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RADICAL CHANGE OF ATTITUDE
The present attitude of the Food and Drugs enforcement is well expressed by the Secretary of Agriculture in his report for 1926, page 91. In speaking of the Federal Food and Drugs Act, he says:
Progress was made in promoting the purity and truthful labeling of food and drugs through the enforcement of the Federal food and drugs act. This year is the twentieth anniversary of the enactment of the law. The department looks upon this act as a corrective measure rather than a punitive one and, in enforcing it, endeavors to render assistance to the industries in improving their products. * * * The educational methods followed by the Federal and State food officials have been effective both in.saving an industry from great losses and in enabling consumers to obtain an unobjectionable product. * * * It was found that the educational and regulatory campaigns had accomplished commendable results. Notwithstanding rather comprehensive sampling, no goods of last season's pack were found of a character warranting action under the Federal food and drugs act.
When individual concerns persist in violating the law, or when violations involve deliberate fraud either through adulteration or misbranding, the full penalties of the law are invoked to correct the trouble.
A careful study of the Food and Drugs Act shows that there is no warrant in any one of its provisions for these dilatory tactics. Congress provided a period of six months in which manufacturers could study the meaning of the law. Now after twenty years the big business of flouting the law is still encouraged. There are no corrective features in the law. Every section of this law is directly or indirectly punitive. There is no clemency for ignorance or accident. There is no requirement that the offender has knowingly or willfully offended the law. An amendment to that effect was rejected when the bill was before Congress. There is no provision for inviting manufacturers to a conference except when the Bureau of Chemistry has found that their products are either misbranded or adulterated. Then a hearing is accorded under the law on questions of fact.
The whole attitude of the enforcing officers is to postpone all punitive measures just as long as possible. They beg offenders to cease offending instead of bringing them before the Court and executing the law as provided by the law itself. It was intended by Congress that these punitive features should be enforced. The Secretary of Agriculture is directed by the law to transmit without delay the findings of the Bureau sent him to the Department of Justice, which is directed to bring action immediately. Where can the enforcing officer find his authority for endless delay?
It is not at all strange that when the head of.a department, as has just been shown, chooses to depart from the methods of enforcement laid down by the law to those which he claims through experience to have found to be more effective, that his subalterns fall into the same state of mind. This was shown particularly in the address of the Assistant Secretary of Agriculture, Hon. R. W. Dunlap, of Ohio, before the Convention of the State Food and Drug officials at Denver, in 1925. Mr. Dunlap as Food and Drug Commissioner of Ohio was a militant enforcer of law. It was hoped that one with his record would bring the spirit of rigid enforcement into the Food Administration at Washington. This would replace the theory which had grown up under the impression that the law was not made to be enforced but only to be used as an educational agent in bringing infractors to a sense of their crimes. There was hope that at last we had come to the turning point of the whole matter and that the Assistant Secretary would throw the whole weight of his experience and training on the side of strict law enforcement. Alas! it was first at Denver, in 1925, that it was found that he had been infected by the sleeping sickness of educational procrastination as a dominant principle in law enforcement. The following quotation is from his address at Denver in 1925 (page 76, Official Proceedings of the Twenty-ninth Annual Conference of the Association of Dairy, Food and Drug Officials of the United States):
"No longer do you gefitlemen regard the total number of seizures accomplished or of criminal prosecutions instituted or the aggregate of fines collected as a measure of efficiency in enforcing the laws entrusted to your care. The broader view, I think, universally prevails that an enforcing official who as a result of his efforts can point to a trade within his jurisdiction intelligently and wholeheartedly complying with the law, thus insuring full protection to the purchasing public as well as fair and equitable competitive practices has done more to merit the confidence not only of the public which he protects but of the industry which he regulates than one who by virtue of threats of penalties and confiscation procures an unwilling compliance rather than the support of the law he is administering. * * * Through the adoption of this theory of control, costs of litigation have been eliminated and a constructive leadership maintained to the benefit of all concerned. * * * The Department, as many of you know, now carries on its food and drug law enforcement through the Bureau of Chemistry under an organized plan of procedure along very well defined lines, known as the project plan of work. Certain industries are investigated throughout the entire country for the purpose of determining what violations if any exist and then of taking appropriate steps toward their correction. By this means a uniformity of action against every member of an industry is insured and the maximum corrective effect is obtained through educational means, to be followed by punitive action in those cases where educational measures are ineffective."
Thus we find this militant state official who fought the whole array of adulterators and misbranders at the Denver Convention in 1909 praising a method of enforcement of the Act which is not found anywhere in the Act nor by any possible construction of any of its features.
It may well be asked why after twenty years of experience manufacturers have still to be cited to kindergarten instruction as to the meaning and purport of the Food Law? As a rule, manufacturers of foods are fully informed as to the requirements of the Food Law, both of the nation and of the state. If they are not so informed it is their own fault. There is no requirement that these schools of instruction should be established and the money appropriated by Congress for the enforcement of an Act be used for the purpose of instructing manufacturers as to their duties under the Act.
Mr. Paul Dunbar, head of the regulatory division in the Bureau of Chemistry, in a recent article in the Oil, Paint and Drug Reporter under the head "Trade Warnings Issued," says:
"If, on the other hand, the infraction is one which appears to be the result of a misunderstanding and the ensuing damage to the public is not of such a character as to require immediate removal of the goods from the market, it is the practice of the bureau before initiating regulatory action to give notice to the trade, advising that on or after a certain date legal action under the food and drug act will be instituted if continued violations are encountered. Where the facts seem to warrant it such notice may be preceded by a public hearing at which interested parties are accorded opportunity for free discussion.
"Opinions may differ as to what types of violation are of such character as to require drastic action, and what may be tolerated for a time sufficient to give warning to the responsible manufacturer. * * *
"The decision as to what course shall be taken in any particular instance rests with the administrative officials of the Bureau of Chemistry in Washington or the Director of Regulatory Work. * * *
"Substantially the only thing the food and drugs act requires of a manufacturer is that his products be fit for use and that they be not labeled so as to deceive, mislead or defraud the purchaser. * * *
"It is the bureau's theory that more is to be accomplished by acting in an advisory capacity under such conditions as will insure legal products than by accumulating a record of successful prosecutions with attending flues turned into the Treasury of the United States."
Thus we see, through all the branches of food enforcement activities, this laissez faire principle. There is no longer any virtue in applying the penalties prescribed by law. There is no longer any adulteration that threatens health. Business must be preserved. Penalties were intended as aids to reformation. They are not now to be inflicted except as a last resort. Such is the regrettable condition into which law enforcement has fallen.