quantity", so as to make the par-
agraph read:
  SEC. 16. (a) Any contaminating poisonous, or
deleterious substance added to any food, except
where such substance is required in the produc-
tion thereof or cannot be avoided by good manu-
facturing practice shall be deemed to be unsafe
for purposes  of the application of section 11
(a);  but when such substance is so required or
cannot be so avoided, the Secretary is autho-
rized  to promulgate regulations limiting the
quantity therein or thereon to such extent as
he finds  necessary  for the protection of public
health, and any quantity exceeding the limits
so fixed  shall also  be deemed to be unsafe for
purposes of the application of section 11  (a).
In determining the quantity of such added Bub-
stance to protect the public health, and after
the effective date of such regulations, and dur-
ing such temporary period, no person shall in-
troduce into interstate commerce any such food
manufactured, processed, or packed by any
such  manufacturer, processor or  packer, un-
less such manufacturer, processor, or  packer
holds a permit issued by the Secretary as pro-
vided by such regulations.

   The amendment  was agreed to.
                              [p.2010]
   Mr. MOORE. Mr. President, I offer
an amendment  in the nature of a sub-
stitute.
   The  PRESIDING OFFICER. The
amendment will be stated.
   The  LEGISLATIVE CLERK.  It is pro-
posed to strike  out all after the enact-
ing  clause  and to insert in lieu there-
of the following:
        *****

                              [p. 2013]
"* *  * Provided, however, That  all food stand-
ards  adopted by the Secretary  of Agriculture
for the purposes of this act shall be solely of
identity and minimum quality and shall be based
solely upon ascertainable scientific facts, which
standards shall not be enforced by the Secretary
until 1 year after promulgation, which shall be
not leas  than 3 months after public hearings
 have been held * * * at which all citizens having
 knowledge of such food products shall have a
 right to be heard."
   Mr. MOORE. Mr. President, I hesi-
 tate to  lengthen unduly  the  debate
 upon the  bill, but it is a measure of
 such vital importance and means so
 much to every citizen in this  Nation
 that it seems to me we can afford to
 .give it the most careful consideration.
                              [p.2014]
   Mr. COPELAND.  Mr.  President,  I
 am  so devoted to my friend the Sena-
 tor  from  New Jersey, and have been
 for  many years, that I wish  I might
 say without reservation that what he
 wants I want. If he really and truly
 wants what he has proposed, however,
 I must say that I do not  want it.
   In order  that the  record  may be
 clear, so that those who take pains to
 read the RECORD may have knowledge
 of the subject, I think there should be
 included here as  much of a  rebuttal
 as can  be made of the points made by
 the  able Senator in presenting his sub-
 stitute.
   His amendment, in the nature  of  a
 substitute, omits all  reference to cos-
 metics  and devices. It does not cover
 advertising. It leaves in  it the evil of
 the  "distinctive names" which are giv-
 en products; it permits the commercial
 trade  to  establish  standards  which
 must be enforced by  the  Department,
 and is otherwise evil.
                              [p.2016]
   Mr. President, I wish the RECORD to
 show that the amendment or substi-
 tute submitted by the Senator  from
 New Jersey has been properly  and
 fully considered by the committee and
 by the  Senate. I also wish to have the
 RECORD  show, in order that those who
 read it  may know, that if the  amend-
 ment proposed were  adopted it would
 omit the  following  important provi-
 sions :
        *****
   Second.  Prohibition of  addition of

-------
 STATUTES AND LEGISLATIVE HISTORY
                                  515
poisons to food, except where such ad-
dition is required or cannot be avoided
in  production; authorization to  limit
to  point of safety added poisons that
are required  or cannot be avoided.
   Mr. MOORE. Mr. President, I mere-
ly wish to say that I appreciate  all
the Senator from New York has said.
I shall not detain the Senate any long-
er, except to say that I am thoroughly
convinced of the accuracy of my state-
ments and reiterate them.
   The  PRESIDING OFFICER. The
question is on agreeing to the amend-
ment in the nature of a substitute  of-
fered by the Senator from New Jersey
[Mr. MOORE].
   Mr. MOORE. I call for the yeas and
nays.
   The yeas and nays were not ordered.
   The amendment,  in the nature of a
 substitute, was  rejected.
                              [p. 2018]
   Mr. MOORE. Mr. President, I move
 to recommit the bill  to the committee
 for further consideration, in order to
 give the  objectors to whom I  have
 referred a chance to be heard.
   The  PRESIDING  OFFICER.  The
 question is on agreeing to the motion
 of the Senator from New Jersey.
   The motion was rejected.
   The   PRESIDING  OFFICER.  Is
 there any further amendment to be of-
 fered?  If not, the  Secretary, without
 objection, will be authorized to make
 the necessary  clerical changes in the
 sections and subdivisions.
   The question now is on the engross-
 ment and third reading of the bill.
   The bill (S. 5) was ordered to be en-
 grossed for a third reading,  read the
 third time, and passed.
                              [p. 2019]
  1.2b (5) (b)   VOL.  83 (1938), May 31
  debated, pp. 7771-7778, 7780-7781
         Made Special Order and
        THE FOOD AND DRUG BILL
   Mr. O'CONNOR of  New York.  Mr.
Speaker, I call  up  House  Resolution
512.
   The Clerk  read  the resolution, as
follows:
           House Resolution 512
  Resolved, That upon the adoption of this reso-
lution it shall  be in order to move that the
House resolve itself  into the Committee of the
Whole House on the state of the Union for the
consideration of S. 6, "An  act to  prevent the
adulteration, misbranding, and false advertise-
ment of food, drugs, devices, and cosmetics in
interstate, foreign, and other commerce subject
to the jurisdiction of the United States, for the
purposes of safeguarding the public health, pre-
venting deceit upon  the purchasing public, and
for other  purposes," and all points of order
against said act are hereby  waived. That after
general debate, which shall be confined to the act
and continue not to exceed 2 hours, to be equally
divided and controlled  by  the chairman  and
ranking minority member of the Committee on
Interstate and Foreign Commerce, the act shall
be read for amendment under the 6-minute rule.
It shall be in  order to  consider without the
intervention of any  point of order the substi-
tute amendment recommended by the Commit-
tee on Interstate and Foreign Commerce, and
such substitute for the purpose of amendment
shall be considered under the 5-minute rule as
an original act. At  the conclusion  of such
consideration the Committee shall rise and re-
port the act to the  House -with such amend-
ments as  may  have  been adopted,  and the
previous question shall be considered as ordered
on the act and the amendments thereto to final
passage without intervening motion except one
motion to recommit with or without instructions.
   Mr. O'CONNOR of New York. Mr.
Speaker,  I yield 30 minutes to the gen-
tleman from  Michigan  [MR MAPES].
   Mr. Speaker, this is a rule  for the
consideration of the Food and Drugs
Act, a matter which has been before
us for many years. It is  an open rule
permitting amendments, and I reserve
the balance of my time.
                             [p. 7771]
   Mr. MAPES.  Mr. Speaker,  I yield
myself 20 minutes.  I  am opposed  to
the committee substitute as reported
and am  opposed  to the  rule.  Unless
the bill is materially modified I shall
vote against it. The particular provi-

