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present law, as well as of the new law, and therefore, are particularly undesirable in that they may undermine, hamper, and weaken the entire enforcement of the Pure Food and Drugs Act.

The Secretary of Agriculture states the enactment of this section would hamstring the Department in the enforcement of the Food and Drugs Act.

The Department of Justice memorandum closes with this statement:

While undoubtedly this is not the intention, unfortunately, it may be the result of the enactment of the bill in its present form.

Why should the Food and Drug Administration, among all the regulatory bodies of the Government, be singled out for special treatment and, in the language of the Secretary of Agriculture, be hamstrung in its enforcement of food and drugs laws providing for the protection of the health and the well-being of the consuming public-the men, women, and children of the United States? Why should the Food and Drug Administration be put on trial? Why one rule for other regulatory bodies and another for the Food and Drug Administration?

Perhaps the apple growers have been overemphasized in this debate. They are not the only ones affected by this law. The law applies to proprietary patent medicines, to impure and adulterated foods and drugs of all kinds, and to cosmetics and devices. Is the House ready to weaken the administrative efficiency of the Food and Drug Administration in all its regulatory work merely to satisfy the complaints of the apple growers? If this bill applied only to apple growers perhaps this section would not be so objectionable, but it applies to all violators of the food and drugs law or to all who come within its provisions. As the Secretary of Agriculture states in his letter which is printed in the minority report, the enactment of this section as it stands will hamstring the Food and Drug Administration in the enforcement of the entire law.

Mr. VOORHIS. Mr. Chairman, will the gentleman yield? Mr. MAPES. I yield to the gentleman from California. Mr. VOORHIS. Is it not true that the inclusion in the bill of this section will mean we are taking a backward step; in other words, there is no provision of this kind in existing law, and if existing law is not strong enough to accomplish the purpose, then surely this new legislation would not be.

Mr. MAPES. Absolutely. That is the opinion not only of the men who signed the minority report but of the Department of Agriculture, the Food and Drug Administration, and the Department of Justice.

Mr. VOORHIS. Does the gentleman know whether there has been any legitimate amount of complaint that there has not been sufficient opportunity to get a review of orders up to now?

Mr. MAPES. No. Let me say in that connection-and I am glad the gentleman interrupted me-that under existing law any individual may go into the district court in which he resides for the purpose of obtaining an injunction 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 damage. No one proposes to take that right away from anyone. Mr. FORD of California and Mr. MURDOCK of Arizona rose.

Mr. MAPES. I yield to the gentleman from California. Mr. FORD of California. Is it not true that under the law as written, if that provision were left in the bill it would practically vitiate all the desirable things that the bill seeks to accomplish?

Mr. MAPES. Yes.

Mr. FORD of California. And is it not also true that if that provision were eliminated and no other amendment put in, although I like the gentleman's amendment, they would still have the usual remedy that anyone now has under the laws of the United States of America?

Mr. MAPES. The gentleman is entirely correct, and my amendment goes more than half way. It tries to meet the views of the Committee on Interstate and Foreign Commerce as expressed in recent legislation taking the advertising of

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foods and drugs away from the Food and Drug Administration and putting it under the jurisdiction of the Federal Trade Commission. It proposes to give everyone the same kind of a court review of an order of the Food and Drug Administration as he has of an order of the Federal Trade Commission. That is all it does. (Applause.]

[Here the gavel fell]

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 departmental 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 reasonableness of a departmental order affecting residue tolerance.

The amendment seeks to accomplish this in two ways. In the first place, it provides that if there be any evidence whatever, regardless of how inconsequential or flimsy it may be, to support 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 evidence, 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 upholding the order of the Department that issued it. The second provision of this amendment 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.

Mr. MAPES. Mr. Chairman, will the gentleman yield?
Mr. ROBERTSON. I yield.

Mr. MAPES. As I said in answer to an interruption, I have gone more than half way to meet the views of the Committee on Interstate and Foreign Commerce as expressed in the recent bill which the committee reported relating to the Federal Trade Commission.

