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The CHAIRMAN. Under your theory that oleomargarine and butter at certain times of the year closely resemble each other in color, why do you include colored margarine in your amendment? Why do you confine your amendment to colored?

Senator FULBRIGHT. If it is white margarine, it is perfectly obvious what it is. Butter is not sold in that natural state, or rarely, if at all. It is always colored. It is most unusual, if not almost impossible to find that butter offered for sale in the public. The only place I see it is on the farm where it is made. A few people still serve the butter in its natural state of color.

Senator LUCAS. Do you think the last paragraph of the amendment offered is necessary?

Senator FULBRIGHT. I do not quite understand the Senator's question.

Senator LUCAS. The labeling requirements of this act shall not apply, and so forth. Do you think that is necessary?

Senator FULBRIGHT. That has reference to what the Senator from Ohio mentioned a while ago. These other labeling requirements regarding it being sold in its carton, and so on, so that this extension of the definition of misbranding to the sale in the restaurant, the requiring of a conspicuous sign, merely states that in this instance we do not require the other kind of notice.

Senator GEORGE. If put up, the conspicuous sign, you do not have to identify each one.

Senator FULBRIGHT. That is all that means.

I do not pretend this is a perfect amendment, because we have had a good deal of trouble trying to decide ourselves. We merely offer

it. I do not particularly feel that it is necessary, and I am not in a position of urging the committee. I only offer it to meet this question that apparently they are relying very heavily on. That is my information. That is why I offer it, and I am quite sure the committee will perfect it.

Senator TAFT. An amendment which simply provides you would really have to do something of this kind, I can see that. Otherwise it would not be fraud to serve oleomargarine, yellow oleomargarine. Senator FULBRIGHT. I guess it would not be a violation of the act. Senator TAFT. It would not be a violation of the act because there would be no representation of any kind.

Senator FULBRIGHT. I certainly have no objection. We have never wanted to take advantage of anyone or to enable it to be sold as something it is not. That is not the object of the proponents of this law, and if such an amendment is worked out by the committee, we will certainly support it.

Senator TAFT. I might say it seems to me that the idea of a conspicuous sign in a restaurant is a very poor method. In the first place, it gets covered up, and in the second place, it is a kind of general warning, and does not mean anything. It seems to me it ought to be on the plate on which it is served, as in your law in your State, or on the bill of fare.

Senator FULBRIGHT. We had those differences in views. We are very troubled about it. One thing that influenced us was that not to specify was because of the existence of all of these State laws, which we did not like to make them conform to two entirely different ones. The theory of that is that we will accept those provisions of the States that they have already developed. That is the explanation of it. I agree that some criticism can be made.

Therefore, the proposed amendment would extend the definition of misbranding to cover artificially colored oleomargarine offered for sale by a public eating place, unless notice is given. The last sentence of the proposed subsection would relieve the public eating place of the duty of labeling each "pat" of oleomargarine, if the required notice is given. Under the act the Federal Security Admistrator has authority to rule certain labeling impracticable and thereby to take an article of food out of the scope of the act. The proposed subsection would relieve the Administrator of such power in the case of oleomargarine served in public eating places.

The particular type of notice to be required is not specified because to do so would require public eating places in many States to give more than one type of notice. As written, the proposed subsection would make the notice required by various States a sufficient compliance. However, if this is considered inadequate, it could be made more specific by setting a standard type of notice in the amendment, with additional provision that public eating places in States requiring notice shall be deemed to have complied with this requirement, upon giving the notice required by the law of the State.

The constitutionality of such a provision is sustained by the Sullivan case, which I have outlined.

The CHAIRMAN. I think the States could go further if they wanted, but they could not reduce the Federal notice.

Senator FULBRIGHT. Yes, that would be the minimum I suppose, and I would think that the Federal Administrator would certainly draw up some provisions as to what was basic minimum.

The CHAIRMAN. Thank you very much.

Senator FULBRIGHT. We made some research on the constitutionality of this, if the chairman would like to have it.

The CHAIRMAN. We would like to have it. Is it lengthy?
Senator FULBRIGHT. About 15 pages.

The CHAIRMAN. Let us put it in the record.

(The memorandum is as follows:)


This memorandum is submitted in response to your request for an opinion (1) as to whether restaurants and other public eating places are required under the Federal Food, Drug, and Cosmetics Act to notify their patrons that colored oleomargarine is being served, if such be the fact, and if the oleomargarine served was shipped in interstate commerce; and (2) if no such requirement exists, whether Congress could constitutionally compel such notice to be given.