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516
LEGAL COMPILATION—PESTICIDES
sion in the bill to which I am opposed
is  the so-called court-review section,
paragraph (f)  of  section 701. That
does not mean that I am  opposed to
any court review. Not at  all. Every-
one concedes the right of an aggrieved
person to a court review,  or his  day
in court, but not such a court review
as the one provided for in the commit-
tee substitute.  I particularly empha-
size that fact. A discussion of the mer-
its of the legislation will more proper-
ly come  up under the general debate
on the bill, but in this debate on the
rule I want  to call  the attention of
the House to some  of  the opposition
to the legislation as reported by the
committee.
  Mr.  ROBERTSON.  Mr.  Speaker,
will the gentleman yield?
  Mr.  MAPES. Yes.
  Mr.  ROBERTSON.  Will  my  col-
league advise the House whether or
not he supported, when the bill came
over from the  Senate,  the  court-re-
view section that the  Senate had writ-
ten into this bill, or did he oppose  any
provision  for  a court review?
  Mr.  MAPES.  I  do  not remember
that that was  a controversial issue
until this came up. If  the gentleman
from  Virginia  has  any information
about that, I  would be pleased to have
him  disclose  it. Personally,  I  do  not
recall  that the  question  came up in
any controversial way.
  Mr.  ROBERTSON. The best law-
yers the International Apple Associa-
tion and the other producers  of fruits
and  vegetables  can get render it as
their  deliberate  opinion that  it is
highly essential for the protection of
those who must use spray in the pro-
duction of fruit  and  vegetables  to
have the privilege of going into court
to test the reasonableness of the de-
partmental regulations.
  I understand  that my colleague ad-
mits that they should have the right
to go into court to test the question of
 reasonableness. Let us take the case
 of  a Pacific  Coast producer  in  the
 State of Washington. His apples have
 been taken up under a regulation that
 permits  and allows tolerance,  say, of
 0.01, unsupported by any medical tes-
 timony,  any scientific fact or  data to
 establish the fact that to exceed such a
 tolerance would be injurious  to hu-
 man health. My friend tells the House,
 as  I understand, that that apple pro-
 ducer shall not have the right to test
 that regulation in his own State but
 must come to the District of Columbia
 in  order to litigate that question  al-
 though this bill reserves the right to
 the Department of  Agriculture  to
 seize the apples  and  litigate  them
 wherever it  sees fit  throughout the
 United States. Why should we  provide
 just one court  for the citizen of the
 United States to bring his suit  and
 yet allow the Government to bring its
 case anywhere it pleases?
  Mr. MAPES.  The gentleman  from
 Virginia, frankly,  has put his finger
 upon the real issue involved  in  this
 court-review  section. It is  a question
 for the House to decide whether it is
 going  to follow the recommendation
                            [p. 7772]
 of  the apple-growers'  association in
 writing the section or the recommen-
 dation of the Food and Drug  Admin-
 istration. The gentleman from  Virgin-
 ia  very accurately has put his finger
 upon the point in controversy.
  The gentleman  from Virginia, of
 course, would not claim that any ad-
 ministrative authority would pass reg-
 ulations or  issue orders without any
 evidence, as  he has indicated might
 be  done. If  any  administrative officer
 did that, the court would protect those
 affected,  as  it  did  recently  in  the
 stockyards case.
  I had not  intended to go into the
 merits  of  the section in  this debate
 on  the rule, but as long as the gentle-
 man from  Virginia  has  raised  the
 question, the  House may as well un-
 derstand what  is involved.

-------
 STATUTES AND LEGISLATIVE HISTORY
                                517
   Mr. SIROVICH. Mr. Speaker, will
the gentleman yield?
   Mr. MAPES. I yield.
   Mr. SIROVICH.  I  think the gen-
tleman is perfectly light in the conten-
tion he is bringing before the House,
because many years ago when we con-
sidered the food and  drug  bill  we
learned that in the  States  of Oregon
and Washington the apples had been
sprayed  with  a lead-arsenic prepara-
tion that was  more than the tolerance
allowed.  The authorities in  Massachu-
setts arrested  six or eight  trainloads
of apples that had more lead arsenic
than the law permitted. These apples
were thrown into the harbor at Bos-
ton.  England  and  France have not
permitted many  of  our apples  to  go
into these countries because the apples
contained more lead and arsenic than
the tolerance law allowed.  Something
should be done to protect the consum-
ing public against having their gastro-
intestinal tracts  disturbed  by  these
lead-arsenic preparations.
   Mr. MAPES. Mr. Speaker, I  thank
the gentleman  from Virginia and the
gentleman from New York for getting
the  issue   so  squarely before  the
House, much better than I could have
done  without their  assistance.
   Mr. ROBERTSON. Will the gentle-
man yield for  a  very  brief question?
   Mr. MAPES. I yield to the gentle-
man.
   Mr. ROBERTSON. Has the gentle-
man ever heard of a single case in the
history of the United States, either in
medical science or any other science,
where anybody  has  been  poisoned
through  eating an  apple with undue
spray  residue  on it?  The  gentleman
cannot cite  one case.
                            [p.7773]