Mr. ROBERTSON. Mr. Chairman, this court-review section has been provided in the Senate bill, and I feel that I am justified in stating to the House that this bill will be enacted into law by the Senate without it. This court-review section is approved by a majority of the committee that brings this bill to us. It has the support of every apple organization in the United States. It has the support of all the organizations representing the production of any type of fruit or vegetable where spray must be used in the production. If we adopt this amendment we will leave thousands and thousands of farmers in this Nation who must depend upon the reasonableness of departmental regulations with respect to spray residue to keep their products on the market at the mercy of the Department. We have had an illustration within the past years of what might happen to them. Dr. Tugwell, Acting Secretary in the absence of the Secretary of Agriculture, in misguided enthusiasm to protect the public health, well meaning but ignorant of what was involved, promulgated a tolerance as to lead residue that was nearly 100 percent below the then existing tolerance. It would have put every apple producer in the United States out of business. It was so capricious and so unreasonable that as soon as the Secretary got back and considered the matter he reversed it and restored the previous tolerance. That happened once. It could happen again; and under the amendment proposed by our distinguished colleague from Michigan fruit and vegetable raisers could be destroyed without a day in court. I do not believe for a minute this House will vote to subject the farmers of this Nation to any such hazard at a time when we all know they are not making both ends meet. [Applause.]

[Here the gavel fell.]

Mr. VOORHIS. Mr. Chairman, I rise in support of the amendment. I ask the gentleman from Michigan (Mr. MAPES) if he will be good enough briefly to explain to us

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what his amendment provides, in contradistinction to the provisions of the bill.

Mr. MAPES. Mr. Chairman, it provides in the first place that anyone who desires to test the validity of a regulation or order of the Food and Drug Administration, instead of being permitted to go into any district court of the United States, must go before a circuit court of appeals within the district in which he resides. The hearing would then come up before a three-judge court instead of a one-judge court. The action would be confined to 10 circuits instead of to 85 districts. The amendment also contains the usual provision, that the court is bound by the findings of fact of the Food and Drug Administration if supported by substantial evidence, or evidence, and if new evidence is discovered after the hearing, then the court, instead of opening the case and taking the testimony itself, must remand the case to the Food and Drug Administration to take the additional evidence. That is the usual provision.

Mr. VOORHIS. What about injunctions under the gentleman's amendment?

Mr. MAPES. The injunction matter is outside of both of these provisions. The injunction remedy by any aggrieved person is had without reference to the provisions in the bill or to my amendment.

Mr. VOORHIS. I thank the gentleman.

Mr. COFFEE of Washington. Mr. Chairman, will the gentleman yield?

Mr. THOMAS of Texas. To ask a question of our colleague from Michigan [Mr. MAPES]. Under section 701 (f) of the bill, suppose a manufacturer is making improperly some type of food or drug, and persisted in that distribution. How long would it take under that procedure before the Government could really stop him from using the channels of interstate commerce?

Mr. MAPES. I do not know that I can answer that question.

Mr. VOORHIS. We have had some experience, I believe, with other types of legislation.

Mr. LEA. Mr. Chairman, will the gentleman yield? Mr. VOORHIS. Certainly, I yield to the chairman of the committee.

Mr. LEA. Under this bill the Government can act in that case within 24 hours.

Mr. THOMAS of Texas. The Government can act within 24 hours, but how effectively can it act within a year even? Mr. LEA It can stop the circulation of it in 24 hours, because under this bill we give the Food and Drug Administration the right to an injunction to stop it immediately. Mr. THOMAS of Texas. And that injunction remains in effect until it goes through the regular routine of court procedure?

Mr. LEA. We give that power to the Food and Drug Administration in every case, practically, that is involved here. Mr. THOMAS of Texas. And it stops right there?

Mr. LEA. Yes, absolutely; and that is a new power we give, by the way.

