Mr. WARNACK. Well, it would be a higher price to the consumer, of course, because it would require all of the work that goes into the dispensing of a prescription. Under our modern costs, I might safely say that any prescription that is taken from the customer and taken to the back counter and laid on the counter, before it is touched entails a cost of from 50 cents to 75 cents.

Mr. HELLER. If the properties are the same and all that is necessary is to put it in a big box or a small box or to give a full box, why should the price be different to the consumer?

Mr. WARNACK. The price is different because the clerk out front who could sell this package [exhibiting] gets $45 or $50 a week, and the other clerk who dispenses them gets $125 a week.

Mr. ROBERTS. Mr. Warnack, with reference to this proposition of the possibility of fraud in telephone prescriptions, is it not generally the custom where the doctor's practice is confined to a particular community that ordinarily he uses one particular druggist in the vicinity? That is the general custom; is it not?

Mr. WARNACK. I would not say he uses one particular druggist. Physicians have their pet druggists-that is true-but it does not necessarily follow. Many times the patient has a pet druggist, too. I know many, many doctors who come into our area and tell the patient "I will phone this to so and so," and the patient says "You will not. Phone it to Mr. Warnack." So that does not follow as a general rule.

Mr. ROBERTS. But generally speaking, you feel there is very little possibility of fraud due to the fact that there is a pretty close working arrangement between the doctor and the druggist?

Mr. WARNACK. That is true. I would say the fact that the druggist speaks the doctor's language and vice versa would pretty well indicate the source from which it originated.

Mr. ROBERTS. And you feel this is a good bill not only for the druggist but for the consumer and physician as well?

Mr. WARNACK. I think very much so. I feel any change in the prescription provision would very much weaken the bill and destroy its usefulness.

Mr. HALE. Mr. Warnack, there is some sound reasoning behind the provision of written prescriptions; is there not?

Mr. WARNACK. If there is a sound reason, I am unable to tell what it is, because this has been going on for the last 50 years. I do not believe this provision that is in the act was placed in there purposely; I think it was simply discovered that it existed and necessitated the Administrator having to issue regulations or a pronouncement, in effect, that there it was and here it is. I see no sound reason for it. Mr. HALE. Is it not quite possible to misunderstand an oral prescription over the phone?

Mr. WARNACK. I hardly think so. I think there are very, very few

instances of error in those cases-no more so than there would be in a written prescription.

Mr. HALE. Surely, if the doctor is prescribing a drug which contains, let us say, a certain proportion of strychnine or some other poison and the druggist misunderstands the physician and puts more of the poison in the prescription, it is a serious matter, and I should think it would be much easier to misunderstand on the telephone than to misunderstand people's writing.

Mr. WARNACK. Let me say it is almost a universal custom in this connection to call back the prescription to the doctor for verification as to the quantities and contents.

Mr. HALE. You mean when the druggist receives the prescription, he repeats what the doctor said or what he thinks he said?

Mr. WARNACK. Yes.

Mr. WOLVERTON. Speaking of the danger that might come from the taking of a prescription over the telephone compared to one in writing, I happen to have had the experience some years ago when I was a prosecuting attorney where the prescription was in writing but the druggist probably did not read the writing as correctly as he should, and it resulted in a death. I do not remember the exact name of the drug, but I think it was barium sulphate, and there was all the difference in the world between the ending of the word as to whether it

"ia" or "ie" or something of that sort, and it made the difference between life and death I do not remember the exact word or the exact drug and spelling, but the only difference was a couple of letters, and the druggist misunderstood it, although it was a written prescription, and it resulted in death.

Mr. WARNACK. Yes, sir.

Mr. ROGERS. In taking a prescription over the telephone, would not that increase the liability of the pharmacist?

Mr. WARNACK. Yes, sir; it would. I may answer and say that the druggists here are willing to assume that liability. We know it exists to some extent.

(The committee thereupon took a recess until 2 p. m.)

AFTERNOON SESSION

The committee resumed at 2 p. m., Hon. Robert Crosser (chairman) presiding.

The CHAIRMAN. The committee will please be in order. At this point we desire to have a telegram included in the record. It has come since the hearings started and bears on the point that was discussed today.

(The telegram referred to is as follows:)

Representative ROBERT CROSSER,

NEW YORK, N. Y., May 1, 1951.