*****
Mr.  LEA. I should like to call atten-
tion briefly  to some features of the
bill  that  increase  the  scope of  the
present food and  drug law. These fea-
tures include control over adulteration
and misbranding  of  cosmetics  and
therapeutic devices. There is  a pro-
vision  that drugs intended for diag-
nosing illness or for remedying under-
weight or overweight or for otherwise
affecting bodily structure  or function
are subject to  regulation.  New drugs
are required to be adequately  tested
for safety before they are placed on
the market.
  Foods that are dangerous because of
naturally  contained   poisons  rather
than added poisons are brought under
regulation. The addition of poison to
foods is prohibited except  where such
addition is necessary  or  cannot  be
avoided; and in such cases tolerances
are provided limiting  the  amount of
added poison to the extent necessary
to safeguard the public health.
  At this point I call attention to the
question discussed a while ago as spray
residue  on  fruit. This  bill  provides
that the Secretary of Agriculture shall
have authority after proper  hearing
to prescribe the extent of  spray resi-
due that  shall be permissible. Then
the regulation  is enforceable.  There
is nothing in  this bill  that fails to
protect the public health against spray
residue.  In  the   present  law  there
is no such authority in the Secretary
of Agriculture. The  only  method of
prosecuting in connection with  that
condition  at the  present  time is to
treat spray residue as an adulteration.
  There  is no authority by which  he
can legally adopt regulations. He must
resort  to the  criminal  procedure  for
adulteration. If enacted, this bill would
give him the right after proper hear-
ings to adopt regulations prescribing
limits.  Then a  court review would  be
permitted, and if the interested parties
claimed  the  regulation  was  invalid,
they would have the right to go into
court and have that question consid-
ered.
  Mr. SIROVICH. In other words, the

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518
LEGAL COMPILATION—PESTICIDES
court would pass on the toxicity of the
residue?
  Mr. LEA. The  court would pass on
the validity of the regulation.  If the
regulation was found valid, that would
settle the question and the final deci-
sion would become the settled law of
the case.
  Mr.  SIROVICH. That means  the
court would have to call upon all kinds
of  medical authority to  counteract
what the Secretary of Agriculture had
already done.
  Mr. LEA. No; the finding is made
based on the record made at the hear-
ing  before the   Secretary, and  is
confined to that  record, unless  for
good cause  shown  additional  evi-
dence is received. If there is substan-
tial evidence to justify the Secretary's
finding the case is closed.
  Where the  other provisions  of the
law are not effective to control danger
to health arising from bacterial con-
tamination of food, temporary license
restrictions can be imposed until the
difficulty is corrected.
  This is largely aimed at contagious
diseases  that  sweep over the country
at times, where factories  are  in the
affected territory. In order to  reduce
the menace to the consuming public
over the country, the Secretary  can
require  permits and  inspect the sus-
pected factory in order to be sure that
its products do not carry contagion to
the people  of the country.
  Definitions  and standards of iden-
tity are provided  under  which  the
integrity of food products can be ef-
fectively maintained.
  Informative labeling of foods as to
quality  and composition  is  required
for the information and guidance of
consumers. Emphasis is placed on the
informative labeling of special dietary
foods,  such as that  for infants  and
invalids.
  The provision under which proceed-
ings could  be brought against  falsely
labeled  patent medicines  only  upon
evidence to prove that the manufac-
 turer  knew  his  labels were  false  is
 eliminated.
   In other words, at the present time
 it is necessary to prove criminal intent
 before you can give the consumers the
 benefit of  this protection.  Under this
 bill we look to consumer protection as
 the  primary  consideration  and make
 secondary  the question of intent with
 which the article was given out to the
 public.
                           , [p. 7774]
   Mr.  LEA.  Mr.  Chairman,  I yield
 myself 10 additional minutes. I ask the
 attention of the Committee to the mat-
 ter of  a court review. The bill as  it
 passed the Senate provided for a court
 review, and the bill as it is presented
 to the House provides for a court re-
 view,  and,  in my judgment,  a very
 much better provision than  the Senate
 bill.  But  let us  consider  the back-
 ground. We have the most complicated
 system of  government in this country
 that the world has ever known. A very
 important feature of it has developed
 during the last  20 or 30 years,  and
 that is the establishment  of bureaus
 clothed  with the authority to make
 regulations and govern the  conduct  of
 the  American people.
   Those regulations have the force  of
 law, the same as if enacted by the
 Congress. In making those regulations
 the  departments act as the agents  of
 Congress.  A man under this bill, if it
 is enacted into law, may be  sent  to
 prison for as much as 3 years because
 he has violated  a  regulation  estab-
 lished by the Secretary of Agriculture.
 That is only one of many instances.
   Mr.  REES of  Kansas.  Mr. Chair-
 man, will the gentleman yield?
   Mr.  LEA.  I shall have  to  decline,
 because I  have only 10 minutes. We
 have  to a startling degree  an irre-
 sponsible making of laws in the name
 of Congress,  without fair opportunity
 for  thorough consideration,  without
 the  country  knowing who  is responsi-
 ble  for them, written by  people the
 country does  not know, and frequently

-------
STATUTES AND LEGISLATIVE HISTORY
                                519
with little opportunity to assure that
the regulations are just or wise.
   In my  judgment one of the great-
est menaces to popular  government
in  this country is  this  vast struc-
ture of bureaus. I am not condemn-
ing it. I  think  it is necessary under
our   system  of  government.  Our
State lines have become more or less
eliminated by the changes in our eco-
nomic conditions. It has been inevitable
that we must exercise more power here
in Washington  than in  the  decades
gone  by.  We  must accept that fact;
but we must not ignore the fact that
the people deserve protection against
arbitrary  and capricious  government,
against inexperience and ignorance  by
the  departments  that  exercise  this
semilegislative authority.
  In this bill we give a broad extension
of authority to the Secretary of Agri-
culture, and in that respect it is one of
the broadest bills ever passed by this
Congress  in ordinary peacetimes.
  Mr.  TOWEY. Mr. Chairman, will
the gentleman yield?
                            [p. 7775]
  Mr. LEA. I am sorry, but I have not
the time.  We  give more authority  to
the Secretary under  this bill than any
white man ought to  have unless with
it  there   is proper  restraint by the
courts. That is what we have tried to
do here. We have tried to provide  an
intelligent, fair, and  orderly system so
that the  departments will have rules
to go by,  so that they will know what
their  rights are and the people will
know what their rights are, and such
a procedure can be safely followed.
  The present law is very crude and
undeveloped.  The  administrative law
in this country has practically been
built up on court interpretation. It is
indefinite,  confusing, and conflicting,
not affording certainty to the depart-
ments or litigants. It is to remedy that
condition  that we propose this method
of restraint against  arbitrary action.
  The practical  problem presented  by
court review is whether  you  are  in
favor  of  a government by edict  or
whether you favor a  government  by
orderly procedure, a government under
which  the citizen shall have a right to
be heard and will get fair  considera-
tion before these regulations are en-
acted.  Recently the  Supreme  Court
rendered a decision in reference to the
question of what these departments
should do.
  This bill was written before  the
Supreme Court decision was handed
down,  but the bill does in effect what
the Supreme Court said these depart-
ments  ought to do without any legisla-
tion by the Congress.  The Supreme
Court  said the  maintenance of proper
standards on the part of administra-
tive agencies  in the  performance  of
their quasi-judicial functions is of the
highest importance  and  in no way
cripples or embarrasses the exercise
of their appropriate authority. On the
contrary it is to their  interest, for as
we said at the  outset  if these multi-
plying agencies deemed to be necessary
in our  complex  society are to serve the
purpose for which they were created
and  endowed with vast powers, they
must accredit  themselves  in accord-
ance with the cherished judicial  tradi-
tion embodying the basic conception of
fair play.
*        *        *        *        *
  Mr.  LEA. Mr.  Chairman, I yield
myself 2 additional minutes.
  Mr.  Chairman, there is  one  other
objective we have not met and that is
the court that  shall have jurisdiction
to try  the case. As  I understand  it,
the Secretary wants all cases brought
to trial in  the city of Washington.
The committee  thought these  cases
ought to be tried like other cases, that
the  citizens throughout the country
ought to have the right of trial at the
place where they reside or where their
principal place of business is located.
When  the  Department  sues an indi-
vidual  citizen  it sues  him  wherever
jurisdiction may be had.  The  mem-

