VOLATILE POISONS

TUESDAY, APRIL 19, 1932

UNITED STATES SENATE,

COMMITTEE ON AGRICULTURE AND FORESTRY,

Washington, D. C. The committee met, pursuant to call, at 10.30 a. m., in the committee room, 324 Senate Office Building, Senator Charles L. McNary presiding.

Present: Senators McNary (chairman), Norbeck, Frazier, McGill, Bulow, Caraway, and Shipstead.

Present also, Senator Hiram Bingham of Connecticut.

The CHAIRMAN. The committee will come to order. I have called this meeting to consider a bill introduced by Senator Bingham, S. 3853, to regulate interstate and foreign commerce in poisonous volatile substances intended for household consumption. There is also an amendment suggested by Senator Bingham, which will be considered in connection with the main proposition. The bill and the amendment may be inserted in the record at this point.

(S. 3853 and the amendment thereto are here printed in full, as follows :)

[S. 3853, Seventy-first Congress, first session]

A BILL To regulate interstate and foreign commerce in poisonous volatile substances intended for household consumption

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 Federal volatile poison act."

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SEC. 2. As used in this act

(a) The term "poisonous volatile substance" means:

(1) Aniline and any preparation containing free or chemically uncombined aniline (C.HÁNH2) in a concentration of 5 per cent or more;

(2) Benzol, otherwise known as benzene, and any preparation containing free or chemically uncombined benzol (CH) in a concentration of 5 per cent or more;

(3) Carbon disulphide and any preparation containing free or chemically uncombined carbon disulphide (CS2) in a concentration of 5 per cent or more; (4) Cyanogen and all volatile compounds of cyanogen (C2N2 or in its compounds CN) in a concentration of 5 per cent or more;

(5) Ethylene oxide and any preparation containing free or chemically uncombined ethylene oxide (C2H4O) in a concentration of 5 per cent or more; (6) Formaldehyde, otherwise known as formalin, or any other preparation containing free or chemically uncombined formaldehyde (CH2O) in a concentration of 5 per cent or more;

(7) Methanol, otherwise known as methyl alcohol, and any preparation containing free or chemically uncombined methanol (CH3OH) in a concentration of 10 per cent or more;

(8) Nicotine and any preparation containing free or chemically uncombined nicotine (C10H14N2) in a concentration of 10 per cent or more;

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(9) Nitrobenzol, otherwise known as nitrobenzene, and any preparation containing free or chemically uncombined nitrobenzol (CH.NO2) in a concentration of 1 per cent or more;

(10) Sulphur dioxide and any preparation containing free or chemically uncombined sulphur dioxide (SO2) in a concentration of 5 per cent or more; (11) All halogen compounds of hydrocarbons in a concentration of 5 per cent or more;

(12) Such other substances as the Surgeon General of the United States Public Health Service shall from time to time certify to the Secretary of Agriculture as having been found, through practical experience or by laboratory investigation, to give off, in the course of household consumption, fumes, vapor, or gas dangerous to life or injurious to health; but before the Surgeon General shall so certify he shall given reasonable public notice and full opportunity for public hearing of all interested parties, and such substances shall not be considered as coming under this act until six months after the Secretary of Agriculture has given public notice of such certification by the Surgeon General.

(b) The term "misbranded parcel, package, or container means a retail parcel, package, or container for dispensing any volatile poisonous substance for household consumption not bearing a conspicuous and easily legible label or sticker containing

(1) The common name of the substance;

(2) The name and place of business of the manufacturer, packer, seller, or distributor;

(3) A figure showing a skull and crossbones and the words "The fumes are poisonous. Do not inhale. Avoid contact with the skin. In case of accident send for an inhalator."; and such additional or other warning or direction as the Surgeon General may specify.

(c) The term "interstate or foreign commerce means commerce between any State, Territory, or possession, or the District of Columbia, and any place outside thereof; or between points within the same State, Territory, or possession, or the District of Columbia, but through any place outside thereof, or within any Territory, or possession, or the District of Columbia.