Mr. VOORHIS. Mr. Chairman, as I understand the provisions of section 701 (f) it would mean that if one district court was willing to issue an injunction holding up an order of the Secretary under this bill, that that would mean that that order could not go into effect regardless of how serious or important the provision was, and because it avoids that possibility, it seems to me, that the amendment of the gen

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tleman from Michigan is a worthy one, and should be supported. I believe we have had experience with other types of legislation, where we have seen an endless amount of litigation take place, where we have seen the machinery hung up over long periods of time. This is a matter where we are attempting to get effective regulation for the protection of the health of the people, and I would hope, as was said by the gentleman from Michigan, that we would not have to hamstring the Administration in that fashion. I call the attention of the House also to the fact that no such provision as this is in existing law, that this is a new departure and that it further complicates the situation over what we have now, and that if we wish to strengthen the Food and Drug Administration, we should not take the step of writing section 701 (f) in the bill.

The CHAIRMAN. The time of the gentleman from California has expired.

Mr. SAUTHOFF. Mr. Chairman, I move to strike out the last word. I have asked for this time purely to get this thing straightened out as between the gentleman who proposes the amendment and the gentleman from California, the chairman of the committee. If I understand correctly, the gentleman from Virginia [Mr. ROBERTSON], replying to the injury that might be done to some apple concern which was selling a sprayer

Mr. ROBERTSON. Oh, not an apple concern selling a spray, but to the farmer producing apples, who must spray them, to protect them from insects.

Mr. SAUTHOFF. Very well. Let us take that situation. If any apple raiser felt himself aggrieved now, without this law, under an order of the Secretary, he could very properly go into his district court and ask for an injunction, alleging that such order was working him an irreparable injury. Is not that true?

Mr. ROBERTSON. No; not exactly true.
Mr. SAUTHOFF. Why?

Mr. ROBERTSON. Because he does not get a hearing in the courts on the facts but only on the law; yet the Government in its prosecution of those cases where residue tolerances have been exceeded have never thus far proven a case where spray residue has been injurious to the human body.

Mr. SAUTHOFF. That is not the question. The question here involved is the remedy, and the remedy exists if I am not mistaken. You have your hearings before the Secretary, your facts are produced before the Secretary; and the law, of course, must conform to the facts. That is your case. Any grower who feels himself aggrieved, of course, has the right to get an injunction. It seems to me as I look over this amendment offered by the gentleman from Michigan that it is an excellent amendment and much better than section 701. Section 701 seems to me to hamstring our law and make it pretty easy for the makers of proprietary and patent medicines to defeat the wishes of Congress by constantly going into various hearings and taking appeals from the hearings and going into court for injunctions. With 85 different district courts, just think of the chance a chain store has. It could undoubtedly prolong litigation and hoid 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 applicant 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 amendment 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 opportunity to bring any additional evidence he may have on which to make a showing.

[Here the gavel fell.]

Mr. LEAVY. Mr. Chairman, I rise in opposition to the pro forma amendment.

1938

Mr. Chairman, it is to be regretted that so many of us who apparently think alike are so far apart upon this particular amendment. The difficulty doubtless lies in the fact that the Pure Food and Drug Administration is being given power to regulate by a bureaucratic order both processed products and those that are produced naturally. The argument made in opposition to the present language in the law has some substantial weight when applied to processed products, but when you get over into the field of natural products, like all fruits and vegetables growing above ground, that have to be protected from pests by the use of spray material, then you have examples in which it does an injury that is irreparable. The individual producer can get no relief if he is denied a hearing before the order is made, and also denied a day in court as would happen if this amendment prevails.

I take issue with the gentlemen who say you can go into any Federal court and there get an injunction against an agent of the United States Government, for official actions. Every lawyer knows that the United States Government cannot be made a party defendant. No individual can bring a suit against the Government except by congressional authorization. I challenge the gentleman from Michigan [Mr. MAPES] to cite authority authorizing such general actions, as he refers to in his remarks, where the citizen can institute suit against the United States.