-------
520
LEGAL COMPILATION—PESTICIDES
bers of  the committee  reached the
conclusion  that the  citizen of  this
country ought to have the same right
in reference to this case  as in other
important  cases  and  have  the  case
tried in the district where he resides
or has his principal place of business.
  Mr. MARTIN of Colorado. Will the
gentleman yield?
  Mr.  LEA. I yield to the gentleman
from  Colorado.
  Mr. MARTIN of Colorado. I thought
we  unanimously agreed on that prop-
osition. Is there any difference?
  Mr. LEA. What is that?
  Mr. MARTIN of Colorado. I thought
the committee unanimously  agreed on
that proposition.
  Mr. LEA. We agreed that the local
court should be the place of trial, but
objection is made to that here, and that
seems to be the principal point  of dis-
pute;  that  is, whether  anyone  who
wants to test this must come to Wash-
ington or whether or not they will be
given the privilege of trial in the dis-
trict courts  throughout the country.
  Mr.  Chairman,  the Members  may
have read the minority report  in this
case. I think it  is unfair  and unwar-
ranted and has a degree of misleading
contentions  that is  regrettable. In the
first place, one of these objections that
was made by the Department we cor-
rected  before  the  bill was reported.
The Secretary's letter was  written
before this correction was made.  It
is inserted in the minority report and
has been -circulated throughout the
United States and  has been made the
basis of propaganda on the theory that
the thing which we corrected  is still
in the bill.
                            [p. 7776]
            Mr. MAPES
*****
  Those  are the only two differences
between the draft which was submitted
to the Secretary before the  committee
made its report and the draft as it ap-
pears before you today. Furthermore,
 of  course, as a practical  matter the
 Members of the House know that this
 new draft probably was submitted to
 the Secretary of Agriculture and the
 Food and Drug1 Administration before
 the minority report was drawn up.
 *****
  Although I have not  examined  all
 the statutes, I am advised,  and it is
 my opinion, that there is no law, on the
 statute books now of that exact word-
 ing applying to any other  commission
 or  any administrative agency in the
 Government. It is a unique provision,
 as  far as I am  advised.  The  usual
 provision is that  if, upon an appeal
 to the court, the court finds that mate-
 rial evidence has  developed  since the
 hearing  before  the  commission  or
 administrative  officer, the  court shall
 remand the case to the commission or
 administrative officer for further testi-
 mony.  I know of no case where the
 court itself is allowed to open up the
 case and take  testimony.  This  is the
 point involved here.
                            [p. 7777]
   Mr. LEAVY.
  Now, why does the gentleman find
 fault with the court being permitted
 in  this instance,  since  they make a
 judgment which is apt  to be a final
 one, to hear further testimony upon
 the part of either  of the parties?
 *****
  Mr. MAPES. If I have not made my
 position clear to the gentleman, I am
 afraid  I cannot do so.
  As has been pointed  out,  this bill
 provides  for  proceeding  before any
 district court. These other statutes to
 which  I have been  referring and ex-
 tracts from which I have read, provide
 that proceedings may be started in the
 Circuit Court of Appeals of the United
 States  within any circuit wherein the
 person aggrieved resides  or has his
 principal place of business,  or  in the
 Court  of Appeals of the  District of
 Columbia.
   This legislation goes to  the extreme

-------
STATUTES AND LEGISLATIVE HISTORY
                                521
in giving the  right to proceed in any
district court.
   Mr. BOILEAU.
  On page  58, at line 2 of the bill,
there is language which has, as its
effect, precluding the Secretary  of
Agriculture from fixing certain stan-
dards.  In  other  words,  under  the
philosophy of that section, the Secre-
tary  can fix  certain  standards,  but
states, as written now, that so far as
fresh fruits and vegetables  are  con-
cerned and so far as butter and cheese
are concerned the Secretary  shall not
fix standards. This was put in because
the  friends  of  the  dairy  industry
thought  this was the  way to protect
the cheese industry.
  The butter industry, as I understand
it, wants to remain in the  bill,  but
by putting the word "cheese" in there
it means the Secretary of Agriculture
cannot fix standards for cheese, and
the cheese industry  is unanimous in
wanting the  Secretary to  fix  these
standards. I think this will appeal to
your  good  common  sense when you
stop to realize the different  kinds of
cheese that are on the market, various
types of cheese, imported and domes-
tic; and, therefore, if we are to main-
tain high standards for cheese, it is
necessary that the Secretary of Agri-
culture retain the power that he now
has to fix standards  for cheese.
  Mr.  REECE  of   Tennessee.  Mr.
Chairman, it  is  not my purpose  to
undertake  a detailed  explanation  of
the bill.  The chairman made a very
excellent explanation. He also pointed
out the  importance  of an  extension
and strengthening of our present Food
and Drugs Act. A great deal of good
has been accomplished under the pro-
visions of the present act. The act has
been well administered.  The  present
head of the Pure  Food and Drug Ad-
ministration has been conscientious in
the administration of the act, and has
done a splendid job  for which he is
entitled to the thanks  of  the  people
of the United States. The  Pure Food
and Drug Administration  has  been
advised with intimately in the drafting
of the present bill. It greatly extends
the  power of the  Administration  in
dealing with this important subject,
and I  think I am justified in  saying
that very provision of  this act,  with
the exception of the court-review pro-
vision, substantially, meets  the views
of the Department of Agriculture. The
committee which has been considering
this legislation now for more  than 4
years has been very conscientious, and
I feel has not given such earnest and
sympathetic consideration to any other
legislation that has been before  it  as
it has to  this bill dealing  with food,
drugs, and cosmetics. I  fear that, due
to the emphasis which has been placed
on  the court review section  today,
there is a possibility that the House
might  be  misled  as to the bill  as  a
whole. As I said a moment  ago, this is
a far-reaching bill, and the Depart-
ment of Agriculture takes no exception
substantially to  any provision  in the
bill except the one which contains the
court review. Then, in that regard,  as
the  chairman of  the committee ex-
plained, it is not substantial, and he is
going to offer one amendment which
we  hope will go  a long way toward
meeting  the objection   against  that
provision.
                           [p. 7778]
Mr. REES of Kansas.
  It has been  30 years since the orig-
inal Pure  Food and Drug Act  was
passed.   Not  very many  important
amendments have  been  added to this
legislation during that period of time.
Even that measure passed in 1906 was
not written by experienced  draftsmen,
but by a group of well-intentioned ama-
teurs, who followed the New York law.
The original draft was  amended and