SEC. 3. This act shall not apply to the shipment or delivery for shipment, or the receipt from shipment, in interstate or foreign commerce of any substance after the Surgeon General of the United States Public Health Service shall have certified to the Secretary of Agriculture that such substance has been found, through practical experience or by laboratory investigation, not to give off, in the course of household consumption, fumes, vapor, or gas dangerous to life or injurious to health. Upon the receipt of any such certification the Secretary of Agriculture shall give public notice thereof.

SEC. 4. (a) This act is not to be construed as modifying or limiting in any way the right of any person to manufacture, pack, ship, sell, barter, and distribute poisonous volatile substances in parcels, packages, or containers, labeled as required by this act.

(b) This act is not to be construed as applying to a sale to or upon the prescription of a physician, dentist, or veterinarian, or to the sale of chemicals for professional or scientific use.

SEC. 5. No person shall ship or deliver for shipment in interstate or foreign commerce or receive from shipment in such commerce any poisonous volatile substance for sale or exchange, or sell or offer for sale any such substance in any Territory or possession or in the District of Columbia, in a misbranded parcel, package, or container intended for household use; except that the preceding provisions of this section shall not apply--

(a) To any regularly established common carrier shipping, or delivering for shipment, or receiving from shipment, any such substance in the ordinary course of its business as a common carrier; nor

(b) To any person in respect of any such substance shipped, or delivered for shipment, or received from shipment, for export to any foreign country, in a parcel, package, or container branded in accordance with the specifications of a foreign purchaser and in accordance with the laws of the foreign country; nor

(c) To any dealer 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 article is not misbranded within the meaning of this act. This guaranty, to afford protection, shall contain the name and address of the party or parties making the sale of

such article to such dealer, and in such case said party or parties shall be amenable to the prosecutions, fines, and other penalties which could attach, in due course, to the dealer under the provisions of this act.

SEC. 6. (a) Any poisonous volatile substance in a misbranded parcel, package, or container intended for household use shall be liable to be proceeded against in the district court of the United States for any judicial district in which the substance is found and to be seized for confiscation by a process of libel for condemnation if such substance is being

(1) Shipped in interstate or foreign commerce; or

(2) Held for sale or exchange after having been so shipped; or

(3) Held for sale or exchange in any Territory or possession or in the District of Columbia.

(b) If such substance is condemned as misbranded by the court, it shall be disposed of in the discretion of the court

(1) By destruction.

(2) By sale. The proceeds of the sale, less legal costs and charges, shall be paid into the Treasury as miscellaneous receipts. Such substance shall not be sold in any jurisdiction contrary to the provisions of this act or the laws of such jurisdiction, and the court may require the purchaser at any such sale to label such substance in compliance with law before the delivery thereof. (3) By delivery to the owner thereof upon the payment of legal costs and charges and execution and delivery of a good and sufficient bond to the effect that such substance will not be sold or otherwise disposed of in any jurisdiction contrary to the provisions of this act or the laws of such jurisdiction.

(c) Proceedings in such libel cases shall conform, as nearly as may be, to suits in rem in admiralty, except that either party may demand trial by jury on any issue of fact, if the value in controversy exceeds $20, and facts so tried shall not be reexamined other than in accordance with the rules of the common law. All such proceedings shall be at the suit and in the name of the United States.

SEC. 7. (a) Whenever in the case of any volatile substance being offered for importation the Secretary of Agriculture has reason to believe that such substance is being shipped in interstate or foreign commerce in violation of section 5, he shall give due notice and opportunity for hearing thereon to the owner or consignee and certify such fact to the Secretary of the Treasury, who shall thereupon (1) refuse admission and delivery to the consignee of such substance, or (2) deliver such substance to the consignee pending examination, hearing, and decision in the matter, on the execution of a penal bond to the amount of the full invoice value of such substance, together with the duty thereon, if any, and to the effect that on refusal to return such substance for any cause to the Secretary of the Treasury when demanded, for the purpose of excluding it from the country or for any other purpose, the consignee shall forfeit the full amount of the bond.