Mr. SAUTHOFF. Mr. Chairman, will the gentleman yield? Mr. LEAVY. I will yield to the gentleman if he will cite me the Federal statute that authorizes an action of that kind on the part of an individual against the United States Government.

Mr. SAUTHOFF. I am not citing

Mr. LEAVY. If the gentleman cannot give me a citation, I do not care to have more of my time consumed.

Mr. SAUTHOFF. The suit is brought against the person holding office, not against the Government.

Mr. LEAVY. The person making the order is an executive officer of the Government.

Mr. SAUTHOFF. Certainly.

Mr. LEAVY. He is appointed by the Secretary of Agriculture. The Secretary of Agriculture is appointed by the President, who is the head of the executive branch of the Government; and any court action must be against him as an official, and not as an individual; therefore it becomes a suit against the United States.

The reason this has no comparison with the citations of law concerning the Federal Trade Commission and the Communications Commission and all those other commissions is the fact that they are not executive arms of the Government; they are quasi-judicial bodies that hold hearings and determine in a judicial manner the facts. In the instant case, however, you have an executive officer who arbitrarily sits down, without hearing a particle of evidence, if he sees fit, and makes an order. That is exactly what occurred, so far as I have been able to learn, in connection with spray residue. I am sure no one will contend there was a hearing where evidence was taken, where interested parties could appear, and where a record was made.

Mr. MURDOCK of Arizona. Mr. Chairman, will the gentleman yield?

Mr. LEAVY. I am sorry, I have not time enough. If I have time later, I will yield.

Here is what the eighth circuit court said last year, and the grower had to wait until $5,000 of his property was seized and destroyed.

Mr. LEAVY. Mr. Chairman, the court further said:

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It is to be noted in this connection that no expert who testified upon the trial was able to say that he knew of any case of lead or arsenic poisoning resulting from eating apples which had been sprayed by arsenate of lead, or the products of such apples.

In spite of a finding by the second highest court in the land, the Food and Drug Administration did not see fit to change its tolerance limit, and, as I stated yesterday, this has cost the growers of our State of apples and pears alone $36,000,000 since this regulation has been put into effect, in 1926. We have no court to which we can go for relief. The bill as now written gives us that relief. Why should that be denied to us? We want to protect the public, but you should not destroy thousands of farmers by an arbitrary departmental order.

Mr. Chairman, eighteen one-thousandths of a grain of lead on a pound of apples is considered dangerous under present orders. We are asking that we may be given twentyfive one-thousandths of a grain to the pound of apples, and we feel we are safe. Scores of the best medical and chemical experts have said that is safe. We have certificates, and we have made showings to the Department of Agriculture, from over 100 doctors who have practiced from 5 to 30 years in communities where these apples are produced, and they have never had to treat a case of lead-arsenate poisoning. The Public Health Service is now carrying on an official investigation to scientifically determine the limit of tolerance. This should have been done before any order was ever made. Lead poisoning is possible by inhalation through the lungs or by injection into the blood stream, but there is no evidence whatever that it is possible by ingestion or eating. Mr. ROBERTSON: Will the gentleman yield?

Mr. LEAVY. I yield to the gentleman from Virginia. Mr. ROBERTSON. Does not the gentleman from Washington think that a man who has all of his life savings invested in an apple orchard should have a day in court before we put him out of business through some departmental order?

Mr. LEAVY. I certainly do, and that is exactly what this bill gives to him. It is a question whether you are going to permit the American citizen, whose economic existence is being threatened and taken from him, the opportunity to go into court.

Mr. MURDOCK of Arizona. Will the gentleman yield? Mr. LEAVY. I yield to the gentleman from Arizona. Mr. MURDOCK of Arizona. It occurs to me that the gentleman has put his finger exactly on the spot. I rather favor the amendment that has just been offered, but I can also see the gentleman's point. We are enacting this legislation for the protection of the consuming public, but we must safeguard the legitimate producer. Is there any way to separate the operation of this law in such a way that the provision in the printed bill may apply to natural products, whereas the amendment offered may apply to manufactured or processed products?