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522
LEGAL COMPILATION—PESTICIDES
changed before it was  seriously con-
sidered by Congress. Naturally,  such
a law did  not anticipate many modern
practices  and  changes,  and no provi-
sion was made for them. These omis-
sions have offered handicaps to public
protection. A  good many weaknesses
have been discovered by enforcement
officials in their efforts to  administer
the statute, and many defects  have
been brought  to light  by  reason  of
judicial interpretations.
           *****
  Conceding   that  there   are  many
worth-while features in this bill, why
weaken them  and make them ineffec-
tive by   including  other   provisions
which  have been pointed out by the
Members who  have preceded me? This
is just another piece of  hodgepodge
legislation. It has the appearance of
being a case where somebody  thought
we should have legislation on the ques-
tion of pure food and drugs, and so we
have been handed this afternoon, as I
view it, a measure which will make the
situation  much worse than if we did
not pass it at all.
                           [p. 7780]
Mr. LEAVY.
  Now  after the  apples  have  been
packed  and boxed  and are ready for
shipment, if an  inspector finds  that
the amount of spray carried is beyond
the tolerance, which is 0.018 grain per
pound of fruit, an infinitesimal  part
of the  apple, the  Government agent
then  requires the entire shipment to
be rewashed or  else  destroyed.  And
there is no  relief to the grower as he
is denied the  right  to question the
agent's  order,  even though it means
his financial ruin. We  are content and
willing  to comply with reasonable reg-
 ulations, but we insist that the regula-
 tion fixed is an arbitrary one, without
 foundation in fact, and, to prove that,
 a year ago the Pood and Drug Admin-
 istration seized  from the Washington
 Dehydrated  Food  Co.  thousands  of
 dollars' worth of dehydrated apples in
 St. Louis, and the owner said, "I have
 complied with your regulations," but
 the food and drug experts said  "no,"
 that  he had exceeded the  tolerance
 allowed him in lead, and they labeled
 those dehydrated apples. He went into
 the United States  District Court for
 the Eastern District of Missouri and
 the district court, after a full hearing
 was had before it without a jury, found
 there was  no  basis of fact for the
 Department  regulation   on   spray
 residue.
   Many of the most important health
 provisions in the bill are taken care of
 through  regulations.  The  scientific
 questions involved  are  too technical
 and too complex for Congress  to be
 expected to cope with them in detail.
 The usual procedure is  to leave the
 details  to  be filled in by regulations,
 as has been done in  the Interstate Com-
 merce Act  and  any  number  of  other
 highly  successful  statutes.  There  is
 nothing radical or revolutionary  about
 the sections in  S.  5, which authorize
 the Secretary of Agriculture to issue
 a regulation concerning, let us say, the
 amount of lead and arsenic which will
 be permitted on  apples  shipped  in
 interstate commerce. The bill provides
 that such a regulation  shall be issued
 only on the basis of the best  scientific
 advice and after a public hearing at
 which there is  ample  opportunity* to
 present all the evidence on both  sides.
 It is the only rational way of dealing
 with  the problem.
                            [p.  7781]

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STATUTES AND LEGISLATIVE HISTORY
                                   523
 1.2b  (5) (c)  Vol. 83 (1938), June 1: Amended and passed House,
 pp. 7889, 7891, 7893-7894, 7897-7898, 7903
        PURE FOOD AND DRUG BILL

  Mr LEA. Mr. Speaker, I move that
the House resolve itself into the Com-
mittee of the Whole House on the state
of the Union for the further considera-
tion of the bill  (S. 5) to prevent the
adulteration, misbranding,  and false
advertisement of food, drugs, devices,
and cosmetics  in  interstate, foreign,
and other commerce subject to the jur-
isdiction  of the United States, for the
purposes of  safeguarding  the  public
health, preventing deceit upon the pur-
chasing public, and for other purposes.
  The motion was agreed to.
                              [p. 7889]
  Mr. MAPES. Mr. Chairman,  I offer
an  amendment, which I  send  to  the
Clerk's desk.
  The Clerk read as follows :
  Amendment offered by Mr. MAPES: Page 83,
line 20, strike out all of paragraph (f), section
701, and insert the following:
  "(f)  In a case of actual controversy  as to
the validity of any order under subsection (e),
any person who will be adversely affected by
Such order if placed in  effect may obtain  a
review of  such order in the circuit court of
appeals of the United States within any circuit
where such person resides or carries on business
by filing in the court, within 60 days from the
date of such order, a written petition  praying
that the  order of the Secretary be set aside. A
copy of such petition shall be forthwith served
upon the Secretary, and thereupon the Secre-
tary shall certify and file in the court a  tran-
script of the entire record in the proceeding,
Including all the evidence taken and the report
and order of the Secretary. Upon such filing of
the petition and transcript the court shall have
jurisdiction of the proceeding and of the  ques-
tion determined therein, and shall have power
to make and enter upon the pleadings, evidence,
and proceedings set forth in such transcript a
decree affirming, modifying, or setting aside the
order of  the Secretary. The findings of the Sec-
retary as to the facts, if supported by evidence,
shall be  conclusive. If either party shall apply
to the court for leave to adduce additional evi-
dence and shall show to the satisfaction of the
court that such additional evidence is material
and that there were reasonable grounds for the
failure to adduce such evidence in the proceed-
ings before the  Secretary, the court may  order
such additional evidence to be taken before the
Secretary and to be adduced upon the hearings
 in such manner and upon such terms and con-
 ditions as the court may deem proper. The Sec-
 retary may modify his findings as to the facts,
 or make new findings, by reason of the addi-
 tional evidence so taken, and be shall file such
 modified or new findings, which, if supported
 by evidence, shall be conclusive, and his recom-
 mendation,  if any, for the modification or
 setting aside of his  original order, with the
 return of such additional evidence. The judg-
 ment and  decree of the court shall be final,
 except that the same shall be subject to review
 by the Supreme Court upon certiorari, as pro-
 vided in section 240 of the Judicial Code."