I. The labeling requirements of the Federal Food, Drug, and Cosmetics Act are of uncertain applicability as concerns the restaurant transaction of serving to patrons colored oleomargarine, and further legislation would seem to be needed. Any discussion of the scope and coverage of the Federal Food, Drug, and Cosmetics Act, as of this date, involves a consideration of the very recent case, United States v. Sullivan, decided by the Supreme Court on January 19, 1948. The facts of that case were as follows: A laboratory had shipped in interstate commerce to a consignee a number of bottles containing sulfathiazole tablets. These bottles had labels affixed to them which met the requirements of the Federal Food, Drug, and Cosmetics Act including directions for and warnings as to use. A retail druggist residing in the same State purchased from the consignee one of the bottles containing sulfathiazole tablets. Some months later tablets were removed from this bottle by the druggist, placed in pill boxes, and sold to customers. These boxes were labeled "sulfathiazole," but directions for use and warnings of danger were omitted.

The druggist was charged with a violation of the Federal Food, Drug, and Cosmetics Act in that he had performed certain acts which resulted in sulfathiazole being "misbranded" while "held for sale after shipment in interstate commerce." He was convicted in the lower court; the conviction was reversed in the circuit court of appeals, and the Supreme Court upheld the conviction reversing the circuit court.


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as are

The decision involved a construction of section 301 (k) of the act which prohibits "the doing of any * * * act with respect to, a * * * drug if such act is done while such article is held for sale after shipment in interstate commerce and results in such article being misbranded," and of section 502 (f) of the act which declares a drug "to be misbranded * * * unless its labeling bears (1) adequate directions for use, and (2) such adequate warnings against dangerous to health, or against unsafe dosage necessary for the protection of users." The circuit court of appeals thought that section 301 (k) applied only to the person who had himself received it by way of shipment in interstate commerce. The Supreme Court held that such a construction was erroneous; that the language was clear as to what constituted misbranding and that "the language used by Congress broadly and unqualifiedly prohibits misbranding articles held for sale after shipment in interstate commerce, without regard to how long after the shipment the misbranding occurred, how many intrastate sales had intervened, or who had received the articles at the end of the interstate shipment." Neither did the Supreme Court accept the contention that the statutory language "the doing of any other act" was broad enough to cover a destruction or obliteration of the original label but not the act of transferring from a labeled container to a nonlabeled one. The Court said that such an argument could not be sustained. It declared that the chief purpose of forbidding the destruction of the label is to keep it intact for the information and protection of the consumer. That purpose, it

added, would be frustrated when the pills one buys are not labeled as required, whether the labor has been torn from the original container or the pills have been transferred from it to a nonlabeled container.

The circuit court of appeals also thought that to give such a broad interpretation to this section would open the door to similar consequences in the case of retail sales of food and cosmetics since the coverage is the same. Such a result the lower court viewed with undisguised alarm, but its alarm was not shared by the Supreme Court majority which declared that "the scope of the offense which Congress defined is not to be judicially narrowed as applied to drugs by envisioning extreme possible applications of its provisions which relate to food, cosmetics, and the like. There will be opportunity enough to consider such contingencies should they ever arise."

Finally, it was contended that this broad construction of the act was beyond any constitutional authority of Congress and that it invaded the power of the States. The Supreme Court in denying this contention recognized that it was going farther than it had in McDermott v. Wisconsin (228 U. S. 115), which had upheld the constitutionality of the l'ure Food and Drug Act of 1906. The act of 1906 did not contain the language of section 301 (k), although it did prohibit misbranding and authorized seizure of misbranded articles after they were shipped from one State to another, so long as they remained "unsold." Also, in the McDermott case the labels involved were on the original containers, and the possessor of the labeled cans held for sale had himself received them by way of an interstate sale and shipment. Nevertheless the Court found the McDermott holding not only applicable but controlling since in both cases "the question relates to the constitutional power of Congress under the commerce clause to regulate the branding of articles that have completed an interstate shipment and are being held for future sales in purely local or intrastate commerce."

The Sullivan case has been set forth in considerable detail because of its bearing upon the question of whether or not a public eating place is violating the Federal Food, Drug, and Cosmetics Act, if it serves to patrons colored oleomargarine after it has been shipped in interstate commerce without complying with the provisions of that act with respect to labeling.

Section 301 (k) of the act, the coverage and scope of which was construed in the foregoing case, is quoted in full as follows and prohibits:

"(k) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device or cosmetic, if such act is done while such article is held for sale after shipment in interstate commerce and results in such article being misbranded."

Section 403 of the act states, among other things, that a food shall be deemed misbranded

"(k) If it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact: Provided, That to the extent that compliance with the requirements of this paragraph is impracticable, exemptions shall be established by regulations promulgated by the Administrator. The provisions of this paragraph and paragraphs (g) and (i) with respect to artificial coloring shall not apply in the case of butter, cheese, or ice cream."

