I HAVE WITHHELD my approval from H.R. 9728, "To revise, codify, and enact into law, title 21 of the United States Code, entitled 'Food, Drugs, and Cosmetics.'"
The legislative history of this measure indicates that it was enacted in the view that existing law would not be substantially changed by the bill or that no changes in existing law would be made which would not meet with substantially unanimous approval.
Notwithstanding this, the bill makes one very important substantive change and casts serious doubts on the status and interpretation of other statutory provisions. The most important change is the deletion from the multiple seizure powers of the present law the authority which the Food and Drug Administration has had for a number of years to make more than one seizure of food, drugs, and cosmetics, where they bear identical labeling which is believed fraudulent or so materially misleading as to injure or damage the purchaser or consumer. In the cases subject to removal of authority made by the bill, the Food and Drug Administration would be able to seize only one shipment of the articles believed to be so misbranded. Such a limitation would make it possible for fraud and material deception to continue unabated until the validity of the labeling involved in the seizure case is definitely settled by the courts.
The enactment also contains a new substantive provision affecting the administration of the Federal Food, Drug, and Cosmetic Act, the meaning of which is very uncertain, namely, that the Administrative Procedure Act "shall continue to apply to all activities of the Food and Drug Administration." The Administrative Procedure Act already applies to both rule-making and adjudication under this regulatory statute, as it does to other Acts of Congress not expressly excepted. The Federal courts, I am informed, have discussed on several occasions the relationship of these two enactments. The new language, unless it should be regarded as mere surplusage, might be held to effect basic changes in existing procedures, thereby placing the Food and Drug Administration under requirements not applicable to any other Federal agency. Such a change in the scope of the Administrative Procedure Act should not be adopted without full consideration.
The interest of the consumer public is the principal objective of the Federal Food, Drug, and Cosmetic Act. I believe that substantive changes which may seriously affect the administration of this law should not be placed in the statute books without extending to the responsible enforcement agency, the great industries affected, and the consumer public, the full opportunities for hearing and discussion afforded by the usual operation of the legislative process both in the Committees and in both Houses of the Congress.
Finally, the enactment, through oversight, may nullify the provisions of legislation relating to the importation of animals and poultry into the Virgin Islands, approved on July 22 of this year (P.L. 517). The enrolled measure apparently does not take into consideration the amendments to the Organic Act of the Virgin Islands which were made by that Act. Here again the adverse effects would be serious.
DWIGHT D. EISENHOWER