                              [p.  7891]
  Mr. VOORHIS. Does the gentleman
 know whether  there  has  been any
 legitimate amount  of  complaint that
 there has not  been sufficient oppor-
 tunity to get a review  of  orders  up to
 now?
  Mr. MAPES. No.  Let me say in that
 connection—and I am glad the gentle-
 man interrupted me—that under  exist-
 ing  law  any  individual may go into
 the  district court in which he resides
 for the purpose of obtaining an injunc-
 tion against   any order of the  Food
 and Drug Administration that applies
 to him,  that   is arbitrary, capricious,
 unreasonable,  or contrary to law, and
 that will cause  him irreparable  dam-
 age. No one proposes to take that right
 away from anyone.
  Mr. ROBERTSON.  Mr. Chairman,
I rise in opposition to the amendment.
  Mr. Chairman,  I do  not intend  to
enter into any elaborate discussion  of
this  amendment.  The  effect  of the
amendment  is  simple. It makes  a de-
partmental order supreme and denies
to those  affected  a day in  court.  It
makes it virtually  impossible for any
user of a  spray material  for fruit  or
vegetables to test in court  the reason-
ableness of  a departmental order af-
fecting residue tolerance.
  The amendment seeks to accomplish
this in  two ways. In the first place, it
provides that if there be any evidence

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524
LEGAL COMPILATION—PESTICIDES
whatever, regardless of  how  incon-
sequential or flimsy it may be, to sup-
port the findings of the Department of
Agriculture,  such  evidence  becomes
conclusive and binding upon the court.
You do not have any hearing on the
facts under this amendment. Of course,
the Department would have some evi-
dence, but our position is that it should
be  evidence  that  is substantial and
that,  in the  opinion of a reasonable
court, would justify the court in up-
holding the order of the  Department
that issued it.
  The second provision of this amend-
ment—and I could not follow my friend
fully  on this, but I understood him  to
say yesterday he wanted  to bring all
these cases to the District of Columbia.
I  now  understand  that  some  cases
could be heard in the circuit court  of
appeals of  the  State in  which they
arose, but  if the question at issue  is
Nation-wide  in its effect, it still has to
come to the District of Columbia.
                           [p.  7893]
          Mr. SAUTHOFF
  It could undoubtedly prolong litiga-
tion and hold it up in one State after
another. The way to avoid that, in my
judgment, is to hold the hearing before
the  Secretary,  and let  the  Secretary
make his findings. If, then,  the appli-
cant feels himself aggrieved, let him
take an appeal to the circuit court of
appeals  rather than to the district
court,  because  there  are   a limited
number  of  circuit  courts of  appeal;
and,  secondly,  when  a  decision  is
handed down you are more apt to have
uniformity  of  decisions. This  stands
to reason. In looking over the amend-
ment offered by the gentleman from
Michigan it seems to me ample remedy
is afforded to any applicant who feels
himself  aggrieved, because one  part
of the amendment gives him the oppor-
tunity to bring  any additional evidence
he  may  have  on which  to make a
showing.
   [Here the gavel fell.]
   Mr. BUCK.
                            [p. 7894]
   Mr. Chairman, I shall not use 5 min-
 utes. I just want  to  cite the actual
 history of  lead-arsenic tolerance for
 the  last few years to show you how
 necessary it is to have a. review of the
 facts, to find out whether departmen-
 tal findings are based on facts.
   The tolerance for years  and  years
 was fixed at 0.003  without  any harm
 whatsoever to consumers. On April 2,
 1933, the then  Assistant  Secretary of
 Agriculture Tugwell and his advisers
 became convinced that that  was not
 right, and they fixed the tolerance at
 0.014 grain of lead. Only 2 months and
 18  days  later Secretary  Wallace
 reached a  different  conclusion and
 raised  it to 0.02  grain, and subse-
 quently it was changed again to 0.018.
 Now, which determination, if any, was
 right? What finding was  the fact?
   The  only  safety the  average citi-
 zen,  not merely the  apple  and  pear
 grower, has is to require the Govern-
 ment to prove in every case  the sound-
 ness of its regulations and the  basis
 on which they rest. There  is no way
 in the world,  unless  you  leave this
 section in the bill, whereby not merely
 the  apple grower, but the  pear grower,
 or any other producer of  perishable
 commodities  can   protect  himself
 against such  erratic meanderings of
 the  minds of the departmental author-
 ities as I have briefly cited you.
   Mr. LEA. Mr. Chairman, it is un-
 fortunate that a question of law and
 of legitimate procedure for the pro-
 tection of the  people of the United
 States must be discussed with so much
 exaggeration  and  distortion as  has
 been presented  here today.
   Some time ago I  attended a meeting
 of about 300 lawyers  in the city of
 Washington who were concerned with
 administrative  law. It seemed  to be
 the unanimous  opinion of these men,

