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AMEND THE FOOD AND DRUGS ACT

THURSDAY, AUGUST 8, 1935

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE OF THE COMMITTEE ON

INTERSTATE AND FOREIGN COMMERCE,
Washington, D. C.

The subcommittee met at 10 a. m., pursuant to adjournment, Hon. Virgil Chapman (chairman) presiding.

Mr. CHAPMAN. The committee will be in order.

The committee will be glad to hear from our distinguished colleague, Congressman Frank H. Buck, of California.

STATEMENT OF HON. FRANK HENRY BUCK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. Buck. Mr. Chairman and members of the committee, I represent as you know the Third Congressional District of California, which is one of the largest fruit-producing areas of the entire State, and I am appearing here before you today in behalf of and in support of three amendments which have been suggested in a brief filed with your committee by the National Apple Growers Association. While our district is not particularly an apple-producing district, it does raise a very large part of the deciduous fruit that is shipped east in carload lots for distribution in a fresh condition.

Now, I do not know whether you gentlemen have yet had an opportunity to read these briefs, but they have been submitted to you, and I want to urge your very serious consideration of the points that are involved.

In the original bill, and in all bills since the first Copeland bill that was introduced in the Senate at the last Congress, there was contained a provision in substantially the following language:

In any proceeding against any chief executive or another officer or employee by reason of a seizure pursuant to the previous paragraphs and section, the court shall find there was possible cause for a seizure, or if in the certificate of possible cause has been issued the condemnation proceeding then in the event of a judgment against such officer or employee, the amount thereof shall, upon final judgment, be paid out of the appropriations made for the administration of this act.

Now, that language was carried all through all of these bills until the very day of the final passage of S. 5 over in the Senate.

At that time a bill-no doubt you have seen copies of it—was presented to the Senate which, instead of the roman type and italics, had four kinds of type, and among other things, this provision was

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stricken out without, I am informed, ever being considered by the Committee on Commerce in the Senate.

Those things happen, of course, occasionally in the hurry and haste of legislation.

Language to this effect, or something perhaps a little better, the National Apple Growers Association has proposed be restored to the bill, and I believe that it should be. Their suggestion is that on page 23, line 17, of your present bill, as before you, in section 702, page 23, line 17, Mr. Chairman, after the word "above", there be inserted the following:

And provided further, That in any such criminal prosecution or suit for injunction or in any proceeding of libel for condemnation, based in whole or in part upon an alleged violation of the regulation promulgated or made by the Secretary, the prosecution shall be required to prove its case affirmatively in the first instance and that the regulation alleged to have been violated is in accordance with the fact and the law.

And that, at page 35, line 22, after the word "warning", should be inserted the following language:

there

In the case of an unjustifiable criminal prosecution or an unjustifiable seizure or proceeding of libel for condemnation under the provisions of this act, the person so aggrieved may, with the consent of the Federal district court, bring suit in said court against the Secretary of Agriculture to recover the proven loss and damage, and same shall be paid out of the appropriation made for the administration of this act.

Now, gentlemen, the reason for the first suggested amendment is that without it the present bill reverses the entire policy of the present Food and Drugs Act. The present law does not clothe the Secretary of Agriculture with any legislative power. The proposed bill does, all throughout-section 301 (a), section 304 (a), and various other sections throughout the bill.

Congress does not know what is going to be in these legislative rulings, rules and regulations, regulations that you may call them that are going to be put out, and no one knows or can know.

Under the present act, the burden of proof in the case of criminal procedure or condemnation-the burden of proof is upon the Secretary of Agriculture. Without this amendment, the first amendment I have suggested, the burden of proof will be shifted to the shoulders of the defendant.