(b) If, after proceeding in accordance with subdivision (a), the Secretary of Agriculture is satisfied that such substance being offered for importation was shipped in interstate or foreign commerce in violation of any provision of this act, he shall certify the fact to the Secretary of the Treasury, who shall thereupon notify the owner or consignee and cause the sale or other disposition of such substance refused admission and delivery or entered under bond, unless it is exported by the owner or consignee or labeled by him so as to conform to the law within three months from the date of such notice, under such regulations as the Secretary of the Treasury may prescribe. All charges for storage, cartage, or labor on any such substance refused admission or delivery or entered upon bond shall be paid by the owner or consignee. In default of such payment such charges shall constitute a lien against any future importations made by such owner, or consignee.

SEC. 8. No person shall alter, mutilate, destroy, obliterate, or remove any label or sticker required by this act to be placed on any parcel, package, or container of any poisonous volatile substance, if such substance is being(a) Shipped in interstate or foreign commerce; or

(b) Held for sale or exchange after having been so shipped; or

(c) Held for sale or exchange in any Territory or possession or in the District of Columbia.

SEC. 9. Any person violating any provision of section 5 or 8 shall upon conviction thereof be punished by a fine of not more than $200 or imprisonment for not more than ninety days, or by both.

SEO. 10. It shall be the duty of each United States district attorney to whom the Secretary of Agriculture shall report any violation of section 5 or 8 of this act, or to whom any health, medical, or drug officer or agent of any State, Territory, or possession or of the District of Columbia presents satisfactory evidence of any such violation, to cause libel for condemnation and criminal proceedings under sections 6 and 9 to be commenced and prosecuted in the proper courts of the United States, without delay, for the enforcement of the condemnation and penalties provided in such sections.

SEC. 11. (a) Except as otherwise specifically provided in this act, the Secretary of Agriculture shall enforce its provisions.

(b) For enforcing the provisions of sections 6, 7, and 9, the Secretary of Agriculture may cause investigations, inspections, analyses, and tests to be made and samples to be collected of any poisonous volatile substance. The Department of Agriculture shall pay to the person entitled, upon his request, the reasonable market value of any such sample taken. If it appears from the inspection, analysis, or test of any poisonous volatile substance that such substance is in a misbranded package, parcel, or container intended for household use, the Secretary of Agriculture shall cause notice thereof to be given to any person who may be liable for any violation of section 5 or 8 in respect of such substance. Any person so notified shall be given an opportunity to be heard under regulations prescribed by the Secretary of Agriculture. If it appears that such person has violated the provisions of section 5 or 8, 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 inspection, analysis, or test duly authenticated under oath by the person making such inspection, analysis, or

test.

(c) For the enforcement of his functions under this act the Secretary of Agriculture is authorized

(1) To prescribe and promulgate such regulations as may be necessary. (2) To cooperate with any department or agency of the Government, with any State, Territory, or possession, or with the District of Columbia, or with any department, agency, or political subdivision thereof, or with any person. (3) Subject to the civil service laws to appoint and, in accordance with the classification act of 1923, as amended to fix the salaries of such officers and employees as may be required for the execution of the functions of the Secretary of Agriculture under this act and as may be provided for by the Congress from time to time.

(4) To make such expenditures (including expenditures for personal services and rent at the seat of government and elsewhere, and for law books, books of reference, and periodicals) as may be required for the execution of the functions vested in the Secretary of Agriculture by this act and as may be provided for by the Congress from time to time.

(5) To give notice, by publication in such manner as the Secretary of Agriculture may by regulation prescribe, of the judgment of the court in any case under the provisions of this act.