Mr. LEAVY. It could probably be done through an independent quasi-judicial body, set up to determine these matters, hold hearings, and from the hearings and the record made take such action as the facts warrant, and then an appeal might be taken to the courts, just as is now done with the National Labor Relations Board and other boards and commissions.

Someone here suggested, "Why, take this case into the circuit court for your injunction." The circuit courts are appellate courts and do not have original trial jurisdiction. Of necessity you have to go into a district court in the first instance, so long as this subject matter is under the executive department of the Government.

Mr. REES of Kansas. Will the gentleman yield? Mr. LEAVY. I yield to the gentleman from Kansas. Mr. REES of Kansas. The gentleman does not want this House to understand that he cannot go into a Federal court, take his transcript, his abstract and brief and be heard by the Federal court?

Mr. LEAVY. I want the House to understand that my view of the law is that an apple grower in the State of

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Missouri, Virginia, or Washington cannot institute an action against the United States Government for injunctive relief without congressional authority to do so.

Mr. REES of Kansas. The action would not be against the Government. The action would be against the Secretary of Agriculture as an individual.

Mr. LEAVY. The Secretary of Agriculture is the agent of the Federal Government, and he acts in an executive capacity. What he does in enforcing the laws he does in his official capacity, not his individual capacity.

[Here the gavel fell]

Mr. REES of Kansas. Mr. Chairman, I move to strike out the last two words.

Mr. Chairman, the big complaint here seems to be on the part of apple growers. Out of all the people affected by the amendment or that may be affected, it seems the only complaint comes from the apple growers. I think the apple growers want to comply with the laws of our country; and, after all, if the apple growers are going to use a poisonous substance in connection with their operations, they ought to be willing to comply with reasonable, fair rules and regulations. I realize there are a great many big apple growers in this country who would be very careful in the use of these poisonous substances, but there may be a great many others who might not be so careful.

If the only complaint comes from the apple growers, I do not believe that is sufficient to sustain the objections made to this particular amendment.

Let me call your attention to something else. Under the present section of the bill, you will observe if you give it your attention, there is a complete departure from our regular method of handling problems of this kind. Anyone who has a complaint has a right, of course, to be heard. He is given a full and complete hearing; and, by the way, in the stockyards case just decided by the Supreme Court it was held that both sides must be given a complete hearing. You also may secure a rehearing. All you do is bring your evidence before the Federal court in the form of a transcript, file your abstract and your brief, and you will receive a hearing by the Federal court.

Under the present bill you go back into the Federal court after a full and complete hearing. You pick out your court that suits you. If you do not get what you want, you pick out another Federal court, go in there and start all over again. You introduce your evidence on one side, then the other, and try the case. In other words, you have another trial. You then appeal the case to the Supreme Court if you want to. You would be forever and ever in the courts if you leave this particular section in the bill.

I say to you again, Mr. Chairman, no matter how good this bill may be or appear to be, if you are going to leave this particular section in the bill, you ought to vote against the bill, because it will not be worth anything if you leave that section in it.

Mr. ROBERTSON. Mr. Chairman, will the gentleman yield?

Mr. REES of Kansas. I yield to the gentleman from Virginia.

Mr. ROBERTSON. I am afraid the gentleman from Kansas is confusing enforcement of a regulation with the promulgation of the regulation. The apple producers do not object to the strict enforcement of proper and reasonable regulations, but this goes to the promulgation of a regulation that might conceivably be capricious and arbitrary. We say, if that should be the case, let us have it so that before the Department promulgates a regulation it will know it must have sufficient proof to make that regulation stand up in court when challenged by a producer who states it is capricious and unreasonable.

Mr. REES of Kansas. Oh, the gentleman is going on an assumption here.

