The Proposed Food and Drugs Act: a Legal Critique

THE PROPOSED FOOD AND DRUGS ACT: A LEGAL CRITIQUE MITCHELL SALEM FISHER* The proposal for a new federal Food and Drugs Act1 is but another phase of increased interest on the part of the Roosevelt Administration in the problems of the purchasing public, an interest already evinced by the National Securities Act. The task of the present article is not to venture a study in ethics nor in the factual background of food and drug legislation nor even to wage polemics on behalf of the proposed bill. The object of this study is more mundane: to view the bill in its relation to the present federal Food and Drugs Act 2 and to speculate with legal *Mitchell Salem Fisher, B.A., 1923, New York University; M.A., 1927, Columbia University; M.H.L., 1927, Jewish Institute of Religion; LL.B., 1933, Columbia University. Editor: Columbia Law Review, 1931-1933. James Kent Honorary Fellow, Columbia University School of Law, 1932-1933. Member of the New York Bar. Associated with Guggenheimer and Untermyer, Attys., of New York City. Author of Philosophy and Better Understanding in CHMSTIAN AND JEW (ed. Landman, 1928) and of articles in various philosophical periodicals. The writer wishes to acknowledge his great indebtedness to Miss Esther Oshiver, recent graduate of the University of Pennsylvania Law School, for her extensive and helpful research into the field of food and drug control by the several states and the question of civil liability for violation thereof. Only his modest disregard of his extensive and valuable critical labors on the manuscript has prevented the name of Professor Milton Handler, counsel to the National Labor Board, being added as a co-author. The writer, however, takes sole responsibility for the positions assumed with regard to the bill. Acknowl- edgement is made to the Columbia-Law Review for permission to use in part the writer's legislation note, The Consumers' Protection under the FederalPure Food and Drugs Act (1932), 32 Columbia Law Review, 720. 'S. 1944, 73rd Cong. ist Sess. (1933). The bill was introduced by Senator Copeland and referred to the Committee on Commerce. H. R. 6io, 73rd Cong. ist Sess. (1933) introduced by Congressman Sirovitch parallels the Copeland bill with the exception of Section 3 which requires that all drug containers shipped in interstate commerce must have a label bearing a registered trade mark and attempts in other ways to use the trade mark method for securing disclosure of ingredients. Throughout this article, wherever reference is made to the "bill," the Senate bill is intended. "Act" (unless otherwise qualified) will mean the present law. For discussion of S. 1944, see Tugwell, The Copeland Bill and the Food Industries, GROCERY TRADE NEws, Oct. 24, 1933; Campbell, A New Food and Drugs Act (933) i7 U. S. DEPT. AoR. Foon REv., No. 7; Handler, Revision of Federal Food and Drugs LaW, OIL, PAINT AND DRUG RaP., June 26, 1933, at 17; Analyzing the New Drug Act, DRuo AND CosUeTIc INDusTRY, Aug. 1933. '34 STAT. 768 (1906), amended by 37 STAT. 416 (1912), 37 STAT. 732 (1913), 41 STAT. 271 (1919), 42 STAT. 1500 (923), 46 STAT. 109 (1930), 21 U. S. C. A. §§1-15, §xo(5) (Supp. 1932). The Act and its amendments, the Rules and Regulations (Ninth Revision) issued thereunder, the Regulatory Announce. ments, Definitions and Standards, the more important Food Inspection decisions, and texts of related federal and state statutes are collected in I DuNN, Foon AND DRuG LAWs (1927) (Supp. 1929). The Rules and Regulations will be noted as "Reg."; Regulatory Announcements, as "Reg. Ann."; Food Inspection Decisions, as "F. I. D."; and Notices of Judgment, as "N. J." Ti PRoPosE FooD AND DRUGS ACT: A LEGAL CIuTIQUE 75 technology concerning its scope, limitations, validity and effect. Such an analysis is of particular importance in view of the fact that the present form of federal legislation on the subject which was enacted in x9o6 in response to the demand for wider 3 federal action rapidly became the prototype for state enactments4 and the probability that the present bill, if passed, will similarly serve as a model for future food and drug regulation in the various states. BAsIs OF VIOLATION UNDER TIM PRESENT ACT Contrary to popular conception, the Act as now phrased does not directly penalize 6 misbranding and adulteration. It attempts regulation by indirection, i. e., it closes the stream of foreign and interstate commerce to both misbranded and adulterated articles of medicine and food. Until a shij~ment occurs, no violation is possible, despite the fact that articles designed for interstate commerce -may have been adulterated or misbranded. For with the exception of the provisions governing