NAB reports (Mar-Dec 1933)

The National Association of Broadcasters NATIONAL PRESS BUILDING ..... WASHINGTON, D. C. PHILIP G. LOUCKS, Managing Director NAB REPORTS ★ HR A ★ Vol. 1 No. 48 DEC. 9, 1933 Ceayrilht, 1933, The National Association of Broadcasters HEARINGS ON TUGWELL BILL CONCLUDED Hearings on the so-called Tugwell bill (S. 1194) to revise and extend the laws governing the manufacture and sale of foods and drugs were begun Thursday, December 7, and concluded on Friday, December 8. The hearing was held before a sub-committee of the Committee on Commerce headed by Senator Royal S. Cope¬ land of New York and including Senators McNary of Oregon and Caraway of Arkansas. The first day was used primarily in the taking of testimony in support of the bill. Walter G. Campbell, director of regulatory work of the Department of Agriculture, was the chief witness for the Government. He was preceded by Secretary of Agriculture Wallace. Mr. Campbell claimed that the new law was necessary because the existing statute was ineffective insofar as it relates to many products which reached the markets since the enactment of the 1906 law; that the old law did not cover statements or repre¬ sentations made about an article; and that it was essential that there be a prohibition against false and misleading statements made in the form of advertising. Chief among the supporters of the measure were Professors Emerson of Columbia University; Henderson of Yale; Freeman of Johns Hopkins; and representa¬ tives of the American Federation of Labor and the American Home Economics Association. James W. Baldwin appeared for the Legislative Committee of the NAB and presented a brief pointing out specific objections to the bill in line with the resolution adopted by the NAB at its White Sulphur Springs convention. The portion of the brief re¬ lating to specific objections in the bill is as follows: “1. The definition of ‘advertisement’ on page 3, lines 15-17, is so broad as to include ‘all representations of fact or opinion dis¬ seminated in any manner or by any means.’ “Such a definition of advertising appears absolutely unwork¬ able. An expression of ‘fact or opinion disseminated in any manner’ covers practically every spoken, written or printed word. With such a definition, the prohibitions contained in Section 17, sub-sections (3) and (4) (page 23, lines 15-21) would apply even to the simplest oral statement. “Such a definition of advertising, if established by Congressional enactment, would go far beyond the scope of the pending legisla¬ tion. It would, in effect, place formidable barriers around the right of free speech. Within the field specifically covered by these bills, it would render any statement dangerous, unless such state¬ ment were based on an intimate and complete knowledge of scientific data. “Under so extraordinarily broad a definition of advertising, and with the prohibitory provisions of this bill, there is hardly an ad¬ vertisement of any food product, drug or cosmetic appearing in our newspapers or magazines, or broadcast from our radio stations, which is not at least open to attack. If such a definition is per¬ mitted to stand, there is scarcely a legitimate advertiser in this entire field who can feel himself reasonably secure from legal ac¬ tion, particularly since such action may and doubtless will be in¬ stigated in large measure by his competitors. “2. Section 9 (from page 12, line 20, through page 14, line 18) declares, in substance, that any advertisement of a food, drug, or cosmetic ‘shall be deemed to be false if in any particular it is untrue, or by ambiguity or inference creates a misleading impres¬ sion.’ “The broadcasters have no desire to enter into the argument concerning self-medication, with which this section is extensively concerned. They do, however, desire to point out three things: “(a) The phrase ‘if in any particular it is untrue’ involves the setting up of an absolute standard of truth which, in the ordinary affairs of human life, is utterly unattainable. One may, in this connection, aptly quote Pilate’s ‘What is Truth?’ There is no piece of advertising copy in existence, no newspaper report, no • Page public document, which could wholly meet such a requirement as this. Of course it will be urged that this phrase is not to be taken too literally, but a law that cannot be taken literally is a dan¬ gerous and bad law. “(b) The phrase ‘by ambiguity or inference creates a misleading impression’ is just as dangerous as the phrase commented on in the preceding paragraph. How is the ‘impression’ created by any given piece of advertising copy to be determined? What is meant by ‘misleading’? Even the most accurate and careful statement of facts, whether contained in an advertisement or in any other form of communication to the public, is subject to misinterpreta¬ tion. A court has trouble enough in determining the correctness of a statement of facts; no one can even guess what would happen if it were called upon to determine legally the ‘impressions’ created by ‘inference.’ Such a provision is a direct blow at all legitimate advertising. It would, if applied literally, threaten vir¬ tually every piece of advertising copy in the food, drug and cos¬ metic field. If not applied literally, it would create a complete chaos of uncertainty. “(c) The provision that an advertisement of a drug shall be deemed to be false ‘if it includes the name of any disease for which the drug is not a specific cure but is a palliative’ involves what appears to the layman to be a perfectly hopeless confusion of opinion. The ‘cure’ of today is the ‘palliative’ of tomorrow. Most people believe, for example, that aspirin ‘cures’ headaches because it frequently stops them, but the headache itself may be merely the symptom of an ailment which the drug cannot affect. The use of such words as ‘cure’ and ‘palliative’ in legislation is certain to create endless confusion, because the words themselves are of such variable meaning. “3. Section 15 (from page 19, line 1, through page 20, line 11) directs each United States attorney ‘to cause appropriate proceed¬ ings to be instituted in the proper courts of the United States.’ This throws the initial determination of what constitutes unlawful advertising into a multiplicity of courts of presumably equal au¬ thority, resulting inevitably in hopeless confusion. An advertise¬ ment might and doubtless would be held truthful, and hence legal, in one court, and untruthful, and hence illegal, in another of like authority. It seems utterly impossible to avoid disastrous con¬ fusion unless the determination of what is and what is not per¬ missible under the law is handled by a single judicial tribunal. This applies particularly to advertising which is interstate in character, and therefore is of special significance to the broad¬ caster. “4. Section 19 (page 26, lines 11-25) gives to the district courts of the United States power to restrain by injunction the ‘repe¬ titious dissemination by radio broadcasting * * * of false ad¬ vertising.’ Here again, as in Section 15, confusion is inevitable as a result of action by a multiplicity of courts. An advertisement may be found to be illegal in one court, legal in another, and summarily shut off by injunction in a third where the case has never actually been heard at all. Even the successful defense in court of an advertising statement will not afford full protection, because some other court may rule differently, thereby furnishing the basis for injunctions throughout the country. Unless there is set up a single tribunal with full authority for the entire nation, subject only to the usual rights of appeal, this provision regarding injunctions is bound to give rise to vast confusion and manifold injustices. “It will be noted that the foregoing four specific criticisms of the bill fall into two groups. One (Points 1 and 2) concerns what seems to be the impossibility of defining accurately enough for legal purposes what is meant by ‘truth’ in advertising. It may be said that the broadcasters regard this defect in the proposed bill as fundamental, and that they can see no practicable way of extending the scope of such a bill beyond the deliberate misstate¬ ment of specific facts. Manifestly, an advertisement should not be permitted to state that the ingredients of a certain drug are 245 •