Mr. ROBERTSON. That is what is involved.

Mr. REES of Kansas. The assumption is that the Department of Agriculture is going to pick up the apple growers and be particularly unfair to that particular group.

JUNE 1

Mr. ROBERTSON. No; I do not say that; but I say before you pass a law that would enable the Department to wipe out an industry you should give that industry an opportunity to have a day in court on the reasonableness of the regulations that are promulgated.

Mr. REES of Kansas. Under this bill that question would be tried out in case an action is brought against someone who is alleged to have violated that particular rule or regulation that has been made by the Department of Agriculture.

Mr. ROBERTSON. I believe we should accept the provision in this bill as reported by the committee.

Mr. REES of Kansas. Our first consideration is taking care of the health of the public. We are talking about a pretty dangerous thing when we are talking about the apple growers being permitted to use a poisonous spray to protect their particular article.

Mr. BUCK. Mr. Chairman, will the gentleman yield? Mr. REES of Kansas. I yield to the gentleman from Callfornia.

Mr. BUCK. Would not the gentleman rather have the apples free of codling moths than eat those bugs that would be in a lot of apples?

Mr. REES of Kansas. Oh, yes; but that has nothing to do with the question.

[Here the gavel fell.]

Mr. O'CONNELL of Montana. Mr. Chairman, I move to strike out the last word.

Mr. Chairman, I rise in support of the amendment offered by the distinguished gentleman from Michigan, and I rise as a member of the committee who signed the minority report strictly because of the reason that this so-called courtreview section was in the bill. I say, as every other man who has spoken in behalf of this amendment has said, if you permit this bill to stand with the present court-review section in it, you may as well kill the measure entirely, because you are going to create a situation far worse than we have now. As I understand, on yesterday and all day today those who are here pleading in behalf of the apple growers have time and time again said there has never been one single, solitary case of a death resulting from arsenic poisoning caused by spray residue. I have here a citation taken from the American chamber of horrors, which is absolutely authentic.

Ten-year-old Ralph Dodge died from eating perhaps a dozen sprayed apples picked up in the orchard where his father was employed. When the family doctor saw him the day after his indulgence he was too far gone to be helped, for he had been having convulsions, and his throat was closed, making it impossible to give him any medication by mouth. The autopsy disclosed damage to the liver and other organs that was clearly indicative of metallic poisoning. On chemical analysis these organs were found to contain 2.5 milligrams of arsenic trioxide and 6.3 milligrams of lead per kilo of sample. This, of course, was not all the poison the boy had taken into his system, for some had been d'stributed to other tissues and some had been eliminated. But there was enough for the death certificate to say: Cause of death, poisoning, acute, arsenical.

I have here a photostatic copy of the certificate of death from the State of West Virginia, County of Jefferson, wherein the Clerk of the County Court in said county certifies that the death was due to poisoning, acute, arsenical. Mr. LEAVY. Mr. Chairman, will the gentleman yield? Mr. O'CONNELL of Montana. I yield to the gentleman from Washington.

Mr. LEAVY. I am granting now that what the certificate indicates is a fact, although I am rather inclined to be doubtful, but that does not apply to apples that have a reasonable tolerance limit and have the spray removed to a reasonable degree.

Mr. O'CONNELL of Montana. I say this absolutely destroys the arguments that have been made here that there has never been a death from arsenic poisoning from spray residue.

Mr. SIROVICH. Will my distinguished colleague yield for a question?

1938

Mr. O'CONNELL of Montana. I yield to the gentleman from New York.

Mr. SIROVICH. From a medical standpoint, it is the consensus of opinion that whenever you spray apples with a lead arsenic preparation the Government of the United States ought to supply every farmer with a dilute solution of hydrochloric acid, which is very weak, and which washes off the spray and does not harm anyone. This solution is being used in California and in Oregon and Washington. In many instances apples may contain a hypersaturated solution of the preparation and may cause gastro-intestinal disturbances. In this particular case the boy ate 12 apples, as I understand, which gave a cumulative dose, and this was responsible for the arsenical poisining. If the Government supplied every farmer in the United States with a dilute solution of hydrochloric acid, which is very cheap, none of these occurrences would ever happen.