Chairman, Interstate and Foreign Commerce Committee,

New House Office Building, Washington, D. C.:

Believe that inclusion of the word "ineffective" in H. R. 3298 will confuse rather than clarify the issues and that plan to give Administrator the power to add to list of prescription drugs is an unnecessary, unwarranted, and unwise extension of the current trend toward bureaucratic government.

STERLING DRUG, INC. The CHAIRMAN. At this point, we shall receive a statement by Robert E. Kelly, pharmacist and proprietor of a drug store in Chicago, Ill.

STATEMENT OF ROBERT E. KELLY, CHICAGO, ILL.

Mr. KELLY. Gentlemen of the Interstate and Foreign Commerce Committee, I am Robert E. Kelly, principal owner and operator of a drug store located in southeast Chicago, Ill. The reason I appear before you today is to urge a favorable report on H. R. 3298 introduced by Representative Carl T. Durham, of North Carolina.

There are various facts that to me seem to be important in connection with H. R. 3298. They come from personal experience and professional knowledge. I cannot of right claim to be an authority on governmental regulatory procedures or administrative responsibilities. Nevertheless, I think you will be glad to hear from a corner druggist since I may have information of value to you in a study of H. R. 3298. Also, I believe you will find that the problems I have encountered are general in the practice of pharmacy Nation-wide.

Perhaps it may be well for me to tell you a little about a registered pharmacist. He must devote 4 years to the elaborate and difficult curriculum of a pharmacy college. It is necessary for him to learn the properties of the medicinal chemicals, the action of every drug used in medical treatment, the effects of compounded antagonistic chemicals on the human body, dosages, and so forth. After graduation he must pass the penetrative examination of a State board of pharmacy to procure a license to practice. Then it is usual for him to work two or more years under the supervision of a pharmacist of considerable experience.

The pharmacist is trained to take every precaution to avoid mistakes. Long before he is licensed to practice he is made to understand that an error may bring death to a patient. I think you will in the light of the human equation agree with me that the rarity of mistakes in prescriptions is remarkable.

The number of potent medicinals today is much greater than the public realizes. Dosages of pharmaceuticals must be checked with care to make certain they are correct. The pharmacist is blamable for errors instead of the prescribers though the latter entered wrong dosages.

It is common for physicians to rely on the professional knowledge and judgment of the pharmacist. They look to him to keep abreast of the onward march of medical science. The corner druggist is an important factor in the health field. He has earned the prestige he enjoys.

The first point I wish to make is that the pharmacist is qualified through education and experience to exercise competent judgment relative to medical products of every class.

The druggist today has to contend with legislation and regulations which hamper service to the public. The restriction on refills of prescriptions is the most troublesome.

Recent figures show that 40 percent of the medicaments that the pharmacist dispenses are refills. Many of them are for treatment of cases which require various quantities of particular_medicinals in addition to the amounts of the original prescriptions. Conditions that require vitamins may call for a dozen or more refills. Ulcers of the stomach may take months to cure and the prescribed drug is used for a long time. It is common for a pharmacist to be asked to supply refills of a cough medicine. The same is true of linaments, mouth washes, ointments, laxatives, and many more medicaments.

The situation is such today that a pharmacist violates a Federal statute when he refills prescriptions for medicinals which he may sell over the counter in the form of a packaged medicine minus a legend. It is against the law to provide refills of oleum ricini. Yet the pharmacist is free to dispense castor oil (the same drug). I could cite numerous similar examples.

It is obvious that the restriction on refills is ridiculous. Nevertheless there it is and the pharmacist must abide by it to obey a Federal statute.

The restriction on refills has another angle. It is the effect it has on the cost of medicinals. Now let us suppose that a doctor prescribes a mixture of minerals called inorganic bioelements to a woman patient. The period of treatment may run to several months. The first bottle of tablets is soon exhausted. The law now requires that she procure a written order from the doctor to enable a pharmacist to dispense to her a second supply of the minerals. It is necessary for her to see the doctor and the chances are she must pay him a fee of $3. Most of the physicians in such cases much prefer to authorize refills of this kind over the telephone. But the law says that it is illegal for a pharmacist to dispense any drug (or even bread pills) on oral prescriptions. Furthermore, it irritates just about every doctor to be bothered with refills of medicaments he knows may be purchased over the counter. It doesn't make sense to him to be asked to authorize in a written order refills of acidium acetylsalicylicum when even beer joints may sell the same drug under the name of aspirin.