Let us look at what will happen under this bill unless some change is made: The Secretary desires to promulgate a regulation. He will first notify the committee on public health-the five men that the bill authorizes to be appointed-that he desires to establish a regulation. The majority of the members will then recommend to the Secretary whatever the proposed regulation may be, and the Secretary will then give 30 days' notice of a public hearing. After the hearing the Secretary is authorized to promulgate such regulations with the approval of the majority of that advisory committee. Now, the hearing does not have to be conducted by the Secretary. The members of the committee do not even have to be present at the hearing, because the bill provides that transcript of the proceedings may be sent to them. They do not have to see or hear witnesses at all, and neither the Secretary nor the members of the committee have to be within actual hearing distance. They do not have to be within miles of where the hearing takes place. They can all be absent. That is provided in section 703 (c) and (e) of this bill.

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Now, when you get down to the facts, what it means is that the Bureau itself, of course, is going to promulgate these regulations, and that is all right so far as that is concerned; but practically the bulk of the fruit and the vegetable growers of the United States are never going to be able to be present at those hearings, and they are not going to know whether they are headed toward fine or imprisonment or what is going to happen.

Now, under those circumstances, in view of the fact that the Bureau is going to write the regulations and in view of the fact that the Bureau is going to dictate practically the law, and they have the enforcement of it, it is only simple, honest justice, gentlemen that they should be burdened with the burden of proof and they should prove, instead of thrusting it upon the shoulders of the defendant; and the bill at the present time, as it is written without this suggested amendment, will make the defendant the one who has to come into court and show that he is innocent.

These people who make regulations, most of them, are very good friends of mine. I have the highest respect for them. Yet they are not infallible.

On April 2, 1933, Assistant Secretary Tugwell promulgated a ruling with reference to the tolerance of lead arsenate which would be permitted in the spray used in spraying apples and pears. Now, he fixed that at 0.8014 grain; and yet 2 months and 18 days later the Secretary was forced, after further investigation, to change that to 0.02 grain.

Now, when the original order was issued, the Department suggested the use of certain substitutes which were demonstrated to them and which evidently were incapable of being used in protecting the apples and pears from the coddling moth. Consequently they had to reverse themselves.

I merely cite this instance to you gentlemen to show you that these people down at the Bureau and down in the Department are not infallible, and hence, when they go ahead and seize and condemn fresh fruit or dried fruit or any other kind of fruit, it ought to be incumbent upon them to prove that their opinions were correct, not only as to the law but as to the facts as well.

Now, as to the second amendment which I have suggested, I want to call your attention to a decision, which I do not think has yet been printed in any law book, of the southern division of the United States District Court for the Northern District of California, in the case of United States of America, libellant, v. 482 Sacks Apple Chops, labeled in part Importe des Etats Unis d'Amerique G. F. 1928 Havre", libellee. In other words, they were labeled to show that they were going to France.

Now, these apple chops are dried apples.

Mr. KENNEY. What was the date of that decision?

Mr. Buck. The decision was filed on March 9, 1935, by Judge St. Sure.

Now, the Washington Dehydrated Food Co. had prepared these 482 sacks of apple chops and had sold them in a bona fide contract to importers in France."

The ship that they were loaded on left from Seattle and touched at San Francisco on its way to France. The apples were prepared in

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accordance with the food regulations and import regulations of the Government of France. While the ship was in the harbor of San Francisco Bay and docked at Oakland, Calif., this entire consignment was seized by the United States marshal, and he caused it to be unloaded from the vessel on the ground that they were contaminated, or some other ground; I have forgotten just what it was.

Now, the court found that these apple chops were not to be used for food or drink or confectionery, as used by man or any other animals, but they were used to be taken abroad to be used for the manufacture of cider.

It found that they were not adulterated under the provisions of the present Food and Drugs Act. It found that they were intended for export and ordered the consignment delivered up to the original owner and returned to him.

But, look! It cost the libellee in this case, who had to come from Seattle to San Francisco, for court costs, traveling expenses, and transcript of testimony, $1,284.61 to intervene and contest the case. This does not include anything for time lost or delay or loss on his contract, or anything else. There was no justification for the seizure. The Federal Government paid the expenses of the prosecution. The defendant had to pay out of his own pocket his expenses.