Mr. O'CONNELL of Montana. The gentleman is correct. Mr. WHITE of Idaho. Mr. Chairman, will the gentleman yield?

Mr. O'CONNELL of Montana. I yield to the gentleman from Idaho.

Mr. WHITE of Idaho. Is it not a fact that the apple producers and apple shippers comply with the rules and regulations of the Department of Agriculture and wash apples and prepare them for shipment in compliance with the regulations for the removal of the spray?

Mr. O'CONNELL of Montana. The very reason you are pleading here or the very reason that the apple growers are pleading here is because they do not want to comply with the regulations of the Department. They want to have this so-called spurious court proceeding or court review, which would permit them to go into courts all over the country and permit them to tie up the proceedings indefinitely, and then after a decision is rendered they will take up some other protective feature of the law and go into the courts on that, so that, finally, you will have no food and drug law whatsoever. {Here the gavel fell.]

Mr. O'CONNELL of Montana. Mr. Chairman, I ask unanimous consent to proceed for 2 additional minutes.

The CHAIRMAN. Is there objection to the request of the gentleman from Montana?

There was no objection.

Mr. WHITE of Idaho rose.

Mr. O'CONNELL of Montana. I do not want the gentleman to take up all the rest of my time.

Mr. WHITE of Idaho. I think the gentleman wants to enlighten the Committee on this question.

Mr. O'CONNELL of Montana. I yield to the gentleman. Mr. WHITE of Idaho. I represent an apple-producing section of the West and, as a matter of fact, the object of the apple growers is to comply with a reasonable tolerance with respect to apples in interstate commerce, and today at a great deal of expense they wash their apples in the big packing plants.

Mr. O'CONNELL of Montana. I do not want the gentleman to make a speech, and the fact they do that today is because there is regulation, but they want to fix it now so they will not have to do anything of that kind.

Mr. SIROVICH. Mr. Chairman, will the gentleman yield?

Mr. O'CONNELL of Montana. I yield.

Mr. SIROVICH. Does the gentleman think this section is for the benefit of the producer or for the benefit of the consumer?

Mr. O'CONNELL of Montana. This section, as written, is decidedly for the benefit of the producer and not for the consumer.

It has been stated that the issue here is whether you are going to wipe out the investment of these poor apple growers, but I contend that the issue in this court review section and the issue in this bill is whether you are going to permit these young children and men and women to be killed by spurious patent medicines and by all the fake drugs and cures that are

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flooding the market today, which are far more involved in this bill than the question of the production of apples.

The question further is whether little children are going to die in vain and whether all this agitation over such poisonous deaths is to be in vain. The question is whether we are going to wipe all that out now in order to help a few apple growers in this country. I maintain that human life is far more important than profits.

Are we going to legislate for the great benefit of the American people and for the consumers of the United States or are we going to legislate for this little group?

I hope sincerely you will support the amendment of the gentleman from Michigan [Mr. MAPES].

Mr. BUCK. Mr. Chairman, I move to strike out the last three words.

Mr. Chairman, I shall not use 5 minutes. 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 departmental 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 subsequently it was changed again to 0.018. Now, which determination, if any, was right? What finding was the fact?

The only safety the average citizen, not merely the apple and pear grower, has is to require the Government to prove in every case the soundness 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 authorities as I have briefly cited you.

Mr. LEA. Mr. Chairman, it is unfortunate that a question of law and of legitimate procedure for the protection 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, even the men in the Government Departments 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 improvement of procedure as to administrative law and practice. Our committee 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 farsighted and progressive, the Departments 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 without 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 exercise of power without legitimate opportunity for the citizen affected to protect himself.