I urge you to make a favorable report on H. R. 3298 in order to open the way to modification of the restriction on refills through enactment of the proposed amendment of section 503 (b) of the Food, Drug, and Cosmetic Act.

I wish to submit additional sound reasons for the enactment of H. R. 3298.

The bill includes a provision that would legalize oral prescriptions. I have already referred to the restriction that makes written prescriptions compulsory.

It happens quite often that a drug is needed in a hurry.

I am reminded of a recent incident and it is typical of many that could be cited.

The patient of a certain doctor became very ill late at night. I was called on the telephone and in less than 30 minutes I had the drug at the home of the sick man. The life of the patient was saved. Yet I violated a Federal statute in that I responded to an oral order for the drug.

The restriction on the use of the telephone for transmittal of prescriptions is contrary to the welfare of the public. It is such a serious obstruction to the practice of medicine and the essential service of pharmacy that it must be disregarded in many cases in order to save human lives. The restriction on oral prescriptions should never have been made a law. I believe you will agree it is ridiculous to have a situation which subjects the pharmacist to the possibility of the disgrace of arrest and punishment for professional cooperation with the physicians in efforts to minister to the health of the public.

I recall an incident which occurred last Christmas. I received an urgent telephone request from a doctor to deliver a supply of aureomycin to the home of a patient sick from incipient pneumonia. The drug was needed to arrest the onrush of the disease.

I provided the drug on an oral order though I knew I violated a Federal statute. The life of a human being was at stake. I was prepared to suffer the penalty for the infraction of the law and it was with an untroubled conscience that I delivered the drug.

It is plain that the present statutory restriction on oral prescriptions is an unjustifiable interference with the professional obligations of the pharmacist. Moreover, it is negative to the service which the public expects of him.

One recent afternoon from 3:30 to 6 p. m. I checked on the unavoidable violations of the restriction on refills and also on oral prescriptions. I counted 15 though I try hard to operate a drug store in accordance with the very high ethics of pharmacy. All of the violations of the law were necessary to serve the physical welfare of 15 people. I would have had to ignore the right thing to do in order to comply with the Federal statute involved. I believe you will agree with me that the deplorable situation is intolerable.

Mr. Herman S. Waller has in an able manner discussed the problem of the legend. The exhibits he has placed before you constitute irrefutable evidence of the stupidity of the present laxities in the use of the legend. I will only add I am in accord with the arguments of. Mr. Waller.

Gentlemen, I again, in conclusion, urge you to help bring about the enactment of H. R. 3298. Thereby you will make an important contribution to the alleviation of the human misery that comes from disease. I thank you, gentlemen, for the courtesy you have extended to me, a corner druggist in a neighborhood of Chicago.

The CHAIRMAN. The next witness we shall hear is Herman S. Waller, counsel for the National Association of Retail Druggists. STATEMENT OF HERMAN S. WALLER, COUNSEL FOR THE NATIONAL ASSOCIATION OF RETAIL DRUGGISTS

Mr. WALLER. Mr. Chairman and gentlemen of the Committee on Interstate and Foreign Commerce, my name is Herman S. Waller. I am a registered pharmacist and a member of the bar of the law firm of Waller and Waller, Chicago, Ill. I represent the National Association of Retail Druggists, to which association I shall hereafter refer as the NARD.

In behalf of the NARD, which represents the Nation's retail drugstore owners exclusively, with a membership of some 35,000 of the 50,000 independent retail drug-store owners, in order that you may better understand our problem and the reasons for H. R. 3298 introduced by Congressman Carl T. Durham, more commonly known as the Durham-Humphrey bill, to amend section 503 (b) of the Federal Food, Drug, and Cosmetic Act, we respectfully direct your attention to the difficulties the retail druggists encounter under the present provisions of the act and the regulations thereunder in serving the public.

Section 503 (b) of the act presently provides certain specific exemptions from the labeling requirements of section 502, when the sale of a drug or device is made upon the authority of a written prescription of a physician, dentist or veterinarian, and is in words and figures as follows:

A drug dispensed on a written prescription signed by a physician, dentist, or veterinarian, * * * shall if

(1) such physician, dentist, or veterinarian is licensed by law to administer such drug, and

(2) such drug bears a label containing the name and place of the dispenser, the serial number and date of such prescription, and the name of such

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