Section 403 (k) specifically states that a misbranding will occur if the food bears artificial coloring and is not labeled accordingly, provided it is not specifically excepted by the act or by regulations of the Federal Security Administrator. Oleomargarine is not specifically excepted nor do any regulations of the Administrator appear to have excepted it from the operation of this section. The principal case makes it clear that "the doing of any other act resulting in a misbranding" may consist in transferring an article from one container to another and that the local merchant is not immunized from the full force and effect of the act if the article he sells has passed through interstate commerce. Therefore, a retail dealer, who offers for sale oleomargarine which has at one time been in interstate commerce, even though he acquired it and sells it in an intrastate or local transaction,.probably must comply with the Federal Food, Drug, and Cosmetic Act with respect to labeling. The penalty for violation is found in section 303 (a) and subjects the convicted party to imprisonment for not more than 1 year, or to a fine of not more than $1,000, or to both.

The coverage of the act with respect to the local grocer seems more certain than with respect to the restaurant proprietor. The latter presents some special problems. Section 201 (k) of the act defines label as a "display of written, printed, or graphic matter upon the immediate container of any article." Section 403 in defining "misbranded food" requires certain types of information

to appear on the label. A restaurant dispenses oleomargarine, if at all, in very small quantities and certainly not heretofore in containers. The majority opin ion in the Sullivan case in refusing to pass upon whether its holding would require labeling of penny candy sticks and sardines after they are removed from their containers recognizes that such transactions might present special circumstances. The Court said: "There will be opportunity enough to consider such contingencies should they ever arise." Where labeling as defined in the act is entirely impracticable and not feasible such fact might well be considered as having some bearing upon the intent of Congress in the application of the act. It might follow that the act was never intended to cover the case of the restaurant transaction with which we are concerned; at least such might well be its judicial construction.

Also, another uncertainty arises as to the coverage of the act with respect to the restourant transaction. Section 301 (k) contains the words "if such act is done while such article is held for sale." It can be argued that there is no holding for sale, or sale, in the typical restaurant transaction where a patron is served with his meal a pat of oleomargarine and for which no separate or discernible charge is made. The point would seem to be arguable, and without some clarifying legislation, a court might well hold that such a transaction is not covered by the present act.

The Court in the Sullivan case gives ample indication that where the labeling requirements of the act are entirely impracticable, it confidently expects that the Federal Security Administrator will exempt the transaction as he is quite generally authorized to do. Mr. Justice Rutledge, in his concurring opinion, evinces considerable concern over the far-reaching implication of the Court's holding, and emphasizes heavily the discretion of the Administrator praticularly with respect to food. He writes:

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"Under section 403 (k), however, in dealing with foods the Administrator can dispense with labels much more broadly. In terms the criterion for his action becomes 'the extent to which compliance is impracticable' rather than, as under section 502 (f), 'where any requirement of clause 1 (adequate direction for use) * * is not necessary for the protection of the public health.' Practical considerations affecting the burden of compliance by manufacturers and retailers, irrelevant under section 502 (f), become controlling under section 403 (k). Thus under the statute's intent a much more rigid and invariable compliance with the labeling requirements for drugs is contemplated than for those with foods, apart from the greatly narrower coverage of the latter. And the difficulty of compliance with those requirements for such articles as candies explains the difference in the two provisos.'

In view therefore of the uncertain coverage of the act with respect to the restaurant transaction, and the uncertainty inherent in the possibility that such transactions may be specifically exempted through administrative action, additional legislation would seem to be required. It could be argued that legislation which would compel restaurants and other public eating places to notify their patrons by a conspicuous sign or item on the menu that colored oleomargarine is being served, if such be the fact and the oleomargarine was shipped in interstate commerce, will clarify a confused situation and make the labeling requirements of the act, which may otherwise be applicable, less burdensome.

II. Federal legislation which would require restaurants and other public eating places to notify by an appropriate sign that colored oleomargarine is being served, if such be the fact and the oleomargarine was shipped in interstate commerce, would appear to be constitutional.

In view of the Sullivan case there would seem to be no serious question on this point. It is true that the Sullivan case was not unanimously decided, but neither Mr. Justice Rutledge's concurring opinion nor the dissenting opinion of Messrs. Frankfurter, Reed, and Jackson raises any constitutional questions as to the scope of the Federal, Food, Drug, and Cosmetics Act is interpreted by the majority. The majority, it will be recalled, held that the constitutional power of Congress under the commerce clause extended to the regulation of the branding of articles which have completed an interstate shipment and are held for sales in purely local or intrastate commerce. This holding was reached despite the fact that the seller had not himself obtained the article through interstate commerce, but had purchased them within the State and had sold them locally. The only connection with interstate commerce was in the origin of the articles. It follows therefore, that the commerce power of Congress is sufficiently broad to authorize any reasonable regulation on the sale of articles, which have passed through the channels of interstate commerce, and which is designed to protect the ultimate

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