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Communications, briefs, statements Continued
(f) Chart history of administrative law bills.
Dunbar, Hon. P. B., Commissioner of Food and Drugs, letter dated
Cassedy, Mr. James W., letter dated March 15, 1946--
Table showing analysis of cases in which findings and orders were issued
subsequent to enactment of Wheeler-Lea Act involving food, drugs,
desist orders issued by the Federal Trade Commission in 41 cases- 246
Federal Trade documents submitted—Continued
Decision, February 16, 1942, and December 6, 1943, second circuit
Statement by Hon. Harry S. Truman in Congressional Record, June 2,
AMEND FEDERAL TRADE COMMISSION ACT
TUESDAY, JANUARY 29, 1946
HOUSE OF REPRESENTATIVES,
Washington, D.O. The committee met at 10 a. m., the Honorable Clarence F. Lea (chairman) presiding.
The CHAIRMAN. The committee will begin hearings this morning on H. R. 2390, a bill to amend the act creating the Federal Trade Commission, to define its powers and duties, and for other purposes. The bill and reports from Government agencies will be inserted at this place of the record.
(The matter referred to is as follows:)
[H. R. 2390, 79th Cong., 1st sess.)
A BILL To amend the Act creating the Federal Trade Commission, to define its powers and
duties, and for other purposes
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 5 (c) of the Act entitled “An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes,” approved September 26, 1914, as amended (U. S. C., title 15, sec. 45 (c)) is hereby amended to read as follows:
"(c) Any person, partnership, or corporation required by an order of the Commission to cease and desist from using any method of competition or act or practice may obtain a review of such order in the circuit court of appeals of the United States, within any circuit where the method of competition or the act or practice in question was used or where such person, partnership, or corporation resides or carries on business, by filing in the court, within sixty days from the date of the service of such order, a written petition praying that the order of the Commission be modified or set aside. A copy of such petition shall be forthwith served upon the Commission, and thereupon the Commission forthwith shall certify and file in the court a transcript of the entire record in the proceeding, including all the evidence taken and the report and order of the Commission. Upon such filing of the petition and transcript the court shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to make and enter upon the pleadings, evidence, and proceedings set forth in such transcript a decree affirming, setting aside, or modifying as in its judgment the circumstances of the case require, the order of the Commission, and enforcing the same to the extent that such order is affirmed, and to issue such writs as are ancillary to its jurisdiction or are necessary in its judgment to prevent injury to the public or to competitors pendente lite. The findings of the Commission as to the facts, if supported by the preponderance of the evidence, shall be conclusive. To the extent that the order of the Commission is affirmed, the court shall thereupon issue its own order commanding obedience to the terms of such order of the Commission. If either party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Commission, the court may order such additional evidence to be taken before
the Commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. The Commission may modify its findings as to the facts, or make new findings, by reason of the additional evidence so taken, and it shall file such modified or new findings, which, if supported by the preponderance of the evidence, shall be conclusive, and its recommendation, if any, for the modification or setting aside of its original order, with the return of such additional evidence. The judgment and decree of the court shall be final, except that the same shall be subject to review by the Supreme Court upon certiorari, as provided in section 240 of the Judicial Code.”
Sec. 2. Section 5 (1) of such Act, as amended (U. S. C., title 15, sec. 45 (1)), is hereby amended to read as follows:
“(1) Any person, partnership, or corporation who violates an order of the Commission to cease and desist after it has become final, and while such order is in effect, shall forfeit and pay to the United States a civil penalty of not more than $1,000 for each violation, not to exceed the sum of $10,000 in the aggregate, which shall accrue to the United States and may be recovered in a civil action brought by the United States.”
SEC. 3. Section 15 (a) of such Act, as amended (U. S. C., title 15, sec. 55 (a)), is hereby amended to read as follows:
"SEC. 15. For the purposes of sections 12, 13, and 14
“(a) The term 'false advertisement means an advertisement, other than labeling, which is misleading in a material respect; and in determining whether any advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations so as to prevent deception resulting from indirection and ambiguity, as well as from statements which are false. No advertisement of a drug shall be deemed to be false if it is disseminated only to members of the medical profession, contains no false representation of a material fact, and includes, or is accompanied in each instance by truthful disclosure of, the formula showing quantitatively each ingredient of such drug."
Sec. 4. Section 15 of such Act, as amended (U. S. C., title 15, sec. 55), is hereby further amended by adding a new subparagraph as follows:
“(f) The term 'labeling' means all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article.”
SEC. 5. Such Act is further amended by adding at the end thereof a new section to read as follows:
"SEC. 19. Food, drugs, devices, and cosmetics shall be exempt from the provisions of this Act to the extent of the application or the extension thereto of the Federal Food, Drug, and Cosmetic Act, approved June 25, 1938, as amended (U. S. C., title 21, chapter 9).”
FEDERAL SECURITY AGENCY,
Washington 25, May 3, 1945. Hon. CLARENCE F. LEA, Chairman, Committee on Interstate and Foreign Commerce,
House of Representatives, Washington 25, D. O. DEAR MR. CHAIRMAN: This letter is in response to your renuest of March 2, 1945, for a statement of the views of this Agency upon H. R. 2390, a bill to amend the act creating the Federal Trade Commission, to define its powers and duties, and for other purposes.
While the bill would not amend the Federal Food, Drug, and Cosmetic Act, or directly affect administrative responsibilities of this Agency, certain of its provisions are of concern to us because of the dovetailing of our functions and those of the Federal Trade Commission in the control of representations concerning food, drugs, and cosmetics.
The first section of the bill would amend section 5 of the Federal Trade Commission Act so as to make the findings of fact of the Commission, upon which its orders are based, conclusive only if supported by the preponderance of the evidence rather than simply by the evidence.
We are concerned that this proposed change may establish a precedent for changing the Federal, Food, Drug, and Cosmetic Act so that the quasi-legislative