THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Statutes and Legislative History
Executive Orders
Regulations
Guidelines and Reports
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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
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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
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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
-------
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
-------
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
-------
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
-------
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
-------
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;
-------
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
-------
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
-------
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.
-------
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.
-------
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-
-------
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
-------
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.
-------
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
-------
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
-------
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]
-------
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.
-------
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]
-------
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
-------
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
-------
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
-------
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]
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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-
-------
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-
-------
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-
-------
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
-------
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;
-------
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-
-------
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
-------
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
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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.
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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,
-------
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
-------
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
-------
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:
-------
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.
-------
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.
-------
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
-------
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
-------
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
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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-
-------
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
-------
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
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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
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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
-------
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-
-------
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
-------
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
-------
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
-------
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.
-------
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
-------
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
-------
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
-------
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.
-------
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-
-------
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,
-------
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
-------
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,
-------
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
-------
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
-------
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
-------
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
-------
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-
-------
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-
-------
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
-------
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
-------
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-
-------
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—
-------
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
-------
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
-------
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
-------
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
-------
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,
-------
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
-------
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-
-------
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
-------
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
-------
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]
-------
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
-------
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.
-------
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
-------
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
-------
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
-------
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-
-------
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
-------
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
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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
-------
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-
-------
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
-------
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.
-------
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.
-------
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-
-------
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
-------
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-
-------
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
-------
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
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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,
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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.
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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-
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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
-------
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]
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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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