the Dis- trict of Columbia and the territories the Act controls only transportation, forbidding the shipment or delivery for shipment in interstate commerce, or the receipt and delivery (or offer of delivery) in original unbroken packages after an interstate jour- 'For a history of early legislation on foods and drugs in America and the agitation leading up to the law, see WEBER, Tim FOOD, DRUG, AND INsEaTICmE ADmIN5STRATION, ITS HISTORY, ACTIVITIES, AND OR- GANSzA-ToN (1928); Dunn, History of United States Food Laws (1926) 21 Am. FOOD J. 564; Conover, National, State, and Local Co6peration in Food and Drug Control (x928) 22 AM. POL. SO. RaV. 910; The Laws That Govern Drugs, Am. DRuGGisT, Oct. 1933, at 88. See also Maxey, Federal QuarantineLaws (909) 43 Am. L. REv. 382. "See Conover, supra note 3, at 913; Holt, Uniform Legislation (1927) 22 Am. FooD J. 3; Legis. (1931) 31 COL. L. REv. 872, 873 n. 8. The existence of the Act invalidated a state law in only the one instance where the state statute was interpreted as necessarily calling for the removal of the federal label. Mc- Dermott v. Wisconsin, 228 U. S. 115, 33 Sup. Ct. 43r (1913). See Note (1913) 27 HAv. L. REv. 75- Unless thus directly interfering with the enforcement, Congress has not so "occupied" the field that the state may not prescribe additional standards of purity for the privilege of retail sale [Savage v. Jones, 225 U. S. 5or, 32 Sup. Ct. 715 (x9z2); Hebe Co. v. Shaw, 248 U. S. 297, 39 Sup. Ct. 125 (1919); Armour & Co. v. North Dakota, 240 U. S. 510, 36 Sup. Ct. 440 (19x6)) even though the sale be made in the original packages. Standard Stock Food Co. v. Wright, 225 U. S. 540, 32 Sup. Ct. 784 (1912); Corn Products Refining Co. v. Eddy, 249 U. S. 427, 39 Sup. Ct. 325 (1919). The mere fact that a state statute follows mutatis mutandis the federal Act is not determinative. Corn Products Refining Co. v. Eddy, supra, at 438, 39 Sup. Ct. at 330. Nor does the federal Act interfere with supplementary legislation by insular possessions. Gonzalez v. People of Porto Rico, 51 F. (2d) 61 (C. C. A. 1st, 193). Compliance with federal standards does not secure the right to interstate transportation free from "reasonable" regulation by the state. Sligh v. Kirkwood, 237 U. S. 52, 35 Sup. Ct. 501 (1915); Weigle v. Curtice Bros. Co., 248 U. S. 285, 39 Sup. Ct. 124 (1919); see Note (1g21) ig MICH. L. REV. 739. Municipal ordinances do not interfere. See E. Fougera & Co. v. City of New York, 224 N. Y. 269, 28o, 12o N. E. 642, 644 (9I18). Articles shipped in violation of the Act may become subject to state laws otherwise inapplicable. State v. In- toxicating Liquors, 104 Me. 502, 7 Ad. 758 (1908). When an article of food is taken from the interstate package upon receipt and placed in other packages sold within the state, the federal Act does not apply. REQ. ANN. 96. On the whole subject of the Act in relation to the "original package" doctrine, see F. I. D. No. 86 (z9o8). 'Weeks v. U. S., 245 U. S. 6x8, 38 Sup. Ct. 219 (1918). 'Section of the Act prohibits the manufacture of misbranded or adulterated food and drugs in the District of Columbia or the territories. Section 2 forbids their being sold or offered for sale in the District of Columbia or the territories. These sections do not apply to the insular possessions. Gonzalez v. People of Porto Rico, supra, note 4. But transportation into and from the insular possessions is controlled by the Act, Sio. LAW AND CONTEMPORARY PROBLEMS ney, of misbranded or adulterated foods and drugs.7 The Supreme Court in the Hipolite Egg case s decided that this shipment need not be for purposes of ultimate sale and that the law had application though the shipment consist of raw material for use inthe preparation of a more complex food product. The substandard food or drug is not permitted to cross the state line even when the shipment is made for the express purpose of removing impurities in the receiving station0 or for testing for export at such station.' 0 Similarly, rotted foodstuffs may not be sent from state to state for tanning or other non-food purposes, unless so denatured as to make their consumption by the public impossible."- The excuse that a shipment of drugs con- stituted but part of medical "services" which were being rendered has similarly failed.12 The question, however, has remained open whether an individual prac- titioner violates the law if he sends his patient a drug package with a non-complying label.' 3 BASIS OF VIOLATION UNDER THE BILL The states, untrammelled by the constitutional limitations of the "commerce" clause, have made the tampering with the food or drug the offense, 14 and have "See AcT, §2.

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