-------
STATUTES AND LEGISLATIVE HISTORY
                                525
even the men in the Government De-
partments themselves, that we badly
need a provision regulating the court
review of administrative proceedings.
I believe there is no good lawyer in the
United States who will not admit we
are seriously in need of legislative im-
provement of procedure as to adminis-
trative law and practice. Our commit-
tee  recognizes  this,  and  we  have
attempted  in  this  bill to  provide a
legitimate, orderly method  of hearing
these cases  and  disposing of  them
more promptly and in a way that will
greatly reduce litigation. If more far-
sighted  and progressive, the Depart-
ments would welcome provisions such
as we have in this bill. With greater
prestige to themselves they would face
less  litigation and  dispose  of  their
cases more promptly. But to the static
mind every innovation, no matter how
beneficial  ultimately, is destructive  of
their rights. They cannot conceive  of
their being deprived of any arbitrary
power to the advantage of  the public.
  A substitute amendment is proposed
here that  seeks  to gut  this  court-
review section. It does all  it can  to
destroy a legitimate court review with-
out providing one  that is of any use.
It provides, among other things, that
if the record contains any evidence  to
support the findings,  then  the court
must deny  relief  against  arbitrary
action by the administrative agency.
The proposal is absurd on the face  of
it.  Nothing could be  better written
into the law  to  shield irresponsible
government, than the court review  in
the gentleman's  amendment. It is a
perfect arrangement for arbitrary ex-
ercise  of power  without  legitimate
opportunity for the citizen  affected  to
protect himself.
                           [p. 7897]
           *****
  Mr. LEA.
  Let me  refer again to  the apple
question. Do not get a  perverted view
of the apple situation for that is only
one phase of this subject. This prob-
lem  involves regulations  adopted by
administrative  departments with  the
people of the United States not know-
ing who is writing the  regulations,
regulations that have  the effect of a
law passed by  this Congress,  Nation-
wide  in scope,  for violating  which a
citizen may be sent to jail  for as much
as 3 years. Do you want  such impor-
tant functions performed in a perfunc-
tory and irresponsible way, or subject
to a procedure that will  assure that
work being done under a  sense of re-
sponsibility?
  In  1933,  after the spraying season
was  partly over,  news came  out that
certain tolerances  only  would be per-
mitted. Then  came the  question of
inspection to see whether or  not  the
pears, or apples, or whatever the food
might be, conformed. It was proposed
that the  farmers'  fruit would be  in-
spected at  New York.  He took it to
the  packing   house   in   California,
shipped it to New York  on  consign-
ment  because he could not sell it  for
cash,  and subject to inspection at New
York.  If it did not conform to  the
requirements it had either to be recon-
ditioned or destroyed. When  you des-
troy a carload  of fruit it means that
the average small farmer in California
has lost all the profits on his fruit that
year.  He may have figured on paying
off part of his mortgage or doing some-
thing for his family, but a regulation
like that if carried out  would have
prevented it. I sincerely hope the sub-
stitute amendment will be defeated.
  [Here the gavel fell.]
  The CHAIRMAN. The question is
on the amendment offered by the gen-
tleman from Michigan.
  The question was taken; and on a
division  (demanded by Mr.  MAPES)
there were—ayes 34, noes 57.
  So  the amendment was rejected.
                           [p. 7898]
  Mr. MAPES. Mr. Speaker, I offer
a motion to recommit.

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526
LEGAL COMPILATION—PESTICIDES
  The SPEAKER pro tempore. Is the
gentleman  opposed to  the bill?
  Mr. MAPES. I am with paragraph
7 of section (f) _in it.
  The SPEAKER pro tempore.  The
Clerk  will  report   the  motion  to
recommit.

  The Clerk read as follows:
  Mr. Mapes moves to recommit the bill to the
Committee on Interstate and Foreign Commerce
with instructions  to that committee to report
the same back to the House forthwith with the
following  amendment: Strike out paragraph
(f) of section 701, beginning on page 83, line
20, and insert the following:
  "(f)  In a case of actual controversy  as to
the validity of any order under subsection (e),
any person who will be  adversely affected by
such order if placed in effect, may  obtain a
review of  such order in the circuit court of
appeals of the United States, within any circuit
where such person resides or carries on busi-
ness, by filing in the court within 60 days from
the date of such order, a written petition  pray-
ing that the order of the Secretary be set  aside.
A copy  of such  petition  shall be forthwith
served upon the Secretary  and thereupon  the
Secretary shall certifiy and file in the court a
transcript of the entire record in the proceed-
ing, including all the evidence taken and  the
report  and  order of the  Secretary.   Upon
such filing of the petition  and  transcript
the court shall have Jurisdiction of the proceed-
ing and of the question determined  therein,
and shall  have power to make and enter upon
the pleadings,  evidence,  and proceedings  set
forth  in such transcript, a decree affirming,
modifying, or setting  aside the order of  the
Secretary.  The findings of  the Secretary as to
the facts,  if supported by evidence, shall be
conclusive. If either party shall apply to  the
court for leave to adduce additional evidence,
and shall  show to the satisfaction of the court
that such  additional evidence is material and
that there were reasonable grounds for the fail-
ure to adduce such evidence in the proceeding
before the Secretary, the  court may order such
additional evidence to be  taken before the Sec-
retary and to be adduced upon the hearings in
such manner and upon such terms and condi-
tions as the court may seem proper. The Secre-
 tary may modify his findings aa to the facts, or
 make new findings, by reason of the additional
 evidence so taken, and he shall file such modi-
 fied or new findings, which, if supported by
 evidence, shall be conclusive,  and his recom-
 mendation, if any, for the modification or Bet-
 ting aside of his original order, with the return
 of such additional evidence. The judgment and
 decree of the court shall be final, except that
 the same shall be subject to review by the
 Supreme Court upon certiorari, as provided in
 section 240 of the Judicial  Code."
    Mr. MAPES (interrupting the read-
 ing of the motion).  Mr. Speaker, with
 the statement that this is the amend-
 ment which I offered in the Committee
 of the Whole and that it is the provi-
 sion of the law as applied to the Fed-
 eral Trade Commission adapted to the
 food-and-drug  bill  I  ask  unanimous
 consent  that the  further reading  of
 the motion be  dispensed with and  that
 it be printed in the RECORD.
    The  SPEAKER  pro  tempore.  Is
 there objection to the request of the
 gentleman from Michigan?
    There was no  objection.
    The  SPEAKER  pro tempore.  The
 question is on the motion to recommit.
    The question was taken; and on a
 division (demanded  by Mr. LEA) there
 were—ayes 37, noes 59.
    So  the motion  to  recommit  was
 rejected.
    The  SPEAKER  pro tempore.  The
 question is on the passage of the bill.
    The bill was passed, and a. motion
 to reconsider was laid on the table.
    The title was amended so as to read:
 "An  act to prohibit the  movement in
 interstate commerce of adulterated and
 misbranded  food, drugs, devices, and
 cosmetics, and for other purposes."
                               [p. 7903]
 1.2b  (5)  (d)  Vol. 83 (1938), June 2:  Senate disagrees to  House
 amendments, p.  7955
              [No Relevant Discussion on Pertinent Section]

 1.2b  (5) (e)  Vol. 83 (1938), June 10: Senate agrees to  conference
 report, pp. 8731-8738
              [No Relevant Discussion on Pertinent Section]

