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(4) The Commission can and frequently does take testimony at widely separated places entailing much travel by the parties and counsel. Protracted absences of counsel from their offices and of the parties from their places of business naturally increase the expense. This travel may be as incessant and as long drawn out and as extended in mileage as the Commission pleases, and there is no place to which a respondent may turn for any relief. As stated, the courts refuse to interfere by way of declaratory judgment or injunction, and there is no interlocutory appeal.

(5) All of this testimony is reported stenographically and the transcript is necessary for future use in the case. A copy of it is not furnished to the respondent; he must buy his copy at the rate of 35 cents a page. Transcripts run from hundreds to thousands of pages, depending upon the length of the trial.

(6) In addition to the transcript, all proceedings by way of motions and appeals from examiner's rulings must be reduced to writing and filed in multiple copies, all of which involves more time and work by counsel and the parties.

(7) There is insufficient protection against evidence by unqualified witnesses. Qualifications are disclosed not only in what the witness says but in how he says it and in his appearance and manner upon the stand. In hearings held at distant places, witnesses of meager qualifications may be offered and the testimony received into the record along with the other and used as freely in the briefing and arguing of the case as though it were from a qualified witness.

(8) This is an assembly-line method of trying cases. It is trial by organization. A respondent finds himself opposed to an organized mechanism wherein wheels within wheels often grind out of existence the considerations which should pertain to the administration of justice. It leads to what is called an institutional decision. Such a decision is defined by Prof. Kenneth Culp Davis in an article entitled “Institutional Administrative Decisions” appearing in the Columbia Law Review for March 1948 as follows:

“An institutional decision of an administrative agency is a decision made by an organization and not by an individual or solely by agency heads. A trial judge's decision is personal; the judge hears evidence and argument and decides the case. In the administrative process, evidence may be taken before an examiner, the examiner or other subordinates may sift the evidence, various kinds of specialists of the agency's staff may contribute to the writing of proposed and final reports, and the agency heads may in fact lean so heavily on the work of the staff as to know little or nothing about the problems involved in many of the cases decided in the agency's name. In the institutional decision lie elements of special strength and elements of special weakness of the administrative proc

The strength springs from the superiority of group work—from internal checks and balances, from cooperation among specialists in various disciplines, from assignment of relatively menial tasks to low-paid personnel so as to utilize most economically the energies of high-paid personnel. The weakness of the institutional decision is its anonymity, its dissipated responsibility, its partial or complete rejection of the idea that the one who purports to decide must consider the record.”

Herein arises that expertness which the advocates of administrative law are prone to assert. The expertness, if any, is not necessarily in the persons of the Commissioners. Tenures of office may vary greatly in time, and at periods there may be considerable turn-over in the membership of a given Commission. Likewise, there is no reason for supposing that Commissioners may become expert in the wide field of commodities affected in cases of alleged false advertising and unfair competition.

James M. Landis, a former member of the Federal Trade Commission, writing in the Administrative Process, 1938, says, at page 87:

to assume that any 5, 10, or 20 men have the ability to acquire, within their brief official lifetime, the expertness to comprehend the full range of our industrial problems, from aluminum to zinc, is once more to put our trust in supermen. In the business of governing a nation—to paraphrase Gerard Henderson again-we must take into account the fact that government will be operated by men of average talent and average ability and we must therefore devise our administrative processes with that in mind.”

So what expertness exists in a Commission is usually to be found in the staff, which is frequently, as Professor Davis says, anonymously related to the adjudicating process and without responsibility for the decision. It should be said that if the Federal Trade Commission's staff has acquired expertness in the field

ess.

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of the antitrust laws, the O'Hara bill would not take away the Commission's institutional decisions in that field because it does not apply to the Clayton Act under which such proceedings are brought.

It may also be said that the exercise of expertness and the doing of justice are not always synonymous. Frequently the contrary is the case. The traditional symbol of justice and impartial adjudication is the figure of the Roman goddess Justitia, usually shown with her eyes closed or even blindfolded to signify her delicate and true weighing of the evidence put before her on both sides. It is difficult to visualize the Commissioners in that embodiment, and it is impossible for them to act in that fashion, for the Commission procedure itself debars them from it.