If Senate bill 5 is enacted without the second amendment that I have suggested to you, there is no question in my mind that unreasonable seizures will increase. I think the amendment is sound. I think that seizing goods of this kind, or any kind, for that matter, on mere suspicion without being forced to prove that they are adulterated, is wrong and contrary to law and contrary to good judgment and honesty of purpose.

I submit that the record of that one case alone is sufficient to show you the care which you gentlemen should exercise in writing this bill, and that this second amendinent should be put into the bill.

Now, in connection with that particular case, I want to suggest a third amendment. I want to suggest that on page 40, line 22, after the words "United States ", there be inserted the following language:

And all such suits instituted under this act shall be tried in the jurisdiction of the defendant's or claimant's residence.

Now, in general, the fruit business, and particularly the fresh fruit business, of the United States is distributed substantially through all parts of the country. California is not the only State interested. Washington has apples, Georgia has peaches, Michigan has its peaches and grapes, and those fruits are not, for the most part, sold locally in the neighborhood. They are transported thousands of miles across the country or up and down from north to south. It is not reasonable when the Government has seized a few cases of pears or apples or watermelons to demand, if a man wants to intervene in the case and contest the libel, that he be forced to come from Texas or Georgia or California to Boston and New York and appear there.

The proof is in the hands of the bureau and in the hands of the Government, and it is no trouble, or very little trouble, for them to make their appearance in the courts in the district in which the claimant or the libellee resides.

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I submit, gentlemen, those three amendments for your consideration in behalf of the fruit growers of the country.

Mr. COLE. Mr. Chairman, may I ask a question?

Mr. CHAPMAN. Mr. Cole.

Mr. COLE. Does the amendment you suggest that contemplates the right of removal to the place of residence apply to cases where a corporation obtains a charter which is, of course, the residence of the corporation?

Mr. Buck. Well, I presume that you would have to adopt a general rule in that connection. There are some corporations, of course, which have their charter in one of the eastern States, and yet operate all over the south and west. Most of them that are so extensive in their operations, however, reincorporate their actual shipping organization in the State of origin. I think one particularly, the American Fruit Growers, which has a charter in some eastern State for its sales organization, which sells for all parts of the country, is reincorporated in my own State as a shipping organization. Mr. COLE. Where would they in that case be reached?

Mr. Buck. I think it would be reached in the State of California. Mr. COLE. Why in preference to the parent State where it is chartered!

Mr. Buck. Well, because the shipping corporation is, after all, a distinct entity from the sales organization.

Mr. COLE. Is it better to make it the State where the principal office is or the principal activity is maintained? In other words, I know of a great many companies having large operations in your State yet possessing a Delaware charter. Certainly you do not want all litigation involving those companies to be tried in the city of Wilmington!

Mr. Buck. Well, rather, I have been talking and thinking in connection with this third amendment.

Mr. COLE. Most export business is done by corporations.

Mr. Buck. Well, your export regulations have to meet with the approval of the foreign country to which they are going, anyway. I do not believe that our purpose has been or has been expected to be very much concerned with exports, except where there might be illegitimate seizures, as in the case I have referred to.

Mr. COLE. Of course, confining it strictly to our own country, and leaving the export out of it, would you want all litigation in cases of that type transferred to Wilmington, Del.

Mr. Buck. Well, whose fruit are you seizing? Whose goods are you seizing? After all, you are seizing those of the corporation, whether it is Wilmington or whether it is San Francisco, and they ought to be in position to defend where they have their principal place of business and their residence. I think that is so.

Mr. COLE. Now you are adding something to it you did not have before. You say "principal place of business." If you confine it to residence, of course, that would be Wilmington, in the case of Delaware Corporations!

Take a concrete case: Very few of these corporations operate in Delaware. They have a little office up there in some lawyer's office who is their agent.

Mr. Buck. I understand.

30598-35-29

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