-------
STATUTES AND LEGISLATIVE HISTORY
                                527
 1.2b (5) (f)   Vol. 83 (1938), June 13: House agrees to conference
 report, pp. 9095-9101
  Mr LEA. Mr.  Speaker, this report
was agreed  to  unanimously  by  the
conferees of the Senate and House. It
has also been approved by the Senate.
  The conference report proposes leg-
islation under  S.5 substantially  the
same as the  bill  passed the House.  I
shall briefly  refer to a few changes
agreed to by  the conferees. I may say
in  this connection that someone in
looking over the  bill  as  it left  the
House ascertained that  there were 97
changes in the Senate bill as passed
by the House. Many of  these changes
were of a minor nature, but all of
them were the result of careful atten-
tion given by  the House  committee
for the  purpose of improving, balanc-
ing, and strengthening the bill.
  The Senate readily accepted 74 of
these changes. There were a few mat-
ters in  controversy that occupied  the
5 days  of attention given to  the  bill
while it was in conference. Most of the
matters of controversy  were of com-
paratively minor  importance. A  few
were important.
                           [p. 9095]
  Mr. LEAVY.  All the growers ask
is to comply with any regulation based
on facts found after a full and  fair
hearing and then make the limit what-
ever that finding discloses it should be.
  Mr LEA. I think they will get that
opportunity  under this bill.  In  this
connection I believe in what the com-
mittee has done. We have made a ma-
terial contribution to the welfare of
the  departments  themselves.  In the
last few days since this has been a
matter of debate, at least two respon-
sible, experienced  attorneys  in  the
Government  service,  connected  with
important agencies, have told me they
think this bill makes a splendid con-
tribution to  administrative law; that
it will add to the prestige and dignity
and  success of these agencies them-
selves. They  gave me the viewpoint
that these  agencies ought to welcome
this sort of orderly procedure instead
of resisting it, and if so they will gain
more public confidence and  there will
be more justice in what they do and
far less reason for the courts to invali-
date their  actions.
  Mr. BUCK.  Mr.  Speaker, will the
gentleman yield?
  Mr. LEA. I yield.
  Mr. BUCK. I understand this is true
if the Secretary of Agriculture acts.
  Mr. LEA. Yes.
  Mr. BUCK. If he does not act, if he
makes no regulation at all,  refuses to
amend any order, and so forth, the
pear  grower, the apple grower, the
tomato   grower,  or   anybody  else
affected still has a right to  appeal to
the courts.
  Mr. LEA. That is right.  This is a
new feature of administrative law and
I believe a very important and sensible
one. If  the Secretary  refuses  to act
when the evidence shows that it is his
duty to act, or  to repeal an unlawful
or an unwarranted finding, that would
be subject to review by the courts.
  Mr.  REECE  of  Tennessee.  Mr.
Speaker, will the gentleman yield?
  Mr. LEA. I yield.
  Mr. REECE of Tennessee. The court
review provision included  in the con-
ference  report is an indication of an
advance in  the  field of administrative
law. It is not too much to expect that
in the future some similar  provision
may be adopted in connection with the
extension of authority which Congress
gives.
  Mr. LEA. I think that may  well be
anticipated.
  Mr. LUCAS.  Mr. Speaker, will the
gentleman yield?
  Mr. LEA. I yield.
  Mr.  LUCAS. Does  the  gentleman
feel  that the  conference  committee
could have  done anything  else than
bring in this court review provision in

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528
LEGAL COMPILATION—PESTICIDES
view of what the Court said  in  the
Morgan case?
  Mr.  LEA. I  think  not.  We have
simply recognized constitutional lim-
itations and followed out the sensible
suggestions of  the Supreme  Court.
This provision  was written, however,
before the  Court decision  was ren-
dered.
   Mr. MEAD. Just one further ques-
 tion,  if the gentleman will permit: Is
 the  judicial procedure  prescribed in
 this bill in keeping with the judicial
 decisions that have been rendered re-
 cently, particularly in the Humphreys
 case  and in cases where the executive
 and the judicial authority  have been
 in conflict? As I understand  it,  this
 simplifies  and specifies  the procedure
 so that the conflict between the Execu-
 tive  and the  judiciary will no longer
 exist.
   Mr LEA. That line, I think, is pret-
 ty clearly  drawn. We have also fol-
 lowed the recent decision of  the Su-
 preme Court, particularly in the Mor-
 gan case. We have respected the legiti-
 mate division of legislative, executive,
 and  judicial  powers.
    Mr. MEAD. That is the case I  have
 in mind.
                            [p. 9098]
   Mr.  SABATH.  Will this  aid the
 courts in the future so that it will not
 be necessary for the courts to reverse
 90 per cent of the cases, and in  some
 instances 100 percent of the  rulings?
 I am referring to  the Supreme Court
 of the United States.
    Mr. LEA. Those overturns largely
 were on account of procedure. It fre-
 quently happens that the procedure
 of a department is so in  disregard  of
 recognized  principles of  justice that
 the courts naturally go into  the case
 with merited  distrust. We  will give
  these departments the prestige and
  respect they deserve from the people
  and the  courts  if they  comply with
 orderly procedure; if they give a fair
 hearing after notice, and make a full
 and fair record.  When they do that
 they make it possible  to  go into a
 court in a way that they will enjoy the
 respect  of the court.  They will be
 sustained by the  court, just as these
 quasi judicial bodies in the Federal
 Government are  sustained. There is
 where  your  weakness is.  There is
 where the fault is.
                             [p. 9099]
   Mr. CHAPMAN. Mr. Speaker, I am
 very grateful for the gracious senti-
 ment expressed by the gentleman from
 Tennessee, and I desire also  to  pay
 tribute to the interest and activity of
 the gentleman in helping to  perfect
 a good bill, and  this applies also to
 other members of the committee.
   Mr.  Speaker, we have a  good bill, a
 bill which I believe will enable the De-
 partment of Agriculture, the enforce-
 ment agency,  to protect  more  ade-
 quately  the public than has been  pos-
 sible under  the antiquated  statute
 which has been on the books for more
 than 30 years, and may I say, since
 the subject has  been raised here, as
 one  who   joined  with   the   distin-
 guished  gentleman   from  Michigan
  [MR. MAPES], than whom  no man has
  been more solicitous of the public wel-
  fare in  the study and drafting of this
  measure—and who in ability, charac-
  ter, and courage ranks with the finest
  statesmen it has been my privilege to
  know—as one who joined with him in
  filing a minority  report, let  me say
  that if  the bill reported to the House
  originally  had  contained  a court-re-
  view section such as that  contained in
  the bill we are  adopting  today,  I am
  sure the  gentleman  from Michigan
  and I never would have filed  that mi-
  nority report.
                              [p. 9100]
     The  conference report was agreed
  to.
                              [p. 9101]

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