(9) On appeal from such institutional decisions, “the findings of the Commission as to the facts, if supported by evidence, shall be conclusive” (sec. 5 (c)). On appeal from a judge's decision, the higher court is permitted to reverse the lower court's findings as to the facts if they are "clearly erroneous” which means, as did the old equity rule, contrary to the clear weight of evidence (Aetna Life Insurance Co. v. Kepler, C. C. A. 8, 116 F. (2d) 1, 4-5; see Civil Procedure Rule 52 (a) and notes of Advisory Committee on Rules).

CONCLUSION

Manufacturers of foods, drugs, cosmetics, and therapeutic devices have a particular interest in the passage of the O'Hara bill. It would mean for them that the same tribunal would try cases involving both their labeling and their advertising. As it is now, the Federal courts are the tribunals which try the cases in which their labeling is alleged to be misbranded. Misbranding is the term used in the Federal Food, Drug, and Cosmetic Act to include labeling which is false or misleading in any particular and which fails to comply with the numerous specifications of the Food, Drug, and Cosmetic Act. These cases are tried in the courts upon suit for injunction, or in a civil action resulting upon seizure of the commodity, or in criminal prosecution following information or indictment.

The advertising of the commodities is nothing more than an extension of the labeling. The subject matter of the advertising is either identical with that on the labeling, or related to it, or an extension of it. But if the advertising is alleged to be false or misleading in any particular, the Federal Trade Commission is the tribunal which makes the adjudication. In this matter there is the opportunity for conflicts which follow from dual administration and separate adjudication.

How well the courts have served in the effective enforcement of the Federal Food, Drug, and Cosmetic Act is attested by Messrs. Daniel P. Willis and William W. Goodrich, attorneys for the Federal Security Agency, in a recent paper wherein they say:

experience under this act shows that this regulatory statute, in which courts and juries serve as agents of enforcement. can and does work. The courts have not neglected the responsibilities entrusted to them as a coordinate arm of enforcement; their opinions continue to breathe life into the act; and the public interest has been the guiding principle of decision” (Judicial Progress Under the Federal Food, Drug, and Cosmetic Act, Food-Drug-Cosmetic Law Quarterly, March 1948, pp. 16, 34).

The CHAIRMAN. Gentlemen, we will recess until 2 o'clock. We thank you, Mr. Hoge, for your appearance before the committee. We will make a part of your statement the table which you have submitted to the committee.

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(The table and map referred to are as follows:)

TRAVEL TABLE.—Federal Trade Commission v. Miles Laboratories, Inc., Docket

No. 4993; Federal Trade Commission v. Capudine Chemical Co., Docket No. 4852

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Capudine, pp. 1 to

137; Miles, pp. 1

to 145. Capudine, pp. 138

to 219; Miles, pp.

146 to 239. Capudine, pp. 220

to 340; Miles, pp.

240 to 364. Capudine, pp. 341

to 429; Miles, pp.

365 to 442. Capudine, pp. 430

to 450; Miles, pp.

443 to 473. Capudine, pp. 451

to 491; Miles, pp.

474 to 521. Capudine, pp. 492

to 590; Miles, pp.

522 to 634, Capudine, pp. 591

to 592; Miles, pp.

635 to 684. Capudine, pp. 593

to 634; Miles, pp.

685 to 726. Capudine, pp. 635

to 695; Miles, pp.

727 to 737. Capudine, pp. 696

to 731; Miles, pp.

788 to 827. Capudine, pp. 732

to 764; Miles, pp.

828 to 859. Capudine, pp. 765

to 855; Miles, pp.

860 to 951. Capudine, pp. 856

to 857; Miles, pp. 952 to 1,000.

9

36

1

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Capudine, p. 857;

Miles, p. 1,000.

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The CHAIRMAN. The first witness at 2 o'clock will be Kenneth Perry, vice president, Johnson & Johnson, New Brunskick, N. J.

(Thereupon, at 12:25 p. m., the committee took a recess until 2 p. m. of the same day.)

AFTERNOON SESSION The committee met at 2 p. m., in room 1334, New House Office Building, pursuant to adjournament, Hon. Charles A. Wolverton (chairman) presiding:

Mr. O'HARA (presiding). The committee will come to order.

The next witness is Mr. Kenneth Perry, vice president of Johnson & Johnson, of New Brunswick, N. J.

Mr. Perry, the committee will be happy to hear from you at this time.

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