SEC. 12. If any provision of this act is declared unconstitutional, or the applicability thereof to any person or circumstance is held invalid, the oonstitutionality of the remainder of the act and the applicability thereof to other persons and circumstances shall not be affected thereby.

SEC. 13. This act shall take effect upon its passage; but no penalty or condemnation shall be enforced for any violation of the act occurring within six months after its passage.

SEC. 14. The provisions of this act shall be held to be in addition to and not in substitution for the provisions of the following acts:

(a) The food and drugs act, approved June 30, 1906, as amended.

(b) The insecticide act of 1910, as amended.

(c) The act entitled "An act to regulate the practice of pharmacy and the sale of poisons in the District of Columbia, and for other purposes," approved May 7, 1906, as amended.

(d) The Federal caustic poison act, approved March 4, 1927.

[S. 3853, Seventy-second Congress, first session]

AMENDMENTS Intended to be proposed by Mr. Bingham to the bill (S. 3853) to regulate interstate and foreign commerce in poisonous volatile substances intended for household consumption, viz.

On page 11, line 12, before the period insert a semicolon and the following: "but before prescribing and promulgating regulations relating to labels and stickers the Secretary of Agriculture shall consult with the Interstate Commerce Commission."

On page 13, after line 6, insert the following new subdivision,

"(e) Sections 232 to 236, inclusive, of the Criminal Code, approved March 4, 1909, as amended."

The CHAIRMAN. I have received a report on this bill from the Secretary of Agriculture, reading as follows:..

Hon. CHARLES L, MONARY,

Chairman Committee on Agriculture and Forestry,

MARCH 18, 1932.

United States Senate, Washington, D. C.

DEAR SENATOR: I have your letter of March 2 requesting a report on the inclosed bill, S. 3853, for the purpose of regulating commerce in poisonous volatile substances intended for household consumption.

This proposal is desirable with certain modifications. It is not absolutely essential at this time, however, and in view of the present financial situation I recommend against its enactment at this time.

Sincerely yours,

ARTHUR W. HYDE, Secretary.

I have also received a report from the chairman of the legislative committee of the Interstate Commerce Commission, which reads as follows:

Hon. CHARLES L. MONARY,

Chairman Committee on Agriculture and Forestry,

MARCH 11, 1932.

United States Senate.

MY DEAR MR. CHAIRMAN: The chairman of the commission has referred to our legislative committee your communication of March 2, requesting a report on $. 3853, introduced by Senator Bingham "To regulate interstate and foreign commerce in poisonous volatile substances intended for household consumption." This bill has had the consideration of the legislative committee, and I am authorized to make the following report in its behalf.

S. 3853 is intended to compel the branding of parcels, packages, or containers containing certain poisonous volatile substances intended for household use, with conspicuous and easily legible labels or stickers indicating specified information. The size and shape of such marker and the character of the printing thereon would presumably be determined by the Secretary of Agriculture under authority of section 11 (c) (1). This commission is not informed as to the need for such legislation, and we express no opinion thereon. Our only concern with respect to the bill is that its provisions may possibly conflict in certain particulars with regulations prescribed by the commission under the transportation of explosives act of March 4, 1921 (U. S. Code, title 18, secs. 382-386). That act, by the way, is not mentioned in section 14 among the acts as to the provisions of which S. 3853 "shall be held to be in addition to and not in substitution for."

By section 233 of the transportation of explosives act the commission is directed to "formulate regulations for the safe transportation within the limits of the jurisdiction of the United States of explosives and other dangerous articles, including inflammable liquids, inflammable solids, oxidizing materials, corrosive liquids, compressed gases, and poisonous substances, which shall be binding upon all common carriers engaged in interstate or foreign commerce which transport explosives or other dangerous articles by land or water, and upon all shippers making shipments of explosives or other dangerous articles via any common carrier engaged in interstate or foreign commerce by land or water." The regulations so prescribed cover, among other things, the "packing, marking, loading, handling while in transit, and the precautions